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M/S. A.B.C. (India) Ltd Vs. State Of Assam | the Assam Act is completely distinguishable from the Haryana Act. There is a marked difference between the provisions of Haryana and Tripura Laws inasmuch as Section 38 of the Haryana General Sales Tax Act, 1973 do not clearly define the person dealing with "documents of title of goods". Further, this Court declared the provisions of Section 38 of the Haryana General Sales Act to be ultra vires primarily on the ground that the transporters/carriers were specifically excluded from the definition of "person transporting goods" in the explanation appended to Section 38 of the Act. For this ambiguity alone, this Court has struck down Section 38 of the Haryana General Sales Tax Act. In the case of Tripura goods Transport Association & Anr. Vs. Commissioner of Taxes & Ors. (supra), this Court upheld the analogous provisions contained under Section 36A and 38B of the Tripura Sales Tax Act as the said provisions clearly defined the expression "dealer" and "documents of title to goods" have been clearly defined and in that view, this Court upheld the legality of Section 36A and Section 38B of the Tripura Sales Tax Act. It is further seen that Explanation II to Section 42 of the Act excludes only person in-charge of a rail head or a post office from the definition of "person transporting goods". This Explanation clearly states that person in charge of a goods carrier carrying such goods would be included in the definition of "person transporting goods". It is only due to the reason, this Court was inclined to declare Sections 36 A and 38B of the Haryana General Sales Tax Act as ultra vires and illegal. The Assam Act, in all its spirit and content is analogous to the Tripura Sales Tax Act and not similar to the Haryana General Sales Tax Act inasmuch as the Assam Act clearly defines the expressions "document of title to goods" and there is no disparity amongst such agents dealing with documents of title to goods. The argument of learned counsel appearing for the appellant that Explanation II to Section 42 of the Act was misinterpreted by the High Court holding the transporters to be dealers under the Assam Act has no merits. The contention of the appellants counsel is based on misconception that the expression "goods carrier" in the Assam Act is qualified by the expression "other than" which qualifies the expression "a rail head or a post office". The preposition of appearing before the expression "a goods carrier carrying such goods" clearly shows that this expression is directly related to the words "person in-charge" giving the meaning that person in-charge of a goods carrier carrying such goods is included in the definition of "person transporting goods". Section 38 of the Haryana General Sales Tax Act, 1973 required clearing or forwarding agent, Dalal or any other person transporting goods (manager, agent, driver or employee) within the State, who during the course of his business handles documents of title to goods for or on behalf of any dealer to furnish to the assessing authority the particulars and information in respect of the transactions of the goods and further required to obtain licence from the assessing authority in breach whereof heavy penalty was provided for, were held to be ultra vires and no proximate connection was found to be existing between the transaction of sale and the clearing or forwarding agent, dalal or other transporter. The penalty as provided was also held to be disproportionate to the quantum of escaped assessment. It was also observed in the case of State of Haryana & Ors. vs. Sant Lal & Anr. (Supra) that the legislative entries have to be read in a wider sense so as to include all subsidiary and ancillary matters. Provisions by which evasion of tax could be prevented and further providing machinery for the purpose would be within the ambit of the legislative entry. It was further observed that if a clearing or forwarding agent or dalal or a person transporting the goods is indeed reasonably and proximately connected with the sale occasioning the liability to the sales tax, it would be a legitimate requirement for such person to obtain licence and maintain and furnish such information and particulars to the assessing authority as in the course of his business he may come to possess. But while commenting on sub-section (1) of Section 38 of the Haryana General Sales Tax Act it was observed that it was not every clearing or forwarding agent or dalal or person transporting goods who comes into possession of the particulars and information required to be furnished. It was further observed that it is only such clearing or forwarding agents or other persons transporting the goods who can be required to obtain licence and would be liable to penalty for breach of such provisions. The meaning of the words "documents of title to goods" was also held to be not clearly defined. So it was found that provisions of the Act cannot have any application to those persons who do not handle documents of title. Thus provisions of the Act cannot have any application to all and the State Legislature will have no power to legislate in respect of such persons. The matters which are not ancillary or subsidiary to the legislative entry cannot be legislated upon under the entry. The Division Bench of the Gauhati High Court while considering the impugned judgment had taken into consideration both the judgments of this Court as cited above and held that Sections 29, 36A and 38B of the Tripura Sales Tax Act are in substance similar to Sections 42 and 44 of the Assam Sales Tax Act and uphold the provisions of the Assam Act in consonance to the judgment of this Court in the case of Tripura goods Transport Association & Anr. Vs. Commissioner of Taxes & Ors. (supra). In our opinion, there is no exclusion of any transporter/carrier from the definition of person dealing in "documents of title to goods". | 0[ds]We entirely agree with the judgment of the learned Judges of the Division Bench of the Assam High Court for the conclusion arrived at by them and reasons recorded in the judgment. In the present case, the appellant has challenged the validity of Sections 42 and 44 of the Assam General Sales Tax Act, 1993 along with the impugned assessment contending that the transporters are not "dealers" within the meaning of the Assam General Sales Tax Act, 1993 and hence any obligation to maintain the documents such as registers, cash memos, challans etc. as required under Section 44 of the Act could not be imposed upon them nor any provision imposing penalty and punishment for non-compliance of the same could be made and the same is beyond legislative competence. In our view, under Section 42 of the Act, it is an obligation on every clearing, booking or forwarding agent or any other person transporting goods who during the course of its business handles documents of titles to the goods for or on behalf of any dealer or person holding certificates under Section 14 of the said Act to furnish to the prescribed authority true and complete accounts, register, documents etc. The said Section also provides for levy of penalty at the rate of three times of tax calculated on the value of the goods in respect of which no particulars or information have been furnished under Section 42(1) of the Act or no cash memo or challan has been produced before the competent authority under Section 42(3) or Rs.1000/- whichever is greater. The said Section empowers the appointed authority to enter and search any place of business of any dealer if he has reason to believe that any dealer is attempting to evade tax for that any person transporting goods for any other person who has kept in accounts in such a manner as is likely to cause evasion of tax. As per the accepted norms of taxation the jurisdiction whatever is ancillary or subsidiary provision necessary for achieving the object of a tax statute is covered by Entry 54 of List II of the Seventh Schedule to the Constitution of India. The Entries in the Legislative List have a very wide meaning and scope and should have a broad interpretation so as to make provisions in the Act workable and in the interest of the revenue. The obligation imposed upon the transporters under Sections 42 and 44 of the Act is also a part of such preventive measures against any evasion of taxes and the same should not be read in a narrow sense. In our view, the transporters are not strangers to the sale or purchase of goods, to the contrary are parts and parcels and are directly involved in storing the goods purchased or sold by, and in many cases such, transactions are fictitiously carried on in false name and address besides false classifications vis-a-vis transportation of such goods in and outside of the State making themselves party to the episode of such fictitious transactions for the sole purpose of evasion of tax by the dealers purchasing and selling such goods. The judgment of this Court in Tripura Goods Transport Association & anr. Vs. Commissioner of Taxes & Ors. (supra) was cited before us. In that judgment, this court has specifically held such agents transporting goods to be reasonably and proximately connected to the sale transaction and hence occasionally liable under the Sales Tax Laws. It is pertinent to mention that this Court while considering the Tripuras case had taken into consideration the judgment by this Court in the case of State of Haryana & Ors. vs. Sant Lal & Anr. (supra). The present case, in our view, is fully covered by the judgment rendered by this Court in Tripuras case. In our opinion, there cannot be any irregularity to call for books of accounts, documents, evidence etc. as the same is necessary for the tax authorities to make proper verification and scrutiny of the genuineness of the transactions. Issuance of notice for verification of a transaction is a formal step and the same is required for proper verification and scrutiny of the genuineness of the transaction to safeguard the interest of the State revenue. We have carefully perused both the judgments. Both the judgment uphold the legality of the charging and penal provisions in issue. But this Court struck down the relevant provisions of the Haryana General Sales Tax Act, 1973 because of apparent ambiguity inherent therein. However, in course of considering the analogous provision viz Section 36 A and Section 38 B of the Tripura Sales Tax Act, 1976, this Court in the case of Tripura goods Association & anr. Vs. Commissioner of Taxes & Ors .(supra) held that maintenance of accounts by the transporters is only to help the taxing authority to trace the dealer, fix the goods transported co-relating with the dealers transporting such goods for fixing tax liability in this regard. This Court further held as follows: "If a clearing or forwarding agent or "dalal" or person transporting goods is indeed reasonably and proximately connected with the sale occasioning the liability to the sales tax, it is legitimate to license himself under the Act and maintain and furnish such information and particulars to the assessing authority thereunder as he would in the course of his business come to possess, it is legitimate then to make him liable for such escapement of tax as has resulted from the breach by him of such obligation and to a reasonable penalty."In our view, the Assam Act is completely distinguishable from the Haryana Act. There is a marked difference between the provisions of Haryana and Tripura Laws inasmuch as Section 38 of the Haryana General Sales Tax Act, 1973 do not clearly define the person dealing with "documents of title of goods". Further, this Court declared the provisions of Section 38 of the Haryana General Sales Act to be ultra vires primarily on the ground that the transporters/carriers were specifically excluded from the definition of "person transporting goods" in the explanation appended to Section 38 of the Act. For this ambiguity alone, this Court has struck down Section 38 of the Haryana General Sales Tax Act. In the case of Tripura goods Transport Association & Anr. Vs. Commissioner of Taxes & Ors. (supra), this Court upheld the analogous provisions contained under Section 36A and 38B of the Tripura Sales Tax Act as the said provisions clearly defined the expression "dealer" and "documents of title to goods" have been clearly defined and in that view, this Court upheld the legality of Section 36A and Section 38B of the Tripura Sales Tax Act. It is further seen that Explanation II to Section 42 of the Act excludes only person in-charge of a rail head or a post office from the definition of "person transporting goods". This Explanation clearly states that person in charge of a goods carrier carrying such goods would be included in the definition of "person transporting goods". It is only due to the reason, this Court was inclined to declare Sections 36 A and 38B of the Haryana General Sales Tax Act as ultra vires and illegal. The Assam Act, in all its spirit and content is analogous to the Tripura Sales Tax Act and not similar to the Haryana General Sales Tax Act inasmuch as the Assam Act clearly defines the expressions "document of title to goods" and there is no disparity amongst such agents dealing with documents of title to goods. The argument of learned counsel appearing for the appellant that Explanation II to Section 42 of the Act was misinterpreted by the High Court holding the transporters to be dealers under the Assam Act has no merits. The contention of the appellants counsel is based on misconception that the expression "goods carrier" in the Assam Act is qualified by the expression "other than" which qualifies the expression "a rail head or a post office". The preposition of appearing before the expression "a goods carrier carrying such goods" clearly shows that this expression is directly related to the words "person in-charge" giving the meaning that person in-charge of a goods carrier carrying such goods is included in the definition of "person transporting goods". Section 38 of the Haryana General Sales Tax Act, 1973 required clearing or forwarding agent, Dalal or any other person transporting goods (manager, agent, driver or employee) within the State, who during the course of his business handles documents of title to goods for or on behalf of any dealer to furnish to the assessing authority the particulars and information in respect of the transactions of the goods and further required to obtain licence from the assessing authority in breach whereof heavy penalty was provided for, were held to be ultra vires and no proximate connection was found to be existing between the transaction of sale and the clearing or forwarding agent, dalal or other transporter. The penalty as provided was also held to be disproportionate to the quantum of escaped assessment. It was also observed in the case of State of Haryana & Ors. vs. Sant Lal & Anr. (Supra) that the legislative entries have to be read in a wider sense so as to include all subsidiary and ancillary matters. Provisions by which evasion of tax could be prevented and further providing machinery for the purpose would be within the ambit of the legislative entry. It was further observed that if a clearing or forwarding agent or dalal or a person transporting the goods is indeed reasonably and proximately connected with the sale occasioning the liability to the sales tax, it would be a legitimate requirement for such person to obtain licence and maintain and furnish such information and particulars to the assessing authority as in the course of his business he may come to possess. But while commenting on sub-section (1) of Section 38 of the Haryana General Sales Tax Act it was observed that it was not every clearing or forwarding agent or dalal or person transporting goods who comes into possession of the particulars and information required to be furnished. It was further observed that it is only such clearing or forwarding agents or other persons transporting the goods who can be required to obtain licence and would be liable to penalty for breach of such provisions. The meaning of the words "documents of title to goods" was also held to be not clearly defined. So it was found that provisions of the Act cannot have any application to those persons who do not handle documents of title. Thus provisions of the Act cannot have any application to all and the State Legislature will have no power to legislate in respect of such persons. The matters which are not ancillary or subsidiary to the legislative entry cannot be legislated upon under the entry. The Division Bench of the Gauhati High Court while considering the impugned judgment had taken into consideration both the judgments of this Court as cited above and held that Sections 29, 36A and 38B of the Tripura Sales Tax Act are in substance similar to Sections 42 and 44 of the Assam Sales Tax Act and uphold the provisions of the Assam Act in consonance to the judgment of this Court in the case of Tripura goods Transport Association & Anr. Vs. Commissioner of Taxes & Ors. (supra). In our opinion, there is no exclusion of any transporter/carrier from the definition of person dealing in "documents of title to goods"We have perused Section 46 A which, in our view, has been inserted only for achieving the objective of sealing loopholes of avoidance and evasion of sales tax by the fictitious dealers with the help of transport companies. Normally the transporters are not liable to pay tax but liability of the transport arises only if the transporter or carrier does not disclose the particulars required under Section 46A of the said Act read with Rule 21A of the Rules thereunder. The newly inserted Section 46 A of the Act, in our view, is legally sound and analogous to Section 38 B of the Tripura Sales Tax Act, 1976. It is also pertinent to mention that Section 38 B of the Tripura Sales Tax Act, 1976 has been upheld by this Court in the case of Tripura Goods Transport Association & anr. Vs. Commissioner of Taxes & Ors. (supra). In our view, the obligation imposed upon the transporters under Sections 42 and 44 and 46A of the Assam Act is also a part of such preventive measures against any evasion of taxes and the same should not be read in a narrow sense. Section 46 A and Rule 21 A of the Assam Act and the Rules framed thereunder respectively are valid and piece of legislation for the purpose of checking evasion of taxes by making the transporters/carriers accountable for the part they play in the transaction of sale and purchase of goods13. Thus we hold that the insertion of Section 46A and Rule 21A have in no way infringed the fundamental rights of the petitioners as the inserted provisions are analogous to those of Section 38 B of the Tripura Sales Tax Act, 1976 which have since been upheld by this Court. The State Legislature has the jurisdiction and competence under Entry 53 of List II of the VII Schedule to the Constitution of India to legislate such provisions as contained in Section 46 A of the Act, 1993. | 0 | 7,142 | 2,449 | ### Instruction:
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the Assam Act is completely distinguishable from the Haryana Act. There is a marked difference between the provisions of Haryana and Tripura Laws inasmuch as Section 38 of the Haryana General Sales Tax Act, 1973 do not clearly define the person dealing with "documents of title of goods". Further, this Court declared the provisions of Section 38 of the Haryana General Sales Act to be ultra vires primarily on the ground that the transporters/carriers were specifically excluded from the definition of "person transporting goods" in the explanation appended to Section 38 of the Act. For this ambiguity alone, this Court has struck down Section 38 of the Haryana General Sales Tax Act. In the case of Tripura goods Transport Association & Anr. Vs. Commissioner of Taxes & Ors. (supra), this Court upheld the analogous provisions contained under Section 36A and 38B of the Tripura Sales Tax Act as the said provisions clearly defined the expression "dealer" and "documents of title to goods" have been clearly defined and in that view, this Court upheld the legality of Section 36A and Section 38B of the Tripura Sales Tax Act. It is further seen that Explanation II to Section 42 of the Act excludes only person in-charge of a rail head or a post office from the definition of "person transporting goods". This Explanation clearly states that person in charge of a goods carrier carrying such goods would be included in the definition of "person transporting goods". It is only due to the reason, this Court was inclined to declare Sections 36 A and 38B of the Haryana General Sales Tax Act as ultra vires and illegal. The Assam Act, in all its spirit and content is analogous to the Tripura Sales Tax Act and not similar to the Haryana General Sales Tax Act inasmuch as the Assam Act clearly defines the expressions "document of title to goods" and there is no disparity amongst such agents dealing with documents of title to goods. The argument of learned counsel appearing for the appellant that Explanation II to Section 42 of the Act was misinterpreted by the High Court holding the transporters to be dealers under the Assam Act has no merits. The contention of the appellants counsel is based on misconception that the expression "goods carrier" in the Assam Act is qualified by the expression "other than" which qualifies the expression "a rail head or a post office". The preposition of appearing before the expression "a goods carrier carrying such goods" clearly shows that this expression is directly related to the words "person in-charge" giving the meaning that person in-charge of a goods carrier carrying such goods is included in the definition of "person transporting goods". Section 38 of the Haryana General Sales Tax Act, 1973 required clearing or forwarding agent, Dalal or any other person transporting goods (manager, agent, driver or employee) within the State, who during the course of his business handles documents of title to goods for or on behalf of any dealer to furnish to the assessing authority the particulars and information in respect of the transactions of the goods and further required to obtain licence from the assessing authority in breach whereof heavy penalty was provided for, were held to be ultra vires and no proximate connection was found to be existing between the transaction of sale and the clearing or forwarding agent, dalal or other transporter. The penalty as provided was also held to be disproportionate to the quantum of escaped assessment. It was also observed in the case of State of Haryana & Ors. vs. Sant Lal & Anr. (Supra) that the legislative entries have to be read in a wider sense so as to include all subsidiary and ancillary matters. Provisions by which evasion of tax could be prevented and further providing machinery for the purpose would be within the ambit of the legislative entry. It was further observed that if a clearing or forwarding agent or dalal or a person transporting the goods is indeed reasonably and proximately connected with the sale occasioning the liability to the sales tax, it would be a legitimate requirement for such person to obtain licence and maintain and furnish such information and particulars to the assessing authority as in the course of his business he may come to possess. But while commenting on sub-section (1) of Section 38 of the Haryana General Sales Tax Act it was observed that it was not every clearing or forwarding agent or dalal or person transporting goods who comes into possession of the particulars and information required to be furnished. It was further observed that it is only such clearing or forwarding agents or other persons transporting the goods who can be required to obtain licence and would be liable to penalty for breach of such provisions. The meaning of the words "documents of title to goods" was also held to be not clearly defined. So it was found that provisions of the Act cannot have any application to those persons who do not handle documents of title. Thus provisions of the Act cannot have any application to all and the State Legislature will have no power to legislate in respect of such persons. The matters which are not ancillary or subsidiary to the legislative entry cannot be legislated upon under the entry. The Division Bench of the Gauhati High Court while considering the impugned judgment had taken into consideration both the judgments of this Court as cited above and held that Sections 29, 36A and 38B of the Tripura Sales Tax Act are in substance similar to Sections 42 and 44 of the Assam Sales Tax Act and uphold the provisions of the Assam Act in consonance to the judgment of this Court in the case of Tripura goods Transport Association & Anr. Vs. Commissioner of Taxes & Ors. (supra). In our opinion, there is no exclusion of any transporter/carrier from the definition of person dealing in "documents of title to goods".
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to goods. The argument of learned counsel appearing for the appellant that Explanation II to Section 42 of the Act was misinterpreted by the High Court holding the transporters to be dealers under the Assam Act has no merits. The contention of the appellants counsel is based on misconception that the expression "goods carrier" in the Assam Act is qualified by the expression "other than" which qualifies the expression "a rail head or a post office". The preposition of appearing before the expression "a goods carrier carrying such goods" clearly shows that this expression is directly related to the words "person in-charge" giving the meaning that person in-charge of a goods carrier carrying such goods is included in the definition of "person transporting goods". Section 38 of the Haryana General Sales Tax Act, 1973 required clearing or forwarding agent, Dalal or any other person transporting goods (manager, agent, driver or employee) within the State, who during the course of his business handles documents of title to goods for or on behalf of any dealer to furnish to the assessing authority the particulars and information in respect of the transactions of the goods and further required to obtain licence from the assessing authority in breach whereof heavy penalty was provided for, were held to be ultra vires and no proximate connection was found to be existing between the transaction of sale and the clearing or forwarding agent, dalal or other transporter. The penalty as provided was also held to be disproportionate to the quantum of escaped assessment. It was also observed in the case of State of Haryana & Ors. vs. Sant Lal & Anr. (Supra) that the legislative entries have to be read in a wider sense so as to include all subsidiary and ancillary matters. Provisions by which evasion of tax could be prevented and further providing machinery for the purpose would be within the ambit of the legislative entry. It was further observed that if a clearing or forwarding agent or dalal or a person transporting the goods is indeed reasonably and proximately connected with the sale occasioning the liability to the sales tax, it would be a legitimate requirement for such person to obtain licence and maintain and furnish such information and particulars to the assessing authority as in the course of his business he may come to possess. But while commenting on sub-section (1) of Section 38 of the Haryana General Sales Tax Act it was observed that it was not every clearing or forwarding agent or dalal or person transporting goods who comes into possession of the particulars and information required to be furnished. It was further observed that it is only such clearing or forwarding agents or other persons transporting the goods who can be required to obtain licence and would be liable to penalty for breach of such provisions. The meaning of the words "documents of title to goods" was also held to be not clearly defined. So it was found that provisions of the Act cannot have any application to those persons who do not handle documents of title. Thus provisions of the Act cannot have any application to all and the State Legislature will have no power to legislate in respect of such persons. The matters which are not ancillary or subsidiary to the legislative entry cannot be legislated upon under the entry. The Division Bench of the Gauhati High Court while considering the impugned judgment had taken into consideration both the judgments of this Court as cited above and held that Sections 29, 36A and 38B of the Tripura Sales Tax Act are in substance similar to Sections 42 and 44 of the Assam Sales Tax Act and uphold the provisions of the Assam Act in consonance to the judgment of this Court in the case of Tripura goods Transport Association & Anr. Vs. Commissioner of Taxes & Ors. (supra). In our opinion, there is no exclusion of any transporter/carrier from the definition of person dealing in "documents of title to goods"We have perused Section 46 A which, in our view, has been inserted only for achieving the objective of sealing loopholes of avoidance and evasion of sales tax by the fictitious dealers with the help of transport companies. Normally the transporters are not liable to pay tax but liability of the transport arises only if the transporter or carrier does not disclose the particulars required under Section 46A of the said Act read with Rule 21A of the Rules thereunder. The newly inserted Section 46 A of the Act, in our view, is legally sound and analogous to Section 38 B of the Tripura Sales Tax Act, 1976. It is also pertinent to mention that Section 38 B of the Tripura Sales Tax Act, 1976 has been upheld by this Court in the case of Tripura Goods Transport Association & anr. Vs. Commissioner of Taxes & Ors. (supra). In our view, the obligation imposed upon the transporters under Sections 42 and 44 and 46A of the Assam Act is also a part of such preventive measures against any evasion of taxes and the same should not be read in a narrow sense. Section 46 A and Rule 21 A of the Assam Act and the Rules framed thereunder respectively are valid and piece of legislation for the purpose of checking evasion of taxes by making the transporters/carriers accountable for the part they play in the transaction of sale and purchase of goods13. Thus we hold that the insertion of Section 46A and Rule 21A have in no way infringed the fundamental rights of the petitioners as the inserted provisions are analogous to those of Section 38 B of the Tripura Sales Tax Act, 1976 which have since been upheld by this Court. The State Legislature has the jurisdiction and competence under Entry 53 of List II of the VII Schedule to the Constitution of India to legislate such provisions as contained in Section 46 A of the Act, 1993.
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The Belsund Sugar Co. Ltd Vs. The State of Bihar | market committee requires the appellant to bear the burden of the market fee. It is obvious, as seen earlier, that charge of market fee is on the buyer of branded tea and not on the seller thereof, like the appellant. The purchasers of branded market tea manufactured by the appellant who purchase the said produced in market areas governed by the Union of India have made no grievance in this connection. Even otherwise, as seen earlier, once the wide definition of `agricultural produce as found in the Market Act governs such sale transactions and when Section 15 of the Act covers such transactions, the charge under Section 27 would obviously get settled on these transaction. As a logical corollary thereof, even if the appellant may have to act as a collecting agent for the market committee concerned, as per its legal obligation in given circumstances, that by itself cannot exonerate it, once the statutory scheme of the Act covers transactions of sale of branded tea carried out by the appellant in the market area governed by Union of India. 172. Contention found in para 10 of the written submissions are to be stated to be rejected. Once the sale transactions of packed tea are governed by the sweep of the Union of India, and once such sale transactions have to be regulated as per the machinery of the Union of India, on the applicability of Section 15 of the Act, the entire infrastructure available for resulting such sale transactions at the market yard or sub-market yards whose benefit would obviously be available to the appellant cannot entitle the appellant to contend that its fundamental right under Article 19(1)(g) of the Constitution is violated. To say the least, it would be a reasonable restriction on exercise of such a right. It is pertinent to note that the appellant has not challenged the vires of Section 27 of Union of India. It is difficult to appreciate the submission that compelling the sealed and packed tea to be brought into the market yard and to be auctioned thereof cannot be considered to advance the public interest in any manner. Public interest obviously gets advanced as the sale transactions will get related by the infrastructural machinery at the market yard and sub-market yards concerned, where such transactions take place. The contention that the Bihar Act would be unconstitutional cannot be countenanced for twin reasons. Firstly, such a contention was not canvassed either before the High Court or before this Court in the present proceedings. Secondly, in any case, on the applicability of the Act once the transaction of sale of packed tea takes place in the market area, it cannot but be said to be imposing reasonable restriction under Article 19 sub-article (6) on the appellants fundamental right. The appellant, as a seller of manufactured tea, has not to bear any burden of the imposed market fee on sale transactions. All that it gets is the benefit of the infrastructural facilities made available by the market committee for regulating such transactions and if the appellants is likely to get more price for its branded tea by subjecting its sale transactions to auction, the said provision instead of adversely affecting the appellant would, on the contrary, be more beneficial to it. May be, the appellant from commercial point of view may not like to charge higher price for the packed tea from its customers but that does not mean that the infrastructural facilities made available by the market committees to the appellant to get more price of its branded tea if so desired by it can be construed in any way to be adversely affecting its commercial business interests. For obvious reasons, therefore, none of the contentions found in the written submissions can advance the case of the appellants and they necessarily have to stand repelled. 173. These were the only contentions canvassed by learned Counsel in support of the appeal and as they fail, the inevitable result is that this appeal fails and will be liable to be dismissed. FINAL ORDER : 174. As a net result of the aforesaid discussion, therefore the following orders are passed : 1. SUGAR GROUP MATTERS : 175. These appeals, namely, Civil Appeal Nos. 398 and 399/1977, 234/1995, 8163/1994, 7432/1994 2632-33/1982, 1282/1995 are allowed. The judgments and orders passed by the High Court impugned in these appeals are set aside. The Writ Petition No. 1250/1986 filed by the petitioner will stand allowed accordingly as detailed in this judgment subject to the riders mentioned hereinabove. 176. Civil Appeal Nos. 4500-05 of 1992, so far as they seek to challenge the levy of market fee on sugar are concerned, will stand allowed. The respective six petitions filed before the High Court dealing with levy of market fee on sugar will stand allowed. 177. Civil Appeal arising out of S.L.P. (C) No. 9684 of 1992 will stand allowed to the extent Civil Writ Petition No. 5974 of 1988 filed before the High Court deals with the contentions regarding market fee on sugar. Instead of the relief granted by the High Court limiting to the non-levy of market fee on sugar after 2.5.1977, it is directed that levy of market fee on sugar for the entire period covered by the writ petition will be treated to be unauthorised. 178. This judgment will have only prospective operation and will not affect past transactions entered into prior to the date of this judgment. 2. WHEAT PRODUCTS LIKE ATTA, MAIDA, SUZI, ETC. 179. These appeals, namely, Civil Appeal Nos. 2951, 2952 and 2953 of 1992, 3505 and 3506 of 1992 and 829/1993 are dismissed. 3. VEGETABLE OIL MATTERS : 180. Civil Appeal No. 1427 of 1979 is dismissed. 181. Civil Appeal Nos. 4500-05 of 1992, so far as they deal with levy of market fee on Vanaspati Oil are concerned, will stand dismissed and the High Courts decision in all six writ petitions pertaining to levy of market fee on edible oil shall remain confirmed. | 0[ds]On a conjoint reading of these two notifications, therefore, it can be seen that exemption under Section 42 of the Act was confined to excluding the operation of Section 15(2) of the Act qua these sugar factories. In the alternative, it was submitted that if the exemption notification is treated to cover entire Section 15 even then once the transactions of sale and purchase take place within the market area, charge under Section 27 would get settled on these transaction. It was further submitted that there is enough return benefit made available to the sugar factories admittedly situated within the market area. That in fact, their service centres are also declared to bet yards even beyond the factory gate. That they utilise the link roads made available by the market committees for brining sugarcane produce to the factory premises by giving facility of swift transportation. Thus the sugarcane as a raw material is brought to the factory premises before it gets dried up. This yields better quality and larger quantity of sugar and molasses. In addition thereto facilities of supply of necessary information regarding the prevalent prices of sugarcane are made available by the market committees. But even apart from that, the market committees can act as a mediator in enabling the sugarcane growers to get better price of sugarcane above the minimum price fixed under the Control Order and the Sugarcane Act and this role of the market committees would be beneficial not only tot he producers of sugarcane but also to the factories which can be assured of appropriate good quality sugarcane purchased from the sugarcane growers. It is, therefore, wrong to suggest that there is no quid pro quo between the charge of market fee and the payment thereof by the sugarcane factories, that the infrastructure facilities made available to the industry as a whole have to be seen and transactions are not to be dissected for finding out the quid pro quo between charging of the market fee and the burden thereof borne by the sugar companies. It was, therefore, contended that none of the submissions canvassed by the learned senior Counsel for the appellants deserved to be accepted9. In the light of the aforesaid rival contentions, we now proceed to deal with the twin contentions submitted for our consideration by the learned senior Counsel for the appellants in support of these appeals. However, before we deal with the merits of these contentions, the question of locus standi of the appellants is required to be considered at the outset12. In the light of the aforesaid provisions, it is obvious that the sugar factories operating in the market area within the jurisdiction of the market committee concerned can be said to be buyers of sugarcane, as `agriculture produce. Their purchase centres are situated within the market area. As submitted by the learned senior Counsel for the respondents, all the purchase centres at which the appellant sugar factories purchase sugarcane as raw material are not only situated within the market area but are also declared ast yards. In fact the entire Bihar State is comprised of various market areas within the jurisdiction of different market committees. If that is so, it has to be held that when the charge under Section 27 of paying market fee is imposed on the sugar factories as buyers of sugarcane within the market area, they have to be treated to be having sufficient locus standi as buyers of sugarcane to challenge the imposition of market fee on their purchase transactions. On this aspect, the learned senior Counsel for the respondents did not contest. However, their submission was that when purchased sugarcane is processed at the factories and converted into sugar and molasses and when such sugar and molasses are sold by the sugar factories, the charge of market fee on these sale transactions would settle on the buyers of sugar and molasses who have not made any grievance about payment of market fee. That may be so, however, the fact remains that if the sugar factories sell manufactured sugar and molasses out of the purchases raw13. This takes us to the consideration of the main twin contentions canvassed by the learned senior Counsel for the appellants for our consideration14. So far this contention is concerned, we have to keep in view the relevant provisions of the Market Act, Sugar Act as well as the Orders under the Essential Commodities Act15. In the first instance, we shall deal with the transactions of purchase of sugarcane by the sugar factories functioning in the market areas falling within the jurisdiction of respective market committees constituted under the Market Act. The Market Act has been enacted by the Bihar Legislature as per the legislature power vested in it by Entries 26, 27 and 28 of List II of Seventh Schedule of the Constitution. These entries read as under :59. Learned senior Counsel for the respondents was right when he contended in the aforesaid decision before this Court that the merkits of the reasoning whicxh appealed to the High Court were not gone into as the appeal arising from the judgment on thispoint was not pressed. However, the fact remains that the aforesaid reasoning of the Karnataka High Court remained untouched by thsi Court, nor was it dissented from. The facts of the present case project even a stronger situation, so far as the appelalnts are concerned. Whatever shortfall is found in the Sugar (Control) Order has been supplemented by the Sugarcane Act by the Bihar legialation itself. Reasoning which appealed to the Karnataka High Court in the above judgment rendered in absence of a separate comlementary legislation by the Karnataka Legislature gets further strenghtened in tthe light of the Sugarcane Act in the present case. Cosnequently on a conjoint reading of the Sugarcane Order as well as the Sugarcane Act, an inevitable conclusion has to be reached that the regulation of sale and purchase of sugarcane in the entire market area for which the genreal Act, namely, the Market Act is enacted, is fully governed and highlighted by these two special provisons harmoniously operating in the very same field. Therefore, there would remain no occasion for the State Authority to retionalise and reasonably visualise and need forregualting the purchas,de sale as well as storage of sugarcane in the market area concerned. The wide sweep of general notification of Section 3 of the Market Act, therefore, will have to be read down by excluding from its general sweep sugarcane and its products as the definition of `agricultrual produce as noted earlier would otherwise include not only primary produce of agriculture but also any other commodity processed or manufactured out of such primary agricultural produce. That is precisely the reason why the State of Bihar having realised the futility of theneed about controlling and regulating the sale and purchase of sugarcane in the market area by the sugar factories excluded the operation of Section 15 of the Act, which noted earlier, is the soul of the Act, the entire machinery avaibale to themarket committee to regulate such transactions would get out of picture and there would be no room for the market committee to supply any infrstructural facility or other benefits to the seller of such agricultural produce on the one hand and the purchaser thereof on the otherIt is also not possible to agree with the contention of the learned senior Counsel Shri Dwivedi that the Sugarcane Act of 1981 does not expressly purport to exclude the Market Act, especially when the Bihar Legislature that had enacted the former Act was aware of the Market Act, 1960 holding the field. That this circumstance shows that the legislature purposely did not exclude the applicability of the Market Act so far as the purchase and sale of sugarcane in market areas were concerned. However, this contention by itself cannot clinch the issue. If the very same legislature had felt that existing general Act was sufficient to foot the bill, then there would have been remained no occasion for the very same legislature to enact a special Act for control, regulation, sale and purchase of sugarcane after passage of 21 years. Therefore, the latter Act clearly envisaged carving out of a special field for regulating the sale and purchase of sugarcane and to that extent pro tanto it excluded the operation of the Market Act for that commodity. The intention of the legislature is thus very clear on this aspect. But apart from that, intention of itse State of Bihar itself is also clear when it excluded Section 15 of the Market Act in exercise of its exemption power under Section 42 of the Market Act. It is difficult to appreciate the contention of the learned senior Counsel that Section 15 of the Market Act is not the case of the Act. On a conjoint reading of Sections 3, 4, 15, 27 and 30 of the Act it has to be held that it is only because of the operation of Section 15 covering the sale and purchase transactions of agricultural produce that the market committee can effectively discharge its functions entrusted to it by the Act. But for Section 15 there would remain no occasion for the market committee to effectively regulate the sale and purchase transactions of the agricultural produce concerned. Section 15 mandates the sellers and producers of agricultural produce to operate in the notified market yard or sub market yards and only at these places the market committee through its officers and servants can discharge its functions effectively by regulating these transactions and for that purpose all the infrastructural facilities would be available. The entire machinery provisions enacted for the purpose would fulcrum round the vibrant operation of Section 15. Once Section 15is excluded qua any agricultural produce the entire machinery of the Market Act would come to a grinding halt so far as such an excluded `agricultural produce is concerned. Sugarcane is one such produce as we have already seen earlier. Consequently, qua such a produce the general sweep of the Market Act will be a total. Logically, therefore, there would remain no occasion for the market committee to justify levy of market fee under Section 27 of the Act read with Section 30 on these transactions. On a conjoint reading of Sections 27 and 30 of the Market Act, it becomes clear that a market committee which has to effectively control and regulate the ale and purchase of agricultural produce brought for sale and purchase in the market area as enjoined by Section 15 can effectively discharge its functions and spend its funds for supplying  the necessary infrastructure for this purpose as laid down by Section 30To that extent that the learned senior Counsel is right. However, as we have seen earlier, Entry 28 of List II dealing with `Markets and Fairs has to be read jointly with Entries 26 and 27 dealing with Trade and Commerce and once the State Legislation deals with these topics then it also squarely invokes legislative powers under Entry 33 of List III. That is precisely the entry under which the Sugarcane Act, 1981 can be said to have been enacted81. This takes us to the consideration of the statutory control of sale of molasses by sugar factories functioning in the market area. It has to be kept in view that molasses is at of the sugar industry and the sale of molasses by the Sugar factories is wholly controlled by the statutory provisions containing in the Bihar Molasses (Control) Act, 1947Wheat is a produce of agricultural, therefore, any product resulting after processing such basic raw material or which results after process of manufacture is carried on qua such basic raw material would remain agricultural produce. Shri Ranjit Kumar fairly stated that he has not challenged the vires of Section 2(1)(a) but in his submission items 14 to 16 as found in the Schedule to the Act under the caption `Cereals are wrongly included as agricultural produce as they are not produce of agriculture. Moment the artificial definition of agricultural produce as aforesaid holds the field, as a logical corollary these three disputed items would squarely get covered by the sweep of the term `agricultural produce and hence their inclusion in the schedule enacted under Section 2(1)(a) as types of cereals cannot be found fault with. These wee the only contentions canvassed by Shri Ranjit Kumar in support of his appeals. As they fail the inevitable result is that all the civil appeals would be liable to be dismissed115. In the light of the express provisions concerning the relevant items of the Schedule to the Act to which we have referred, it has to be held that on the material before the High Court in connection with the ingredients of the aforesaid two products of the appellant, it could not be effectively shown by the respondents beyond any doubt that these two products also were `agricultural produce being Animal Husbandry Products of `milk in ad form. Consequently, there was no occasion for the respondent authorities to insist that the appellant for the sale of the aforesaid two products within the market area governed by the Market Act in the State of Bihar was required to take any licence under that Act. It is not the case of the appellant that any market fee was required to be charged from him by the market committee. The only grievance made was that the appellant was required to take licence under the Market Act. Hence the question of refund of any market fee would not survive for consideration in the present case. This appeal will have to be allowed and the Writ Petition filed by the appellant in the High Court also consequently will have to be allowed by quashing the impugned notice calling upon the appellant to take licences under the Market ActThey purchase tea leaves in auction under the Tea Act held at different centres outside the State of Bihar and manufacture after proper blending tea by packing it in suitable packings having labels showing different qualities of tea like green label tea, red label tea etc. That because the appellant imports manufactured tea only for the purpose of sale in Bihar markets, it cannot be said that the machinery of the Market Act which is essentially meant to regulate the sale and purchase of agricultural produce, gets attracted. That the Market Act is, in substance, meant to cover agricultural produce which are first grown in the market area and then sold within the same area. It was also contended that tea was not one of the scheduled items earlier covered by the Act enacted as early as in 1960. That only after 16 years in 1976, tea was added as one of the items in the Schedule to the Act under the caption `Miscellaneous item No. XII as sub item 30 being Tea (leaf and dust). It was submitted that this addition to the Schedule was made by the State of Bihar in exercise of its power under Section 39 of the Act which confers power on the State Government by notification to add any of the items to be treated as `agricultural produce for being specified in the Schedule. That this addition was made after the basic notification under Section 3 of the Act was issued declaring the intention of the State to regulate the purchase, sale, storage and process of agricultural produce in such areas as may be specified in the notification. This basic notification which was followed by the procedure of inviting objections and suggestions had culminated into declaration of market area under Section 4. That initially as the item of tea was not in the Schedule, it was obviously not sought to be subjected to the regulation under the Act. Consequently, its purchase, sale, storage and process were obviously not intended to be covered by the Act. But when tea was added as an item in the Schedule in 1976 the procedure contemplated by Section 3 was obviously not undergone, and no objections were invited. Section 4(a) of the Act which was inserted by way of clarification in 1993 also made it clear that the provisions of Sections 3 and 4 shall not apply to the exercise of power by the State Government under Section 39 to amend the Schedule by addition of any item of agricultural produce not specified therein120. The very scheme and purpose underlying the enactment of the Market Act shows that only those agricultural produce which are grown within the market area and whose sale in the first instance is to be regulated and also the subsequent sale of any manufactured item out of such basic agricultural produce raw material taking place within the market area are required to be regulated by the Act so that illiterate and ignorant agriculturists who would, otherwise, suffer at the hands of middlemen and may not get adequate price for their products and due compensation for the toil undertaken by them in producing these agricultural commodities, may get adequate return for their products. The benevolent provisions of the regulatory scheme of the Act are essential to protect the agriculturists from exploitation of middlemen. In this connection, our attention was drawn to the salient observations highlighting the basic purpose for enactment of such the Market Acts as laid down by the Constitution Bench of this Court in M.C.V.S. Arunachala Nadar case (supra). Shri Shanti Bhushan submitted that the large scale manufacturers like Lipton Tea (India) Ltd. who manufacture tea outside the State in their sophisticated factories having latest machinery are not illiterate agriculturist producers of agricultural goods and commodities in their fields and do not require protection under the Act. That as these salient ensures of the Act are not kept in view by the State Authorities while inserting entry of tea in the Schedule, the said Act on the part of the State authorities was clearly ultra vires and incompetent121. In any case, as the purchase and sale of tea were governed by the comprehensive provisions of the Central Act, namely, the Tea Act, 1953, the said Act would wholly govern transactions of purchase and sale of tea by the appellant and to that extent the Market Act would stand superseded or at least the statutory intention of regulating the purchase, sale, storage and processing of tea as per the provisions of Section 3 of the Market Act would stand completely negated. Hence, on that ground also the insertion of this item in the Schedule would remain unauthorised and consequently the insistence on the part of the authorities that the sale transactions should be carried on only within the market yard ort yard was clearly illegal and violative of Article 19 of the Constitution of India122. It was lastly contended by Shri Shanti Bhushan that no quid pro quo existed between the demand for market fee by the market committees and the sale transactions effected by appellants selling agents so far as tea in packed tins was concerned. No infrastructural facilities were available for or required to be supplied to the sellers of such tea123. Learned senior counsel for the respondents, on the other hand, tried to salvage the situation by submitting that even though the Tea Act may control the sale and purchase of tea which is a highly monopolistic and export earning commodity, once the blended tea in deliverable state duly packed in tins and other packages by the appellant tea company enters the Bihar markets for sale, it cannot be said that the sale of this commodity cannot be treated to be sale of agricultural produce by the appellant within the market area in the State of Bihar as agricultural produce defined by Section 2(1)(a), would cover not only the purchase and sale of agricultural produce in its raw form but also in its processed and manufactured form as per the wide sweep of the said definition. He submitted that it cannot be disputed that tea in its raw form is an agricultural produce because tea leaves are grown in tea gardens and then they are plucked and processed in tea factories and after blending the manufactured tea in deliverable State becomes available to be sold in wholesale markets and then in the retain markets. That even though the appellants factory manufacturing the blended tea may be outside the State of Bihar, the moment the blended tea in packed form is sold in the State of Bihar in the market areas concerned, it cannot be said that the provisions of the Market Act would not apply to such sale transactions. On a conjoint reading of Section 2(1)(a) and the Schedule under Miscellaneous item XIIm 30, therefore, it has to be held that the Market Act would squarely get attracted to regulate the sale of such produce of tea by the appellant in the Bihar markets. So far as the Tea Act is concerned, it is submitted that it only regulates the sale of plucked tea from the tea gardens and provides machinery for sale by auction of such tea at the relevant centres and even in such auction when the appellant purchases these roasted tea leaves, it cannot be said that the Tea Act would cover any further transactions of manufactured tea out of the purchased tea leaves by auction purchasers like the appellant at its factories situated outside the Bihar State. That auction purchased tea leaves are processed by the appellant and blending work is done thereafter. That what is relevant for the applicability of the Market Act is the fact that this manufactured tea packed in suitable packets and tins is brought for sale within the market area in the Bihar State and these are the transactions of sale of manufactured tea out of the basic agricultural produce tea leaves that would attract the sweep of the Market Act, notwithstanding the provisions of the Tea Act. That once the Market Act applies to such sale transactions, the entire infrastructural facilities would be available to the appellant as these sales have to take place in the market yard ort yards as required by Section 15 of the Act. Once the appellant gets the benefit of this infrastructure, it cannot be said that no sufficient quid pro quo is made available under the Act by the market committees concerned to justify them to levy the market fee from the buyers of tea. That so far as the appellant is concerned, there is no burden of paying market fee as a seller of manufactured tea. The burden will be borne by the buyers who are not making any grievance in this connectionBut on a closer scrutiny, the said contention does not appear to be well sustained. Section 2(1)(a) of the Market Act, as seen earlier, includes in the definition of agricultural produce to only the primary produce grown in the field but also covers all processed ord agricultural produce as specified in the Schedule. In the light of the aforesaid wide sweep of this definition, it cannot be said that tea leaves which are produced in the gardens being primary agricultural produce would cease to be agricultural produce one they got processed. After plucked tea leaves are processed by roasting them and then by subjecting them to further process of blending and ultimately packing them in suitable packets they still remain all the same agricultural produce so manufactured out of the basic agricultural raw material `tea leaves. It is also not in dispute that Tea (leaf and dust) is a Scheduled item. Once that is so, sale of manufactured tea in packed condition within the market area would squarely attract the charge under Section 27 of the Act which, as noted earlier, is widely worded. The movement the agricultural produce as defined by Section 2(1)(a), is bought or sold in the market area, Section 27 would get attracted to cover such transaction. It is also pertinent to note that Section 15n (1) of the Act is applicable in the present case to cover such transactions of sale of packed tea within the market areas of the concerned market committees governed by the Act. Save and except such quantity as may be prescribed for retail sale or personal consumption to be outside the sweep of Section 15(1) of the Act, rest of these sale transactions regarding manufactured agricultural produce would remain governed by the sweep of the Act. On a conjoint reading of Section 2(1)(a) and Section 15 and the relevant entry in the Schedule, there is no escape from the conclusion that whether the manufactured agricultural produce has undergone manufacturing process within the market area or not or whether such agricultural produce in its rw form is grown in the market area or outside or whether the processed `agricultural produce is important only for sale within the market area, the applicability of the Act cannot be said to be ruled out to cover all these types of sale transactions130. The Tea Act of 1953 provides for control by the Union Government of the Tea Industry, including the control, in pursuance of the International Agreement now in force, of the cultivation of tea in, and of the export of tea from, India and for that purpose to establish a Tea Board and levy a duty of excise on tea produced in IndiaThis is a hypothetical question raised which does not require any answer obviously at this stage. As and when in future such an eventuality occurs, then the question of continuation of regulation of sale and purchase transactions to Tea (leaf and dust) by retaining this item in the Schedule may have to be examined. But as the statutory provisions stand at present, in the absence of any such existing Order under Section 30n (1) Clauses (a) and (b) by the Central Government, the field remains wide open and at least it was definitely open when the State Government introduced the Entry of Tea (leaf and dust) in the Schedule to Union of India in 1976. This exercise, by no stretch of imagination, could be said to be unauthorised, illegal or amounting ton of mind. The second contention, therefore, is answered in negative against the appellant and in favour of the respondent. That takes us to the consideration of contention No. 3162. Once it is held that the Union of India covers the transitions of sale of packed blended tea in sealed packets and receptacles by the appellants stockist in the market areas concerned especially when these transactions take place in the market yard ort yards as laid down by Section 15 of the Act which remains fully operative to cover such transactions, there is no escape from the conclusion that the entire infrastructure facilities for regualtion of such sale transactions as made available by the market committee concerned would ensure for the benefit of sellers of such packed blended tea171. Contention in para 9 of the written submissions is also devoid of any merit. It is not the case of the appellant that the sale of manufactured tea in Bihar markets within the market area of the concerned market committee requires the appellant to bear the burden of the market fee. It is obvious, as seen earlier, that charge of market fee is on the buyer of branded tea and not on the seller thereof, like the appellant. The purchasers of branded market tea manufactured by the appellant who purchase the said produced in market areas governed by the Union of India have made no grievance in this connection. Even otherwise, as seen earlier, once the wide definition of `agricultural produce as found in the Market Act governs such sale transactions and when Section 15 of the Act covers such transactions, the charge under Section 27 would obviously get settled on these transaction. As a logical corollary thereof, even if the appellant may have to act as a collecting agent for the market committee concerned, as per its legal obligation in given circumstances, that by itself cannot exonerate it, once the statutory scheme of the Act covers transactions of sale of branded tea carried out by the appellant in the market area governed by Union of India172. Contention found in para 10 of the written submissions are to be stated to be rejected. Once the sale transactions of packed tea are governed by the sweep of the Union of India, and once such sale transactions have to be regulated as per the machinery of the Union of India, on the applicability of Section 15 of the Act, the entire infrastructure available for resulting such sale transactions at the market yard ort yards whose benefit would obviously be available to the appellant cannot entitle the appellant to contend that its fundamental right under Article 19(1)(g) of the Constitution is violated. To say the least, it would be a reasonable restriction on exercise of such a right. It is pertinent to note that the appellant has not challenged the vires of Section 27 of Union of India. It is difficult to appreciate the submission that compelling the sealed and packed tea to be brought into the market yard and to be auctioned thereof cannot be considered to advance the public interest in any manner. Public interest obviously gets advanced as the sale transactions will get related by the infrastructural machinery at the market yard andt yards concerned, where such transactions take place. The contention that the Bihar Act would be unconstitutional cannot be countenanced for twin reasons. Firstly, such a contention was not canvassed either before the High Court or before this Court in the present proceedings. Secondly, in any case, on the applicability of the Act once the transaction of sale of packed tea takes place in the market area, it cannot but be said to be imposing reasonable restriction under Article 19e (6) on the appellants fundamental right. The appellant, as a seller of manufactured tea, has not to bear any burden of the imposed market fee on sale transactions. All that it gets is the benefit of the infrastructural facilities made available by the market committee for regulating such transactions and if the appellants is likely to get more price for its branded tea by subjecting its sale transactions to auction, the said provision instead of adversely affecting the appellant would, on the contrary, be more beneficial to it. May be, the appellant from commercial point of view may not like to charge higher price for the packed tea from its customers but that does not mean that the infrastructural facilities made available by the market committees to the appellant to get more price of its branded tea if so desired by it can be construed in any way to be adversely affecting its commercial business interests. For obvious reasons, therefore, none of the contentions found in the written submissions can advance the case of the appellants and they necessarily have to stand repelled173. These were the only contentions canvassed by learned Counsel in support of the appeal and as they fail, the inevitable result is that this appeal fails and will be liable to be dismissed174. As a net result of the aforesaid discussion, therefore the following orders are passed :1. SUGAR GROUP MATTERS :175. These appeals, namely, Civil Appeal Nos. 398 and 399/1977, 234/1995, 8163/1994, 7432/1994, 1282/1995 are allowed. The judgments and orders passed by the High Court impugned in these appeals are set aside. The Writ Petition No. 1250/1986 filed by the petitioner will stand allowed accordingly as detailed in this judgment subject to the riders mentioned hereinabove5 of 1992, so far as they seek to challenge the levy of market fee on sugar are concerned, will stand allowed. The respective six petitions filed before the High Court dealing with levy of market fee on sugar will stand allowed177. Civil Appeal arising out of S.L.P. (C) No. 9684 of 1992 will stand allowed to the extent Civil Writ Petition No. 5974 of 1988 filed before the High Court deals with the contentions regarding market fee on sugar. Instead of the relief granted by the High Court limiting to they of market fee on sugar after 2.5.1977, it is directed that levy of market fee on sugar for the entire period covered by the writ petition will be treated to be unauthorised178. This judgment will have only prospective operation and will not affect past transactions entered into prior to the date of this judgment2. WHEAT PRODUCTS LIKE ATTA, MAIDA, SUZI, ETC179. These appeals, namely, Civil Appeal Nos. 2951, 2952 and 2953 of 1992, 3505 and 3506 of 1992 and 829/1993 are dismissed3. VEGETABLE OIL MATTERS :180. Civil Appeal No. 1427 of 1979 is dismissed5 of 1992, so far as they deal with levy of market fee on Vanaspati Oil are concerned, will stand dismissed and the High Courts decision in all six writ petitions pertaining to levy of market fee on edible oil shall remain confirmed. | 0 | 32,804 | 5,953 | ### Instruction:
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market committee requires the appellant to bear the burden of the market fee. It is obvious, as seen earlier, that charge of market fee is on the buyer of branded tea and not on the seller thereof, like the appellant. The purchasers of branded market tea manufactured by the appellant who purchase the said produced in market areas governed by the Union of India have made no grievance in this connection. Even otherwise, as seen earlier, once the wide definition of `agricultural produce as found in the Market Act governs such sale transactions and when Section 15 of the Act covers such transactions, the charge under Section 27 would obviously get settled on these transaction. As a logical corollary thereof, even if the appellant may have to act as a collecting agent for the market committee concerned, as per its legal obligation in given circumstances, that by itself cannot exonerate it, once the statutory scheme of the Act covers transactions of sale of branded tea carried out by the appellant in the market area governed by Union of India. 172. Contention found in para 10 of the written submissions are to be stated to be rejected. Once the sale transactions of packed tea are governed by the sweep of the Union of India, and once such sale transactions have to be regulated as per the machinery of the Union of India, on the applicability of Section 15 of the Act, the entire infrastructure available for resulting such sale transactions at the market yard or sub-market yards whose benefit would obviously be available to the appellant cannot entitle the appellant to contend that its fundamental right under Article 19(1)(g) of the Constitution is violated. To say the least, it would be a reasonable restriction on exercise of such a right. It is pertinent to note that the appellant has not challenged the vires of Section 27 of Union of India. It is difficult to appreciate the submission that compelling the sealed and packed tea to be brought into the market yard and to be auctioned thereof cannot be considered to advance the public interest in any manner. Public interest obviously gets advanced as the sale transactions will get related by the infrastructural machinery at the market yard and sub-market yards concerned, where such transactions take place. The contention that the Bihar Act would be unconstitutional cannot be countenanced for twin reasons. Firstly, such a contention was not canvassed either before the High Court or before this Court in the present proceedings. Secondly, in any case, on the applicability of the Act once the transaction of sale of packed tea takes place in the market area, it cannot but be said to be imposing reasonable restriction under Article 19 sub-article (6) on the appellants fundamental right. The appellant, as a seller of manufactured tea, has not to bear any burden of the imposed market fee on sale transactions. All that it gets is the benefit of the infrastructural facilities made available by the market committee for regulating such transactions and if the appellants is likely to get more price for its branded tea by subjecting its sale transactions to auction, the said provision instead of adversely affecting the appellant would, on the contrary, be more beneficial to it. May be, the appellant from commercial point of view may not like to charge higher price for the packed tea from its customers but that does not mean that the infrastructural facilities made available by the market committees to the appellant to get more price of its branded tea if so desired by it can be construed in any way to be adversely affecting its commercial business interests. For obvious reasons, therefore, none of the contentions found in the written submissions can advance the case of the appellants and they necessarily have to stand repelled. 173. These were the only contentions canvassed by learned Counsel in support of the appeal and as they fail, the inevitable result is that this appeal fails and will be liable to be dismissed. FINAL ORDER : 174. As a net result of the aforesaid discussion, therefore the following orders are passed : 1. SUGAR GROUP MATTERS : 175. These appeals, namely, Civil Appeal Nos. 398 and 399/1977, 234/1995, 8163/1994, 7432/1994 2632-33/1982, 1282/1995 are allowed. The judgments and orders passed by the High Court impugned in these appeals are set aside. The Writ Petition No. 1250/1986 filed by the petitioner will stand allowed accordingly as detailed in this judgment subject to the riders mentioned hereinabove. 176. Civil Appeal Nos. 4500-05 of 1992, so far as they seek to challenge the levy of market fee on sugar are concerned, will stand allowed. The respective six petitions filed before the High Court dealing with levy of market fee on sugar will stand allowed. 177. Civil Appeal arising out of S.L.P. (C) No. 9684 of 1992 will stand allowed to the extent Civil Writ Petition No. 5974 of 1988 filed before the High Court deals with the contentions regarding market fee on sugar. Instead of the relief granted by the High Court limiting to the non-levy of market fee on sugar after 2.5.1977, it is directed that levy of market fee on sugar for the entire period covered by the writ petition will be treated to be unauthorised. 178. This judgment will have only prospective operation and will not affect past transactions entered into prior to the date of this judgment. 2. WHEAT PRODUCTS LIKE ATTA, MAIDA, SUZI, ETC. 179. These appeals, namely, Civil Appeal Nos. 2951, 2952 and 2953 of 1992, 3505 and 3506 of 1992 and 829/1993 are dismissed. 3. VEGETABLE OIL MATTERS : 180. Civil Appeal No. 1427 of 1979 is dismissed. 181. Civil Appeal Nos. 4500-05 of 1992, so far as they deal with levy of market fee on Vanaspati Oil are concerned, will stand dismissed and the High Courts decision in all six writ petitions pertaining to levy of market fee on edible oil shall remain confirmed.
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also devoid of any merit. It is not the case of the appellant that the sale of manufactured tea in Bihar markets within the market area of the concerned market committee requires the appellant to bear the burden of the market fee. It is obvious, as seen earlier, that charge of market fee is on the buyer of branded tea and not on the seller thereof, like the appellant. The purchasers of branded market tea manufactured by the appellant who purchase the said produced in market areas governed by the Union of India have made no grievance in this connection. Even otherwise, as seen earlier, once the wide definition of `agricultural produce as found in the Market Act governs such sale transactions and when Section 15 of the Act covers such transactions, the charge under Section 27 would obviously get settled on these transaction. As a logical corollary thereof, even if the appellant may have to act as a collecting agent for the market committee concerned, as per its legal obligation in given circumstances, that by itself cannot exonerate it, once the statutory scheme of the Act covers transactions of sale of branded tea carried out by the appellant in the market area governed by Union of India172. Contention found in para 10 of the written submissions are to be stated to be rejected. Once the sale transactions of packed tea are governed by the sweep of the Union of India, and once such sale transactions have to be regulated as per the machinery of the Union of India, on the applicability of Section 15 of the Act, the entire infrastructure available for resulting such sale transactions at the market yard ort yards whose benefit would obviously be available to the appellant cannot entitle the appellant to contend that its fundamental right under Article 19(1)(g) of the Constitution is violated. To say the least, it would be a reasonable restriction on exercise of such a right. It is pertinent to note that the appellant has not challenged the vires of Section 27 of Union of India. It is difficult to appreciate the submission that compelling the sealed and packed tea to be brought into the market yard and to be auctioned thereof cannot be considered to advance the public interest in any manner. Public interest obviously gets advanced as the sale transactions will get related by the infrastructural machinery at the market yard andt yards concerned, where such transactions take place. The contention that the Bihar Act would be unconstitutional cannot be countenanced for twin reasons. Firstly, such a contention was not canvassed either before the High Court or before this Court in the present proceedings. Secondly, in any case, on the applicability of the Act once the transaction of sale of packed tea takes place in the market area, it cannot but be said to be imposing reasonable restriction under Article 19e (6) on the appellants fundamental right. The appellant, as a seller of manufactured tea, has not to bear any burden of the imposed market fee on sale transactions. All that it gets is the benefit of the infrastructural facilities made available by the market committee for regulating such transactions and if the appellants is likely to get more price for its branded tea by subjecting its sale transactions to auction, the said provision instead of adversely affecting the appellant would, on the contrary, be more beneficial to it. May be, the appellant from commercial point of view may not like to charge higher price for the packed tea from its customers but that does not mean that the infrastructural facilities made available by the market committees to the appellant to get more price of its branded tea if so desired by it can be construed in any way to be adversely affecting its commercial business interests. For obvious reasons, therefore, none of the contentions found in the written submissions can advance the case of the appellants and they necessarily have to stand repelled173. These were the only contentions canvassed by learned Counsel in support of the appeal and as they fail, the inevitable result is that this appeal fails and will be liable to be dismissed174. As a net result of the aforesaid discussion, therefore the following orders are passed :1. SUGAR GROUP MATTERS :175. These appeals, namely, Civil Appeal Nos. 398 and 399/1977, 234/1995, 8163/1994, 7432/1994, 1282/1995 are allowed. The judgments and orders passed by the High Court impugned in these appeals are set aside. The Writ Petition No. 1250/1986 filed by the petitioner will stand allowed accordingly as detailed in this judgment subject to the riders mentioned hereinabove5 of 1992, so far as they seek to challenge the levy of market fee on sugar are concerned, will stand allowed. The respective six petitions filed before the High Court dealing with levy of market fee on sugar will stand allowed177. Civil Appeal arising out of S.L.P. (C) No. 9684 of 1992 will stand allowed to the extent Civil Writ Petition No. 5974 of 1988 filed before the High Court deals with the contentions regarding market fee on sugar. Instead of the relief granted by the High Court limiting to they of market fee on sugar after 2.5.1977, it is directed that levy of market fee on sugar for the entire period covered by the writ petition will be treated to be unauthorised178. This judgment will have only prospective operation and will not affect past transactions entered into prior to the date of this judgment2. WHEAT PRODUCTS LIKE ATTA, MAIDA, SUZI, ETC179. These appeals, namely, Civil Appeal Nos. 2951, 2952 and 2953 of 1992, 3505 and 3506 of 1992 and 829/1993 are dismissed3. VEGETABLE OIL MATTERS :180. Civil Appeal No. 1427 of 1979 is dismissed5 of 1992, so far as they deal with levy of market fee on Vanaspati Oil are concerned, will stand dismissed and the High Courts decision in all six writ petitions pertaining to levy of market fee on edible oil shall remain confirmed.
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M/S. Maruti Udyog Ltd Vs. Ram Lal | liberal construction but the same cannot be extended beyond the statutory scheme. [See Deepal Girishbhai Soni and Others v. United India Insurance Co. Ltd., Baroda, II (2004) SLT 827=(2004) 5 SCC 385 ]. 40. In the instant case, we are not concerned with the liability of the erstwhile company. It stands accepted that the appellant has no monetary liability as regard the amount of compensation payable to the workmen in view of Section 5 of the said Act.Non-Obstante Clause — Effect of: 41. The said Act contains a non-obstante clause. It is well-settled that when both statutes containing non-obstante clauses are special statutes, an endeavour should be made to give effect to both of them. In case of conflict, the latter shall prevail. 42. In Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. and Others, II (2001) SLT 81=(2001) 3 SCC 71 , it is stated: “9. It is clear that both these Acts are special Acts. This Court has laid down in no uncertain terms that in such an event it is the later Act which must prevail. The decisions cited in the above context are as follows : Maharashtra Tubes Ltd. v. State Industrial and Investment Corpn. of Maharashtra Ltd.; Sarwan Singh v. Kasturi Lal; Allahabad Bank v. Canara Bank and Ram Narain v. Simla Banking and Industrial Co. Ltd. 10. We may notice that the Special Court had in another case dealt with a similar contention. In Bhoruka Steel Ltd. v. Fairgrowth Financial Services Ltd. it had been contended that recovery proceedings under the Special Court Act should be stayed in view of the provisions of the 1985 Act. Rejecting this contention, the Special Court had come to the conclusion that the Special Court Act being a later enactment would prevail. The headnote which brings out succinctly the ratio of the said decision is as follows: “Where there are two special statutes which contain non-obstante clauses the later statute shall prevail. This is because at the time of enactment of the later statute, the Legislature was aware of the earlier legislation and its non-obstante clause. If the Legislature still confers the later enactment with a non-obstante clause it means that the Legislature wanted that enactment to prevail. If the Legislature does not want the later enactment to prevail then it could and would provide in the later enactment that the provisions of the earlier enactment would continue to apply.” [See also Engineering Kamgar Union v. Electro Steels Castings Ltd. and Another, III (2004) SLT 597=(2004) 6 SCC 36 ]. 43. The right of the workmen to obtain compensation in terms of Section 25FFF has not been taken away under the said Act. The liability to pay compensation in the case of closure would be upon the employer which in this case would be the erstwhile company. By reason of the provisions of the said Act, only a special machinery has been carved out for payment of dues of all persons including workmen in terms of the provisions contained in Chapter VI of the said Act. If a workman contends that his lawful dues have not been paid, his remedy is to approach the Commissioner of Payments constituted under the provisions of the said Act and not to proceed against the appellant herein, in view of Section 5 of the Act. Sympathy: 44. While construing a statute, ‘sympathy’ has no role to play. This Court cannot interpret the provisions of the said Act ignoring the binding decisions of the Constitution Bench of this Court only by way of sympathy to the concerned workmen. 45. In A. Umarani v. Registrar, Co-operative Societies and Others, IV (2004) SLT 947=(2004) 7 SCC 112 , this Court rejected a similar contention upon noticing the following judgments: “In a case of this nature this Court should not even exercise its jurisdiction under Article 142 of the Constitution of India on misplaced sympathy. In Teri Oat Estates (P) Ltd. v. U.T. Chandigarh and Others, I (2004) SLT 563=(2004) 2 SCC 130 , it is stated: ‘We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order, which would be in contravention of a statutory provision.’ As early as in 1911, Farewell L.J. in Lathamv. Richard Johnson and Nephew Ltd., 1911-13 AER reprint p. 117, observed: ‘We must be careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous Will O’ the Wisp to take as a guide in the search for legal principles.’ Yet again recently in Ramakrishna Kamat and Ors. v. State of Karnataka and Ors., II (2003) SLT 189=JT 2003 (2) SC 88 , this Court rejected a similar plea for regularization of services stating: ‘...We repeatedly asked the learned Counsel for the appellants on what basis or foundation in law the appellants made their claim for regularization and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zilla Parishads in view of the Government orders and that their cases need to be considered sympathetically. It is clear from the order of the learned Single Judge and looking to the very directions given a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the Court the Courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment....’” Conclusion: | 1[ds]14. The basic fact of the matter, as noticed hereinbefore, is not in dispute. It is also not in dispute that although the services of the three respondents were terminated by the company as a result of the closure of the factory, the formal retrenchment came into being in terms of the order of the learned Company Judge. It is furthermore not in dispute that a settlement had been arrived at by and between the Official Liquidator and the workmen as regard the amount of compensation payable to the workmen of the said company.15. The closure of the undertakings of the company, thus, stands admitted. It also finds mention in the Award passed by the Labour Court. In the aforementioned factual backdrop, we may notice the salient feature of the said Act.The aforementioned provisions clearly carve out a distinction that although identical amount of compensation would be required to be paid in all situations but the consequence following retrenchment under Section 25F of the 1947 Act would not extend further so as to envisage the benefit conferred upon a workman in a case falling under Sections 25FF or 25FFF thereof. The distinction is obvious inasmuch as whereas in the case of retrenchment simpliciter a person looses his job as he became surplus and, thus, in the case of revival of chance of employment, is given the preference in case new persons are proposed to be employed by the said undertaking; but in a case of transfer or closure of the undertaking the workman concerned is entitled to receive compensation only. It does not postulate a situation where a workman despite having received the amount of compensation would again have to be offered a job by a person reviving the industry.We have noticed hereinbefore that the consequences other than payment of compensation envisaged in Section 25F of the Act do not flow in case of transfer or closure of the undertaking. Section 25H of the 1947 Act cannot, thus, be invoked in favour of the respondents in view of the fact that they were not in the employment of the company on the appointed day i.e. on 13.10.1980.34. The submission of Mr. Das to the effect that the Parliament having used the words ‘everyin Section 25FFF, which would include dismissed workmen in view of its definition contained in Section 2(s) of the 1947 Act, should be widely interpreted so as to hold that even those workmen who had received compensation would be entitled to the benefit of Section 25H of the 1947 Act, cannot be accepted. Such a construction is not possible keeping in view the statutory scheme of the 1947 Act. Section 25F vis-a-vis Section 25B read with Section 2(oo) of the 1947 Act contemplates a situation where a workman is retrenched from services who had worked for a period of not less than one year on the one hand and those workmen who are covered by Section 25FF and Section 25FFF on the other keeping in view the fact that whereas in the case of the former, a retrenchment takes place, in the latter it does not. The Parliament amended the provisions of the 1947 Act by inserting Section 25FF and Section 25FFF therein by reason of the Industrial Disputes (Amendment Act), 1957 with effect from 28.11.1956, as it was found that having regard to the helpless condition to which workman would be thrown if his services are terminated without payment of compensation and presumably on the ground that if a reasonable compensation is awarded, he may be able to find out an alternative employment within a reasonable time. In the case of closure of an industrial undertaking the Act contemplates payment of compensation alone.The interpretation of Section 25J of the 1947 Act as propounded by Mr. Das also cannot be accepted inasmuch as in terms thereof only the provisions of the said Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including the Standing Orders made under the Industrial Employment (Standing Orders) Act, but it will have no application in a case where something different is envisaged in terms of the statutory scheme. A beneficial statute, as is well known, may receive liberal construction but the same cannot be extended beyond the statutory scheme.In the instant case, we are not concerned with the liability of the erstwhile company. It stands accepted that the appellant has no monetary liability as regard the amount of compensation payable to the workmen in view of Section 5 of the said Act. | 1 | 7,747 | 814 | ### 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:
liberal construction but the same cannot be extended beyond the statutory scheme. [See Deepal Girishbhai Soni and Others v. United India Insurance Co. Ltd., Baroda, II (2004) SLT 827=(2004) 5 SCC 385 ]. 40. In the instant case, we are not concerned with the liability of the erstwhile company. It stands accepted that the appellant has no monetary liability as regard the amount of compensation payable to the workmen in view of Section 5 of the said Act.Non-Obstante Clause — Effect of: 41. The said Act contains a non-obstante clause. It is well-settled that when both statutes containing non-obstante clauses are special statutes, an endeavour should be made to give effect to both of them. In case of conflict, the latter shall prevail. 42. In Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. and Others, II (2001) SLT 81=(2001) 3 SCC 71 , it is stated: “9. It is clear that both these Acts are special Acts. This Court has laid down in no uncertain terms that in such an event it is the later Act which must prevail. The decisions cited in the above context are as follows : Maharashtra Tubes Ltd. v. State Industrial and Investment Corpn. of Maharashtra Ltd.; Sarwan Singh v. Kasturi Lal; Allahabad Bank v. Canara Bank and Ram Narain v. Simla Banking and Industrial Co. Ltd. 10. We may notice that the Special Court had in another case dealt with a similar contention. In Bhoruka Steel Ltd. v. Fairgrowth Financial Services Ltd. it had been contended that recovery proceedings under the Special Court Act should be stayed in view of the provisions of the 1985 Act. Rejecting this contention, the Special Court had come to the conclusion that the Special Court Act being a later enactment would prevail. The headnote which brings out succinctly the ratio of the said decision is as follows: “Where there are two special statutes which contain non-obstante clauses the later statute shall prevail. This is because at the time of enactment of the later statute, the Legislature was aware of the earlier legislation and its non-obstante clause. If the Legislature still confers the later enactment with a non-obstante clause it means that the Legislature wanted that enactment to prevail. If the Legislature does not want the later enactment to prevail then it could and would provide in the later enactment that the provisions of the earlier enactment would continue to apply.” [See also Engineering Kamgar Union v. Electro Steels Castings Ltd. and Another, III (2004) SLT 597=(2004) 6 SCC 36 ]. 43. The right of the workmen to obtain compensation in terms of Section 25FFF has not been taken away under the said Act. The liability to pay compensation in the case of closure would be upon the employer which in this case would be the erstwhile company. By reason of the provisions of the said Act, only a special machinery has been carved out for payment of dues of all persons including workmen in terms of the provisions contained in Chapter VI of the said Act. If a workman contends that his lawful dues have not been paid, his remedy is to approach the Commissioner of Payments constituted under the provisions of the said Act and not to proceed against the appellant herein, in view of Section 5 of the Act. Sympathy: 44. While construing a statute, ‘sympathy’ has no role to play. This Court cannot interpret the provisions of the said Act ignoring the binding decisions of the Constitution Bench of this Court only by way of sympathy to the concerned workmen. 45. In A. Umarani v. Registrar, Co-operative Societies and Others, IV (2004) SLT 947=(2004) 7 SCC 112 , this Court rejected a similar contention upon noticing the following judgments: “In a case of this nature this Court should not even exercise its jurisdiction under Article 142 of the Constitution of India on misplaced sympathy. In Teri Oat Estates (P) Ltd. v. U.T. Chandigarh and Others, I (2004) SLT 563=(2004) 2 SCC 130 , it is stated: ‘We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order, which would be in contravention of a statutory provision.’ As early as in 1911, Farewell L.J. in Lathamv. Richard Johnson and Nephew Ltd., 1911-13 AER reprint p. 117, observed: ‘We must be careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous Will O’ the Wisp to take as a guide in the search for legal principles.’ Yet again recently in Ramakrishna Kamat and Ors. v. State of Karnataka and Ors., II (2003) SLT 189=JT 2003 (2) SC 88 , this Court rejected a similar plea for regularization of services stating: ‘...We repeatedly asked the learned Counsel for the appellants on what basis or foundation in law the appellants made their claim for regularization and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zilla Parishads in view of the Government orders and that their cases need to be considered sympathetically. It is clear from the order of the learned Single Judge and looking to the very directions given a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the Court the Courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment....’” Conclusion:
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1
### Explanation:
14. The basic fact of the matter, as noticed hereinbefore, is not in dispute. It is also not in dispute that although the services of the three respondents were terminated by the company as a result of the closure of the factory, the formal retrenchment came into being in terms of the order of the learned Company Judge. It is furthermore not in dispute that a settlement had been arrived at by and between the Official Liquidator and the workmen as regard the amount of compensation payable to the workmen of the said company.15. The closure of the undertakings of the company, thus, stands admitted. It also finds mention in the Award passed by the Labour Court. In the aforementioned factual backdrop, we may notice the salient feature of the said Act.The aforementioned provisions clearly carve out a distinction that although identical amount of compensation would be required to be paid in all situations but the consequence following retrenchment under Section 25F of the 1947 Act would not extend further so as to envisage the benefit conferred upon a workman in a case falling under Sections 25FF or 25FFF thereof. The distinction is obvious inasmuch as whereas in the case of retrenchment simpliciter a person looses his job as he became surplus and, thus, in the case of revival of chance of employment, is given the preference in case new persons are proposed to be employed by the said undertaking; but in a case of transfer or closure of the undertaking the workman concerned is entitled to receive compensation only. It does not postulate a situation where a workman despite having received the amount of compensation would again have to be offered a job by a person reviving the industry.We have noticed hereinbefore that the consequences other than payment of compensation envisaged in Section 25F of the Act do not flow in case of transfer or closure of the undertaking. Section 25H of the 1947 Act cannot, thus, be invoked in favour of the respondents in view of the fact that they were not in the employment of the company on the appointed day i.e. on 13.10.1980.34. The submission of Mr. Das to the effect that the Parliament having used the words ‘everyin Section 25FFF, which would include dismissed workmen in view of its definition contained in Section 2(s) of the 1947 Act, should be widely interpreted so as to hold that even those workmen who had received compensation would be entitled to the benefit of Section 25H of the 1947 Act, cannot be accepted. Such a construction is not possible keeping in view the statutory scheme of the 1947 Act. Section 25F vis-a-vis Section 25B read with Section 2(oo) of the 1947 Act contemplates a situation where a workman is retrenched from services who had worked for a period of not less than one year on the one hand and those workmen who are covered by Section 25FF and Section 25FFF on the other keeping in view the fact that whereas in the case of the former, a retrenchment takes place, in the latter it does not. The Parliament amended the provisions of the 1947 Act by inserting Section 25FF and Section 25FFF therein by reason of the Industrial Disputes (Amendment Act), 1957 with effect from 28.11.1956, as it was found that having regard to the helpless condition to which workman would be thrown if his services are terminated without payment of compensation and presumably on the ground that if a reasonable compensation is awarded, he may be able to find out an alternative employment within a reasonable time. In the case of closure of an industrial undertaking the Act contemplates payment of compensation alone.The interpretation of Section 25J of the 1947 Act as propounded by Mr. Das also cannot be accepted inasmuch as in terms thereof only the provisions of the said Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including the Standing Orders made under the Industrial Employment (Standing Orders) Act, but it will have no application in a case where something different is envisaged in terms of the statutory scheme. A beneficial statute, as is well known, may receive liberal construction but the same cannot be extended beyond the statutory scheme.In the instant case, we are not concerned with the liability of the erstwhile company. It stands accepted that the appellant has no monetary liability as regard the amount of compensation payable to the workmen in view of Section 5 of the said Act.
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All Party Hill Leaders' Conference, Shillong Vs. Captain M.A. Sangma & Ors | 16, 1976, was only a step in that direction and could not be held as final until it was ratified by the general membership. The fact that no membership registers were produced before the Commission or that there is controversy with regard to the existence of regular members or their enrollment would not justify the Conference to be indifferent to the consensus of the members as a whole whom they had always consulted in other momentous issues and but for whose active aid, support and participation they could not have achieved the statehood for Meghalaya. The decision of the Commission, therefore, is completely erroneous.There can be no flower without its sap. There cannot be leaders without people. There cannot be a party without members. Action of leaders ignoring the generality of membership is ineffective. Such action cannot be equated it the consensus of the membership which alone supplies the base for its sustenance. 32. There is another aspect of the matter. The controversy arises not during an election after it has been notified under rule 3. The dispute relates to the consideration whether a recognised State party has ceased to be recognised, under the Symbols Order. The Commission has undertaken the enquiry in the context of paragraph 15 of the Symbols Order. We have already indicated that the dispute does not come within the scope of paragraph 15. Even so, the Commission would have the jurisdiction to adjudicate the dispute with regard to cancelling recognition of a recognised political party in terms of the directions under the Symbols Order. Under paragraph 7, sub-para (2) of the Symbols Order, notwithstanding anything contained in sub- paragraph (1) with which we are not concerned, every political party which immediately before the commencement of this Order is in a State a recognised political party shall on such commencement, be a State party in that State and shall continue to be so until it ceases to be a State party in that State on the result of any general election held after such commencement. Under paragraph 6, sub-para (2) of the Symbols Order a political party shall be treated as a recognised political party in a State if and only if either the conditions specified in clause (A) are, or the condition specified in clause (B) is, fulfilled by that party and not otherwise, that is to say :"(A) that such party- (a) has been engaged in political activity for a continuous period of five years; and(b) has, at the general election in that State to the House of the People, or, as the case may be, to the Legislative Assembly, for the time being in existence and functioning, returned either (i) at least one member to the House of the People for every twenty-five members of that House or any fraction of that number elected from that State; or (ii) at least one member to the Legislative Assembly of that State for every thirty members of that Assembly or any fraction of that number; (B) that the total number of valid votes polled by all the contesting candidates set up by such party at the general elect ion in the State to the House of the People, or, as the case may be, to the Legislative Assembly, for the time being in existence and functioning (excluding the valid votes of each such contesting candidate in a constituency as has not been elected and has not polled at least one-twelfth of the total number of valid votes polled by all the contesting candidates in that constituency), is not less than four per cent of the total number of valid votes polled by all the contesting candidates at each general election in the State (including the valid vote s of those contesting candidates who have forfeited their deposits)" 33. It is not disputed that the APHLC With 40 members still claiming to continue its reserved symbol answers the test laid down in the Commissions directions for being recognised as a State political party under paragraph 6 of the Symbols Order. They bad, on the date of entertainment of the dispute by the Commission, still the requisite membership fulfilling the test for recognition as a State political party. The Commission was, therefore, required to follow the provisions of the directions which it has laid down in the Symbols Order when the question of derecognition of a party was raised before it. It is not a dispute between two faction s of the same party, each claiming to be the party so that the Commission has to allow the symbol to one of them. The claim of the respondents before the Commission was that the APHLC had ceased to function as a recognised political party and the State and Captain Sangmas group having merged With the INC requested the Commission to scrap the APHLC out of existence with its reserved symbol so that the APHLC would be effaced from the political arena. The Commission was entirely wrong in its decision in view of its own directions embodied in the Symbols Order. The Commission could not be reasonably satisfied on the materials before it that under paragraph 6 read with paragraph 7 of the Symbols Order the APHLC bad ceased to be recognised political party in the State. Even by application of the directions which it has set out in the Symbols Order the Commissions decision is absolutely untenable.Even after a major chunk of the APHLC led by Captain Sangma had joined the INC., if those who still continued under the banner of the APHLC flag and symbol claimed to continue as APHLC and the directions in the Symbols Order did not authorise derecognition of the APHLC as a body represented by the remainder , as we have found, no case is made out for any interference by the Commission with regard to the reserved symbol. Thus the APHLC, as a recognised state political party in Meghalaya, stays and is entitled to continue with their reserved symbol "Flower". 34. | 1[ds]We are unable to accept this submission. The, question is whether in deciding the particular dispute between the parties in a matter of the kind envisaged in the particular controversy, - the Commission is exercising a judicial function and it has a duty to act judicially. Having regard to the character of the Commission in dealing with the particular matter and the nature of the enquiry envisaged and the procedure which is reasonably required to be followed, we hold that its primary function in respect of this subject matter is judicial. It is not necessary that this should be the only function of the Election Commission in order to answer the character of a tribunal under Article 136. Even in the Associated Cement Companies case (supra) this Court had to deal with the exercise of power by. the State Government under rule 6(5) and (6) of the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952 and it held that the State Government in acting under those rules was a tribunal within the ambit of Article 136(1). It goes without saying that the primary function of the State Government is not exercise of judicial power. We have to determine this question keeping in view the exercise of power with reference to the particular subject-matter although in some other matters the exercise of function may be of a different kind.Mr. Rao further contends that the decision of the Commission in such a case is only a tentative decision and, therefore, the Commission does not answer the legal concept of a tribunal. We are unable to hold that the decision which the Commission gives after hearing the parties in a controversy in respect of the Claim of a party to continue as a recognised party in the- State continuing the reserved symbol already allotted to it is only a tentative decision. The decision that the tribunal gives is a definitive decision and is binding on both the contending parties so far as the claim to the reserved symbol is concerned. The decision with regard to the reserved symbol or for the matter of that any symbol for the purpose of election is within the special jurisdiction of the Election Commission and it is not permissible for the ordinary hierarchy of courts to entertain such a dispute. The Corn-mission does not decide any rights to property belonging to a political party or rival groups of a political party. That may be a matter for the ordinary civil courts with which we are not concerned in this appealThus the position that emerges from the above discussion is that the Commission is created under the Constitution and is invested under the law with not only administrative powers but also with certain judicial power of the State, however fractional it may be. The Commission exclusively resolves disputes, inter alia, between rival parties with regard to claims for being a recognised political party for the purpose of the electoral symbolWe are, therefore, clearly of opinion that the Commission fulfils the essential tests of a tribunal and falls squarely within the ambit of Article 136(1) of the Constitution. The preliminary objection is, therefore, overruled.Now on the meritsWe are told that the numerical strength of the delegates to such a Conference is 121. It must, however, be borne in mind that they are " delegates", that is to say, delegates of some body or persons who would in the usual course, elect or authorise the delegates as their representatives to represent the larger body or assemblage in the Conference. There is clear evidence of the democratic feature in this very notice which showed the pattern of working of the APHLC"Any issue on which decision may normally be taken by the Conference must relate to live matters of a living organ and not to its death wish. Without the nexus with the generality of membership decisions will derive no force or vigour and no party or conference can hope to succeed in their plans, efforts or struggle unless backed by the same. There is no evidence authorising the Conference to dissolve itself by merger or otherwise, and so it is not possible to apply the rule of majority only in the Conference for such a decision affecting the entire body as an entity in the absence of a clear man date from the general membership. Assuming that the Conference on November 16, 1976, decided by a majority to dissolve the APHLC, it would have been in accord with democratic principles to place that decision before the general membership of the party for ratification prior to implementing the mere majority decision of the Conference without regard to the wishes of the members as a whole. The President of the APHLC and those who were in favour of dissolution fell into this error and they cannot blame the minority of 40 members who openly disassociated with the hasty move and only wanted time for further discussion by taking "the ran k and file" into confidence. It is very difficult to appreciate why this reasonable request from a responsible section of the Conference was completely unheeded and the President thought it proper to agree to take upon himself the responsibility to announce the dissolution and hastily merge with the INC. The matter ought to have struck the President as a grave issue resulting, as it had done, in resignation of four members of the Meghalaya Cabinet on this very issue.Again in this co text it will be appropriate to refer to an admitted document being the resolution passed by the 20th Session of the All Party Hills Leaders Conference held at Tura on the 14th and 15th October, 1968, when the party was a unified bodyThe above resolution adopted in 1968 would clearly show that the APHLC has been always working on democratic lines mindful of the public opinion in the entire hill areas and whenever momentous decisions had to be taken they thought it absolutely mandatory to consult the wishes of t he people before taking a decision. This is, as it should be, for democracy cannot thrive as democracy by being an oligarchy masquerading for democracy. There could not have been a more momentous decision than the dissolution of a ruling p arty in the State.It was crystal clear that the house was emotionally divided on the issue of merger with the INC and that the history of the move in the direction of the merger brought forth discordant notes and opposite trends. The portents were sufficiently indicative of almost unbridgeable fissures affecting the harmony in the party. Leaders who had harmoniously chosen peaceful paths on various issues in the past could not have been expected to tear asunder the homogeneity which successfully built up the party. It appears, the finale of the proposed assimilation did not filter from within but was, on the Presidents frank disclosure before the Central Committee, "wanted" from outside, a position to which several leaders immediately reactedThe Commission fell into an error in holding that the Conference of the APHLC was the general body even to take a decision about its dissolution by a majority vote. The matter would have been absolutely different if in the general body of all members from different areas or their representatives for the purpose, assembled to take a decision about the dissolution of the party had reached a decision by majority. This has not happened in this case. At best the decision of the Conference on November 16, 1976, was only a step in that direction and could not be held as final until it was ratified by the general membership. The fact that no membership registers were produced before the Commission or that there is controversy with regard to the existence of regular members or their enrollment would not justify the Conference to be indifferent to the consensus of the members as a whole whom they had always consulted in other momentous issues and but for whose active aid, support and participation they could not have achieved the statehood for Meghalaya. The decision of the Commission, therefore, is completely erroneous.There can be no flower without its sap. There cannot be leaders without people. There cannot be a party without members. Action of leaders ignoring the generality of membership is ineffective. Such action cannot be equated it the consensus of the membership which alone supplies the base for its sustenanceIt is not disputed that the APHLC With 40 members still claiming to continue its reserved symbol answers the test laid down in the Commissions directions for being recognised as a State political party under paragraph 6 of the Symbols Order. They bad, on the date of entertainment of the dispute by the Commission, still the requisite membership fulfilling the test for recognition as a State political party. The Commission was, therefore, required to follow the provisions of the directions which it has laid down in the Symbols Order when the question of derecognition of a party was raised before it. It is not a dispute between two faction s of the same party, each claiming to be the party so that the Commission has to allow the symbol to one of them. The claim of the respondents before the Commission was that the APHLC had ceased to function as a recognised political partyn the State andCaptain Sangmas group having merged With the INC requested the Commission to scrap the APHLC out of existence with its reserved symbol so that the APHLC would be effaced from the political arena. The Commission was entirely wrong in its decision in view of its own directions embodied in the Symbols Order. The Commission could not be reasonably satisfied on the materials before it that under paragraph 6 read with paragraph 7 of the Symbols Order the APHLC bad ceased to be recognised political party in the State. Even by application of the directions which it has set out in the Symbols Order the Commissions decision is absolutely untenable.Even after a major chunk of the APHLC led by Captain Sangma had joined the INC., if those who still continued under the banner of the APHLC flag and symbol claimed to continue as APHLC and the directions in the Symbols Order did not authorise derecognition of the APHLC as a body represented by the remainder , as we have found, no case is made out for any interference by the Commission with regard to the reserved symbol. Thus the APHLC, as a recognised state political party in Meghalaya, stays and is entitled to continue with their reserved symbol "Flower". | 1 | 11,760 | 1,889 | ### 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:
16, 1976, was only a step in that direction and could not be held as final until it was ratified by the general membership. The fact that no membership registers were produced before the Commission or that there is controversy with regard to the existence of regular members or their enrollment would not justify the Conference to be indifferent to the consensus of the members as a whole whom they had always consulted in other momentous issues and but for whose active aid, support and participation they could not have achieved the statehood for Meghalaya. The decision of the Commission, therefore, is completely erroneous.There can be no flower without its sap. There cannot be leaders without people. There cannot be a party without members. Action of leaders ignoring the generality of membership is ineffective. Such action cannot be equated it the consensus of the membership which alone supplies the base for its sustenance. 32. There is another aspect of the matter. The controversy arises not during an election after it has been notified under rule 3. The dispute relates to the consideration whether a recognised State party has ceased to be recognised, under the Symbols Order. The Commission has undertaken the enquiry in the context of paragraph 15 of the Symbols Order. We have already indicated that the dispute does not come within the scope of paragraph 15. Even so, the Commission would have the jurisdiction to adjudicate the dispute with regard to cancelling recognition of a recognised political party in terms of the directions under the Symbols Order. Under paragraph 7, sub-para (2) of the Symbols Order, notwithstanding anything contained in sub- paragraph (1) with which we are not concerned, every political party which immediately before the commencement of this Order is in a State a recognised political party shall on such commencement, be a State party in that State and shall continue to be so until it ceases to be a State party in that State on the result of any general election held after such commencement. Under paragraph 6, sub-para (2) of the Symbols Order a political party shall be treated as a recognised political party in a State if and only if either the conditions specified in clause (A) are, or the condition specified in clause (B) is, fulfilled by that party and not otherwise, that is to say :"(A) that such party- (a) has been engaged in political activity for a continuous period of five years; and(b) has, at the general election in that State to the House of the People, or, as the case may be, to the Legislative Assembly, for the time being in existence and functioning, returned either (i) at least one member to the House of the People for every twenty-five members of that House or any fraction of that number elected from that State; or (ii) at least one member to the Legislative Assembly of that State for every thirty members of that Assembly or any fraction of that number; (B) that the total number of valid votes polled by all the contesting candidates set up by such party at the general elect ion in the State to the House of the People, or, as the case may be, to the Legislative Assembly, for the time being in existence and functioning (excluding the valid votes of each such contesting candidate in a constituency as has not been elected and has not polled at least one-twelfth of the total number of valid votes polled by all the contesting candidates in that constituency), is not less than four per cent of the total number of valid votes polled by all the contesting candidates at each general election in the State (including the valid vote s of those contesting candidates who have forfeited their deposits)" 33. It is not disputed that the APHLC With 40 members still claiming to continue its reserved symbol answers the test laid down in the Commissions directions for being recognised as a State political party under paragraph 6 of the Symbols Order. They bad, on the date of entertainment of the dispute by the Commission, still the requisite membership fulfilling the test for recognition as a State political party. The Commission was, therefore, required to follow the provisions of the directions which it has laid down in the Symbols Order when the question of derecognition of a party was raised before it. It is not a dispute between two faction s of the same party, each claiming to be the party so that the Commission has to allow the symbol to one of them. The claim of the respondents before the Commission was that the APHLC had ceased to function as a recognised political party and the State and Captain Sangmas group having merged With the INC requested the Commission to scrap the APHLC out of existence with its reserved symbol so that the APHLC would be effaced from the political arena. The Commission was entirely wrong in its decision in view of its own directions embodied in the Symbols Order. The Commission could not be reasonably satisfied on the materials before it that under paragraph 6 read with paragraph 7 of the Symbols Order the APHLC bad ceased to be recognised political party in the State. Even by application of the directions which it has set out in the Symbols Order the Commissions decision is absolutely untenable.Even after a major chunk of the APHLC led by Captain Sangma had joined the INC., if those who still continued under the banner of the APHLC flag and symbol claimed to continue as APHLC and the directions in the Symbols Order did not authorise derecognition of the APHLC as a body represented by the remainder , as we have found, no case is made out for any interference by the Commission with regard to the reserved symbol. Thus the APHLC, as a recognised state political party in Meghalaya, stays and is entitled to continue with their reserved symbol "Flower". 34.
### Response:
1
### Explanation:
prior to implementing the mere majority decision of the Conference without regard to the wishes of the members as a whole. The President of the APHLC and those who were in favour of dissolution fell into this error and they cannot blame the minority of 40 members who openly disassociated with the hasty move and only wanted time for further discussion by taking "the ran k and file" into confidence. It is very difficult to appreciate why this reasonable request from a responsible section of the Conference was completely unheeded and the President thought it proper to agree to take upon himself the responsibility to announce the dissolution and hastily merge with the INC. The matter ought to have struck the President as a grave issue resulting, as it had done, in resignation of four members of the Meghalaya Cabinet on this very issue.Again in this co text it will be appropriate to refer to an admitted document being the resolution passed by the 20th Session of the All Party Hills Leaders Conference held at Tura on the 14th and 15th October, 1968, when the party was a unified bodyThe above resolution adopted in 1968 would clearly show that the APHLC has been always working on democratic lines mindful of the public opinion in the entire hill areas and whenever momentous decisions had to be taken they thought it absolutely mandatory to consult the wishes of t he people before taking a decision. This is, as it should be, for democracy cannot thrive as democracy by being an oligarchy masquerading for democracy. There could not have been a more momentous decision than the dissolution of a ruling p arty in the State.It was crystal clear that the house was emotionally divided on the issue of merger with the INC and that the history of the move in the direction of the merger brought forth discordant notes and opposite trends. The portents were sufficiently indicative of almost unbridgeable fissures affecting the harmony in the party. Leaders who had harmoniously chosen peaceful paths on various issues in the past could not have been expected to tear asunder the homogeneity which successfully built up the party. It appears, the finale of the proposed assimilation did not filter from within but was, on the Presidents frank disclosure before the Central Committee, "wanted" from outside, a position to which several leaders immediately reactedThe Commission fell into an error in holding that the Conference of the APHLC was the general body even to take a decision about its dissolution by a majority vote. The matter would have been absolutely different if in the general body of all members from different areas or their representatives for the purpose, assembled to take a decision about the dissolution of the party had reached a decision by majority. This has not happened in this case. At best the decision of the Conference on November 16, 1976, was only a step in that direction and could not be held as final until it was ratified by the general membership. The fact that no membership registers were produced before the Commission or that there is controversy with regard to the existence of regular members or their enrollment would not justify the Conference to be indifferent to the consensus of the members as a whole whom they had always consulted in other momentous issues and but for whose active aid, support and participation they could not have achieved the statehood for Meghalaya. The decision of the Commission, therefore, is completely erroneous.There can be no flower without its sap. There cannot be leaders without people. There cannot be a party without members. Action of leaders ignoring the generality of membership is ineffective. Such action cannot be equated it the consensus of the membership which alone supplies the base for its sustenanceIt is not disputed that the APHLC With 40 members still claiming to continue its reserved symbol answers the test laid down in the Commissions directions for being recognised as a State political party under paragraph 6 of the Symbols Order. They bad, on the date of entertainment of the dispute by the Commission, still the requisite membership fulfilling the test for recognition as a State political party. The Commission was, therefore, required to follow the provisions of the directions which it has laid down in the Symbols Order when the question of derecognition of a party was raised before it. It is not a dispute between two faction s of the same party, each claiming to be the party so that the Commission has to allow the symbol to one of them. The claim of the respondents before the Commission was that the APHLC had ceased to function as a recognised political partyn the State andCaptain Sangmas group having merged With the INC requested the Commission to scrap the APHLC out of existence with its reserved symbol so that the APHLC would be effaced from the political arena. The Commission was entirely wrong in its decision in view of its own directions embodied in the Symbols Order. The Commission could not be reasonably satisfied on the materials before it that under paragraph 6 read with paragraph 7 of the Symbols Order the APHLC bad ceased to be recognised political party in the State. Even by application of the directions which it has set out in the Symbols Order the Commissions decision is absolutely untenable.Even after a major chunk of the APHLC led by Captain Sangma had joined the INC., if those who still continued under the banner of the APHLC flag and symbol claimed to continue as APHLC and the directions in the Symbols Order did not authorise derecognition of the APHLC as a body represented by the remainder , as we have found, no case is made out for any interference by the Commission with regard to the reserved symbol. Thus the APHLC, as a recognised state political party in Meghalaya, stays and is entitled to continue with their reserved symbol "Flower".
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S.L. Sachdev and Another Vs. Union of India and Others | a common service in the instant case and therefore different rules of promotion can be applied to the two classes. We are unable to accept this contention. The duties, functions and responsibilities of all the U.D.Cs. in the new organisation are identical. They are all in the same cadre and they draw the same pay in the same grade. There is no reason then why different tests should be prescribed for determining their respective promotional opportunities, and that too solely in reference to the source from which they are drawn. The test of educational qualifications can conceivable be an intelligible differentia bearing nexus with the object of ensuring greater efficiency in public services. But once a cadre is formed by recruiting persons drawn from different departments of the Government, there would normally be no justification for discriminating between them by subjecting one class to more onerous terms in the matter of promotional chances. The impugned directives are therefore unconstitutional.9. Apart from this consideration, we are unable to understand how the Director General could issue any directive which is inconsistent with the Recruitment Rules of 1969 framed by the President in the exercise of his powers under Article 309 of the Constitution. Those rules do not provide for the kind of classification which is made by the Director General by his letters to the Heads of respective Circles of the new organisation. It may be recalled that the Recruitment Rules only provide for a classification on the basis of the length of service in the new organisation. Any directive which goes beyond it and superimposes a new criterion on the Rules will be bad as lacking in jurisdiction. No one can issue a direction which, in substance and effect, amounts to an amendment of the Rules made by the President under Article 309. That is elementary. We are unable to accept the learned Attorney Generals submission that the directive of the Director General is aimed at further and better implementation of the Recruitment Rules. Clearly, it introduces an amendment to the Rules by prescribing one more test for determining whether U.D.Cs. drawn from the Audit Offices are eligible for promotion to the Selection grade/Head Clerks Cadre.The High Court of Kerala in Balakrishnan v. Comptroller &Auditor General of India and the High Court of Karnataka in Krishnamurthy C.K. v. Director General, P &T have struck down the impugned directions issued by the Director General P &T on the ground that they are discriminatory and therefore unconstitutional. These decisions of the Kerala and the Karnataka High Courts are correct. In fact, it is significant that the Union of India did not file any appeal against those decisions and has acquiesced in them. The High Court of Andhra Pradesh in V. Subramanyam v. The Director General of Posts and Telegraphs, New Delhi and the High Court of Madras in V. S. Rajagopalan v. post Master General seem to have rejected the writ petitions filed before them by persons similarly situated as the petitioners, by holding that no discrimination was involved in fixing separate quotas for the purpose of promotion between the U.D.Cs. drawn from the Audit Offices and the other U.D.Cs. With respect, we consider the decisions of the High Courts of Andhra Pradesh and Madras as incorrect.10. The petitioners have also challenged the provision in Column 10 of item 3 of the Schedule to the Recruitment Rules of 1969 which provides that U.D.Cs. drawn from Audit Office s must put in 10 years of service for acquiring eligibility for promotion whereas other U.D.Cs. are eligible for promotion after putting in 5 years service. We are not inclined to entertain that challenge since the impugned provision has been in force since 1969 and it was not until the filing of this petition in 1979 that any objection was taken to its legality. Besides, we are of the opinion that considering the history leading to the formation of the new organisation, SBCO-ICO , the distinction made between the two classes of U.D.Cs. in the context of the length of their service for the purposes of promotion is not arbitrary or unreasonable. The staff of the Audit Offices which was engaged in the Savings Banks work might well have faced retrenchment. Instead of subjecting them to that hardship, they were given the option of joining the new organisation. Experience-wise also, there would appear to be fair justification for requiring them to put in longer service in the new organisation before they are eligible for promotion to the higher grade. That challenge has therefore to be repelled.In the result, we allow the writ petition partly and quash the directions issued by respondent 2 by his letters of May 16, 1975 and May 29, 1965 to the effect that U.D.Cs. drawn from the Audit Offices will be eligible for promotion to the Selection Grade on the basis of 10 per cent of the posts held by them or to the Head Clerks Cadre on the basis of 20 per cent of the posts held by them in SBCO-ICO. They and the other U.D.Cs. will accordingly be entitled equally to promotional opportunities. We direct that the petitioners, and others similarly situated as them, shall be promoted to the Selection Grade/ Head Clerks Cadre with effect from the dates on which they were due for promotion, by applying the test of seniority-cum-fitness. Since we have upheld the provision in Column 10 of item 3 of the Schedule to the Recruitment Rules, 1969, the petitioners will have become eligible for promotion after completing 10 years service in SBCO-ICO. Since the demotion of the respondents or any of them is likely to lead to undue hardship to them and to some administrative confusion, the Government may create supernumerary posts to which the petitioners and others similarly situated as them, may be promoted. We are informed that consequent upon the judgments of the High Courts of Kerala and Karnataka, the Government h as adopted a similar course in the Kerala and Karnataka Circles.11. | 1[ds]There is no reason then why different tests should be prescribed for determining their respective promotional opportunities, and that too solely in reference to the source from which they are drawn. The test of educational qualifications can conceivable be an intelligible differentia bearing nexus with the object of ensuring greater efficiency in public services. But once a cadre is formed by recruiting persons drawn from different departments of the Government, there would normally be no justification for discriminating between them by subjecting one class to more onerous terms in the matter of promotional chances. The impugned directives are thereforefrom this consideration, we are unable to understand how the Director General could issue any directive which is inconsistent with the Recruitment Rules of 1969 framed by the President in the exercise of his powers under Article 309 of the Constitution. Those rules do not provide for the kind of classification which is made by the Director General by his letters to the Heads of respective Circles of the new organisation. It may be recalled that the Recruitment Rules only provide for a classification on the basis of the length of service in the new organisation. Any directive which goes beyond it and superimposes a new criterion on the Rules will be bad as lacking in jurisdiction. No one can issue a direction which, in substance and effect, amounts to an amendment of the Rules made by the President under Article 309. That is elementary. We are unable to accept the learned Attorney Generals submission that the directive of the Director General is aimed at further and better implementation of the Recruitment Rules. Clearly, it introduces an amendment to the Rules by prescribing one more test for determining whether U.D.Cs. drawn from the Audit Offices are eligible for promotion to the Selection grade/Head Clerks Cadre.The High Court of Kerala in Balakrishnan v. Comptroller &Auditor General of India and the High Court of Karnataka in Krishnamurthy C.K. v. Director General, P &T have struck down the impugned directions issued by the Director General P &T on the ground that they are discriminatory and therefore unconstitutional. These decisions of the Kerala and the Karnataka High Courts are correct. In fact, it is significant that the Union of India did not file any appeal against those decisions and has acquiesced in them. The High Court of Andhra Pradesh in V. Subramanyam v. The Director General of Posts and Telegraphs, New Delhi and the High Court of Madras in V. S. Rajagopalan v. post Master General seem to have rejected the writ petitions filed before them by persons similarly situated as the petitioners, by holding that no discrimination was involved in fixing separate quotas for the purpose of promotion between the U.D.Cs. drawn from the Audit Offices and the other U.D.Cs. With respect, we consider the decisions of the High Courts of Andhra Pradesh and Madras asare not inclined to entertain that challenge since the impugned provision has been in force since 1969 and it was not until the filing of this petition in 1979 that any objection was taken to its legality. Besides, we are of the opinion that considering the history leading to the formation of the new organisation, SBCO-ICO , the distinction made between the two classes of U.D.Cs. in the context of the length of their service for the purposes of promotion is not arbitrary or unreasonable. The staff of the Audit Offices which was engaged in the Savings Banks work might well have faced retrenchment. Instead of subjecting them to that hardship, they were given the option of joining the new organisation. Experience-wise also, there would appear to be fair justification for requiring them to put in longer service in the new organisation before they are eligible for promotion to the higher grade. That challenge has therefore to be repelled.In the result, we allow the writ petition partly and quash the directions issued by respondent 2 by his letters of May 16, 1975 and May 29, 1965 to the effect that U.D.Cs. drawn from the Audit Offices will be eligible for promotion to the Selection Grade on the basis of 10 per cent of the posts held by them or to the Head Clerks Cadre on the basis of 20 per cent of the posts held by them in SBCO-ICO. They and the other U.D.Cs. will accordingly be entitled equally to promotional opportunities. We direct that the petitioners, and others similarly situated as them, shall be promoted to the Selection Grade/ Head Clerks Cadre with effect from the dates on which they were due for promotion, by applying the test of seniority-cum-fitness. Since we have upheld the provision in Column 10 of item 3 of the Schedule to the Recruitment Rules, 1969, the petitioners will have become eligible for promotion after completing 10 years service in SBCO-ICO. Since the demotion of the respondents or any of them is likely to lead to undue hardship to them and to some administrative confusion, the Government may create supernumerary posts to which the petitioners and others similarly situated as them, may be promoted. We are informed that consequent upon the judgments of the High Courts of Kerala and Karnataka, the Government h as adopted a similar course in the Kerala and Karnataka Circles. | 1 | 3,112 | 943 | ### 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:
a common service in the instant case and therefore different rules of promotion can be applied to the two classes. We are unable to accept this contention. The duties, functions and responsibilities of all the U.D.Cs. in the new organisation are identical. They are all in the same cadre and they draw the same pay in the same grade. There is no reason then why different tests should be prescribed for determining their respective promotional opportunities, and that too solely in reference to the source from which they are drawn. The test of educational qualifications can conceivable be an intelligible differentia bearing nexus with the object of ensuring greater efficiency in public services. But once a cadre is formed by recruiting persons drawn from different departments of the Government, there would normally be no justification for discriminating between them by subjecting one class to more onerous terms in the matter of promotional chances. The impugned directives are therefore unconstitutional.9. Apart from this consideration, we are unable to understand how the Director General could issue any directive which is inconsistent with the Recruitment Rules of 1969 framed by the President in the exercise of his powers under Article 309 of the Constitution. Those rules do not provide for the kind of classification which is made by the Director General by his letters to the Heads of respective Circles of the new organisation. It may be recalled that the Recruitment Rules only provide for a classification on the basis of the length of service in the new organisation. Any directive which goes beyond it and superimposes a new criterion on the Rules will be bad as lacking in jurisdiction. No one can issue a direction which, in substance and effect, amounts to an amendment of the Rules made by the President under Article 309. That is elementary. We are unable to accept the learned Attorney Generals submission that the directive of the Director General is aimed at further and better implementation of the Recruitment Rules. Clearly, it introduces an amendment to the Rules by prescribing one more test for determining whether U.D.Cs. drawn from the Audit Offices are eligible for promotion to the Selection grade/Head Clerks Cadre.The High Court of Kerala in Balakrishnan v. Comptroller &Auditor General of India and the High Court of Karnataka in Krishnamurthy C.K. v. Director General, P &T have struck down the impugned directions issued by the Director General P &T on the ground that they are discriminatory and therefore unconstitutional. These decisions of the Kerala and the Karnataka High Courts are correct. In fact, it is significant that the Union of India did not file any appeal against those decisions and has acquiesced in them. The High Court of Andhra Pradesh in V. Subramanyam v. The Director General of Posts and Telegraphs, New Delhi and the High Court of Madras in V. S. Rajagopalan v. post Master General seem to have rejected the writ petitions filed before them by persons similarly situated as the petitioners, by holding that no discrimination was involved in fixing separate quotas for the purpose of promotion between the U.D.Cs. drawn from the Audit Offices and the other U.D.Cs. With respect, we consider the decisions of the High Courts of Andhra Pradesh and Madras as incorrect.10. The petitioners have also challenged the provision in Column 10 of item 3 of the Schedule to the Recruitment Rules of 1969 which provides that U.D.Cs. drawn from Audit Office s must put in 10 years of service for acquiring eligibility for promotion whereas other U.D.Cs. are eligible for promotion after putting in 5 years service. We are not inclined to entertain that challenge since the impugned provision has been in force since 1969 and it was not until the filing of this petition in 1979 that any objection was taken to its legality. Besides, we are of the opinion that considering the history leading to the formation of the new organisation, SBCO-ICO , the distinction made between the two classes of U.D.Cs. in the context of the length of their service for the purposes of promotion is not arbitrary or unreasonable. The staff of the Audit Offices which was engaged in the Savings Banks work might well have faced retrenchment. Instead of subjecting them to that hardship, they were given the option of joining the new organisation. Experience-wise also, there would appear to be fair justification for requiring them to put in longer service in the new organisation before they are eligible for promotion to the higher grade. That challenge has therefore to be repelled.In the result, we allow the writ petition partly and quash the directions issued by respondent 2 by his letters of May 16, 1975 and May 29, 1965 to the effect that U.D.Cs. drawn from the Audit Offices will be eligible for promotion to the Selection Grade on the basis of 10 per cent of the posts held by them or to the Head Clerks Cadre on the basis of 20 per cent of the posts held by them in SBCO-ICO. They and the other U.D.Cs. will accordingly be entitled equally to promotional opportunities. We direct that the petitioners, and others similarly situated as them, shall be promoted to the Selection Grade/ Head Clerks Cadre with effect from the dates on which they were due for promotion, by applying the test of seniority-cum-fitness. Since we have upheld the provision in Column 10 of item 3 of the Schedule to the Recruitment Rules, 1969, the petitioners will have become eligible for promotion after completing 10 years service in SBCO-ICO. Since the demotion of the respondents or any of them is likely to lead to undue hardship to them and to some administrative confusion, the Government may create supernumerary posts to which the petitioners and others similarly situated as them, may be promoted. We are informed that consequent upon the judgments of the High Courts of Kerala and Karnataka, the Government h as adopted a similar course in the Kerala and Karnataka Circles.11.
### Response:
1
### Explanation:
There is no reason then why different tests should be prescribed for determining their respective promotional opportunities, and that too solely in reference to the source from which they are drawn. The test of educational qualifications can conceivable be an intelligible differentia bearing nexus with the object of ensuring greater efficiency in public services. But once a cadre is formed by recruiting persons drawn from different departments of the Government, there would normally be no justification for discriminating between them by subjecting one class to more onerous terms in the matter of promotional chances. The impugned directives are thereforefrom this consideration, we are unable to understand how the Director General could issue any directive which is inconsistent with the Recruitment Rules of 1969 framed by the President in the exercise of his powers under Article 309 of the Constitution. Those rules do not provide for the kind of classification which is made by the Director General by his letters to the Heads of respective Circles of the new organisation. It may be recalled that the Recruitment Rules only provide for a classification on the basis of the length of service in the new organisation. Any directive which goes beyond it and superimposes a new criterion on the Rules will be bad as lacking in jurisdiction. No one can issue a direction which, in substance and effect, amounts to an amendment of the Rules made by the President under Article 309. That is elementary. We are unable to accept the learned Attorney Generals submission that the directive of the Director General is aimed at further and better implementation of the Recruitment Rules. Clearly, it introduces an amendment to the Rules by prescribing one more test for determining whether U.D.Cs. drawn from the Audit Offices are eligible for promotion to the Selection grade/Head Clerks Cadre.The High Court of Kerala in Balakrishnan v. Comptroller &Auditor General of India and the High Court of Karnataka in Krishnamurthy C.K. v. Director General, P &T have struck down the impugned directions issued by the Director General P &T on the ground that they are discriminatory and therefore unconstitutional. These decisions of the Kerala and the Karnataka High Courts are correct. In fact, it is significant that the Union of India did not file any appeal against those decisions and has acquiesced in them. The High Court of Andhra Pradesh in V. Subramanyam v. The Director General of Posts and Telegraphs, New Delhi and the High Court of Madras in V. S. Rajagopalan v. post Master General seem to have rejected the writ petitions filed before them by persons similarly situated as the petitioners, by holding that no discrimination was involved in fixing separate quotas for the purpose of promotion between the U.D.Cs. drawn from the Audit Offices and the other U.D.Cs. With respect, we consider the decisions of the High Courts of Andhra Pradesh and Madras asare not inclined to entertain that challenge since the impugned provision has been in force since 1969 and it was not until the filing of this petition in 1979 that any objection was taken to its legality. Besides, we are of the opinion that considering the history leading to the formation of the new organisation, SBCO-ICO , the distinction made between the two classes of U.D.Cs. in the context of the length of their service for the purposes of promotion is not arbitrary or unreasonable. The staff of the Audit Offices which was engaged in the Savings Banks work might well have faced retrenchment. Instead of subjecting them to that hardship, they were given the option of joining the new organisation. Experience-wise also, there would appear to be fair justification for requiring them to put in longer service in the new organisation before they are eligible for promotion to the higher grade. That challenge has therefore to be repelled.In the result, we allow the writ petition partly and quash the directions issued by respondent 2 by his letters of May 16, 1975 and May 29, 1965 to the effect that U.D.Cs. drawn from the Audit Offices will be eligible for promotion to the Selection Grade on the basis of 10 per cent of the posts held by them or to the Head Clerks Cadre on the basis of 20 per cent of the posts held by them in SBCO-ICO. They and the other U.D.Cs. will accordingly be entitled equally to promotional opportunities. We direct that the petitioners, and others similarly situated as them, shall be promoted to the Selection Grade/ Head Clerks Cadre with effect from the dates on which they were due for promotion, by applying the test of seniority-cum-fitness. Since we have upheld the provision in Column 10 of item 3 of the Schedule to the Recruitment Rules, 1969, the petitioners will have become eligible for promotion after completing 10 years service in SBCO-ICO. Since the demotion of the respondents or any of them is likely to lead to undue hardship to them and to some administrative confusion, the Government may create supernumerary posts to which the petitioners and others similarly situated as them, may be promoted. We are informed that consequent upon the judgments of the High Courts of Kerala and Karnataka, the Government h as adopted a similar course in the Kerala and Karnataka Circles.
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Satchidananda Mishra Vs. State Of Orissa | case to direct regularisation of illegal and unsupportable appointments, if the justice of any particular case so demands but it cannot be taken as a rule of general application to perpetuate illegalities. Such a course is to be resorted to in exceptional circumstances. We do not think that the present case falls in that category. The OPSC was sought to be deliberately bypassed. There are no equities in favour of appellant who cannot be placed on a higher pedestal over those who were selected by OPSC and stood the test of merits, became successful and were appointed as per relevant Rules. We may also note that on 4th October, 1982, 1979 Rules were amended and selection through Selection Board was done away with and it was prescribed that the selection shall be made through OPSC. 19. We may further note that Section 3(1) amounts to deeming of a legal position without deeming of a fact. It was observed in the case of Delhi Cloth and General Mills Co. Ltd. vs. State of Rajasthan and others (1996) 2 SCC 449 ) that "a legal consequence cannot be deemed nor, therefrom, can the events that should have preceded it. Facts may be deemed and, therefrom, the legal consequences that follow". In this case the procedure as prescribed under Sections 4 to 7 of Rajasthan Municipalities Act, 1959, for inclusion of the villages of Raipura and Ummedganj in Kota Municipality was not followed. Under the Courts order and judgment, Kota Municipality was restrained from imposing tax on the petitioner Company, which was situated in the said villages, on the ground that the said villages were not validly included in the Kota Municipality. Sections 4 to 7 of the Rajasthan Municipalities Act, 1959 remained on statute book unamended when the Kota Municipal Limited (Continued Existence) Validating Act, 1975 was passed. Section 3 of the Validating Act provided that:- "Notwithstanding anything contained in Sections 4 to 7 of the 1959 Act or in any judgment, decree, order or direction of any court, the villages of Raipura and Ummedganj should be deemed always to have continued to exist and they continue to exist within the limits of the Kota Municipality, to all intents and for all purposes." 20. The validity of the Validating Act was in question. This Court observed that "the Validating Act provides that, notwithstanding anything contained in Sections 4 to 7 of 1959 Act or in any judgment, decree, order or direction of any court, the villages of Raipura and Ummedganj should be deemed always to have continued to exist and they continue to exist within the limits of the Kota Municipality, to all intents and for all purposes. This provision requires the deeming the legal position that the villages of Raipura and Ummedganj fall within the limits of the Kota Municipality, not the deeming of facts from which this legal consequence would flow. A legal consequence cannot be deemed nor, therefrom, can the events that should have preceded it. Facts may be deemed and, therefrom, the legal consequences that follow." (Emphasis supplied. For the reasons and on the ground that the Validating Act did not cure the defect leading to the invalidity of the inclusion of the said villages in Kota Municipality, the validating Act was held to be invalid. 21. The deeming clause in the present case is to the same effect as that of the above mentioned case. The legal consequences of appointments being regular has been deemed without deeming facts either of repealing 1979 Rules and making 1973 Rules operative or changing the basis, namely, definition of Selection of Board. In this view, we have no hesitation in holding that Section 3(1) has to meet the same fate as was met by Validating statute in Delhi Cloth Mills case. 22. The validity of the Validating Act is further assailed on the ground that it by mere declaration validates the invalid appointments without removing the basis of invalidity of the appointments made. Blacks Law Dictionary (7th Edition, Page No. 1421) defines Validation Acts as a law that is amended either to remove errors or to add provisions to confirm to constitutional requirements". In the case of Hari Singh and others vs. The Military Estate Officer and another (1972) 2 SCC 239 ) the Supreme Court held that The meaning of a Validating Act is to remove the causes for ineffectiveness or invalidating of actions or proceedings, which are validated by a legislative measure". The Supreme Court in the case of ITW Signode India Limited vs. Collector of Central Excise (2004) 3 SCC 48 ) observed that A Validation Act removes actual or possible voidness, disability or other defect by confirming the validity of anything, which is or may be invalid." 23. The purpose of a Validating Act is to remove the cause of ineffectiveness or invalidity. A Validating Act presupposes a positive act, on the part of the legislature of removing the cause of ineffectiveness or invalidity. In the present case nothing has been done. 24. Before concluding, we may notice another aspect that was pointed out by learned counsel. The Tribunal in its order observed that rightly or wrongly, Dr. K.C. Biswal, Dr. S.N. Mishra and Dr. S.C. Misra have been promoted to the higher rank since a long time and they have been holding such higher position on the basis of the recommendation of the OPSC and in such circumstances, it would be unjust to pass any orders to disturb them from their present positions. Learned counsel for Dr. Satchidananda Misra contended that the High Court has not disturbed the aforesaid directions of the Tribunal. On the other hand, learned counsel for Dr. Rama Raman Saranji (Respondent No.4 in C.A. No. 8039/03) contended that the writ petition filed by his client challenging the aforesaid direction of the Tribunal is pending before the High Court. In this view, on this aspect, we express no opinion leaving it to be decided by the High Court in accordance with law. 25. | 0[ds]In R.N. Nanjundappa vs. T. Thimmiah and another (1972) 1 SCC 409 ), this Court held that If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non compliance with procedure or manner which does not go to the root of the appointment."9. It would be pertinent to note that the irregularity in the appointment in the above mentioned case was sought to be regularized by way of a Rule made under proviso to Article 309 of the Constitution. The above observations were made in that context. In the present case the appointments are sought to be regularised by way of an Act of Legislature. In our view the safeguards mentioned above would also be applicable in cases where the appointments are sought to be regularised by way of an Act of the Legislature.It is an admitted position that the provisions of 1979 Rules were not followed and the appointments made in 1980 were after the said Rules had been enforced. It seems that the State Government wanted to bypass he OPSC. The Selection Board comprising of a member of OPSC as its chairman was never constituted, and the selections were sought to be made by the Board constituted under the 1973 Rules. This, in our opinion, is an illegality which strikes at the root of the appointment and, therefore, it is beyond the scope of the Legislature to validate such illegal appointments as any such attempt would violate Articles 14 and 16 of the Constitution. It may also be noted that the ground that OPSC failed to appoint a member as the Chairman of the Selection Board in accordance with 1979 Rules and in the light of the urgency to fill up the vacancies, the said vacancies were filled up by the Selection Board constituted under the 1973 Rules, does not appear to be correct. The facts on record show a contrary position. By a letter dated 4th September, 1979, the Chairman of the OPSC had offered himself to be the Chairman of the Selection Board but no Selection Board was constituted under the 1979 Rules. A clarification in this regard was sought by OPSC by its letter dated 24th March, 1982 wherein the OPSC had specifically sought for an explanation in regard to the circumstances under which a member of the OPSC was not associated in the Selection Board meetings held on 4th July, 1980 and 10th November, 1980. In reply dated 20th September, 1982 to the above letter, the Secretary to the Government of Orissa, Health and Family Welfare Department did not clarify the abovementioned query and vaguely statedcelebrated Constitution Bench decision in the case of Shri Prithvi Cotton Mills Ltd. and another vs. Broach Borough Municipality and others (1969) 2 SCC 283 ), the principles about validating statutes were laid down. It was held that if the legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transaction. The validity of a Validating Law, therefore, depends upon whether the Legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the effect which the courts had found in the existing law and makes adequate provisions in the Validating Law for a valid imposition of the tax. In the present case, this decision cited by Mr. Misra will have no application since neither the question of competence to make a valid law is in issue nor is there any question about removal of defect pointed out by the Court.Reliance was also placed by Mr. Misra on Para 32 of the decision in the case of I.N. Saksena vs. State of Madhya Pradesh (1976) 4 SCC 750 ) holding that the State Legislature had legislative competence not only to change the service conditions of the State civil servants with retrospective effect but also to validate with retrospective force invalid executive orders retiring the servants, because such validating legislation must be regarded as subsidiary or ancillary to the power of legislation on the subject covered by Entry 41.16. We are unable to see the relevance on the aforesaid decision for the present purpose. As already, no one has questioned here the legislative competence to change the service conditions of State civil servants with retrospective effect. The question is whether the change has been effected at all. We have already noted that the legislation did not effect any change. It only states that irregular appointments will be legal. The basis of illegality has not at all been changed by the legislation.17. It was also contended that 1973 Rules will be applicable and not 1979 Rules. We cannot permit the appellants to urge this point since it was not urged earlier and is sought to be put forth for the first time during the course of hearing. Further, as already noted, the advertisement was issued after 1979 Rules had been enforced. In fact, in terms of 1979 Rules, the State Government desired OPSC to regularise the illegal appointments. Since OPSC did not concur, the validating statute was enacted. Reliance placed on B.L. Gupta and Anr. vs. M.C.D. (1998) 9 SCC 223 ) for the proposition that 1973 Rules will be applicable and not 1979 Rules is misplaced. The said decision is not relevant on the issue of constitution of Selection Board as per requirements of 1979 Rules.The deeming clause in the present case is to the same effect as that of the above mentioned case. The legal consequences of appointments being regular has been deemed without deeming facts either of repealing 1979 Rules and making 1973 Rules operative or changing the basis, namely, definition of Selection of Board. In this view, we have no hesitation in holding that Section 3(1) has to meet the same fate as was met by Validating statute in Delhi Cloth Millspurpose of a Validating Act is to remove the cause of ineffectiveness or invalidity. A Validating Act presupposes a positive act, on the part of the legislature of removing the cause of ineffectiveness or invalidity. In the present case nothing has been done.Before concluding, we may notice another aspect that was pointed out by learned counsel. The Tribunal in its order observed that rightly or wrongly, Dr. K.C. Biswal, Dr. S.N. Mishra and Dr. S.C. Misra have been promoted to the higher rank since a long time and they have been holding such higher position on the basis of the recommendation of the OPSC and in such circumstances, it would be unjust to pass any orders to disturb them from their present positions. Learned counsel for Dr. Satchidananda Misra contended that the High Court has not disturbed the aforesaid directions of the Tribunal. On the other hand, learned counsel for Dr. Rama Raman Saranji (Respondent No.4 in C.A. No. 8039/03) contended that the writ petition filed by his client challenging the aforesaid direction of the Tribunal is pending before the High Court. In this view, on this aspect, we express no opinion leaving it to be decided by the High Court in accordance with | 0 | 4,488 | 1,334 | ### Instruction:
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case to direct regularisation of illegal and unsupportable appointments, if the justice of any particular case so demands but it cannot be taken as a rule of general application to perpetuate illegalities. Such a course is to be resorted to in exceptional circumstances. We do not think that the present case falls in that category. The OPSC was sought to be deliberately bypassed. There are no equities in favour of appellant who cannot be placed on a higher pedestal over those who were selected by OPSC and stood the test of merits, became successful and were appointed as per relevant Rules. We may also note that on 4th October, 1982, 1979 Rules were amended and selection through Selection Board was done away with and it was prescribed that the selection shall be made through OPSC. 19. We may further note that Section 3(1) amounts to deeming of a legal position without deeming of a fact. It was observed in the case of Delhi Cloth and General Mills Co. Ltd. vs. State of Rajasthan and others (1996) 2 SCC 449 ) that "a legal consequence cannot be deemed nor, therefrom, can the events that should have preceded it. Facts may be deemed and, therefrom, the legal consequences that follow". In this case the procedure as prescribed under Sections 4 to 7 of Rajasthan Municipalities Act, 1959, for inclusion of the villages of Raipura and Ummedganj in Kota Municipality was not followed. Under the Courts order and judgment, Kota Municipality was restrained from imposing tax on the petitioner Company, which was situated in the said villages, on the ground that the said villages were not validly included in the Kota Municipality. Sections 4 to 7 of the Rajasthan Municipalities Act, 1959 remained on statute book unamended when the Kota Municipal Limited (Continued Existence) Validating Act, 1975 was passed. Section 3 of the Validating Act provided that:- "Notwithstanding anything contained in Sections 4 to 7 of the 1959 Act or in any judgment, decree, order or direction of any court, the villages of Raipura and Ummedganj should be deemed always to have continued to exist and they continue to exist within the limits of the Kota Municipality, to all intents and for all purposes." 20. The validity of the Validating Act was in question. This Court observed that "the Validating Act provides that, notwithstanding anything contained in Sections 4 to 7 of 1959 Act or in any judgment, decree, order or direction of any court, the villages of Raipura and Ummedganj should be deemed always to have continued to exist and they continue to exist within the limits of the Kota Municipality, to all intents and for all purposes. This provision requires the deeming the legal position that the villages of Raipura and Ummedganj fall within the limits of the Kota Municipality, not the deeming of facts from which this legal consequence would flow. A legal consequence cannot be deemed nor, therefrom, can the events that should have preceded it. Facts may be deemed and, therefrom, the legal consequences that follow." (Emphasis supplied. For the reasons and on the ground that the Validating Act did not cure the defect leading to the invalidity of the inclusion of the said villages in Kota Municipality, the validating Act was held to be invalid. 21. The deeming clause in the present case is to the same effect as that of the above mentioned case. The legal consequences of appointments being regular has been deemed without deeming facts either of repealing 1979 Rules and making 1973 Rules operative or changing the basis, namely, definition of Selection of Board. In this view, we have no hesitation in holding that Section 3(1) has to meet the same fate as was met by Validating statute in Delhi Cloth Mills case. 22. The validity of the Validating Act is further assailed on the ground that it by mere declaration validates the invalid appointments without removing the basis of invalidity of the appointments made. Blacks Law Dictionary (7th Edition, Page No. 1421) defines Validation Acts as a law that is amended either to remove errors or to add provisions to confirm to constitutional requirements". In the case of Hari Singh and others vs. The Military Estate Officer and another (1972) 2 SCC 239 ) the Supreme Court held that The meaning of a Validating Act is to remove the causes for ineffectiveness or invalidating of actions or proceedings, which are validated by a legislative measure". The Supreme Court in the case of ITW Signode India Limited vs. Collector of Central Excise (2004) 3 SCC 48 ) observed that A Validation Act removes actual or possible voidness, disability or other defect by confirming the validity of anything, which is or may be invalid." 23. The purpose of a Validating Act is to remove the cause of ineffectiveness or invalidity. A Validating Act presupposes a positive act, on the part of the legislature of removing the cause of ineffectiveness or invalidity. In the present case nothing has been done. 24. Before concluding, we may notice another aspect that was pointed out by learned counsel. The Tribunal in its order observed that rightly or wrongly, Dr. K.C. Biswal, Dr. S.N. Mishra and Dr. S.C. Misra have been promoted to the higher rank since a long time and they have been holding such higher position on the basis of the recommendation of the OPSC and in such circumstances, it would be unjust to pass any orders to disturb them from their present positions. Learned counsel for Dr. Satchidananda Misra contended that the High Court has not disturbed the aforesaid directions of the Tribunal. On the other hand, learned counsel for Dr. Rama Raman Saranji (Respondent No.4 in C.A. No. 8039/03) contended that the writ petition filed by his client challenging the aforesaid direction of the Tribunal is pending before the High Court. In this view, on this aspect, we express no opinion leaving it to be decided by the High Court in accordance with law. 25.
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selections were sought to be made by the Board constituted under the 1973 Rules. This, in our opinion, is an illegality which strikes at the root of the appointment and, therefore, it is beyond the scope of the Legislature to validate such illegal appointments as any such attempt would violate Articles 14 and 16 of the Constitution. It may also be noted that the ground that OPSC failed to appoint a member as the Chairman of the Selection Board in accordance with 1979 Rules and in the light of the urgency to fill up the vacancies, the said vacancies were filled up by the Selection Board constituted under the 1973 Rules, does not appear to be correct. The facts on record show a contrary position. By a letter dated 4th September, 1979, the Chairman of the OPSC had offered himself to be the Chairman of the Selection Board but no Selection Board was constituted under the 1979 Rules. A clarification in this regard was sought by OPSC by its letter dated 24th March, 1982 wherein the OPSC had specifically sought for an explanation in regard to the circumstances under which a member of the OPSC was not associated in the Selection Board meetings held on 4th July, 1980 and 10th November, 1980. In reply dated 20th September, 1982 to the above letter, the Secretary to the Government of Orissa, Health and Family Welfare Department did not clarify the abovementioned query and vaguely statedcelebrated Constitution Bench decision in the case of Shri Prithvi Cotton Mills Ltd. and another vs. Broach Borough Municipality and others (1969) 2 SCC 283 ), the principles about validating statutes were laid down. It was held that if the legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transaction. The validity of a Validating Law, therefore, depends upon whether the Legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the effect which the courts had found in the existing law and makes adequate provisions in the Validating Law for a valid imposition of the tax. In the present case, this decision cited by Mr. Misra will have no application since neither the question of competence to make a valid law is in issue nor is there any question about removal of defect pointed out by the Court.Reliance was also placed by Mr. Misra on Para 32 of the decision in the case of I.N. Saksena vs. State of Madhya Pradesh (1976) 4 SCC 750 ) holding that the State Legislature had legislative competence not only to change the service conditions of the State civil servants with retrospective effect but also to validate with retrospective force invalid executive orders retiring the servants, because such validating legislation must be regarded as subsidiary or ancillary to the power of legislation on the subject covered by Entry 41.16. We are unable to see the relevance on the aforesaid decision for the present purpose. As already, no one has questioned here the legislative competence to change the service conditions of State civil servants with retrospective effect. The question is whether the change has been effected at all. We have already noted that the legislation did not effect any change. It only states that irregular appointments will be legal. The basis of illegality has not at all been changed by the legislation.17. It was also contended that 1973 Rules will be applicable and not 1979 Rules. We cannot permit the appellants to urge this point since it was not urged earlier and is sought to be put forth for the first time during the course of hearing. Further, as already noted, the advertisement was issued after 1979 Rules had been enforced. In fact, in terms of 1979 Rules, the State Government desired OPSC to regularise the illegal appointments. Since OPSC did not concur, the validating statute was enacted. Reliance placed on B.L. Gupta and Anr. vs. M.C.D. (1998) 9 SCC 223 ) for the proposition that 1973 Rules will be applicable and not 1979 Rules is misplaced. The said decision is not relevant on the issue of constitution of Selection Board as per requirements of 1979 Rules.The deeming clause in the present case is to the same effect as that of the above mentioned case. The legal consequences of appointments being regular has been deemed without deeming facts either of repealing 1979 Rules and making 1973 Rules operative or changing the basis, namely, definition of Selection of Board. In this view, we have no hesitation in holding that Section 3(1) has to meet the same fate as was met by Validating statute in Delhi Cloth Millspurpose of a Validating Act is to remove the cause of ineffectiveness or invalidity. A Validating Act presupposes a positive act, on the part of the legislature of removing the cause of ineffectiveness or invalidity. In the present case nothing has been done.Before concluding, we may notice another aspect that was pointed out by learned counsel. The Tribunal in its order observed that rightly or wrongly, Dr. K.C. Biswal, Dr. S.N. Mishra and Dr. S.C. Misra have been promoted to the higher rank since a long time and they have been holding such higher position on the basis of the recommendation of the OPSC and in such circumstances, it would be unjust to pass any orders to disturb them from their present positions. Learned counsel for Dr. Satchidananda Misra contended that the High Court has not disturbed the aforesaid directions of the Tribunal. On the other hand, learned counsel for Dr. Rama Raman Saranji (Respondent No.4 in C.A. No. 8039/03) contended that the writ petition filed by his client challenging the aforesaid direction of the Tribunal is pending before the High Court. In this view, on this aspect, we express no opinion leaving it to be decided by the High Court in accordance with
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Sitaram Motilal Kalal Vs. Santanuprasad Jaishankar Bhatt | principal responsible so long as the agent does the act within the scope of his authority or does so under the actual control of the principal. We do not subscribe to the extension of the doctrine that the act of the servant or the agent must be for the masters benefit. This extension was made by Willes, J. in Barwick v. English Joint Stock Bank, (1867) 2 Ex 259. The word benefit is vague and it is better to adhere to the words course of employment or the scope of authority. There is much institutional criticism of such extension. Similarly, we are doubtful whether the extension of the principle by the introduction of the doctrine of implied authority, which was relied upon in the school masters case referred to above, was quite correct. If the dictum is accepted, not only the master would be liable for what he may be supposed to have impliedly authorised the servant to do (however Illegal) but also for all the servants negligence not in doing his duty but in doing something on his own account when he should be properly acting for the master. The true rule in such cases is the one stated by Cockburn, C. J., in (1869) 4 QB 476 thus:"......that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant." or as Lush, J. put it,"the question in all such cases as the present is whether the servant was doing that which the master employed him to do." There has been in recent years another extension of the responsibility of the principal for the act of an agent. In Ormrod v. Crosville Motor Services Ltd., 1953-2 All ER 753, the owner was attending the Monte Carlo motor car rally. He asked a friend to drive the car from Birkenhead to Monte Carlo. The friend was carrying a suit case belonging to the owner. Later they were to go on holiday together in the car. While the motor car was being driven it collided with a motor omnibus and the owner of the car was held responsible fore the damage Singleton, L. J. observed:"It has been said more than once that a driver of a motor car must be doing something for the owner of the car in order to become an agent of the owner. The mere fact of consent by the owner to the use of a chattel is not proof of agency, but the purpose for which this car was being taken down the road on the morning of the accident was either that it should be used by the owner, the third party or that it should be used for the joint purposes of the male plaintiff and the third party when it reached Monte Carlo." Lord Denning (then Lord Justice) observed:"It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment. This is not correct. The owner is also liable if the driver is, with the owners consent, driving the car on the owners business or for the owners purposes. ".......The law puts an especial responsibility on the owner of a vehicle who allows it to go on the road in charge of someone else, no matter whether it is his servant, his friend or anyone else. It is being used wholly or partly on the owners business or for the owners purpose, the owner is liable for any negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern." Even these dicta which make the owner or principal responsible when the vehicle is driven partly on their account and partly on the business of the driver, do not take the matter much further. The learned Judges found the agency from the desire of the owner that the friend should carry his suit case and keep the car ready at Monte Carlo for a holiday. 34. Applying the above tests to the facts of this case, we find that there is no proof that the second defendant was authorised to coach the cleaner so that the cleaner might become a driver and drive the taxi. It appears more probable that the second defendant wanted someone to assist him in driving the taxi for part of the time and was training the third defendant to share the task of driving. The owner stated on oath that he had not given any such authority to the second defendant. The trial Judge accepted that evidence. The High Court differed from the trial Judge by relying upon inadmissible evidence. Once the inadmissible evidence is rightly excluded, it is quite clear that this was an act done not on the owners business but either on the business of the third defendant or that of the third and the second defendants together. It has not been proved to have been even impliedly authorised by the owner or to come within any of the extensions of the doctrine of scope of employment which we have noticed above. The High Court would probably not have passed a decree against the owner if it had not been persuaded to hod the three pieces of evidence to be admissible and relevant. In the absence of that evidence the acts of the second and the third defendants viewed separately or collectively were not within the scope of their respective or even joint employment and the owner was therefore not responsible. We would accordingly allow the appeal, in so far as the appellant is concerned but in the circumstances of the case would direct that there should be no order as to costs throughout. | 1[ds]27. The law is settled that a master is vicariously liable for the acts of his servant acting in the course of his employment. Unless the act is done in the course of employment, the servants act does not make the employer liable. In other words, for the masters liability to arise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the masters business makes him vicariously liable if he commits an accident. But it is equally well settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable. There is a presumption that a vehicle is driven on the masters business and by his authorised agent or servant but the presumption can be met. It was negatived in this case, because the vehicle was proved to be driven by an unauthorised person and on his own business. The de facto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from a servant of the master. Prima facie, the owner would not be liable in such circumstancesThe master was held liable vicariously, because the driver was negligent in the performance of the masters work. The driver in fact seated by the side of the conductor at the time when the omnibus was turned round. In other words, the turning round of the vehicle was an act within the employers business and not something outside it. When the driver asked the conductor to drive the omnibus for his masters business, he did the masters work in a negligent way. The master was therefore rightly held responsible31. The scope of employment of a servant need not of course be viewed narrowly, but the essential element that the wrong must be committed by the servant during the course of the employment, i.e. in doing the masters business ought always to be present32. We know of no further extension of the doctrine of a masters liability for the act of his servants during the course of his employment which would cover this case. It cannot possibly be stated today that the master is responsible for the acts of his servant done, not in the course of employment, but outside it.In the present case, the third defendant was not doing the masters work nor was the second defendant acting within the scope of his employment when he lent the taxi. The third defendant had borrowed the taxi for a work of his own and the second defendant in lending it was not acting in the masters business. The second defendant was not present in the taxi so that he could be said to be in control on behalf of his employer when the taxi was drivenWe find it simpler to state the law that an agent will make the principal responsible so long as the agent does the act within the scope of his authority or does so under the actual control of the principal. We do not subscribe to the extension of the doctrine that the act of the servant or the agent must be for the masters benefitThe word benefit is vague and it is better to adhere to the words course of employment or the scope of authority. There is much institutional criticism of such extension. Similarly, we are doubtful whether the extension of the principle by the introduction of the doctrine of implied authority, which was relied upon in the school masters case referred to above, was quite correct. If the dictum is accepted, not only the master would be liable for what he may be supposed to have impliedly authorised the servant to do (however Illegal) but also for all the servants negligence not in doing his duty but in doing something on his own account when he should be properly acting for the master34. Applying the above tests to the facts of this case, we find that there is no proof that the second defendant was authorised to coach the cleaner so that the cleaner might become a driver and drive the taxi. It appears more probable that the second defendant wanted someone to assist him in driving the taxi for part of the time and was training the third defendant to share the task of driving. The owner stated on oath that he had not given any such authority to the second defendant. The trial Judge accepted that evidence. The High Court differed from the trial Judge by relying upon inadmissible evidence. Once the inadmissible evidence is rightly excluded, it is quite clear that this was an act done not on the owners business but either on the business of the third defendant or that of the third and the second defendants together. It has not been proved to have been even impliedly authorised by the owner or to come within any of the extensions of the doctrine of scope of employment which we have noticed above. The High Court would probably not have passed a decree against the owner if it had not been persuaded to hod the three pieces of evidence to be admissible and relevant. In the absence of that evidence the acts of the second and the third defendants viewed separately or collectively were not within the scope of their respective or even joint employment and the owner was therefore not responsible. We would accordingly allow the appeal, in so far as the appellant is concerned but in the circumstances of the case would direct that there should be no order as to costs throughout24. We are not concerned with the quantum of damages and the above facts therefore suffice for the purpose of our judgment. Since the responsibility of the owner of the vehicle is vicarious, the relationship between him and the other two defendants must be properly determined and something may now be said about that relationship. Admittedly the owner of the vehicle had handed it over to the second defendant to ply it on hire as a taxi in Ahmedabad. The second defendant drove the taxi collected the fares, met the expenses and handed over the balance with accounts to the owner. The second defendant, of course, did not do this free. Either he was a servant or an agent. The difference between a servant and an agent is that the principal has the right to order what should be done, but the master has an additional right to say how it should be done. The evidence does not establish that the owner directed how the taxi should be run and the relationship would be that of principal and agent. The owner, however, stated that he paid Rs. 90 per month to the second defendant and this would show that the second defendant was his servant. We shall consider the matter under both heads25. The relationship between the third defendant (who was at the wheel when the accident happened) and the owner on the one hand and the second defendant on the other is in dispute. There is, however, evidence which has been believed that the third defendant used to clean the taxi. He was probably employed by the owner or on his behalf by the second defendant. In addition, it appears, that he was being trained to take out a drivers licence, presumably with the idea of taking a share in the driving of the taxi. There is nothing to show that in this arrangement, the owner had taken any part whatever. The Trial Judge held that the third defendant was a servant of the second defendant and relied for this purpose on a statement (Ex. P.97) made by the second defendant to the police when proceedings were taken against the driver for negligently causing hurt to the respondent. The Trial Judge further held that the third defendant was not employed by the owner and the owner was not liable. Alternatively, he held that even if the third defendant was employed by the owner, the duty of the third defendant was to clean the car and not to drive it, and the owner was again not liable because the cleaner was not acting within the scope of his employment. The High Court relying on the reply of the third defendant (Ex. P. 87) in answer to a notice from the respondent and on the written statement (Ex.16) filed by him in the suit held that the third defendant was himself probably a servant and in any event, the second defendant as manager of the taxi was clearly authorised to allow the third defendant to drive it. The High Court therefore decreed the claim against the owner also and enhanced the amount of damages awarded by the Court of trialThe facts were not deposed to by any one and the truth of these statements was not in any way tested. To admit them would be prejudicial to the appellant and strictly speaking no provision of law makes the admissions admissible against a person other than the person making them, unless such person can be said to be bound by the admission. This condition does not obtain here. Learned counsel for the respondent, although he attempted to do so at first, did not also rely upon them. We are of the opinion that these documents were inadmissible against the owner. With this evidence excluded there is nothing to show that the owner had employed the third defendant to drive the taxi or given him permission to drive the taxi or asked him to take a test to obtain a drivers licence. There is also nothing to show that he had given any authority to the second defendant to employ strangers to drive the taxi or to take driving tests. The upshot thus is that second defendant was a servant of the owner and the third defendant was a servant of the second defendant or at best a cleaner of the taxi. There is evidence, however, to show that the second defendant was present when the vehicle was borrowed for taking the test and had willingly allowed the third defendant to drive the vehicle for the purpose.On these facts, the question iswhether the owner of the vehicle can be held | 1 | 8,011 | 1,875 | ### Instruction:
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principal responsible so long as the agent does the act within the scope of his authority or does so under the actual control of the principal. We do not subscribe to the extension of the doctrine that the act of the servant or the agent must be for the masters benefit. This extension was made by Willes, J. in Barwick v. English Joint Stock Bank, (1867) 2 Ex 259. The word benefit is vague and it is better to adhere to the words course of employment or the scope of authority. There is much institutional criticism of such extension. Similarly, we are doubtful whether the extension of the principle by the introduction of the doctrine of implied authority, which was relied upon in the school masters case referred to above, was quite correct. If the dictum is accepted, not only the master would be liable for what he may be supposed to have impliedly authorised the servant to do (however Illegal) but also for all the servants negligence not in doing his duty but in doing something on his own account when he should be properly acting for the master. The true rule in such cases is the one stated by Cockburn, C. J., in (1869) 4 QB 476 thus:"......that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant." or as Lush, J. put it,"the question in all such cases as the present is whether the servant was doing that which the master employed him to do." There has been in recent years another extension of the responsibility of the principal for the act of an agent. In Ormrod v. Crosville Motor Services Ltd., 1953-2 All ER 753, the owner was attending the Monte Carlo motor car rally. He asked a friend to drive the car from Birkenhead to Monte Carlo. The friend was carrying a suit case belonging to the owner. Later they were to go on holiday together in the car. While the motor car was being driven it collided with a motor omnibus and the owner of the car was held responsible fore the damage Singleton, L. J. observed:"It has been said more than once that a driver of a motor car must be doing something for the owner of the car in order to become an agent of the owner. The mere fact of consent by the owner to the use of a chattel is not proof of agency, but the purpose for which this car was being taken down the road on the morning of the accident was either that it should be used by the owner, the third party or that it should be used for the joint purposes of the male plaintiff and the third party when it reached Monte Carlo." Lord Denning (then Lord Justice) observed:"It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment. This is not correct. The owner is also liable if the driver is, with the owners consent, driving the car on the owners business or for the owners purposes. ".......The law puts an especial responsibility on the owner of a vehicle who allows it to go on the road in charge of someone else, no matter whether it is his servant, his friend or anyone else. It is being used wholly or partly on the owners business or for the owners purpose, the owner is liable for any negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern." Even these dicta which make the owner or principal responsible when the vehicle is driven partly on their account and partly on the business of the driver, do not take the matter much further. The learned Judges found the agency from the desire of the owner that the friend should carry his suit case and keep the car ready at Monte Carlo for a holiday. 34. Applying the above tests to the facts of this case, we find that there is no proof that the second defendant was authorised to coach the cleaner so that the cleaner might become a driver and drive the taxi. It appears more probable that the second defendant wanted someone to assist him in driving the taxi for part of the time and was training the third defendant to share the task of driving. The owner stated on oath that he had not given any such authority to the second defendant. The trial Judge accepted that evidence. The High Court differed from the trial Judge by relying upon inadmissible evidence. Once the inadmissible evidence is rightly excluded, it is quite clear that this was an act done not on the owners business but either on the business of the third defendant or that of the third and the second defendants together. It has not been proved to have been even impliedly authorised by the owner or to come within any of the extensions of the doctrine of scope of employment which we have noticed above. The High Court would probably not have passed a decree against the owner if it had not been persuaded to hod the three pieces of evidence to be admissible and relevant. In the absence of that evidence the acts of the second and the third defendants viewed separately or collectively were not within the scope of their respective or even joint employment and the owner was therefore not responsible. We would accordingly allow the appeal, in so far as the appellant is concerned but in the circumstances of the case would direct that there should be no order as to costs throughout.
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was training the third defendant to share the task of driving. The owner stated on oath that he had not given any such authority to the second defendant. The trial Judge accepted that evidence. The High Court differed from the trial Judge by relying upon inadmissible evidence. Once the inadmissible evidence is rightly excluded, it is quite clear that this was an act done not on the owners business but either on the business of the third defendant or that of the third and the second defendants together. It has not been proved to have been even impliedly authorised by the owner or to come within any of the extensions of the doctrine of scope of employment which we have noticed above. The High Court would probably not have passed a decree against the owner if it had not been persuaded to hod the three pieces of evidence to be admissible and relevant. In the absence of that evidence the acts of the second and the third defendants viewed separately or collectively were not within the scope of their respective or even joint employment and the owner was therefore not responsible. We would accordingly allow the appeal, in so far as the appellant is concerned but in the circumstances of the case would direct that there should be no order as to costs throughout24. We are not concerned with the quantum of damages and the above facts therefore suffice for the purpose of our judgment. Since the responsibility of the owner of the vehicle is vicarious, the relationship between him and the other two defendants must be properly determined and something may now be said about that relationship. Admittedly the owner of the vehicle had handed it over to the second defendant to ply it on hire as a taxi in Ahmedabad. The second defendant drove the taxi collected the fares, met the expenses and handed over the balance with accounts to the owner. The second defendant, of course, did not do this free. Either he was a servant or an agent. The difference between a servant and an agent is that the principal has the right to order what should be done, but the master has an additional right to say how it should be done. The evidence does not establish that the owner directed how the taxi should be run and the relationship would be that of principal and agent. The owner, however, stated that he paid Rs. 90 per month to the second defendant and this would show that the second defendant was his servant. We shall consider the matter under both heads25. The relationship between the third defendant (who was at the wheel when the accident happened) and the owner on the one hand and the second defendant on the other is in dispute. There is, however, evidence which has been believed that the third defendant used to clean the taxi. He was probably employed by the owner or on his behalf by the second defendant. In addition, it appears, that he was being trained to take out a drivers licence, presumably with the idea of taking a share in the driving of the taxi. There is nothing to show that in this arrangement, the owner had taken any part whatever. The Trial Judge held that the third defendant was a servant of the second defendant and relied for this purpose on a statement (Ex. P.97) made by the second defendant to the police when proceedings were taken against the driver for negligently causing hurt to the respondent. The Trial Judge further held that the third defendant was not employed by the owner and the owner was not liable. Alternatively, he held that even if the third defendant was employed by the owner, the duty of the third defendant was to clean the car and not to drive it, and the owner was again not liable because the cleaner was not acting within the scope of his employment. The High Court relying on the reply of the third defendant (Ex. P. 87) in answer to a notice from the respondent and on the written statement (Ex.16) filed by him in the suit held that the third defendant was himself probably a servant and in any event, the second defendant as manager of the taxi was clearly authorised to allow the third defendant to drive it. The High Court therefore decreed the claim against the owner also and enhanced the amount of damages awarded by the Court of trialThe facts were not deposed to by any one and the truth of these statements was not in any way tested. To admit them would be prejudicial to the appellant and strictly speaking no provision of law makes the admissions admissible against a person other than the person making them, unless such person can be said to be bound by the admission. This condition does not obtain here. Learned counsel for the respondent, although he attempted to do so at first, did not also rely upon them. We are of the opinion that these documents were inadmissible against the owner. With this evidence excluded there is nothing to show that the owner had employed the third defendant to drive the taxi or given him permission to drive the taxi or asked him to take a test to obtain a drivers licence. There is also nothing to show that he had given any authority to the second defendant to employ strangers to drive the taxi or to take driving tests. The upshot thus is that second defendant was a servant of the owner and the third defendant was a servant of the second defendant or at best a cleaner of the taxi. There is evidence, however, to show that the second defendant was present when the vehicle was borrowed for taking the test and had willingly allowed the third defendant to drive the vehicle for the purpose.On these facts, the question iswhether the owner of the vehicle can be held
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Kishan Prakash Sharma Vs. Union of India | that contention also. All the schemes framed by the Corporation must be taken as a composite whole and the several schemes framed will modify the rights of the parties and this Court took notice of this position in New Bank of India Employees Union v. Union of India [supra] and was of the view that in achieving parity in pay scales in different organisations several adjustments have to be made and in ironing the differences, some may be at greater advantage than the other and that circumstances itself may not be taken note of in invalidating such a scheme.30. So far as modification of some of the benefits granted as to the extent of the gratuity whether it may be based on 10% of the basic and personal pay or some other amount at 8% is too small an area which on rationalisation would not affect the rights of the parties. Broadly looked at, we do into think that it is justifiable for the Petitioners to contend that the modification of the scheme in this regard will seriously or at all affect their rights.31. The scheme provides for the sickness leave but certain adjustments have been made in the manner it is made available. This modification has been made to bring out uniformity in service conditions in similar institutions. Such adjustment cannot seriously affect the Petitioners.32. Now we may briefly refer to some of the decisions adverted to by the learned counsel.(1) Shri Rao relied upon a decision of this Court in Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir and another, 1980(3) SCR 1338, to contend that the Directive Principles of State Policy in the Constitution had to be advanced or implemented with a view not to earn revenue but for the purpose of carrying out welfare scheme particularly for those deserving it. We fail to understand as to how this decision would be of any help to the learned counsel. Undoubtedly, constitutional scheme and, in particular the Directive Principles of State Policy provides for protection of the workers to the extent indicated in the Directive Principles of State Policy, that is, participation of workmen in the management of the undertaking. We do not think that principle is in any manner attracted to the present case. So is the position in regard to the decision in National Textile Workers Union Etc. v. P.R. Ramkrishnan and others, 1983(1) SCR 922.(2) Reliance was placed on the decision in Jyoti Parshad v. The Administrator for the Union Territory of Delhi, 1962(2) SCR 124, to contend that in cases of delegated legislation when clear guidance in the enactment is made, the guidance could be derived from the enactment and that it bears a reasonable and rational relationship to the object to be attained by the Act. We do not know, how this decision can be of any assistance to the petitioners.(3) In Hindustan Antibiotics Ltd v. The Workmen and others, 1967(1) SCR 652, a situation where the service conditions of the employees in public sector undertakings were not similar to those of government employees, there was no security of service, the fundamental rules did not apply to them and there was no constitutional protection, no pension, they were covered by standing orders, their service conditions were more similar to those of employees in the private sector was considered. In that case, it was found that industrial adjudication could be appropriate and wages could be properly revised. That situation is entirely different from the one with which we are dealing. We are not comparing conditions of service in different sectors but in similar sectors like GIC and LIC, which are common to nationalised banks, the conditions of service should at any rate be akin or similar. Therefore, the considerations that applied in Hindustan Antibiotics Ltd. v. The Workmen and others case (supra) cannot be applied to be present case.(4) When a law is made with retrospective effect to change the character of the earlier statute or statutory rules so that the court would not have rendered a decision had the changed situation prevailed at that time would not mean suppression of the judicial power by Legislation but only the decision stands nullified because the basis of that decision is taken away. This aspect was examined in detail by this Court S.S. Dola and others v. B.D. Sardana and others, 1997(8) SCC 522. Applying the same principles to the present case, the action of the State is only to enact the law to give effect to its policy by rectifying the defect pointed out by the court with retrospective effect.(5) In case where amalgamations or mergers take place question relating to manner in which the service rendered in the transferor bank for the purpose of promotions, seniority in the transferee bank which was fixed in the ratio of 2:1 were all challenged before this Court in New Bank of India Employees Union and another v. Union of India and others, 1996(8) SCC 407 : 1996(2) SCT 584 (SC), and the scheme framed was held to be legislative in character. Contrary view of such provision had to be made when the entire matter was in the state of efflux for the purpose of rationalisation. Therefore, we find no substance in this argument.(6) This Court in Process Technicians and Analysts Union v. Union of India and others, 1997(10) SCC 142 : 1997(4) SCT 638 (SC), has taken the view that the scheme as amended by the Bharat Petroleum Corporation Limited (Determination of Conditions of Service of Employees) was valid though made retrospective in effect. The challenge was that it had conferred upon the Government unguided powers. It was held that this power enabled the Government to make conditions of service of the employees comparable with those of other private sector companies. Therefore, it was held that it was not an unguided power. In the present case, the position is not different.33. Thus none of the contentions raised on behalf of the petitioners can be accepted. | 0[ds]19. So far as the delegated legislation is concerned, the case law will throw light as to the manner in which the same has to be understood and in each given case we have to understand the scope of the provisions and no uniform rule could be laid down. The legislatures in India have been held to possess wide power of legislation subject, however, to certain limitations such as the legislature cannot delegate essential legislative functions which consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. The Legislature cannot delegate uncanalised and uncontrolled power. The Legislature must set the limits of the power delegated by declaring the policy of the law and by laying down standards for guidance of those on whom the power to execute the law is conferred. Thus the delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guidelines laid down by the Legislature. The Legislature may, after laying down the legislative policy, confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the frame work of the Policy. When the Constitution entrusts the duty ofto Parliament and the Legislatures of States, it impliedly prohibits them to throw away that responsibility on the shoulders of some other authority. An area of compromise is struck that Parliament cannot work in detail the various requirements of giving effect to the enactment and, therefore, that area will be left to be filled in by the delegatee. Thus,the question is whether any particular legislation suffers from excessive delegationand in ascertaining the same, the scheme, the provisions of the statute including its preamble, and the facts and circumstances in the background of which the statute is enacted, the history of the legislation, the complexity of the problems which a modern State has to face, will have to be taken note of and if, on a liberal construction given to a statute, a legislative policy and guidelines for its execution are brought out, the statutes, even if skeletal, will be upheld to be valid but this rule of liberal construction should not be carried by the Court to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on the executive. These very tests were adopted in Ajay Kumar Banerjees case [supra] also to examine whether there is excessive delegation in framing schemes and reading the preamble, the scheme and the other provisions of the enactment taking note of the general economic situation in the country, the authorities concerned had to frame appropriate schemes. Therefore, it is not open to the Petitioners to contend that there is excessive delegation in relation to the enactment to framethere can be no limitation regarding providing better terms and conditions of service the same cannot be modified to the detriment of the workmen. The power that has been conferred upon the Central Government to frame the scheme without guidelines is bad and the guidelines have to be read into the provisions in such a manner that the benefit which is already given to the workmen should not be taken away and there should be enough scope for collective bargaining particularly in the absence of consultation and when there is no limitation on upward revision, the conferment of the power upon the authority concerned is bad.In Ajay Kumar Banerjee case (supra), this Court holding that there is no excessive delegation observed that the scheme framed was ultra vires the enactment for the scheme could only be framed once. Now the argument is that once a scheme is framed no further scheme should be allowed to be framed. If the legislature recognizes the fact the rationalisation resulting from the mergers of several companies are not yet over and on that basis enacts a law to enable the Government to frame appropriate schemes, we do not think that such step by the legislature is arbitrary or irrational as to be violative of Article 14 of the Constitution. In Ajay Kumar Banerjee case (supra), this Court pointed out that though there is power in the Government to revise the pay scales it cannot exercise the power more than once at the time of merging different companies for the purpose of rationalisation this power could have been exercised and for no further. But now the enactment itself specifically provides that every scheme framed or purporting to have been framed by the Central Government under Section 16(1) of the Principal Act and every notification made or purporting to have been made thereunder in so far as such scheme or notification provides for rationalisation or revision of pay scales or other terms and conditions of the officers and other employees of the Corporation are deemed always to have been for all purposes as valid and effective as made under Section 17A of the Act. The retrospective effect given to the scheme is only to overcome the difficulty pointed out by this Court in Ajay Kumar Banerjees case. That lacuna having been overcome it is not open to the Petitioners to contend that retrospective effect given is violative of Articles 14, 19 and 21 of the Constitution. Validation of invalid rule by amending the main enactment under which it is made is a well known legislative device approved by thisLegislature is given the power to make laws not only prospectively but also retrospectively. If in exercise of those powers the Legislature makes an enactment the same cannot be held to be invalid for want of competence. But the grounds urged in the present petitions are arising under Article 14, 19 and 21 of the Constitution. The appointed date fixed for coming into force of the Amendment Act is 2.1.1973. It is clear that the scheme forreorganisation of thegeneral insurance business were to come into effect from that date. Therefore, necessarily effect should have been given from that date. It is difficult to envisage that the rights arising under Article 14, 19 and 21 areproviso to Sectionamendments are made to the Schemes framed in 1976 and 1977 by specifically excluding the 1980 Scheme from the retrospective operation given to the 1985 Amendment Act. When different patterns in different companies existed necessarily rationalisation had to be effected and the position obtaining in several institutions such as the Life Insurance Corporation and the nationalised banks had been taken note of and a common pattern had been adopted. Different patterns were operating in different companies earlier and the area where the adjustment had been made is a small area. When the provision, which enables the schemes to be modified from time to time retrospectively is being subject to several controls and as such schemes have to be approved byofficer and ultimate control is exercised by Parliament, the action is good. It is only in particular cases if the schemes framed are discriminatory or otherwise arbitrary, the same could be challenged under Articles 14 and 16 of the Constitution.22. This Court in A.V. Nachane and another v. Union of India and another, 1982(1) SCC 205, considered similar contentions that have been raised in this case. It was noticed therein that Section 48(2)(c) of the LIC Act provided that no rule made under clause 2(cc) of that scheme touching the terms and conditions of service of the employees of the Corporation shall have effect notwithstanding anything contained in the Industrial Disputes Act, 1974. It was explained that the rules framed thereunder regarding terms and conditions of service the right to raise an industrial dispute in respect of matters dealt with by the rules will be taken away and to that extent the provisions of the Industrial Disputes Act will cease to be applicable. Thus a separate class was sought to be made and having kept them out of the scheme their claims would be considered under the Industrial Disputes Act. It was noticed that the LIC Act as amended and the rules made after amendment placed the Corporation in the same position as other undertakings that the advantages being enjoyed by the employees of the Corporation which were not available to similarly situated employees of other undertakings have been taken away removing what was described as discrimination in favour of the employees of the LIC. Therefore, it was accepted that in the special features of the matter provision made therein cannot be stated to infringe Article 14 of the Constitution. Applying the same logic to the present case by reason of the impugned rules all that have been made is to achieve certain rationalisation. Thus the contention advanced by Shri Rao either as to retrospective application of the amendment or otherwise does not stand to reason.In 1980, the said scheme was amended providing for revision of pay scales, allowances, etc. for the betterment of the employees and notified the scheme on 30.9.1980. The employees, however, challenged the said amendment. But this Court, in Ajay Kumar Banerjees case [supra], rejected the contention of the Petitioners that the scheme was violative of Articles 14, 16 and 19 of the Constitution of India. However, the scheme of 1980 was quashed making it clear to frame any appropriate legislation or to make appropriate amendment giving power to the Central Government to frame any scheme as it considered fit and proper. Thereafter, the Act was amended to remove the lacuna and to promulgate the said provision retrospectively from the date originally it was introduced. On that aspect of the matter, we have already adverted to the various challenges and rejected each one of them. Though the nationalisation process commenced some time in 1973 the process of merger was not over even in the year 1978. The contention that the Petitioners are subjected to hostile discrimination by reason of exclusion of the GIC employees from the Industrial Disputes Act being made applicable to them is alsodealing with the question of similar nature with reference to Section 48 of the Life Insurance Corporation Act, 1956, which by) provided that the rules made thereunder shall have effect notwithstanding anything contained in the Industrial Disputes Act, 1947, or any other law for the time being in force similar to Section 16(5) of the Act, this Court in A.V. Nachanes case [supra] noticed the effect of the same. It was stated that Sectionread with Section 48(2)(cc) authorises the Central Government to make rules to carry out the purposes of the Act notwithstanding the Industrial Disputes Act or any other law. This means that in respect of the matters covered by the rules, the provision of the Industrial Disputes Act or any other law will not be operative. The argument advanced is that this provision introduced in the Principal Act does not lay down any legislative policy or supply any guidelines as to the extent to whichauthority would be competent to override the provisions of the Industrial Disputes Act or other laws. This Court answered this question by stating that there are sufficient guidelines in the Act and an executive authority can be empowered by the statute to modify either existing or future laws but not in any essential feature and relied upon the decision in Rajnarain Singh v, Chairman, 1955(1) SCR 290. Though certain doubts have been expressed in Ajay Kumar Banerjees case as to the effect of the said provision that if there is any industrial dispute pending the same may be affected but in the event that there is no such industrial dispute pending the amendment of the rules will not come in the way and, therefore, it was held that it would not amount to excessive delegation. Therefore, the contention that the Industrial Disputes Act is abrogated is not correct and what was done was to regulate the working of the provisions of the scheme in the larger interest of the insurance business.29. The Government, which framed the scheme, has neither consulted any of the parties nor is there any obligation to do so under the Act. It is only the General Insurance Corporation which supplied the information to the Government of India or consultation with its employees in certain matters. But that will not confer on the parties to demand such consultation each time there is any change in the scheme. Moreover, in matters of legislative nature consultation is not required unless the law requires the same to be done. The contention that the exclusion of the Industrial Disputes Act will affect their rights under Article 19(1)(c) of the Constitution and thereby to their right to collective bargaining is not justified. The right to form union is still available as provided under Article 19(1)(c) of the Constitution and collective bargaining as such is not barred. It is not as though the Industrial Disputes Act is applicable to every industry. The Industrial Disputes Act itself makes several exemptions. The statute as such does not exclude collective bargaining. Therefore, we find no substance in that contention also. All the schemes framed by the Corporation must be taken as a composite whole and the several schemes framed will modify the rights of the parties and this Court took notice of this position in New Bank of India Employees Union v. Union of India [supra] and was of the view that in achieving parity in pay scales in different organisations several adjustments have to be made and in ironing the differences, some may be at greater advantage than the other and that circumstances itself may not be taken note of in invalidating such a scheme.30. So far as modification of some of the benefits granted as to the extent of the gratuity whether it may be based on 10% of the basic and personal pay or some other amount at 8% is too small an area which on rationalisation would not affect the rights of the parties. Broadly looked at, we do into think that it is justifiable for the Petitioners to contend that the modification of the scheme in this regard will seriously or at all affect their rights.31. The scheme provides for the sickness leave but certain adjustments have been made in the manner it is made available. This modification has been made to bring out uniformity in service conditions in similar institutions. Such adjustment cannot seriously affect the Petitioners.32. Now we may briefly refer to some of the decisions adverted to by the learned counsel.(1) Shri Rao relied upon a decision of this Court in Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir and another, 1980(3) SCR 1338, to contend that the Directive Principles of State Policy in the Constitution had to be advanced or implemented with a view not to earn revenue but for the purpose of carrying out welfare scheme particularly for those deserving it. We fail to understand as to how this decision would be of any help to the learned counsel. Undoubtedly, constitutional scheme and, in particular the Directive Principles of State Policy provides for protection of the workers to the extent indicated in the Directive Principles of State Policy, that is, participation of workmen in the management of the undertaking. We do not think that principle is in any manner attracted to the present case. So is the position in regard to the decision in National Textile Workers Union Etc. v. P.R. Ramkrishnan and others, 1983(1) SCR 922.(2) Reliance was placed on the decision in Jyoti Parshad v. The Administrator for the Union Territory of Delhi, 1962(2) SCR 124, to contend that in cases of delegated legislation when clear guidance in the enactment is made, the guidance could be derived from the enactment and that it bears a reasonable and rational relationship to the object to be attained by the Act. We do not know, how this decision can be of any assistance to the petitioners.(3) In Hindustan Antibiotics Ltd v. The Workmen and others, 1967(1) SCR 652, a situation where the service conditions of the employees in public sector undertakings were not similar to those of government employees, there was no security of service, the fundamental rules did not apply to them and there was no constitutional protection, no pension, they were covered by standing orders, their service conditions were more similar to those of employees in the private sector was considered. In that case, it was found that industrial adjudication could be appropriate and wages could be properly revised. That situation is entirely different from the one with which we are dealing. We are not comparing conditions of service in different sectors but in similar sectors like GIC and LIC, which are common to nationalised banks, the conditions of service should at any rate be akin or similar. Therefore, the considerations that applied in Hindustan Antibiotics Ltd. v. The Workmen and others case (supra) cannot be applied to be present case.(4) When a law is made with retrospective effect to change the character of the earlier statute or statutory rules so that the court would not have rendered a decision had the changed situation prevailed at that time would not mean suppression of the judicial power by Legislation but only the decision stands nullified because the basis of that decision is taken away. This aspect was examined in detail by this Court S.S. Dola and others v. B.D. Sardana and others, 1997(8) SCC 522. Applying the same principles to the present case, the action of the State is only to enact the law to give effect to its policy by rectifying the defect pointed out by the court with retrospective effect.(5) In case where amalgamations or mergers take place question relating to manner in which the service rendered in the transferor bank for the purpose of promotions, seniority in the transferee bank which was fixed in the ratio of 2:1 were all challenged before this Court in New Bank of India Employees Union and another v. Union of India and others, 1996(8) SCC 407 : 1996(2) SCT 584 (SC), and the scheme framed was held to be legislative in character. Contrary view of such provision had to be made when the entire matter was in the state of efflux for the purpose of rationalisation. Therefore, we find no substance in this argument.(6) This Court in Process Technicians and Analysts Union v. Union of India and others, 1997(10) SCC 142 : 1997(4) SCT 638 (SC), has taken the view that the scheme as amended by the Bharat Petroleum Corporation Limited (Determination of Conditions of Service of Employees) was valid though made retrospective in effect. The challenge was that it had conferred upon the Government unguided powers. It was held that this power enabled the Government to make conditions of service of the employees comparable with those of other private sector companies. Therefore, it was held that it was not an unguided power. In the present case, the position is not different.33. Thus none of the contentions raised on behalf of the petitioners can be accepted. | 0 | 10,306 | 3,500 | ### 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:
that contention also. All the schemes framed by the Corporation must be taken as a composite whole and the several schemes framed will modify the rights of the parties and this Court took notice of this position in New Bank of India Employees Union v. Union of India [supra] and was of the view that in achieving parity in pay scales in different organisations several adjustments have to be made and in ironing the differences, some may be at greater advantage than the other and that circumstances itself may not be taken note of in invalidating such a scheme.30. So far as modification of some of the benefits granted as to the extent of the gratuity whether it may be based on 10% of the basic and personal pay or some other amount at 8% is too small an area which on rationalisation would not affect the rights of the parties. Broadly looked at, we do into think that it is justifiable for the Petitioners to contend that the modification of the scheme in this regard will seriously or at all affect their rights.31. The scheme provides for the sickness leave but certain adjustments have been made in the manner it is made available. This modification has been made to bring out uniformity in service conditions in similar institutions. Such adjustment cannot seriously affect the Petitioners.32. Now we may briefly refer to some of the decisions adverted to by the learned counsel.(1) Shri Rao relied upon a decision of this Court in Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir and another, 1980(3) SCR 1338, to contend that the Directive Principles of State Policy in the Constitution had to be advanced or implemented with a view not to earn revenue but for the purpose of carrying out welfare scheme particularly for those deserving it. We fail to understand as to how this decision would be of any help to the learned counsel. Undoubtedly, constitutional scheme and, in particular the Directive Principles of State Policy provides for protection of the workers to the extent indicated in the Directive Principles of State Policy, that is, participation of workmen in the management of the undertaking. We do not think that principle is in any manner attracted to the present case. So is the position in regard to the decision in National Textile Workers Union Etc. v. P.R. Ramkrishnan and others, 1983(1) SCR 922.(2) Reliance was placed on the decision in Jyoti Parshad v. The Administrator for the Union Territory of Delhi, 1962(2) SCR 124, to contend that in cases of delegated legislation when clear guidance in the enactment is made, the guidance could be derived from the enactment and that it bears a reasonable and rational relationship to the object to be attained by the Act. We do not know, how this decision can be of any assistance to the petitioners.(3) In Hindustan Antibiotics Ltd v. The Workmen and others, 1967(1) SCR 652, a situation where the service conditions of the employees in public sector undertakings were not similar to those of government employees, there was no security of service, the fundamental rules did not apply to them and there was no constitutional protection, no pension, they were covered by standing orders, their service conditions were more similar to those of employees in the private sector was considered. In that case, it was found that industrial adjudication could be appropriate and wages could be properly revised. That situation is entirely different from the one with which we are dealing. We are not comparing conditions of service in different sectors but in similar sectors like GIC and LIC, which are common to nationalised banks, the conditions of service should at any rate be akin or similar. Therefore, the considerations that applied in Hindustan Antibiotics Ltd. v. The Workmen and others case (supra) cannot be applied to be present case.(4) When a law is made with retrospective effect to change the character of the earlier statute or statutory rules so that the court would not have rendered a decision had the changed situation prevailed at that time would not mean suppression of the judicial power by Legislation but only the decision stands nullified because the basis of that decision is taken away. This aspect was examined in detail by this Court S.S. Dola and others v. B.D. Sardana and others, 1997(8) SCC 522. Applying the same principles to the present case, the action of the State is only to enact the law to give effect to its policy by rectifying the defect pointed out by the court with retrospective effect.(5) In case where amalgamations or mergers take place question relating to manner in which the service rendered in the transferor bank for the purpose of promotions, seniority in the transferee bank which was fixed in the ratio of 2:1 were all challenged before this Court in New Bank of India Employees Union and another v. Union of India and others, 1996(8) SCC 407 : 1996(2) SCT 584 (SC), and the scheme framed was held to be legislative in character. Contrary view of such provision had to be made when the entire matter was in the state of efflux for the purpose of rationalisation. Therefore, we find no substance in this argument.(6) This Court in Process Technicians and Analysts Union v. Union of India and others, 1997(10) SCC 142 : 1997(4) SCT 638 (SC), has taken the view that the scheme as amended by the Bharat Petroleum Corporation Limited (Determination of Conditions of Service of Employees) was valid though made retrospective in effect. The challenge was that it had conferred upon the Government unguided powers. It was held that this power enabled the Government to make conditions of service of the employees comparable with those of other private sector companies. Therefore, it was held that it was not an unguided power. In the present case, the position is not different.33. Thus none of the contentions raised on behalf of the petitioners can be accepted.
### Response:
0
### Explanation:
that contention also. All the schemes framed by the Corporation must be taken as a composite whole and the several schemes framed will modify the rights of the parties and this Court took notice of this position in New Bank of India Employees Union v. Union of India [supra] and was of the view that in achieving parity in pay scales in different organisations several adjustments have to be made and in ironing the differences, some may be at greater advantage than the other and that circumstances itself may not be taken note of in invalidating such a scheme.30. So far as modification of some of the benefits granted as to the extent of the gratuity whether it may be based on 10% of the basic and personal pay or some other amount at 8% is too small an area which on rationalisation would not affect the rights of the parties. Broadly looked at, we do into think that it is justifiable for the Petitioners to contend that the modification of the scheme in this regard will seriously or at all affect their rights.31. The scheme provides for the sickness leave but certain adjustments have been made in the manner it is made available. This modification has been made to bring out uniformity in service conditions in similar institutions. Such adjustment cannot seriously affect the Petitioners.32. Now we may briefly refer to some of the decisions adverted to by the learned counsel.(1) Shri Rao relied upon a decision of this Court in Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir and another, 1980(3) SCR 1338, to contend that the Directive Principles of State Policy in the Constitution had to be advanced or implemented with a view not to earn revenue but for the purpose of carrying out welfare scheme particularly for those deserving it. We fail to understand as to how this decision would be of any help to the learned counsel. Undoubtedly, constitutional scheme and, in particular the Directive Principles of State Policy provides for protection of the workers to the extent indicated in the Directive Principles of State Policy, that is, participation of workmen in the management of the undertaking. We do not think that principle is in any manner attracted to the present case. So is the position in regard to the decision in National Textile Workers Union Etc. v. P.R. Ramkrishnan and others, 1983(1) SCR 922.(2) Reliance was placed on the decision in Jyoti Parshad v. The Administrator for the Union Territory of Delhi, 1962(2) SCR 124, to contend that in cases of delegated legislation when clear guidance in the enactment is made, the guidance could be derived from the enactment and that it bears a reasonable and rational relationship to the object to be attained by the Act. We do not know, how this decision can be of any assistance to the petitioners.(3) In Hindustan Antibiotics Ltd v. The Workmen and others, 1967(1) SCR 652, a situation where the service conditions of the employees in public sector undertakings were not similar to those of government employees, there was no security of service, the fundamental rules did not apply to them and there was no constitutional protection, no pension, they were covered by standing orders, their service conditions were more similar to those of employees in the private sector was considered. In that case, it was found that industrial adjudication could be appropriate and wages could be properly revised. That situation is entirely different from the one with which we are dealing. We are not comparing conditions of service in different sectors but in similar sectors like GIC and LIC, which are common to nationalised banks, the conditions of service should at any rate be akin or similar. Therefore, the considerations that applied in Hindustan Antibiotics Ltd. v. The Workmen and others case (supra) cannot be applied to be present case.(4) When a law is made with retrospective effect to change the character of the earlier statute or statutory rules so that the court would not have rendered a decision had the changed situation prevailed at that time would not mean suppression of the judicial power by Legislation but only the decision stands nullified because the basis of that decision is taken away. This aspect was examined in detail by this Court S.S. Dola and others v. B.D. Sardana and others, 1997(8) SCC 522. Applying the same principles to the present case, the action of the State is only to enact the law to give effect to its policy by rectifying the defect pointed out by the court with retrospective effect.(5) In case where amalgamations or mergers take place question relating to manner in which the service rendered in the transferor bank for the purpose of promotions, seniority in the transferee bank which was fixed in the ratio of 2:1 were all challenged before this Court in New Bank of India Employees Union and another v. Union of India and others, 1996(8) SCC 407 : 1996(2) SCT 584 (SC), and the scheme framed was held to be legislative in character. Contrary view of such provision had to be made when the entire matter was in the state of efflux for the purpose of rationalisation. Therefore, we find no substance in this argument.(6) This Court in Process Technicians and Analysts Union v. Union of India and others, 1997(10) SCC 142 : 1997(4) SCT 638 (SC), has taken the view that the scheme as amended by the Bharat Petroleum Corporation Limited (Determination of Conditions of Service of Employees) was valid though made retrospective in effect. The challenge was that it had conferred upon the Government unguided powers. It was held that this power enabled the Government to make conditions of service of the employees comparable with those of other private sector companies. Therefore, it was held that it was not an unguided power. In the present case, the position is not different.33. Thus none of the contentions raised on behalf of the petitioners can be accepted.
|
Gajraj Singh Vs. The State Of Madhya- Pradesh & Anr | said Retrenchment Terms which provided two things, (1) laying down principles for selection of those who were to be absorbed, and (2) to grant some benefit by way of a reasonable subsistence to those who would not be absorbed, which would enable them to tide over the period necessary for building up new associations. The retrenchment terms were framed on the basis of the recommendations made by the Mohan Rau Committee, appointed for going into the question of the surplus personnel, who until then were in the service of the erstwhile acceding States, such as Gwalior. In order to be fair and not to be arbitrary in the matter of selection of those who were to be absorbed in the service of the new State, the Retrenchment Terms laid down seven categories of persons who were not to be absorbed.10. It is clear from the said Retrenchment Terms themselves that they dealt with a two-fold problem, (1) of the surplus staff of the acceding States, and (2) of payment of a reasonable subsistence to such of the surplus personnel who could not be absorbed. Though the said notification called its provisions "Retrenchment Terms", there was no question of any retrenchment in the sense in which that expression is ordinarily understood. The question of retrenchment could arise only in the case of persons who had already been absorbed and continued in the service of the new State. As aforesaid, the process of absorption was pending and under consideration. Until it was completed, the appellants name figured in the list of the provisionally absorbed persons". It was, therefore, not as if the surplus employees of the acceding States had already been absorbed or retained in the service of the new State and then were retrenched or removed from service.11. The seven categories of persons classified in the said Retrenchment Terms also indicate that those persons were not to be absorbed and not that they were to be removed or retrenched from the service of the new State. There is nothing on record to show that the new State was bound to absorb in its service all the employees of the acceding States even if they were surplus. As aforesaid, even if the covenant under which the acceding States joined the new State so provided, the individual employees of such States did not thereunder acquire any right to be absorbed or continued in service of the new State. The non-absorption of persons falling in the seven categories could not, therefore, amount in law to removal or dismissal from service. They were simply not absorbed in the service of the new State and had, therefore, not yet become its employees. No question thus of removal or dismissal could possibly arise.12. It is true that of the seven categories of persons, category 2 related to persons whose previous service record was consistently bad. The decision not to absorb such persons, however, could not amount to any punishment for the reason that they were not yet absorbed or continued in service of the new State and had, therefore, not become its employees. It is true that these persons along with persons falling in the other categories continued to work in the new State after its formation. But that was only by way of a provisional arrangement, until the process of absorption was finalised. No question of paying subsistence or compensation also could have arisen if their non-absorption amounted to either removal or dismissal by way of punishment.13. Category l consisted of those who had reached the age of 55 years, it they were in superior service, or 60 years, if they were in inferior service. Their non-absorption, surely, could not constitute either removal or dismissal as and by way of punishment. The same would be the case of those in categories 3, 5 and 6, namely, temporary and officiating government servants, persons who had put in service for 30 years and more, and permanent government servants who had less than three years service to their credit. These persons were placed in these categories presumably for the reason that their non-absorption would not work as a hardship or be unfair as against persons who were permanent government servants and who had a long period to be in service. The classification of persons in the seven categories was thus clearly made to select persons from out of those who were in excess of the requirements of the new State. Since they were not to be absorbed, they could not be said to have been the employees of the new State and Art. 311, therefore, could not apply to their cases. The claim of the appellant that the impugned order amounted to punishment or that for that reason Art. 311 was attracted was clearly misconceived.14. The respondent-State had relied upon categories 2, 4 and 7, as grounds for the impugned order. So far as category 4 was concerned, there can be no doubt that the appellant did not have the minimum educational qualification required for the post of a Sub-Inspector. Since that was so, he would also fall in category No. 7, that is as a person who could not, for reasons considered adequate by the Government, be absorbed in the service of the new State. Even if, therefore, category (2) could not for some reason or the other be taken into consideration, categories 4 and 7 were relevant and valid. The mere fact that the Government could not avail of category (2) did not mean that it could not rely on the other two grounds. The reason is that this was not a case of subjective satisfaction, where on failure of one of the grounds it would be impossible to predicate whether the relevant authority could have reached its satisfaction only on the basis of the rest of the grounds. The tests here were objective ones and if one of the several such tests failed, but the others were sufficient, the order would still have to be sustained. | 0[ds]10. It is clear from the said Retrenchment Terms themselves that they dealt with aproblem, (1) of the surplus staff of the acceding States, and (2) of payment of a reasonable subsistence to such of the surplus personnel who could not be absorbed. Though the said notification called its provisions "Retrenchment Terms", there was no question of any retrenchment in the sense in which that expression is ordinarily understood. The question of retrenchment could arise only in the case of persons who had already been absorbed and continued in the service of the new State. As aforesaid, the process of absorption was pending and under consideration. Until it was completed, the appellants name figured in the list of the provisionally absorbed persons". It was, therefore, not as if the surplus employees of the acceding States had already been absorbed or retained in the service of the new State and then were retrenched or removed from service.11. The seven categories of persons classified in the said Retrenchment Terms also indicate that those persons were not to be absorbed and not that they were to be removed or retrenched from the service of the new State. There is nothing on record to show that the new State was bound to absorb in its service all the employees of the acceding States even if they were surplus. As aforesaid, even if the covenant under which the acceding States joined the new State so provided, the individual employees of such States did not thereunder acquire any right to be absorbed or continued in service of the new State. Theof persons falling in the seven categories could not, therefore, amount in law to removal or dismissal from service. They were simply not absorbed in the service of the new State and had, therefore, not yet become its employees. No question thus of removal or dismissal could possibly arise.te had relied upon categories 2, 4 and 7, as grounds for the impugned order. So far as category 4 was concerned, there can be no doubt that the appellant did not have the minimum educational qualification required for the post of aSince that was so, he would also fall in category No. 7, that is as a person who could not, for reasons considered adequate by the Government, be absorbed in the service of the new State. Even if, therefore, category (2) could not for some reason or the other be taken into consideration, categories 4 and 7 were relevant and valid. The mere fact that the Government could not avail of category (2) did not mean that it could not rely on the other two grounds. The reason is that this was not a case of subjective satisfaction, where on failure of one of the grounds it would be impossible to predicate whether the relevant authority could have reached its satisfaction only on the basis of the rest of the grounds. The tests here were objective ones and if one of the several such tests failed, but the others were sufficient, the order would still have to be sustained. | 0 | 2,889 | 573 | ### 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:
said Retrenchment Terms which provided two things, (1) laying down principles for selection of those who were to be absorbed, and (2) to grant some benefit by way of a reasonable subsistence to those who would not be absorbed, which would enable them to tide over the period necessary for building up new associations. The retrenchment terms were framed on the basis of the recommendations made by the Mohan Rau Committee, appointed for going into the question of the surplus personnel, who until then were in the service of the erstwhile acceding States, such as Gwalior. In order to be fair and not to be arbitrary in the matter of selection of those who were to be absorbed in the service of the new State, the Retrenchment Terms laid down seven categories of persons who were not to be absorbed.10. It is clear from the said Retrenchment Terms themselves that they dealt with a two-fold problem, (1) of the surplus staff of the acceding States, and (2) of payment of a reasonable subsistence to such of the surplus personnel who could not be absorbed. Though the said notification called its provisions "Retrenchment Terms", there was no question of any retrenchment in the sense in which that expression is ordinarily understood. The question of retrenchment could arise only in the case of persons who had already been absorbed and continued in the service of the new State. As aforesaid, the process of absorption was pending and under consideration. Until it was completed, the appellants name figured in the list of the provisionally absorbed persons". It was, therefore, not as if the surplus employees of the acceding States had already been absorbed or retained in the service of the new State and then were retrenched or removed from service.11. The seven categories of persons classified in the said Retrenchment Terms also indicate that those persons were not to be absorbed and not that they were to be removed or retrenched from the service of the new State. There is nothing on record to show that the new State was bound to absorb in its service all the employees of the acceding States even if they were surplus. As aforesaid, even if the covenant under which the acceding States joined the new State so provided, the individual employees of such States did not thereunder acquire any right to be absorbed or continued in service of the new State. The non-absorption of persons falling in the seven categories could not, therefore, amount in law to removal or dismissal from service. They were simply not absorbed in the service of the new State and had, therefore, not yet become its employees. No question thus of removal or dismissal could possibly arise.12. It is true that of the seven categories of persons, category 2 related to persons whose previous service record was consistently bad. The decision not to absorb such persons, however, could not amount to any punishment for the reason that they were not yet absorbed or continued in service of the new State and had, therefore, not become its employees. It is true that these persons along with persons falling in the other categories continued to work in the new State after its formation. But that was only by way of a provisional arrangement, until the process of absorption was finalised. No question of paying subsistence or compensation also could have arisen if their non-absorption amounted to either removal or dismissal by way of punishment.13. Category l consisted of those who had reached the age of 55 years, it they were in superior service, or 60 years, if they were in inferior service. Their non-absorption, surely, could not constitute either removal or dismissal as and by way of punishment. The same would be the case of those in categories 3, 5 and 6, namely, temporary and officiating government servants, persons who had put in service for 30 years and more, and permanent government servants who had less than three years service to their credit. These persons were placed in these categories presumably for the reason that their non-absorption would not work as a hardship or be unfair as against persons who were permanent government servants and who had a long period to be in service. The classification of persons in the seven categories was thus clearly made to select persons from out of those who were in excess of the requirements of the new State. Since they were not to be absorbed, they could not be said to have been the employees of the new State and Art. 311, therefore, could not apply to their cases. The claim of the appellant that the impugned order amounted to punishment or that for that reason Art. 311 was attracted was clearly misconceived.14. The respondent-State had relied upon categories 2, 4 and 7, as grounds for the impugned order. So far as category 4 was concerned, there can be no doubt that the appellant did not have the minimum educational qualification required for the post of a Sub-Inspector. Since that was so, he would also fall in category No. 7, that is as a person who could not, for reasons considered adequate by the Government, be absorbed in the service of the new State. Even if, therefore, category (2) could not for some reason or the other be taken into consideration, categories 4 and 7 were relevant and valid. The mere fact that the Government could not avail of category (2) did not mean that it could not rely on the other two grounds. The reason is that this was not a case of subjective satisfaction, where on failure of one of the grounds it would be impossible to predicate whether the relevant authority could have reached its satisfaction only on the basis of the rest of the grounds. The tests here were objective ones and if one of the several such tests failed, but the others were sufficient, the order would still have to be sustained.
### Response:
0
### Explanation:
10. It is clear from the said Retrenchment Terms themselves that they dealt with aproblem, (1) of the surplus staff of the acceding States, and (2) of payment of a reasonable subsistence to such of the surplus personnel who could not be absorbed. Though the said notification called its provisions "Retrenchment Terms", there was no question of any retrenchment in the sense in which that expression is ordinarily understood. The question of retrenchment could arise only in the case of persons who had already been absorbed and continued in the service of the new State. As aforesaid, the process of absorption was pending and under consideration. Until it was completed, the appellants name figured in the list of the provisionally absorbed persons". It was, therefore, not as if the surplus employees of the acceding States had already been absorbed or retained in the service of the new State and then were retrenched or removed from service.11. The seven categories of persons classified in the said Retrenchment Terms also indicate that those persons were not to be absorbed and not that they were to be removed or retrenched from the service of the new State. There is nothing on record to show that the new State was bound to absorb in its service all the employees of the acceding States even if they were surplus. As aforesaid, even if the covenant under which the acceding States joined the new State so provided, the individual employees of such States did not thereunder acquire any right to be absorbed or continued in service of the new State. Theof persons falling in the seven categories could not, therefore, amount in law to removal or dismissal from service. They were simply not absorbed in the service of the new State and had, therefore, not yet become its employees. No question thus of removal or dismissal could possibly arise.te had relied upon categories 2, 4 and 7, as grounds for the impugned order. So far as category 4 was concerned, there can be no doubt that the appellant did not have the minimum educational qualification required for the post of aSince that was so, he would also fall in category No. 7, that is as a person who could not, for reasons considered adequate by the Government, be absorbed in the service of the new State. Even if, therefore, category (2) could not for some reason or the other be taken into consideration, categories 4 and 7 were relevant and valid. The mere fact that the Government could not avail of category (2) did not mean that it could not rely on the other two grounds. The reason is that this was not a case of subjective satisfaction, where on failure of one of the grounds it would be impossible to predicate whether the relevant authority could have reached its satisfaction only on the basis of the rest of the grounds. The tests here were objective ones and if one of the several such tests failed, but the others were sufficient, the order would still have to be sustained.
|
Krishan Kumar Alias Pamma Vs. State of Haryana | was defamed on account of him and he is standing with the said girl. On this, he started abusing me and I paid him in the same coin. Pamma came at my house in the evening with a bottle, and he sprinkled kerosene on my person from the said bottle, and then he set me on fire. My daughter was also sleeping with me. She woke up and ran awayQ. When did Pamma set you on fire ? A. Pamma had set me on fire at 9 p.m.-10 p.m. at night Q. Where Pamma had gone ? A. I cried on account of fire. Several other persons including my sister who are residing nearby came to rescue me. During this course Pamma had slipped away." The deceased met with her death on 4-3-1985 at 12.15 a.m. 6. In the course of investigation, some burnt clothes and some cotton smelling of kerosene were seized from the house of the deceased and sent to the Forensic Science Laboratory for examination. On receipt of the report of such examination and after completion of investigation, the police submitted charge-sheet against the appellant and in due course the case was committed to the Court of Session. 7. In the absence of any eyewitness, the prosecution rested its case solely upon the two dying declarations quoted earlier. 8. The appellant, who pleaded not guilty to the charge levelled against him, gave the following version regarding the death of Rani while being examined under Section 313 CrPC. "As a matter of fact, Rani was compelling me to marry her immediately, but I said that my two sisters and brothers were unmarried and when they get married, I will marry her. She I did not agree for immediate marriage, Rani threatened that she would get her burnt and would get me implicated. I had visited Rani during the day and she asked me to come during the night. I came to the house of the deceased Rani at about 11.30 p.m. Again she insisted for inundate marriage but I did not agree, upon which Rani lifted a (sic lamp) containing batti having kerosene in it. The burning batti was put off and threw kerosene on her body and put herself on fire. I lifted a quilt and with the help of the quilt, I took Rani in my grip in order to extinguish the fire and I received burn injuries. The sister of the deceased also cried. Later on, this false case was got registered against me at the instance of her relations." * In support of his defence, he examined Janki Devi, the sister of the deceased. 9. Mr Kohli, the learned counsel appearing for the appellant, did not dispute the fact that the deceased made the above two dying declarations as alleged by the prosecution. He, however, contended that the declaration made by the deceased was false and the appellants version was true. In support of his contention, he first drew our attention to the evidence of Dr (Mrs) P. Sinha (PW 4) who examined the appellant at the instance of the police after his surrender on 5-3-1985 and found the following injuries on his person. "1. Hot burn over right hand over the knuckles, middle ring and little fingers. It was superficial, skin-deep. Skin was peeled off and the area was congested 2. Hot burn over lower third left forearm, about 4" in diameter, skin was red and congested. It was superficial and skin-deep 3. Hair over the forehead in small quantity were burnt." He next placed reliance on the testimony of Janki Devi (DW 2), sister of the deceased, who supported the appellants version. 10. On perusal of the impugned judgment, we find that both the learned courts below went into the question as to whether the deceased met with homicidal death as alleged by the prosecution or a suicidal death as contended by the appellant and on detailed discussion of the evidence found the story made out by the appellant wholly unacceptable. The most important circumstance which persuades us to disbelieve the version of the appellant is the fact that immediately after the incident, he ran away from the spot. If his version was true, it was expected of him to take the deceased immediately to the hospital for the purpose of treatment. Indeed, he did not even get himself examined for his own burns. While on this point it will be pertinent to mention that Dr (Mrs) Sinha opined that the injuries found on the appellant were possible while putting somebody on fire by pouring kerosene as in such a situation, flames emerge abruptly. We do not however for a moment suggest that his such conduct by itself points to his guilt but it certainly belies his version of the incident. It is, of course, true that the sister of the deceased has supported the appellant but we cannot lose sight of the fact that she was a witness for the prosecution and was summoned to testify on its behalf. She was however not examined by the prosecution as she was found to have been won over; and then she examined herself as a defence witness. She admitted in her cross-examination that for the purposes of testifying on behalf of the defence, she was not summoned by the Court but was brought by Raj Kumar, the brother of the appellant. Then again we find that she admitted in her deposition that she had been attracted to the spot on hearing the cries of the deceased. Obviously, the cries were raised by the deceased after she was put on fire and, therefore, she could not have been in a position to say how she had been set on fire. 11. Having carefully gone through the evidence on record, we do not find any reason whatsoever to disturb the findings recorded by the trial court and the appellate court that the dying declarations are true and can be made the sole basis of conviction | 0[ds]10. On perusal of the impugned judgment, we find that both the learned courts below went into the question as to whether the deceased met with homicidal death as alleged by the prosecution or a suicidal death as contended by the appellant and on detailed discussion of the evidence found the story made out by the appellant wholly unacceptable. The most important circumstance which persuades us to disbelieve the version of the appellant is the fact that immediately after the incident, he ran away from the spot. If his version was true, it was expected of him to take the deceased immediately to the hospital for the purpose of treatment. Indeed, he did not even get himself examined for his own burns. While on this point it will be pertinent to mention that Dr (Mrs) Sinha opined that the injuries found on the appellant were possible while putting somebody on fire by pouring kerosene as in such a situation, flames emerge abruptly. We do not however for a moment suggest that his such conduct by itself points to his guilt but it certainly belies his version of the incident. It is, of course, true that the sister of the deceased has supported the appellant but we cannot lose sight of the fact that she was a witness for the prosecution and was summoned to testify on its behalf. She was however not examined by the prosecution as she was found to have been won over; and then she examined herself as a defence witness. She admitted in hern that for the purposes of testifying on behalf of the defence, she was not summoned by the Court but was brought by Raj Kumar, the brother of the appellant. Then again we find that she admitted in her deposition that she had been attracted to the spot on hearing the cries of the deceased. Obviously, the cries were raised by the deceased after she was put on fire and, therefore, she could not have been in a position to say how she had been set on fire11. Having carefully gone through the evidence on record, we do not find any reason whatsoever to disturb the findings recorded by the trial court and the appellate court that the dying declarations are true and can be made the sole basis of conviction | 0 | 1,907 | 421 | ### Instruction:
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was defamed on account of him and he is standing with the said girl. On this, he started abusing me and I paid him in the same coin. Pamma came at my house in the evening with a bottle, and he sprinkled kerosene on my person from the said bottle, and then he set me on fire. My daughter was also sleeping with me. She woke up and ran awayQ. When did Pamma set you on fire ? A. Pamma had set me on fire at 9 p.m.-10 p.m. at night Q. Where Pamma had gone ? A. I cried on account of fire. Several other persons including my sister who are residing nearby came to rescue me. During this course Pamma had slipped away." The deceased met with her death on 4-3-1985 at 12.15 a.m. 6. In the course of investigation, some burnt clothes and some cotton smelling of kerosene were seized from the house of the deceased and sent to the Forensic Science Laboratory for examination. On receipt of the report of such examination and after completion of investigation, the police submitted charge-sheet against the appellant and in due course the case was committed to the Court of Session. 7. In the absence of any eyewitness, the prosecution rested its case solely upon the two dying declarations quoted earlier. 8. The appellant, who pleaded not guilty to the charge levelled against him, gave the following version regarding the death of Rani while being examined under Section 313 CrPC. "As a matter of fact, Rani was compelling me to marry her immediately, but I said that my two sisters and brothers were unmarried and when they get married, I will marry her. She I did not agree for immediate marriage, Rani threatened that she would get her burnt and would get me implicated. I had visited Rani during the day and she asked me to come during the night. I came to the house of the deceased Rani at about 11.30 p.m. Again she insisted for inundate marriage but I did not agree, upon which Rani lifted a (sic lamp) containing batti having kerosene in it. The burning batti was put off and threw kerosene on her body and put herself on fire. I lifted a quilt and with the help of the quilt, I took Rani in my grip in order to extinguish the fire and I received burn injuries. The sister of the deceased also cried. Later on, this false case was got registered against me at the instance of her relations." * In support of his defence, he examined Janki Devi, the sister of the deceased. 9. Mr Kohli, the learned counsel appearing for the appellant, did not dispute the fact that the deceased made the above two dying declarations as alleged by the prosecution. He, however, contended that the declaration made by the deceased was false and the appellants version was true. In support of his contention, he first drew our attention to the evidence of Dr (Mrs) P. Sinha (PW 4) who examined the appellant at the instance of the police after his surrender on 5-3-1985 and found the following injuries on his person. "1. Hot burn over right hand over the knuckles, middle ring and little fingers. It was superficial, skin-deep. Skin was peeled off and the area was congested 2. Hot burn over lower third left forearm, about 4" in diameter, skin was red and congested. It was superficial and skin-deep 3. Hair over the forehead in small quantity were burnt." He next placed reliance on the testimony of Janki Devi (DW 2), sister of the deceased, who supported the appellants version. 10. On perusal of the impugned judgment, we find that both the learned courts below went into the question as to whether the deceased met with homicidal death as alleged by the prosecution or a suicidal death as contended by the appellant and on detailed discussion of the evidence found the story made out by the appellant wholly unacceptable. The most important circumstance which persuades us to disbelieve the version of the appellant is the fact that immediately after the incident, he ran away from the spot. If his version was true, it was expected of him to take the deceased immediately to the hospital for the purpose of treatment. Indeed, he did not even get himself examined for his own burns. While on this point it will be pertinent to mention that Dr (Mrs) Sinha opined that the injuries found on the appellant were possible while putting somebody on fire by pouring kerosene as in such a situation, flames emerge abruptly. We do not however for a moment suggest that his such conduct by itself points to his guilt but it certainly belies his version of the incident. It is, of course, true that the sister of the deceased has supported the appellant but we cannot lose sight of the fact that she was a witness for the prosecution and was summoned to testify on its behalf. She was however not examined by the prosecution as she was found to have been won over; and then she examined herself as a defence witness. She admitted in her cross-examination that for the purposes of testifying on behalf of the defence, she was not summoned by the Court but was brought by Raj Kumar, the brother of the appellant. Then again we find that she admitted in her deposition that she had been attracted to the spot on hearing the cries of the deceased. Obviously, the cries were raised by the deceased after she was put on fire and, therefore, she could not have been in a position to say how she had been set on fire. 11. Having carefully gone through the evidence on record, we do not find any reason whatsoever to disturb the findings recorded by the trial court and the appellate court that the dying declarations are true and can be made the sole basis of conviction
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10. On perusal of the impugned judgment, we find that both the learned courts below went into the question as to whether the deceased met with homicidal death as alleged by the prosecution or a suicidal death as contended by the appellant and on detailed discussion of the evidence found the story made out by the appellant wholly unacceptable. The most important circumstance which persuades us to disbelieve the version of the appellant is the fact that immediately after the incident, he ran away from the spot. If his version was true, it was expected of him to take the deceased immediately to the hospital for the purpose of treatment. Indeed, he did not even get himself examined for his own burns. While on this point it will be pertinent to mention that Dr (Mrs) Sinha opined that the injuries found on the appellant were possible while putting somebody on fire by pouring kerosene as in such a situation, flames emerge abruptly. We do not however for a moment suggest that his such conduct by itself points to his guilt but it certainly belies his version of the incident. It is, of course, true that the sister of the deceased has supported the appellant but we cannot lose sight of the fact that she was a witness for the prosecution and was summoned to testify on its behalf. She was however not examined by the prosecution as she was found to have been won over; and then she examined herself as a defence witness. She admitted in hern that for the purposes of testifying on behalf of the defence, she was not summoned by the Court but was brought by Raj Kumar, the brother of the appellant. Then again we find that she admitted in her deposition that she had been attracted to the spot on hearing the cries of the deceased. Obviously, the cries were raised by the deceased after she was put on fire and, therefore, she could not have been in a position to say how she had been set on fire11. Having carefully gone through the evidence on record, we do not find any reason whatsoever to disturb the findings recorded by the trial court and the appellate court that the dying declarations are true and can be made the sole basis of conviction
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Hindustan Lever Employees' Union Vs. Hindustan Lever | is to be taken into account as an element against approval of amalgamation would include a mere future possibility of the merger resulting in a situation where the interests of the consumer might be adversely effected. If, however, in future the working of the company turns out to be against the interest of the consumers or the employees, suitable corrective steps may be taken by appropriate authorities in accordance with law. As has been said in the case of Fertilizer Corporation Kamgar Union v. Union of India " . . . it is not a part of the judicial process to examine entrepreneurial activities to ferret out flaws. The court is least equipped for such oversights. Nor, indeed, it is the function of the judges in our constitutional scheme". Now merely because the scheme envisages allotment of 51 per cent. equity shares to Unilever, the scheme cannot be held to be against public interest.Next it was argued on behalf of the employees of TOMCO that the scheme will adversely affect them. This argument is not understandable. The scheme has fully safeguarded the interest of the employees by providing that the terms and conditions of their service will be continuous and uninterrupted and their service conditions will not be prejudicially affected by reason of the scheme. The grievance made, however, is that there is no job security of the workers, after the amalgamation of the two companies. It has been argued that there should have been a clause in the scheme ensuring that no retrenchment will be effected after the amalgamation of the two companies. There was no assurance on behalf of the TOMCO that the workers will never be retrenched. In fact, the performance of TOMCO over the last three years was alarming for the workers. It cannot be said that after the amalgamation they will be in a worse position than they were before the amalgamation. We do not find that the amalgamation has caused any prejudice to the workers of TOMCO. The stand of the employees of HLL is equally incomprehensible. It has been stated that if the TOMCO employees continue to enjoy the terms and conditions of their service as before, then two classes of employees will come into existence. The terms and conditions of HLL employees were much worse than those of TOMCO employees. If there are two sets of terms and conditions under the same company, then a case of discrimination will arise against the HLL employees. We do not find any substance in this contention. The TOMCO employees will continue to remain on the same terms and conditions as before. Because of this arrangement, it cannot be said that prejudice has been caused to HLL employees. They will still be getting what they were getting earlier. TOMCO employees who were working under better terms and conditions, will continue to enjoy their old service conditions under the new management.Fear has been expressed both by TOMCO employees as well as HLL employees that the results of the amalgamation would necessitate streamlining of the operations of the enlarged company and the workers will be prejudiced by it. No one can envisage what will happen in the long run. But on this hypothetical question, the scheme cannot be rejected. As of now, it has not been shown how the workers are prejudiced by the scheme. Lastly, there was a vague allegation of mala fides, because of some trade arrangement between Unilever and Tata Sons Limited. It appears that three properties belonging to Tata Sons Limited, were being used by TOMCO as licensee with no enforceable rights. Occupation was purely permissible, TOMCO never considered these properties or rights relating to these properties as their assets. They were never shown in the balance-sheet of the company. Tata Sons could get back possession of these properties by revoking the licence. It was not necessary for Tata Sons to obtain the help of HLL or Unilever for getting back the possession. Under the scheme, the properties are to be transferred at the market rate, which has to be independently assessed. The determination of the market price has been entrusted by the court to reputed valuers. There is no reason to doubt their competence. No case of mala fides has been established.An argument was also made that as a result of the amalgamation, a large share of the market will be captured by HLL. But there is nothing unlawful or illegal about this. The court will decline to sanction a scheme of merger, if any tax fraud or any other illegality is involved. But that is not the case here. A company may, on its own, grow to capture a large share of the market. But unless it is shown that there is some illegality or fraud involved in the scheme, the court cannot decline to sanction a scheme of amalgamation. It has to be borne in mind that this proposal of amalgamation arose out of a sharp decline in the business of TOMCO. Dr. Dhavan has argued that TOMCO is not yet a sick company. That may be right, but TOMCO at this rate will become a sick company, unless something can be done to improve its performance. In the last two years, it has sold its investments and other properties. If this proposal of amalgamation is not sanctioned, the consequence for TOMCO may be very serious. The shareholders, the employees, the creditors will all suffer. The argument that the company has large assets is really meaningless. Verymany cotton mills and jute mills in India have become sick and are on the verge of liquidation, even though they have large assets. The scheme has been sanctioned almost unanimously by the shareholders, debenture holders, secured creditors, unsecured creditors and preference shareholders of both the companies. There must exist very strong reasons for with holding sanction to such a scheme. Withholding of sanction may turn out to be disastrous for the 60, 000 shareholders of TOMCO and also a large number of its employees. | 0[ds]According to the appellants, the scheme should not be sanctioned for the following reasons(A) Violation of section 393(1)(a) of the Act in not making the required disclosures in the explanatory statement.(B) Valuation of share exchange ratio is grossly loaded in favour of HLL.(C) Ignoring the effect of provisions of the Monopolies and Restrictive Trade Practices Act (the MRTP Act).(D) Interest of employees of both the companies was not adequately taken care of.(E) Preferential allotment of shares at less than market price to Unilever which is not in public interest.(F) Mala fides on account of existence of a quid pro quo between Unilever and Tata Sons Ltd :TOMCO manufactures and sells products like soaps, detergents, toiletries and animal feeds. HLL also manufactures and sells similar products. Both companies have their registered office at Bombay. TOMCO has more than 60, 000 shareholders with the following:22 per cent. : Tata group41 per cent. : Financial institutions (FI)37 per cent. : General publicHLL has nearly 1, 30, 000 shareholders with the following:51 per cent. : Unilever PLCcompany incorporatedunder the English Companies Act, having its registered office at London.16 per cent. : FI33 per cent. : General publicOriginally,parent company of100 per cent. shareholding in HLL.The decline in the business of TOMCO began in2, TOMCO incurred loss of Rs. 13 crores. In the next six months the loss increased to over Rs. 16 crores. The board of directors of TOMCO considered various alternatives for TOMCO including its association with HLL which was a more prosperous and a larger company operating in the same field of activities. Accordingly, the board of directors of TOMCO put up a proposal before the board of directors of HLL. Both availed of the professional service of Mr. Y. H. Malegam, senior partner of S. B. Billimoria and Company, chartered accountants, former President of the Institute of Chartered Accountants and a director of the Reserve Bank of India, for the purposes of evaluation of the share price of the two companies in order to arrive at a fair share exchange ratio. On March 19, 1993, Mr. Malegam gave a valuation report and recommended an exchange ratio of two equity shares of HLL for every fifteen ordinary shares of TOMCO. The board of directors of both the companies at their separate and independent meetings accepted the recommendation and approved the scheme of amalgamation.The scheme, inter alia, provides. for transfer and vesting in HLL of the undertaking and business of TOMCO together with assets and liabilities excluding certain assets and/or licence rights to use certain premises. The salient features of the scheme are to be found in clauses 1.7(d), 4.5, 11 and 13. Clause 1.7(d) sets out the details of excluded properties in which TOMCO has no more than licensee rights. Clause 4 provides for transfer of 5 assets (immovable property) to be transferred to companies nominated by Tata Sons Ltd. at fair market value as will be independently assessed. Clause 5 provides that TOMCO shall (before or after the effective date) transfer to Tata Sons Ltd. or its nominee certain investments/shares owned by TOMCO at the then prevailing market value and in the case of unlisted shares at a value to be determined by Mr. Y. H. Malegam. Clause 11 provides for transfer of employees of TOMCO to HLL on the basis that their service shall be deemed to be continuous and the conditions of service after the transfer shall not be less favourable. Clause 13 refers to preferential allotment to UL of equity shares of the face value of Rs. 10 each at the price of Rs. 105 per share so as to ensure its post amalgamation shareholding level at 51 per cent. of the equity capital ofCompany Application No. 250 of 1993 filed by TOMCO the court passed an order on April 29, 1993, directing the company to call the meetings of the debenture holders, creditors, ordinary shareholders and preference shareholders on June 29, 30, 1993, naming the chairman of the meetings and calling upon him to submit the report withindays after conclusion of the meeting. TOMCO filed the notices and explanatory statements under section 393(1)(a) of the Act along with a proxy form before the Company Registrar, who after considering, all objections settled the explanatory statements and approved the disclosures made therein. Individual notices of the said meetings together with a copy of the scheme of amalgamation, the statement as settled by the Company Registrar and as required under section 393(1)(a) and a proxy form were sent to concerned members as required by law. On June 21, 1993, a joint communication to shareholders of TOMCO and HLL was alsoCompany Application No. 251 of 1993 filed by HLL also, similar directions for convening meetings of the equity shareholders and creditors were issued by the court on April 29, for convening the meeting on June 30, 1993. Similar procedure was followed in this also. On June 30, 1993, shareholders of HLL at their extraordinary general meeting approved by the requisite majority the proposed issue of shares to UL pursuant to section 81(1A) of the Act. The meeting of the creditors was held on July 2, 1993, under the chairmanship of the chairman of HLL, Mr. S. M. Datta, as directed by the court. The meeting of equity shareholders was attended by 2, 528 members including proxies holding 9, 59, 27, 477 equity shares. In all 13 amendments were proposed but more than 96 per cent. voted against the amendments. The creditors also voted for theare unable to uphold any of the above contentions raised by Mr. Dholakia. The overwhelming majority of the shareholders had approved the scheme at the meeting called for this purpose and had approved the exchange ratio. In fact, a proposal for amendment of the exchange ratio was also rejected by an overwhelming majority of 99 per cent. shareholders. There is no reason to presume that the shareholders did not know what they were doing.Being dissatisfied with the valuation made by Mr. Malegam, Mr. Jajoo had insisted on independent valuation and that was one. Two independentF. Ferguson and N. M. Raiji andvalued the shares and come to the conclusion that the exchange ratio of 15 : 2 was correctly determined by Mr. Malegam.Faced with this situation, Mr. Dholakia sought to produce a valuation report made by another valuer, G. Rai and Co., chartered accountants. According to this report, the book value of an equity share of TOMCO as on March 31, 1992, based on the audited and printedof the company was Rs. 57.58 per share ; whereas the book value of an equity share of HLL as on December 31, 1992, based on its audited and printedwas only Rs. 28.84 per share. This, according to Mr. Dholakia, demonstrated the absurdity of the valuation that had been made of the shares of the two companies. The exchange ratio was obviously unfair to the shareholders of TOMCO. This report is produced before this court for the firstthe background of these facts, it cannot be said that the market price as on June 17, 1993, did not reflect the true picture of the value Of the companys shares. If the market price of the shares of the two companies as on June 17, 1993, is compared, the quoted price of HLL was Rs. 375 per share ; whereas the quoted price of TOMCO was Rs. 52.50 per share. The earning per TOMCO share had come down from Rs. 5.19 on March 31, 1991, to Rs. 0.50 on March 31, 1992, and Rs. 0.30 on March 31, 1993. As against this, the dividend paid on HLL shares was 42 per cent. in the year ending on December 31, 1990, 38.50 per cent. on enlarged capital after the issue of bonus shares in the ratio of 1 : 2 in the year ending on December 31, 1991, and 42.00 per cent. again in the year ending on December 31, 1992. It is true that the book value per share of TOMCO was higher than that of HLL. But, even without any bonus issue, the book value of TOMCO shares had come down from Rs. 36.17 per share on March 31, 1991, to Rs. 29.75 per share on March 31, 1993.What emerges from all these figures is that on the market price basis as on June 17, 1993, the last price available before the circular letter dated June 21, 1993, issued to the shareholders of the two companies, the exchange ratio of 2 : 15 was very fair. If the yield method is adopted, the ratio would be astronomically high in favour of HLL. But, if the book value is taken per share, then TOMCO shares would be of higher value than HLLis also difficult to follow the argument that Mr. Malegams report is not acceptable to the TOMCO shareholders, because he was a director of TOMCO. HLL had no difficulty in accepting the share exchange ratio fixed by Mr. Malegam, even though he was a director of TOMCO. If there was any bias, it should have been in favour of TOMCO and not against TOMCO. This exchange ratio was endorsed by two other eminent firms of chartered accountants and also by ICICI. We are unable to uphold the contention that there was any impropriety in the valuation of the shares. The argument based on section 226(3) of the Companies Act is misleading. An officer or an employee of the company may not be appointed as an auditor. An auditor must be independent of the board of directors of the company. He is expected to play the role of aon behalf of thethe company. But, in this case, the two companies are going to be amalgamated, both the companies have chosen Mr. Malegam, a director of TOMCO to fix the share exchange ratio. If HLL agreed to accept Mr. Malegam as the valuer and there was no objection from TOMCO, we fail to see how TOMCO shareholders have been prejudiced.On the question of valuation of shares, another issue has been raised. It was argued that Unilever, a foreign company, held 51 per cent. of the shares of HLL. The scheme envisaged that Unilever will continue to hold 51 per cent. of the shares of HLL even after amalgamation. It was decided to make preferential allotment of shares to Unilever at a price of Rs. 105 per share, for the purpose of maintaining the shareholding of 51 per cent. even after amalgamation. For this purpose, two conditions were imposed (1) Unilever shall not be able to sell the shares allotted to them on preferential basis for a period of seven years. (2) In case Unilever decides to sell these shares after the expiry of seven years but before 12 years after the date of preferential allotment, they shall sell the shares to the Indian shareholders of Unilever at a price 15 times the earning per share calculated on the basis of the last auditedwas contended by Mr. Andhyarujina, and in our opinion rightly, that these two conditions are important depreciatory factors in the preferential allotment of shares to Unilever. The shares issued to Unilever would be franked by restrictive covenants. These shares cannot be compared to the other shares of HLL which could be freely traded in theare unable to uphold this argument. The shareholder has no interest in the assets of the company while the company is in existence. It is only at the stage of liquidation of the company that the shareholders become interested in the assets of the company. The share of any member in a company is movable property and transferable in the manner provided by the articles of the company. This is provided by section 82 of the Companies Act. The definition of "goods" in the Sale of Goods Act, 1930, specifically includes stocks and shares. A share represents a bundle of rights which includes, inter alia, the rights (i) to elect directors ; (ii) to vote on resolutions at meetings of the company ; (iii) to enjoy the profits of the company, if and when dividends are declared and distributed ; and (iv) to share in the surplus, if any, on liquidation. In the case of Bacha F. Guzdar the position of anext point urged by Mr. Dholakia is that proper disclosure of all material facts was not made in the explanatory statement accompanying the proposal to amalgamate TOMCO with HLL. Their shareholders were not given full particulars on the basis of which they couldis another aspect of this case. Should the fact that Mr. Malegam was a director of a company have been disclosed ? Section 393(1)(a) requires particulars to be given of any material interests of some persons connected with the company, including the directors and managing director. The interest that is contemplated in section 393(1)(a) is interest material for consideration of the scheme by the shareholders. It has not been shown that Mr. Malegam had any interest in the scheme. If he had any shares in TOMCO, then his interest would be like that of any other shareholder. His specialised services were utilised for the purpose of arriving at a fair exchange ratio. Both TOMCO and HLL reposed faith in his professional skill. We are of the view that nondisclosure of the fact that Mr. Malegam, a director of the company, had been appointed valuer, will not detract from the scheme in any way. This will also not amount to suppression of any material interest of a director in theargument of Ms. Jaising was supported by Dr. Dhavan, appearingon behalf of theFederation of Tata Oil Mills and Allied Companies Employees Union. It was argued that the scheme will attract the antimerger jurisdiction of the Monopolies and Restrictive Trade Practices Commission straightaway. The two big companies in the same field of consumer articles are merging to ensure that there was no inter se competition. Under the Monopolies and Restrictive Trade Practices Act, injunction can be granted under section 12A during an enquiry even where the impugned trade practice was likely to affect prejudicially the public interest or the interest of the consumers generally. The Commission may, for preventing such a situation from developing, restrain the undertaking involved from carrying on any monopolistic or restrictive unfair trade practice until the enquiry is concluded. It was argued that the judgment under appeal has severely curtailed the jurisdiction of the Monopolies and Restrictive Trade Practices Commission. Lastly, it was contended that preferential allotment of a larger number of shares to Unilever at a throwaway price is a part of the scheme of amalgamation and it will result in Unilevers acquisition of 51 per cent. shares in the enlarged company and thereby Unilever will be able to control the market more effectively.In order to appreciate this argument, it is necessary to refer to the various provisions of the Monopolies and Restrictive Trade Practices Act, 1969. This Act, in consonance with the new economic policy of the Government, has undergone drastic amendment with effect from September 27,intention behind deletion of section 23 is obvious : the require merit of prior approval of the Central Government before sanctioning a scheme of merger or amalgamation has been done away with. The effect of the deletion of this section cannot be nullified by giving an unnatural and artificial interpretation of the words of the statute.It is being argued that even though section 23 has been deleted, there are other provisions in the Act under which it is necessary to have prior sanction of the Central Government or the Monopolies and Restrictive Trade Practices Commission before a scheme of amalgamation or merger can be sanctioned. If this argument is to be accepted, then in the first place it has to be held that the provisions of section 23 were wholly unnecessary and otiose, because even otherwise sanction or clearance of the Central Government was a condition precedent for effecting a scheme of amalgamation or merger. Such a construction must be avoided. The enquiry must be as to what was the mischief which was sought to be cured by the Legislature by the amendment. By deleting section 23, the Legislature removed the requirement of prior approval of the Central Government to a scheme of merger before the court could sanction it.Section 27A and section 27B are the only sections in Chapter III of the Act which have been retained by the Legislature. Section 27 deals with division of undertaking and enables the Commission in the circumstances specified in that section, to pass an order for the division of any trade or undertaking, orundertaking, into such number of undertakings as the circumstances of the case may justify. Section 27A empowers the Central Government to protect severance ofbetween undertakings. Section 27B lays down the manner in which any order passed under section 27 or section 27A shall be carried out. The provisions as to restriction on the acquisition and transfer of shares by certian bodies corporate (section on 28 to section 30G) have been entirely deleted. The intention of the Legislature is clear. A merger or amalgamation is not now subject to the prior approval of the Central Government. But, if the working of the company is found to be prejudicial to public interest or has led to the adoption of monopolistic or restrictive trade practices, the Central Government may, after being satisfied as to the requirements of the section or division of the undertaking, act according to law.We are unable to uphold the contention of Ms. Jaising that the Monopolies and Restrictive Trade Practices Commission erred in law in not passing an order of injunction under section 12A of the Act, restraining the implementation of the scheme of amalgamation. We are of the view that it was not necessary to obtain any prior approval from the Central Government or the Monopolies and Restrictive Trade Practices Commission before the scheme could be sanctioned by the court. This requirement has been specifically deleted from thecontroversy has got another aspect which has been highlighted by Dr. Dhavan and Mr. R. K. Jain. It has been argued that a very large company is coming into existence which will have a substantial share of the market, . A foreign company will have controlling interest in HLL after amalgamation. This is against public policy. In my judgment, what has been expressly authorised by the statute cannot be struck down as being against the public policy. A foreign company under the new economic policy of the Government has been allowed to acquire controlling share of any Indian company. This has been done by express amendment of the Foreign Exchange Regulationcould such a person or company acquire the whole or any part of any undertaking in India of any company carrying on any trade, commerce or industry or purchase the shares in India of any such company. The object of section 29, inter alia, was to ensure that a company (other than a banking company) in which theinterest was more than 40 per cent. must reduce it to a level not exceeding 40 per cent. (Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holdings Ltd. But, now this restriction of 40 per cent. has been removed by an amendment by the Act 29 of 1993. A company in whichinterest is more than 40 per cent. can carry on business without having to obtain permission from the Reserve Bank of India. The underlying idea of this liberalisation is clear.persons were being invited to invest in India and/or in Indian companies. If anyinvests in Indian company, it is but natural that dividends payable by an Indian company will be enjoyed by theAll other rights that a shareholder enjoys by virtue of the shareholding will be enjoyed by theMerely because a foreign shareholder acquires 51 per cent. shares in an Indian company, it cannot be said that this is against public interest or public policy.In this connection it should also be noticed that section 11 of the Foreign Regulation Act, 1973, which had empowered the Reserve Bank to put restrictions on transfer of any asset in India to a person resident outside India or a person intending to become resident outside India has now been repealed with effect from January 8, 1993, by the Amending Act 29 of 1993. Here again the intention of the Legislature is quite clear. The entire object is to allow theto do business in India and to deal with assets in India with greater freedomIn view of all these, it is difficult for us to uphold the contention that the scheme of amalgamation is against public interest. Merely because 51 per cent. of the shares of HLL is being given to a foreign company, the scheme cannot be said to be against public interest. The Foreign Exchange Regulation Act has been amended specifically to encourage foreign participation in business in India. The bar to having more than 40 per cent. shares in an Indian company by ahas been lifted. The Amending Act 29 of 1993 is not under challenge. In order to give greater freedom to companies for doing business in India, the Monopolies and Restrictive Trade Practices Act has been amended. Prior approval of the Government of India is not necessary for amalgamation of companies any more. In fact, it is in public interest that TOMCO with its 60, 000 shareholders and also a very largedoes not deteriorate into a sickit was arguedon behalf of theemployees of TOMCO that the scheme will adversely affect them. This argument is not understandable. The scheme has fully safeguarded the interest of the employees by providing that the terms and conditions of their service will be continuous and uninterrupted and their service conditions will not be prejudicially affected by reason of the scheme. The grievance made, however, is that there is no job security of the workers, after the amalgamation of the two companies. It has been argued that there should have been a clause in the scheme ensuring that no retrenchment will be effected after the amalgamation of the two companies. There was no assuranceon behalf of theTOMCO that the workers will never bedo not find any substance in this contention. The TOMCO employees will continue to remain on the same terms and conditions as before. Because of this arrangement, it cannot be said that prejudice has been caused to HLL employees. They will still be getting what they were getting earlier. TOMCO employees who were working under better terms and conditions, will continue to enjoy their old service conditions under the new management.Fear has been expressed both by TOMCO employees as well as HLL employees that the results of the amalgamation would necessitate streamlining of the operations of the enlarged company and the workers will be prejudiced bythe scheme, the properties are to be transferred at the market rate, which has to be independently assessed. The determination of the market price has been entrusted by the court to reputed valuers. There is no reason to doubt their competence. No case of mala fides has been established.An argument was also made that as a result of the amalgamation, a large share of the market will be captured by HLL. But there is nothing unlawful or illegal about this. The court will decline to sanction a scheme of merger, if any tax fraud or any other illegality is involved. But that is not the case here. A company may, on its own, grow to capture a large share of the market. But unless it is shown that there is some illegality or fraud involved in the scheme, the court cannot decline to sanction a scheme of amalgamation. It has to be borne in mind that this proposal of amalgamation arose out of a sharp decline in the business of TOMCO. Dr. Dhavan has argued that TOMCO is not yet a sick company. That may be right, but TOMCO at this rate will become a sick company, unless something can be done to improve its performance. In the last two years, it has sold its investments and other properties. If this proposal of amalgamation is not sanctioned, the consequence for TOMCO may be very serious. The shareholders, the employees, the creditors will all suffer. The argument that the company has large assets is really meaningless. Verymany cotton mills and jute mills in India have become sick and are on the verge of liquidation, even though they have large assets. The scheme has been sanctioned almost unanimously by the shareholders, debenture holders, secured creditors, unsecured creditors and preference shareholders of both the companies. There must exist very strong reasons for with holding sanction to such a scheme. Withholding of sanction may turn out to be disastrous for the 60, 000 shareholders of TOMCO and also a large number of its employees. | 0 | 15,062 | 4,594 | ### 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:
is to be taken into account as an element against approval of amalgamation would include a mere future possibility of the merger resulting in a situation where the interests of the consumer might be adversely effected. If, however, in future the working of the company turns out to be against the interest of the consumers or the employees, suitable corrective steps may be taken by appropriate authorities in accordance with law. As has been said in the case of Fertilizer Corporation Kamgar Union v. Union of India " . . . it is not a part of the judicial process to examine entrepreneurial activities to ferret out flaws. The court is least equipped for such oversights. Nor, indeed, it is the function of the judges in our constitutional scheme". Now merely because the scheme envisages allotment of 51 per cent. equity shares to Unilever, the scheme cannot be held to be against public interest.Next it was argued on behalf of the employees of TOMCO that the scheme will adversely affect them. This argument is not understandable. The scheme has fully safeguarded the interest of the employees by providing that the terms and conditions of their service will be continuous and uninterrupted and their service conditions will not be prejudicially affected by reason of the scheme. The grievance made, however, is that there is no job security of the workers, after the amalgamation of the two companies. It has been argued that there should have been a clause in the scheme ensuring that no retrenchment will be effected after the amalgamation of the two companies. There was no assurance on behalf of the TOMCO that the workers will never be retrenched. In fact, the performance of TOMCO over the last three years was alarming for the workers. It cannot be said that after the amalgamation they will be in a worse position than they were before the amalgamation. We do not find that the amalgamation has caused any prejudice to the workers of TOMCO. The stand of the employees of HLL is equally incomprehensible. It has been stated that if the TOMCO employees continue to enjoy the terms and conditions of their service as before, then two classes of employees will come into existence. The terms and conditions of HLL employees were much worse than those of TOMCO employees. If there are two sets of terms and conditions under the same company, then a case of discrimination will arise against the HLL employees. We do not find any substance in this contention. The TOMCO employees will continue to remain on the same terms and conditions as before. Because of this arrangement, it cannot be said that prejudice has been caused to HLL employees. They will still be getting what they were getting earlier. TOMCO employees who were working under better terms and conditions, will continue to enjoy their old service conditions under the new management.Fear has been expressed both by TOMCO employees as well as HLL employees that the results of the amalgamation would necessitate streamlining of the operations of the enlarged company and the workers will be prejudiced by it. No one can envisage what will happen in the long run. But on this hypothetical question, the scheme cannot be rejected. As of now, it has not been shown how the workers are prejudiced by the scheme. Lastly, there was a vague allegation of mala fides, because of some trade arrangement between Unilever and Tata Sons Limited. It appears that three properties belonging to Tata Sons Limited, were being used by TOMCO as licensee with no enforceable rights. Occupation was purely permissible, TOMCO never considered these properties or rights relating to these properties as their assets. They were never shown in the balance-sheet of the company. Tata Sons could get back possession of these properties by revoking the licence. It was not necessary for Tata Sons to obtain the help of HLL or Unilever for getting back the possession. Under the scheme, the properties are to be transferred at the market rate, which has to be independently assessed. The determination of the market price has been entrusted by the court to reputed valuers. There is no reason to doubt their competence. No case of mala fides has been established.An argument was also made that as a result of the amalgamation, a large share of the market will be captured by HLL. But there is nothing unlawful or illegal about this. The court will decline to sanction a scheme of merger, if any tax fraud or any other illegality is involved. But that is not the case here. A company may, on its own, grow to capture a large share of the market. But unless it is shown that there is some illegality or fraud involved in the scheme, the court cannot decline to sanction a scheme of amalgamation. It has to be borne in mind that this proposal of amalgamation arose out of a sharp decline in the business of TOMCO. Dr. Dhavan has argued that TOMCO is not yet a sick company. That may be right, but TOMCO at this rate will become a sick company, unless something can be done to improve its performance. In the last two years, it has sold its investments and other properties. If this proposal of amalgamation is not sanctioned, the consequence for TOMCO may be very serious. The shareholders, the employees, the creditors will all suffer. The argument that the company has large assets is really meaningless. Verymany cotton mills and jute mills in India have become sick and are on the verge of liquidation, even though they have large assets. The scheme has been sanctioned almost unanimously by the shareholders, debenture holders, secured creditors, unsecured creditors and preference shareholders of both the companies. There must exist very strong reasons for with holding sanction to such a scheme. Withholding of sanction may turn out to be disastrous for the 60, 000 shareholders of TOMCO and also a large number of its employees.
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the shares in India of any such company. The object of section 29, inter alia, was to ensure that a company (other than a banking company) in which theinterest was more than 40 per cent. must reduce it to a level not exceeding 40 per cent. (Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holdings Ltd. But, now this restriction of 40 per cent. has been removed by an amendment by the Act 29 of 1993. A company in whichinterest is more than 40 per cent. can carry on business without having to obtain permission from the Reserve Bank of India. The underlying idea of this liberalisation is clear.persons were being invited to invest in India and/or in Indian companies. If anyinvests in Indian company, it is but natural that dividends payable by an Indian company will be enjoyed by theAll other rights that a shareholder enjoys by virtue of the shareholding will be enjoyed by theMerely because a foreign shareholder acquires 51 per cent. shares in an Indian company, it cannot be said that this is against public interest or public policy.In this connection it should also be noticed that section 11 of the Foreign Regulation Act, 1973, which had empowered the Reserve Bank to put restrictions on transfer of any asset in India to a person resident outside India or a person intending to become resident outside India has now been repealed with effect from January 8, 1993, by the Amending Act 29 of 1993. Here again the intention of the Legislature is quite clear. The entire object is to allow theto do business in India and to deal with assets in India with greater freedomIn view of all these, it is difficult for us to uphold the contention that the scheme of amalgamation is against public interest. Merely because 51 per cent. of the shares of HLL is being given to a foreign company, the scheme cannot be said to be against public interest. The Foreign Exchange Regulation Act has been amended specifically to encourage foreign participation in business in India. The bar to having more than 40 per cent. shares in an Indian company by ahas been lifted. The Amending Act 29 of 1993 is not under challenge. In order to give greater freedom to companies for doing business in India, the Monopolies and Restrictive Trade Practices Act has been amended. Prior approval of the Government of India is not necessary for amalgamation of companies any more. In fact, it is in public interest that TOMCO with its 60, 000 shareholders and also a very largedoes not deteriorate into a sickit was arguedon behalf of theemployees of TOMCO that the scheme will adversely affect them. This argument is not understandable. The scheme has fully safeguarded the interest of the employees by providing that the terms and conditions of their service will be continuous and uninterrupted and their service conditions will not be prejudicially affected by reason of the scheme. The grievance made, however, is that there is no job security of the workers, after the amalgamation of the two companies. It has been argued that there should have been a clause in the scheme ensuring that no retrenchment will be effected after the amalgamation of the two companies. There was no assuranceon behalf of theTOMCO that the workers will never bedo not find any substance in this contention. The TOMCO employees will continue to remain on the same terms and conditions as before. Because of this arrangement, it cannot be said that prejudice has been caused to HLL employees. They will still be getting what they were getting earlier. TOMCO employees who were working under better terms and conditions, will continue to enjoy their old service conditions under the new management.Fear has been expressed both by TOMCO employees as well as HLL employees that the results of the amalgamation would necessitate streamlining of the operations of the enlarged company and the workers will be prejudiced bythe scheme, the properties are to be transferred at the market rate, which has to be independently assessed. The determination of the market price has been entrusted by the court to reputed valuers. There is no reason to doubt their competence. No case of mala fides has been established.An argument was also made that as a result of the amalgamation, a large share of the market will be captured by HLL. But there is nothing unlawful or illegal about this. The court will decline to sanction a scheme of merger, if any tax fraud or any other illegality is involved. But that is not the case here. A company may, on its own, grow to capture a large share of the market. But unless it is shown that there is some illegality or fraud involved in the scheme, the court cannot decline to sanction a scheme of amalgamation. It has to be borne in mind that this proposal of amalgamation arose out of a sharp decline in the business of TOMCO. Dr. Dhavan has argued that TOMCO is not yet a sick company. That may be right, but TOMCO at this rate will become a sick company, unless something can be done to improve its performance. In the last two years, it has sold its investments and other properties. If this proposal of amalgamation is not sanctioned, the consequence for TOMCO may be very serious. The shareholders, the employees, the creditors will all suffer. The argument that the company has large assets is really meaningless. Verymany cotton mills and jute mills in India have become sick and are on the verge of liquidation, even though they have large assets. The scheme has been sanctioned almost unanimously by the shareholders, debenture holders, secured creditors, unsecured creditors and preference shareholders of both the companies. There must exist very strong reasons for with holding sanction to such a scheme. Withholding of sanction may turn out to be disastrous for the 60, 000 shareholders of TOMCO and also a large number of its employees.
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The State of Punjab Vs. B.K. Dhir | Dipak Misra, CJI. 1. The respondent retired from government service from the post of Additional Director, Panchayats, Punjab on 31.10.1993. During the course of tenure of his service, he had earned his promotions and while working as Deputy Director (Land Development), he was given the officiating charge of the post of Joint Director (RD), Punjab, Chandigarh with effect from 01.05.1993 vide letter dated 30.04.1993. He was conferred with the powers and functions of the Director, Panchayats under the Punjab Gram Panchayat Act, 1952. Subsequently vide order dated 23.06.1993, he was assigned the work of the post of Additional Director, Panchayats. He assumed the said charge on 01.07.1993. Vide notification dated 23.09.1993, the powers of the Director, Panchayats were conferred on him. At the time of attaining the age of superannuation, he was discharging the duties of the post of Additional Director. 2. The grievance of the respondent was that he was not paid the salary while he was officiating in the higher post. As the grievance was not addressed, he approached the High Court in a Writ Petition which was dismissed by the learned single Judge. In intra-court appeal, that is, L.P.A. No. 198 of 2003, the Division Bench placing reliance on Pritam Singh Dhaliwal v. State of Punjab and another, 2004(4) S.C.T. 403 : 2004 (4) RSJ 599 came to hold as follows: Having thoughtfully considered the rival contentions, we find merit in the prayer of the appellant and are of the view that his case is squarely covered by the ratio of the judgment in Pritam Singh Dhaliwals case (supra). It was not a case where the appellant had laid a claim to promotion on the basis of the officiating status conferred on him, but had prayed only for the pay which was admissible to incumbents working on the said posts and performing similar duties. Resultantly, therefore, if the respondents had extracted work from him as Joint Director and Additional Director, he would certainly be entitled to pay as is admissible to the regular incumbents working on the said posts, regardless of any condition that may have been sought to be imposed upon him. Being of this view, the High Court allowed the appeal and directed that the appellant therein would be entitled to salary of posts of Joint Director and Additional Director, Panchayats for the period he worked as such. 3. It is apt to note here that the stand of the State before the Division Bench was that the view of the learned single Judge was correct inasmuch as the orders passed posting the appellant on officiating posts incorporated a condition that he would continue to draw his pay in the pay scale of Deputy Director, Panchayat and no extra financial benefit would be given to him for the officiating charge. Additionally, it was asserted that the officer concerned had submitted to the said terms and conditions and not raised any protest. 4. We have heard Ms. Uttara Babbar, learned counsel for the appellant and Mr. R.K. Kapoor, learned counsel for the respondent. 5. This Court today in the case of The State of Punjab & Another v. Dharam Pal, Civil Appeal No. 1549 of 2011, after referring to the authorities in Smt. P. Grover v. State of Haryana and another, AIR 1983 SC 1060 and Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma and others, 1998(3) S.C.T. 90 : (1998) 5 SCC 87 and appreciating the similar factual matrix has held thus: In the instant case, the Rules do not prohibit grant of pay scale. The decision of the High Court granting the benefit gets support from the principles laid down in Smt. P. Grover (supra) and Hari Om Sharma (supra). As far as the authority in A. Francis (supra) is concerned, we would like to observe that the said case has to rest on its own facts. We may clearly state that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating position. We are disposed to think that the controversy is covered by the ratio laid down in Hari Om Sharma (supra) and resultantly we hold that the view expressed by the High Court is absolute impeccable. 6. The learned counsel for the State of Punjab referring to the Punjab Civil Services Rules (for short, Rules), urged that the respondent was not eligible to hold the post. Be it noted, the said stand was not taken before the High Court and, in any case, we are disposed to think that when the respondent had worked in the officiating post and had been granted the benefits by the High Court, he should be extended the said benefits. Had there been a contest on the score of eligibility of the respondent, possibly the matter would have been different. That not being the fact situation, we are not inclined to interfere with the order passed by the High Court. | 0[ds]5. This Court today in the case of The State of Punjab & Another v. Dharam Pal, Civil Appeal No. 1549 of 2011, after referring to the authorities in Smt. P. Grover v. State of Haryana and another, AIR 1983 SC 1060 andf Engineer, Chandigarh v. Hari Om Sharma and others, 1998(3) S.C.T. 90 : (1998) 5 SCC 87 and appreciating the similar factual matrix has held thus:In the instant case, the Rules do not prohibit grant of pay scale. The decision of the High Court granting the benefit gets support from the principles laid down in Smt. P. Grover (supra) and Hari Om Sharma (supra). As far as the authority in A. Francis (supra) is concerned, we would like to observe that the said case has to rest on its own facts. We may clearly state that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating position. We are disposed to think that the controversy is covered by the ratio laid down in Hari Om Sharma (supra) and resultantly we hold that the view expressed by the High Court is absolute impeccable6. The learned counsel for the State of Punjab referring to the Punjab Civil Services Rules (for short, Rules), urged that the respondent was not eligible to hold theBe it noted, the said stand was not taken before the High Court and, in any case, we are disposed to think that when the respondent had worked in the officiating post and had been granted the benefits by the High Court, he should be extended the said benefits. Had there been a contest on the score of eligibility of the respondent, possibly the matter would have been different. That not being the fact situation, we are not inclined to interfere with the order passed by the High Court. | 0 | 942 | 366 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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Dipak Misra, CJI. 1. The respondent retired from government service from the post of Additional Director, Panchayats, Punjab on 31.10.1993. During the course of tenure of his service, he had earned his promotions and while working as Deputy Director (Land Development), he was given the officiating charge of the post of Joint Director (RD), Punjab, Chandigarh with effect from 01.05.1993 vide letter dated 30.04.1993. He was conferred with the powers and functions of the Director, Panchayats under the Punjab Gram Panchayat Act, 1952. Subsequently vide order dated 23.06.1993, he was assigned the work of the post of Additional Director, Panchayats. He assumed the said charge on 01.07.1993. Vide notification dated 23.09.1993, the powers of the Director, Panchayats were conferred on him. At the time of attaining the age of superannuation, he was discharging the duties of the post of Additional Director. 2. The grievance of the respondent was that he was not paid the salary while he was officiating in the higher post. As the grievance was not addressed, he approached the High Court in a Writ Petition which was dismissed by the learned single Judge. In intra-court appeal, that is, L.P.A. No. 198 of 2003, the Division Bench placing reliance on Pritam Singh Dhaliwal v. State of Punjab and another, 2004(4) S.C.T. 403 : 2004 (4) RSJ 599 came to hold as follows: Having thoughtfully considered the rival contentions, we find merit in the prayer of the appellant and are of the view that his case is squarely covered by the ratio of the judgment in Pritam Singh Dhaliwals case (supra). It was not a case where the appellant had laid a claim to promotion on the basis of the officiating status conferred on him, but had prayed only for the pay which was admissible to incumbents working on the said posts and performing similar duties. Resultantly, therefore, if the respondents had extracted work from him as Joint Director and Additional Director, he would certainly be entitled to pay as is admissible to the regular incumbents working on the said posts, regardless of any condition that may have been sought to be imposed upon him. Being of this view, the High Court allowed the appeal and directed that the appellant therein would be entitled to salary of posts of Joint Director and Additional Director, Panchayats for the period he worked as such. 3. It is apt to note here that the stand of the State before the Division Bench was that the view of the learned single Judge was correct inasmuch as the orders passed posting the appellant on officiating posts incorporated a condition that he would continue to draw his pay in the pay scale of Deputy Director, Panchayat and no extra financial benefit would be given to him for the officiating charge. Additionally, it was asserted that the officer concerned had submitted to the said terms and conditions and not raised any protest. 4. We have heard Ms. Uttara Babbar, learned counsel for the appellant and Mr. R.K. Kapoor, learned counsel for the respondent. 5. This Court today in the case of The State of Punjab & Another v. Dharam Pal, Civil Appeal No. 1549 of 2011, after referring to the authorities in Smt. P. Grover v. State of Haryana and another, AIR 1983 SC 1060 and Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma and others, 1998(3) S.C.T. 90 : (1998) 5 SCC 87 and appreciating the similar factual matrix has held thus: In the instant case, the Rules do not prohibit grant of pay scale. The decision of the High Court granting the benefit gets support from the principles laid down in Smt. P. Grover (supra) and Hari Om Sharma (supra). As far as the authority in A. Francis (supra) is concerned, we would like to observe that the said case has to rest on its own facts. We may clearly state that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating position. We are disposed to think that the controversy is covered by the ratio laid down in Hari Om Sharma (supra) and resultantly we hold that the view expressed by the High Court is absolute impeccable. 6. The learned counsel for the State of Punjab referring to the Punjab Civil Services Rules (for short, Rules), urged that the respondent was not eligible to hold the post. Be it noted, the said stand was not taken before the High Court and, in any case, we are disposed to think that when the respondent had worked in the officiating post and had been granted the benefits by the High Court, he should be extended the said benefits. Had there been a contest on the score of eligibility of the respondent, possibly the matter would have been different. That not being the fact situation, we are not inclined to interfere with the order passed by the High Court.
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5. This Court today in the case of The State of Punjab & Another v. Dharam Pal, Civil Appeal No. 1549 of 2011, after referring to the authorities in Smt. P. Grover v. State of Haryana and another, AIR 1983 SC 1060 andf Engineer, Chandigarh v. Hari Om Sharma and others, 1998(3) S.C.T. 90 : (1998) 5 SCC 87 and appreciating the similar factual matrix has held thus:In the instant case, the Rules do not prohibit grant of pay scale. The decision of the High Court granting the benefit gets support from the principles laid down in Smt. P. Grover (supra) and Hari Om Sharma (supra). As far as the authority in A. Francis (supra) is concerned, we would like to observe that the said case has to rest on its own facts. We may clearly state that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating position. We are disposed to think that the controversy is covered by the ratio laid down in Hari Om Sharma (supra) and resultantly we hold that the view expressed by the High Court is absolute impeccable6. The learned counsel for the State of Punjab referring to the Punjab Civil Services Rules (for short, Rules), urged that the respondent was not eligible to hold theBe it noted, the said stand was not taken before the High Court and, in any case, we are disposed to think that when the respondent had worked in the officiating post and had been granted the benefits by the High Court, he should be extended the said benefits. Had there been a contest on the score of eligibility of the respondent, possibly the matter would have been different. That not being the fact situation, we are not inclined to interfere with the order passed by the High Court.
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S.B. Patwardhan & Others Vs. State Of Maharashtra & Others | since there are no rules in Maharashtra corresponding to those of 1965 in Gujarat. 47. The challenge to rule 33 of the rules dated December 19, 1970 framed by the Government of Maharashtra is based on grounds identical with those on which the validity of rule 8(iii) of the 1960 rules was assai led. The rules of 1970, which supersede the rules of 1960, were framed in order (i) to alter the ratio between direct recruits and promotees which was causing hardship to promotees; (ii) to correct the manifest error resulting from the fact that A large number of temporarily promoted officers both in Class I and Class II could not be confirmed in spite of permanent vacancies being available; and (iii) to ensure the efficiency of the engineering services as a whole. Rule 6 provides briefly that officers who are confirmed in or who have a lien on a post will be members of the Maharashtra Service of Engineers Class I or Class II as the case may be- Those who do not have such a lien and who may be officiating in any one of the cadres of Class I or Class II will be treated as temporary members of their respective cadres. Rules 7 to 11 deal with direct appointments to the posts of Assistant Engineers Class I and Assistant Engineers Class II. By rule 11, such appointees are to be confirmed after a training of one year and a further probation for a period of not less than one year in their respective cadres. Rules 12 to 23 deal with appointments by promotion to Class 11 service. Rule 12(a) as amended by the Government resolution dated January 20, 1972 provides that the cadre of Deputy Engineers will consist of (i) all officers confirmed upto the date of commencement of the rules as Deputy Engineers, whether actually working in or only having a lien on the posts; (ii) all direct recruits who have been appointed upto the date of commencement of the rules on probation against permanent posts of Deputy Engineers (iii) all officers who were officiating as Deputy Engineers on 30th April, 1960, provided their promotions prior to 30th April, 1960 are not deemed to be fortuitous; and (iv) those who were not promoted prior to 30th April, 1960, but who have been included in the Select Lists for the period prior to 30th April 1900 of Overseers fit to be Deputy Engineers. Rule 12(c) fixes the ratio between direct recruits and promotees at 34: 66 instead of 75: 25 as under the 1960 rules. Rule 33 called Seniority, which we have extracted already, provides that there shall be two parts of the seniority list in each cadre in Class I and Class Ii, part A of confirmed officers and part B of those who are not confirmed. In part A the names are to be arranged with reference to the year of confirmation. Confirmed officers are to be treated as senior to the unconfirmed officers in the respective cadres. In part B the names are to be arranged with reference to the date of continuous officiation except where promotion in an officiating capacity is by way of a purely temporary or local arrangement. 48. Rule 33, in so far as it makes seniority dependent upon the fortuitous circumstance of confirmation, is open to the same objection as rule 8(iii) of the 1960 rules and must be struck down for identical reasons. 49. The circulars dated January 12, 1961, March 15, 19 63 and October 18, 1969 which the promotees want to be enforced are issued by the Finance Department and being in the nature of inter-departmental communications, they cannot confer any right on the promotees. The Bombay High Court was therefore right in not accepting this part of the promo- tees case. 50. We also agree with the view taken by the High Courts of Bombay and Gujarat, for the reasons mentioned by them, that the rules under consideration do not in any manner violate the provisions of the Bombay Reorganisation Act, 11 of 1960. The proviso to s. 81 (6) of that Act says that the conditions of service applicable to any person allotted to the States of Maharashtra or Gujarat shall not be varied to his disadvantage except with the previous approval of the Central Government. Neither the rules of 1960 and much less the rules of 1970 alter the conditions of service of Deputy Engineers to their disadvantage within the meaning of the proviso. 51. We are not unmindful of the administrative difficulties in evolving a code of seniority which will satisfy al l conflicting claims. But care ought to be taken to avoid a clear transgression of the equality clauses of the Constitution. The rules framed by the State Governments were constitutionally so vulnerable that the administration was compelled to adopt inconsistent postures from time to time leaving the employees no option save to resort to courts for vindication of their rights. In this process, courts, high and low, had to discharge functions which are best left to the expertise of the appropriate departments of the Government. Having struck down certain rules, we do not want to take upon ourselves the task of framing rules of seniority. That is not the function of this Court and frankly it lacks the expertise and the data to do so. We how. ever hope that the Government will bear in mind the basic principle that if a cadre consists of both permanent and temporary employees, the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees. All other factors being equal, continuous officiation in a non-fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear similar responsibilities. Saying anything beyond this will be trespassing on a field which does not belong to the courts. | 1[ds]Concededly, they are being treated unequally in the matter of seniority because whereas, promotees rank for seniority fro m the date of their confirmation the seniority of direct recruits is reckoned from the date of their initial appointment. The disparity is indeed so glaring that though direct recruits have to successfully complete a two years probationary period before confirmation, even that period is not excluded while counting their seniority. A promotee ranks below the direct recruit even if he has officiated continuously as Deputy Engineer for years before the appointment of the direct recruit is made and even if he, the promotee, could have been confirmed in an available substantive vacancy before the appointment of the direct recruit.25. For facilitating a proper understanding of this problem it is necessary to take birds eye-view of the various rules and resolutions which were passed by the two State Governments, most of which we have already noticed. In this behalf, attention has to be called particularly to: (1) The rules framed by the Government of Bombay on September 21, 1939 under s. 241 (2)(b).of the Government of India Act, 1935; (2) The rules framed by the Government of Bombay on November 21, 1941 regarding fixation of seniority (3) The letter dated January 11, 1949 written by the Chief Secratary, Government of Bombay, to the Honorary Secretary, Bombay Civil Service Association: (4) The Resolution of t he Government Of Bombay dated April 29, 1960 containing Rules regarding recruitment of Class I and Class II Engineering Services and regarding fixation of seniority; (5) The Resolution of the Government of Maharashtra dated July 29, 1963 laying down principles of seniority; (6) The Notification dated August 21, 1965 issued by the Government of Gujarat under the proviso to. art. 309 of the Constitution, introd ucing clause 10 in the Rules of 1960; (7) The Resolution of the Government of Maharashtra dated December 19, 1970 superseding the Resolution of April 29, 1950 and framing new rules of seniority; and (8) The Circulars dated January 12, 1961, March 15, 1963 and October 18, 1968 issued by the Government of Maharashtra, converting a certain number of temporary posts into permanent posts from time to time26. It is common ground that except the Bombay Rules dated September 21, 1939 and the Gujarat Notification dated August 21, 1965 the rest of the rules are in the nature of executive instructions. The Rules of 1941, 1960, 1963, 1965 and 1970 were not framed by the State Government concerned in the exercise of constitutional or statutory power. The Rules of 1960 and 1970 were issued By order and in the name of the Governor,but that does not lend support to the construction faintly suggested on behalf of the direct recruits that the two sets of rules must be deemed to have been made under art. 309 of the Constitution. All executive action of the Government of a Stale is required by art. 166 of the Constitution to be taken in the name of the Governor. The appeals have therefore to be disposed of on the basis that except for the Bombay rules dated September 21, 1939 and the Gujarat Notification dated August 21, 1965 the remaining rules, whether of recruitment or of seniority, are in the nature of executive instructions. These instructions, unlike rules regulating recruitment and conditions of service framed under the proviso to art. 309 of the Constitution or s. 241(2)(b) of the Government of India Act, 1936, cannot have any retrospective effect.28. By its resolution dated November 21, 1941 the Government of Bombay, Political and services Department, directed that in the case of direct recruits appointed substantively on probation, the seniority should be determined with reference to the date of appointment on probation while in the case of officers promoted to substantive vacancies, the seniority should be determined with reference to the date of their promotion to the substantive vacancies, provided there has been no break in their service prior to their confirmation in those vacancies. This Resolution expressly governed the seniority of direct recruits and promoted officers in all provincial services except the Bombay Service of Engineers, Class I Since Deputy Engineers do not belong to Class I Service, their seniority was governed by the Resolution. The wording of the Resolution leaves no doubt that the Government of Bombay applied: two different standards for fixing inter se seniority of direct recruits and promotees appointed as Deputy Engineers. The former were entitled to reckon their seniority with effect from the. date of their initial appointment on probation while the seniority of the latter had to be determined with reference to the date of their promotion to, substantive vacancies, subject to the further qualification that there was no break in their service prior to their confirmation in those vacancies. Thus, for purposes of seniority, the promotees had to depend firstly on the availability of substantive vacancies and secondly on the arbitrary discretion of the Government to confirm or not to confirm them in those vacancies. The fact that a substantive vacancy had arisen and was available did not, proprio vigore, confer any right on t he promotee to be confirmed in that vacancy. The 1941 Rules contained the real germ of discrimination because the promotees had to depend upon the unguided pleasure of the Government for orders of confirmation. In the pre- Constitution era, such hostile treatment had to be suffered silently as a necessary incident of government service.29. It is curious that though the 1941 rules expressly recite that the principles contained therein should be observed in determining the seniority of direct recruits and promoted officers in the provincial Services except the Class I Bombay Service of Engineers, Shri L.M. Ajgaonkar, Deputy Secretary to the Government of Maharashtra says in his affidavit dated July 25, 1973 that in practice the Rules of 1941 were never applied to Class II officers in the Engineering Service and that their seniority used to be determined by the same rules by which the seniority of Class I officers was determined. It is difficult to accept this bare statement which is not even supported by a proper verification. Shri Ajgaonkars affidavit contain s an omni- bus and rolled-up clause of verification at the end, which detracts from the weight of his assertion30. Turning next to the letter dated January 11, 1949 writ- ten by the Chief Secretary, Government of Bombay, to the Honorary Secretary, Bombay Civil Service Association, we find it difficult to uphold the claim of the promotees that the Rules of 1941 were modified by that letter. The letter was written in answer to, the representation dated July 28, 1948 made by the Bombay Civil Service Association to, the Government of Bombay regarding emergency recruitment to the Indian Administrative service and other matters. Paragraph 2 of the letter says that promotees can have no grievance in the matter of seniority since the seniority of a direct recruit to the cadre of Deputy Collectors vis-a-vis a promoted officer is determined not according to the date of confirmation but according to the principles laid down in the Rules of 1941, i.e. with reference to the date of first appointment on probation in the case of direct recruits and of continious officiat ion in the ease of promoted officers. In the first place, this part of the letter on which the promotees rely deals expressly and exclusively with the case of Deputy Collectors which makes it difficult, without any further data, to extend the benefit of what is said therein to Deputy Engineers, working in an entirely different branch of government service. The Chief Secretarys letter is a reply to the Associations letter which the promotees did not produce. The Association had addressed its letter not to the Ministry which handled problems of Engineering Services but to the Ministry of Home and Revenue, the latter of which was concerned to consider the grievance of Deputy Collectors. Lastly the opening sentence of paragraph 2 of the Chief Secretarys reply shows that he was referring to a class of service in which a quota system was t hen operating. Admit- tedly, the quota system properly so-called, did not apply either under the 1939 or under the 1941 rules to Engineering Services. The Chief Secretarys reply cannot, therefore improve the promo tees case. But we disapprove that instead of explaining the circumstances in which the reply was sent, the State Government should merely say through Shri Ajgaon- kars affidavit that it craves leave to refer to the reply for its true effect. The Government could surely have produced the letter of the Association which would have set this part of the controversy at rest.It is patent that this clause is highly discriminatory against promotees and accords a preferential treatment to direct recruits. Its principal justification is said to be that persons who are promoted as officiating Deputy Engineers do not belong to Class II cadre so long as they are not confirmed as Deputy Engineers, whereas direct recruits appointed on probation as Deputy Engineers enter that class or cadre on the very date of their appointment since, on satisfactory completion of probation, confirmation is guaranteed to them. This contention needs careful examination34. On the state of the record in the Bombay and Gujarat appeals, such as it is, we find it difficult to hold that officiating Deputy Engineers do not belong to Class II cadre of the Bombay and Gujarat Service of Engineers. In the Maharashtra writ petition, 815 of 1972, as many as four affidavits. were filed on behalf of the State Government by Shri L.M. Ajgaonkar. These are dated July 25, December 17, December 21, 1973 and January 17, 1974. The question whether officiating Deputy Engineers belong to Class II cadre was of the essence of the dispute in the High Court and was squarely raised by the promotees. Yet, in none of the affidavits did the State Government say that they did not belong to Class II cadre. The last affidavit dated January 17, 1974 was filed after the High Court had dictated its judgment in open Court for three days, and even then the affidavit is significantly silent on the question. The only explanation of this can be that according to the State Government, officiating Deputy Engineers belong to Class II cadre. The resolution dated November 8, 1962 issued by the Government of Maharashtra. Buildings and Communications Department, shows unmistakably that even temporary posts of Deputy Engineers were treated as temporary additions to Class II cadre. An additional Division with four subdivisions was sanctioned by that resolution for construction of a section of National Highway No. 8. Temporary posts had therefore to be created for that project for a period of one year. The resolution says that The posts of Executive Engineers and Deputy Engineers should be treated as temporary additions to their respective cadres36. We cannot ignore these sworn assertions made solemnly by officers of the Maharashtra and Gujarat Governments. The fact that the permanent strength of the. cadre was determined on the basis of permanent posts at any given time, as for example when the Bombay Government passed resolutions on March 22, 1937 and April 13, 1945 cannot detract from the position that even temporary posts of Deputy Engineers were treated as additions, though temporary, to Class II cadre. The government officers who swore the affidavits knew of these resolutions and yet they were instructed to state, a position Which they contended for more then once, that officiating Deputy Engineers belonged to Class II cadre.This contention has to be rejected since the point is concluded by a decision of this Court in P.Y. Joshi v. State of Maharashtra. ([1970] 2 S.C.R. 615)This argument was squarely dealt with and repelled by this Court by holding that the list referred to in clause (ii) of rule 8 is the same list which is referred to in the latter part of clause (i) of that rule which speaks of future recruitment. Consequently, a promoted officiating Deputy Engineer, who belonged to Class II cadre , was held entitled to be considered for promotion under rule 7 to the post of officiating Executive Engineer if he had put in 7 years qualifying service. The eligiblity for promotion did not require that the officiating Deputy Engineer must have put in 7 years service after the date of his confirmation.Though drawn from two different sources, the direct recruits and promotees constitute in the instant case a single integrated cadre. They discharge identical functions, bear similar responsibilities and acquire an equal amount of experience in their respective assignments. And yet clause (iii) of rule 8 provides that probationers recruited during any year shall in a bunch be treated as senior to promo- tees confirmed in that year. The plain arithmetic of this formula is that a direct recruit appointed on probation say in 1966, is to be regarded as senior to a promotee who was appointed as an officiating Deputy Engineer, say in 1956, but was confirmed in 1966 after continuous officiation till then. This formula gives to the direct recruit even the benefit of his one years period of training and another years period of probation for the purposes of seniority and denies to promotees the benefit of their long and valuable experience. If there was some intelligible ground for this differentiation bearing nexus with efficiency in public services, if might perhaps have been possible to sustain such a classification. It is interesting that time and again the State Governments themselves found it difficult to justify the hostile treatment accorded to the promotees. In various affidavits filed on their behalf, entirely contradictory contentions were taken, sometimes in favour of the promotees and sometimes in favour of direct recruits. Instead of adopting an intelligible differentia, rule 8 (iii) leaves seniority to be determined on the sole touchstone of confirmation which Seems to us indefensible. Confirmation is one of the inglorious uncertainities of government service depending neither on efficiency. of the incumbent nor on the availability of substantive vacancies. A glaring instance widely known in a part of our country is of a distinguished member of the judiciary who was confirmed as a District Judge years after he was confirmed as a Judge of the High Court. It is on the record of these writ petitions that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed. It shows that conf irmation does not have to conform to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the government.40. There is no substance in the plea that direct recruits must be given weightage on the ground that the engineering services require the infusion of new blood since it is a highly specialised service. Were it so, the Government would not have itself reduced the proportional representation gradually so as to tilt the scales in favour of promotees. Besides, the plea that engineering service is a specialised service is made not by the Government but by direct recruits who, obviously, are interested in so contending. Nor indeed is the apprehension justified that the higher echelons of engineering services will in course of time be manned predominantly by promotees. Those recruited directly as Assistant Engineers in Class I can, under the rules, officiate as Executive Engineers after 4 years service and are eligible for confirmation as Executive Engineers after a total service of 9 years. Promotees can hardly ever match with that class in terms of seniority.This decision is distinguishable because it is based on the consideration that rule 9 of the Probation Rules of 1957 provided for confirmation of a probationer as a full member of the service in any substantive vacancy in the permanent cadre and that rule established the exclusion of temporary posts from the cadre (p.822). Since the cadre consisted of permanent posts only, confirmation in permanent posts necessarily determined the inter se seniority of officers43. Rule 8(ii) in the instant case adopts the seniority-cum-merit test for preparing the state wise Select List of seniority. And yet clause (iii) rejects the test of merit altogether. The vice of that clause is that it leaves the valuable right of seniority to depend upon the mere accident of confirmation. That, under Arts. 14 and 16 of the Constitution, is impermissible and therefore we must strike down rule g(iii) as being unconstitutional.This contention has not only the merit of plausibility but is apparently supported by an observation in P. Y. Joshi (supra) case. We are however satisfi ed that the Bombay High Court was right in rejecting the contention. The quota system was the very essence of 1960 rules and if it was desired to abrogate that system it is unlikely that the 1963 rules will not even refer to those of 1960. The rules of 1941 having been expressly superseded by the 1963 rules, it is difficult to accept that along with the 1941 rules the resolution of 1963 would not have referred to the 1960 rules also. Secondly, the resolution dated December 19, 1970 of the Government of Maharashtra expressly superseded the 1960 rules which shows that the latter were in force until 1970 and were not superseded by the 1963 rules. In fact, the resolution of 1970 refers to all previous resolutions except the resolution of 1963 which shows that the latter was not applicable to engineering services. It is true that in P.Y. Joshis case (supra) it was observed that the 1963 rules repealed those of 1960 but that is a mere passing observation. The question in regard to such repeal did not arise for decision in that case and it appears that no argument whatsoever was addressed to the Court on this question. None of the considerations mentioned by us were placed before the Court in that case. We therefore agree with the High Court that the 1960 rules were not superseded by those of 1963. We have already indicated that in Gujarat there is no resolution corresponding to that of 1963.46. In the Gujarat writ petitions it was argued that the 1960 rules, though originally in the nature of executive instructions, acquired a statutory force and character by reason of their amendment by the rules of 1965 which were made by the Governor of Gujarat in exercise of the power under the proviso to Art. 30 9 of the Constitution. This argument was rightly rejected by the High Court because all that was done by the rules of 1965 was to introduce a new rule, rule 10, in the 1960 rules. The rules of 1960 were neither reiterated nor re-enacted by the rules of 1965 and the new rule introduced into the rules of 1960 is not of such a character as to compel the inference that the rule making authority had applied its mind to be rules of 1960 with a view to adopting them. In Bachan Singh v. Union of India (A.I.R. [1973] S.C. 441), on which the direct recruits rely, the amendment made vital changes in the main fabric of the original rules which led this Court to the conclusion that the original rules became statutory rules by incorporation. This question is not relevant in the Maharashtra appeal since there are no rules in Maharashtra corresponding to those of 1965 in Gujarat47. The challenge to rule 33 of the rules dated December 19, 1970 framed by the Government of Maharashtra is based on grounds identical with those on which the validity of rule 8(iii) of the 1960 rules was assai led. The rules of 1970, which supersede the rules of 1960, were framed in order (i) to alter the ratio between direct recruits and promotees which was causing hardship to promotees; (ii) to correct the manifest error resulting from the fact that A large number of temporarily promoted officers both in Class I and Class II could not be confirmed in spite of permanent vacancies being available; and (iii) to ensure the efficiency of the engineering services as a whole. Rule 6 provides briefly that officers who are confirmed in or who have a lien on a post will be members of the Maharashtra Service of Engineers Class I or Class II as the case may be- Those who do not have such a lien and who may be officiating in any one of the cadres of Class I or Class II will be treated as temporary members of their respective cadres. Rules 7 to 11 deal with direct appointments to the posts of Assistant Engineers Class I and Assistant Engineers Class II. By rule 11, such appointees are to be confirmed after a training of one year and a further probation for a period of not less than one year in their respective cadres. Rules 12 to 23 deal with appointments by promotion to Class 11 service. Rule 12(a) as amended by the Government resolution dated January 20, 1972 provides that the cadre of Deputy Engineers will consist of (i) all officers confirmed upto the date of commencement of the rules as Deputy Engineers, whether actually working in or only having a lien on the posts; (ii) all direct recruits who have been appointed upto the date of commencement of the rules on probation against permanent posts of Deputy Engineers (iii) all officers who were officiating as Deputy Engineers on 30th April, 1960, provided their promotions prior to 30th April, 1960 are not deemed to be fortuitous; and (iv) those who were not promoted prior to 30th April, 1960, but who have been included in the Select Lists for the period prior to 30th April 1900 of Overseers fit to be Deputy Engineers. Rule 12(c) fixes the ratio between direct recruits and promotees at 34: 66 instead of 75: 25 as under the 1960 rules. Rule 33 called Seniority, which we have extracted already, provides that there shall be two parts of the seniority list in each cadre in Class I and Class Ii, part A of confirmed officers and part B of those who are not confirmed. In part A the names are to be arranged with reference to the year of confirmation. Confirmed officers are to be treated as senior to the unconfirmed officers in the respective cadres. In part B the names are to be arranged with reference to the date of continuous officiation except where promotion in an officiating capacity is by way of a purely temporary or local arrangement.48. Rule 33, in so far as it makes seniority dependent upon the fortuitous circumstance of confirmation, is open to the same objection as rule 8(iii) of the 1960 rules and must be struck down for identical reasons49. The circulars dated January 12, 1961, March 15, 19 63 and October 18, 1969 which the promotees want to be enforced are issued by the Finance Department and being in the nature of inter-departmental communications, they cannot confer any right on the promotees. The Bombay High Court was therefore right in not accepting this part of the promo- tees case50. We also agree with the view taken by the High Courts of Bombay and Gujarat, for the reasons mentioned by them, that the rules under consideration do not in any manner violate the provisions of the Bombay Reorganisation Act, 11 of 1960. The proviso to s. 81 (6) of that Act says that the conditions of service applicable to any person allotted to the States of Maharashtra or Gujarat shall not be varied to his disadvantage except with the previous approval of the Central Government. Neither the rules of 1960 and much less the rules of 1970 alter the conditions of service of Deputy Engineers to their disadvantage within the meaning of the proviso51. We are not unmindful of the administrative difficulties in evolving a code of seniority which will satisfy al l conflicting claims. But care ought to be taken to avoid a clear transgression of the equality clauses of the Constitution. The rules framed by the State Governments were constitutionally so vulnerable that the administration was compelled to adopt inconsistent postures from time to time leaving the employees no option save to resort to courts for vindication of their rights. In this process, courts, high and low, had to discharge functions which are best left to the expertise of the appropriate departments of the Government. Having struck down certain rules, we do not want to take upon ourselves the task of framing rules of seniority. That is not the function of this Court and frankly it lacks the expertise and the data to do so. We how. ever hope that the Government will bear in mind the basic principle that if a cadre consists of both permanent and temporary employees, the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees. All other factors being equal, continuous officiation in a non-fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear similar responsibilities. Saying anything beyond this will be trespassing on a field which does not belong to the courts. | 1 | 12,096 | 4,619 | ### Instruction:
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since there are no rules in Maharashtra corresponding to those of 1965 in Gujarat. 47. The challenge to rule 33 of the rules dated December 19, 1970 framed by the Government of Maharashtra is based on grounds identical with those on which the validity of rule 8(iii) of the 1960 rules was assai led. The rules of 1970, which supersede the rules of 1960, were framed in order (i) to alter the ratio between direct recruits and promotees which was causing hardship to promotees; (ii) to correct the manifest error resulting from the fact that A large number of temporarily promoted officers both in Class I and Class II could not be confirmed in spite of permanent vacancies being available; and (iii) to ensure the efficiency of the engineering services as a whole. Rule 6 provides briefly that officers who are confirmed in or who have a lien on a post will be members of the Maharashtra Service of Engineers Class I or Class II as the case may be- Those who do not have such a lien and who may be officiating in any one of the cadres of Class I or Class II will be treated as temporary members of their respective cadres. Rules 7 to 11 deal with direct appointments to the posts of Assistant Engineers Class I and Assistant Engineers Class II. By rule 11, such appointees are to be confirmed after a training of one year and a further probation for a period of not less than one year in their respective cadres. Rules 12 to 23 deal with appointments by promotion to Class 11 service. Rule 12(a) as amended by the Government resolution dated January 20, 1972 provides that the cadre of Deputy Engineers will consist of (i) all officers confirmed upto the date of commencement of the rules as Deputy Engineers, whether actually working in or only having a lien on the posts; (ii) all direct recruits who have been appointed upto the date of commencement of the rules on probation against permanent posts of Deputy Engineers (iii) all officers who were officiating as Deputy Engineers on 30th April, 1960, provided their promotions prior to 30th April, 1960 are not deemed to be fortuitous; and (iv) those who were not promoted prior to 30th April, 1960, but who have been included in the Select Lists for the period prior to 30th April 1900 of Overseers fit to be Deputy Engineers. Rule 12(c) fixes the ratio between direct recruits and promotees at 34: 66 instead of 75: 25 as under the 1960 rules. Rule 33 called Seniority, which we have extracted already, provides that there shall be two parts of the seniority list in each cadre in Class I and Class Ii, part A of confirmed officers and part B of those who are not confirmed. In part A the names are to be arranged with reference to the year of confirmation. Confirmed officers are to be treated as senior to the unconfirmed officers in the respective cadres. In part B the names are to be arranged with reference to the date of continuous officiation except where promotion in an officiating capacity is by way of a purely temporary or local arrangement. 48. Rule 33, in so far as it makes seniority dependent upon the fortuitous circumstance of confirmation, is open to the same objection as rule 8(iii) of the 1960 rules and must be struck down for identical reasons. 49. The circulars dated January 12, 1961, March 15, 19 63 and October 18, 1969 which the promotees want to be enforced are issued by the Finance Department and being in the nature of inter-departmental communications, they cannot confer any right on the promotees. The Bombay High Court was therefore right in not accepting this part of the promo- tees case. 50. We also agree with the view taken by the High Courts of Bombay and Gujarat, for the reasons mentioned by them, that the rules under consideration do not in any manner violate the provisions of the Bombay Reorganisation Act, 11 of 1960. The proviso to s. 81 (6) of that Act says that the conditions of service applicable to any person allotted to the States of Maharashtra or Gujarat shall not be varied to his disadvantage except with the previous approval of the Central Government. Neither the rules of 1960 and much less the rules of 1970 alter the conditions of service of Deputy Engineers to their disadvantage within the meaning of the proviso. 51. We are not unmindful of the administrative difficulties in evolving a code of seniority which will satisfy al l conflicting claims. But care ought to be taken to avoid a clear transgression of the equality clauses of the Constitution. The rules framed by the State Governments were constitutionally so vulnerable that the administration was compelled to adopt inconsistent postures from time to time leaving the employees no option save to resort to courts for vindication of their rights. In this process, courts, high and low, had to discharge functions which are best left to the expertise of the appropriate departments of the Government. Having struck down certain rules, we do not want to take upon ourselves the task of framing rules of seniority. That is not the function of this Court and frankly it lacks the expertise and the data to do so. We how. ever hope that the Government will bear in mind the basic principle that if a cadre consists of both permanent and temporary employees, the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees. All other factors being equal, continuous officiation in a non-fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear similar responsibilities. Saying anything beyond this will be trespassing on a field which does not belong to the courts.
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relevant in the Maharashtra appeal since there are no rules in Maharashtra corresponding to those of 1965 in Gujarat47. The challenge to rule 33 of the rules dated December 19, 1970 framed by the Government of Maharashtra is based on grounds identical with those on which the validity of rule 8(iii) of the 1960 rules was assai led. The rules of 1970, which supersede the rules of 1960, were framed in order (i) to alter the ratio between direct recruits and promotees which was causing hardship to promotees; (ii) to correct the manifest error resulting from the fact that A large number of temporarily promoted officers both in Class I and Class II could not be confirmed in spite of permanent vacancies being available; and (iii) to ensure the efficiency of the engineering services as a whole. Rule 6 provides briefly that officers who are confirmed in or who have a lien on a post will be members of the Maharashtra Service of Engineers Class I or Class II as the case may be- Those who do not have such a lien and who may be officiating in any one of the cadres of Class I or Class II will be treated as temporary members of their respective cadres. Rules 7 to 11 deal with direct appointments to the posts of Assistant Engineers Class I and Assistant Engineers Class II. By rule 11, such appointees are to be confirmed after a training of one year and a further probation for a period of not less than one year in their respective cadres. Rules 12 to 23 deal with appointments by promotion to Class 11 service. Rule 12(a) as amended by the Government resolution dated January 20, 1972 provides that the cadre of Deputy Engineers will consist of (i) all officers confirmed upto the date of commencement of the rules as Deputy Engineers, whether actually working in or only having a lien on the posts; (ii) all direct recruits who have been appointed upto the date of commencement of the rules on probation against permanent posts of Deputy Engineers (iii) all officers who were officiating as Deputy Engineers on 30th April, 1960, provided their promotions prior to 30th April, 1960 are not deemed to be fortuitous; and (iv) those who were not promoted prior to 30th April, 1960, but who have been included in the Select Lists for the period prior to 30th April 1900 of Overseers fit to be Deputy Engineers. Rule 12(c) fixes the ratio between direct recruits and promotees at 34: 66 instead of 75: 25 as under the 1960 rules. Rule 33 called Seniority, which we have extracted already, provides that there shall be two parts of the seniority list in each cadre in Class I and Class Ii, part A of confirmed officers and part B of those who are not confirmed. In part A the names are to be arranged with reference to the year of confirmation. Confirmed officers are to be treated as senior to the unconfirmed officers in the respective cadres. In part B the names are to be arranged with reference to the date of continuous officiation except where promotion in an officiating capacity is by way of a purely temporary or local arrangement.48. Rule 33, in so far as it makes seniority dependent upon the fortuitous circumstance of confirmation, is open to the same objection as rule 8(iii) of the 1960 rules and must be struck down for identical reasons49. The circulars dated January 12, 1961, March 15, 19 63 and October 18, 1969 which the promotees want to be enforced are issued by the Finance Department and being in the nature of inter-departmental communications, they cannot confer any right on the promotees. The Bombay High Court was therefore right in not accepting this part of the promo- tees case50. We also agree with the view taken by the High Courts of Bombay and Gujarat, for the reasons mentioned by them, that the rules under consideration do not in any manner violate the provisions of the Bombay Reorganisation Act, 11 of 1960. The proviso to s. 81 (6) of that Act says that the conditions of service applicable to any person allotted to the States of Maharashtra or Gujarat shall not be varied to his disadvantage except with the previous approval of the Central Government. Neither the rules of 1960 and much less the rules of 1970 alter the conditions of service of Deputy Engineers to their disadvantage within the meaning of the proviso51. We are not unmindful of the administrative difficulties in evolving a code of seniority which will satisfy al l conflicting claims. But care ought to be taken to avoid a clear transgression of the equality clauses of the Constitution. The rules framed by the State Governments were constitutionally so vulnerable that the administration was compelled to adopt inconsistent postures from time to time leaving the employees no option save to resort to courts for vindication of their rights. In this process, courts, high and low, had to discharge functions which are best left to the expertise of the appropriate departments of the Government. Having struck down certain rules, we do not want to take upon ourselves the task of framing rules of seniority. That is not the function of this Court and frankly it lacks the expertise and the data to do so. We how. ever hope that the Government will bear in mind the basic principle that if a cadre consists of both permanent and temporary employees, the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees. All other factors being equal, continuous officiation in a non-fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear similar responsibilities. Saying anything beyond this will be trespassing on a field which does not belong to the courts.
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M/S KUT ENERGY PVT.LTD Vs. THE AUTHORIZED OFFICER PUNJAB NATIONAL BANK | was rejected. Paragraphs 14, 21, 22 and 23 of the decision of this Court in Axis Bank 3 were as under:-"14. A conspectus of the aforesaid provisions shows that under the scheme of the SARFAESI Act, a secured creditor is entitled to proceed against the borrower for the purpose of recovering his secured debt by taking action against the secured assets, in case the borrower fails to discharge his liability in full within the period specified in the notice issued under Section 13(2) of the Act. It is the mandate of Section 13(3) of the Act that the notice issued under Section 13(2) should contain details of the amount payable by the borrower and also the secured assets intended to be enforced by the secured creditor in the event of non-payment of the dues as per Section 13(2) notice. Thus, the secured creditor is entitled to proceed only against the secured assets mentioned in the notice under Section 13(2). However, in terms of Section 13(11) of the Act, the secured creditor is also free to proceed first against the guarantors or sell the pledged assets. To quote:?13. (11) Without prejudice to the rights conferred on the secured creditor under or by this section, the secured creditor shall be entitled to proceed against the guarantors or sell the pledged assets without first taking any of the measures specified in clauses (a) to (d) of sub-section (4) in relation to the secured assets under this Act.? … … … 21. The appeal under Section 18 of the Act is permissible only against the order passed by DRT under Section 17 of the Act. Under Section 17, the scope of enquiry is limited to the steps taken under Section 13(4) against the secured assets. The partial deposit before DRAT as a precondition for considering the appeal on merits in terms of Section 18 of the Act, is not a secured asset. It is not a secured debt either, since the borrower or the aggrieved person has not created any security interest on such pre-deposit in favour of the secured creditor. If that be so, on disposal of the appeal, either on merits or on withdrawal, or on being rendered infructuous, in case, the appellant makes a prayer for refund of the pre- deposit, the same has to be allowed and the pre- deposit has to be returned to the appellant, unless the Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues, or if there be any attachment on the pre-deposit in any proceedings under Section 13(10) of the Act read with Rule 11 of the Security Interest (Enforcement) Rules, 2002, or if there be any attachment in any other proceedings known to law. 22. We are also unable to agree with the contention that the Bank has a lien on the pre-deposit made under Section 18 of the SARFAESI Act in terms of Section 171 of the Contract Act, 1872. Section 171 of the Contract Act, 1872 on general lien, is in a different context: ?171. General lien of bankers, factors, wharfingers, attorneys and policy-brokers.— Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.? … … 23. Section 171 of the Contract Act, 1872 provides for retention of the goods bailed to the bank by way of security for the general balance of account. The pre- deposit made by a borrower for the purpose of entertaining the appeal under Section 18 of the Act is not with the bank but with the Tribunal. It is not a bailment with the bank as provided under Section 148 of the Contract Act, 1872. Conceptually, it should be an argument available to the depositor, since the goods bailed are to be returned or otherwise disposed of, after the purpose is accomplished as per the directions of the bailor.?11. In the present case the deposit of Rs.40 crores in terms of the order of the High Court on 11.10.2017 was only to show the bona fides of the appellants when a revised offer was made by them. The deposit was not towards satisfaction of the debt in question and that is precisely why the High Court had directed that the deposit would be treated to be a deposit in the Registry of the High Court. Going by the law laid down by this Court in Axis Bank the ‘secured creditor? would be entitled to proceed only against the ‘secured assets? mentioned in the notice under Section 13(2) of the SARFAESI Act. In that case, the deposit was made to maintain an appeal before the DRAT and it was specifically held that the amount representing such deposit was neither a ‘secured asset? nor a ‘secured debt? which could be proceeded against and that the appellant before DRAT was entitled to refund of the amount so deposited. The submission that the bank had general lien over such deposit in terms of Section 171 of the Contract Act, 1872 was rejected as the money was not with the bank but with the DRAT. In the instant case also, the money was expressly to be treated to be with the Registry of the High Court. On the strength of the law laid down by this Court in Axis Bank, in our view, the appellants are entitled to withdraw the sum deposited by them in terms of said order dated 11.10.2017. Their entitlement having been established, the claim of the appellants cannot be negated by any direction that the money may continue to be in deposit with the Bank. | 1[ds]10. In Axis Bank (2016) 12 SCC 18 the questions that arose for consideration were whether the money deposited, in order to maintain an appeal under Section 18 of the SARFAESI Act before the Debts Recovery Appellate Tribunal(‘DRAT?, for short) could be adjusted towards the amount due to the concerned bank and whether the concerned bank had a lien over the money so deposited. The submissions of the concerned bank were recorded in para 4, the definitions of terms ‘secured asset?, ‘secured creditor?, ‘secured debt? and ‘security interest? were set out in paras 9 to 12. It was observed in para 14 that the secured creditor was entitled to proceed ?only against the secured assets? mentioned in the notice under Section 13(2) of the SARFAESI Act. The nature of pre-deposit in terms of Section 18 of the SARFAESI Act was considered in para 21 and it was concluded that such deposit was neither a ‘secured asset? nor was a ‘secured debt? and in the circumstances, the prayer for refund of amount in deposit was required to be allowed. This Court also considered the submission that the concerned bank had lien on the deposited amount in terms of Section 171 of the Contract Act, 1872. The submission was rejected. Paragraphs 14, 21, 22 and 23 of the decision of this Court in Axis Bank 3 were asA conspectus of the aforesaid provisions shows that under the scheme of the SARFAESI Act, a secured creditor is entitled to proceed against the borrower for the purpose of recovering his secured debt by taking action against the secured assets, in case the borrower fails to discharge his liability in full within the period specified in the notice issued under Section 13(2) of the Act. It is the mandate of Section 13(3) of the Act that the notice issued under Section 13(2) should contain details of the amount payable by the borrower and also the secured assets intended to be enforced by the secured creditor in the event of non-payment of the dues as per Section 13(2) notice. Thus, the secured creditor is entitled to proceed only against the secured assets mentioned in the notice under Section 13(2). However, in terms of Section 13(11) of the Act, the secured creditor is also free to proceed first against the guarantors or sell the pledged assets. To(11) Without prejudice to the rights conferred on the secured creditor under or by this section, the secured creditor shall be entitled to proceed against the guarantors or sell the pledged assets without first taking any of the measures specified in clauses (a) to (d) of sub-section (4) in relation to the secured assets under this Act.The appeal under Section 18 of the Act is permissible only against the order passed by DRT under Section 17 of the Act. Under Section 17, the scope of enquiry is limited to the steps taken under Section 13(4) against the secured assets. The partial deposit before DRAT as a precondition for considering the appeal on merits in terms of Section 18 of the Act, is not a secured asset. It is not a secured debt either, since the borrower or the aggrieved person has not created any security interest on such pre-deposit in favour of the secured creditor. If that be so, on disposal of the appeal, either on merits or on withdrawal, or on being rendered infructuous, in case, the appellant makes a prayer for refund of the pre- deposit, the same has to be allowed and the pre- deposit has to be returned to the appellant, unless the Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues, or if there be any attachment on the pre-deposit in any proceedings under Section 13(10) of the Act read with Rule 11 of the Security Interest (Enforcement) Rules, 2002, or if there be any attachment in any other proceedings known to law.We are also unable to agree with the contention that the Bank has a lien on the pre-deposit made under Section 18 of the SARFAESI Act in terms of Section 171 of the Contract Act, 1872. Section 171 of the Contract Act, 1872 on general lien, is in a differentGeneral lien of bankers, factors, wharfingers, attorneys and policy-brokers.— Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.Section 171 of the Contract Act, 1872 provides for retention of the goods bailed to the bank by way of security for the general balance of account. The pre- deposit made by a borrower for the purpose of entertaining the appeal under Section 18 of the Act is not with the bank but with the Tribunal. It is not a bailment with the bank as provided under Section 148 of the Contract Act, 1872. Conceptually, it should be an argument available to the depositor, since the goods bailed are to be returned or otherwise disposed of, after the purpose is accomplished as per the directions of the bailor.In the present case the deposit of Rs.40 crores in terms of the order of the High Court on 11.10.2017 was only to show the bona fides of the appellants when a revised offer was made by them. The deposit was not towards satisfaction of the debt in question and that is precisely why the High Court had directed that the deposit would be treated to be a deposit in the Registry of the Highthe strength of the law laid down by this Court in Axis Bank, in our view, the appellants are entitled to withdraw the sum deposited by them in terms of said order dated 11.10.2017. Their entitlement havingbeen established, the claim of the appellants cannot be negated by any direction that the money may continue to be in deposit with the Bank.In the present case the deposit of Rs.40 crores in terms of the order of the High Court on 11.10.2017 was only to show the bona fides of the appellants when a revised offer was made by them. The deposit was not towards satisfaction of the debt in question and that is precisely why the High Court had directed that the deposit would be treated to be a deposit in the Registry of the Highby the law laid down by this Court in Axis Bankthe ‘secured creditor? would be entitled to proceed only against the ‘secured assets? mentioned in the notice under Section 13(2) of the SARFAESI Act. In that case, the deposit was made to maintain an appeal before the DRAT and it was specifically held that the amount representing such deposit was neither a ‘secured asset? nor a ‘secured debt? which could be proceeded against and that the appellant before DRAT was entitled to refund of the amount so deposited. The submission that the bank had general lien over such deposit in terms of Section 171 of the Contract Act, 1872 was rejected as the money was not with the bank but with the DRAT. In the instant case also, the money was expressly to be treated to be with the Registry of the Highe strength of the law laid down by this Court in Axisin our view, the appellants are entitled to withdraw the sum deposited by them in terms of said order dated 11.10.2017. Their entitlement havingbeen established, the claim of the appellants cannot be negated by any direction that the money may continue to be in deposit with the Bank. | 1 | 3,469 | 1,475 | ### 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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was rejected. Paragraphs 14, 21, 22 and 23 of the decision of this Court in Axis Bank 3 were as under:-"14. A conspectus of the aforesaid provisions shows that under the scheme of the SARFAESI Act, a secured creditor is entitled to proceed against the borrower for the purpose of recovering his secured debt by taking action against the secured assets, in case the borrower fails to discharge his liability in full within the period specified in the notice issued under Section 13(2) of the Act. It is the mandate of Section 13(3) of the Act that the notice issued under Section 13(2) should contain details of the amount payable by the borrower and also the secured assets intended to be enforced by the secured creditor in the event of non-payment of the dues as per Section 13(2) notice. Thus, the secured creditor is entitled to proceed only against the secured assets mentioned in the notice under Section 13(2). However, in terms of Section 13(11) of the Act, the secured creditor is also free to proceed first against the guarantors or sell the pledged assets. To quote:?13. (11) Without prejudice to the rights conferred on the secured creditor under or by this section, the secured creditor shall be entitled to proceed against the guarantors or sell the pledged assets without first taking any of the measures specified in clauses (a) to (d) of sub-section (4) in relation to the secured assets under this Act.? … … … 21. The appeal under Section 18 of the Act is permissible only against the order passed by DRT under Section 17 of the Act. Under Section 17, the scope of enquiry is limited to the steps taken under Section 13(4) against the secured assets. The partial deposit before DRAT as a precondition for considering the appeal on merits in terms of Section 18 of the Act, is not a secured asset. It is not a secured debt either, since the borrower or the aggrieved person has not created any security interest on such pre-deposit in favour of the secured creditor. If that be so, on disposal of the appeal, either on merits or on withdrawal, or on being rendered infructuous, in case, the appellant makes a prayer for refund of the pre- deposit, the same has to be allowed and the pre- deposit has to be returned to the appellant, unless the Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues, or if there be any attachment on the pre-deposit in any proceedings under Section 13(10) of the Act read with Rule 11 of the Security Interest (Enforcement) Rules, 2002, or if there be any attachment in any other proceedings known to law. 22. We are also unable to agree with the contention that the Bank has a lien on the pre-deposit made under Section 18 of the SARFAESI Act in terms of Section 171 of the Contract Act, 1872. Section 171 of the Contract Act, 1872 on general lien, is in a different context: ?171. General lien of bankers, factors, wharfingers, attorneys and policy-brokers.— Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.? … … 23. Section 171 of the Contract Act, 1872 provides for retention of the goods bailed to the bank by way of security for the general balance of account. The pre- deposit made by a borrower for the purpose of entertaining the appeal under Section 18 of the Act is not with the bank but with the Tribunal. It is not a bailment with the bank as provided under Section 148 of the Contract Act, 1872. Conceptually, it should be an argument available to the depositor, since the goods bailed are to be returned or otherwise disposed of, after the purpose is accomplished as per the directions of the bailor.?11. In the present case the deposit of Rs.40 crores in terms of the order of the High Court on 11.10.2017 was only to show the bona fides of the appellants when a revised offer was made by them. The deposit was not towards satisfaction of the debt in question and that is precisely why the High Court had directed that the deposit would be treated to be a deposit in the Registry of the High Court. Going by the law laid down by this Court in Axis Bank the ‘secured creditor? would be entitled to proceed only against the ‘secured assets? mentioned in the notice under Section 13(2) of the SARFAESI Act. In that case, the deposit was made to maintain an appeal before the DRAT and it was specifically held that the amount representing such deposit was neither a ‘secured asset? nor a ‘secured debt? which could be proceeded against and that the appellant before DRAT was entitled to refund of the amount so deposited. The submission that the bank had general lien over such deposit in terms of Section 171 of the Contract Act, 1872 was rejected as the money was not with the bank but with the DRAT. In the instant case also, the money was expressly to be treated to be with the Registry of the High Court. On the strength of the law laid down by this Court in Axis Bank, in our view, the appellants are entitled to withdraw the sum deposited by them in terms of said order dated 11.10.2017. Their entitlement having been established, the claim of the appellants cannot be negated by any direction that the money may continue to be in deposit with the Bank.
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the amount payable by the borrower and also the secured assets intended to be enforced by the secured creditor in the event of non-payment of the dues as per Section 13(2) notice. Thus, the secured creditor is entitled to proceed only against the secured assets mentioned in the notice under Section 13(2). However, in terms of Section 13(11) of the Act, the secured creditor is also free to proceed first against the guarantors or sell the pledged assets. To(11) Without prejudice to the rights conferred on the secured creditor under or by this section, the secured creditor shall be entitled to proceed against the guarantors or sell the pledged assets without first taking any of the measures specified in clauses (a) to (d) of sub-section (4) in relation to the secured assets under this Act.The appeal under Section 18 of the Act is permissible only against the order passed by DRT under Section 17 of the Act. Under Section 17, the scope of enquiry is limited to the steps taken under Section 13(4) against the secured assets. The partial deposit before DRAT as a precondition for considering the appeal on merits in terms of Section 18 of the Act, is not a secured asset. It is not a secured debt either, since the borrower or the aggrieved person has not created any security interest on such pre-deposit in favour of the secured creditor. If that be so, on disposal of the appeal, either on merits or on withdrawal, or on being rendered infructuous, in case, the appellant makes a prayer for refund of the pre- deposit, the same has to be allowed and the pre- deposit has to be returned to the appellant, unless the Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues, or if there be any attachment on the pre-deposit in any proceedings under Section 13(10) of the Act read with Rule 11 of the Security Interest (Enforcement) Rules, 2002, or if there be any attachment in any other proceedings known to law.We are also unable to agree with the contention that the Bank has a lien on the pre-deposit made under Section 18 of the SARFAESI Act in terms of Section 171 of the Contract Act, 1872. Section 171 of the Contract Act, 1872 on general lien, is in a differentGeneral lien of bankers, factors, wharfingers, attorneys and policy-brokers.— Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.Section 171 of the Contract Act, 1872 provides for retention of the goods bailed to the bank by way of security for the general balance of account. The pre- deposit made by a borrower for the purpose of entertaining the appeal under Section 18 of the Act is not with the bank but with the Tribunal. It is not a bailment with the bank as provided under Section 148 of the Contract Act, 1872. Conceptually, it should be an argument available to the depositor, since the goods bailed are to be returned or otherwise disposed of, after the purpose is accomplished as per the directions of the bailor.In the present case the deposit of Rs.40 crores in terms of the order of the High Court on 11.10.2017 was only to show the bona fides of the appellants when a revised offer was made by them. The deposit was not towards satisfaction of the debt in question and that is precisely why the High Court had directed that the deposit would be treated to be a deposit in the Registry of the Highthe strength of the law laid down by this Court in Axis Bank, in our view, the appellants are entitled to withdraw the sum deposited by them in terms of said order dated 11.10.2017. Their entitlement havingbeen established, the claim of the appellants cannot be negated by any direction that the money may continue to be in deposit with the Bank.In the present case the deposit of Rs.40 crores in terms of the order of the High Court on 11.10.2017 was only to show the bona fides of the appellants when a revised offer was made by them. The deposit was not towards satisfaction of the debt in question and that is precisely why the High Court had directed that the deposit would be treated to be a deposit in the Registry of the Highby the law laid down by this Court in Axis Bankthe ‘secured creditor? would be entitled to proceed only against the ‘secured assets? mentioned in the notice under Section 13(2) of the SARFAESI Act. In that case, the deposit was made to maintain an appeal before the DRAT and it was specifically held that the amount representing such deposit was neither a ‘secured asset? nor a ‘secured debt? which could be proceeded against and that the appellant before DRAT was entitled to refund of the amount so deposited. The submission that the bank had general lien over such deposit in terms of Section 171 of the Contract Act, 1872 was rejected as the money was not with the bank but with the DRAT. In the instant case also, the money was expressly to be treated to be with the Registry of the Highe strength of the law laid down by this Court in Axisin our view, the appellants are entitled to withdraw the sum deposited by them in terms of said order dated 11.10.2017. Their entitlement havingbeen established, the claim of the appellants cannot be negated by any direction that the money may continue to be in deposit with the Bank.
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Messrs Isha Marbles Vs. Bihar State Electricity Bo Ard | had not read Section 24 in conjunction with other statutory provisions though they had been not ed, namely, Section 26 of the Supply Act; Section 22 of the Electricity Act and Clause VI of Schedule of the Electricity Act. They clearly postulate the obligation to supply energy for such premises. At the risk of repetition we hold the premises had enjoyed the benefit of electricity. The owner of the premises or even the occupier of the premises, as stated under Rule 2(af) of the Indian Electricity Rules, becomes liable to pay the consumption charges together with other dues, in other words, the liability is in respect of the dues of electricity which came to be supplied pursuant to the contract with the former owner. The discharge of such Liability will be on such owner or occupier.54. From the above it is clear, t he High Court has chosen to construe Section 24 of the Electricity Act correctly. There is no charge over the property. Where that premises comes to be owned or occupied by the auction purchaser, when such purchaser seeks supply of electric energy he cannot be called upon to clear past arrears as a condition precedent to supply.What matters is the contract entered into by the erstwhile consumer with the Board. The Board cannot seek the enforcement of contractual liability against the third party. Of course, the bona fides of the sale may not be relevant.55.The form of requisition relating to the contract is in Annexure VIII prescribed under Clause VI of the Schedule to the Electricity Act. They cannot make the auction purchaser liable. In the case of Isha Marbles we have already extracted the relevant clause wherein the consumer was asked to state his willingness to clear off the arrears to which the answer was in the negative. Therefore, the High Court has rightly held that the auction purchaser, namely, "the writ petitioner before us is ready and willing to enter into a now contract that the auction purchaser does not intend to obtain the continuance of supply of electrical energy on the basis of the old agreement". It Is true that it was the same premises to which reconnection is to be given. Otherwise, with the change of every ownership new connections have to be issued does not appear to be the correct line of app roach as such a situation is brought about by the inaction of the Electricity Board in not recovering the arrears as and when they fall due or not providing itself by adequate deposits.56.This is a case of sale under Section 29 of the Corporation Act. Of course, what the Corporation seeks to recover are the loans advanced by enforcement of a mortgage. Such sale cannot affect the right of the Board to revcover the dues as and when such dues arose, is a point to be put against it.57. Turning to the instruction issued by the Chairman of the Board and a Circular dated 19.1.72 on which the High Court had relied, in our considered view, is again to be weighed against the Electricity Board.58. In view of the above, w e hold that the decision in the Souriyar Luka (supra) on which reliance is placed by Mr. Gopal Subramaniam is correct. The ruling of National Textile Corporation (M.P.) Ltd., Bhopal (supra) rested on the interpretation. of the provisions of Sick Textile Under-takings (Nationalisation) Act (57 of 1974). That is not relevant, The question with which we are concerned did not directly arise in Bihar State Electricity Board, Patna and others v. M/s. Green Rubber Industries and others 1 990 1 SCC 73 1. We do not think it is necessary for us to refer to Rant Chandra Prasad Sharma and others v. State of Vihar and another 1967 AIR(SC) 349 since that case related to co-owner.59. What we have discussed above pears to be the law gatherable from the various provisions which we have detailed out above. It is impossible to impose on the purchasers a liability which was not incurred by them.60. No doubt, from the tabulated statement above set out, the auction purchasers came to purchase the property after disconnection but they cannot be consumer or occupier within the meaning of the above provisions till a contract is entered into.61. We are clearly of the opinion that there is great reason and justice in holding as above. Electricity is public property. Law, in its majesty, behighly protects public property and behoves everyone to respect public property. But, the law, as it stands, is inadequate to enforce the liability of the previous contracting party against the auction purchaser who is a third party and is in no way connected with the previous owner/occupier. It may not be correct to state, if we hold as we have done above, it would permit dishonest consumers transferring their units from one hand to another, from time to time, infinitum without the payment of the dues to the extent of lacs and lacs of rupees and each one of them can easily say that he is not liable for the liability of the predecessor in interest. No doubt, dishonest consumers cannot be allowed to play truant with the public property but inadequacy of the law can hardly be a substitute for overzealousness. The relevant portions of the details of Directorship of Waxpol Industries and Promoters of Neo Chemical and Metal Products Pvt. Ltd. from 1. 1.83 as on date of purchase of mortgaged assets by Waxpol and thereafter (filed as Annexure D to the counter affidavit on behalf of Waxpol Industries) are extracted below:Names of promoters Names of Directors of M/s. Neo Chemicals of Waxpol Industries 1. Indu Gupta w/o 1. R.P. Gupta R.P. Gupta 2. Kusum Garg w/o 2.Parmanand Garg Parmanand Garg 3. Smt. S. Natarajan w/o 3. G. Natarajan G. Natarajan62. Factually, it appears that there is no new entity. Hence, in this case M/s Neo Chemical and Metal Products Pvt. Ltd. would be liable for the past arrears. | 1[ds]47. It is important to note that though the purchaser asked for electricity connection as a new connection it cannot be regarded as a new connection. It is only a reconnection since the premises had already been supplied with electrical energy. Such a supply had been disconnected owing to the default of the consumer. That consumer had bound himself to the Board to pay the dues. He also agreed to abide by the condition as stipulated in the Act and the Rules including the payment of dues.48. Under Section 79 Clause (i) read with Section of the Supply Act it is open to the Board to make Regulations to stipulate the terms and. conditions of supply of electrical energy. One such stipulation is that the consumption charges must be paid.In all the present cases the supply of electricity to a particular premises which had the benefit of enjoying electricity had been disconnected under Section 24 of the Electricity Act. The auction purchasers want reconnection. The Board says no; unless and until the consumption charges in relation to that property which came to be incurred during the ownership of the previous incumbent are cleared off.n all the present cases the supply of electricity to a particular premises which had the benefit of enjoying electricity had been disconnected under Section 24 of the Electricity Act. The auction purchasers want reconnection. The Board says no; unless and until the consumption charges in relation to that property which came to be incurred during the ownership of the previous incumbent are clearedHigh Court, in the main judgment in Suman Packaging (C.W.J.C. No. 5358 of 1972) gives the following reasons for answering the question against the Board:1.Sect ion 24 stipulates discontinuance of supply of electrical energy to the consumer in respect of a sum due from him. We are afraid the High Court had not read Section 24 in conjunction with other statutory provisions though they had been not ed, namely, Section 26 of the Supply Act; Section 22 of the Electricity Act and Clause VI of Schedule of the Electricity Act. They clearly postulate the obligation to supply energy for such premises. At the risk of repetition we hold the premises had enjoyed the benefit of electricity. The owner of the premises or even the occupier of the premises, as stated under Rule 2(af) of the Indian Electricity Rules, becomes liable to pay the consumption charges together with other dues, in other words, the liability is in respect of the dues of electricity which came to be supplied pursuant to the contract with the former owner. The discharge of such Liability will be on such owner or occupier.54. From the above it is clear, t he High Court has chosen to construe Section 24 of the Electricity Act correctly. There is no charge over the property. Where that premises comes to be owned or occupied by the auction purchaser, when such purchaser seeks supply of electric energy he cannot be called upon to clear past arrears as a condition precedent to supply.What matters is the contract entered into by the erstwhile consumer with the Board. The Board cannot seek the enforcement of contractual liability against the third party. Of course, the bona fides of the sale may not be relevant.55.The form of requisition relating to the contract is in Annexure VIII prescribed under Clause VI of the Schedule to the Electricity Act. They cannot make the auction purchaser liable. In the case of Isha Marbles we have already extracted the relevant clause wherein the consumer was asked to state his willingness to clear off the arrears to which the answer was in the negative. Therefore, the High Court has rightly held that the auction purchaser, namely, "the writ petitioner before us is ready and willing to enter into a now contract that the auction purchaser does not intend to obtain the continuance of supply of electrical energy on the basis of the old agreement". It Is true that it was the same premises to which reconnection is to be given. Otherwise, with the change of every ownership new connections have to be issued does not appear to be the correct line of app roach as such a situation is brought about by the inaction of the Electricity Board in not recovering the arrears as and when they fall due or not providing itself by adequate deposits.56.This is a case of sale under Section 29 of the Corporation Act. Of course, what the Corporation seeks to recover are the loans advanced by enforcement of a mortgage. Such sale cannot affect the right of the Board to revcover the dues as and when such dues arose, is a point to be put against it.57. Turning to the instruction issued by the Chairman of the Board and a Circular dated 19.1.72 on which the High Court had relied, in our considered view, is again to be weighed against the Electricity Board.58. In view of the above, w e hold that the decision in the Souriyar Luka (supra) on which reliance is placed by Mr. Gopal Subramaniam is correct. The ruling of National Textile Corporation (M.P.) Ltd., Bhopal (supra) rested on the interpretation. of the provisions of Sick Textile Under-takings (Nationalisation) Act (57 of 1974). That is not relevant, The question with which we are concerned did not directly arise in Bihar State Electricity Board, Patna and others v. M/s. Green Rubber Industries and others 1 990 1 SCC 73 1. We do not think it is necessary for us to refer to Rant Chandra Prasad Sharma and others v. State of Vihar and another 1967 AIR(SC) 349 since that case related to co-owner.59. What we have discussed above pears to be the law gatherable from the various provisions which we have detailed out above. It is impossible to impose on the purchasers a liability which was not incurred by them.60. No doubt, from the tabulated statement above set out, the auction purchasers came to purchase the property after disconnection but they cannot be consumer or occupier within the meaning of the above provisions till a contract is entered into.61. We are clearly of the opinion that there is great reason and justice in holding as above. Electricity is public property. Law, in its majesty, behighly protects public property and behoves everyone to respect public property. But, the law, as it stands, is inadequate to enforce the liability of the previous contracting party against the auction purchaser who is a third party and is in no way connected with the previous owner/occupier. It may not be correct to state, if we hold as we have done above, it would permit dishonest consumers transferring their units from one hand to another, from time to time, infinitum without the payment of the dues to the extent of lacs and lacs of rupees and each one of them can easily say that he is not liable for the liability of the predecessor in interest. No doubt, dishonest consumers cannot be allowed to play truant with the public property but inadequacy of the law can hardly be a substitute for overzealousness. The relevant portions of the details of Directorship of Waxpol Industries and Promoters of Neo Chemical and Metal Products Pvt. Ltd. from 1. 1.83 as on date of purchase of mortgaged assets by Waxpol and thereafter (filed as Annexure D to the counter affidavit on behalf of Waxpol Industries) are extracted below:Names of promoters Names of Directors of M/s. Neo Chemicals of Waxpol Industries 1. Indu Gupta w/o 1. R.P. Gupta R.P. Gupta 2. Kusum Garg w/o 2.Parmanand Garg Parmanand Garg 3. Smt. S. Natarajan w/o 3. G. Natarajan G. Natarajan62. Factually, it appears that there is no new entity. Hence, in this case M/s Neo Chemical and Metal Products Pvt. Ltd. would be liable for the past arrears. | 1 | 7,631 | 1,447 | ### Instruction:
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had not read Section 24 in conjunction with other statutory provisions though they had been not ed, namely, Section 26 of the Supply Act; Section 22 of the Electricity Act and Clause VI of Schedule of the Electricity Act. They clearly postulate the obligation to supply energy for such premises. At the risk of repetition we hold the premises had enjoyed the benefit of electricity. The owner of the premises or even the occupier of the premises, as stated under Rule 2(af) of the Indian Electricity Rules, becomes liable to pay the consumption charges together with other dues, in other words, the liability is in respect of the dues of electricity which came to be supplied pursuant to the contract with the former owner. The discharge of such Liability will be on such owner or occupier.54. From the above it is clear, t he High Court has chosen to construe Section 24 of the Electricity Act correctly. There is no charge over the property. Where that premises comes to be owned or occupied by the auction purchaser, when such purchaser seeks supply of electric energy he cannot be called upon to clear past arrears as a condition precedent to supply.What matters is the contract entered into by the erstwhile consumer with the Board. The Board cannot seek the enforcement of contractual liability against the third party. Of course, the bona fides of the sale may not be relevant.55.The form of requisition relating to the contract is in Annexure VIII prescribed under Clause VI of the Schedule to the Electricity Act. They cannot make the auction purchaser liable. In the case of Isha Marbles we have already extracted the relevant clause wherein the consumer was asked to state his willingness to clear off the arrears to which the answer was in the negative. Therefore, the High Court has rightly held that the auction purchaser, namely, "the writ petitioner before us is ready and willing to enter into a now contract that the auction purchaser does not intend to obtain the continuance of supply of electrical energy on the basis of the old agreement". It Is true that it was the same premises to which reconnection is to be given. Otherwise, with the change of every ownership new connections have to be issued does not appear to be the correct line of app roach as such a situation is brought about by the inaction of the Electricity Board in not recovering the arrears as and when they fall due or not providing itself by adequate deposits.56.This is a case of sale under Section 29 of the Corporation Act. Of course, what the Corporation seeks to recover are the loans advanced by enforcement of a mortgage. Such sale cannot affect the right of the Board to revcover the dues as and when such dues arose, is a point to be put against it.57. Turning to the instruction issued by the Chairman of the Board and a Circular dated 19.1.72 on which the High Court had relied, in our considered view, is again to be weighed against the Electricity Board.58. In view of the above, w e hold that the decision in the Souriyar Luka (supra) on which reliance is placed by Mr. Gopal Subramaniam is correct. The ruling of National Textile Corporation (M.P.) Ltd., Bhopal (supra) rested on the interpretation. of the provisions of Sick Textile Under-takings (Nationalisation) Act (57 of 1974). That is not relevant, The question with which we are concerned did not directly arise in Bihar State Electricity Board, Patna and others v. M/s. Green Rubber Industries and others 1 990 1 SCC 73 1. We do not think it is necessary for us to refer to Rant Chandra Prasad Sharma and others v. State of Vihar and another 1967 AIR(SC) 349 since that case related to co-owner.59. What we have discussed above pears to be the law gatherable from the various provisions which we have detailed out above. It is impossible to impose on the purchasers a liability which was not incurred by them.60. No doubt, from the tabulated statement above set out, the auction purchasers came to purchase the property after disconnection but they cannot be consumer or occupier within the meaning of the above provisions till a contract is entered into.61. We are clearly of the opinion that there is great reason and justice in holding as above. Electricity is public property. Law, in its majesty, behighly protects public property and behoves everyone to respect public property. But, the law, as it stands, is inadequate to enforce the liability of the previous contracting party against the auction purchaser who is a third party and is in no way connected with the previous owner/occupier. It may not be correct to state, if we hold as we have done above, it would permit dishonest consumers transferring their units from one hand to another, from time to time, infinitum without the payment of the dues to the extent of lacs and lacs of rupees and each one of them can easily say that he is not liable for the liability of the predecessor in interest. No doubt, dishonest consumers cannot be allowed to play truant with the public property but inadequacy of the law can hardly be a substitute for overzealousness. The relevant portions of the details of Directorship of Waxpol Industries and Promoters of Neo Chemical and Metal Products Pvt. Ltd. from 1. 1.83 as on date of purchase of mortgaged assets by Waxpol and thereafter (filed as Annexure D to the counter affidavit on behalf of Waxpol Industries) are extracted below:Names of promoters Names of Directors of M/s. Neo Chemicals of Waxpol Industries 1. Indu Gupta w/o 1. R.P. Gupta R.P. Gupta 2. Kusum Garg w/o 2.Parmanand Garg Parmanand Garg 3. Smt. S. Natarajan w/o 3. G. Natarajan G. Natarajan62. Factually, it appears that there is no new entity. Hence, in this case M/s Neo Chemical and Metal Products Pvt. Ltd. would be liable for the past arrears.
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had not read Section 24 in conjunction with other statutory provisions though they had been not ed, namely, Section 26 of the Supply Act; Section 22 of the Electricity Act and Clause VI of Schedule of the Electricity Act. They clearly postulate the obligation to supply energy for such premises. At the risk of repetition we hold the premises had enjoyed the benefit of electricity. The owner of the premises or even the occupier of the premises, as stated under Rule 2(af) of the Indian Electricity Rules, becomes liable to pay the consumption charges together with other dues, in other words, the liability is in respect of the dues of electricity which came to be supplied pursuant to the contract with the former owner. The discharge of such Liability will be on such owner or occupier.54. From the above it is clear, t he High Court has chosen to construe Section 24 of the Electricity Act correctly. There is no charge over the property. Where that premises comes to be owned or occupied by the auction purchaser, when such purchaser seeks supply of electric energy he cannot be called upon to clear past arrears as a condition precedent to supply.What matters is the contract entered into by the erstwhile consumer with the Board. The Board cannot seek the enforcement of contractual liability against the third party. Of course, the bona fides of the sale may not be relevant.55.The form of requisition relating to the contract is in Annexure VIII prescribed under Clause VI of the Schedule to the Electricity Act. They cannot make the auction purchaser liable. In the case of Isha Marbles we have already extracted the relevant clause wherein the consumer was asked to state his willingness to clear off the arrears to which the answer was in the negative. Therefore, the High Court has rightly held that the auction purchaser, namely, "the writ petitioner before us is ready and willing to enter into a now contract that the auction purchaser does not intend to obtain the continuance of supply of electrical energy on the basis of the old agreement". It Is true that it was the same premises to which reconnection is to be given. Otherwise, with the change of every ownership new connections have to be issued does not appear to be the correct line of app roach as such a situation is brought about by the inaction of the Electricity Board in not recovering the arrears as and when they fall due or not providing itself by adequate deposits.56.This is a case of sale under Section 29 of the Corporation Act. Of course, what the Corporation seeks to recover are the loans advanced by enforcement of a mortgage. Such sale cannot affect the right of the Board to revcover the dues as and when such dues arose, is a point to be put against it.57. Turning to the instruction issued by the Chairman of the Board and a Circular dated 19.1.72 on which the High Court had relied, in our considered view, is again to be weighed against the Electricity Board.58. In view of the above, w e hold that the decision in the Souriyar Luka (supra) on which reliance is placed by Mr. Gopal Subramaniam is correct. The ruling of National Textile Corporation (M.P.) Ltd., Bhopal (supra) rested on the interpretation. of the provisions of Sick Textile Under-takings (Nationalisation) Act (57 of 1974). That is not relevant, The question with which we are concerned did not directly arise in Bihar State Electricity Board, Patna and others v. M/s. Green Rubber Industries and others 1 990 1 SCC 73 1. We do not think it is necessary for us to refer to Rant Chandra Prasad Sharma and others v. State of Vihar and another 1967 AIR(SC) 349 since that case related to co-owner.59. What we have discussed above pears to be the law gatherable from the various provisions which we have detailed out above. It is impossible to impose on the purchasers a liability which was not incurred by them.60. No doubt, from the tabulated statement above set out, the auction purchasers came to purchase the property after disconnection but they cannot be consumer or occupier within the meaning of the above provisions till a contract is entered into.61. We are clearly of the opinion that there is great reason and justice in holding as above. Electricity is public property. Law, in its majesty, behighly protects public property and behoves everyone to respect public property. But, the law, as it stands, is inadequate to enforce the liability of the previous contracting party against the auction purchaser who is a third party and is in no way connected with the previous owner/occupier. It may not be correct to state, if we hold as we have done above, it would permit dishonest consumers transferring their units from one hand to another, from time to time, infinitum without the payment of the dues to the extent of lacs and lacs of rupees and each one of them can easily say that he is not liable for the liability of the predecessor in interest. No doubt, dishonest consumers cannot be allowed to play truant with the public property but inadequacy of the law can hardly be a substitute for overzealousness. The relevant portions of the details of Directorship of Waxpol Industries and Promoters of Neo Chemical and Metal Products Pvt. Ltd. from 1. 1.83 as on date of purchase of mortgaged assets by Waxpol and thereafter (filed as Annexure D to the counter affidavit on behalf of Waxpol Industries) are extracted below:Names of promoters Names of Directors of M/s. Neo Chemicals of Waxpol Industries 1. Indu Gupta w/o 1. R.P. Gupta R.P. Gupta 2. Kusum Garg w/o 2.Parmanand Garg Parmanand Garg 3. Smt. S. Natarajan w/o 3. G. Natarajan G. Natarajan62. Factually, it appears that there is no new entity. Hence, in this case M/s Neo Chemical and Metal Products Pvt. Ltd. would be liable for the past arrears.
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Kesar Singh Vs. Balwant Singh | of Maharaja Sher Singh was never disputed. If, therefore, the Court now holds at the instance of the appellant or the other defendant that the respondent is not the descendant of Maharaja Sher Singh it will be questioning the decision of the tribunal and passing an order or granting a decree which would be inconsistent with the decision of the tribunal. Sections 36 and 37 bar any such order or decree by the court and therefore the appellant and the other defendant are naturally debarred from raising a point the decision of which is barred under Ss. 36 and 37 of the Act. We are therefore of opinion that the view taken by the High Court in its judgment after remand on issue No. 6 is correct and it is not open to the appellant to raise the question whether the respondent is a descendant of Maharaja Sher Singh and as such entitled to maintain the present suit. 16. This brings us to the question of limitation, which was decided by the High Court on the earlier occasion when the remand was made. The case of the appellant in that connection is that he was in adverse possession and the respondent had been out of possession for over 12 years before the suit was filed in 1943 and therefore the suit should be dismissed as barred under Art. 144 as well as Art. 142 of the Limitation Act. The appellant contends that the plaint itself shows that the respondent had been dispossessed more than 12 years before the present suit was filed and therefore the suit must fall on the ground of limitation. We agree with the High Court however that a careful reading of paras 3 and 4 of the plaint shows that the respondents case was that he and his uncle were managers of the bunga as descendants of Maharaja Sher Singh and that the appellant and the other defendant were in possession as their servants or servitors. But as these servants had started denying the title of the respondent and his uncle they do not want to keep them any longer in their service. They therefore filed the suit for ejectment of these servants and for possession of the property. The High Court therefore was right in the view it took that it was a case of permissive possession arising in favour of the appellant and the other defendant. Whatever may be the position about the actual possession, it appears from the decision of the tribunal that the claim of the appellant and the other defendant before the tribunal in 1933 was that they were bungais i. e. servitors; and this was also the view of the High Court in the appeal from the decision of the tribunal where the High Court said that "no doubt Kesar Singh, his father and grandfather have been Bungais of the bunga, but there is no reliable evidence of their having set up a title adverse to the institution or that the nature of this bunga is exceptional." Similarly Jaswant Singh also claimed to be a mere bungai before the tribunal by virtue of his father being adopted by Natha Singh who was undoubtedly a bungai.In these circumstances, from the decision of the tribunal in favour of the respondent in 1933, it appears that no hostile title adverse to the respondent was ever set up by the appellant and the other defendant before that decision. In consequence it cannot be said that adverse possession over 12 years has been established before June 1, 1943 when the present suit was filed As originally the possession of the appellant and the other defendant was clearly permissive, there can be no question of the application of Art. 142 in the present case and the appellant could only succeed if he could prove adverse possession under Art. 144 for over 12 years. The decision of the High Court on the question of limitation is correct. 17. Lastly it is urged that the respondent had applied under S. 25-A to the tribunal but allowed that suit to be dismissed for default and therefore it was not open to him to file the present suit for possession. It is enough to say that though this point was raised in the written statement no issue was framed with respect to it by the trial court. When the matter was raised in the High Court on the first occasion it held that as no issue had been framed and no evidence had been led by the parties as to whether the cause of action was or was not the same and no copy of the plaint in the earlier proceeding had been filed the question whether the present suit was barred by virtue of O. IX R. 9 of the Code of Civil Procedure could not be gone into and it must be held that it was not barred under O. IX R. 9.In view of what the High Court has said we are of opinion that it is not open to the appellant to raise this point before us when he had failed to get an issue framed on it and no evidence was led in that behalf. 18. As the appellant cannot challenge that the respondent is the descendant of Maharaja Sher Singh the respondent would have a right to maintain the suit. Further as the appellant and the other defendant are servitors and they have undoubtedly set up a title after the decision of the tribunal adverse to the respondents right as found by the tribunal, the respondent is entitled to eject the appellant and the other defendant, for servitors cannot claim to remain in possession after they set up an adverse title with respect to the property of which they are servitors. In view of our decision on issue No. 6, it is unnecessary to consider issue No. 2 on which a finding was called for by this Court by its interlocutory judgment in 1958. | 0[ds]10. Before we go into the effect of the findings now submitted by the High Court on the direction of this Court, it is in our opinion necessary to decide issue No. 6, for if that issue is decided in favour of the respondent it will not be open to the appellant or the other defendant to question that the respondent was the descendant of Maharaja Sher Singh and consequently had the right to maintain the suit12. It is clear, therefore, from the scheme of the Act that it gives jurisdiction to the tribunal to decide all claims to properties which are claimed to be the properties of a Sikh Gurdwara mentioned in Sch. I to the Act. It is true that where a property is notified in the list under S. 3 each person who has claim to that property has to make a separate claim on his own behalf which is forwarded to the tribunal for decision. It is clear, however from the provisions of S. 15 that where a tribunal is dealing with a property which is claimed to belong to a Sikh, Gurdwara and in respect of which counter claims have been made by other persons, it has jurisdiction to decide to whom that property belongs, whether to the Sikh Gurdwara or to an, other person claiming it and for that purpose it can consolidate the proceedings resulting from different claims to the same property so that all disputes with regard to that property can be decided in one consolidated proceeding. Further it has the power under S. 15 to inquire by public advertisement or otherwise if any person desires to be made a party to any proceeding and may join in any proceeding any person who it considers ought to be made a party thereto. Where, therefore, a number of claims have been made under S. 5 to the same property which is claimed under S. 3 to belong to a Sikh Gurdwara the tribunal can consolidate all such claims under S. 15 and treat all the claims as one proceeding. Where, therefore, the tribunal consolidates the claims in one proceeding each claimant even though he had made a claim for himself as against the Sikh Gurdwara would be entitled under S. 15 to contest the claim not only of the Sikh Gurdwara but of any other person who is making a rival claim to the property as against the Sikh Gurdwara. It is also clear from S. 25A that in deciding the claims made under S. 5 it is open to the tribunal not only to decide whether the property to which claims have been made belongs to the Gurdwara but also to decide whether it belongs to any of the claimants. It seems, therefore, that the Act has given full power to the tribunal to decide between the rival claims of the Sikh Gurdwara and other claimants under S. 5 and empowers it not only to give a decision as to the rights of the Sikh Gurdwara but also of other claimants. Further there is provision in S. 34 of the Act for appeal to the High Court by any party aggrieved by a final order passed by a tribunal in matters decided by it under the provisions of the Act. The words in S. 34(1) are very wide and where claims are consolidated in one proceeding under S. 15 and the claim of the Gurdwara and the rival claims of various claimants under S. 5 with respect to one property are decided in a consolidated proceeding; it is clear that any party who was party to the consolidated proceeding would be entitled to appeal against the order of the tribunal if it went against it and was in favour of the Sikh Gurdwara or of any other claimant in the consolidated proceeding. Section 36 thereafter bars a suit in any Court to question any decision of a tribunal in exercise of any powers vested in it by or under the Act. Section 37 bars any Court from passing any order or granting any decree or executing wholly or partly any order or decree, if the effect of such order, or decree or execution would he inconsistent with any decision of a tribunal or any order passed on appeal therefrom under the provisions of the Act. It is not in dispute that this bunga was notified under S. 3 of the Act as property claimed by the Golden TempleThis is clear from an earlier part of the decision of the tribunal where in dealing with the question of ownership of Balwant Singh, it has remarked that "it is hard to see that Balwant Singh has any personal or private rights over the bunga in the presence of his father Raghbir Singh". Though, therefore the respondent was held by the majority of the tribunal not to have rights in himself because his father was alive, the tribunal never the less went into the question of the rights of Maharaja Sher Singhs descendant at the instance of Balwant Singh treating him as a representative of the descendants. This is also clear from the form in which the issue No. 3 was framed, namely, "Was the bunga in dispute built by Maharaja Sher Singh, ancestor of Balwant Singh petitioner in 1629, and has been in his possession? What rights has he been exercising over it?" It is clear, therefore, that before the tribunal Balwant Singhs claim as a descendant of Maharaja Sher Singh was not challenged by the appellant or the other defendant; and the tribunal found in favour of the descendants of Maharaja Sher Singh at the instance of Balwant Singh. It was in our opinion open to the appellant and the other defendant to challenge this finding in favour of the descendants of Maharaja Sher Singh at the instance of Balwant Singh under S. 34 of the Act as all the claims were consolidated under S. 15 and treated as one case relating to one property. But though the appellant and the other defendant went in appeal to the High Court they do not seem to have challenged the finding of the tribunal in favour of the descendants of Maharaja Sher Singh. Further the Golden Temple also went in appeal, but it also did not challenge the decision in favour of the descendants of Maharaja Sher Singh. That decision has, therefore, become final and according to that decision the descendants of Maharaja Sher Singh are the managers of this bunga. That decision was given at the instance of the respondent whose claim in those proceedings based on his being a descendant of Maharaja Sher Singh was never challenged on the ground that he was not the descendant of Maharaja Sher SinghIf, therefore, the Court now holds at the instance of the appellant or the other defendant that the respondent is not the descendant of Maharaja Sher Singh it will be questioning the decision of the tribunal and passing an order or granting a decree which would be inconsistent with the decision of the tribunal. Sections 36 and 37 bar any such order or decree by the court and therefore the appellant and the other defendant are naturally debarred from raising a point the decision of which is barred under Ss. 36 and 37 of the Act. We are therefore of opinion that the view taken by the High Court in its judgment after remand on issue No. 6 is correct and it is not open to the appellant to raise the question whether the respondent is a descendant of Maharaja Sher Singh and as such entitled to maintain the present suitWe agree with the High Court however that a careful reading of paras 3 and 4 of the plaint shows that the respondents case was that he and his uncle were managers of the bunga as descendants of Maharaja Sher Singh and that the appellant and the other defendant were in possession as their servants or servitors. But as these servants had started denying the title of the respondent and his uncle they do not want to keep them any longer in their service. They therefore filed the suit for ejectment of these servants and for possession of the property. The High Court therefore was right in the view it took that it was a case of permissive possession arising in favour of the appellant and the other defendant. Whatever may be the position about the actual possession, it appears from the decision of the tribunal that the claim of the appellant and the other defendant before the tribunal in 1933 was that they were bungais i. e. servitors; and this was also the view of the High Court in the appeal from the decision of the tribunal where the High Court said that "no doubt Kesar Singh, his father and grandfather have been Bungais of the bunga, but there is no reliable evidence of their having set up a title adverse to the institution or that the nature of this bunga is exceptional." Similarly Jaswant Singh also claimed to be a mere bungai before the tribunal by virtue of his father being adopted by Natha Singh who was undoubtedly a bungai.In these circumstances, from the decision of the tribunal in favour of the respondent in 1933, it appears that no hostile title adverse to the respondent was ever set up by the appellant and the other defendant before that decision. In consequence it cannot be said that adverse possession over 12 years has been established before June 1, 1943 when the present suit was filed As originally the possession of the appellant and the other defendant was clearly permissive, there can be no question of the application of Art. 142 in the present case and the appellant could only succeed if he could prove adverse possession under Art. 144 for over 12 years. The decision of the High Court on the question of limitation is correctIt is enough to say that though this point was raised in the written statement no issue was framed with respect to it by the trial court. When the matter was raised in the High Court on the first occasion it held that as no issue had been framed and no evidence had been led by the parties as to whether the cause of action was or was not the same and no copy of the plaint in the earlier proceeding had been filed the question whether the present suit was barred by virtue of O. IX R. 9 of the Code of Civil Procedure could not be gone into and it must be held that it was not barred under O. IX R. 9.In view of what the High Court has said we are of opinion that it is not open to the appellant to raise this point before us when he had failed to get an issue framed on it and no evidence was led in that behalf18. As the appellant cannot challenge that the respondent is the descendant of Maharaja Sher Singh the respondent would have a right to maintain the suit. Further as the appellant and the other defendant are servitors and they have undoubtedly set up a title after the decision of the tribunal adverse to the respondents right as found by the tribunal, the respondent is entitled to eject the appellant and the other defendant, for servitors cannot claim to remain in possession after they set up an adverse title with respect to the property of which they are servitors. In view of our decision on issue No. 6, it is unnecessary to consider issue No. 2 on which a finding was called for by this Court by its interlocutory judgment in 1958. | 0 | 6,575 | 2,067 | ### Instruction:
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of Maharaja Sher Singh was never disputed. If, therefore, the Court now holds at the instance of the appellant or the other defendant that the respondent is not the descendant of Maharaja Sher Singh it will be questioning the decision of the tribunal and passing an order or granting a decree which would be inconsistent with the decision of the tribunal. Sections 36 and 37 bar any such order or decree by the court and therefore the appellant and the other defendant are naturally debarred from raising a point the decision of which is barred under Ss. 36 and 37 of the Act. We are therefore of opinion that the view taken by the High Court in its judgment after remand on issue No. 6 is correct and it is not open to the appellant to raise the question whether the respondent is a descendant of Maharaja Sher Singh and as such entitled to maintain the present suit. 16. This brings us to the question of limitation, which was decided by the High Court on the earlier occasion when the remand was made. The case of the appellant in that connection is that he was in adverse possession and the respondent had been out of possession for over 12 years before the suit was filed in 1943 and therefore the suit should be dismissed as barred under Art. 144 as well as Art. 142 of the Limitation Act. The appellant contends that the plaint itself shows that the respondent had been dispossessed more than 12 years before the present suit was filed and therefore the suit must fall on the ground of limitation. We agree with the High Court however that a careful reading of paras 3 and 4 of the plaint shows that the respondents case was that he and his uncle were managers of the bunga as descendants of Maharaja Sher Singh and that the appellant and the other defendant were in possession as their servants or servitors. But as these servants had started denying the title of the respondent and his uncle they do not want to keep them any longer in their service. They therefore filed the suit for ejectment of these servants and for possession of the property. The High Court therefore was right in the view it took that it was a case of permissive possession arising in favour of the appellant and the other defendant. Whatever may be the position about the actual possession, it appears from the decision of the tribunal that the claim of the appellant and the other defendant before the tribunal in 1933 was that they were bungais i. e. servitors; and this was also the view of the High Court in the appeal from the decision of the tribunal where the High Court said that "no doubt Kesar Singh, his father and grandfather have been Bungais of the bunga, but there is no reliable evidence of their having set up a title adverse to the institution or that the nature of this bunga is exceptional." Similarly Jaswant Singh also claimed to be a mere bungai before the tribunal by virtue of his father being adopted by Natha Singh who was undoubtedly a bungai.In these circumstances, from the decision of the tribunal in favour of the respondent in 1933, it appears that no hostile title adverse to the respondent was ever set up by the appellant and the other defendant before that decision. In consequence it cannot be said that adverse possession over 12 years has been established before June 1, 1943 when the present suit was filed As originally the possession of the appellant and the other defendant was clearly permissive, there can be no question of the application of Art. 142 in the present case and the appellant could only succeed if he could prove adverse possession under Art. 144 for over 12 years. The decision of the High Court on the question of limitation is correct. 17. Lastly it is urged that the respondent had applied under S. 25-A to the tribunal but allowed that suit to be dismissed for default and therefore it was not open to him to file the present suit for possession. It is enough to say that though this point was raised in the written statement no issue was framed with respect to it by the trial court. When the matter was raised in the High Court on the first occasion it held that as no issue had been framed and no evidence had been led by the parties as to whether the cause of action was or was not the same and no copy of the plaint in the earlier proceeding had been filed the question whether the present suit was barred by virtue of O. IX R. 9 of the Code of Civil Procedure could not be gone into and it must be held that it was not barred under O. IX R. 9.In view of what the High Court has said we are of opinion that it is not open to the appellant to raise this point before us when he had failed to get an issue framed on it and no evidence was led in that behalf. 18. As the appellant cannot challenge that the respondent is the descendant of Maharaja Sher Singh the respondent would have a right to maintain the suit. Further as the appellant and the other defendant are servitors and they have undoubtedly set up a title after the decision of the tribunal adverse to the respondents right as found by the tribunal, the respondent is entitled to eject the appellant and the other defendant, for servitors cannot claim to remain in possession after they set up an adverse title with respect to the property of which they are servitors. In view of our decision on issue No. 6, it is unnecessary to consider issue No. 2 on which a finding was called for by this Court by its interlocutory judgment in 1958.
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0
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this finding in favour of the descendants of Maharaja Sher Singh at the instance of Balwant Singh under S. 34 of the Act as all the claims were consolidated under S. 15 and treated as one case relating to one property. But though the appellant and the other defendant went in appeal to the High Court they do not seem to have challenged the finding of the tribunal in favour of the descendants of Maharaja Sher Singh. Further the Golden Temple also went in appeal, but it also did not challenge the decision in favour of the descendants of Maharaja Sher Singh. That decision has, therefore, become final and according to that decision the descendants of Maharaja Sher Singh are the managers of this bunga. That decision was given at the instance of the respondent whose claim in those proceedings based on his being a descendant of Maharaja Sher Singh was never challenged on the ground that he was not the descendant of Maharaja Sher SinghIf, therefore, the Court now holds at the instance of the appellant or the other defendant that the respondent is not the descendant of Maharaja Sher Singh it will be questioning the decision of the tribunal and passing an order or granting a decree which would be inconsistent with the decision of the tribunal. Sections 36 and 37 bar any such order or decree by the court and therefore the appellant and the other defendant are naturally debarred from raising a point the decision of which is barred under Ss. 36 and 37 of the Act. We are therefore of opinion that the view taken by the High Court in its judgment after remand on issue No. 6 is correct and it is not open to the appellant to raise the question whether the respondent is a descendant of Maharaja Sher Singh and as such entitled to maintain the present suitWe agree with the High Court however that a careful reading of paras 3 and 4 of the plaint shows that the respondents case was that he and his uncle were managers of the bunga as descendants of Maharaja Sher Singh and that the appellant and the other defendant were in possession as their servants or servitors. But as these servants had started denying the title of the respondent and his uncle they do not want to keep them any longer in their service. They therefore filed the suit for ejectment of these servants and for possession of the property. The High Court therefore was right in the view it took that it was a case of permissive possession arising in favour of the appellant and the other defendant. Whatever may be the position about the actual possession, it appears from the decision of the tribunal that the claim of the appellant and the other defendant before the tribunal in 1933 was that they were bungais i. e. servitors; and this was also the view of the High Court in the appeal from the decision of the tribunal where the High Court said that "no doubt Kesar Singh, his father and grandfather have been Bungais of the bunga, but there is no reliable evidence of their having set up a title adverse to the institution or that the nature of this bunga is exceptional." Similarly Jaswant Singh also claimed to be a mere bungai before the tribunal by virtue of his father being adopted by Natha Singh who was undoubtedly a bungai.In these circumstances, from the decision of the tribunal in favour of the respondent in 1933, it appears that no hostile title adverse to the respondent was ever set up by the appellant and the other defendant before that decision. In consequence it cannot be said that adverse possession over 12 years has been established before June 1, 1943 when the present suit was filed As originally the possession of the appellant and the other defendant was clearly permissive, there can be no question of the application of Art. 142 in the present case and the appellant could only succeed if he could prove adverse possession under Art. 144 for over 12 years. The decision of the High Court on the question of limitation is correctIt is enough to say that though this point was raised in the written statement no issue was framed with respect to it by the trial court. When the matter was raised in the High Court on the first occasion it held that as no issue had been framed and no evidence had been led by the parties as to whether the cause of action was or was not the same and no copy of the plaint in the earlier proceeding had been filed the question whether the present suit was barred by virtue of O. IX R. 9 of the Code of Civil Procedure could not be gone into and it must be held that it was not barred under O. IX R. 9.In view of what the High Court has said we are of opinion that it is not open to the appellant to raise this point before us when he had failed to get an issue framed on it and no evidence was led in that behalf18. As the appellant cannot challenge that the respondent is the descendant of Maharaja Sher Singh the respondent would have a right to maintain the suit. Further as the appellant and the other defendant are servitors and they have undoubtedly set up a title after the decision of the tribunal adverse to the respondents right as found by the tribunal, the respondent is entitled to eject the appellant and the other defendant, for servitors cannot claim to remain in possession after they set up an adverse title with respect to the property of which they are servitors. In view of our decision on issue No. 6, it is unnecessary to consider issue No. 2 on which a finding was called for by this Court by its interlocutory judgment in 1958.
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Vishnu Chandra Vs. Chandrika Prasad Agarwal and Others | firm. Section 32 (1) provides, inter alia, that a partner may retire ... (b) in accordance with an express agreement by the partners. A partnership business is run in accordance with the terms of the contract of partnership. The terms, inter alia, envisage a situation that a partner can retire from partnership. The expression used in clause 18 that a partner may dissociate from the partnership envisages a situation where a partner wants to retire from business. The contract of partnership also envisages a situation where a partner may be expelled from the partnership. But that situation need not he examined. The only point on which the parties are at variance is whether a partner can retire from the partnership and the expression, that if any partner wants to dissociate from the partnership business, comprehends a situation where a partner wants to retire from the partnership. Therefore, it does appear that the contract of partnership permits a partner to retire from the partnership. Unfortunately the High Court examined the contention from an angle impermissible in that while examining the second contention the High Court proceeded to appreciate the contention put forward on behalf of the plaintiff appellant whether there was a breach of the contract of partnership. Nowhere while examining the contention whether it is open to the partner to retire from partnership, the absolute right to dissociate from business as conferred by clause 18 has been gone into by the High Court. The High Court negatived the contention observing that non-payment of Rs. 250/- p.m. to the plaintiff and non-supply of 1/4 production to him could not be an adequate ground for dissolution of partnership under Section 44 of the Indian Partnership Act 1932 (Act for short). Maybe, the High Court may be right in that if dissolution is sought under Section 44 of the Act alleging that there has been a breach of the contract of partnership. That is not the plaintiffs contention when he prayed for a decree on the ground that he may be permitted to retire from the partnership. The High Court fell into error in not examining the contention whether the plaintiff appellant is entitled to retire from the partnership without dissolving the firm. Clause 18 of the contract of partnership clearly comprehends a situation where a partner may retire from an ongoing partnership after giving one months notice. That is what is clearly intended by the expression that in the event of retirement of a partner the partnership business will not come to an end. Clause 18 provides for two independent contingencies. The first part of it confers a right on the partner to retire from partnership as envisaged by Section 32 (1) (b) of the Act. The second part of clause 18 provides for the consequence of such retirement by providing that even on such retirement the partnership will neither be dissolved nor the business will come to an end. In other words, without dissolving the firm and continuing the ongoing business, a partner may retire from the partnership, a situation clearly comprehended by Section 32 and incorporated as a term of contract of the partnership between the parties to the contract. With great respect, the High Court did not examine the matter from this angle and fell into an error in believing that the plaintiff sought dissolution on two grounds : (i) that the partnership is a partnership at will; and (ii) that dissolution is sought under Section 44. The implication of Section 32 of the Act completely escaped the notice of the High Court and that is why we are constrained to interefere in this matter." 6. It was contended that even if a partner is entitled to retire from the partnership as per the terms incorporated in clause 18 of the contract of partnership, it has to be read along with the provision made in clause 20 which provides that no. partner will separate from the partnership business till one year from the beginning of the business and if he will dissociate then his capital will not be given till the end of one year. A mere reading of the clause shows that there was no. embargo on the right to retire from the partnership conferred by clause 18 even during the period of one year from the commencement of the business but it only provided for a consequence which will ensue on the action of the party. A combined reading of clauses 18 and 20 would unmistakably show that a partner may retire from the firm after giving one months notice, that he should not retire within a period of one year but if he does retire within a period of one year the capital invested by him will not be refundable to him till the expiry of the period of one year. This right to retire from partnership may not be exercised till a period of one year but there is not a complete embargo on the exercise of such a right conferred by clause 18. The High Court was, therefore, in error in holding that the plaintiff was not entitled to seek retirement from the firm. 7. The partnership business commenced on December 1, 1976. The period of one year would expire on November 30, 1976. Plaintiff sought dissolution effective from November 23, 1976. His request was thus under clause 20 premature by a period of seven days. At best, it the Court thinks fit the retirement may be made effective from November 30, 1976, but on this technical ground the relief cannot be denied. At best the capital would become refundable as envisaged by clause 20, after November 30, 1976. But in any view of the matter the plaintiff is entitled to a relief for a declaration that he has retired from the partnership without dissolution of the firm from the date of institution of the suit and the accounts may be made till that date and necessary preliminary decree will have to be made. | 1[ds]A mere reading of the clause shows that there was no. embargo on the right to retire from the partnership conferred by clause 18 even during the period of one year from the commencement of the business but it only provided for a consequence which will ensue on the action of the party. A combined reading of clauses 18 and 20 would unmistakably show that a partner may retire from the firm after giving one months notice, that he should not retire within a period of one year but if he does retire within a period of one year the capital invested by him will not be refundable to him till the expiry of the period of one year. This right to retire from partnership may not be exercised till a period of one year but there is not a complete embargo on the exercise of such a right conferred by clause 18. The High Court was, therefore, in error in holding that the plaintiff was not entitled to seek retirement from the firm7. The partnership business commenced on December 1, 1976. The period of one year would expire on November 30, 1976. Plaintiff sought dissolution effective from November 23, 1976. His request was thus under clause 20 premature by a period of seven days. At best, it the Court thinks fit the retirement may be made effective from November 30, 1976, but on this technical ground the relief cannot be denied. At best the capital would become refundable as envisaged by clause 20, after November 30, 1976. But in any view of the matter the plaintiff is entitled to a relief for a declaration that he has retired from the partnership without dissolution of the firm from the date of institution of the suit and the accounts may be made till that date and necessary preliminary decree will have to be made. | 1 | 1,626 | 341 | ### 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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firm. Section 32 (1) provides, inter alia, that a partner may retire ... (b) in accordance with an express agreement by the partners. A partnership business is run in accordance with the terms of the contract of partnership. The terms, inter alia, envisage a situation that a partner can retire from partnership. The expression used in clause 18 that a partner may dissociate from the partnership envisages a situation where a partner wants to retire from business. The contract of partnership also envisages a situation where a partner may be expelled from the partnership. But that situation need not he examined. The only point on which the parties are at variance is whether a partner can retire from the partnership and the expression, that if any partner wants to dissociate from the partnership business, comprehends a situation where a partner wants to retire from the partnership. Therefore, it does appear that the contract of partnership permits a partner to retire from the partnership. Unfortunately the High Court examined the contention from an angle impermissible in that while examining the second contention the High Court proceeded to appreciate the contention put forward on behalf of the plaintiff appellant whether there was a breach of the contract of partnership. Nowhere while examining the contention whether it is open to the partner to retire from partnership, the absolute right to dissociate from business as conferred by clause 18 has been gone into by the High Court. The High Court negatived the contention observing that non-payment of Rs. 250/- p.m. to the plaintiff and non-supply of 1/4 production to him could not be an adequate ground for dissolution of partnership under Section 44 of the Indian Partnership Act 1932 (Act for short). Maybe, the High Court may be right in that if dissolution is sought under Section 44 of the Act alleging that there has been a breach of the contract of partnership. That is not the plaintiffs contention when he prayed for a decree on the ground that he may be permitted to retire from the partnership. The High Court fell into error in not examining the contention whether the plaintiff appellant is entitled to retire from the partnership without dissolving the firm. Clause 18 of the contract of partnership clearly comprehends a situation where a partner may retire from an ongoing partnership after giving one months notice. That is what is clearly intended by the expression that in the event of retirement of a partner the partnership business will not come to an end. Clause 18 provides for two independent contingencies. The first part of it confers a right on the partner to retire from partnership as envisaged by Section 32 (1) (b) of the Act. The second part of clause 18 provides for the consequence of such retirement by providing that even on such retirement the partnership will neither be dissolved nor the business will come to an end. In other words, without dissolving the firm and continuing the ongoing business, a partner may retire from the partnership, a situation clearly comprehended by Section 32 and incorporated as a term of contract of the partnership between the parties to the contract. With great respect, the High Court did not examine the matter from this angle and fell into an error in believing that the plaintiff sought dissolution on two grounds : (i) that the partnership is a partnership at will; and (ii) that dissolution is sought under Section 44. The implication of Section 32 of the Act completely escaped the notice of the High Court and that is why we are constrained to interefere in this matter." 6. It was contended that even if a partner is entitled to retire from the partnership as per the terms incorporated in clause 18 of the contract of partnership, it has to be read along with the provision made in clause 20 which provides that no. partner will separate from the partnership business till one year from the beginning of the business and if he will dissociate then his capital will not be given till the end of one year. A mere reading of the clause shows that there was no. embargo on the right to retire from the partnership conferred by clause 18 even during the period of one year from the commencement of the business but it only provided for a consequence which will ensue on the action of the party. A combined reading of clauses 18 and 20 would unmistakably show that a partner may retire from the firm after giving one months notice, that he should not retire within a period of one year but if he does retire within a period of one year the capital invested by him will not be refundable to him till the expiry of the period of one year. This right to retire from partnership may not be exercised till a period of one year but there is not a complete embargo on the exercise of such a right conferred by clause 18. The High Court was, therefore, in error in holding that the plaintiff was not entitled to seek retirement from the firm. 7. The partnership business commenced on December 1, 1976. The period of one year would expire on November 30, 1976. Plaintiff sought dissolution effective from November 23, 1976. His request was thus under clause 20 premature by a period of seven days. At best, it the Court thinks fit the retirement may be made effective from November 30, 1976, but on this technical ground the relief cannot be denied. At best the capital would become refundable as envisaged by clause 20, after November 30, 1976. But in any view of the matter the plaintiff is entitled to a relief for a declaration that he has retired from the partnership without dissolution of the firm from the date of institution of the suit and the accounts may be made till that date and necessary preliminary decree will have to be made.
### Response:
1
### Explanation:
A mere reading of the clause shows that there was no. embargo on the right to retire from the partnership conferred by clause 18 even during the period of one year from the commencement of the business but it only provided for a consequence which will ensue on the action of the party. A combined reading of clauses 18 and 20 would unmistakably show that a partner may retire from the firm after giving one months notice, that he should not retire within a period of one year but if he does retire within a period of one year the capital invested by him will not be refundable to him till the expiry of the period of one year. This right to retire from partnership may not be exercised till a period of one year but there is not a complete embargo on the exercise of such a right conferred by clause 18. The High Court was, therefore, in error in holding that the plaintiff was not entitled to seek retirement from the firm7. The partnership business commenced on December 1, 1976. The period of one year would expire on November 30, 1976. Plaintiff sought dissolution effective from November 23, 1976. His request was thus under clause 20 premature by a period of seven days. At best, it the Court thinks fit the retirement may be made effective from November 30, 1976, but on this technical ground the relief cannot be denied. At best the capital would become refundable as envisaged by clause 20, after November 30, 1976. But in any view of the matter the plaintiff is entitled to a relief for a declaration that he has retired from the partnership without dissolution of the firm from the date of institution of the suit and the accounts may be made till that date and necessary preliminary decree will have to be made.
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Joint Registrar Of Co-Operative Societies, Madras & Ors Vs. P. S. Rajagopal Naidu And Ors | is not functioning properly or has wilfully disobeyed or failed to comply with any lawful order or direction issued by him. So far as the question of the society not functioning properly is concerned, that may depend on what the Registrar discovers after a proper audit, enquiry and inspection. But he can form that opinion even on material aliunde and the language of the section does not warrant by necessary implication the taking of the view that he is bound to form that opinion after following the entire procedure prescribed by the other sections under discussion. At any rate it is not possible to read a requirement while taking action u/s 72 of satisfying the provisions in the aforesaid sections by making a direction in the first instance to remedy the defects disclosed as a result of the audit, inquiry or inspection. The functioning of the society may be so irregular and the defects disclosed so blatant and prejudicial to the society that no question can arise of any direction being made in the first instance for their being remedied by the persons or officers concerned. It may be that when the Registrar acts under the second limb of Section 72 (1) (a) and proposes to supersede the committee for wilful disobedience or wilful failure to comply with any lawful order or direction issued by the Registrar under the Act or the rule that the provisions contained in Sections 64, 64 and 66 may become relevant. But that does not and cannot mean that the Registrar must as a condition precedent give a direction under those sections for the defects or the irregularities to be remedied and should take action only under the second limb i.e. when there is a wilful disobedience or wilful failure to comply with those orders or directions.It may be that the opinion which the Registrar has to form must be based on some objective facts but those objective facts in the absence of any clear indications u/s 72 cannot be confined to what may be disclosed after the Registrar has exercised powers in the matter of audit, inquiry and inspection under the provisions of Sections 64, 65 and 66. Thus even though the opinion may be a purely subjective process, there must be cogent material on which the Registrar has to form his opinion that the society is not functioning properly in order to sustain the issuance of a notice u/s 72 (1) (a) and subsequent supersession of the Committee after considering its representation on that ground.The requisite opinion has indisputably to be formed honestly and after applying his mind by the Registrar to the relevant materials before him the only condition precedent for taking action u/s 72 (1) is that the Registrar must consult the financing bank to which the society is indebted (vide sub-section (6)).There is no other requirement or condition precedent laid down by the Legislature which the Registrar must fulfil before he acts in the matter of supersession of the Committee.We are unable to concur in the view of the High Court that an action taken u/s 72 without giving an opportunity to the member, officer or the society to rectify the defects found after an audit, inquiry or inspection held under Sections 64, 65 and 66 would constitute an exercise of power without jurisdiction. 9. The single Judge laid a great deal of emphasis on the Committee being an elected body and the prejudice that would be caused to its members if they are visited with the consequences of supersession on account of irregularities and improper functioning of the previous members of the Committee. What was argued before the High Court was that one-third members of the Committee have to retire every year and fresh members have to be elected. If certain grave irregularities are committed, say in the years 1964, 1965, it would be unfair to the new members who have been elected to supersede the Committee in 1968. We do not consider that that would be the correct approach in construing Section 72 which is meant for superseding the Committee as a whole when its working discloses such irregularities or improprieties as would justify its supersession. Normally it would be expected that only that Committee would be superseded whose functioning has been found to be highly defective. The object of supersession apparently is to appoint a Special Officer or a managing committee in order to set the working of the society right. It is not difficult to envisage a situation where mal-administration by a committee has so adversely affected the functioning of the society that it is essential in the interests of the society itself to give temporarily the control of its affairs to a neutral authority. At any rate if the operation of Section 72 in certain circumstances is likely to operate harshly so far as certain members of the committee are concerned, it is not possible to read into it other provisions of the Act which are not incorporated in the section expressly or by necessary implication. 10. We have been taken through the material parts of the orders of the Registrar and the Joint Registrar and we do not find any such infirmities in them which would justify interference by the High Court under Article 226 of the Constitution. The High Court could not act as an appellate Court and reappraise and re-examine the relevant facts and circumstances which led to the making of the orders of supersession as if the matter before it had been brought by way of appeal. The limits of the jurisdiction of the High Court under Art. 226 when a writ in the nature of certiorari is to be issued are well known and well settled by now and it is pointless to restate the grounds on which any such writ or direction can be issued. We are satisfied that there was no justification whatsoever for quashing the orders of the Joint Registrar and that of the Registrar in appeal. | 1[ds]8. It is significant that Section 72 (1) does not contain any mention of Sections 64 to 67 which appear in Sec. 70 (1) and of Sections 65, 66 and 67 which are expressly mentioned in Section 85 (1). If the intention of the Legislature was that the supersession of the Committee under Section 72 can be ordered by the Registrar only after recourse to Sections 64, 65, 66 and 67, there is no reason why language analogous to Section 70 (1) or Sections 85 (1) containing an express mention of the aforesaid sections, should not have been employed. An audit under Section 64 has to be done every year in view of the mandatory form of the language of that Section 64.But as regards Sections 65 and 66 the Registrar has been given the discretionary powers to make an inquiry or an inspection in accordance with those sections,there is no duty or obligation cast on him for doing so before he proceeds to take action u/s 72. All that is required by Section 72 (1) (a) is that the Registrar should form an opinion that the Committee of any Registered society is not functioning properly or has wilfully disobeyed or failed to comply with any lawful order or direction issued by him. So far as the question of the society not functioning properly is concerned, that may depend on what the Registrar discovers after a proper audit, enquiry and inspection. But he can form that opinion even on material aliunde and the language of the section does not warrant by necessary implication the taking of the view that he is bound to form that opinion after following the entire procedure prescribed by the other sections under discussion. At any rate it is not possible to read a requirement while taking action u/s 72 of satisfying the provisions in the aforesaid sections by making a direction in the first instance to remedy the defects disclosed as a result of the audit, inquiry or inspection. The functioning of the society may be so irregular and the defects disclosed so blatant and prejudicial to the society that no question can arise of any direction being made in the first instance for their being remedied by the persons or officers concerned. It may be that when the Registrar acts under the second limb of Section 72 (1) (a) and proposes to supersede the committee for wilful disobedience or wilful failure to comply with any lawful order or direction issued by the Registrar under the Act or the rule that the provisions contained in Sections 64, 64 and 66 may become relevant. But that does not and cannot mean that the Registrar must as a condition precedent give a direction under those sections for the defects or the irregularities to be remedied and should take action only under the second limb i.e. when there is a wilful disobedience or wilful failure to comply with those orders or directions.It may be that the opinion which the Registrar has to form must be based on some objective facts but those objective facts in the absence of any clear indications u/s 72 cannot be confined to what may be disclosed after the Registrar has exercised powers in the matter of audit, inquiry and inspection under the provisions of Sections 64, 65 and 66. Thus even though the opinion may be a purely subjective process, there must be cogent material on which the Registrar has to form his opinion that the society is not functioning properly in order to sustain the issuance of a notice u/s 72 (1) (a) and subsequent supersession of the Committee after considering its representation on that ground.The requisite opinion has indisputably to be formed honestly and after applying his mind by the Registrar to the relevant materials before him the only condition precedent for taking action u/s 72 (1) is that the Registrar must consult the financing bank to which the society is indebted (vide sub-section (6)).There is no other requirement or condition precedent laid down by the Legislature which the Registrar must fulfil before he acts in the matter of supersession of the Committee.We are unable to concur in the view of the High Court that an action taken u/s 72 without giving an opportunity to the member, officer or the society to rectify the defects found after an audit, inquiry or inspection held under Sections 64, 65 and 66 would constitute an exercise of power without jurisdiction9. The single Judge laid a great deal of emphasis on the Committee being an elected body and the prejudice that would be caused to its members if they are visited with the consequences of supersession on account of irregularities and improper functioning of the previous members of the Committee. What was argued before the High Court was that one-third members of the Committee have to retire every year and fresh members have to be elected. If certain grave irregularities are committed, say in the years 1964, 1965, it would be unfair to the new members who have been elected to supersede the Committee in 1968. We do not consider that that would be the correct approach in construing Section 72 which is meant for superseding the Committee as a whole when its working discloses such irregularities or improprieties as would justify its supersession. Normally it would be expected that only that Committee would be superseded whose functioning has been found to be highly defective. The object of supersession apparently is to appoint a Special Officer or a managing committee in order to set the working of the society right. It is not difficult to envisage a situation where mal-administration by a committee has so adversely affected the functioning of the society that it is essential in the interests of the society itself to give temporarily the control of its affairs to a neutral authority. At any rate if the operation of Section 72 in certain circumstances is likely to operate harshly so far as certain members of the committee are concerned, it is not possible to read into it other provisions of the Act which are not incorporated in the section expressly or by necessary implication10. We have been taken through the material parts of the orders of the Registrar and the Joint Registrar and we do not find any such infirmities in them which would justify interference by the High Court under Article 226 of the Constitution. The High Court could not act as an appellate Court and reappraise and re-examine the relevant facts and circumstances which led to the making of the orders of supersession as if the matter before it had been brought by way of appeal. The limits of the jurisdiction of the High Court under Art. 226 when a writ in the nature of certiorari is to be issued are well known and well settled by now and it is pointless to restate the grounds on which any such writ or direction can be issued. We are satisfied that there was no justification whatsoever for quashing the orders of the Joint Registrar and that of the Registrar in appeal. | 1 | 3,815 | 1,273 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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is not functioning properly or has wilfully disobeyed or failed to comply with any lawful order or direction issued by him. So far as the question of the society not functioning properly is concerned, that may depend on what the Registrar discovers after a proper audit, enquiry and inspection. But he can form that opinion even on material aliunde and the language of the section does not warrant by necessary implication the taking of the view that he is bound to form that opinion after following the entire procedure prescribed by the other sections under discussion. At any rate it is not possible to read a requirement while taking action u/s 72 of satisfying the provisions in the aforesaid sections by making a direction in the first instance to remedy the defects disclosed as a result of the audit, inquiry or inspection. The functioning of the society may be so irregular and the defects disclosed so blatant and prejudicial to the society that no question can arise of any direction being made in the first instance for their being remedied by the persons or officers concerned. It may be that when the Registrar acts under the second limb of Section 72 (1) (a) and proposes to supersede the committee for wilful disobedience or wilful failure to comply with any lawful order or direction issued by the Registrar under the Act or the rule that the provisions contained in Sections 64, 64 and 66 may become relevant. But that does not and cannot mean that the Registrar must as a condition precedent give a direction under those sections for the defects or the irregularities to be remedied and should take action only under the second limb i.e. when there is a wilful disobedience or wilful failure to comply with those orders or directions.It may be that the opinion which the Registrar has to form must be based on some objective facts but those objective facts in the absence of any clear indications u/s 72 cannot be confined to what may be disclosed after the Registrar has exercised powers in the matter of audit, inquiry and inspection under the provisions of Sections 64, 65 and 66. Thus even though the opinion may be a purely subjective process, there must be cogent material on which the Registrar has to form his opinion that the society is not functioning properly in order to sustain the issuance of a notice u/s 72 (1) (a) and subsequent supersession of the Committee after considering its representation on that ground.The requisite opinion has indisputably to be formed honestly and after applying his mind by the Registrar to the relevant materials before him the only condition precedent for taking action u/s 72 (1) is that the Registrar must consult the financing bank to which the society is indebted (vide sub-section (6)).There is no other requirement or condition precedent laid down by the Legislature which the Registrar must fulfil before he acts in the matter of supersession of the Committee.We are unable to concur in the view of the High Court that an action taken u/s 72 without giving an opportunity to the member, officer or the society to rectify the defects found after an audit, inquiry or inspection held under Sections 64, 65 and 66 would constitute an exercise of power without jurisdiction. 9. The single Judge laid a great deal of emphasis on the Committee being an elected body and the prejudice that would be caused to its members if they are visited with the consequences of supersession on account of irregularities and improper functioning of the previous members of the Committee. What was argued before the High Court was that one-third members of the Committee have to retire every year and fresh members have to be elected. If certain grave irregularities are committed, say in the years 1964, 1965, it would be unfair to the new members who have been elected to supersede the Committee in 1968. We do not consider that that would be the correct approach in construing Section 72 which is meant for superseding the Committee as a whole when its working discloses such irregularities or improprieties as would justify its supersession. Normally it would be expected that only that Committee would be superseded whose functioning has been found to be highly defective. The object of supersession apparently is to appoint a Special Officer or a managing committee in order to set the working of the society right. It is not difficult to envisage a situation where mal-administration by a committee has so adversely affected the functioning of the society that it is essential in the interests of the society itself to give temporarily the control of its affairs to a neutral authority. At any rate if the operation of Section 72 in certain circumstances is likely to operate harshly so far as certain members of the committee are concerned, it is not possible to read into it other provisions of the Act which are not incorporated in the section expressly or by necessary implication. 10. We have been taken through the material parts of the orders of the Registrar and the Joint Registrar and we do not find any such infirmities in them which would justify interference by the High Court under Article 226 of the Constitution. The High Court could not act as an appellate Court and reappraise and re-examine the relevant facts and circumstances which led to the making of the orders of supersession as if the matter before it had been brought by way of appeal. The limits of the jurisdiction of the High Court under Art. 226 when a writ in the nature of certiorari is to be issued are well known and well settled by now and it is pointless to restate the grounds on which any such writ or direction can be issued. We are satisfied that there was no justification whatsoever for quashing the orders of the Joint Registrar and that of the Registrar in appeal.
### Response:
1
### Explanation:
Registered society is not functioning properly or has wilfully disobeyed or failed to comply with any lawful order or direction issued by him. So far as the question of the society not functioning properly is concerned, that may depend on what the Registrar discovers after a proper audit, enquiry and inspection. But he can form that opinion even on material aliunde and the language of the section does not warrant by necessary implication the taking of the view that he is bound to form that opinion after following the entire procedure prescribed by the other sections under discussion. At any rate it is not possible to read a requirement while taking action u/s 72 of satisfying the provisions in the aforesaid sections by making a direction in the first instance to remedy the defects disclosed as a result of the audit, inquiry or inspection. The functioning of the society may be so irregular and the defects disclosed so blatant and prejudicial to the society that no question can arise of any direction being made in the first instance for their being remedied by the persons or officers concerned. It may be that when the Registrar acts under the second limb of Section 72 (1) (a) and proposes to supersede the committee for wilful disobedience or wilful failure to comply with any lawful order or direction issued by the Registrar under the Act or the rule that the provisions contained in Sections 64, 64 and 66 may become relevant. But that does not and cannot mean that the Registrar must as a condition precedent give a direction under those sections for the defects or the irregularities to be remedied and should take action only under the second limb i.e. when there is a wilful disobedience or wilful failure to comply with those orders or directions.It may be that the opinion which the Registrar has to form must be based on some objective facts but those objective facts in the absence of any clear indications u/s 72 cannot be confined to what may be disclosed after the Registrar has exercised powers in the matter of audit, inquiry and inspection under the provisions of Sections 64, 65 and 66. Thus even though the opinion may be a purely subjective process, there must be cogent material on which the Registrar has to form his opinion that the society is not functioning properly in order to sustain the issuance of a notice u/s 72 (1) (a) and subsequent supersession of the Committee after considering its representation on that ground.The requisite opinion has indisputably to be formed honestly and after applying his mind by the Registrar to the relevant materials before him the only condition precedent for taking action u/s 72 (1) is that the Registrar must consult the financing bank to which the society is indebted (vide sub-section (6)).There is no other requirement or condition precedent laid down by the Legislature which the Registrar must fulfil before he acts in the matter of supersession of the Committee.We are unable to concur in the view of the High Court that an action taken u/s 72 without giving an opportunity to the member, officer or the society to rectify the defects found after an audit, inquiry or inspection held under Sections 64, 65 and 66 would constitute an exercise of power without jurisdiction9. The single Judge laid a great deal of emphasis on the Committee being an elected body and the prejudice that would be caused to its members if they are visited with the consequences of supersession on account of irregularities and improper functioning of the previous members of the Committee. What was argued before the High Court was that one-third members of the Committee have to retire every year and fresh members have to be elected. If certain grave irregularities are committed, say in the years 1964, 1965, it would be unfair to the new members who have been elected to supersede the Committee in 1968. We do not consider that that would be the correct approach in construing Section 72 which is meant for superseding the Committee as a whole when its working discloses such irregularities or improprieties as would justify its supersession. Normally it would be expected that only that Committee would be superseded whose functioning has been found to be highly defective. The object of supersession apparently is to appoint a Special Officer or a managing committee in order to set the working of the society right. It is not difficult to envisage a situation where mal-administration by a committee has so adversely affected the functioning of the society that it is essential in the interests of the society itself to give temporarily the control of its affairs to a neutral authority. At any rate if the operation of Section 72 in certain circumstances is likely to operate harshly so far as certain members of the committee are concerned, it is not possible to read into it other provisions of the Act which are not incorporated in the section expressly or by necessary implication10. We have been taken through the material parts of the orders of the Registrar and the Joint Registrar and we do not find any such infirmities in them which would justify interference by the High Court under Article 226 of the Constitution. The High Court could not act as an appellate Court and reappraise and re-examine the relevant facts and circumstances which led to the making of the orders of supersession as if the matter before it had been brought by way of appeal. The limits of the jurisdiction of the High Court under Art. 226 when a writ in the nature of certiorari is to be issued are well known and well settled by now and it is pointless to restate the grounds on which any such writ or direction can be issued. We are satisfied that there was no justification whatsoever for quashing the orders of the Joint Registrar and that of the Registrar in appeal.
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Corporation Of The City Of Nagpur Vs. The Nagpur Handloom Cloth Marketco. Ltd | did not apply to portions of buildings when they were occupied for non-residential purposes merely because of the use of the expression family in the rule. But the expression family has according to the context in which it occurs, a variable connotation. It does not in the setting of the rules postulate the existence of relationship either of blood or by marriage between the persons residing in the tenement. Even a single person may be regarded as a family, and a master and servant would also be so regarded The word occupy used in R. 10(a) is not restricted either expressly or by anything contained in the context in the context of the rule suggesting that the occupation is to be only for residential purposes, and in the absence of any such implication the rule must be deemed to be of general application i.e. it applies to uses non-residential as well as residential. The expression family must therefore take colour from the expression occupy used in the same rule. In our view the expression family in the context in which it occurs, means no more than a person or a group of persons. 14. Mr. Pathak appearing on behalf of the Corporation submitted that there was a drafting error in R. 10 (a), and as a matter of interpretation the Court would be justified in reading the expression family in that rule as meaning family or person - which is the expression used in R. 10 (c) He submits that R. 10 (a) and R. 10 (c) deal with the same subject matter and, therefore, the Court would be justified in holding that the expression one family used in R. 10 (a) and the expression person or family in R. 10 (c) must have the same meaning. Prima facie, there is substance in this contention, but we do not think it necessary to base our decision on that ground. In our view the expression family has not a restricted meaning as suggested by the High Courts, and under the rules imposing liability to pay conservancy tax and water rate liability is imposed upon every building, which expression includes a part of a building, occupied as an independent unit irrespective of the nature of the user. The learned Attorney General appearing on behalf of the Company submitted that under the Corporation Act the owner and not the occupier is liable for the conservancy tax and water rate and therefore separate assessments of different units occupied by the shopkeepers could not be made. This plea was not raised in the High Court. Even apart from this infirmity, there is no substance in the plea. Under S. 114 of the Act a latrine or conservancy tax payable by the occupier or the owner may be imposed. Similarly water rate may be imposed, when water is supplied by the Corporation. By the rules framed under S. 71 of the C. P and Berar Municipalities Act of 1922 and continued under the Act of 1948 liability imposed for payment of the conservancy tax and the assessment rules is not restricted to owners only. By R. 4 of the assessment rules the Corporation is required to prepare an assessment list containing the names of the persons liable to pay the tax. The assessment rules therefore clearly indicate that the occupier of the premises may be rendered liable to pay the conservancy tax and the water rate. Section 165 of Act makes all the sums due from any person in respect of taxes on any land or building, a first charge upon the said land or building and upon any movable property found within or upon such land or building and belonging to the said person, provided that no arrears of any such tax shall be recoverable from any occupier who is not the owner, if such arrears are for a period during which the occupier was not in occupation. It is implicit in S. 165 that an occupier of the premises may be liable to pay the tax even though he is not the owner. It is also necessary to point out that the scheme under which the shop keepers are occupying the premises has not been produced before this Court. It is admitted, however, that the shopkeepers will be owners of the premises occupied by them as soon as the amounts which they have agreed to pay are fully paid and their liability discharged. The Company treated the shop- keepers as owners (vide their letter dated September 30, 1953). Manifestly they have a substantial interest in the tenements in their occupation and it would be difficult not to call them owners for purposes of municipal taxation. According to the definition in S. 5 (37) of the Act owner."when used with reference to any land or building includes the person for the time being receiving the rent of the land or building or of any part of the land or building whether on his own account or as agent or trustee for any person or society or for any religious or charitable purpose, or as a receiver who would receive such rent if the land, building or part thereof were let to a tenant." There is nothing on the record to show that the shop-keepers would not be entitled to let out the premises in their occupation and if they can they would be regarded as owners within the meaning of cl. (37) of S. 5. 15. In our view, therefore, the High Court was in error in holding that R. 10 (7a) applied only to building occupied for residential purpose. The rule in our judgment applies to buildings occupied for non-residential as well as residential purposes, and to every part of a building occupied by person or a group of persons having a separate source of income, whether the occupation is for residential or non-residential purpose and such person or group of persons would be liable to pay the conservancy tax and the water rate. | 1[ds]13. By the rules, liability to pay conservancy tax and water rate is imposed in respect of a building provided certain conditions specified in the rule are fulfilled, and this liability arises whether the building is used for residential purposes or non-residential purposes. Rule 10(a) also clearly authorises the Corporation to levy water rate and the conservancy tax in respect of separate tenements occupied by different persons as if each such tenement is a building. In the view of the High Court use of the expression family in R.10(a) indicated that the rule did not apply to building occupied for non-residential purposes. But by the rules imposing the conservancy tax and the water rate, all buildings to which are attached latrines cleansed by municipal agency and all buildings which are connected with the water distribution system, or which are situated within the prescribed distance of water standards, are liable to pay the conservancy tax and the water rate irrespective of the nature of the use to which the building is put. It is implicit in the view of the High Court that a building occupied for nonresidential use can be taxed as one unit, even if the building is occupied by tenants or licencees, carrying on their separate or individual trades or businesses. But this view, does not appear to be supported by the scheme of the Act and rules. If a building is partly occupied for residential and partly for non-residential purposes the portions occupied for residential purposes would, in the view of the High Court, be regarded as separate buildings, and each occupant having a separate source of income would be liable to pay conservancy tax and water rate but the portion occupied for non residential purposes would not be regarded as separate building. The High Court reached its conclusion that R. 10(a) did not apply to portions of buildings when they were occupied for non-residential purposes merely because of the use of the expression family in the rule. But the expression family has according to the context in which it occurs, a variable connotation. It does not in the setting of the rules postulate the existence of relationship either of blood or by marriage between the persons residing in the tenement. Even a single person may be regarded as a family, and a master and servant would also be so regarded The word occupy used in R. 10(a) is not restricted either expressly or by anything contained in the context in the context of the rule suggesting that the occupation is to be only for residential purposes, and in the absence of any such implication the rule must be deemed to be of general application i.e. it applies to uses non-residential as well as residential. The expression family must therefore take colour from the expression occupy used in the same rule. In our view the expression family in the context in which it occurs, means no more than a person or a group of persons15. In our view, therefore, the High Court was in error in holding that R. 10 (7a) applied only to building occupied for residential purpose. The rule in our judgment applies to buildings occupied for non-residential as well as residential purposes, and to every part of a building occupied by person or a group of persons having a separate source of income, whether the occupation is for residential or non-residential purpose and such person or group of persons would be liable to pay the conservancy tax and the water rate. | 1 | 4,738 | 641 | ### 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:
did not apply to portions of buildings when they were occupied for non-residential purposes merely because of the use of the expression family in the rule. But the expression family has according to the context in which it occurs, a variable connotation. It does not in the setting of the rules postulate the existence of relationship either of blood or by marriage between the persons residing in the tenement. Even a single person may be regarded as a family, and a master and servant would also be so regarded The word occupy used in R. 10(a) is not restricted either expressly or by anything contained in the context in the context of the rule suggesting that the occupation is to be only for residential purposes, and in the absence of any such implication the rule must be deemed to be of general application i.e. it applies to uses non-residential as well as residential. The expression family must therefore take colour from the expression occupy used in the same rule. In our view the expression family in the context in which it occurs, means no more than a person or a group of persons. 14. Mr. Pathak appearing on behalf of the Corporation submitted that there was a drafting error in R. 10 (a), and as a matter of interpretation the Court would be justified in reading the expression family in that rule as meaning family or person - which is the expression used in R. 10 (c) He submits that R. 10 (a) and R. 10 (c) deal with the same subject matter and, therefore, the Court would be justified in holding that the expression one family used in R. 10 (a) and the expression person or family in R. 10 (c) must have the same meaning. Prima facie, there is substance in this contention, but we do not think it necessary to base our decision on that ground. In our view the expression family has not a restricted meaning as suggested by the High Courts, and under the rules imposing liability to pay conservancy tax and water rate liability is imposed upon every building, which expression includes a part of a building, occupied as an independent unit irrespective of the nature of the user. The learned Attorney General appearing on behalf of the Company submitted that under the Corporation Act the owner and not the occupier is liable for the conservancy tax and water rate and therefore separate assessments of different units occupied by the shopkeepers could not be made. This plea was not raised in the High Court. Even apart from this infirmity, there is no substance in the plea. Under S. 114 of the Act a latrine or conservancy tax payable by the occupier or the owner may be imposed. Similarly water rate may be imposed, when water is supplied by the Corporation. By the rules framed under S. 71 of the C. P and Berar Municipalities Act of 1922 and continued under the Act of 1948 liability imposed for payment of the conservancy tax and the assessment rules is not restricted to owners only. By R. 4 of the assessment rules the Corporation is required to prepare an assessment list containing the names of the persons liable to pay the tax. The assessment rules therefore clearly indicate that the occupier of the premises may be rendered liable to pay the conservancy tax and the water rate. Section 165 of Act makes all the sums due from any person in respect of taxes on any land or building, a first charge upon the said land or building and upon any movable property found within or upon such land or building and belonging to the said person, provided that no arrears of any such tax shall be recoverable from any occupier who is not the owner, if such arrears are for a period during which the occupier was not in occupation. It is implicit in S. 165 that an occupier of the premises may be liable to pay the tax even though he is not the owner. It is also necessary to point out that the scheme under which the shop keepers are occupying the premises has not been produced before this Court. It is admitted, however, that the shopkeepers will be owners of the premises occupied by them as soon as the amounts which they have agreed to pay are fully paid and their liability discharged. The Company treated the shop- keepers as owners (vide their letter dated September 30, 1953). Manifestly they have a substantial interest in the tenements in their occupation and it would be difficult not to call them owners for purposes of municipal taxation. According to the definition in S. 5 (37) of the Act owner."when used with reference to any land or building includes the person for the time being receiving the rent of the land or building or of any part of the land or building whether on his own account or as agent or trustee for any person or society or for any religious or charitable purpose, or as a receiver who would receive such rent if the land, building or part thereof were let to a tenant." There is nothing on the record to show that the shop-keepers would not be entitled to let out the premises in their occupation and if they can they would be regarded as owners within the meaning of cl. (37) of S. 5. 15. In our view, therefore, the High Court was in error in holding that R. 10 (7a) applied only to building occupied for residential purpose. The rule in our judgment applies to buildings occupied for non-residential as well as residential purposes, and to every part of a building occupied by person or a group of persons having a separate source of income, whether the occupation is for residential or non-residential purpose and such person or group of persons would be liable to pay the conservancy tax and the water rate.
### Response:
1
### Explanation:
13. By the rules, liability to pay conservancy tax and water rate is imposed in respect of a building provided certain conditions specified in the rule are fulfilled, and this liability arises whether the building is used for residential purposes or non-residential purposes. Rule 10(a) also clearly authorises the Corporation to levy water rate and the conservancy tax in respect of separate tenements occupied by different persons as if each such tenement is a building. In the view of the High Court use of the expression family in R.10(a) indicated that the rule did not apply to building occupied for non-residential purposes. But by the rules imposing the conservancy tax and the water rate, all buildings to which are attached latrines cleansed by municipal agency and all buildings which are connected with the water distribution system, or which are situated within the prescribed distance of water standards, are liable to pay the conservancy tax and the water rate irrespective of the nature of the use to which the building is put. It is implicit in the view of the High Court that a building occupied for nonresidential use can be taxed as one unit, even if the building is occupied by tenants or licencees, carrying on their separate or individual trades or businesses. But this view, does not appear to be supported by the scheme of the Act and rules. If a building is partly occupied for residential and partly for non-residential purposes the portions occupied for residential purposes would, in the view of the High Court, be regarded as separate buildings, and each occupant having a separate source of income would be liable to pay conservancy tax and water rate but the portion occupied for non residential purposes would not be regarded as separate building. The High Court reached its conclusion that R. 10(a) did not apply to portions of buildings when they were occupied for non-residential purposes merely because of the use of the expression family in the rule. But the expression family has according to the context in which it occurs, a variable connotation. It does not in the setting of the rules postulate the existence of relationship either of blood or by marriage between the persons residing in the tenement. Even a single person may be regarded as a family, and a master and servant would also be so regarded The word occupy used in R. 10(a) is not restricted either expressly or by anything contained in the context in the context of the rule suggesting that the occupation is to be only for residential purposes, and in the absence of any such implication the rule must be deemed to be of general application i.e. it applies to uses non-residential as well as residential. The expression family must therefore take colour from the expression occupy used in the same rule. In our view the expression family in the context in which it occurs, means no more than a person or a group of persons15. In our view, therefore, the High Court was in error in holding that R. 10 (7a) applied only to building occupied for residential purpose. The rule in our judgment applies to buildings occupied for non-residential as well as residential purposes, and to every part of a building occupied by person or a group of persons having a separate source of income, whether the occupation is for residential or non-residential purpose and such person or group of persons would be liable to pay the conservancy tax and the water rate.
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Mallamma (D) By Lrs Vs. National Insurance Co. Ltd. | with the Jeevaratna Setty; it is proved that during the validity period of the said insurance policy, the said vehicle was transferred from Gangadhara to Jeevaratna Setty; as per Section 157(1) of the Motor Vehicles Act, 1968 whenever a vehicle is transferred from one person to another, the benefits of the insurance policy shall also be transferred to the new owner; accordingly instant policy benefits will also be automatically transferred from Gangadhara to Jeevaratna Setty. Therefore, the National Insurance Company shall be liable to pay the compensation and interest thereupon to the claimants. Accordingly, the Commissioner fixed the liability of paying compensation on the Insurance Company and Jeeva Ratna Setty individually and severally and directed them to deposit the amount within a period of 30 days from the date of the Award failing which they shall further be liable to pay interest @ 9% p.a. for the delayed period. The Commissioner, however, discharged Gangadhara (Respondent No. 3) and Laxmana Bhovi, (Respondent No. 4) from the case. 6. Aggrieved by the said order of the learned Commissioner, the Insurance Company (Respondent No. 1) filed M.F.A. No. 3842 of 2003 before the High Court of Karnataka urging that no liability could have been fastened by the Commissioner on the Insurance Company. 7. The High Court, by the impugned order, affirmed the findings of the Commissioner that (i) the deceased workman was actually employed with Jeeva Rathna Shetty, and therefore, there is a relation of employee-employer between them; (ii) the deceased workman having died as a result of an accident arising out of and in the course of employment, hence the claimants as legal representatives of the deceased are entitled to recover compensation, (iii) there was a valid insurance policy in force on the date of accident (iv) and the original owner of the tractor was Gangadhara. However, the High Court excluded the liability of the Insurance Company on the ground that the contention of deemed transfer of the insurance policy in favour of Jeeva Rathna Setty by virtue of Section 157 of M.V. Act was not actually urged before the Commissioner. 8. Against the Judgment of the High Court relieving the Insurance Company from the liability of payment of compensation, the claimants are before this Court in this appeal. 9. We have heard learned counsel for the parties and perused the material on record. 10. Before us, learned counsel for the appellants relying upon Section 157 of the M.V. Act, contended that there is an admitted transfer of ownership of the vehicle as proved before the Commissioner. Once the ownership of the vehicle is admittedly proved to have been transferred to Jeeva Rathna Setty, the existing insurance policy in respect of the same vehicle will also be deemed to have been transferred to the new owner and the policy will not lapse even if the intimation as required under Section 103 of the M.V. Act is not given to the insurer, hence the impugned order passed by the High Court is contrary to law. In support of this contention, learned counsel for the appellant has relied upon a judgment of this Court in G. Govindan Vs. New India Assurance Co. Ltd. (1999) 3 SCC 754. 11. Learned counsel has also brought to our notice a relevant portion from the Schedule of Premium of the insurance policy, a copy of which is available on record as Annexure P-1., which reads thus: B.Liability to Public RiskLiability to TrailorRs. 120-00Rs. 87-00 Add:for L.L. to persons employed in Connection with the operation and/ or loading of vehicle (IMT 19)Rs. 15-00 Add:forincreased third party property damage limits. Section II-I(ii) upto Rs. Unltd. IMT 70Rs. 75-00 TOTAL PREMIUM (A +B) Rs. 1318-00 12. On the other hand, learned counsel for the National Insurance Company, mainly contended that unless it is proved by evidence that the vehicle has been transferred in the name of Jeeva Rathna Setty, the deeming provision of Section 157 of the M.V. Act would not be applicable. In the absence of such evidence on record the High Court has rightly absolved the Insurance Company from the liability and the order passed by the High Court does not require any interference from this Court. 13. The counsel for the Insurance Company of course contended that as per their records, on the date of accident, the vehicle was registered in the name of Gangadhara. Hence in the absence of a valid proof that the ownership of the vehicle has been transferred in the name of Jeeva Ratna Setty, the benefits of insurance policy cannot be given to Jeeva Ratna Setty. However, the said contention is contrary to record. A specific finding by the Commissioner to this effect in his order dated 28th February, 2003 reads thus: The 4th respondent had stated that on the date of the accident, this vehicle was in the name of Sh. Gangadhara. But the applicants have proved the said statement as false through documents and on the date of the accident, the vehicle was in the name of the Respondent No.1. 14. In view of the above finding, it can be discerned that on the date of accident, the ownership of the tractor stood transferred from Gangadhara to Jeeva Ratna Setty. In addition to that, a perusal of the Schedule of Premium extracted above shows that an amount of Rs.15-00 has been paid as premium for L.L. to persons employed in connection with the operation and/or loading of vehicle (IMT 19). 15. In view of the above discussion we are of the considered view that as on the date of accident, the deceased workman was in the course of employment of Jeeva Rathna Setty in whose name the ownership of the vehicle stood transferred and the said vehicle was covered under a valid insurance policy, the High Court ought not have simply brushed aside the decision of the Commissioner fastening joint liability on the Insurance Company in the light of the deeming provision contained in Section 157 (1) of the M.V. Act. | 1[ds]14. In view of the above finding, it can be discerned that on the date of accident, the ownership of the tractor stood transferred from Gangadhara to Jeeva Ratna Setty. In addition to that, a perusal of the Schedule of Premium extracted above shows that an amount of Rs.15-00 has been paid as premium for L.L. to persons employed in connection with the operation and/or loading of vehicle (IMT 19)15. In view of the above discussion we are of the considered view that as on the date of accident, the deceased workman was in the course of employment of Jeeva Rathna Setty in whose name the ownership of the vehicle stood transferred and the said vehicle was covered under a valid insurance policy, the High Court ought not have simply brushed aside the decision of the Commissioner fastening joint liability on the Insurance Company in the light of the deeming provision contained in Section 157 (1) of the M.V. Act. | 1 | 1,688 | 180 | ### 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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with the Jeevaratna Setty; it is proved that during the validity period of the said insurance policy, the said vehicle was transferred from Gangadhara to Jeevaratna Setty; as per Section 157(1) of the Motor Vehicles Act, 1968 whenever a vehicle is transferred from one person to another, the benefits of the insurance policy shall also be transferred to the new owner; accordingly instant policy benefits will also be automatically transferred from Gangadhara to Jeevaratna Setty. Therefore, the National Insurance Company shall be liable to pay the compensation and interest thereupon to the claimants. Accordingly, the Commissioner fixed the liability of paying compensation on the Insurance Company and Jeeva Ratna Setty individually and severally and directed them to deposit the amount within a period of 30 days from the date of the Award failing which they shall further be liable to pay interest @ 9% p.a. for the delayed period. The Commissioner, however, discharged Gangadhara (Respondent No. 3) and Laxmana Bhovi, (Respondent No. 4) from the case. 6. Aggrieved by the said order of the learned Commissioner, the Insurance Company (Respondent No. 1) filed M.F.A. No. 3842 of 2003 before the High Court of Karnataka urging that no liability could have been fastened by the Commissioner on the Insurance Company. 7. The High Court, by the impugned order, affirmed the findings of the Commissioner that (i) the deceased workman was actually employed with Jeeva Rathna Shetty, and therefore, there is a relation of employee-employer between them; (ii) the deceased workman having died as a result of an accident arising out of and in the course of employment, hence the claimants as legal representatives of the deceased are entitled to recover compensation, (iii) there was a valid insurance policy in force on the date of accident (iv) and the original owner of the tractor was Gangadhara. However, the High Court excluded the liability of the Insurance Company on the ground that the contention of deemed transfer of the insurance policy in favour of Jeeva Rathna Setty by virtue of Section 157 of M.V. Act was not actually urged before the Commissioner. 8. Against the Judgment of the High Court relieving the Insurance Company from the liability of payment of compensation, the claimants are before this Court in this appeal. 9. We have heard learned counsel for the parties and perused the material on record. 10. Before us, learned counsel for the appellants relying upon Section 157 of the M.V. Act, contended that there is an admitted transfer of ownership of the vehicle as proved before the Commissioner. Once the ownership of the vehicle is admittedly proved to have been transferred to Jeeva Rathna Setty, the existing insurance policy in respect of the same vehicle will also be deemed to have been transferred to the new owner and the policy will not lapse even if the intimation as required under Section 103 of the M.V. Act is not given to the insurer, hence the impugned order passed by the High Court is contrary to law. In support of this contention, learned counsel for the appellant has relied upon a judgment of this Court in G. Govindan Vs. New India Assurance Co. Ltd. (1999) 3 SCC 754. 11. Learned counsel has also brought to our notice a relevant portion from the Schedule of Premium of the insurance policy, a copy of which is available on record as Annexure P-1., which reads thus: B.Liability to Public RiskLiability to TrailorRs. 120-00Rs. 87-00 Add:for L.L. to persons employed in Connection with the operation and/ or loading of vehicle (IMT 19)Rs. 15-00 Add:forincreased third party property damage limits. Section II-I(ii) upto Rs. Unltd. IMT 70Rs. 75-00 TOTAL PREMIUM (A +B) Rs. 1318-00 12. On the other hand, learned counsel for the National Insurance Company, mainly contended that unless it is proved by evidence that the vehicle has been transferred in the name of Jeeva Rathna Setty, the deeming provision of Section 157 of the M.V. Act would not be applicable. In the absence of such evidence on record the High Court has rightly absolved the Insurance Company from the liability and the order passed by the High Court does not require any interference from this Court. 13. The counsel for the Insurance Company of course contended that as per their records, on the date of accident, the vehicle was registered in the name of Gangadhara. Hence in the absence of a valid proof that the ownership of the vehicle has been transferred in the name of Jeeva Ratna Setty, the benefits of insurance policy cannot be given to Jeeva Ratna Setty. However, the said contention is contrary to record. A specific finding by the Commissioner to this effect in his order dated 28th February, 2003 reads thus: The 4th respondent had stated that on the date of the accident, this vehicle was in the name of Sh. Gangadhara. But the applicants have proved the said statement as false through documents and on the date of the accident, the vehicle was in the name of the Respondent No.1. 14. In view of the above finding, it can be discerned that on the date of accident, the ownership of the tractor stood transferred from Gangadhara to Jeeva Ratna Setty. In addition to that, a perusal of the Schedule of Premium extracted above shows that an amount of Rs.15-00 has been paid as premium for L.L. to persons employed in connection with the operation and/or loading of vehicle (IMT 19). 15. In view of the above discussion we are of the considered view that as on the date of accident, the deceased workman was in the course of employment of Jeeva Rathna Setty in whose name the ownership of the vehicle stood transferred and the said vehicle was covered under a valid insurance policy, the High Court ought not have simply brushed aside the decision of the Commissioner fastening joint liability on the Insurance Company in the light of the deeming provision contained in Section 157 (1) of the M.V. Act.
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14. In view of the above finding, it can be discerned that on the date of accident, the ownership of the tractor stood transferred from Gangadhara to Jeeva Ratna Setty. In addition to that, a perusal of the Schedule of Premium extracted above shows that an amount of Rs.15-00 has been paid as premium for L.L. to persons employed in connection with the operation and/or loading of vehicle (IMT 19)15. In view of the above discussion we are of the considered view that as on the date of accident, the deceased workman was in the course of employment of Jeeva Rathna Setty in whose name the ownership of the vehicle stood transferred and the said vehicle was covered under a valid insurance policy, the High Court ought not have simply brushed aside the decision of the Commissioner fastening joint liability on the Insurance Company in the light of the deeming provision contained in Section 157 (1) of the M.V. Act.
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Commissioner of Income Tax, Ahmedabad Vs. Sarabhai Holdings Pvt. Ltd | its Accounting Year, i.e., on 30.6.1978, was not accepted on the ground that the interest that had already accrued during the Accounting Year on the strength of the contractual terms, cannot be made ‘not to accrue after its actual accrual, it cannot be inferred with any certainty that the assessee had reason to believe that its Nil estimate was untrue. The High Court has then held that the penalty under Section 273 (2)(a) of the Act is not an automatic outcome of the addition of such income. It is on this ground that the High Court has set aside the finding of the Tribunal confirming the penalty of Rs.4 lakhs levied under Section 273 (2)(a) of the Act on the assessee.28. We must clarify here that insofar as Assessment Year 1980-81 is concerned, there will be no question of any penalty whatsoever and it had to go as it has been found on facts and law that the Resolution dt. 30.6.1978 had become effective and under the same, the interest was already deferred and, therefore, there was no accrual of interest in that year. However, the question is as to whether the High Court was right in absolving the assessee of the penalty, which was inflicted even for the year 1979-80. The learned Senior Counsel, appearing on behalf of Revenue very earnestly argued that once the interest was found to have been accrued for the Assessment Year 1979-80 and once on that count, the income of the assessee was held to be Rs.66,29,236/-, then the penalty under Section 273(2)(a) of the Act was a natural consequence and that the High Court should not have put a specific burden on Revenue to prove that the estimate of advance tax payable by it was not only untrue, but the assessee also knew and had reason to believe it to be untrue.29. We do not agree, considering the specific language of the Section squarely. The Section runs as under: "273(2) If the Assessing Officer, in the course of any proceedings in connection with the regular assessment for the assessment year commencing on the 1st day of April, 1970, or any subsequent assessment year, is satisfied that any assessee- (a) has furnished under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (5) of Section 209A, or under sub-section (1) or sub-section (2) of Section 212, an estimate of the advance tax payable by him which he knew or had reason to believe to be untrue."(b)..............................................................................(c).............................................................................." The specific wording would signify that there has to be a satisfaction of the Assessing Officer that the estimate of advance tax furnished by the assessee was not only untrue, but the assessee also knew or had reason to believe the same to be untrue. In the present case, there can be no dispute that the claim of the assessee in respect of the Assessment Year 1979-80 was not accepted. However, in our opinion, in the peculiar facts of this case, it cannot be said that the assessee had knowledge of its estimate of advance tax to be untrue or had reason to believe the same to be untrue. The assessee had, undoubtedly, claimed the waiving of that interest as a natural corollary of the Resolution dt. 30.6.1978. It was also claimed that the assessee had commercial expediency for doing the same. It was tried to show that such commercial expediency arose by the subsequent agreement, whereby, the Elscope had agreed to provide the security for the amount due from it. Assessee had, therefore, furnished its estimate for the advance tax as Nil, as it claimed that it had the income of only about Rs.800/-. In the subsequent year, the assessee claimed the loss of about Rs.17,000/-. Though the attempt on the part of the assessee was to give up the accrued interest in the name of commercial expediency, there was no valid justification to relinquish the same, as has been found by the High Court. The High Court has also specifically found that the only aim was to avoid payment of tax which had become due on the basis of the accrual of interest and commercial expediency was only a dignified guard in which the arrangement made to evade the tax was sought to be covered. However, it was shown to the High Court that the penalties levied under Section 273(2)(a) of the Act were determined in case of two companies of the same Group, they being, Fabriquip Pvt. Ltd. and Packart Pvt. Ltd., wherein, it was held that the Resolution passed on 30.06.1978 for the foregoing interest had become applicable from 1.7.1978. The High Court took the view that the levy of interest under Section 215 of the Act and the levy of penalty under Section 273(2)(a) of the Act stand on different footings. We have no hesitation to accept this view of the High Court. Indeed, while the levy of interest under Section 215 of the Act is automatic, that is not the case with the penalty under Section 273(2)(a) of the Act, where the mensrea on the part of the assessee would have to be shown to the extent, it has been indicated in the language of the Section, where, therefore, there was some scope for the assessee to justify the estimate given by it and that the penalty could not be inflicted. Indeed, if the assessee in this case proceeded on the basis of Resolution dt. 30.6.1978, it has to be held that the assessee had reasonably believed that the income of interest which was written off by the Resolution, could not be added to its income. If it genuinely proceeded under that bonafide impression, then in our opinion, the High Court was right in writing off the penalty and upsetting the view of the Tribunal. We accept the finding of the High Court, which is in the following words: "....no definite conclusion can be drawn that the assessee had reason to believe that the Nil estimate filed by it was untrue....." | 0[ds]3. Before we go further, it must be clarified that insofar as Assessment Year 1979-80 is concerned, the High Court answered the Reference No. 56 of 1986 in favour of the Revenue, while insofar as Assessment Year 1980-81 is concerned, the High Court answered it in favour of the assessee and against the Revenue. The assessee has not challenged the judgment of the High Court insofar as Assessment Year 1979-80 is concerned, therefore, we need not consider that part of the High Court judgment, though we might be required to incidentally refer to the same. Thus, we are left with Reference No. 56 of 1986 insofar as it pertains to Assessment Year 1980-81 and the Reference No. 220 of 1995. We must again clarify that though in Reference No. 220 of 1995, the High Court found against the assessee in respect of Assessment Year 1979-80, the penalty, however, of Rs.4 lakhs was set aside. We are, therefore, concerned in Reference No. 220 of 1995, only with Assessment Year 1979-80.We agree with the High Courts finding that the law permits the contracting parties to lawfully change their stipulations by mutual agreement and, therefore, the assessee and the vendee had no legal impediment in modifying the terms of their contract. We also agree with the further finding of the High Court that the Resolution could not be given any retrospective effect so as to facilitate evasion of tax liability that had already arisen for the Assessment Year 1979-80. We further agree with the High Courts finding that it being a valid stipulation, changed the mode of payment from the date of the Resolution and, therefore, under the changed mode of payment adopted under the Resolution dt. 30.6.1978, no interest was to accrue during the Accounting period from 1.7.1978 up to 30.6.1979 and, therefore, the reasoning of the Tribunal on that count appeared to be correct as regards the Assessment Year 1980-81 is concerned. We further confirm the finding that since no interest had accrued in the Accounting Year 1.7.1978 to 30.6.1979, there could arise no question of relinquishment of interest for any commercial expediency. There was no such question because a party cannot relinquish income that has not accrued at all. We, therefore, accept the judgment of the High Court insofar as it pertains to the Reference No. 56 of 1986. The High Court has correctly found that in view of the categorical stipulation that interest will be payable on the deferred consideration amount in respect of the sale, which became effective from 1.3.1977, the interest started accruing on that time basis, from 1.3.1977 determined by the amount outstanding from time to time and the rate applicable which both were stipulated in clearest possible terms in the Deed of Assignment dt. 28.6.1977 and the agreements which preceded it. The High Court has assessed the facts correctly and has further observed in para 14.7 that what already accrued during the Accounting Year 1.7.1977 to 30.6.1978 could not be nullified by the Resolution dt. 30.6.1978, however, the same rule could not be applicable to the subsequent Accounting Year, when the interest had not accrued. We, therefore, confirm the finding of the High Court insofar as Reference No. 56 of 1986 is concerned and hold that the High Court had correctly decided the Reference No. 56 of 1986 insofar as it pertains to Assessment Year 1980-81.27. This takes us to the finding of the High Court insofar as the Reference No. 220 of 1995 is concerned. In this case, the authorities below and the Tribunal had held that while filing the Nil estimate of advance tax on 14.12.1978, the appellant had full knowledge of the interest income of Rs.66,29,236/- which had accrued and though all this was known to the assessee, he had filed the Nil estimate knowingly or it had reason to believe that the Nil estimate was untrue. The High Court while dealing with the issue, took the view that the burden was on Revenue to establish under Section 273 (2)(a) of the Act that the assessee, when it filed the Nil estimate, knew or had reason to believe that it was not genuine and was spurious. The High Court, however, took the view that the Resolution dt. 30.6.1978 was not doubted by the authorities to be spurious and under that Resolution, the date of accrual of interest was shifted to 1.7.1979 by substituting the mode of payment as was incorporated in the agreement and the Deed of Assignment. It was pointed out by the High Court further that the Nil estimate, was filed on 14.12.1978, i.e., much after the said Resolution was passed. The High Court, therefore, took the view that in the background of the said Resolution, by which the assessee intended to shift the accrual of interest to 1.7.1979, it is difficult to accept that the assessee had reason to believe that the Nil estimate was untrue. The High Court further holds the possibility that the assessee reasonably believed that in view of the Resolution dt. 30.6.1978, it could legitimately file the Nil estimate, cannot be ruled out. Further, in view of the nature of the change in stipulation of mode of payment made by Resolution dt. 30.6.1978, no definite conclusion can be drawn that the assessee had reason to believe that the Nil estimate filed was untrue. Merely because on assessment, the assessees stand that the Resolution which was passed on the last day of its Accounting Year, i.e., on 30.6.1978, was not accepted on the ground that the interest that had already accrued during the Accounting Year on the strength of the contractual terms, cannot be made ‘not to accrue after its actual accrual, it cannot be inferred with any certainty that the assessee had reason to believe that its Nil estimate was untrue. The High Court has then held that the penalty under Section 273(2)(a) of the Act is not an automatic outcome of the addition of such income. It is on this ground that the High Court has set aside the finding of the Tribunal confirming the penalty of Rs.4 lakhs levied under Section 273 (2)(a) of the Act on the assessee.28. We must clarify here that insofar as Assessment Year 1980-81 is concerned, there will be no question of any penalty whatsoever and it had to go as it has been found on facts and law that the Resolution dt. 30.6.1978 had become effective and under the same, the interest was already deferred and, therefore, there was no accrual of interest in that year. However, the question is as to whether the High Court was right in absolving the assessee of the penalty, which was inflicted even for the year 1979-80. The learned Senior Counsel, appearing on behalf of Revenue very earnestly argued that once the interest was found to have been accrued for the Assessment Year 1979-80 and once on that count, the income of the assessee was held to be Rs.66,29,236/-, then the penalty under Section 273(2)(a) of the Act was a natural consequence and that the High Court should not have put a specific burden on Revenue to prove that the estimate of advance tax payable by it was not only untrue, but the assessee also knew and had reason to believe it to be untrue.29. We do not agree, considering the specific language of the Section squarely. The Section runs asIf the Assessing Officer, in the course of any proceedings in connection with the regular assessment for the assessment year commencing on the 1st day of April, 1970, or any subsequent assessment year, is satisfied that any assessee- (a) has furnished under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (5) of Section 209A, or under sub-section (1) or sub-section (2) of Section 212, an estimate of the advance tax payable by him which he knew or had reason to believe to bespecific wording would signify that there has to be a satisfaction of the Assessing Officer that the estimate of advance tax furnished by the assessee was not only untrue, but the assessee also knew or had reason to believe the same to be untrue. In the present case, there can be no dispute that the claim of the assessee in respect of the Assessment Year 1979-80 was not accepted. However, in our opinion, in the peculiar facts of this case, it cannot be said that the assessee had knowledge of its estimate of advance tax to be untrue or had reason to believe the same to be untrue. The assessee had, undoubtedly, claimed the waiving of that interest as a natural corollary of the Resolution dt. 30.6.1978. It was also claimed that the assessee had commercial expediency for doing the same. It was tried to show that such commercial expediency arose by the subsequent agreement, whereby, the Elscope had agreed to provide the security for the amount due from it. Assessee had, therefore, furnished its estimate for the advance tax as Nil, as it claimed that it had the income of only about Rs.800/-. In the subsequent year, the assessee claimed the loss of about Rs.17,000/-. Though the attempt on the part of the assessee was to give up the accrued interest in the name of commercial expediency, there was no valid justification to relinquish the same, as has been found by the High Court. The High Court has also specifically found that the only aim was to avoid payment of tax which had become due on the basis of the accrual of interest and commercial expediency was only a dignified guard in which the arrangement made to evade the tax was sought to be covered. However, it was shown to the High Court that the penalties levied under Section 273(2)(a) of the Act were determined in case of two companies of the same Group, they being, Fabriquip Pvt. Ltd. and Packart Pvt. Ltd., wherein, it was held that the Resolution passed on 30.06.1978 for the foregoing interest had become applicable from 1.7.1978. The High Court took the view that the levy of interest under Section 215 of the Act and the levy of penalty under Section 273(2)(a) of the Act stand on different footings. We have no hesitation to accept this view of the High Court. Indeed, while the levy of interest under Section 215 of the Act is automatic, that is not the case with the penalty under Section 273(2)(a) of the Act, where the mensrea on the part of the assessee would have to be shown to the extent, it has been indicated in the language of the Section, where, therefore, there was some scope for the assessee to justify the estimate given by it and that the penalty could not be inflicted. Indeed, if the assessee in this case proceeded on the basis of Resolution dt. 30.6.1978, it has to be held that the assessee had reasonably believed that the income of interest which was written off by the Resolution, could not be added to its income. If it genuinely proceeded under that bonafide impression, then in our opinion, the High Court was right in writing off the penalty and upsetting the view of the Tribunal. We accept the finding of the High Court, which is in the followingdefinite conclusion can be drawn that the assessee had reason to believe that the Nil estimate filed by it was | 0 | 6,054 | 2,134 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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its Accounting Year, i.e., on 30.6.1978, was not accepted on the ground that the interest that had already accrued during the Accounting Year on the strength of the contractual terms, cannot be made ‘not to accrue after its actual accrual, it cannot be inferred with any certainty that the assessee had reason to believe that its Nil estimate was untrue. The High Court has then held that the penalty under Section 273 (2)(a) of the Act is not an automatic outcome of the addition of such income. It is on this ground that the High Court has set aside the finding of the Tribunal confirming the penalty of Rs.4 lakhs levied under Section 273 (2)(a) of the Act on the assessee.28. We must clarify here that insofar as Assessment Year 1980-81 is concerned, there will be no question of any penalty whatsoever and it had to go as it has been found on facts and law that the Resolution dt. 30.6.1978 had become effective and under the same, the interest was already deferred and, therefore, there was no accrual of interest in that year. However, the question is as to whether the High Court was right in absolving the assessee of the penalty, which was inflicted even for the year 1979-80. The learned Senior Counsel, appearing on behalf of Revenue very earnestly argued that once the interest was found to have been accrued for the Assessment Year 1979-80 and once on that count, the income of the assessee was held to be Rs.66,29,236/-, then the penalty under Section 273(2)(a) of the Act was a natural consequence and that the High Court should not have put a specific burden on Revenue to prove that the estimate of advance tax payable by it was not only untrue, but the assessee also knew and had reason to believe it to be untrue.29. We do not agree, considering the specific language of the Section squarely. The Section runs as under: "273(2) If the Assessing Officer, in the course of any proceedings in connection with the regular assessment for the assessment year commencing on the 1st day of April, 1970, or any subsequent assessment year, is satisfied that any assessee- (a) has furnished under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (5) of Section 209A, or under sub-section (1) or sub-section (2) of Section 212, an estimate of the advance tax payable by him which he knew or had reason to believe to be untrue."(b)..............................................................................(c).............................................................................." The specific wording would signify that there has to be a satisfaction of the Assessing Officer that the estimate of advance tax furnished by the assessee was not only untrue, but the assessee also knew or had reason to believe the same to be untrue. In the present case, there can be no dispute that the claim of the assessee in respect of the Assessment Year 1979-80 was not accepted. However, in our opinion, in the peculiar facts of this case, it cannot be said that the assessee had knowledge of its estimate of advance tax to be untrue or had reason to believe the same to be untrue. The assessee had, undoubtedly, claimed the waiving of that interest as a natural corollary of the Resolution dt. 30.6.1978. It was also claimed that the assessee had commercial expediency for doing the same. It was tried to show that such commercial expediency arose by the subsequent agreement, whereby, the Elscope had agreed to provide the security for the amount due from it. Assessee had, therefore, furnished its estimate for the advance tax as Nil, as it claimed that it had the income of only about Rs.800/-. In the subsequent year, the assessee claimed the loss of about Rs.17,000/-. Though the attempt on the part of the assessee was to give up the accrued interest in the name of commercial expediency, there was no valid justification to relinquish the same, as has been found by the High Court. The High Court has also specifically found that the only aim was to avoid payment of tax which had become due on the basis of the accrual of interest and commercial expediency was only a dignified guard in which the arrangement made to evade the tax was sought to be covered. However, it was shown to the High Court that the penalties levied under Section 273(2)(a) of the Act were determined in case of two companies of the same Group, they being, Fabriquip Pvt. Ltd. and Packart Pvt. Ltd., wherein, it was held that the Resolution passed on 30.06.1978 for the foregoing interest had become applicable from 1.7.1978. The High Court took the view that the levy of interest under Section 215 of the Act and the levy of penalty under Section 273(2)(a) of the Act stand on different footings. We have no hesitation to accept this view of the High Court. Indeed, while the levy of interest under Section 215 of the Act is automatic, that is not the case with the penalty under Section 273(2)(a) of the Act, where the mensrea on the part of the assessee would have to be shown to the extent, it has been indicated in the language of the Section, where, therefore, there was some scope for the assessee to justify the estimate given by it and that the penalty could not be inflicted. Indeed, if the assessee in this case proceeded on the basis of Resolution dt. 30.6.1978, it has to be held that the assessee had reasonably believed that the income of interest which was written off by the Resolution, could not be added to its income. If it genuinely proceeded under that bonafide impression, then in our opinion, the High Court was right in writing off the penalty and upsetting the view of the Tribunal. We accept the finding of the High Court, which is in the following words: "....no definite conclusion can be drawn that the assessee had reason to believe that the Nil estimate filed by it was untrue....."
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that the Resolution which was passed on the last day of its Accounting Year, i.e., on 30.6.1978, was not accepted on the ground that the interest that had already accrued during the Accounting Year on the strength of the contractual terms, cannot be made ‘not to accrue after its actual accrual, it cannot be inferred with any certainty that the assessee had reason to believe that its Nil estimate was untrue. The High Court has then held that the penalty under Section 273(2)(a) of the Act is not an automatic outcome of the addition of such income. It is on this ground that the High Court has set aside the finding of the Tribunal confirming the penalty of Rs.4 lakhs levied under Section 273 (2)(a) of the Act on the assessee.28. We must clarify here that insofar as Assessment Year 1980-81 is concerned, there will be no question of any penalty whatsoever and it had to go as it has been found on facts and law that the Resolution dt. 30.6.1978 had become effective and under the same, the interest was already deferred and, therefore, there was no accrual of interest in that year. However, the question is as to whether the High Court was right in absolving the assessee of the penalty, which was inflicted even for the year 1979-80. The learned Senior Counsel, appearing on behalf of Revenue very earnestly argued that once the interest was found to have been accrued for the Assessment Year 1979-80 and once on that count, the income of the assessee was held to be Rs.66,29,236/-, then the penalty under Section 273(2)(a) of the Act was a natural consequence and that the High Court should not have put a specific burden on Revenue to prove that the estimate of advance tax payable by it was not only untrue, but the assessee also knew and had reason to believe it to be untrue.29. We do not agree, considering the specific language of the Section squarely. The Section runs asIf the Assessing Officer, in the course of any proceedings in connection with the regular assessment for the assessment year commencing on the 1st day of April, 1970, or any subsequent assessment year, is satisfied that any assessee- (a) has furnished under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (5) of Section 209A, or under sub-section (1) or sub-section (2) of Section 212, an estimate of the advance tax payable by him which he knew or had reason to believe to bespecific wording would signify that there has to be a satisfaction of the Assessing Officer that the estimate of advance tax furnished by the assessee was not only untrue, but the assessee also knew or had reason to believe the same to be untrue. In the present case, there can be no dispute that the claim of the assessee in respect of the Assessment Year 1979-80 was not accepted. However, in our opinion, in the peculiar facts of this case, it cannot be said that the assessee had knowledge of its estimate of advance tax to be untrue or had reason to believe the same to be untrue. The assessee had, undoubtedly, claimed the waiving of that interest as a natural corollary of the Resolution dt. 30.6.1978. It was also claimed that the assessee had commercial expediency for doing the same. It was tried to show that such commercial expediency arose by the subsequent agreement, whereby, the Elscope had agreed to provide the security for the amount due from it. Assessee had, therefore, furnished its estimate for the advance tax as Nil, as it claimed that it had the income of only about Rs.800/-. In the subsequent year, the assessee claimed the loss of about Rs.17,000/-. Though the attempt on the part of the assessee was to give up the accrued interest in the name of commercial expediency, there was no valid justification to relinquish the same, as has been found by the High Court. The High Court has also specifically found that the only aim was to avoid payment of tax which had become due on the basis of the accrual of interest and commercial expediency was only a dignified guard in which the arrangement made to evade the tax was sought to be covered. However, it was shown to the High Court that the penalties levied under Section 273(2)(a) of the Act were determined in case of two companies of the same Group, they being, Fabriquip Pvt. Ltd. and Packart Pvt. Ltd., wherein, it was held that the Resolution passed on 30.06.1978 for the foregoing interest had become applicable from 1.7.1978. The High Court took the view that the levy of interest under Section 215 of the Act and the levy of penalty under Section 273(2)(a) of the Act stand on different footings. We have no hesitation to accept this view of the High Court. Indeed, while the levy of interest under Section 215 of the Act is automatic, that is not the case with the penalty under Section 273(2)(a) of the Act, where the mensrea on the part of the assessee would have to be shown to the extent, it has been indicated in the language of the Section, where, therefore, there was some scope for the assessee to justify the estimate given by it and that the penalty could not be inflicted. Indeed, if the assessee in this case proceeded on the basis of Resolution dt. 30.6.1978, it has to be held that the assessee had reasonably believed that the income of interest which was written off by the Resolution, could not be added to its income. If it genuinely proceeded under that bonafide impression, then in our opinion, the High Court was right in writing off the penalty and upsetting the view of the Tribunal. We accept the finding of the High Court, which is in the followingdefinite conclusion can be drawn that the assessee had reason to believe that the Nil estimate filed by it was
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UNION OF INDIA Vs. RELIANCE COMMUNICATION LIMITED | i.e. the excess amounts and also the release of the bank guarantee amounting to 108.95 crores. 6. The Union disputed its liability before the TDSAT and relied upon Para 4.5b(x) of the NIA 2015 and also alleged that default interest was payable and furthermore, that RCL had defaulted in payment of spectrum instalment to the tune of 795.77 crores in March-April 2019. 7. The TDSAT, by its impugned order, partly allowed the respondents application after noting the Unions reservations and objections. The TDSAT observed as follows: In our considered view the request of the respondent would amount to a demand for enhanced bank guarantee for other purposes. This cannot be achieved through the method of encashment of bank guarantees furnished for deferred Spectrum Charges. The existing charges against the petitioner have already been taken note of and an amount of Rs.30.33 crores approx. has been adjusted out of the encashed amount of Rs.908 crores. The remaining amount of Rs.104.34 crores is lying and unadjusted amount should be returned to the petitioner without prejudice to the rights of either of the parties for any other charges which the petitioner may be found to be liable to pay. Since the petitioner has reservations against the adjusted amount of Rs.30.33 crores, it may file its reply by way of rejoinder within three weeks. Post the matter under the same head on 29.1.2019. 8. The Union contends that TDSATs impugned order is contrary to clause 4.5b(ix) of NIA 2013 under the corresponding provision, i.e. Clause 4.5b(x) of NIA 2015 as well as other conditions such as clauses 13.1 and 13.2 of the license agreement. It further contends that the respondents could not have been granted relief given the fact that they went into liquidation and were continuously defaulting in spectrum deferred payments; the Union also cites the default to the extent of 21.53 crores – with overdue interest amount working out to 27.63 crores as on 03.03.2019. It, therefore, contended that the question of refund of excess amounts retained could not arise. It was lastly contended that in any case, these issues could not have been gone in execution proceedings but were properly the subject matter of substantive proceedings. 9. The respondents argue that the Unions refusal to refund the money amounts to its unjust enrichment at their cost. The Union has no right over the excess money directed to be refunded by the Tribunal. It is submitted that despite the directions of the TDSAT, the Union has refused to refund the money. It is further submitted that encashment of the bank guarantees in respect of the subsequent default of the deferred spectrum instalments for the year 2019 was stayed by the NCLAT (National Company Law Appellate Tribunal). Thereafter, the moratorium was revived qua the Respondents and therefore, the appropriate remedy available to the Union was under the IBC (Insolvency and Bankruptcy Code). The Union, it is stated, has already filed its claim before the resolution professional for the said deferred spectrum instalments for the year 2019. Therefore, it cannot be permitted to claim adjustment of the unlawfully encashed amount towards subsequent deferred spectrum liabilities. The respondents also urge that a subsequent default of the deferred spectrum instalment for the year 2019, is a separate cause of action and the Union has remedies in law to recover those so called dues. It cannot arbitrarily and illegally withhold return of excess amount, despite there being a judicial order to the effect. 10. The facts narrated above show that the respondent-licencees faced financial constraints; apparently telecom service providers as a class also faced some financial stress, which triggered the Union to revisit its policy and ultimately modify the terms of payment of deferred payment charges and consequently, the letter of 19.03.2018. Despite these, the respondent licensees could not fulfil the conditions of the licenses held by them (i.e. NIA 2013 and NIA 2015) vis-à-vis payment of deferred spectrum charges; they approached the TDSAT, but without success. Their appeals to this court fared better; the time for making payment was extended somewhat. Upon default (in payment of the charges), the Union invoked guarantees under the sets of licenses. The respondent licencees pointed out to the Union repeatedly, that despite the furnishing of requisite guarantees (to the extent of 774.25 crores) later (on 19 th August, 2018) the excess amounts i.e. amount after adjusting the invoked guarantees towards the deferred charges had to be refunded. The Union did not do so; consequently RCL/RTL approached TDSAT for a direction in execution proceedings. Their claim was accepted inasmuch as the impugned direction was issued. 11. On a recapitulation of all circumstances, and the various terms of NIA 2013 and NIA 2015, this court is of the opinion that the order of the TDSAT does not call for any interference. The Union nowhere disputes that the respondent licensees liability toward payment of deferred spectrum charges, in May, 2018, was to the tune of 774.25 crores. The total amount realized upon encashment of the bank guarantees furnished by the respondents, however, was to the extent of 908.91 crores. It is also a matter of record that the respondents furnished another bank guarantee to the tune of 774.25 crores.There is consequently logic and merit in the contention of RCL/RTL that the Union unreasonably refused to refund the excess amounts. The Unions argument that there were subsequent defaults or short payments in respect of liability towards later periods, or its objection that the impugned directions could not have been issued in execution proceedings, are insubstantial. As noticed earlier, the bank guarantees for the later periods were furnished by the respondents (to the extent of 774.25 crores). In these circumstances, there is no rationale for the Union to resist the demand for refund of excess amounts. The TDSAT, in the opinion of this court, exercised its discretion, with respect, circumspectly, because the entire amount of 134.66 crores claimed in the application was not allowed; rather the direction issued was in respect of 104. 34 crores. | 0[ds]10. The facts narrated above show that the respondent-licencees faced financial constraints; apparently telecom service providers as a class also faced some financial stress, which triggered the Union to revisit its policy and ultimately modify the terms of payment of deferred payment charges and consequently, the letter of 19.03.2018. Despite these, the respondent licensees could not fulfil the conditions of the licenses held by them (i.e. NIA 2013 and NIA 2015) vis-à-vis payment of deferred spectrum charges; they approached the TDSAT, but without success. Their appeals to this court fared better; the time for making payment was extended somewhat. Upon default (in payment of the charges), the Union invoked guarantees under the sets of licenses. The respondent licencees pointed out to the Union repeatedly, that despite the furnishing of requisite guarantees (to the extent of 774.25 crores) later (on 19 th August, 2018) the excess amounts i.e. amount after adjusting the invoked guarantees towards the deferred charges had to be refunded. The Union did not do so; consequently RCL/RTL approached TDSAT for a direction in execution proceedings. Their claim was accepted inasmuch as the impugned direction was issued11. On a recapitulation of all circumstances, and the various terms of NIA 2013 and NIA 2015, this court is of the opinion that the order of the TDSAT does not call for any interference. The Union nowhere disputes that the respondent licensees liability toward payment of deferred spectrum charges, in May, 2018, was to the tune of 774.25 crores.The total amount realized upon encashment of the bank guarantees furnished by the respondents, however, was to the extent of 908.91 crores. It is also a matter of recordthat the respondents furnished another bank guarantee to the tune of 774.25 crores.There is consequently logic and merit in the contention of RCL/RTL that the Union unreasonably refused to refund the excess amounts. The Unions argument that there were subsequent defaults or short payments in respect of liability towards later periods, or its objection that the impugned directions could not have been issued in execution proceedings, are insubstantial. As noticed earlier, the bank guarantees for the later periods were furnished by the respondents (to the extent of 774.25 crores). In these circumstances, there is no rationale for the Union to resist the demand for refund of excess amounts. The TDSAT, in the opinion of this court, exercised its discretion, with respect, circumspectly, because the entire amount of 134.66 crores claimed in the application was not allowed; rather the direction issued was in respect of 104. 34 crores. | 0 | 1,911 | 481 | ### 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:
i.e. the excess amounts and also the release of the bank guarantee amounting to 108.95 crores. 6. The Union disputed its liability before the TDSAT and relied upon Para 4.5b(x) of the NIA 2015 and also alleged that default interest was payable and furthermore, that RCL had defaulted in payment of spectrum instalment to the tune of 795.77 crores in March-April 2019. 7. The TDSAT, by its impugned order, partly allowed the respondents application after noting the Unions reservations and objections. The TDSAT observed as follows: In our considered view the request of the respondent would amount to a demand for enhanced bank guarantee for other purposes. This cannot be achieved through the method of encashment of bank guarantees furnished for deferred Spectrum Charges. The existing charges against the petitioner have already been taken note of and an amount of Rs.30.33 crores approx. has been adjusted out of the encashed amount of Rs.908 crores. The remaining amount of Rs.104.34 crores is lying and unadjusted amount should be returned to the petitioner without prejudice to the rights of either of the parties for any other charges which the petitioner may be found to be liable to pay. Since the petitioner has reservations against the adjusted amount of Rs.30.33 crores, it may file its reply by way of rejoinder within three weeks. Post the matter under the same head on 29.1.2019. 8. The Union contends that TDSATs impugned order is contrary to clause 4.5b(ix) of NIA 2013 under the corresponding provision, i.e. Clause 4.5b(x) of NIA 2015 as well as other conditions such as clauses 13.1 and 13.2 of the license agreement. It further contends that the respondents could not have been granted relief given the fact that they went into liquidation and were continuously defaulting in spectrum deferred payments; the Union also cites the default to the extent of 21.53 crores – with overdue interest amount working out to 27.63 crores as on 03.03.2019. It, therefore, contended that the question of refund of excess amounts retained could not arise. It was lastly contended that in any case, these issues could not have been gone in execution proceedings but were properly the subject matter of substantive proceedings. 9. The respondents argue that the Unions refusal to refund the money amounts to its unjust enrichment at their cost. The Union has no right over the excess money directed to be refunded by the Tribunal. It is submitted that despite the directions of the TDSAT, the Union has refused to refund the money. It is further submitted that encashment of the bank guarantees in respect of the subsequent default of the deferred spectrum instalments for the year 2019 was stayed by the NCLAT (National Company Law Appellate Tribunal). Thereafter, the moratorium was revived qua the Respondents and therefore, the appropriate remedy available to the Union was under the IBC (Insolvency and Bankruptcy Code). The Union, it is stated, has already filed its claim before the resolution professional for the said deferred spectrum instalments for the year 2019. Therefore, it cannot be permitted to claim adjustment of the unlawfully encashed amount towards subsequent deferred spectrum liabilities. The respondents also urge that a subsequent default of the deferred spectrum instalment for the year 2019, is a separate cause of action and the Union has remedies in law to recover those so called dues. It cannot arbitrarily and illegally withhold return of excess amount, despite there being a judicial order to the effect. 10. The facts narrated above show that the respondent-licencees faced financial constraints; apparently telecom service providers as a class also faced some financial stress, which triggered the Union to revisit its policy and ultimately modify the terms of payment of deferred payment charges and consequently, the letter of 19.03.2018. Despite these, the respondent licensees could not fulfil the conditions of the licenses held by them (i.e. NIA 2013 and NIA 2015) vis-à-vis payment of deferred spectrum charges; they approached the TDSAT, but without success. Their appeals to this court fared better; the time for making payment was extended somewhat. Upon default (in payment of the charges), the Union invoked guarantees under the sets of licenses. The respondent licencees pointed out to the Union repeatedly, that despite the furnishing of requisite guarantees (to the extent of 774.25 crores) later (on 19 th August, 2018) the excess amounts i.e. amount after adjusting the invoked guarantees towards the deferred charges had to be refunded. The Union did not do so; consequently RCL/RTL approached TDSAT for a direction in execution proceedings. Their claim was accepted inasmuch as the impugned direction was issued. 11. On a recapitulation of all circumstances, and the various terms of NIA 2013 and NIA 2015, this court is of the opinion that the order of the TDSAT does not call for any interference. The Union nowhere disputes that the respondent licensees liability toward payment of deferred spectrum charges, in May, 2018, was to the tune of 774.25 crores. The total amount realized upon encashment of the bank guarantees furnished by the respondents, however, was to the extent of 908.91 crores. It is also a matter of record that the respondents furnished another bank guarantee to the tune of 774.25 crores.There is consequently logic and merit in the contention of RCL/RTL that the Union unreasonably refused to refund the excess amounts. The Unions argument that there were subsequent defaults or short payments in respect of liability towards later periods, or its objection that the impugned directions could not have been issued in execution proceedings, are insubstantial. As noticed earlier, the bank guarantees for the later periods were furnished by the respondents (to the extent of 774.25 crores). In these circumstances, there is no rationale for the Union to resist the demand for refund of excess amounts. The TDSAT, in the opinion of this court, exercised its discretion, with respect, circumspectly, because the entire amount of 134.66 crores claimed in the application was not allowed; rather the direction issued was in respect of 104. 34 crores.
### Response:
0
### Explanation:
10. The facts narrated above show that the respondent-licencees faced financial constraints; apparently telecom service providers as a class also faced some financial stress, which triggered the Union to revisit its policy and ultimately modify the terms of payment of deferred payment charges and consequently, the letter of 19.03.2018. Despite these, the respondent licensees could not fulfil the conditions of the licenses held by them (i.e. NIA 2013 and NIA 2015) vis-à-vis payment of deferred spectrum charges; they approached the TDSAT, but without success. Their appeals to this court fared better; the time for making payment was extended somewhat. Upon default (in payment of the charges), the Union invoked guarantees under the sets of licenses. The respondent licencees pointed out to the Union repeatedly, that despite the furnishing of requisite guarantees (to the extent of 774.25 crores) later (on 19 th August, 2018) the excess amounts i.e. amount after adjusting the invoked guarantees towards the deferred charges had to be refunded. The Union did not do so; consequently RCL/RTL approached TDSAT for a direction in execution proceedings. Their claim was accepted inasmuch as the impugned direction was issued11. On a recapitulation of all circumstances, and the various terms of NIA 2013 and NIA 2015, this court is of the opinion that the order of the TDSAT does not call for any interference. The Union nowhere disputes that the respondent licensees liability toward payment of deferred spectrum charges, in May, 2018, was to the tune of 774.25 crores.The total amount realized upon encashment of the bank guarantees furnished by the respondents, however, was to the extent of 908.91 crores. It is also a matter of recordthat the respondents furnished another bank guarantee to the tune of 774.25 crores.There is consequently logic and merit in the contention of RCL/RTL that the Union unreasonably refused to refund the excess amounts. The Unions argument that there were subsequent defaults or short payments in respect of liability towards later periods, or its objection that the impugned directions could not have been issued in execution proceedings, are insubstantial. As noticed earlier, the bank guarantees for the later periods were furnished by the respondents (to the extent of 774.25 crores). In these circumstances, there is no rationale for the Union to resist the demand for refund of excess amounts. The TDSAT, in the opinion of this court, exercised its discretion, with respect, circumspectly, because the entire amount of 134.66 crores claimed in the application was not allowed; rather the direction issued was in respect of 104. 34 crores.
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Krapa Rangiah Vs. Special Deputy Collector, Land Acquisition | Tulzapurkar, J.1. The only question raised in these appeals is whether the High Court was justified in reducing the rate at which compensation was granted by the City Civil Court for the lands acquired for the A.P. Housing Board for construction of houses under the Composite Housing Scheme. Two pieces of lands were acquired bearing Survey 114 admeasuring 4 acres and 25 guntas and Survey 115 measuring 6 acres and 21 guntas (totalling to 51366 square yards) under the Notification in question along with 15 other survey numbers. The Land Acquisition Officer granted compensation at the rate of Rs 6 per square yard for 21385 sq. yds. comprising Survey 114 and at the rate of Rs 6.50 per sq. yd. for 29981 sq. yds. comprising Survey 115. The claimant got a reference made to the City Civil Court which enhanced the compensation at a uniform rate of Rs 10 per sq. yd. The State preferred an appeal to the High Court while the claimant also preferred his appeal claiming still higher compensation over and above that was granted by the City Civil Court. The High Court dismissed the claimants appeal but allowed the States appeal granting compensation at the rate of Rs 7 per sq. yd. It is this judgment of the High Court that has been challenged by the claimant in the appeals before us.2. for the claimant has urged that the High Court has in another claim proceeding in respect of certain lands which had been acquired under the selfsame Notification granted compensation at the rate of Rs 9 per sq. yd. It has been pointed out that in Appeal No. 50 of 1970 decided subsequently in respect of lands covered by Surveys 173, 101, 112 and 121-B acquired under the same Notification compensation has been awarded by the High Court at the rate of Rs 9 per sq. yd. and since these lands, particularly land covered by Survey 112, are adjoining the lands in question it would be rather inequitable and discriminatory to grant lesser compensation at the rate of Rs 7 per sq. yd. as has been done by the High Court in the instant case. It is further pointed out that area of Survey 112 is also large, comparable to the area covered by the two surveys in question and in view of this subsequent judgment of the High Court which has become final, there being no appeal preferred by the State to this Court, the same rate should be granted to the present claimant. We find considerable force in the contention of the claimant.3. Counsel for the State however contended before us that the judgment under appeal according to him is a more reasoned one than the judgment of the High Court in which compensation at the rate of Rs 9 per sq. yd. has been awarded and on merits the rate of Rs 7 per sq. yd. at which the compensation has been awarded is justified and should not be interfered with. It is not possible for us to accept this contention. Having gone through both the judgments we are not impressed by the argument that the judgment of the High Court in the subsequent case in which compensation at the rate of Rs 9 was awarded is not a reasoned judgment or that it is any less reasoned than the judgment under appeal. The area being comparable, the situation also being the same and all the plots having been acquired under the selfsame notification for Housing Scheme it seems to us proper that the same rate of compensation should be awarded to the claimant herein as was awarded by the High Court in Appeal No. 50 of 1970. | 1[ds]3. Counsel for the State however contended before us that the judgment under appeal according to him is a more reasoned one than the judgment of the High Court in which compensation at the rate of Rs 9 per sq. yd. has been awarded and on merits the rate of Rs 7 per sq. yd. at which the compensation has been awarded is justified and should not be interfered with. It is not possible for us to accept this contention. Having gone through both the judgments we are not impressed by the argument that the judgment of the High Court in the subsequent case in which compensation at the rate of Rs 9 was awarded is not a reasoned judgment or that it is any less reasoned than the judgment under appeal. The area being comparable, the situation also being the same and all the plots having been acquired under the selfsame notification for Housing Scheme it seems to us proper that the same rate of compensation should be awarded to the claimant herein as was awarded by the High Court in Appeal No. 50 of 1970. | 1 | 663 | 202 | ### 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:
Tulzapurkar, J.1. The only question raised in these appeals is whether the High Court was justified in reducing the rate at which compensation was granted by the City Civil Court for the lands acquired for the A.P. Housing Board for construction of houses under the Composite Housing Scheme. Two pieces of lands were acquired bearing Survey 114 admeasuring 4 acres and 25 guntas and Survey 115 measuring 6 acres and 21 guntas (totalling to 51366 square yards) under the Notification in question along with 15 other survey numbers. The Land Acquisition Officer granted compensation at the rate of Rs 6 per square yard for 21385 sq. yds. comprising Survey 114 and at the rate of Rs 6.50 per sq. yd. for 29981 sq. yds. comprising Survey 115. The claimant got a reference made to the City Civil Court which enhanced the compensation at a uniform rate of Rs 10 per sq. yd. The State preferred an appeal to the High Court while the claimant also preferred his appeal claiming still higher compensation over and above that was granted by the City Civil Court. The High Court dismissed the claimants appeal but allowed the States appeal granting compensation at the rate of Rs 7 per sq. yd. It is this judgment of the High Court that has been challenged by the claimant in the appeals before us.2. for the claimant has urged that the High Court has in another claim proceeding in respect of certain lands which had been acquired under the selfsame Notification granted compensation at the rate of Rs 9 per sq. yd. It has been pointed out that in Appeal No. 50 of 1970 decided subsequently in respect of lands covered by Surveys 173, 101, 112 and 121-B acquired under the same Notification compensation has been awarded by the High Court at the rate of Rs 9 per sq. yd. and since these lands, particularly land covered by Survey 112, are adjoining the lands in question it would be rather inequitable and discriminatory to grant lesser compensation at the rate of Rs 7 per sq. yd. as has been done by the High Court in the instant case. It is further pointed out that area of Survey 112 is also large, comparable to the area covered by the two surveys in question and in view of this subsequent judgment of the High Court which has become final, there being no appeal preferred by the State to this Court, the same rate should be granted to the present claimant. We find considerable force in the contention of the claimant.3. Counsel for the State however contended before us that the judgment under appeal according to him is a more reasoned one than the judgment of the High Court in which compensation at the rate of Rs 9 per sq. yd. has been awarded and on merits the rate of Rs 7 per sq. yd. at which the compensation has been awarded is justified and should not be interfered with. It is not possible for us to accept this contention. Having gone through both the judgments we are not impressed by the argument that the judgment of the High Court in the subsequent case in which compensation at the rate of Rs 9 was awarded is not a reasoned judgment or that it is any less reasoned than the judgment under appeal. The area being comparable, the situation also being the same and all the plots having been acquired under the selfsame notification for Housing Scheme it seems to us proper that the same rate of compensation should be awarded to the claimant herein as was awarded by the High Court in Appeal No. 50 of 1970.
### Response:
1
### Explanation:
3. Counsel for the State however contended before us that the judgment under appeal according to him is a more reasoned one than the judgment of the High Court in which compensation at the rate of Rs 9 per sq. yd. has been awarded and on merits the rate of Rs 7 per sq. yd. at which the compensation has been awarded is justified and should not be interfered with. It is not possible for us to accept this contention. Having gone through both the judgments we are not impressed by the argument that the judgment of the High Court in the subsequent case in which compensation at the rate of Rs 9 was awarded is not a reasoned judgment or that it is any less reasoned than the judgment under appeal. The area being comparable, the situation also being the same and all the plots having been acquired under the selfsame notification for Housing Scheme it seems to us proper that the same rate of compensation should be awarded to the claimant herein as was awarded by the High Court in Appeal No. 50 of 1970.
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Om Sai Punya Educational And Social Welfare Society Vs. All India Council For Technical Education | July, 2017 for that purpose. The fact that the petitioners have already made huge investments per se cannot be the basis to overlook the statutory timelines specified for grant of approval, which this Court has authoritatively held to be mandatory and not directory. Any indulgence shown to the petitioners would inevitably affect the larger public interests, as the academic course has already commenced for the current academic year from 1st August, 2017 and the last date up to which the students can be admitted against the seats available in any recognised college, is specified as 15th August, 2017.8. The petitioners would contend that the deficiencies noted in the EVC report dated 1st July, 2017 were contrary to the finding noted in its previous report dated 10th March, 2017 as also of SAC-SC report dated 19th April, 2017. The argument though attractive at the first blush deserves to be stated to be rejected. Inasmuch as, the earlier report of EVC and SAC-SC were based on the proposal and documents submitted by the petitioners. Notably, the EVC team which wanted to visit the site for inspection on 25th April, 2017 was obstructed from entering the college complex. On 15th April, 2017 the SAC-SC had already expressed apprehension about the factual position and had advised one EVC team to visit both the institutes so that the correct position could be ascertained. That became possible only after the direction given by this Court on 22nd June, 2017. The common EVC then inspected the site in the presence of the representative of the petitioner No.1- society and submitted its report dated 1st July, 2017 mentioning about the two deficiencies noticed during the said inspection namely, another institute of the petitioner No.1- society in the name of AIM was proposed to be run on the same land on which AIBS was situated and a fresh deficiency about the area of the Boys’ Common Room and Girls’ Common Room being less than the required area i.e. 75 sqm. This report must be taken as the final observation of the EVC which is based on inspection of the site. In other words, some noting made in the previous report submitted by EVC and SAC-SC would be of no avail to the petitioners.9. It is next contended that as the deficiencies have since been removed, the AICTE was obliged to grant approval for the academic year 2017-18 as was the intent behind the order passed by this Court on 22nd June, 2017. Even this submission does not commend to us. For, on a fair reading of the order dated 22nd June, 2017, we find that no direction has been issued to AICTE to grant approval for the academic year 2017-18. Rather, it has been left open to the AICTE to take a fresh decision in accordance with law uninfluenced by the earlier order of rejection. As noted earlier, the deficiencies noticed in the EVC report dated 1st July, 2017 stood removed only after the petitioners withdrew their proposal relating to AIM vide letter dated 5th July, 2017. Since approval to be accorded by the AICTE was after the cut off date of 30th April, 2017 for the academic year 2017-18, it chose to issue approval for starting AIBS institute for the academic year 2018-19. No fault can be found with the AICTE in that regard, as even the order dated 22nd June, 2017 expected the AICTE to take a fresh decision in accordance with law. Suffice it to observe that the decision of this Court dated 22nd June, 2017 cannot be construed as a direction to AICTE to grant approval in breach of the statutory timelines specified in that behalf.10. It is next contended by the petitioners that there is no other institute in the entire district of Ashok Nagar, Madhya Pradesh which imparts courses pertaining to Business Studies and therefore grant of approval for starting AIBS for the academic year 2017-18 will be in public interest. This is an argument of desperation. For, the petitioners are responsible for the present situation. In the fact situation of the present case, we are not inclined to show any indulgence to the petitioners especially when the entire admission process has been substantially completed and the academic year has commenced from 1st August, 2017. Any indulgence shown to the petitioners would fall foul of the admission schedule for the academic year 2017-18.11. A priori, in law, the petitioners are not entitled for the relief as claimed in the writ petition. Furthermore, from the facts which have now emerged it is noticed that the petitioners were fully aware of sharing of the same piece of land and some of the common facilities between the two institutes but did not disclose that fact in the original application (proposal). Whereas, the team of officers of EVC who had visited the site for inspection on the earlier occasion were obstructed from entering the building complex, obviously with ulterior design. Realising that the deficiency of two institutes sharing the same plot and some of the common facilities would come in the way of the petitioners, the petitioners have since been advised to withdraw the proposal in respect of AIM. That decision was taken by the petitioners on 1st July, 2017, which was communicated to AICTE only on 5th July, 2017. It is only after receipt of that communication, the AICTE proceeded on the assumption that the stated deficiency stood removed in respect of AIBS and accorded approval to the said institute on 21st July, 2017, but for the academic year 2018-19. Keeping in mind, the aforementioned factual position and in particular the conduct of the petitioners, the question of granting any relief to the petitioners much less by invoking plenary powers of this Court, in exercise of Article 142 of the Constitution of India, to condone or relax the timeline regarding grant of approval and to direct the respondent authorities to treat the approval for the academic year 2017-18 as prayed by the petitioners does not arise. | 0[ds]5. Notably, the petitioners have not claimed any relief with reference to the aforementioned communication. The relief in the writ petition, however, is to issue a writ in the nature of mandamus to respondentto immediately issue a Letter of Approval and permit the petitionerto start its college AIBS from the academic yearit is not open to AICTE to breach the timelines specified in the AICTE Act and the Regulations framed thereunder for processing the proposal for grant of a Letter of Approval. It is well settled that the schedule specified in the Regulations has statutory backing. Its adherence is mandatory and not directory. As per the said schedule, AICTE does not have anyjurisdiction or authority to issue approval for commencement of a new course or for additional intake of students beyond 30th April of the year immediately preceding the commencement of an academic year. In the case of Parshvanath Charitable Trust Vs. All India Council for Technical Education, (2013) 3 SCC 385 ) it has been made amply clear that even the order granting recognition by the Appellate Committee of AICTE should not fall foul of the admission schedule. The admission schedule for academic yearhas already commenced and been substantially completed. The academic year has also commenced and the last date for completing the admission process is August 15th, 2017. The dates and timelines are provided in the Regulations and reiterated by this Court in the aforementioned decision. The same are inviolable.In the backdrop of the aforementioned facts, it is unfathomable as to how respondentcan be held responsible for the delay in issuing the Letter of Approval in respect of AIBS for the academic yearIt is obvious that the petitioners having realised that because of inspection by one EVC, their claim of no deficiency at all will be exposed were advised to withdraw the proposal in respect of another institute (AIM) which shared the same plot of land and common facilities. This deficiency was then removed by the petitioners only in July, 2017, by sending communication dated 5th July, 2017 for that purpose. The fact that the petitioners have already made huge investments per se cannot be the basis to overlook the statutory timelines specified for grant of approval, which this Court has authoritatively held to be mandatory and not directory. Any indulgence shown to the petitioners would inevitably affect the larger public interests, as the academic course has already commenced for the current academic year from 1st August, 2017 and the last date up to which the students can be admitted against the seats available in any recognised college, is specified as 15th August,argument though attractive at the first blush deserves to be stated to be rejected. Inasmuch as, the earlier report of EVC andwere based on the proposal and documents submitted by the petitioners. Notably, the EVC team which wanted to visit the site for inspection on 25th April, 2017 was obstructed from entering the college complex. On 15th April, 2017 thehad already expressed apprehension about the factual position and had advised one EVC team to visit both the institutes so that the correct position could be ascertained. That became possible only after the direction given by this Court on 22nd June, 2017. The common EVC then inspected the site in the presence of the representative of the petitioner No.1society and submitted its report dated 1st July, 2017 mentioning about the two deficiencies noticed during the said inspection namely, another institute of the petitioner No.1society in the name of AIM was proposed to be run on the same land on which AIBS was situated and a fresh deficiency about the area of theCommon Room andCommon Room being less than the required area i.e. 75 sqm. This report must be taken as the final observation of the EVC which is based on inspection of the site. In other words, some noting made in the previous report submitted by EVC andwould be of no avail to thethis submission does not commend to us. For, on a fair reading of the order dated 22nd June, 2017, we find that no direction has been issued to AICTE to grant approval for the academic yearRather, it has been left open to the AICTE to take a fresh decision in accordance with law uninfluenced by the earlier order of rejection. As noted earlier, the deficiencies noticed in the EVC report dated 1st July, 2017 stood removed only after the petitioners withdrew their proposal relating to AIM vide letter dated 5th July, 2017. Since approval to be accorded by the AICTE was after the cut off date of 30th April, 2017 for the academic yearit chose to issue approval for starting AIBS institute for the academic yearNo fault can be found with the AICTE in that regard, as even the order dated 22nd June, 2017 expected the AICTE to take a fresh decision in accordance with law. Suffice it to observe that the decision of this Court dated 22nd June, 2017 cannot be construed as a direction to AICTE to grant approval in breach of the statutory timelines specified in thatA priori, in law, the petitioners are not entitled for the relief as claimed in the writ petition. Furthermore, from the facts which have now emerged it is noticed that the petitioners were fully aware of sharing of the same piece of land and some of the common facilities between the two institutes but did not disclose that fact in the original application (proposal). Whereas, the team of officers of EVC who had visited the site for inspection on the earlier occasion were obstructed from entering the building complex, obviously with ulterior design. Realising that the deficiency of two institutes sharing the same plot and some of the common facilities would come in the way of the petitioners, the petitioners have since been advised to withdraw the proposal in respect of AIM. That decision was taken by the petitioners on 1st July, 2017, which was communicated to AICTE only on 5th July, 2017. It is only after receipt of that communication, the AICTE proceeded on the assumption that the stated deficiency stood removed in respect of AIBS and accorded approval to the said institute on 21st July, 2017, but for the academic yearKeeping in mind, the aforementioned factual position and in particular the conduct of the petitioners, the question of granting any relief to the petitioners much less by invoking plenary powers of this Court, in exercise of Article 142 of the Constitution of India, to condone or relax the timeline regarding grant of approval and to direct the respondent authorities to treat the approval for the academic yearas prayed by the petitioners does not arise. | 0 | 3,376 | 1,206 | ### 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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July, 2017 for that purpose. The fact that the petitioners have already made huge investments per se cannot be the basis to overlook the statutory timelines specified for grant of approval, which this Court has authoritatively held to be mandatory and not directory. Any indulgence shown to the petitioners would inevitably affect the larger public interests, as the academic course has already commenced for the current academic year from 1st August, 2017 and the last date up to which the students can be admitted against the seats available in any recognised college, is specified as 15th August, 2017.8. The petitioners would contend that the deficiencies noted in the EVC report dated 1st July, 2017 were contrary to the finding noted in its previous report dated 10th March, 2017 as also of SAC-SC report dated 19th April, 2017. The argument though attractive at the first blush deserves to be stated to be rejected. Inasmuch as, the earlier report of EVC and SAC-SC were based on the proposal and documents submitted by the petitioners. Notably, the EVC team which wanted to visit the site for inspection on 25th April, 2017 was obstructed from entering the college complex. On 15th April, 2017 the SAC-SC had already expressed apprehension about the factual position and had advised one EVC team to visit both the institutes so that the correct position could be ascertained. That became possible only after the direction given by this Court on 22nd June, 2017. The common EVC then inspected the site in the presence of the representative of the petitioner No.1- society and submitted its report dated 1st July, 2017 mentioning about the two deficiencies noticed during the said inspection namely, another institute of the petitioner No.1- society in the name of AIM was proposed to be run on the same land on which AIBS was situated and a fresh deficiency about the area of the Boys’ Common Room and Girls’ Common Room being less than the required area i.e. 75 sqm. This report must be taken as the final observation of the EVC which is based on inspection of the site. In other words, some noting made in the previous report submitted by EVC and SAC-SC would be of no avail to the petitioners.9. It is next contended that as the deficiencies have since been removed, the AICTE was obliged to grant approval for the academic year 2017-18 as was the intent behind the order passed by this Court on 22nd June, 2017. Even this submission does not commend to us. For, on a fair reading of the order dated 22nd June, 2017, we find that no direction has been issued to AICTE to grant approval for the academic year 2017-18. Rather, it has been left open to the AICTE to take a fresh decision in accordance with law uninfluenced by the earlier order of rejection. As noted earlier, the deficiencies noticed in the EVC report dated 1st July, 2017 stood removed only after the petitioners withdrew their proposal relating to AIM vide letter dated 5th July, 2017. Since approval to be accorded by the AICTE was after the cut off date of 30th April, 2017 for the academic year 2017-18, it chose to issue approval for starting AIBS institute for the academic year 2018-19. No fault can be found with the AICTE in that regard, as even the order dated 22nd June, 2017 expected the AICTE to take a fresh decision in accordance with law. Suffice it to observe that the decision of this Court dated 22nd June, 2017 cannot be construed as a direction to AICTE to grant approval in breach of the statutory timelines specified in that behalf.10. It is next contended by the petitioners that there is no other institute in the entire district of Ashok Nagar, Madhya Pradesh which imparts courses pertaining to Business Studies and therefore grant of approval for starting AIBS for the academic year 2017-18 will be in public interest. This is an argument of desperation. For, the petitioners are responsible for the present situation. In the fact situation of the present case, we are not inclined to show any indulgence to the petitioners especially when the entire admission process has been substantially completed and the academic year has commenced from 1st August, 2017. Any indulgence shown to the petitioners would fall foul of the admission schedule for the academic year 2017-18.11. A priori, in law, the petitioners are not entitled for the relief as claimed in the writ petition. Furthermore, from the facts which have now emerged it is noticed that the petitioners were fully aware of sharing of the same piece of land and some of the common facilities between the two institutes but did not disclose that fact in the original application (proposal). Whereas, the team of officers of EVC who had visited the site for inspection on the earlier occasion were obstructed from entering the building complex, obviously with ulterior design. Realising that the deficiency of two institutes sharing the same plot and some of the common facilities would come in the way of the petitioners, the petitioners have since been advised to withdraw the proposal in respect of AIM. That decision was taken by the petitioners on 1st July, 2017, which was communicated to AICTE only on 5th July, 2017. It is only after receipt of that communication, the AICTE proceeded on the assumption that the stated deficiency stood removed in respect of AIBS and accorded approval to the said institute on 21st July, 2017, but for the academic year 2018-19. Keeping in mind, the aforementioned factual position and in particular the conduct of the petitioners, the question of granting any relief to the petitioners much less by invoking plenary powers of this Court, in exercise of Article 142 of the Constitution of India, to condone or relax the timeline regarding grant of approval and to direct the respondent authorities to treat the approval for the academic year 2017-18 as prayed by the petitioners does not arise.
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have anyjurisdiction or authority to issue approval for commencement of a new course or for additional intake of students beyond 30th April of the year immediately preceding the commencement of an academic year. In the case of Parshvanath Charitable Trust Vs. All India Council for Technical Education, (2013) 3 SCC 385 ) it has been made amply clear that even the order granting recognition by the Appellate Committee of AICTE should not fall foul of the admission schedule. The admission schedule for academic yearhas already commenced and been substantially completed. The academic year has also commenced and the last date for completing the admission process is August 15th, 2017. The dates and timelines are provided in the Regulations and reiterated by this Court in the aforementioned decision. The same are inviolable.In the backdrop of the aforementioned facts, it is unfathomable as to how respondentcan be held responsible for the delay in issuing the Letter of Approval in respect of AIBS for the academic yearIt is obvious that the petitioners having realised that because of inspection by one EVC, their claim of no deficiency at all will be exposed were advised to withdraw the proposal in respect of another institute (AIM) which shared the same plot of land and common facilities. This deficiency was then removed by the petitioners only in July, 2017, by sending communication dated 5th July, 2017 for that purpose. The fact that the petitioners have already made huge investments per se cannot be the basis to overlook the statutory timelines specified for grant of approval, which this Court has authoritatively held to be mandatory and not directory. Any indulgence shown to the petitioners would inevitably affect the larger public interests, as the academic course has already commenced for the current academic year from 1st August, 2017 and the last date up to which the students can be admitted against the seats available in any recognised college, is specified as 15th August,argument though attractive at the first blush deserves to be stated to be rejected. Inasmuch as, the earlier report of EVC andwere based on the proposal and documents submitted by the petitioners. Notably, the EVC team which wanted to visit the site for inspection on 25th April, 2017 was obstructed from entering the college complex. On 15th April, 2017 thehad already expressed apprehension about the factual position and had advised one EVC team to visit both the institutes so that the correct position could be ascertained. That became possible only after the direction given by this Court on 22nd June, 2017. The common EVC then inspected the site in the presence of the representative of the petitioner No.1society and submitted its report dated 1st July, 2017 mentioning about the two deficiencies noticed during the said inspection namely, another institute of the petitioner No.1society in the name of AIM was proposed to be run on the same land on which AIBS was situated and a fresh deficiency about the area of theCommon Room andCommon Room being less than the required area i.e. 75 sqm. This report must be taken as the final observation of the EVC which is based on inspection of the site. In other words, some noting made in the previous report submitted by EVC andwould be of no avail to thethis submission does not commend to us. For, on a fair reading of the order dated 22nd June, 2017, we find that no direction has been issued to AICTE to grant approval for the academic yearRather, it has been left open to the AICTE to take a fresh decision in accordance with law uninfluenced by the earlier order of rejection. As noted earlier, the deficiencies noticed in the EVC report dated 1st July, 2017 stood removed only after the petitioners withdrew their proposal relating to AIM vide letter dated 5th July, 2017. Since approval to be accorded by the AICTE was after the cut off date of 30th April, 2017 for the academic yearit chose to issue approval for starting AIBS institute for the academic yearNo fault can be found with the AICTE in that regard, as even the order dated 22nd June, 2017 expected the AICTE to take a fresh decision in accordance with law. Suffice it to observe that the decision of this Court dated 22nd June, 2017 cannot be construed as a direction to AICTE to grant approval in breach of the statutory timelines specified in thatA priori, in law, the petitioners are not entitled for the relief as claimed in the writ petition. Furthermore, from the facts which have now emerged it is noticed that the petitioners were fully aware of sharing of the same piece of land and some of the common facilities between the two institutes but did not disclose that fact in the original application (proposal). Whereas, the team of officers of EVC who had visited the site for inspection on the earlier occasion were obstructed from entering the building complex, obviously with ulterior design. Realising that the deficiency of two institutes sharing the same plot and some of the common facilities would come in the way of the petitioners, the petitioners have since been advised to withdraw the proposal in respect of AIM. That decision was taken by the petitioners on 1st July, 2017, which was communicated to AICTE only on 5th July, 2017. It is only after receipt of that communication, the AICTE proceeded on the assumption that the stated deficiency stood removed in respect of AIBS and accorded approval to the said institute on 21st July, 2017, but for the academic yearKeeping in mind, the aforementioned factual position and in particular the conduct of the petitioners, the question of granting any relief to the petitioners much less by invoking plenary powers of this Court, in exercise of Article 142 of the Constitution of India, to condone or relax the timeline regarding grant of approval and to direct the respondent authorities to treat the approval for the academic yearas prayed by the petitioners does not arise.
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Nathoo Lal Vs. Durga Prasad | interest in the bequeathed property.In our judgment, there is force in the contention of Dr. Tek Chand and none of the contentions raised by the respondents counsel have any validity. That Ramchandra bequeathed the suit property and did not gift it to his daughter Laxmi is a fact which cannot be questioned at this stage. It was admitted by the plaintiff himself in the witness box. This is what he said :-"Ramchandra had made a will in favour of Mst. Laxmi and in that connections my maternal grandmother and maternal great grandmother got the gift deed registered. This very gift deed was got executed by my maternal grandmother and maternal great grandmother and had got it registered. Through this gift deed Mst. Laxmi held possession over it till she was alive. She had kept deponent as her son and so she got the rent notes executed in my name."10. What is admitted by a party to be true must be presumed to be true unless the contrary is shown. There is no evidence to the contrary in the case. The gift deed fully supports the testimony of the plaintiff on this point. It definitely states that according to the will, the gift deed was executed in favour of Laxmi and it further recites that Laxmi was entitled to deal with the house in any manner she liked. Those who were directed to execute the oral will made by Ramchandra must be presumed to have carried out his directions in accordance with his wishes. It seems clear that the intention of the testator was to benefit his daughter, Laxmi, and to confer upon her the same title as he himself possessed. She was the sole object of his bounty and on the attendant circumstances of this case it is plain that he intended to confer on her whatever title he himself had. Laxmi therefore became the absolute owner of the property under the terms of the oral will of her father and the plaintiff is no heir to the property which under the law devolved on Laxmis husband who had full right to alienate it.We are further of the opinion that the High Court was in error in thinking that it is a settled principle of law that unless there are express terms in the deed of gift to indicate that the donor who had absolute interest intended to convey absolute ownership, a gift in favour of an heir who inherits only a limited interest cannot be construed as conferring an absolute interest. It is true that this was the principle once deduced from the Privy Council decision in Mahomed Shumsool v. Shewukram (2 I.A. 7) wherein it was held that a bequest to a daughter-in-law passed a limited estate. The proposition laid down in Mahomed Shumsools case was construed by the High Courts in India to mean that a gift of immovable property to a woman could not be deemed to confer upon her an absolute estate of inheritance which she could alienate at her pleasure unless the deed or will gave her in express terms a heritable estate or power of alienation. Later decisions of the Judicial Committee made it clear that if words were used conferring absolute ownership upon the wife, the wife enjoyed the rights of ownership without their being conferred by express and additional terms. Shumsools case (2 I.A. 7) had been examined in recent years in some High Courts and it has been observed that according to the law as understood at present there in no presumption one way or the other and there is no difference between the case of a male and the case of a female, and the fact that the donee is a women does not make the gift any the less absolute whether the words would be sufficient to convey an absolute estate to a male (see Nagammal v. Subbalakshmi Ammal ((1947) 1 M.L.J. 64). The matter has now been set at rest by the decision of this Court in Ram Gopal v. Nand Lal (A.I.R. 1951 S.C. 139). In this case it was observed as follows :-"It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of an immovable property is made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her. The reasoning adopted by Mitter J. of the Calcutta High Court in Mst. Kollani Kuar v. Luchmi Kuar (2 W.R. 395), which was approved of and accepted by the Judicial Committee in a number of decisions, seems to me to be unassailable. It was held by the Privy Council as early as in the case of Tagore v. Tagore (9 Beng. L.R. 377, P.C.) that if an estate were given to a man without express words of inheritance, it would, in the absence of a conflicting context, carry, by Hindu Law, an estate of inheritance. This is the general principle of law which is recognized and embodied in section 8 of the Transfer of Property Act and unless it is shown that under Hindu Law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a widows estate, there is no justification for departing from this principle. There is certainly no such provision in Hindu Law and no text could be supplied in support of the same."The position, therefore, is that to convey an absolute estate to a Hindu female, no express power of alienation need be given; it is enough if words are used of such amplitude as would convey full rights of ownership."11. The learned Judges of the High Court were therefore clearly wrong in law in holding that the will having been made by the father in favour of his daughter, it should be presumed that he intended to give her a limited life estate.12. | 1[ds]In our opinion, this objection is not well founded. The only operative decree in the suit which finally and conclusively determines the rights of the parties is the decree passed on the 5th of April, 1950, by the Rajasthan High Court and that having been passed after the coming into force of the Constitution of India, the provisions of article 133 are attracted to it and it is appealable to this Court provided the requirements of that article are fulfilled. The Code of Civil Procedure of the Jaipur State could not determine the jurisdiction of this Court and has no relevancy to the maintainability of the appeal. The requirement of article 133 having been fulfilled, this appeal is clearlyare unable to agree. An inquiry was made into the valuation of the property and it was reported that its value was Rs. 20, 000 or that the decision affected property of the value of above Rs. 20, 000. A substantial question of law was involved in the case, that is, whether a testamentary disposition by a Hindu in favour of a female heir conferred on her only a limited estate in the absence of evidence that he intended to confer on her an absolute interest in the property. In these circumstances the High Court was fully justified in granting the certificate. We ourselves would have been prepared to admit this appeal under our extraordinary powers conferred by article 136(1) of the Constitution, if such a certificate had not been given in the case. For the reasons given above we see no force in either of these two preliminary objections which wehas been found by the Courts below that the plaintiff was in possession of this house even during the lifetime of Laxmi and continued in possession thereafter. Even if the tenant vacated the house on the 24th August, 1933, and the plaintiff did not lock it, his possession would be presumed to continue till he was dispossessed by some one. The law presumes in favour of continuity of possession. The three Courts below have unanimously held that on the evidence it was established that after the death of Laxmi plaintiff continued in possession of the house and the suit was within limitation. There are no valid grounds for reviewing this finding in the fourth Court and the contention is thereforeour judgment, there is force in the contention of Dr. Tek Chand and none of the contentions raised by the respondents counsel have any validity. That Ramchandra bequeathed the suit property and did not gift it to his daughter Laxmi is a fact which cannot be questioned at this stage. It was admitted by the plaintiff himself in the witnessis no evidence to the contrary in the case. The gift deed fully supports the testimony of the plaintiff on this point. It definitely states that according to the will, the gift deed was executed in favour of Laxmi and it further recites that Laxmi was entitled to deal with the house in any manner she liked. Those who were directed to execute the oral will made by Ramchandra must be presumed to have carried out his directions in accordance with his wishes. It seems clear that the intention of the testator was to benefit his daughter, Laxmi, and to confer upon her the same title as he himself possessed. She was the sole object of his bounty and on the attendant circumstances of this case it is plain that he intended to confer on her whatever title he himself had. Laxmi therefore became the absolute owner of the property under the terms of the oral will of her father and the plaintiff is no heir to the property which under the law devolved on Laxmis husband who had full right to alienate it.We are further of the opinion that the High Court was in error in thinking that it is a settled principle of law that unless there are express terms in the deed of gift to indicate that the donor who had absolute interest intended to convey absolute ownership, a gift in favour of an heir who inherits only a limited interest cannot be construed as conferring an absoluteis the general principle of law which is recognized and embodied in section 8 of the Transfer of Property Act and unless it is shown that under Hindu Law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a widows estate, there is no justification for departing from this principle. There is certainly no such provision in Hindu Law and no text could be supplied in support of thelearned Judges of the High Court were therefore clearly wrong in law in holding that the will having been made by the father in favour of his daughter, it should be presumed that he intended to give her a limited life estate. | 1 | 3,305 | 874 | ### 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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interest in the bequeathed property.In our judgment, there is force in the contention of Dr. Tek Chand and none of the contentions raised by the respondents counsel have any validity. That Ramchandra bequeathed the suit property and did not gift it to his daughter Laxmi is a fact which cannot be questioned at this stage. It was admitted by the plaintiff himself in the witness box. This is what he said :-"Ramchandra had made a will in favour of Mst. Laxmi and in that connections my maternal grandmother and maternal great grandmother got the gift deed registered. This very gift deed was got executed by my maternal grandmother and maternal great grandmother and had got it registered. Through this gift deed Mst. Laxmi held possession over it till she was alive. She had kept deponent as her son and so she got the rent notes executed in my name."10. What is admitted by a party to be true must be presumed to be true unless the contrary is shown. There is no evidence to the contrary in the case. The gift deed fully supports the testimony of the plaintiff on this point. It definitely states that according to the will, the gift deed was executed in favour of Laxmi and it further recites that Laxmi was entitled to deal with the house in any manner she liked. Those who were directed to execute the oral will made by Ramchandra must be presumed to have carried out his directions in accordance with his wishes. It seems clear that the intention of the testator was to benefit his daughter, Laxmi, and to confer upon her the same title as he himself possessed. She was the sole object of his bounty and on the attendant circumstances of this case it is plain that he intended to confer on her whatever title he himself had. Laxmi therefore became the absolute owner of the property under the terms of the oral will of her father and the plaintiff is no heir to the property which under the law devolved on Laxmis husband who had full right to alienate it.We are further of the opinion that the High Court was in error in thinking that it is a settled principle of law that unless there are express terms in the deed of gift to indicate that the donor who had absolute interest intended to convey absolute ownership, a gift in favour of an heir who inherits only a limited interest cannot be construed as conferring an absolute interest. It is true that this was the principle once deduced from the Privy Council decision in Mahomed Shumsool v. Shewukram (2 I.A. 7) wherein it was held that a bequest to a daughter-in-law passed a limited estate. The proposition laid down in Mahomed Shumsools case was construed by the High Courts in India to mean that a gift of immovable property to a woman could not be deemed to confer upon her an absolute estate of inheritance which she could alienate at her pleasure unless the deed or will gave her in express terms a heritable estate or power of alienation. Later decisions of the Judicial Committee made it clear that if words were used conferring absolute ownership upon the wife, the wife enjoyed the rights of ownership without their being conferred by express and additional terms. Shumsools case (2 I.A. 7) had been examined in recent years in some High Courts and it has been observed that according to the law as understood at present there in no presumption one way or the other and there is no difference between the case of a male and the case of a female, and the fact that the donee is a women does not make the gift any the less absolute whether the words would be sufficient to convey an absolute estate to a male (see Nagammal v. Subbalakshmi Ammal ((1947) 1 M.L.J. 64). The matter has now been set at rest by the decision of this Court in Ram Gopal v. Nand Lal (A.I.R. 1951 S.C. 139). In this case it was observed as follows :-"It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of an immovable property is made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her. The reasoning adopted by Mitter J. of the Calcutta High Court in Mst. Kollani Kuar v. Luchmi Kuar (2 W.R. 395), which was approved of and accepted by the Judicial Committee in a number of decisions, seems to me to be unassailable. It was held by the Privy Council as early as in the case of Tagore v. Tagore (9 Beng. L.R. 377, P.C.) that if an estate were given to a man without express words of inheritance, it would, in the absence of a conflicting context, carry, by Hindu Law, an estate of inheritance. This is the general principle of law which is recognized and embodied in section 8 of the Transfer of Property Act and unless it is shown that under Hindu Law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a widows estate, there is no justification for departing from this principle. There is certainly no such provision in Hindu Law and no text could be supplied in support of the same."The position, therefore, is that to convey an absolute estate to a Hindu female, no express power of alienation need be given; it is enough if words are used of such amplitude as would convey full rights of ownership."11. The learned Judges of the High Court were therefore clearly wrong in law in holding that the will having been made by the father in favour of his daughter, it should be presumed that he intended to give her a limited life estate.12.
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In our opinion, this objection is not well founded. The only operative decree in the suit which finally and conclusively determines the rights of the parties is the decree passed on the 5th of April, 1950, by the Rajasthan High Court and that having been passed after the coming into force of the Constitution of India, the provisions of article 133 are attracted to it and it is appealable to this Court provided the requirements of that article are fulfilled. The Code of Civil Procedure of the Jaipur State could not determine the jurisdiction of this Court and has no relevancy to the maintainability of the appeal. The requirement of article 133 having been fulfilled, this appeal is clearlyare unable to agree. An inquiry was made into the valuation of the property and it was reported that its value was Rs. 20, 000 or that the decision affected property of the value of above Rs. 20, 000. A substantial question of law was involved in the case, that is, whether a testamentary disposition by a Hindu in favour of a female heir conferred on her only a limited estate in the absence of evidence that he intended to confer on her an absolute interest in the property. In these circumstances the High Court was fully justified in granting the certificate. We ourselves would have been prepared to admit this appeal under our extraordinary powers conferred by article 136(1) of the Constitution, if such a certificate had not been given in the case. For the reasons given above we see no force in either of these two preliminary objections which wehas been found by the Courts below that the plaintiff was in possession of this house even during the lifetime of Laxmi and continued in possession thereafter. Even if the tenant vacated the house on the 24th August, 1933, and the plaintiff did not lock it, his possession would be presumed to continue till he was dispossessed by some one. The law presumes in favour of continuity of possession. The three Courts below have unanimously held that on the evidence it was established that after the death of Laxmi plaintiff continued in possession of the house and the suit was within limitation. There are no valid grounds for reviewing this finding in the fourth Court and the contention is thereforeour judgment, there is force in the contention of Dr. Tek Chand and none of the contentions raised by the respondents counsel have any validity. That Ramchandra bequeathed the suit property and did not gift it to his daughter Laxmi is a fact which cannot be questioned at this stage. It was admitted by the plaintiff himself in the witnessis no evidence to the contrary in the case. The gift deed fully supports the testimony of the plaintiff on this point. It definitely states that according to the will, the gift deed was executed in favour of Laxmi and it further recites that Laxmi was entitled to deal with the house in any manner she liked. Those who were directed to execute the oral will made by Ramchandra must be presumed to have carried out his directions in accordance with his wishes. It seems clear that the intention of the testator was to benefit his daughter, Laxmi, and to confer upon her the same title as he himself possessed. She was the sole object of his bounty and on the attendant circumstances of this case it is plain that he intended to confer on her whatever title he himself had. Laxmi therefore became the absolute owner of the property under the terms of the oral will of her father and the plaintiff is no heir to the property which under the law devolved on Laxmis husband who had full right to alienate it.We are further of the opinion that the High Court was in error in thinking that it is a settled principle of law that unless there are express terms in the deed of gift to indicate that the donor who had absolute interest intended to convey absolute ownership, a gift in favour of an heir who inherits only a limited interest cannot be construed as conferring an absoluteis the general principle of law which is recognized and embodied in section 8 of the Transfer of Property Act and unless it is shown that under Hindu Law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a widows estate, there is no justification for departing from this principle. There is certainly no such provision in Hindu Law and no text could be supplied in support of thelearned Judges of the High Court were therefore clearly wrong in law in holding that the will having been made by the father in favour of his daughter, it should be presumed that he intended to give her a limited life estate.
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DR. NAGORAO SHIVAJI CHAVAN Vs. DR. SUNIL PURUSHOTTAM BHAMRE & ORS | administrative ground to transfer Respondent no.1 from the post of Civil Surgeon, Jalgaon to Assistant Director, AIDS Control Society, Wadala, Mumbai.10. In B. Varadha Rao Vs. State of Karnataka & Ors., (1986) 4 SCC 131 , this Court has observed with respect to transfer of Class I officers, thus -?4. ……….. That a Government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, nontransferable post. As the learned Judges rightly observe :The norms enunciated by Government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the Government servants.5. It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implied to the disadvantage of the concerned Government servant. The petitioner who appeared in person placed reliance, as he did in the High Court, on the decision of the Bombay High Court in Seshrao Nagorao Umap Vs. State of Maharashtra & Ors. (1985) 2 LLJ 73 (Bom.). We do not see how the decision can be of any avail to the question at issue. The learned Judges were dealing with a petition under Article 226 of the Constitution by which a Medical Officer challenged his order of transfer on the ground that it was not only mala fide but was issued in colourable exercise of power and therefore wholly illegal and void. It was contended by the petitioner that he was being transferred contrary to the Government policy with a view to accommodate one Dr. R.P. Patil because of the political influence he wielded. In allowing the writ petition, the learned Judges observed that it was no doubt true that the Government has power to transfer its employees employed in a transferable post but this power has to be exercised bona, fide to meet the exigencies of the administration. If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. They relied on the observations made by this Court in E.P. Royappa V. State of Tamil Nadu and Anr. for the positivistic view that equality is antithetic to arbitrariness and held that the observations equally apply to the policy regarding the transfer of public servants. It was observed :It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such; transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair.The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto varies to the disadvantage of a Government service, any of his conditions of service making the impugned order appealable under Rule 19(1)(a) of the Rules.6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conductive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer.? 11. Notwithstanding the provisions contained in Section 3 which uses the expression that ?ordinarily the tenure is three years?, in our opinion in exceptional circumstances in a given case, or in the case of administrative exigencies, transfer is permissible, and no absolute bar on transfer is created by virtue of the provisions contained in section 3 read with section 4. In the facts and circumstances of the case and also considering the past record of respondent No.1 of not joining the place where he was transferred for five years, no interference with the order of transfer is called for. | 1[ds]8. After hearing learned counsel for the parties at length, we are of the opinion that the High Court as well as the Tribunal have erred in law in the facts and circumstances of the case in relying upon the provisions contained in Section 3 and Section 4 of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (hereinafter referred to as ?the Act?)Thus, it is apparent from the conjoint reading of Sections 3 and 4 that though the normal tenure is 3 years but in the administrative exigencies a transfer is still permissible. There is no total embargo. No doubt the statutory provision of tenure is required to be observed unless special exigency arises. In the backdrop of the facts that complaint had been lodged by Chief Executive Officer, Zila Parishad, inquiry had been made into that and the allegations of financial irregularities and insubordination have been found to be substantiated. It was absolutely proper not to retain Respondent No.1 as Civil Surgeon, Jalgaon. It was not in the interest of the administration to retain him any further at the said place. Though,it was contended by learned counsel appearing on behalf of Respondent No.1 that no financial irregularity or insubordination was committed by Respondent No.1.We cannot adjudicate upon this issue at this stage, as it is for the Government to decide it. But there was sufficient administrative ground to transfer Respondent no.1 from the post of Civil Surgeon, Jalgaon to Assistant Director, AIDS Control Society, Wadala, Mumbai11. Notwithstanding the provisions contained in Section 3 which uses the expression that ?ordinarily the tenure is three years?, in our opinion in exceptional circumstances in a given case, or in the case of administrative exigencies, transfer is permissible, and no absolute bar on transfer is created by virtue of the provisions contained in section 3 read with section 4. In the facts and circumstances of the case and also considering the past record of respondent No.1 of not joining the place where he was transferred for five years, no interference with the order of transfer is called for. | 1 | 2,603 | 396 | ### Instruction:
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administrative ground to transfer Respondent no.1 from the post of Civil Surgeon, Jalgaon to Assistant Director, AIDS Control Society, Wadala, Mumbai.10. In B. Varadha Rao Vs. State of Karnataka & Ors., (1986) 4 SCC 131 , this Court has observed with respect to transfer of Class I officers, thus -?4. ……….. That a Government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, nontransferable post. As the learned Judges rightly observe :The norms enunciated by Government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the Government servants.5. It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implied to the disadvantage of the concerned Government servant. The petitioner who appeared in person placed reliance, as he did in the High Court, on the decision of the Bombay High Court in Seshrao Nagorao Umap Vs. State of Maharashtra & Ors. (1985) 2 LLJ 73 (Bom.). We do not see how the decision can be of any avail to the question at issue. The learned Judges were dealing with a petition under Article 226 of the Constitution by which a Medical Officer challenged his order of transfer on the ground that it was not only mala fide but was issued in colourable exercise of power and therefore wholly illegal and void. It was contended by the petitioner that he was being transferred contrary to the Government policy with a view to accommodate one Dr. R.P. Patil because of the political influence he wielded. In allowing the writ petition, the learned Judges observed that it was no doubt true that the Government has power to transfer its employees employed in a transferable post but this power has to be exercised bona, fide to meet the exigencies of the administration. If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. They relied on the observations made by this Court in E.P. Royappa V. State of Tamil Nadu and Anr. for the positivistic view that equality is antithetic to arbitrariness and held that the observations equally apply to the policy regarding the transfer of public servants. It was observed :It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such; transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair.The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto varies to the disadvantage of a Government service, any of his conditions of service making the impugned order appealable under Rule 19(1)(a) of the Rules.6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conductive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer.? 11. Notwithstanding the provisions contained in Section 3 which uses the expression that ?ordinarily the tenure is three years?, in our opinion in exceptional circumstances in a given case, or in the case of administrative exigencies, transfer is permissible, and no absolute bar on transfer is created by virtue of the provisions contained in section 3 read with section 4. In the facts and circumstances of the case and also considering the past record of respondent No.1 of not joining the place where he was transferred for five years, no interference with the order of transfer is called for.
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8. After hearing learned counsel for the parties at length, we are of the opinion that the High Court as well as the Tribunal have erred in law in the facts and circumstances of the case in relying upon the provisions contained in Section 3 and Section 4 of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (hereinafter referred to as ?the Act?)Thus, it is apparent from the conjoint reading of Sections 3 and 4 that though the normal tenure is 3 years but in the administrative exigencies a transfer is still permissible. There is no total embargo. No doubt the statutory provision of tenure is required to be observed unless special exigency arises. In the backdrop of the facts that complaint had been lodged by Chief Executive Officer, Zila Parishad, inquiry had been made into that and the allegations of financial irregularities and insubordination have been found to be substantiated. It was absolutely proper not to retain Respondent No.1 as Civil Surgeon, Jalgaon. It was not in the interest of the administration to retain him any further at the said place. Though,it was contended by learned counsel appearing on behalf of Respondent No.1 that no financial irregularity or insubordination was committed by Respondent No.1.We cannot adjudicate upon this issue at this stage, as it is for the Government to decide it. But there was sufficient administrative ground to transfer Respondent no.1 from the post of Civil Surgeon, Jalgaon to Assistant Director, AIDS Control Society, Wadala, Mumbai11. Notwithstanding the provisions contained in Section 3 which uses the expression that ?ordinarily the tenure is three years?, in our opinion in exceptional circumstances in a given case, or in the case of administrative exigencies, transfer is permissible, and no absolute bar on transfer is created by virtue of the provisions contained in section 3 read with section 4. In the facts and circumstances of the case and also considering the past record of respondent No.1 of not joining the place where he was transferred for five years, no interference with the order of transfer is called for.
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H. H. Shri Swamiji of Shri Admar Mutt, Etc Vs. Commissioner, Hindu Religious and Charitable Endowments | Constitution.15. But then, learned counsel for the appellants argues that while following the judgments above referred to, we must not overlook the caveat contained in those judgments and the description therein of section 119 of the States Reorganisation Act as a temporary measure. In this behalf, reliance is also placed by counsel on the decision in N arottam Kishore Dev Varma and ors. vs. Union of India and Anr. The petitioners therein applied for the consent of the Central Government under section 87B of the Code of Civil Procedure to sue the Maharaja of Tripura, Ruler of a former Indian State which had merged with India. Consent having been refused, they filed Writ Petition in this Court challenging the validity of section 87B on the ground that in granting exemption to Rulers of former Indian States from being sued except with the consent of the Central Government, the section contravened article 14 of the Constitution. The Court followed an earlier judgment and repelled the challenge but while doing so, Gajendragadkar, C.J., speaking for the Court, made an important observation inviting the Central Government to consider seriously whether it was necessary to allow section 87B to operate prospectively for all time and whether transactions subsequent to January 26, 1950 should also receive the protection of the section. The Court felt that, considered broadly in the light of the basic principle of equality before law, it was somewhat odd that section 87B should continue to operate for all time. "With the passage of time" observed the learned Chief Justice, "the validity of historical considerations on which section 87B is founded will wear out and the continuance of the said section in the Code of Civil Procedure may later be open to serious challenge".The narrow question that remains for consideration now is whether, though the initial application of the Madras Act of 1951 to the South Kanara District was not violative of article 14, its continued application offends against the guarantee of equality. In this connection, a matter of primary importance to be borne in mind is that section 119 of the States Reorganisation Act, 1956, was intended, as said in Bhaiyalal Shukla, (supra) to serve a "temporary purpose", viz., to enable the new u nits to consider the special circumstances of the diverse units, before launching upon a process of adaptation of laws so as to make them reasonably uniform, having regard to the special needs of the various regions and the requirements of admi nistrative efficiency. Acts, Rules and Regulations whose constitutional validity is upheld and can be upheld only on the ground that no violation per so of article 14 is involved in the application of different laws to different components of a State, if the area to which unequal laws are applied has become a part of the State as result of the States "reorganization, cannot continue to apply to such area indefinitely. An indefinite extension and application of unequal laws for all time to come will militate against their true character as temporary measures taken in order to serve a temporary purpose. Thereby, the very foundation of their constitutionality shall have been destroyed, the foundation being that section 119 of the States Reorganization Act serves the significant purpose of giving reasonable time to the new units to consider the special circumstances obtaining in respect of diverse units. The decision to withdraw the application of unequal laws to equals cannot be delayed unreasonably because the relevance of historical reasons which justify the application of unequal laws is bound to wear out with the passage of time. In Brooms Legal Maxims (1939 Edition, Page 97 ) can be found a useful principle, "Cessante Ratione Legis Cessat Ipsa Lex, that is to say, "Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself".We do not however see any justification for holding that the continued application of the Madras Act of 1951 to South Kanara District became violative of article 14 as immediately as during the period under consideration, which was just five or six years after the passing of the States Reorganisation Act. Nor indeed are we disposed to hold that the continued application of that Act until now is shown by adequate data to be violative of article 14.16. But that is how the matter stands to-day. Twenty three years have gone by since the States Reorganisation Act was passed but unhappily, no serious effort has been made by the State Legislature to introduce any legislation-apart from two abortive attempts in 1963 and 1977-to remove the inequality between the temples and Mutts situated in the South Kanara District and those situated in other areas of Karnataka. Inequality is so clearly writ large on the face of the impugned statute in its application to the District of South Kanara only, that it is perilously near the periphery of unconstitutionality. We have restrained ourselves from declaring the law as inapplicable to the District of South Kanara from to-day but we would like to make it clear that if the Karnataka Legislature does not act promptly and remove the inequality arising out of the application of the Madras Act of 1951 to the District of South Kanara only, the Act will have to suffer a serious and successful challenge in the not distant future. We do hope that the Government of Karnataka will act promptly and move an appropriate legislation, say, within a year or so. A comprehensive legislation which will apply to all temples and Mutts in Karnataka, which are equally situated in the context of the levy of fee, may perhaps afford a satisfactory solution to the problem. This, however, is a tentative view-point because we have not investigated whether the Madras Act of 1951, particularly section 76(1) thereof, is a piece of hostile legislation of the kind that would involve the violation of article 14. Facts in regard thereto may have to be explored, if and when occasion arises. | 0[ds]10. The rules framed under the Madras Act of 1951 prescribed a fee varying from 3 to 5 per cent of the annual income of the institutions. The figures furnished by the Commissioner in the third statement dated August 10, 1967 which was filed in pursuance of the directive issued by the High Court show that the total demand made on all the religious institutions for fees during the years 1957 to 1964 amounted to Rs. 8, 80, 389/- while the allocable expense for the services was Rs. 7, 54, 160/-. It is not without significance that though the total demand made on the Mutts during the said period was in the sum of Rs. 3, 64, 591/-, the contribution received from the Mutts was Rs. 24, 526/- only. In the absence of any acceptable evidence showing that the Department had built up large accumulations or reserves out of the fees collected from the various institutions and considering that services are required to be rendered to a large class of institutions consisting of major and minor institutions, we do not think that we can positively come to the conclusion that there is no approximation or correspondence between t he fees levied on the appellants and the services rendered to the class to which they belong. The second contention thereforeis true that by section 80 of the Madras Act of 1951, the Commissioner is constituted a Corporation Sole with a perpetual succession. But the provisions of section 109(1) of the S. R. Act on which the argument rests do not support the argument. The relevant part of section 109 (1) provides that where any body corporate has been constituted under a State Act for an existing State, any part of which is by virtue of the provisions of Part II of the S .R. Act transferred to any other State, then notwithstanding such transfer, the body corporate shall, as from the appointed day continue to function and operate in those areas in respect of which it was functioning and operating immediately before that day, "subject to such directions as may from time to time be issued by the Central Government". Under this provision, it is competent to the Central Government to issue directions to a body corporate and by reason of sub-section 2 of section 109, any direction issued by the Central Government under sub-section (1) shall include a direction that any law by which the said body corporate is governed shall have effect subject to such exceptions and modifications as may be specified in the directions. In other words, the body corporate has to function within the scope of and in accordance with the directions issued by the Central Government from time to time. But the power of the body corporate to function under the parent Act is not conditional on the issuance of directions by the Central Government. If directions are issued by the Central Government, they have to be complied with by the body corporate. If no directions are issued, the power s and functions of the authority remain unimpaired and can nevertheless be exercised as contemplated by the Act which creates the body corporate.These decisions are authority for the validity of section 76(1) of the Madras Act of 1951 in its application to the South Kanara District of the State of Mysore, now the State of Karnataka. This Court has said time and again that dissimilar treatment does not necessarily offend against the guarantee of equality contained in article 14 of the Constitution. The rider is that there has to be a valid basis for classification and the classification must bear nexus with the object of the impugned provision. In matters arising out of reorganisation of States, continued application of laws of a State to territories, which were within that State but which have become a part of another State is not discriminatory since the classification rests on geographical considerations founded on historical reasons.In Bhopal Sugar Industries Ltd., (supra) Shah J., who spoke for the court, has traced t he genesis of section 119 of the States Reorganisation Act to which attention may usefully beis necessary to bear in mind that the various administrative units which existed in British India were the result of acquisition of territory by the East India Company from time to time. The merger of Indian States since 1947 brought into the Dominion of India numerous Unions or States, based upon arrangements ad hoc, and the constitutional set up in 1950 did not attempt, on account of diverse reasons mainly political, to make any rational rearrangement of administrative units. Under the Constitution as originally promulgated there existed three categories of States, besides the centrally administered units of the Andaman and Nicobar island. Part A States were the former Governors Provinces, with which were merged certain territories of the former Indian States to make geographically homogeneous units: Part B States represented groups formed out of 275 bigger Indian States by mutual arrangement into Unions: Part C States were the former Chief Commissioners Provinces. These un its were continued under the Constitution merely because they formerly existed. Later an attempt was made under the States Reorganisation Act to rationalize the pattern of administration by reducing the four classes of units into two-States, and Union territories-and by making a majority of the States homogeneous linguistic units. But in the States so reorganised were incorporated regions governed by distinct laws, and by the mere pr ocess of bringing into existence reorganised administrative units, uniformity of laws could not immediately be secured. Administrative reorganisation evidently could not await adaptation of laws, so as to make them uniform, and immediate abolition of laws which gave distinctive character to the regions brought into the new units was politically inexpedient even if theoretically possible. An attempt to secure uniformity of laws before reorganisation of the units would also have considerably retarded the process of reorganisation. With the object of effectuating a swift transition, the States Reorganisation Act made a blanket provision i n section 119 continuing the operation of the laws in force in the territories in which they were previously in force notwithstanding the territorial reorganisation into different administrative units until the competent Legislature or authority amended, altered or modified those laws.......... Continuance of the laws of the old region after the reorganisation by section 119 of the States Reorganisation Act was by itself not discriminatory even though it resulted in differential treatment of persons, objects and transactions in the new State, because it was intended to serve a dual purpose-facilitating the early formation of homogeneous units in the larger interest of the Union, and maintaining even while merging its political identity in the new unit, the distinctive character of each region, till uniformity of laws was secured in those branches in which it was expedient after full enquiry to do so. The laws of the regions merged in the new units had therefore to be continued on grounds of necessity andin mind these considerations, we are of the view that the Madras Act of 1951, in its application to the South Kanara District of Mysore, now Karnataka, does not infringe article 14 of the Constitution.In this connection, a matter of primary importance to be borne in mind is that section 119 of the States Reorganisation Act, 1956, was intended, as said in Bhaiyalal Shukla, (supra) to serve a "temporary purpose", viz., to enable the new u nits to consider the special circumstances of the diverse units, before launching upon a process of adaptation of laws so as to make them reasonably uniform, having regard to the special needs of the various regions and the requirements of admi nistrative efficiency. Acts, Rules and Regulations whose constitutional validity is upheld and can be upheld only on the ground that no violation per so of article 14 is involved in the application of different laws to different components of a State, if the area to which unequal laws are applied has become a part of the State as result of the States "reorganization, cannot continue to apply to such area indefinitely. An indefinite extension and application of unequal laws for all time to come will militate against their true character as temporary measures taken in order to serve a temporary purpose. Thereby, the very foundation of their constitutionality shall have been destroyed, the foundation being that section 119 of the States Reorganization Act serves the significant purpose of giving reasonable time to the new units to consider the special circumstances obtaining in respect of diverse units. The decision to withdraw the application of unequal laws to equals cannot be delayed unreasonably because the relevance of historical reasons which justify the application of unequal laws is bound to wear out with the passage ofdo not however see any justification for holding that the continued application of the Madras Act of 1951 to South Kanara District became violative of article 14 as immediately as during the period under consideration, which was just five or six years after the passing of the States Reorganisation Act. Nor indeed are we disposed to hold that the continued application of that Act until now is shown by adequate data to be violative of article 14.16. But that is how the matter stands to-day. Twenty three years have gone by since the States Reorganisation Act was passed but unhappily, no serious effort has been made by the State Legislature to introduce any legislation-apart from two abortive attempts in 1963 and 1977-to remove the inequality between the temples and Mutts situated in the South Kanara District and those situated in other areas of Karnataka. Inequality is so clearly writ large on the face of the impugned statute in its application to the District of South Kanara only, that it is perilously near the periphery of unconstitutionality. We have restrained ourselves from declaring the law as inapplicable to the District of South Kanara from to-day but we would like to make it clear that if the Karnataka Legislature does not act promptly and remove the inequality arising out of the application of the Madras Act of 1951 to the District of South Kanara only, the Act will have to suffer a serious and successful challenge in the not distant future. We do hope that the Government of Karnataka will act promptly and move an appropriate legislation, say, within a year or so. A comprehensive legislation which will apply to all temples and Mutts in Karnataka, which are equally situated in the context of the levy of fee, may perhaps afford a satisfactory solution to the problem. This, however, is a tentative view-point because we have not investigated whether the Madras Act of 1951, particularly section 76(1) thereof, is a piece of hostile legislation of the kind that would involve the violation of article 14. Facts in regard thereto may have to be explored, if and when occasion arises.It is thus quite clear that the appellants rested their plea of discrimination on the sole ground that the cont inued application of the provisions of the Act to South Kanara district of the reorganised State after 8 or 9 years from November 1, 1956, (when the State was formed) without "unifying" the legislation on the subject of Hindu religious and charitable endowments, was "wholly discriminatory." The other plea in paragraph 23 about "mixing" of mutts with temples is not quite intelligible and has not even been referred to by counsel during the course of their arguments. The ground which has been taken is therefore quite untenable for, as has been mentioned, it has been declared in the case of the Bhopal Sugar Industries that it is impossible to lay down any definite time limit within which the State has to make the necessary adjustment for the purpose of effectuating the equality clause of the Constitution, and that while the differential treatment could not be permitted to assume permanency without a rational basis to support it as years go by, a mere plea of differential treatment is by itself not sufficient to attract the application of article 14. The following further observation in that case clearly bears on the point undercannot be said that because a certain number of years have elapsed or that the State has made other laws uniform, the State has acted improperly in continuing an impost which operates upon a class of citizens more harshly than upon others.It may be that if the appellants had furnished the necessary particulars in support of their plea of discrimination, the respondents would have come out with whatever defence was available to them. For instance, the State might perhaps have found it possible to plead that the provision for the collection of the contribution under section 76 of the Madras Act of 1951 was beneficial to the religious and charitable institutions and endowments and was not burdensome in view of the services rendered by the authorities of the State government, and that sub-section (5) of that section was beneficial as it provided that if there was a surplus after meeting all the charges referred to in the preceding sub-section, it could be utilised for helping the poor and needy institutions etc. As it is, section 81 of the Act provides for the establishment of the Madras Hindu Religious and Charitable Endowments Administration Fund, which vests in the Commissioner, and not in the State, so that it has its separate existence and purpose, and it might have to be examined whether the provision for the making of compulsory contribution to it was unfair or discriminatory.27. If the appellants thought otherwise, it was necessary for them to plead and establish the necessary facts to enable a proper enquiry into their allegation of inequal or discriminatory treatment. But, as has been stated, that has not been done. I am therefore unable to think that, in the absence of the necessary pleadings, it can be said that inequality is so clearly writ large on the face of the impugned statute in its application to the district of South Kanara only, that is perilously near the periphery of unconstitutionality merely because of the lapse of 23 years.28. But quite apart from the unsatisfactory nature of the pleadings in these cases which, by itself, justified the dismissal of the writ petitions, and the fact that a Constitution Bench of this Court has taken the view, in the case of the Bhopal Sugar Industries Ltd., that it cannot be said that because a certain number of years have elapsed, the State has acted improperly in continuing an impost which operates upon a class of citizens more harshly than upon others, it has to be remembered that a mutt is a monastic institution for the use and benefit of ascetics belonging to a particular Order presided over by a superior who is its religious teacher. The mutt property, though originally given by a donor, belongs to that spiritual family represented by the superior or mahant. It does not, however, vest in him, as he is some sort of a "shabait", and vests in the mutt as a juristic person. This has been sufficiently born e out in the definition of "math" in clause 10 of section 6 of the Madras Act of 1951. A mutt has therefore a laudable object and it is in the interest of all concerned that such endowments should be properly administered. As there are mutts in the other areas of the Karnataka State (besides the South Kanara district) it is necessary that the State Government should examine whether the contribution provided for by the Madras Act of 1951 is really necessary and advantageous for the proper administration of the religious and charitable institutions and endowments in the State as a whole and if not, whether it is an inequality, and its continued applicability to the South Kanara district can be justified with reference to article 14 of the Constitution. I agree with the Chief Justice that this may be done "say, within a year or so." | 0 | 8,080 | 2,893 | ### Instruction:
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Constitution.15. But then, learned counsel for the appellants argues that while following the judgments above referred to, we must not overlook the caveat contained in those judgments and the description therein of section 119 of the States Reorganisation Act as a temporary measure. In this behalf, reliance is also placed by counsel on the decision in N arottam Kishore Dev Varma and ors. vs. Union of India and Anr. The petitioners therein applied for the consent of the Central Government under section 87B of the Code of Civil Procedure to sue the Maharaja of Tripura, Ruler of a former Indian State which had merged with India. Consent having been refused, they filed Writ Petition in this Court challenging the validity of section 87B on the ground that in granting exemption to Rulers of former Indian States from being sued except with the consent of the Central Government, the section contravened article 14 of the Constitution. The Court followed an earlier judgment and repelled the challenge but while doing so, Gajendragadkar, C.J., speaking for the Court, made an important observation inviting the Central Government to consider seriously whether it was necessary to allow section 87B to operate prospectively for all time and whether transactions subsequent to January 26, 1950 should also receive the protection of the section. The Court felt that, considered broadly in the light of the basic principle of equality before law, it was somewhat odd that section 87B should continue to operate for all time. "With the passage of time" observed the learned Chief Justice, "the validity of historical considerations on which section 87B is founded will wear out and the continuance of the said section in the Code of Civil Procedure may later be open to serious challenge".The narrow question that remains for consideration now is whether, though the initial application of the Madras Act of 1951 to the South Kanara District was not violative of article 14, its continued application offends against the guarantee of equality. In this connection, a matter of primary importance to be borne in mind is that section 119 of the States Reorganisation Act, 1956, was intended, as said in Bhaiyalal Shukla, (supra) to serve a "temporary purpose", viz., to enable the new u nits to consider the special circumstances of the diverse units, before launching upon a process of adaptation of laws so as to make them reasonably uniform, having regard to the special needs of the various regions and the requirements of admi nistrative efficiency. Acts, Rules and Regulations whose constitutional validity is upheld and can be upheld only on the ground that no violation per so of article 14 is involved in the application of different laws to different components of a State, if the area to which unequal laws are applied has become a part of the State as result of the States "reorganization, cannot continue to apply to such area indefinitely. An indefinite extension and application of unequal laws for all time to come will militate against their true character as temporary measures taken in order to serve a temporary purpose. Thereby, the very foundation of their constitutionality shall have been destroyed, the foundation being that section 119 of the States Reorganization Act serves the significant purpose of giving reasonable time to the new units to consider the special circumstances obtaining in respect of diverse units. The decision to withdraw the application of unequal laws to equals cannot be delayed unreasonably because the relevance of historical reasons which justify the application of unequal laws is bound to wear out with the passage of time. In Brooms Legal Maxims (1939 Edition, Page 97 ) can be found a useful principle, "Cessante Ratione Legis Cessat Ipsa Lex, that is to say, "Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself".We do not however see any justification for holding that the continued application of the Madras Act of 1951 to South Kanara District became violative of article 14 as immediately as during the period under consideration, which was just five or six years after the passing of the States Reorganisation Act. Nor indeed are we disposed to hold that the continued application of that Act until now is shown by adequate data to be violative of article 14.16. But that is how the matter stands to-day. Twenty three years have gone by since the States Reorganisation Act was passed but unhappily, no serious effort has been made by the State Legislature to introduce any legislation-apart from two abortive attempts in 1963 and 1977-to remove the inequality between the temples and Mutts situated in the South Kanara District and those situated in other areas of Karnataka. Inequality is so clearly writ large on the face of the impugned statute in its application to the District of South Kanara only, that it is perilously near the periphery of unconstitutionality. We have restrained ourselves from declaring the law as inapplicable to the District of South Kanara from to-day but we would like to make it clear that if the Karnataka Legislature does not act promptly and remove the inequality arising out of the application of the Madras Act of 1951 to the District of South Kanara only, the Act will have to suffer a serious and successful challenge in the not distant future. We do hope that the Government of Karnataka will act promptly and move an appropriate legislation, say, within a year or so. A comprehensive legislation which will apply to all temples and Mutts in Karnataka, which are equally situated in the context of the levy of fee, may perhaps afford a satisfactory solution to the problem. This, however, is a tentative view-point because we have not investigated whether the Madras Act of 1951, particularly section 76(1) thereof, is a piece of hostile legislation of the kind that would involve the violation of article 14. Facts in regard thereto may have to be explored, if and when occasion arises.
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act promptly and remove the inequality arising out of the application of the Madras Act of 1951 to the District of South Kanara only, the Act will have to suffer a serious and successful challenge in the not distant future. We do hope that the Government of Karnataka will act promptly and move an appropriate legislation, say, within a year or so. A comprehensive legislation which will apply to all temples and Mutts in Karnataka, which are equally situated in the context of the levy of fee, may perhaps afford a satisfactory solution to the problem. This, however, is a tentative view-point because we have not investigated whether the Madras Act of 1951, particularly section 76(1) thereof, is a piece of hostile legislation of the kind that would involve the violation of article 14. Facts in regard thereto may have to be explored, if and when occasion arises.It is thus quite clear that the appellants rested their plea of discrimination on the sole ground that the cont inued application of the provisions of the Act to South Kanara district of the reorganised State after 8 or 9 years from November 1, 1956, (when the State was formed) without "unifying" the legislation on the subject of Hindu religious and charitable endowments, was "wholly discriminatory." The other plea in paragraph 23 about "mixing" of mutts with temples is not quite intelligible and has not even been referred to by counsel during the course of their arguments. The ground which has been taken is therefore quite untenable for, as has been mentioned, it has been declared in the case of the Bhopal Sugar Industries that it is impossible to lay down any definite time limit within which the State has to make the necessary adjustment for the purpose of effectuating the equality clause of the Constitution, and that while the differential treatment could not be permitted to assume permanency without a rational basis to support it as years go by, a mere plea of differential treatment is by itself not sufficient to attract the application of article 14. The following further observation in that case clearly bears on the point undercannot be said that because a certain number of years have elapsed or that the State has made other laws uniform, the State has acted improperly in continuing an impost which operates upon a class of citizens more harshly than upon others.It may be that if the appellants had furnished the necessary particulars in support of their plea of discrimination, the respondents would have come out with whatever defence was available to them. For instance, the State might perhaps have found it possible to plead that the provision for the collection of the contribution under section 76 of the Madras Act of 1951 was beneficial to the religious and charitable institutions and endowments and was not burdensome in view of the services rendered by the authorities of the State government, and that sub-section (5) of that section was beneficial as it provided that if there was a surplus after meeting all the charges referred to in the preceding sub-section, it could be utilised for helping the poor and needy institutions etc. As it is, section 81 of the Act provides for the establishment of the Madras Hindu Religious and Charitable Endowments Administration Fund, which vests in the Commissioner, and not in the State, so that it has its separate existence and purpose, and it might have to be examined whether the provision for the making of compulsory contribution to it was unfair or discriminatory.27. If the appellants thought otherwise, it was necessary for them to plead and establish the necessary facts to enable a proper enquiry into their allegation of inequal or discriminatory treatment. But, as has been stated, that has not been done. I am therefore unable to think that, in the absence of the necessary pleadings, it can be said that inequality is so clearly writ large on the face of the impugned statute in its application to the district of South Kanara only, that is perilously near the periphery of unconstitutionality merely because of the lapse of 23 years.28. But quite apart from the unsatisfactory nature of the pleadings in these cases which, by itself, justified the dismissal of the writ petitions, and the fact that a Constitution Bench of this Court has taken the view, in the case of the Bhopal Sugar Industries Ltd., that it cannot be said that because a certain number of years have elapsed, the State has acted improperly in continuing an impost which operates upon a class of citizens more harshly than upon others, it has to be remembered that a mutt is a monastic institution for the use and benefit of ascetics belonging to a particular Order presided over by a superior who is its religious teacher. The mutt property, though originally given by a donor, belongs to that spiritual family represented by the superior or mahant. It does not, however, vest in him, as he is some sort of a "shabait", and vests in the mutt as a juristic person. This has been sufficiently born e out in the definition of "math" in clause 10 of section 6 of the Madras Act of 1951. A mutt has therefore a laudable object and it is in the interest of all concerned that such endowments should be properly administered. As there are mutts in the other areas of the Karnataka State (besides the South Kanara district) it is necessary that the State Government should examine whether the contribution provided for by the Madras Act of 1951 is really necessary and advantageous for the proper administration of the religious and charitable institutions and endowments in the State as a whole and if not, whether it is an inequality, and its continued applicability to the South Kanara district can be justified with reference to article 14 of the Constitution. I agree with the Chief Justice that this may be done "say, within a year or so."
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Haryana State Indusl.Devt.Corp.Ltd Vs. Udal & Ors.Etc.Etc | lands in the rural areas. Therefore, if the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is, about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same. 15. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisitions), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied on sale transactions/acquisitions precede the subject acquisition by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase. 18. The increase in market value is calculated with reference to the market value during the immediate preceding year. When market value is sought to be ascertained with reference to a transaction which took place some years before the acquisition, the method adopted is to calculate the year to year increase. As the percentage of increase is always with reference to the previous years market value, the appropriate method is to calculate the increase cumulatively and not applying a flat rate. The difference between the two methods is shown by the following illustration (with reference to a 10% increase over a basic price of Rs 10 per square metre): Year By flat rate increase method By cumulative increase method 1987 10.00 10.00 (Base year) 1988 10 + 1 = 11.00 10.00 + 1.00 = 11.00 1989 11 + 1 = 12.00 11.00 + 1.10 = 12.10 1990 12 + 1 = 13.00 12.10 + 1.21 = 13.31 1991 13 + 1 = 14.00 13.31 + 1.33 = 14.64 1992 14 + 1 = 15.00 14.64 + 1.46 = 16.10 19. We may also point out that application of a flat rate will lead to anomalous results. This may be demonstrated with further reference to the above illustration. In regard to the sale transaction in 1987, where the price was Rs 10 per square metre, if the annual increase to be applied is a flat rate of 10%, the increase will be Rs 1 per annum during each of the five years 1988, 1989, 1990, 1991 and 1992. If the price increase is to be determined with reference to sale transaction of the year 1989 when the price was Rs 12 per square metre, the flat rate increase will be Rs 1.20 per annum, for the years 1990, 1991 and 1992. If the price increase is determined with reference to a sale transaction of the year 1990 when the price was Rs 13 per square metre, then the flat rate increase will be Rs 1.30 per annum for the years 1991 and 1992. It will thus be seen that even if the percentage of increase is constant, the application of a flat rate leads to different amounts being added depending upon the market value in the base year. On the other hand, the cumulative rate method will lead to consistency and more realistic results. Whether the base price is Rs 10 or Rs 12.10 or Rs 13.31, the increase will lead to the same result. The logical, practical and appropriate method is therefore to apply the increase cumulatively and not at a flat rate. 32. The same view was reiterated in Valliyammal v. Special Tahsildar (Land Acquisition) (2011) 8 SCC 91. Of course, in that case annual increase of 10% was allowed to the landowners. 33. We also find merit in the argument of the learned counsel for the landowners that while fixing market value of the acquired land the learned Single Judge committed serious error by not considering an important piece of evidence, i.e., Exhibit PW9/A dated 23.11.1999 vide which HSIIDC had allotted land to M/s. Honda Motorcycles and Scooters India (Private) Limited at the rate of Rs.1254.18 per square yard. Although, this document was produced before the Reference Court but the same was not taken into consideration while determining the amount of compensation. The same error has been repeated in the impugned judgment. If this document is taken into consideration, then market value of the acquired land would come to Rs.60,69,360 per acre. By making deduction of 50% towards development cost and granting annual increase of 12/15% (cumulative), market value of the land will be much higher than Rs.37,40,000 per acre. 34. In view of the above conclusions, we do not consider it necessary to deal with the other points argued by learned counsel for the parties/intervenors and feel that ends of justice will be served by setting aside the impugned judgment and remitting the matters to the High Court for fresh disposal of the appeals and cross objections filed by the parties subject to the rider that the State Government/HSIIDC shall pay the balance of Rs.37,40,000 to the landowners along with other statutory benefits. | 1[ds]33. We also find merit in the argument of the learned counsel for the landowners that while fixing market value of the acquired land the learned Single Judge committed serious error by not considering an important piece of evidence, i.e., Exhibit PW9/A dated 23.11.1999 vide which HSIIDC had allotted land to M/s. Honda Motorcycles and Scooters India (Private) Limited at the rate of Rs.1254.18 per square yard. Although, this document was produced before the Reference Court but the same was not taken into consideration while determining the amount of compensation. The same error has been repeated in the impugned judgment. If this document is taken into consideration, then market value of the acquired land would come to Rs.60,69,360 per acre. By making deduction of 50% towards development cost and granting annual increase of 12/15% (cumulative), market value of the land will be much higher than Rs.37,40,000 per acre34. In view of the above conclusions, we do not consider it necessary to deal with the other points argued by learned counsel for the parties/intervenors and feel that ends of justice will be served by setting aside the impugned judgment and remitting the matters to the High Court for fresh disposal of the appeals and cross objections filed by the parties subject to the rider that the State Government/HSIIDC shall pay the balance of Rs.37,40,000 to the landowners along with other statutory benefits29. A careful scrutiny of the impugned judgment shows that while determining the amount of compensation payable to the landowners other than M/s. Kohli Holdings Private Limited, the learned Single Judge did make a reference to Exhibit P38 (paragraph 30) but did not rely upon the same for the purpose of determination of the amount of compensation. Instead of adopting a holistic approach and examining the documents produced before the Reference Court, the learned Single Judge simply referred to the judgment of this Court in Pran Sukhs case, granted a flat increase of 12% for the time gap of about 7 years and 3 months between the two acquisitions, i.e., 1994 and 2002 determined market value at the rate of Rs.37,40,000 per acre. In the case of M/s. Kohli Holdings Private Limited, the learned Single Judge squarely relied upon Exhibit P38 for the purpose of fixing market value of the acquired land, granted an increase at a flat rate of 15% per annum on the price of land specified in Exhibit P38 with an addition of 30% on account of special locational advantage and held that the particular landowner is entitled to compensation at the rate of Rs.2119 per square yard (Rs.1,02,55,960 per acre). However, no discernible reason has been given for granting the benefit of annual increase at different rates to M/s. Kohli Holdings Private Limited on the one hand and the remaining landowners on the other. Therefore, we find merit in the argument of the learned counsel for the remaining landowners that their clients have been subjected to discrimination in the matter of grant of annual increase30. The other error committed by the learned Single Judge is that he granted annual increase at a flat rate of 12/15%. | 1 | 9,352 | 570 | ### Instruction:
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lands in the rural areas. Therefore, if the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is, about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same. 15. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisitions), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied on sale transactions/acquisitions precede the subject acquisition by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase. 18. The increase in market value is calculated with reference to the market value during the immediate preceding year. When market value is sought to be ascertained with reference to a transaction which took place some years before the acquisition, the method adopted is to calculate the year to year increase. As the percentage of increase is always with reference to the previous years market value, the appropriate method is to calculate the increase cumulatively and not applying a flat rate. The difference between the two methods is shown by the following illustration (with reference to a 10% increase over a basic price of Rs 10 per square metre): Year By flat rate increase method By cumulative increase method 1987 10.00 10.00 (Base year) 1988 10 + 1 = 11.00 10.00 + 1.00 = 11.00 1989 11 + 1 = 12.00 11.00 + 1.10 = 12.10 1990 12 + 1 = 13.00 12.10 + 1.21 = 13.31 1991 13 + 1 = 14.00 13.31 + 1.33 = 14.64 1992 14 + 1 = 15.00 14.64 + 1.46 = 16.10 19. We may also point out that application of a flat rate will lead to anomalous results. This may be demonstrated with further reference to the above illustration. In regard to the sale transaction in 1987, where the price was Rs 10 per square metre, if the annual increase to be applied is a flat rate of 10%, the increase will be Rs 1 per annum during each of the five years 1988, 1989, 1990, 1991 and 1992. If the price increase is to be determined with reference to sale transaction of the year 1989 when the price was Rs 12 per square metre, the flat rate increase will be Rs 1.20 per annum, for the years 1990, 1991 and 1992. If the price increase is determined with reference to a sale transaction of the year 1990 when the price was Rs 13 per square metre, then the flat rate increase will be Rs 1.30 per annum for the years 1991 and 1992. It will thus be seen that even if the percentage of increase is constant, the application of a flat rate leads to different amounts being added depending upon the market value in the base year. On the other hand, the cumulative rate method will lead to consistency and more realistic results. Whether the base price is Rs 10 or Rs 12.10 or Rs 13.31, the increase will lead to the same result. The logical, practical and appropriate method is therefore to apply the increase cumulatively and not at a flat rate. 32. The same view was reiterated in Valliyammal v. Special Tahsildar (Land Acquisition) (2011) 8 SCC 91. Of course, in that case annual increase of 10% was allowed to the landowners. 33. We also find merit in the argument of the learned counsel for the landowners that while fixing market value of the acquired land the learned Single Judge committed serious error by not considering an important piece of evidence, i.e., Exhibit PW9/A dated 23.11.1999 vide which HSIIDC had allotted land to M/s. Honda Motorcycles and Scooters India (Private) Limited at the rate of Rs.1254.18 per square yard. Although, this document was produced before the Reference Court but the same was not taken into consideration while determining the amount of compensation. The same error has been repeated in the impugned judgment. If this document is taken into consideration, then market value of the acquired land would come to Rs.60,69,360 per acre. By making deduction of 50% towards development cost and granting annual increase of 12/15% (cumulative), market value of the land will be much higher than Rs.37,40,000 per acre. 34. In view of the above conclusions, we do not consider it necessary to deal with the other points argued by learned counsel for the parties/intervenors and feel that ends of justice will be served by setting aside the impugned judgment and remitting the matters to the High Court for fresh disposal of the appeals and cross objections filed by the parties subject to the rider that the State Government/HSIIDC shall pay the balance of Rs.37,40,000 to the landowners along with other statutory benefits.
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33. We also find merit in the argument of the learned counsel for the landowners that while fixing market value of the acquired land the learned Single Judge committed serious error by not considering an important piece of evidence, i.e., Exhibit PW9/A dated 23.11.1999 vide which HSIIDC had allotted land to M/s. Honda Motorcycles and Scooters India (Private) Limited at the rate of Rs.1254.18 per square yard. Although, this document was produced before the Reference Court but the same was not taken into consideration while determining the amount of compensation. The same error has been repeated in the impugned judgment. If this document is taken into consideration, then market value of the acquired land would come to Rs.60,69,360 per acre. By making deduction of 50% towards development cost and granting annual increase of 12/15% (cumulative), market value of the land will be much higher than Rs.37,40,000 per acre34. In view of the above conclusions, we do not consider it necessary to deal with the other points argued by learned counsel for the parties/intervenors and feel that ends of justice will be served by setting aside the impugned judgment and remitting the matters to the High Court for fresh disposal of the appeals and cross objections filed by the parties subject to the rider that the State Government/HSIIDC shall pay the balance of Rs.37,40,000 to the landowners along with other statutory benefits29. A careful scrutiny of the impugned judgment shows that while determining the amount of compensation payable to the landowners other than M/s. Kohli Holdings Private Limited, the learned Single Judge did make a reference to Exhibit P38 (paragraph 30) but did not rely upon the same for the purpose of determination of the amount of compensation. Instead of adopting a holistic approach and examining the documents produced before the Reference Court, the learned Single Judge simply referred to the judgment of this Court in Pran Sukhs case, granted a flat increase of 12% for the time gap of about 7 years and 3 months between the two acquisitions, i.e., 1994 and 2002 determined market value at the rate of Rs.37,40,000 per acre. In the case of M/s. Kohli Holdings Private Limited, the learned Single Judge squarely relied upon Exhibit P38 for the purpose of fixing market value of the acquired land, granted an increase at a flat rate of 15% per annum on the price of land specified in Exhibit P38 with an addition of 30% on account of special locational advantage and held that the particular landowner is entitled to compensation at the rate of Rs.2119 per square yard (Rs.1,02,55,960 per acre). However, no discernible reason has been given for granting the benefit of annual increase at different rates to M/s. Kohli Holdings Private Limited on the one hand and the remaining landowners on the other. Therefore, we find merit in the argument of the learned counsel for the remaining landowners that their clients have been subjected to discrimination in the matter of grant of annual increase30. The other error committed by the learned Single Judge is that he granted annual increase at a flat rate of 12/15%.
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Shree Bajrang Jute Mills Ltd Vs. State Of Andhra Pradesh | such delivery took place and being outside all other States exempt from sales-tax by those other States: Tobacco Manufacturers (India) Ltd. v. Commissioner of Sales-tax, Bihar, Patna, 1961-2 SCR 106 : (AIR 1961 SC 402 ): Indian Copper Corporation Ltd. v. State of Bihar, 1961-2 SCR 276 : (AIR 1961 SC 347 ): and State of Kerala v. Cochin Coal Co. Ltd., 1961-2 SCR 219 : (AIR 1961 SC 408 ). But the Explanation is not exhaustive of what may be called "inside sales". Clause (1) (a) excludes from the reach of the power of the States sales outside the State but it does not follow from the Explanation that it localises the situs of all sales. The power of the State under Entry 54 List II of the Seventh Schedule to tax sales (not falling within cls. (1) (b), (2) and (3)) which are outside the Explanation, and which may for the sake of brevity be called non-Explanation sales, remains unimpaired. It is not necessary for the purpose of this case to express an opinion, whether the theory of territorial nexus of the taxing State, with one or more elements which go to make a completed sale authorises since the promulgation of the Constitution the exercise of legislative power under Entry 54, List II the Seventh Schedule to tax sales, where property in goods has not passed within the taxing State.7. The question which then falls to be determined is whether the sales to the A. C. C. by the appellant may be regarded as "non-Explanation sales". There can be no doubt that if the goods were delivered pursuant to the contracts of sale outside the State of Andhra for the purpose of consumption in the State into which the goods were delivered, the State of Andhra could have no right to tax those sales by virtue of the restriction imposed by Art. 286(1) (a) read with the Explanation.8. The facts found by the taxing authorities clearly establish that property in the goods despatched by the appellant passed to the A. C. C. within the State of Andhra when the railway receipts were handed over to the agent of the A. C. C. against payment of price. The question still remains: were the transactions non-Explanation sales i. e. falling outside the Explanation to Art. 286(1) ? To attract the Explanation, the goods had to be actually delivered as a direct result of the sale, for the purpose of consumption in the State in which they were delivered. It is not disputed that the goods were supplied for the purpose of consumption outside the State of Andhra, and in the States in which they were supplied. It is submitted that the goods were actually delivered within the State, when the railway receipts were handed over to the agent of the buyer. But the expression "actually delivered" in the context in which it occurs, can only mean physical delivery of the goods, or such action as puts the goods in the possession of the purchaser: it does not contemplate mere symbolical or national delivery e. g., by entrusting the goods to a common carrier, or even delivery of documents of title like railway receipts. In C. Govindarajulu Naidu and Co. v. State of Madras, AIR 1953 Mad 116 , Venkatarama Ayyar, J., dealing with the concept of actual delivery of goods, so as to attract the application of the Explanation to Art. 286(1) (a) rightly observed:"In the context it can mean only physical delivery and not constructive delivery such as by transfer of documents of title to the goods. The whole object of the Explanation is to give a power of taxation in respect of the goods actually entering the State for the purpose of use therein and it will defeat such a purpose if notional delivery of the goods as by transfer of documents of title to the goods within the State is held to give the State a power to tax, when the goods are actually delivered in another State." A similar view has been expressed in two other cases: Capoo Ltd. v. Sales Tax Officer, AIR 1960 All 62 , and Khaitan Minerals v. Sales Tax Appellate Tribunal for Mysore, AIR 1963 Mys. 141.9. Counsel for the respondent-State relied upon S. 39 of the Indian Sale of Goods Act, 1930, which provides in so far as it is material, by the first sub-section that where, in pursuance of a contract of sale, the seller is authorised to send the goods to the buyer, delivery of the goods to a carrier for the purpose of transmission to the buyer, is prima facie deemed to be delivery of the goods to the buyer. But that provision will not make mere delivery of the railway receipts representing title to the goods actual delivery of goods for the purpose of Art. 286. The rule contained in S. 39(1) of the Indian Sale of Goods Act raises a prima facie inference that the goods have been delivered if the conditions prescribed thereby are satisfied: it has no application in dealing with a constitutional provision which while imposing a restriction upon the legislative power of the States entrusts exclusive power to levy sales tax to the State in which the goods have been actually delivered for the purpose of consumption.10. The High Court was therefore in error in inferring from the fact that the property had passed within the State of Andhra against delivery of the railway receipts that the goods were actually delivered within the State. If the inference raised by the High Court that the goods were actually delivered within the State of Andhra cannot be accepted, on the facts found there is no escape from the conclusion that the State of Andhra had no authority to levy tax in respect of those sale transactions in which the goods were sent under railway receipts to places outside the State of Andhra and actually delivered for the purpose of consumption in those States. | 1[ds]It is now well-settled that by Art. 286(1) (as it stood before it was amended by the Constitution Sixth Amendment Act, 1956) sales as a direct result of which goods were delivered in a State for consumption in such State i. e., the sales falling within the Explanation to Art. 286(1) were fictionally to be regarded as inside that State for the purpose of (1) (a) and so within the taxing power of the State in which such delivery took place and being outside all other States exempt from sales-tax by those other States: Tobacco Manufacturers (India) Ltd. v. Commissioner of Sales-tax, Bihar, Patna, 1961-2 SCR 106 : (AIR 1961 SC 402 ): Indian Copper Corporation Ltd. v. State of Bihar, 1961-2 SCR 276 : (AIR 1961 SC 347 ): and State of Kerala v. Cochin Coal Co. Ltd., 1961-2 SCR 219 : (AIR 1961 SC 408 ). But the Explanation is not exhaustive of what may be called "inside sales". Clause (1) (a) excludes from the reach of the power of the States sales outside the State but it does not follow from the Explanation that it localises the situs of all sales. The power of the State under Entry 54 List II of the Seventh Schedule to tax sales (not falling within cls. (1) (b), (2) and (3)) which are outside the Explanation, and which may for the sake of brevity be called non-Explanation sales, remains unimpaired. It is not necessary for the purpose of this case to express an opinion, whether the theory of territorial nexus of the taxing State, with one or more elements which go to make a completed sale authorises since the promulgation of the Constitution the exercise of legislative power under Entry 54, List II the Seventh Schedule to tax sales, where property in goods has not passed within the taxingcan be no doubt that if the goods were delivered pursuant to the contracts of sale outside the State of Andhra for the purpose of consumption in the State into which the goods were delivered, the State of Andhra could have no right to tax those sales by virtue of the restriction imposed by Art. 286(1) (a) read with the Explanation.8. The facts found by the taxing authorities clearly establish that property in the goods despatched by the appellant passed to the A. C. C. within the State of Andhra when the railway receipts were handed over to the agent of the A. C. C. against payment of price. The question still remains: were the transactions non-Explanation sales i. e. falling outside the Explanation to Art. 286(1) ? To attract the Explanation, the goods had to be actually delivered as a direct result of the sale, for the purpose of consumption in the State in which they were delivered. It is not disputed that the goods were supplied for the purpose of consumption outside the State of Andhra, and in the States in which they were supplied. It is submitted that the goods were actually delivered within the State, when the railway receipts were handed over to the agent of the buyer. But the expression "actually delivered" in the context in which it occurs, can only mean physical delivery of the goods, or such action as puts the goods in the possession of the purchaser: it does not contemplate mere symbolical or national delivery e. g., by entrusting the goods to a common carrier, or even delivery of documents of title like railwaythat provision will not make mere delivery of the railway receipts representing title to the goods actual delivery of goods for the purpose of Art. 286. The rule contained in S. 39(1) of the Indian Sale of Goods Act raises a prima facie inference that the goods have been delivered if the conditions prescribed thereby are satisfied: it has no application in dealing with a constitutional provision which while imposing a restriction upon the legislative power of the States entrusts exclusive power to levy sales tax to the State in which the goods have been actually delivered for the purpose of consumption.10. The High Court was therefore in error in inferring from the fact that the property had passed within the State of Andhra against delivery of the railway receipts that the goods were actually delivered within the State. If the inference raised by the High Court that the goods were actually delivered within the State of Andhra cannot be accepted, on the facts found there is no escape from the conclusion that the State of Andhra had no authority to levy tax in respect of those sale transactions in which the goods were sent under railway receipts to places outside the State of Andhra and actually delivered for the purpose of consumption in those States. | 1 | 2,736 | 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:
such delivery took place and being outside all other States exempt from sales-tax by those other States: Tobacco Manufacturers (India) Ltd. v. Commissioner of Sales-tax, Bihar, Patna, 1961-2 SCR 106 : (AIR 1961 SC 402 ): Indian Copper Corporation Ltd. v. State of Bihar, 1961-2 SCR 276 : (AIR 1961 SC 347 ): and State of Kerala v. Cochin Coal Co. Ltd., 1961-2 SCR 219 : (AIR 1961 SC 408 ). But the Explanation is not exhaustive of what may be called "inside sales". Clause (1) (a) excludes from the reach of the power of the States sales outside the State but it does not follow from the Explanation that it localises the situs of all sales. The power of the State under Entry 54 List II of the Seventh Schedule to tax sales (not falling within cls. (1) (b), (2) and (3)) which are outside the Explanation, and which may for the sake of brevity be called non-Explanation sales, remains unimpaired. It is not necessary for the purpose of this case to express an opinion, whether the theory of territorial nexus of the taxing State, with one or more elements which go to make a completed sale authorises since the promulgation of the Constitution the exercise of legislative power under Entry 54, List II the Seventh Schedule to tax sales, where property in goods has not passed within the taxing State.7. The question which then falls to be determined is whether the sales to the A. C. C. by the appellant may be regarded as "non-Explanation sales". There can be no doubt that if the goods were delivered pursuant to the contracts of sale outside the State of Andhra for the purpose of consumption in the State into which the goods were delivered, the State of Andhra could have no right to tax those sales by virtue of the restriction imposed by Art. 286(1) (a) read with the Explanation.8. The facts found by the taxing authorities clearly establish that property in the goods despatched by the appellant passed to the A. C. C. within the State of Andhra when the railway receipts were handed over to the agent of the A. C. C. against payment of price. The question still remains: were the transactions non-Explanation sales i. e. falling outside the Explanation to Art. 286(1) ? To attract the Explanation, the goods had to be actually delivered as a direct result of the sale, for the purpose of consumption in the State in which they were delivered. It is not disputed that the goods were supplied for the purpose of consumption outside the State of Andhra, and in the States in which they were supplied. It is submitted that the goods were actually delivered within the State, when the railway receipts were handed over to the agent of the buyer. But the expression "actually delivered" in the context in which it occurs, can only mean physical delivery of the goods, or such action as puts the goods in the possession of the purchaser: it does not contemplate mere symbolical or national delivery e. g., by entrusting the goods to a common carrier, or even delivery of documents of title like railway receipts. In C. Govindarajulu Naidu and Co. v. State of Madras, AIR 1953 Mad 116 , Venkatarama Ayyar, J., dealing with the concept of actual delivery of goods, so as to attract the application of the Explanation to Art. 286(1) (a) rightly observed:"In the context it can mean only physical delivery and not constructive delivery such as by transfer of documents of title to the goods. The whole object of the Explanation is to give a power of taxation in respect of the goods actually entering the State for the purpose of use therein and it will defeat such a purpose if notional delivery of the goods as by transfer of documents of title to the goods within the State is held to give the State a power to tax, when the goods are actually delivered in another State." A similar view has been expressed in two other cases: Capoo Ltd. v. Sales Tax Officer, AIR 1960 All 62 , and Khaitan Minerals v. Sales Tax Appellate Tribunal for Mysore, AIR 1963 Mys. 141.9. Counsel for the respondent-State relied upon S. 39 of the Indian Sale of Goods Act, 1930, which provides in so far as it is material, by the first sub-section that where, in pursuance of a contract of sale, the seller is authorised to send the goods to the buyer, delivery of the goods to a carrier for the purpose of transmission to the buyer, is prima facie deemed to be delivery of the goods to the buyer. But that provision will not make mere delivery of the railway receipts representing title to the goods actual delivery of goods for the purpose of Art. 286. The rule contained in S. 39(1) of the Indian Sale of Goods Act raises a prima facie inference that the goods have been delivered if the conditions prescribed thereby are satisfied: it has no application in dealing with a constitutional provision which while imposing a restriction upon the legislative power of the States entrusts exclusive power to levy sales tax to the State in which the goods have been actually delivered for the purpose of consumption.10. The High Court was therefore in error in inferring from the fact that the property had passed within the State of Andhra against delivery of the railway receipts that the goods were actually delivered within the State. If the inference raised by the High Court that the goods were actually delivered within the State of Andhra cannot be accepted, on the facts found there is no escape from the conclusion that the State of Andhra had no authority to levy tax in respect of those sale transactions in which the goods were sent under railway receipts to places outside the State of Andhra and actually delivered for the purpose of consumption in those States.
### Response:
1
### Explanation:
It is now well-settled that by Art. 286(1) (as it stood before it was amended by the Constitution Sixth Amendment Act, 1956) sales as a direct result of which goods were delivered in a State for consumption in such State i. e., the sales falling within the Explanation to Art. 286(1) were fictionally to be regarded as inside that State for the purpose of (1) (a) and so within the taxing power of the State in which such delivery took place and being outside all other States exempt from sales-tax by those other States: Tobacco Manufacturers (India) Ltd. v. Commissioner of Sales-tax, Bihar, Patna, 1961-2 SCR 106 : (AIR 1961 SC 402 ): Indian Copper Corporation Ltd. v. State of Bihar, 1961-2 SCR 276 : (AIR 1961 SC 347 ): and State of Kerala v. Cochin Coal Co. Ltd., 1961-2 SCR 219 : (AIR 1961 SC 408 ). But the Explanation is not exhaustive of what may be called "inside sales". Clause (1) (a) excludes from the reach of the power of the States sales outside the State but it does not follow from the Explanation that it localises the situs of all sales. The power of the State under Entry 54 List II of the Seventh Schedule to tax sales (not falling within cls. (1) (b), (2) and (3)) which are outside the Explanation, and which may for the sake of brevity be called non-Explanation sales, remains unimpaired. It is not necessary for the purpose of this case to express an opinion, whether the theory of territorial nexus of the taxing State, with one or more elements which go to make a completed sale authorises since the promulgation of the Constitution the exercise of legislative power under Entry 54, List II the Seventh Schedule to tax sales, where property in goods has not passed within the taxingcan be no doubt that if the goods were delivered pursuant to the contracts of sale outside the State of Andhra for the purpose of consumption in the State into which the goods were delivered, the State of Andhra could have no right to tax those sales by virtue of the restriction imposed by Art. 286(1) (a) read with the Explanation.8. The facts found by the taxing authorities clearly establish that property in the goods despatched by the appellant passed to the A. C. C. within the State of Andhra when the railway receipts were handed over to the agent of the A. C. C. against payment of price. The question still remains: were the transactions non-Explanation sales i. e. falling outside the Explanation to Art. 286(1) ? To attract the Explanation, the goods had to be actually delivered as a direct result of the sale, for the purpose of consumption in the State in which they were delivered. It is not disputed that the goods were supplied for the purpose of consumption outside the State of Andhra, and in the States in which they were supplied. It is submitted that the goods were actually delivered within the State, when the railway receipts were handed over to the agent of the buyer. But the expression "actually delivered" in the context in which it occurs, can only mean physical delivery of the goods, or such action as puts the goods in the possession of the purchaser: it does not contemplate mere symbolical or national delivery e. g., by entrusting the goods to a common carrier, or even delivery of documents of title like railwaythat provision will not make mere delivery of the railway receipts representing title to the goods actual delivery of goods for the purpose of Art. 286. The rule contained in S. 39(1) of the Indian Sale of Goods Act raises a prima facie inference that the goods have been delivered if the conditions prescribed thereby are satisfied: it has no application in dealing with a constitutional provision which while imposing a restriction upon the legislative power of the States entrusts exclusive power to levy sales tax to the State in which the goods have been actually delivered for the purpose of consumption.10. The High Court was therefore in error in inferring from the fact that the property had passed within the State of Andhra against delivery of the railway receipts that the goods were actually delivered within the State. If the inference raised by the High Court that the goods were actually delivered within the State of Andhra cannot be accepted, on the facts found there is no escape from the conclusion that the State of Andhra had no authority to levy tax in respect of those sale transactions in which the goods were sent under railway receipts to places outside the State of Andhra and actually delivered for the purpose of consumption in those States.
|
ORIENTAL INSURANCE CO.LTD Vs. M/S TEJPARAS ASSOCIATES | and the delay should be condoned unless the opposite party is able to show malafide in not approaching the Court within time. It is further contended that it is held therein that the rules of limitation are not meant to destroy or foreclose the right of parties. The learned counsel for the respondent on the other hand would contend that the said decision rendered is in the context of consideration of sufficient cause as contemplated under Section 5 of the Limitation Act which would not be applicable to proceedings under Section 34 of the Act, 1996. In that regard, the learned counsel for the respondent has relied on the decision in the case of Union of India vs. Popular Construction Company, (2001) 8 SCC 470 wherein it is held that Section 5 of the Limitation Act is not applicable to the proceedings under Section 34 of the Act, 1996 for setting aside the arbitral award. Further the decision in the case of Simplex Infrastructure Ltd. vs. Union of India, (2019) 2 SCC 455 is also relied upon to contend that Section 5 of the Limitation Act has no application to a petition challenging the arbitral award under Section 34 of the Act, 1996. The said decision would however indicate that Section 14 of the Limitation Act is applicable to an application submitted under Section 34 of the Act, 1996 seeking for exclusion of certain period if the application under Section 34 of the Act, 1996 is at the first instance filed within the limitation period provided under Section 34(3) of the Act, 1996. The position of law that Section 5 of the Limitation Act is not applicable to condone the statutory period under Section 34(3) of Act, 1996 is well established and needs no reiteration. 11. Having noticed the said decisions, in the instant case as already indicated above the condonation of delay sought is not for filing the petition under Section 34 of the Act, 1996 for the first time. The petition filed under Section 34 of the Act, 1996 at Jaipur was within the period of limitation and the delay regarding which explanation is put forth is for the period of 8 days in re-presenting the petition beyond the date fixed after it was returned under Order 7 Rule 10 of the Civil Procedure Code. Therefore, in that circumstance even if the term sufficient cause as contained under Section 5 of the Limitation Act is taken note, in the present facts the same is not with reference to petition under Section 34 of Act, 1996 for condonation of delay beyond the period prescribed under Section 34(3) of the Act, 1996. Though that be the position what is necessary to be taken note herein is that the application filed for excluding the time is under Section 14 of the Limitation Act. In addition to the very decisions cited above indicating that Section 14 of the Limitation Act would be applicable to the proceedings under Section 34 of the Act, 1996 subject to the petition under Section 34 being filed within time, the learned counsel for the appellant has also relied upon the decision in the case of M/s Consolidated Engineering Enterprises vs. The Principal Secretary, Irrigation Department & Ors. (2008) 7 SCC 169 wherein the same position is reiterated. 12. The learned counsel for the respondent would however, refer to the very same decision and contend that even if Section 14 of the Limitation Act is applicable, the exclusion of time can only be of the proceedings which is bonafide initiated in a Court without jurisdiction. It is contended that in the instant case the entire cause of action had occurred at Jodhpur and despite the same the appellant had deliberately initiated the proceedings at Jaipur which cannot be considered as a bonafide mistake. Though such contention is put forth, what cannot be lost sight in the instant facts is that the learned Judge of the Additional District Court, Jaipur while considering the maintainability of the proceedings before that Court, through the order dated 12.03.2008 has taken note of the very rival contentions with regard to the cause of action as contended and also the Court before which the proceedings was required to be initiated. Though at this point of time the position of law has been enunciated through several decisions, and there is clarity, at that juncture the consideration with regard to the definition of Court as contained in the Act was required to be interpreted and on taking note of various decision of the Supreme Court had arrived at the conclusion that keeping in view the fact situation the petition is to be returned for presentation in the appropriate Court. The very nature of consideration made by the Court at Jaipur would indicate that the matter required a detail consideration before exercising the power under Order 7 Rule 10 and 10A of the Civil Procedure Code and the Court during the said proceedings has not arrived at a conclusion that the proceedings had been initiated malafide before that Court. However, keeping in view the overall facts and circumstance of the present case the Court had ordered return of the petition for appropriate presentation and the date had been fixed. The correctness of the said order had not been assailed by the respondent herein seeking absolute rejection of the petition by raising grounds on the nature of findings rendered therein since that Court had not held the petition to be malafide. 13. In such circumstance, in the fact situation wherein the issue of delay had arisen only in the context of the delay of 8 days in re-presentation as permitted by the Court at Jaipur, re-examination of the matter to consider the entire period spent before the Court at Jaipur as malafide so as to nonsuit the appellant and deny consideration of proceedings under Section 34 of Act, 1996 which was initiated within the period of limitation at the first instance, on its merits will not be justified. | 1[ds]9. In the instant case though the appellant herein had not filed the application indicating the Court to which the petition would be re-presented and did not seek for fixing the date of hearing, the Court at Jaipur while ordering return of the petition after consideration of the application of the respondent under Order 7 Rule 11 CPC had indicated the Court to which it was to be presented and the date for appearance on 02.04.2008 for that purpose. Hence, it is not as if the proceeding came to an abrupt end when the petition was returned so as to consider the next filing as a fresh petition. In that circumstance when the time had been granted and date was fixed by the learned District Judge at Jaipur and if for any reason the re-presentation was not possible on that date, the course open to the appellant was to file an application under Section 148 of CPC before the Court at Jaipur which ordered for return and fixed the time for presentation in the Court at Jodhpur, seeking extension of time granted earlier. However, since the same was not resorted to by the appellant and the petition was re¬ presented before the District Court at Jodhpur with a delay of about 8 days from the date fixed for presentation and as no extension was also sought as indicated above, condonation of such delay ought to have been sought. Since the petition was filed with delay and no other application had accompanied the petition, the respondent filed the application under Section 3 of Limitation Act which prompted a knee jerk reaction by the appellant in filing the application under Section 14 of the Limitation Act. Though the said application has invoked Section 14 of Limitation Act and thereafter supported by an additional affidavit, the averments in the application is in the nature of an application seeking condonation of delay in re¬presentation of the petition as against the date fixed by the Court for presentation in JodhpurFurther the decision in the case of Simplex Infrastructure Ltd. vs. Union of India, (2019) 2 SCC 455 is also relied upon to contend that Section 5 of the Limitation Act has no application to a petition challenging the arbitral award under Section 34 of the Act, 1996. The said decision would however indicate that Section 14 of the Limitation Act is applicable to an application submitted under Section 34 of the Act, 1996 seeking for exclusion of certain period if the application under Section 34 of the Act, 1996 is at the first instance filed within the limitation period provided under Section 34(3) of the Act, 1996. The position of law that Section 5 of the Limitation Act is not applicable to condone the statutory period under Section 34(3) of Act, 1996 is well established and needs no reiteration11. Having noticed the said decisions, in the instant case as already indicated above the condonation of delay sought is not for filing the petition under Section 34 of the Act, 1996 for the first time. The petition filed under Section 34 of the Act, 1996 at Jaipur was within the period of limitation and the delay regarding which explanation is put forth is for the period of 8 days in re-presenting the petition beyond the date fixed after it was returned under Order 7 Rule 10 of the Civil Procedure Code. Therefore, in that circumstance even if the term sufficient cause as contained under Section 5 of the Limitation Act is taken note, in the present facts the same is not with reference to petition under Section 34 of Act, 1996 for condonation of delay beyond the period prescribed under Section 34(3) of the Act, 1996. Though that be the position what is necessary to be taken note herein is that the application filed for excluding the time is under Section 14 of the Limitation Act. In addition to the very decisions cited above indicating that Section 14 of the Limitation Act would be applicable to the proceedings under Section 34 of the Act, 1996 subject to the petition under Section 34 being filed within time, the learned counsel for the appellant has also relied upon the decision in the case of M/s Consolidated Engineering Enterprises vs. The Principal Secretary, Irrigation Department & Ors. (2008) 7 SCC 169 wherein the same position is reiteratedIt is contended that in the instant case the entire cause of action had occurred at Jodhpur and despite the same the appellant had deliberately initiated the proceedings at Jaipur which cannot be considered as a bonafide mistake. Though such contention is put forth, what cannot be lost sight in the instant facts is that the learned Judge of the Additional District Court, Jaipur while considering the maintainability of the proceedings before that Court, through the order dated 12.03.2008 has taken note of the very rival contentions with regard to the cause of action as contended and also the Court before which the proceedings was required to be initiated. Though at this point of time the position of law has been enunciated through several decisions, and there is clarity, at that juncture the consideration with regard to the definition of Court as contained in the Act was required to be interpreted and on taking note of various decision of the Supreme Court had arrived at the conclusion that keeping in view the fact situation the petition is to be returned for presentation in the appropriate Court. The very nature of consideration made by the Court at Jaipur would indicate that the matter required a detail consideration before exercising the power under Order 7 Rule 10 and 10A of the Civil Procedure Code and the Court during the said proceedings has not arrived at a conclusion that the proceedings had been initiated malafide before that Court. However, keeping in view the overall facts and circumstance of the present case the Court had ordered return of the petition for appropriate presentation and the date had been fixed. The correctness of the said order had not been assailed by the respondent herein seeking absolute rejection of the petition by raising grounds on the nature of findings rendered therein since that Court had not held the petition to be malafide13. In such circumstance, in the fact situation wherein the issue of delay had arisen only in the context of the delay of 8 days in re-presentation as permitted by the Court at Jaipur, re-examination of the matter to consider the entire period spent before the Court at Jaipur as malafide so as to nonsuit the appellant and deny consideration of proceedings under Section 34 of Act, 1996 which was initiated within the period of limitation at the first instance, on its merits will not be justified. | 1 | 3,649 | 1,204 | ### 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:
and the delay should be condoned unless the opposite party is able to show malafide in not approaching the Court within time. It is further contended that it is held therein that the rules of limitation are not meant to destroy or foreclose the right of parties. The learned counsel for the respondent on the other hand would contend that the said decision rendered is in the context of consideration of sufficient cause as contemplated under Section 5 of the Limitation Act which would not be applicable to proceedings under Section 34 of the Act, 1996. In that regard, the learned counsel for the respondent has relied on the decision in the case of Union of India vs. Popular Construction Company, (2001) 8 SCC 470 wherein it is held that Section 5 of the Limitation Act is not applicable to the proceedings under Section 34 of the Act, 1996 for setting aside the arbitral award. Further the decision in the case of Simplex Infrastructure Ltd. vs. Union of India, (2019) 2 SCC 455 is also relied upon to contend that Section 5 of the Limitation Act has no application to a petition challenging the arbitral award under Section 34 of the Act, 1996. The said decision would however indicate that Section 14 of the Limitation Act is applicable to an application submitted under Section 34 of the Act, 1996 seeking for exclusion of certain period if the application under Section 34 of the Act, 1996 is at the first instance filed within the limitation period provided under Section 34(3) of the Act, 1996. The position of law that Section 5 of the Limitation Act is not applicable to condone the statutory period under Section 34(3) of Act, 1996 is well established and needs no reiteration. 11. Having noticed the said decisions, in the instant case as already indicated above the condonation of delay sought is not for filing the petition under Section 34 of the Act, 1996 for the first time. The petition filed under Section 34 of the Act, 1996 at Jaipur was within the period of limitation and the delay regarding which explanation is put forth is for the period of 8 days in re-presenting the petition beyond the date fixed after it was returned under Order 7 Rule 10 of the Civil Procedure Code. Therefore, in that circumstance even if the term sufficient cause as contained under Section 5 of the Limitation Act is taken note, in the present facts the same is not with reference to petition under Section 34 of Act, 1996 for condonation of delay beyond the period prescribed under Section 34(3) of the Act, 1996. Though that be the position what is necessary to be taken note herein is that the application filed for excluding the time is under Section 14 of the Limitation Act. In addition to the very decisions cited above indicating that Section 14 of the Limitation Act would be applicable to the proceedings under Section 34 of the Act, 1996 subject to the petition under Section 34 being filed within time, the learned counsel for the appellant has also relied upon the decision in the case of M/s Consolidated Engineering Enterprises vs. The Principal Secretary, Irrigation Department & Ors. (2008) 7 SCC 169 wherein the same position is reiterated. 12. The learned counsel for the respondent would however, refer to the very same decision and contend that even if Section 14 of the Limitation Act is applicable, the exclusion of time can only be of the proceedings which is bonafide initiated in a Court without jurisdiction. It is contended that in the instant case the entire cause of action had occurred at Jodhpur and despite the same the appellant had deliberately initiated the proceedings at Jaipur which cannot be considered as a bonafide mistake. Though such contention is put forth, what cannot be lost sight in the instant facts is that the learned Judge of the Additional District Court, Jaipur while considering the maintainability of the proceedings before that Court, through the order dated 12.03.2008 has taken note of the very rival contentions with regard to the cause of action as contended and also the Court before which the proceedings was required to be initiated. Though at this point of time the position of law has been enunciated through several decisions, and there is clarity, at that juncture the consideration with regard to the definition of Court as contained in the Act was required to be interpreted and on taking note of various decision of the Supreme Court had arrived at the conclusion that keeping in view the fact situation the petition is to be returned for presentation in the appropriate Court. The very nature of consideration made by the Court at Jaipur would indicate that the matter required a detail consideration before exercising the power under Order 7 Rule 10 and 10A of the Civil Procedure Code and the Court during the said proceedings has not arrived at a conclusion that the proceedings had been initiated malafide before that Court. However, keeping in view the overall facts and circumstance of the present case the Court had ordered return of the petition for appropriate presentation and the date had been fixed. The correctness of the said order had not been assailed by the respondent herein seeking absolute rejection of the petition by raising grounds on the nature of findings rendered therein since that Court had not held the petition to be malafide. 13. In such circumstance, in the fact situation wherein the issue of delay had arisen only in the context of the delay of 8 days in re-presentation as permitted by the Court at Jaipur, re-examination of the matter to consider the entire period spent before the Court at Jaipur as malafide so as to nonsuit the appellant and deny consideration of proceedings under Section 34 of Act, 1996 which was initiated within the period of limitation at the first instance, on its merits will not be justified.
### Response:
1
### Explanation:
the re-presentation was not possible on that date, the course open to the appellant was to file an application under Section 148 of CPC before the Court at Jaipur which ordered for return and fixed the time for presentation in the Court at Jodhpur, seeking extension of time granted earlier. However, since the same was not resorted to by the appellant and the petition was re¬ presented before the District Court at Jodhpur with a delay of about 8 days from the date fixed for presentation and as no extension was also sought as indicated above, condonation of such delay ought to have been sought. Since the petition was filed with delay and no other application had accompanied the petition, the respondent filed the application under Section 3 of Limitation Act which prompted a knee jerk reaction by the appellant in filing the application under Section 14 of the Limitation Act. Though the said application has invoked Section 14 of Limitation Act and thereafter supported by an additional affidavit, the averments in the application is in the nature of an application seeking condonation of delay in re¬presentation of the petition as against the date fixed by the Court for presentation in JodhpurFurther the decision in the case of Simplex Infrastructure Ltd. vs. Union of India, (2019) 2 SCC 455 is also relied upon to contend that Section 5 of the Limitation Act has no application to a petition challenging the arbitral award under Section 34 of the Act, 1996. The said decision would however indicate that Section 14 of the Limitation Act is applicable to an application submitted under Section 34 of the Act, 1996 seeking for exclusion of certain period if the application under Section 34 of the Act, 1996 is at the first instance filed within the limitation period provided under Section 34(3) of the Act, 1996. The position of law that Section 5 of the Limitation Act is not applicable to condone the statutory period under Section 34(3) of Act, 1996 is well established and needs no reiteration11. Having noticed the said decisions, in the instant case as already indicated above the condonation of delay sought is not for filing the petition under Section 34 of the Act, 1996 for the first time. The petition filed under Section 34 of the Act, 1996 at Jaipur was within the period of limitation and the delay regarding which explanation is put forth is for the period of 8 days in re-presenting the petition beyond the date fixed after it was returned under Order 7 Rule 10 of the Civil Procedure Code. Therefore, in that circumstance even if the term sufficient cause as contained under Section 5 of the Limitation Act is taken note, in the present facts the same is not with reference to petition under Section 34 of Act, 1996 for condonation of delay beyond the period prescribed under Section 34(3) of the Act, 1996. Though that be the position what is necessary to be taken note herein is that the application filed for excluding the time is under Section 14 of the Limitation Act. In addition to the very decisions cited above indicating that Section 14 of the Limitation Act would be applicable to the proceedings under Section 34 of the Act, 1996 subject to the petition under Section 34 being filed within time, the learned counsel for the appellant has also relied upon the decision in the case of M/s Consolidated Engineering Enterprises vs. The Principal Secretary, Irrigation Department & Ors. (2008) 7 SCC 169 wherein the same position is reiteratedIt is contended that in the instant case the entire cause of action had occurred at Jodhpur and despite the same the appellant had deliberately initiated the proceedings at Jaipur which cannot be considered as a bonafide mistake. Though such contention is put forth, what cannot be lost sight in the instant facts is that the learned Judge of the Additional District Court, Jaipur while considering the maintainability of the proceedings before that Court, through the order dated 12.03.2008 has taken note of the very rival contentions with regard to the cause of action as contended and also the Court before which the proceedings was required to be initiated. Though at this point of time the position of law has been enunciated through several decisions, and there is clarity, at that juncture the consideration with regard to the definition of Court as contained in the Act was required to be interpreted and on taking note of various decision of the Supreme Court had arrived at the conclusion that keeping in view the fact situation the petition is to be returned for presentation in the appropriate Court. The very nature of consideration made by the Court at Jaipur would indicate that the matter required a detail consideration before exercising the power under Order 7 Rule 10 and 10A of the Civil Procedure Code and the Court during the said proceedings has not arrived at a conclusion that the proceedings had been initiated malafide before that Court. However, keeping in view the overall facts and circumstance of the present case the Court had ordered return of the petition for appropriate presentation and the date had been fixed. The correctness of the said order had not been assailed by the respondent herein seeking absolute rejection of the petition by raising grounds on the nature of findings rendered therein since that Court had not held the petition to be malafide13. In such circumstance, in the fact situation wherein the issue of delay had arisen only in the context of the delay of 8 days in re-presentation as permitted by the Court at Jaipur, re-examination of the matter to consider the entire period spent before the Court at Jaipur as malafide so as to nonsuit the appellant and deny consideration of proceedings under Section 34 of Act, 1996 which was initiated within the period of limitation at the first instance, on its merits will not be justified.
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K.S. Varghese & Others Vs. St. Peter's & Paul's Syrian Orth. & Others | faith and the Court should not examine this aspect even though there is a strong protest which has led to repeated round of litigations before the courts up to the Honble Apex Court. The underlying object or the purpose even if it assumed that it is only for better administration, still it cannot have any predominance or the constitutional provision or the law of land."30.After analysing the facts and the law in the matter, we have noticed that it is the duty of the society to take steps in accordance with Section 13 of the SR Act for its dissolution. We have further noted that unless the properties vested in the Trust are divested in accordance with the provisions of the SR Act and in accordance with the BPTA, merely by filing the change report(s), CNI cannot claim a merger of churches and thereby claim that the properties vested in the Trust would vest in them. In our opinion, it would only be evident from the steps taken that the passing of resolutions is nothing but an indication to show the intention to merge and nothing else. In fact, the City Civil Court has correctly held, in our opinion, which has been affirmed by the High Court, that there was no dissolution of the society and further merger was not carried out in accordance with the provisions of law. In these circumstances, we hold that the society and the Trust being creatures of statute, have to resort to the modes provided by the statute for its amalgamation and the so-called merger cannot be treated or can give effect to the dissolution of the Trust. In the matrix of the facts, we hold that without taking any steps in accordance with the provisions of law, the effect of the resolutions or deliberations is not acceptable in the domain of law. The question of estoppel also cannot stand in the way as the High Court has correctly pointed out that the freedom guaranteed under the Constitution with regard to the faith and religion, cannot take away the right in changing the faith and religion after giving a fresh look and thinking at any time and thereby cannot be bound by any rules of estoppel. Therefore, the resolution only resolved to accept the recommendation of joint unification but does not refer to dissolution."The decision is wholly inapplicable and does not espouse the cause of the appellants.MAINTAINABILITY OF MANNATHUR CHURCH SUIT :180. It was also submitted by Shri Mohan Parasaran, learned senior counsel that the Mannathur Church matter suit was not maintainable. It was not of a representative character and in view of Order 1 Rule 8 CPC, fresh leave was not sought when the reliefs were amended and enlarged. We are not satisfied with the submissions raised. The suit was clearly representative in character and has been contested in that manner. It was not necessary to adopt the procedure as suggested after amendment as the amended relief was traceable from the main relief. It was not at all necessary to obtain fresh leave.H. FRAMING OF SCHEME UNDER SECTION 92 OF THE CIVIL PROCEDURE CODE181. We are also not impressed by the submission that the court should direct framing of a scheme under section 92 CPC in view of the decision of the Privy Council in Mohd. Ismile Ariff v. Ahmed Moolla Dowood 43 IA 127 (PC) in which it has been held that the court has the power to give direction and lay down rules that may facilitate the work of management and the appointment of trustees in the future. The primary duty of the Court is to consider the interest of the general body of the public for whose benefit the trust is created. Reliance has been placed by Shri S. Divan, learned senior counsel on Acharya Shri Shreepati Prasadji Barot Laxmidas 33 CWN 352 (PC) that the institutional trust must be respected by the sect and the body of worshippers for whose benefit it was set up to have the protection of the court against their property being subject to abuse, speculation and waste. Reliance was also placed on Ram Dularey v. Ram Lal AIR 1946 PC 34 in which it has been laid down thus:"Even if there were an inconsistency in that judgment, their Lordships would be very slow to disturb the safeguards which are provided in that scheme, if their Lordships found it necessary to reconsider the scheme; but in their view the scheme has been definitely approved by the Chief Court and they see no reason for interfering with the judgment. It has to be remembered that in these cases the Court has a duty, once it finds that it is a trust for public purposes to consider what is best in the interests of the public. That is made abundantly clear by the judge met of this Board, delivered by Mr. Ameer Ali, in Mahomed Ismail Ariff and others v. Ahmed MoollaDawood and another [43 IA 127: 43 Cal. 1085: 4 LW 269 (P.C.).]"(Emphasis supplied)182. In our opinion there is no necessity of framing any scheme under section 92. There are adequate provisions and safeguards provided in section 92 for managing the Malankara Church and its properties. There is no dispute with the proposition laid down in the aforesaid decisions but we find no such necessity for framing such scheme under section 92 CPC in view of detailed wholesome provisions of 1934 Constitution.I. WHETHER IN THE FACTS, INTERIM ARRANGEMENT TO CONTINUE :183. Lastly, it was submitted by Shri K. Parasaran, learned senior counsel, that as reconciliation does not appear to be possible between both factions, as such the religious services in the St. Marys Orthodox Church, Varikoli may be permitted to be conducted by two Vicars of each faith, Patriarch and Catholicos, in accordance with the faith of each denomination. The submission cannot be accepted as it would tantamount to patronizing parallel system of administration and would not be a legally permissible mode hence prayer is rejected. | 1[ds]In our opinion, the submission is wholly untenable. The representative suit was decided in 1995 and the judgment is binding even on those who were not parties to the case. All the Parishioners are bound by the judgment to the extent it has decided the matter. There is no conflict in the decree as well as the aforesaid observations that have been made by this Court. The majority opinion has left open the question that the property whether it is held by the Parish Churches or vested in the Catholicos and Para 155(8) deals with other rights and nature of the Church to be episcopal and with respect to the applicability of the 1934 Constitution the judgment is final, conclusive and binding in these cases.Though on the basis of Bhikhi Lal v. Tribeni AIR 1965 SC 1935 it was submitted that the decree has to be in accordance with the judgment, we find that the decree is wholly in tune with the judgment and the issues which were effectively decided by this Court and what was left open is absolutely in no conflict with the findings recorded in the judgment and in the decree. The decree is in accordance with the aforesaid dictum of thissubmission that declaration under section 35 of the Specific Relief Act since in personam and the 1995 judgment has to be considered in that spirit, cannot be accepted in view of the aforesaidour opinion, the Parishioners were parties in the previous suit decided in 1958 and 1995 earlier thereto. The question cannot be reopened again and again by them on the ground that they were not parties individually, otherwise the representative suit and issues as well as the right of suing in representative capacity, would lose entire significance. No doubt it is true as held in Deoki Nandan v. Muralidhar 1956 SCR 756 that the true beneficiaries of religious endowments are not the idols but the worshippers. This principle has also been reiterated in Veruareddi Ramaraghava Reddy v. Konduru Seshu Reddy 1966 Supp SCR 270 and Bishwanath v. Shri Thakur Radhaballabhji (1967) 2 SCR 618. There is no dispute with the proposition that the persons who go in only for the purpose of devotion have a greater and deeper interest in temples than mere servants who serve there for some pecuniary advantage. The decisions are based on Hindu religion. However, the principle is one of law applicable to all religious institutions including the churches having a public character.The submission cannot be made successfully as it ignores and overlooks the mandate of Explanation 6 to section 11 and provision of Order 1 Rule 8(6) CPC. The previous suit was a representative suit and the present appellants/churches are deemed to be parties in the representative suit as they could have applied for defending their rights or to sue as the case may be in the previous suits which had been decided by this Court. Thus there is no question of violation of the principle of natural justice in the case infind that the aforesaid submission is of no use to the present appellants. On one hand, they have submitted that the previous 1995 judgment has left certain issues open as to properties of Parish Church, and on the other hand, they are raising the aforesaid submission. However, the aforesaid submission does not affect the declaration so granted in the instantare unable to accept the submission. The finding of this Court which operates as res judicata is about the binding nature of the 1934 Constitution on the Parishioners and Parish Churches. This Court has made an exception under the aforesaid judgment with respect to Knanaya Church. It is not open to the Parishioners to contend that they can have their independent Constitution and not bound by the 1934 Constitution. The 1995 judgment cannot be misconstrued so as to confer the aforesaid right upon the Parishioners. The judgment is clear, unequivocal and unambiguous with respect to binding nature of the 1934submission is attractive but is not acceptable as what is the meaning of spiritual supremacy, what is, inter alia, the effect of establishment of Catholicos and what is the delegation of power as per Kalpana made by the Patriarch, what he has accepted subsequently in 1958 andhe respective rights of management of Parish Church would have to be decided. In our opinion, it would not be open to any faction or group to adopt any particular system of management of Churches and to have a parallel system of managing authorities under the guise of spiritual supremacy. The mismanagement of Church and chaos cannot be permitted to be created for temporal gains or otherwise. There is a system of management, and the spiritual aspect which has been claimed under the guise of spiritual supremacy in the instant case, is an effort to illegally take over the management of the Churches by rival factions in derogation of delegation of powers, as would be apparent from the discussion to be made hereinafter with reference to the provisions of the Constitution and Kalpanas. The power with respect to Orthodox Syrian Church of the East is the Primate i.e. Catholicos. Though the Primate of the Orthodox Syrian Church is the Patriarch of Antioch. Certain spiritual powers have also been vested in Malankara Metropolitan, as per section 94 of the 1934 Constitution. The prime jurisdiction regarding the temporal, ecclesiastical and spiritual administration of the Malankara Church is vested with the Malankara Metropolitan subject to provisions of the Constitution and under the guise of spiritual supremacy an effort is being made to obtain the appointments of Vicars and Priests as parallel authorities so as to manage the churches and to render religious services under the guise of Patriarch. On the other hand, there are already Vicars and other authorities appointed as per the 1934 Constitution. Thus under the garb of spiritual supremacy which had reached a vanishing point due to the establishment of Catholicos and Kalpana, and the 1934 Constitution which has been accepted and is binding, a parallel system of governance of churches would not be in the interest of the church and would destroy it. It is not the fight for spiritual gains but for other purposes as is apparent from the discussion made hereinafter.77. Shri K. Parasaran, learned senior counsel is right in his submission that the declaration sought in the form that the Church is governed by the 1934 Constitution as upheld by the Supreme Court, should not have been prayed in the form as if this Court had declared it as it could be a ground and a legal aspect. The declaration ought to have been sought that the Church is governed by the 1934 Constitution only and not adding prayer as upheld by this Court. He is right that the declaration in such form ought not to have been sought but in our opinion further submission is not correct that the declaration so sought, has adversely affected the decision of the trial court as well as the High Court. We have gone through the decision and have found that we have not been influenced by the declaration caused in the aforesaid form and no prejudice has been caused to the appellants.IN RE: ABANDONMENT OF PLEAS/OBJECTIONS TO THE REVIVAL OF THE CATHOLICATE, THE VALIDITY OF THE 1934we are unable to accept the aforesaid submission. When the Church is a Parish Church and since time immemorial it is a Parish Church and is a part of Malankara Church, it has to perpetually remain as such. Under the garb of pursuing their faith of the Patriarch being superior, they cannot create a parallel system of appointing a Vicar for performing spiritual/religious ceremonies conforming to that faith, as an appointment of Vicar is not a spiritual matter. It is a secular matter. Thus the submission so as to dilute the finding at para155(6) and (7) of the 1995 judgment cannot befind no merit in the aforesaid submission as the decision in Sha Mulchand & Co. (supra), is that the question of waiver, acquiescence or laches may sometime not amount to an abandonment of the right or create an estoppel in certain circumstances. A man who has a vested interest and in whom the legal title lies does not, and cannot, lose that title by mere laches or by saying that he has abandoned his right, unless there is something more, namely inducement of another party by his words or conduct to believe the truth of that statement and so as to make him act upon it to his detriment. Then such a person would be bound by estoppel. It is not abandonment or waiver, which prevents him from asserting that the legal forms were not duly observed. In the instant case the discussion which has been made in the 1995 judgment is too elaborate and is based primarily on various historical facts and background which clearly indicate that the Patriarch at no point of time had exercised temporal control and it was considered necessary to establish the office of the Catholicos so as to manage the Malankara Church which is a division of the Orthodox Syrian Church. The Malankara Church was founded by St. Thomas the Apostle and is included in the Orthodox Syrian Church of the East and the Primate of the Church is the Catholicos. It is apparent from Kalpanas, establishment of the office of Catholicos and other historical facts discussed in the judgments referred to in the 1995 judgment that once having created the office, it is not the plea of waiver or abandonment but the Kalpana issued by the Patriarch is binding upon him also. Thus it is a positive act and once having done so, the Patriarch is bound by it and cannot wriggle out of it and make the entire Parish Church systemdge Bench decision in the 1995 judgment cannot be said to be contrary to theBench decision in Sha Mulchand (supra) but on a closer scrutiny, Sha Mulchand (supra) does not buttress the plea of the appellants but negotiates against it. Too much cannot be made out of the observations made by this Court that the Patriarch cannot be said to have lost his spiritual supremacy over the Malankara Church but the fact that remains is that it has reached a vanishing point and the Church is to be managed as per the historical background, in accordance with the 1934 Constitution which has also the force behind it of the Patriarch himself in the form of Kalpana. The Parishioners can have faith in the spiritual supremacy of the Patriarch but not in all the matters. They have to give equal importance in the matter of management of the 1934 Constitution and cannot be permitted to commit regular breach and device ways to circumvent the judgment of this Court by one way or the other and under the garb of spiritual fight wrest the temporal control of the Churches. That the spiritual power of the Patriarch has reached to a vanishing point, has to be given the full meaning and it cannot mean that the powers can be exercised under the umbrella of spirituality to interfere in the administration of the Church and creating a parallel system of appointing Vicars and Priests etc. which will paralyze the functioning of the Churches for which they have been formed and it would be against the very spirit of creation of trust from time immemorial which inheres the concept that once a Trust always a Trust. No person under the guise of spiritual faith can be permitted to destroy a system which is prevailing for the management of such Churches and go on forming Constitution as per his will time and again. There is no need in case of any such Constitution as is framed in the year 2002. What is the guarantee that there would not be any other Constitution created by any other faction for the administration of same Churches any day hereafter or in future? Once any Parishioner wants to change the 1934 Constitution, it is open to them to amend it as per the procedure. It is right that it therefore is not a Bible or holy book of Quran or other holy books which cannot be amended. The 1934 Constitution has been amended in the form ofor regulations applicable for governance of Parish churches a number of times, as aforesaid, and it can still be amended to take care of the legitimate grievances, if any, but there appears to be none for which the fight has been going on unabated in the instant cases.IN RE: PARISHIONERS HAVE A RIGHT TO FOLLOW THEIR OWN FAITH UNDER ARTICLE 25 AND APPOINTMENT OF VICAR, PRIEST AND DEACONS ETC. AND MANAGE AFFAIRS UNDER ARTICLE 26 OF THE CONSTITUTION OFThus, we are unable to accept the submissions raised by Shri K. Parasaran, learned senior counsel for various reasons. The appointment of Vicar is not a spiritual matter but is a secular matter.The submission as to the violation of faith and violation of a right under Article 25 is to be rejected. No doubt about it that a religious denomination or organization enjoys a complete autonomy in the matter of deciding as to rites and ceremonies essential according to their tenets of religion they hold and no outside authority has any jurisdiction to interfere with their decisions in such matters. At the same time, secular matters can be controlled by the secular authorities in accordance with the law laid down by the competent legislature as laid down in the Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 SCR 1005. Spiritual power is also with various authorities like Catholicos, Malankara Metropolitan etc. Thus it is too far fetched an argument that the Patriarch of Antioch or his delegate should appoint a Vicar or Priest. There is no violation of any right of Articles 25 or 26 of the Constitution of India. Neither any of the provisions relating to appointment of the Vicar can be said to be in violation of any of the rights under Articles 25 and 26 of the Constitution of India. The 1934 Constitution cannot be said to be in violation of Articles 25 and 26 of the Constitution of India. It was suggested that the faith involved in the present case refers to apostolic succession from Jesus Christ, viz., the blessings and grace of Christ descends through an apostle i.e. St. Peter or St. Thomas as the case may be, and from the said apostle to the Pope/Patriarch who appoints a Vicar. The argument ignores and overlooks other offices that arelike Catholicos, Malankara Metropolitan, and Diocesan Metropolitan etc. It is not necessary for the Pope and the Patriarch to appoint Vicar because management of a Church is not a religiousissue of Patriarch of Catholicos has been raisedIt is a Diocesan Metropolitan as per Section 40 of the Constitution who has the power to appoint Vicar, priests etc. and there is other hierarchy provided. Even Catholicos, Malankara Metropolitan has the spiritual powers. It is not that they have temporal powers only. They have spiritual status too that has to be respected equally. Shri C.V. Singh, learned counsel, is right in contending that no office is either superior or inferior in the matter of relationship between the two heads, the Catholicos and the Patriarch. Both are independent spiritual authorities. However, the Patriarch occupies the higher post in the hierarchy i.e. he has an honour or precedence if he is present that is in a sense he is the first among equals"primus inter parties". The Church functioning is based on division of responsibilities at various levels.The division of power is for the purpose of management and does not militate against the basic character of the church being Episcopal inhighest authority of Malankara church of the east is Catholicos being its primate as recognised in Section 2 of 1934 Constitution. What is sought for and intended is wholly uncalled for, wholly unnecessary and unpalatable. Community may divide but churches and places of worship cannot be divided. They have to be respected for the sake of religion and to exercise their coveted rights under Articles 25 and 26 and for preservation of such rights. We are not oblivious of the fact that still there may not be truce and peace in the church which cannot besubmission is not at all plausible. The properties would always remain to be Malankara Church properties. Only Office holders have to subscribe to the 1934 Constitution as held by this Court. The Parishioners can take no church property away, neither Catholicos faction by majority and the submission is based on the misconception as to the nature of rights in such property. It has to remain in Malankara Church. Neither the Church nor the cemetery can be confiscated by anybody. It has to remain with Parishioners as per the customary rights and nobody can be deprived of right one enjoys being a Parishioner in the church or to be buried honourably in the cemetery, in case he continues to have faith in Malankara Church.In our opinion, there is no force in the submission of Shri Vaidyanathan, learned senior counsel, that if services and ceremonies conducted by only those Vicars and priests who are appointed in accordance with the 1934 Constitution, would be violative of the basic object of the Parish Church. As already discussed we find no force in the submission. Diocesan Metropolitan appoints Vicar under the 1934 Constitution. It does not impinge upon the object of the Parish churches. The Catholicos or the Patriarch, as the case may be, are not supposed to deal with such matters which are reserved for Diocesan Metropolitan as apparent from various decisions and provisions in the 1934 Constitution. This is the position prevailing since long. As already discussed, Vicars or Priests can also be appointed by secular authorities of sovereign. The appointment made by Diocesan Metropolitan cannot be said to be suffering from any illegality or affecting the spiritual rights of the Parishioners. Deacons and Preist for ordination are required to undergo successfully, theological studies and principle has to certify as to their fitness. For ordination as Korooyo (Reader) successfully clearing of 3 years study is required. How Patriarch from abroad can exercise such powers is beyond comprehension and that would amount to unnecessary interference which is not supported by any Kalpana or historical document.129. The 1934 Constitution provides appointment of Vicar by Diocese in the area of its operation. Other provisions that we have discussed with respect to appointment detailed out in the 1934 Constitution. In the absence of anything having been provided in Udampady, the 1934 Constitution would hold the field.130. Faith is tried to be unnecessarily divided vis a vis the office of Catholicos and the Patriarch. Faith of church is in the Jesus Christ. An effort is being made to take over the management and other powers by such an action just to gain control of temporal matters under the garb of spirituality. Even if Vicar performs the functions, which are religious, there would not be infringement of the rights under article 25 and 26 of constitution of India in case the Diocesan Metropolitan appoints Vicar as provided in the Constitution and it is clear the Patriarch of Antioch has not reserved this power to himself. Why there is such dispute is most unfortunate and is for inexplicable reasons. There is no good or genuine cause for it. As a matter of fact the 1995 judgment settled such disputes, between the parties. This court has tried its best to take care of the prevailing situation while passing the decree. It was observed in utter breach during its execution itself. We are unable to accept and appreciate why for the Patriarch himself should appoint Vicar, Priest etc. The Diocesan Metropolitan as per the Constitution of 1934 appoints vicar. The submission that Vicar of a Catholicos group cannot be thrust on a worshipper of Patriarch faith against his will, is totally unsound and is simply a ploy to take over the control of the management of the Church by putting faith in a Vicar who is running a parallel governance at the cost of Church by creating factionalism within the Churches. It is settled proposition of law that when a mode is prescribed for doing a thing, it can be done only in that manner and not otherwise. This Court in 1995 Judgment made it clear that the Patriarch has no such authority, he could not exercise any such spiritual power unilaterally as done in 1972 which became the cause of unrest in Church. The appointment of Vicar, Priest by the Patriarch or through delegate unilaterally was held to be not permissible in the decision of 1995 even if he has such powers. It appears he has no such power to interfere in the management of the church and now that question is agitated again and under the same guise of supremacy such an uncalled for attempt has to be thwarted and not to be countenanced for a moment. There is no violation of constitutional provisions or authority of Patriarch. Thus there is no question of violation of Parishnors rights and applicability of decisions in Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180; Basheshar Nath v. I.T. Commissioner AIR 1959 SCar Singh Paul v. Union of India 2000 (3) SCC 588. IN RE : REPUDIATION OF THE SPIRITUAL SUPREMACY OF THE PATRIARCH BY THE CATHOLICOSNone of the aforesaid submissions are acceptable for various reasons. It is apparent from M M B Catholicos v. T.Paulo Avira (supra) and the 1958 judgment rendered by this Court that similar issues with respect to repudiation of powers of the Patriarch by the Catholicos group were raised. As apparent from the aforesaid extractedthe instant case also we find that due to Patriarchs action in the year 1972 of appointment of Vicar and priests etc. unilaterally, created unrest in the church. It again happened in 2002 onwards. It is in that context writ petitions came to be filed when Patriarch faction was not following the decision of this Court of 1995 and did not participate in the election and in 2002 created a new Constitution of 2002 and a parallel administration. The aforesaid writ petitions came to be filed in the High Court. The patriarch and his faction ought to have accepted the judgment of this Court. At the same time Catholicos ought to have respected the authority of the Patriarch. However the level at which the differences reached in spite of the judgment of 1995 which was binding on all concerned, the action of the Catholicos faction cannot be said to be wholly illegal as an effort was made by Patriarch to divide the church, and therefore they cannot be said to have incurred any disqualification or can be termed as heretics. The writ petitions were ultimately dismissed but the unpleasant events which happened in the case after 1995 judgment were wholly unwarranted and ought not to have been resorted to by the Patriarch faction. When this Court had appointed Justice Malimath by consent to hold the elections, the decision of 1995 ought to have been respected by the parties. It was the bare minimum respect to the judgment that was expected of the rival factions. Both the factions ought to resolve their differences, if any, on a common platform and in case of necessity to amend the Constitution further, if it became necessary but they could not have taken at all a recourse to create the parallel system for administration of the very churches, creating law and order problem, resulting into closure of the church for substantial time and having two Vicars in the same church, serving in the church at different times each day as per the interim order. The situation where the church has reached is neither expected nor tolerable and church is not meant to be a place for such a masculine culture. The matter was decided in the Vattipanam suit, Samudayam suit and the 1995 judgment and the Patriarch faction ought not to have violated the judgment of this Court in the method and manner in which it has been done. In the 1958 judgment also this court has laid down by an elaborate reasoning process that the 1934 Constitution is binding on the Parish Churches. M.D. Seminary meeting was properly held in which the 1934 Constitution was adopted.The principle enunciated by this Court in respect of Knanaya Church is not at all applicable with respect to Parish Churches where the finding of this Court is otherwise to the effect that they are bound by the 1934 Constitution. The spiritual supremacy of the Patriarch has not been put into question by the Catholicos faction it was not pleaded that his appointment is not recognized by the Catholicos faction. The Universal Synod in accordance with the applicable Canon appoints the Patriarch. We are of the opinion that in the absence of any dispute as to the identity who is the Patriarch, there is no question of not recognizing Patriarch by the Malankara Church hence. Rightly it has not been pleaded, but that does not help the appellants with respect to appointment of Vicar and Priests etc. However, what is the extent of authority of the Patriarch has to be seen and gazed in the light of historical backgroundand what has been held in various representative suits from time to time which are binding to the extent the issues decided. We are of the considered opinion that once office of the Catholicos has beenPatriarch could not exercise the powers which have been dealt with in the 1934 Constitution, and conferred on various authorities in hierarchy of church, that too unilaterally to create another centre of power and thereby the Patriarch cannot be permitted to create parallel system of administration by appointing Vicars, Priests and Deacon or another authority of Church. He is bound to act within the four corners of the1934 constitution for the sake of peace in the church. In the temporal matters, Patriarch has no power and the spiritual power had also come to the vanishing point by his own acts as noticed by this Court in the 1995 and other judgments. Submission to the contrary on behalf of the appellants that he can exercise the powers after informing the Catholicos, cannot be accepted. The Malankara Metropolitan has to be of local area. Logically also for proper management of the affairs of Churches power cannot be exercised from abroad. Such a scenario is neither conceived nor feasible or permissible. The spiritual supremacy of one holy authority over the other, also cannot per se mean exclusion and subordination of the other religious authority. When there is delegation and delimitation of the territorial and other powers, concerned authorities however high they may be, spiritually or otherwise, have to follow the discipline and strictly act as per delimitation of zones and powers. It is absolutely necessary for survival of the Church and for properfind that the source of the entire problem is that the Patriarchs faction is not ready to accept Vicar and priests and the management which vests not only in Catholicos but also in Malankara Metropolitan, Diocesan Metropolitan. They want to have their own system of management by creating parallel managing groups as noted by this Court in the 1995 judgment also. In 1972 genesis of entire problem in the Churches was appointment of Vicar etc. made unilaterally on behalf of the Patriarch. Thereafter this Court had rendered the judgment and held that it was not open to the Patriarch to do it in the method and manner that it was done. Even assuming for a moment that Patriarch was having those powers, he could not exercise them unilaterally and the 1934 Constitution prevails in the churches, is a clear finding of this Court. Thus the Patriarch has also acted against the 1934 Constitution as well as the Canon by which Catholicos have beenin 1912 and after delimitation of areas. The Patriarch faction for no good cause is ready to accept the ecclesiastical and spiritual powers of the Catholicos and others as provided in the Constitution and Kalpanas and as held by this Court in the previous judgments. It was held in 1905 in the Arthat Suit that the Churches and their properties are subject to spiritual, temporal and ecclesiastical jurisdiction of Malankara Metropolitan. The Patriarchs claim of control over the temporal affairs of the Malankara Church was rejected. It was also rejected in the Seminary Suit filed in 1879. The effort made by the Patriarch faction appears to be for the temporal gains under the guise of supremacy of the Patriarch as the Vicar and priests have the power of management in addition to performing the religious duties. The submission that the 1934 Constitution has been breached by the Catholicos cannot be accepted. There is not only violation of binding judgment 1995 of this Court by the Patriarch faction but of other binding precedentsthe Church has been created and is for the benefit of beneficiaries, in our opinion, it is not open for beneficiaries even by majority to usurp its property ordoubt about it that the dispute in Samudayam Suit was with respect to community property but considering the rival claims, various issues which were raised, had been gone into and the findings had been recorded thereupon in order to decide the said controversy, are binding as suit was representative suit. Thus the issues which have been decided in the suit, cannot beincluding the question of adoption of the 1934 Constitution, its validity and binding nature. The applicability and legality of 1934 Constitution was questioned in the Samudayam suit. A ground was raised that by formation of the 1934 Constitution, supremacy of the Patriarch has been taken away. This Court in 1995 judgment construed Samudayam judgment and there is no scope to differ with theour opinion the High Court has rightly granted the declaration sought for in the facts and circumstances of the case, projected in the case. The declaration given that the Parish Churches are governed by the 1934 Constitution is just andfind that in the instant the Patriarch faction is more to be blamed for disorder in the churches than the Catholicos faction. They ought to have followed 1995 judgment and other decisions. That they have not done and have insisted upon their own system of management that is not permissible.IN RE: UDAMPADYENFORCEABILITY, OF BINDING NATURE AND 2002submission that the Udampady will prevail cannot be accepted in view of the provisions made in section 132 of the 1934 Constitution to the effect that all agreements which are not consistent with the provisions of this Constitution are made ineffective and annulled and also in view of the finding in the 1958 Samudayam matter that the Constitution had been validly adopted and is applicable. The question cannot beand reopened under the guise of Udampady. Udampady cannot hold the field for administration of such Parish Churches. Udampady is not a document by which the Church came to be established. It is with respect to its management only. Udampady cannot prevail over the Constitution that has been adopted for all the Malankara Churches and is holding the field. The registration of the Udampady cannot make it superior than the Constitution and the latter will prevail as found by this Court in earlier decisions. The finding is binding, conclusive and has to be respected. Even otherwise, in our opinion, Udampady cannot hold the field.We are unable to accept the arguments by Shri Mohan Parasaran, learned senior counsel for various reasons. Firstly, no one can deny the right under Article 20 of the Universal Declaration of Human Rights. In our opinion, counsel is right that no one may be compelled to belong to an association. There is no compulsion with any of the Parishioners to be part of the Malankara Church or Parish Church. There can be an exercise of unfettered volition not to be a part of an Association but the question in the case is whether one can form another Association within the same Association and to run a parallel system of management of the same very church which is not permissible. Leaving a Church is not the right denied but the question is whether the existing Malankara Church can be regulated otherwise than by the 1934 Constitution. If the effort of certain group of Patriarch otherwise is to form a new Constitution 2002 to appoint Vicars, Priests etc., giving a go by to the 1934 Constitution and to form a new Church under the guise of same Malankara Church, it is not permissible. The Malankara Church its properties and other matters are to be governed by the 1934 Constitution and even majority of parishioners has no right to take away and usurp the church itself or to create new system of management contrary to 1934 Constitution. It was a trust created as Malankara church that is supreme, for once a trust always a trust.As per the 1934 Constitution, it is clear that while individual Parishioners may choose to leave the Church, there is no question of even a majority of the Parishioners in the Parish Assembly by themselves being able to take the movable or immovable properties out of the ambit of the 1934 Constitution, without the approval of the Church hierarchy.Various provisions of the Constitution make it clear that there is a hierarchy of control and Parish Church properties cannot be dealt with otherwise, the provisions contained in section 23 as to the written consent of the Diocesan Metropolitan and the detailed system of management, appointment of Vicar and the Kaisthani, Parish Assembly, as also the power to spend certain amounts as provided in section 22 of the Constitution. The accounts are supervised and to be signed by the Diocesan Metropolitan. Similarly the acquisition of any immovable property for the Diocese can be with the written consent of the Malankara Metropolitan. It is apparent from the aforesaid provisions that there is a hierarchy of control that is provided with respect to the Church properties also. The community trustees are also provided for the Vattipanam that is Trust Fund. Section 94 provides for the temporal, ecclesiastical and spiritual control of the Malankara Metropolitan. Catholicos can also hold the office of Malankara Metropolitan. The Episcopal Synod has the power to consecrate Cathlicos. Whatever autonomy is there, is provided in the Constitution for the Churches for necessary expenditure as provided in section 22, otherwise it is Episcopal nature of the Church and once the property vests in Malankara Church, it remains vested in it and cannot be taken away and in case there is any dispute with respect to faith etc. as is raised in the present case, it has to be decided by the Episcopal Synod and in case anyis to be changed, its remedy is available under the provisions of sections 126, 127 and 129. Faction of Parish cannot decide against Constitution. Byelaws must conform to Constitution. The income has to be distributed as per sections 120 to 123.164. The submission raised that by majority, decision can be taken to opt out of the 1934 Constitution by the Parish Assembly and to form a new church under a new name, as has been done in 2002. In our opinion Constitution prohibits such a course. Eventhat do not conform to Constitution cannot be framed and that has to be placed before Rule Committee under sections 126, 127 and 129. In existing system of Malankara Church, a Parish Church that is a part of Malankara Church cannot be usurped even by majority in Church under the guise of formation of new Church.The majority view in the 1995 judgment refused to give declaration with respect to property in the absence of Parish churches. However it was observed that the 1934 Constitution shall govern and regulate the affairs of the Parish Churches insofar as the Constitution provides for the same. In the absence of any further prayer made, suffice it to hold that the 1934 Constitution shall govern the affairs of the Parish Churches in respect of temporal matters also insofar as it so provides and discussed by us. The Malankara Church is Episcopal to the extent it is so declared in the 1934 Constitution as held in the 1995 judgment. The 1934 Constitution governs the affairs of Parish Malankara Churches and shall prevail.166. In our opinion, otherwise also, property cannot be taken away by the majority or otherwise and it will remain in Trust as it has been for the time immemorial for the sake of beneficiaries. It is for the benefit of beneficiaries. No one can become owners by majority decision or permitted to usurp Church itself. It has to remain in perpetual succession for the purpose it has been created a Malankara Church.From the aforesaid it is apparent that the Parish Assembly by majority cannot take away the property and divert it to a separate and different church that is not a Malankara Church administered as per the 1934 Constitution, though it is open to amend the Constitution of 1934. As the basic documents of creation of church have not been placed on record, usage and custom for determining the competing claims of rival factions becomes relevant.Thus, we have no hesitation to hold that the 2002 Constitution cannot hold the field to govern the appellant churches and the 1934 Constitution is binding. Finding recorded by the High Court that the Kolencherry Church was not administered by the 1913 Udampady and was administered in accordance with the 1934 Constitution, in our opinion, is correct at least after the Consitution was adopted. General body meeting of 8.3.1959 has adopted the 1934 Constitution. Udampady cannot hold the field by virtue of section 132 of the Constitution and there is other oral evidence that had been assessed by the High Court including the documentary evidence and the Udampady cannot be taken to govern. Moreover in view of the findings in the 1958 Samudayam suit and the 1995 judgment, the Constitution of 1934 is binding which has been held to be valid and Malankara Church has to be administered as per the provisions contained therein. Thus Udampady of 1913 cannot be set up or used as ploy to avoid the provisions of 1934 Constitution. Thus the main plank of submissions is also barred by the principle of res judicata.In our opinion, none of submission of Shri Divan is legally tenable. The church was created way back in the 7th century. The Udampady of 1913 is not a document of creation of the Trust. The thenperson executed it just for the management of the church in question. The 1934 Constitution after being adopted in 1959 by the Church is binding. The Udampady of 1913 has lost its efficacy and utility. The Udampady stands annulled by Section 132 of the Constitution. It cannot be revived. Thus it is not open to the church or parishioners by majority to wriggle out of 1934 Constitution. In view of the findings recorded in the Samudayam suit also by the 1995 judgment, the question operates, as res judicata and the administration on the basis of Udampady cannot be claimed. The inconsistent provisions in the Udampady shall stand annulled as per section 132 of the 1934 Constitution.174. There are inconsistencies between the 1934 Constitution and 1913 Udampady as such the latter cannot prevail. In terms of Section 132, any Udampady (agreement) which is inconsistent with the provisions of 1932 constitution stands annulled and is ineffective. The following among others, are the important inconsistencies between the provisions of 1913 Udampady and the 1934 Constitution.In view of the above inconsistencies, as well as in light of the findings of the Supreme Court in 1959 judgment and the 1995 judgment regarding the validity and the binding character of the 1934 constitution, the 1913 Udampady would, in any event, no longer survive and Parish Church would be governed in accordance with the 1934 Constitution.176. Shri Anam, learned counsel, was right in submitting that educational institutions have to be run in accordance with the provisions of the Kerala Education Act. Educational institutions cannot be governed by the Udampady of 1913 as per sections 6 and 7 of the Kerala Education Act, 1959.IN RE: EFFECT OF NON REGISTRATION OF 1934 CONSTITUTION AND EFFECT OF REGISTERED UDAMPADY177. The Udampadies were for administration of the Church at the relevant time and lost their efficacy due to efflux of time and cannot hold the field in view of the system of administration provided in the 1934 Constitution. The 1934 Constitution was not required to be registered document as the Udampadies are not documents of creation of Trust/s, the Udampadies were not required to be registered. Udampady cannot prevail over the 1934 Constitution for various reasons discussed in theour opinion, the 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future, any right, title or interest, whether vested or contingent, in the Malankara church properties. It provides a system of administration as such and not required to be registered, and moreover the question of effect ofof the 1934 Constitution cannot be raised in view of the findings recorded in theand the 1995judgments. The question could, and ought to have been raised but was not raised at the time of authoritative pronouncement made by this Court. Otherwise also, facts have not been pleaded nor any provision of the constitution pointed out that may attract the provisions of section 17(1)(b) of the Registration Act. Thus, it is not open to question the validity of the 1934 Constitution on the ground that it cannot be looked into for want of its registration. Reliance was placed upon Kashinath Bhaskar Datar v. Bhaskar Vishweshwar 1952 SCR 491 in which it has been laid down that when a document restricting or expanding the interest in an immovable property requires compulsory registration, otherwise it cannot be admitted in evidence. Udampady itself is not a document of creation of Trust. It related to the management only. Thus, by its registration no legal superior right is acquired to prevail over the Constitution. Reliance was placed upon decision of this Court in Chandrakant Shankarrao Machale v. Parubai Bhairu Mohite (2008) 6 SCC 745 to contend that the terms of a registered document could be varied or altered only by another registered document. The court was dealing with the mortgage deed dated 28.2.1983. When there is such a deed of mortgage, its terms could not have been varied or altered by an unregistered document so as to change its status from that of a mortgage to that of a lease. The decision has no application as the Udampady pertained only to administration. No registered document was required for administration of the Church. Document of creation of a Trust may require registration and not a document like the 1934 Constitution. Reliance was also placed upon S. Saktivel (Dead) by LRs. v. M. Venugopal Pillai & Ors. (2000) 7 SCCTC Ltd. v. State of U.P. (2011) 7 SCC 493. The decision in S. Saktivel (supra) deals with the terms of the registered document whereas the decision in ITC Ltd. (supra) is also in a different context. S. Saktivel (supra) was a case where property itself was registered by a registered settlement deed dated 26.3.2015. It was held that it could not be modified or altered or substituted in 1941 by unregistered document. The decision has no application for the aforesaiddecision is wholly inapplicable and does not espouse the cause of the appellants.MAINTAINABILITY OF MANNATHUR CHURCH SUITare not satisfied with the submissions raised. The suit was clearly representative in character and has been contested in that manner. It was not necessary to adopt the procedure as suggested after amendment as the amended relief was traceable from the main relief. It was not at all necessary to obtain fresh leave.H. FRAMING OF SCHEME UNDER SECTION 92 OF THE CIVIL PROCEDURE CODE181. We are also not impressed by the submission that the court should direct framing of a scheme under section 92 CPC in view of the decision of the Privy Council in Mohd.In our opinion there is no necessity of framing any scheme under section 92. There are adequate provisions and safeguards provided in section 92 for managing the Malankara Church and its properties. There is no dispute with the proposition laid down in the aforesaid decisions but we find no such necessity for framing such scheme under section 92 CPC in view of detailed wholesome provisions of 1934 Constitution.I. WHETHER IN THE FACTS, INTERIM ARRANGEMENT TO CONTINUEsubmission cannot be accepted as it would tantamount to patronizing parallel system of administration and would not be a legally permissible mode hence prayer is rejected.184. Resultantly, based on the aforesaid findings in the judgment, our main conclusions, inter alia, are as follows :(i) Malankara Church is Episcopal in character to the extent it is so declared in the 1934 Constitution. The 1934 Constitution fully governs the affairs of the Parish Churches and shall prevail.(ii) The decree in the 1995 judgment is completely in tune with the judgment. There is no conflict between the judgment and the decree.(iii) The 1995 judgment arising out of the representative suit is binding and operates as res judicata with respect to the matters it has decided, in the wake of provisions of Order 1 Rule 8 and Explanation 6 to section 11 CPC. The same binds not only the parties named in the suit but all those who have interest in the Malankara Church. Findings in earlier representative suit, i.e., Samudayam suit are also binding on Parish Churches/Parishioners to the extent issues have been decided.(iv) As the 1934 Constitution is valid and binding upon the Parish Churches, it is not open to any individual Church, to decide to have their new Constitution like that of 2002 in theexercise of right under Articles 25 and 26 of the Constitution of India. It is also not permissible to create a parallel system of management in the churches under the guise of spiritual supremacy of the Patriarch.(v) The Primate of Orthodox Syrian Church of the East is Catholicos. He enjoys spiritual powers as well, as the Malankara Metropolitan. Malankara Metropolitan has the prime jurisdiction regarding temporal, ecclesiastical and spiritual administration of Malankara Church subject to the riders provided in the 1934 Constitution.(vi) Full effect has to be given to the finding that the spiritual power of the Patriarch has reached to a vanishing point. Consequently, he cannot interfere in the governance of Parish Churches by appointing Vicar, Priests, Deacons, Prelates (High Priests) etc. and thereby cannot create a parallel system of administration. The appointment has to be made as per the power conferred under the 1934 Constitution on the concerned Diocese, Metropolitan etc.(vii) Though it is open to the individual member to leave a Church in exercise of the right not to be a member of any Association and as per Article 20 of the Universal Declaration of Human Rights, the Parish Assembly of the Church by majority or otherwise cannot decide to move church out of the Malankara Church. Once a trust, is always a trust.(viii) When the Church has been created and is for the benefit of the beneficiaries, it is not open for the beneficiaries, even by a majority, to usurp its property or management. The Malankara Church is in the form of a trust in which, its properties have vested. As per the 1934 Constitution, the Parishioners though may individually leave the Church, they are not permitted to take the movable or immovable properties out of the ambit of 1934 Constitution without the approval of the Church hierarchy.(ix) The spiritual power of Patriarch has been set up by the appellants clearly in order to violate the mandate of the 1995 judgment of this Court which is binding on the Patriarch, Catholicos and all concerned.(x) As per the historical background and the practices which have been noted, the Patriarch is not to exercise the power to appoint Vicar, Priests, Deacons, Prelates etc. Such powers are reserved to other authorities in the Church hierarchy. The Patriarch, thus, cannot be permitted to exercise the power in violation of the 1934 Constitution to create a parallel system of administration of Churches as done in 2002 and onwards.(xi) This Court has held in 1995 that the unilateral exercise of such power by the Patriarch was illegal. The said decision has also been violated. It was only in the alternative this Court held in the 1995 judgment that even if he has such power, he could not have exercised the same unilaterally which we have explained in this judgment.(xii) It is open to the Parishioners to believe in the spiritual supremacy of Patriarch or apostolic succession but it cannot be used to appoint Vicars, Priests, Deacons, Prelates etc. in contravention of the 1934 Constitution.(xiii) Malankara Church is Episcopal to the extent as provided in the 1934 Constitution, and the right is possessed by the Diocese to settle all internal matters and elect their own Bishops in terms of the said Constitution.(xiv) Appointment of Vicar is a secular matter. There is no violation of any of the rights encompassed under Articles 25 and 26 of the Constitution of India, if the appointment of Vicar, Priests, Deacons, Prelates (High Priests) etc. is made as per the 1934 Constitution. The Patriarch has no power to interfere in such matters under the guise of spiritual supremacy unless the 1934 Constitution is amended in accordance with law. The same is binding on all concerned.(xv) Udampadis do not provide for appointment of Vicar, Priests, Deacons, Prelates etc. Even otherwise once the 1934 Constitution has been adopted, the appointment of Vicar, Priests, Deacons, Prelates (high priests) etc. is to be as per the 1934 Constitution. It is not within the domain of the spiritual right of the Patriarch to appoint Vicar, Priests etc. The spiritual power also vests in the other functionaries of Malankara Church.(xvi) The functioning of the Church is based upon the division of responsibilities at various levels and cannot be usurped by a single individual howsoever high he may be. The division of powers under the 1934 Constitution is for the purpose of effective management of the Church and does not militate against the basic character of the church being Episcopal in nature as mandated thereby. The 1934 Constitution cannot be construed to be opposed to the concept of spiritual supremacy of the Patriarch of Antioch. It cannot as well, be said to be an instrument of injustice or vehicle of oppression on the Parishioners who believe in the spiritual supremacy of the Patriarch.(xvii) The Church and the Cemetry cannot be confiscated by anybody. It has to remain with the Parishioners as per the customary rights and nobody can be deprived of the right to enjoy the same as a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in the Malankara Church. The property of the Malankara Church in which is also vested the property of the Parish Churches, would remain in trust as it has for the time immemorial for the sake of the beneficiaries and no one can claim to be owners thereof even by majority and usurp the Church and the properties.(xviii) The faith of Church is unnecessarily sought to be dividedthe office of Catholicos and the Patriarch as the common faith of the Church is in Jesus Christ. In fact an effort is being made to take over the management and other powers by raising such disputes as to supremacy of Patriarch or Catholicos to gain control of temporal matters under the garb of spirituality. There is no good or genuine cause for disputes which have been raised.(xix) The authority of Patriarch had never extended to the government of temporalities of the Churches. By questioning the action of the Patriarch and his undue interference in the administration of Churches in violation of the 1995 judgment, it cannot be said that the Catholicos faction is guilty of repudiating the spiritual supremacy of the Patriarch. The Patriarch faction is to be blamed for the situation which has been created post 1995 judgment. The property of the Church is to be managed as per the 1934 Constitution. The judgment of 1995 has not been respected by the Patriarch faction which was binding on all concerned. Filing of writ petitions in the High Court by the Catholicos faction was to deter the Patriarch/his representatives to appoint the Vicar etc. in violation of the 1995 judgment of this Court.(xx) The 1934 Constitution is enforceable at present and the plea of its frustration or breach is not available to the Patriarch faction. Once there is Malankara Church, it has to remain as such including the property. No group or denomination by majority or otherwise can take away the management or the property as that would virtually tantamount to illegal interference in the management and illegal usurpation of its properties. It is not open to the beneficiaries even by majority to change the nature of the Church, its property and management. The only method to change management is to amend the Constitution of 1934 in accordance with law. It is not open to the Parish Churches to even framein violation of the provisions of the 1934 Constitution.(xxi) The Udampadies of 1890 and 1913 are with respect to administration of Churches and are not documents of the creation of the Trust and are not of utility at present and even otherwise cannot hold the field containing provisions inconsistent with the 1934 Constitution, as per section 132 thereof. The Udampady also cannot hold the field in view of the authoritative pronouncements made by this Court in the earlier judgments as to the binding nature of the 1934 Constitution.(xxii) The 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future any right, title or interest, whether vested or contingent in the Malankara Church properties and only provides a system of administration and as such is not required to be registered. In any case, the Udampadis for the reasons already cited, cannot supersede the 1934 Constitution only because these are claimed to be registered.(xxiii) In otherwise Episcopal church, whatever autonomy is provided in the Constitution for the Churches is for management and necessary expenditure as provided in section 22 etc.(xxiv) The formation of 2002 Constitution is the result of illegal and void exercise. It cannot be recognized and the parallel system created thereunder for administration of Parish Churches of Malankara Church cannot hold the field. It has to be administered under the 1934 Constitution.(xxv) It was not necessary, after amendment of the plaint in Mannathur Church matter, to adopt the procedure once again of representative suit under Order 1 Rule 8 CPC. It remained a representative suit and proper procedure has been followed. It was not necessary to obtain fresh leave.(xxvi) The 1934 Constitution is appropriate and adequate for management of the Parish Churches, as such there is no necessity of framing a scheme under section 92 of the CPC.(xxvii) The plea that in face of the prevailing dissension between the two factions and the remote possibility of reconciliation, the religious services may be permitted to be conducted by two Vicars of each faith cannot be accepted as that would amount to patronizing parallel systems of administration.(xxviii) Both the factions, for the sake of the sacred religion they profess and to preempt further bickering and unpleasantness precipitating avoidable institutional degeneration, ought to resolve their differences if any, on a common platform if necessary by amending the Constitution further in accordance with law, but by no means, any attempt to create parallel systems of administration of the same Churches resulting in law and order situations leading to even closure of the Churches can be accepted. | 1 | 75,191 | 10,153 | ### Instruction:
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faith and the Court should not examine this aspect even though there is a strong protest which has led to repeated round of litigations before the courts up to the Honble Apex Court. The underlying object or the purpose even if it assumed that it is only for better administration, still it cannot have any predominance or the constitutional provision or the law of land."30.After analysing the facts and the law in the matter, we have noticed that it is the duty of the society to take steps in accordance with Section 13 of the SR Act for its dissolution. We have further noted that unless the properties vested in the Trust are divested in accordance with the provisions of the SR Act and in accordance with the BPTA, merely by filing the change report(s), CNI cannot claim a merger of churches and thereby claim that the properties vested in the Trust would vest in them. In our opinion, it would only be evident from the steps taken that the passing of resolutions is nothing but an indication to show the intention to merge and nothing else. In fact, the City Civil Court has correctly held, in our opinion, which has been affirmed by the High Court, that there was no dissolution of the society and further merger was not carried out in accordance with the provisions of law. In these circumstances, we hold that the society and the Trust being creatures of statute, have to resort to the modes provided by the statute for its amalgamation and the so-called merger cannot be treated or can give effect to the dissolution of the Trust. In the matrix of the facts, we hold that without taking any steps in accordance with the provisions of law, the effect of the resolutions or deliberations is not acceptable in the domain of law. The question of estoppel also cannot stand in the way as the High Court has correctly pointed out that the freedom guaranteed under the Constitution with regard to the faith and religion, cannot take away the right in changing the faith and religion after giving a fresh look and thinking at any time and thereby cannot be bound by any rules of estoppel. Therefore, the resolution only resolved to accept the recommendation of joint unification but does not refer to dissolution."The decision is wholly inapplicable and does not espouse the cause of the appellants.MAINTAINABILITY OF MANNATHUR CHURCH SUIT :180. It was also submitted by Shri Mohan Parasaran, learned senior counsel that the Mannathur Church matter suit was not maintainable. It was not of a representative character and in view of Order 1 Rule 8 CPC, fresh leave was not sought when the reliefs were amended and enlarged. We are not satisfied with the submissions raised. The suit was clearly representative in character and has been contested in that manner. It was not necessary to adopt the procedure as suggested after amendment as the amended relief was traceable from the main relief. It was not at all necessary to obtain fresh leave.H. FRAMING OF SCHEME UNDER SECTION 92 OF THE CIVIL PROCEDURE CODE181. We are also not impressed by the submission that the court should direct framing of a scheme under section 92 CPC in view of the decision of the Privy Council in Mohd. Ismile Ariff v. Ahmed Moolla Dowood 43 IA 127 (PC) in which it has been held that the court has the power to give direction and lay down rules that may facilitate the work of management and the appointment of trustees in the future. The primary duty of the Court is to consider the interest of the general body of the public for whose benefit the trust is created. Reliance has been placed by Shri S. Divan, learned senior counsel on Acharya Shri Shreepati Prasadji Barot Laxmidas 33 CWN 352 (PC) that the institutional trust must be respected by the sect and the body of worshippers for whose benefit it was set up to have the protection of the court against their property being subject to abuse, speculation and waste. Reliance was also placed on Ram Dularey v. Ram Lal AIR 1946 PC 34 in which it has been laid down thus:"Even if there were an inconsistency in that judgment, their Lordships would be very slow to disturb the safeguards which are provided in that scheme, if their Lordships found it necessary to reconsider the scheme; but in their view the scheme has been definitely approved by the Chief Court and they see no reason for interfering with the judgment. It has to be remembered that in these cases the Court has a duty, once it finds that it is a trust for public purposes to consider what is best in the interests of the public. That is made abundantly clear by the judge met of this Board, delivered by Mr. Ameer Ali, in Mahomed Ismail Ariff and others v. Ahmed MoollaDawood and another [43 IA 127: 43 Cal. 1085: 4 LW 269 (P.C.).]"(Emphasis supplied)182. In our opinion there is no necessity of framing any scheme under section 92. There are adequate provisions and safeguards provided in section 92 for managing the Malankara Church and its properties. There is no dispute with the proposition laid down in the aforesaid decisions but we find no such necessity for framing such scheme under section 92 CPC in view of detailed wholesome provisions of 1934 Constitution.I. WHETHER IN THE FACTS, INTERIM ARRANGEMENT TO CONTINUE :183. Lastly, it was submitted by Shri K. Parasaran, learned senior counsel, that as reconciliation does not appear to be possible between both factions, as such the religious services in the St. Marys Orthodox Church, Varikoli may be permitted to be conducted by two Vicars of each faith, Patriarch and Catholicos, in accordance with the faith of each denomination. The submission cannot be accepted as it would tantamount to patronizing parallel system of administration and would not be a legally permissible mode hence prayer is rejected.
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the Patriarch to appoint Vicar, Priests etc. The spiritual power also vests in the other functionaries of Malankara Church.(xvi) The functioning of the Church is based upon the division of responsibilities at various levels and cannot be usurped by a single individual howsoever high he may be. The division of powers under the 1934 Constitution is for the purpose of effective management of the Church and does not militate against the basic character of the church being Episcopal in nature as mandated thereby. The 1934 Constitution cannot be construed to be opposed to the concept of spiritual supremacy of the Patriarch of Antioch. It cannot as well, be said to be an instrument of injustice or vehicle of oppression on the Parishioners who believe in the spiritual supremacy of the Patriarch.(xvii) The Church and the Cemetry cannot be confiscated by anybody. It has to remain with the Parishioners as per the customary rights and nobody can be deprived of the right to enjoy the same as a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in the Malankara Church. The property of the Malankara Church in which is also vested the property of the Parish Churches, would remain in trust as it has for the time immemorial for the sake of the beneficiaries and no one can claim to be owners thereof even by majority and usurp the Church and the properties.(xviii) The faith of Church is unnecessarily sought to be dividedthe office of Catholicos and the Patriarch as the common faith of the Church is in Jesus Christ. In fact an effort is being made to take over the management and other powers by raising such disputes as to supremacy of Patriarch or Catholicos to gain control of temporal matters under the garb of spirituality. There is no good or genuine cause for disputes which have been raised.(xix) The authority of Patriarch had never extended to the government of temporalities of the Churches. By questioning the action of the Patriarch and his undue interference in the administration of Churches in violation of the 1995 judgment, it cannot be said that the Catholicos faction is guilty of repudiating the spiritual supremacy of the Patriarch. The Patriarch faction is to be blamed for the situation which has been created post 1995 judgment. The property of the Church is to be managed as per the 1934 Constitution. The judgment of 1995 has not been respected by the Patriarch faction which was binding on all concerned. Filing of writ petitions in the High Court by the Catholicos faction was to deter the Patriarch/his representatives to appoint the Vicar etc. in violation of the 1995 judgment of this Court.(xx) The 1934 Constitution is enforceable at present and the plea of its frustration or breach is not available to the Patriarch faction. Once there is Malankara Church, it has to remain as such including the property. No group or denomination by majority or otherwise can take away the management or the property as that would virtually tantamount to illegal interference in the management and illegal usurpation of its properties. It is not open to the beneficiaries even by majority to change the nature of the Church, its property and management. The only method to change management is to amend the Constitution of 1934 in accordance with law. It is not open to the Parish Churches to even framein violation of the provisions of the 1934 Constitution.(xxi) The Udampadies of 1890 and 1913 are with respect to administration of Churches and are not documents of the creation of the Trust and are not of utility at present and even otherwise cannot hold the field containing provisions inconsistent with the 1934 Constitution, as per section 132 thereof. The Udampady also cannot hold the field in view of the authoritative pronouncements made by this Court in the earlier judgments as to the binding nature of the 1934 Constitution.(xxii) The 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future any right, title or interest, whether vested or contingent in the Malankara Church properties and only provides a system of administration and as such is not required to be registered. In any case, the Udampadis for the reasons already cited, cannot supersede the 1934 Constitution only because these are claimed to be registered.(xxiii) In otherwise Episcopal church, whatever autonomy is provided in the Constitution for the Churches is for management and necessary expenditure as provided in section 22 etc.(xxiv) The formation of 2002 Constitution is the result of illegal and void exercise. It cannot be recognized and the parallel system created thereunder for administration of Parish Churches of Malankara Church cannot hold the field. It has to be administered under the 1934 Constitution.(xxv) It was not necessary, after amendment of the plaint in Mannathur Church matter, to adopt the procedure once again of representative suit under Order 1 Rule 8 CPC. It remained a representative suit and proper procedure has been followed. It was not necessary to obtain fresh leave.(xxvi) The 1934 Constitution is appropriate and adequate for management of the Parish Churches, as such there is no necessity of framing a scheme under section 92 of the CPC.(xxvii) The plea that in face of the prevailing dissension between the two factions and the remote possibility of reconciliation, the religious services may be permitted to be conducted by two Vicars of each faith cannot be accepted as that would amount to patronizing parallel systems of administration.(xxviii) Both the factions, for the sake of the sacred religion they profess and to preempt further bickering and unpleasantness precipitating avoidable institutional degeneration, ought to resolve their differences if any, on a common platform if necessary by amending the Constitution further in accordance with law, but by no means, any attempt to create parallel systems of administration of the same Churches resulting in law and order situations leading to even closure of the Churches can be accepted.
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State Of Kerala Vs. Unni | such broad proposition as has been sought to be urged. In Craies on Statute Law (1971 Edn., Chapter 21), the principle regarding penal provisions has been stated as under:"But penal statutes must never be construed so as to narrow the words of the statute to the exclusion of cases which those words in their ordinary acceptation would comprehend. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common-sense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument." 58. In Lalita Jalan v. Bombay Gas Co. Ltd. this question was examined in considerable detail and it was held that the principle that a statute enacting an offence or imposing a penalty is to be strictly construed is not of universal application which must necessarily be observed in every case. The Court after referring to Murlidhar Meghraj Loya v. State of Maharashtra, Kisan Trimbak Kothula v. State of Maharashtra, Supdt. and Remembrancer of Legal Affairs to Govt. of W.B. v. Abani Maity and State of Maharashtra v. Natwarlal Damodardas Soni held that the penal provisions should be construed in a manner which will suppress the mischief and advance the object which the legislature had in view. 59. We are, however, dealing with a different situation. Section 57 must also receive strict construction, having regard to the fact that thereby an offence proved would lead to a higher penalty; although on the self-same fact another penal provision involving a minor punishment, viz., Section 56 would be attracted. It has to be read having regard to the constitutional protection available to an accused as also other civil consequences, if any, entailing therefor. While construing a penal statute, in a case of this nature, it is necessary to apply the rule of strict construction. 60. In Standard Chartered Bank and Others v. Directorate of Enforcement and Others [(2005) 4 SCC 530] , yet again a Constitution Bench in a case where two different interpretations were possible, opined : "The counsel for the appellant contended that the penal provision in the statute is to be strictly construed. Reference was made to Tolaram Relumal v. State of Bombay, SCR at p. 164 and Girdhari Lal Gupta v. D.H. Mehta. It is true that all penal statutes are to be strictly construed in the sense that the court must see that the thing charged as an offence is within the plain meaning of the words used and must not strain the words on any notion that there has been a slip that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. All penal provisions like all other statutes are to be fairly construed according to the legislative intent as expressed in the enactment. Here, the legislative intent to prosecute corporate bodies for the offence committed by them is clear and explicit and the statute never intended to exonerate them from being prosecuted. It is sheer violence to common sense that the legislature intended to punish the corporate bodies for minor and silly offences and extended immunity of prosecution to major and grave economic crimes." 61. The matter may have to be considered from another angle. Renewal of a licence is a valuable right. [See D. Nataraja Mudialiar v. The State Transport Authority, Madras - AIR 1979 SC 114 ]. 62. It is not in dispute that whereas if an offence is committed under Section 56 of the Act, renewal of licence is permissible; but in a case where a licensee faces a prosecution under Section 57, renewal of licence would be denied to him. Consequences of attracting the provisions of Section 57, thus, must also be judged from the said angle.63. Reliance placed by Mr. Bhat upon Sundaram Pillai (supra), in our opinion, is wholly misplaced. The court therein was considering a rent control statute. It laid down law with regard to the interpretation of proviso and explanation. It was while so doing referred to the well-known decision of Seaford Court Estates Ltd. v. Asher [(1949) 2 All ER 155 : (1969) 2 KB 481 (CA)], stating : "It has been observed that statutory provisions must be so construed, if it is possible, that absurdity and mischief may be avoided. Where the plain and literal interpretation of a statutory provision produced a manifestly absurd and unjust result, the court might modify the language used by the Legislature or even do some violence to it so as to achieve the obvious intention of the Legislature and produce rational construction and just results. See in this connection, the observations in the case of Bhag Mal v. Ch. Parbhu Ram. Lord Denning in the case of Seaford Court Estates Ltd. v. Asher has observed :"if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it must not alter the material of which the Act is woven, but he can and should iron out the ceases." 64. Ironing out the creases is possible but not rewriting the language to serve a notation of public policy held by the Judges. Legislature must have legislated for a purpose by Act 23 of 1973 and used the expression "shall be construed" in Explanation in the manner it did. 65. It, however, added a note of caution that a purposive construction can be applied if the statute is read as a whole, requires such application.66. Reliance upon Bhagwan Das Jain (supra), in our opinion, is also misplaced. In fact, upon construction of a statute, we have held that the licensees are not guilty of any adulteration. The said decision has, therefore, no application. | 0[ds]21. Rule 9(2) of the said Rules, in our opinion, should be given a plain meaning. It should be read in its entirety. It is in two parts. The intention of the legislature must be gathered having regard to the expressions used therein. Rule 9(2) read in its entirety, states the context that thereby what is essentially sought to be prevented is adulteration of toddy. It is aimed at prevention of adulteration. The penal provision contained in first part not only directs that all toddy kept or offered for sale should be of good quality and unadulterated but also provides that nothing shall be added to it to increase its intoxicating power or for any other purpose. If the second part prescribing the contents of the ethyl alcohol in toddy is read in the context of the first part vis-a-vis Section 57(a) of the Act, it would be evident that prohibition is aimed at adulteration by addition of any foreign substance to increase its intoxicating power or for any other purpose.22. Validity of Rule 9(2), therefore, can be saved if the said provision is read in its entirety and rule of harmonious construction is resorted to. If, however, Rule 9(2) is sought to be invoked even for the purpose of initiating a prosecution as against a licensee even he does not add any foreign substance to it, the same, in our opinion, would render the same ultra vires, as would appear from the discussions made hereinafter.23. It is not in dispute that there does not exist any mechanical devise to measure the contents of ethyl alcohol present in toddy. It also stands admitted that contents of ethyl alcohol in toddy would depend upon various factors including weather, season or pot in which it is kept etc.24. Judicial notice can be taken of the fact that each village would not have a chemical laboratory where the process of analysis of ethyl alcohol can be carried out. For example, if a sample is taken in a village, by the time sample is sent for and is analyzed, the volume of ethyl alcohol may increase. Although we are informed that some chemical is mixed when a sample is taken, no material has been placed in that behalf.25. The validity or otherwise of Rule 9.2 must be considered from this point of view.The constitutionality of a statute is presumed in view of the principles laid down in ut rest magis valeat quam pareat. The principles on which constitutionality of a statute is judged and that of a subordinate legislation are different.Unreasonableness is one of the grounds of judicial review of delegated legislation. Reasonableness of a statute or otherwise must be judged having regard to the various factors which, of course, would include the effect thereof on a person carrying on a business.31. While we are not oblivious of the fact that nobody has any fundamental right to carry on business in toddy or liquor, but all the licensees are entitled to be treated equally. If the matter of validity or otherwise of the subordinate legislation is to be considered, Article 14 of the Constitution of India shall be attracted. [See State of Punjab and Another v. Devans Modern Breweries Ltd. and Another (2004) 11 SCC 26 , Ashok Lanka and Another v. Rishi Dikshit and Others (2005) 5 SCC 598 and Ashok Lanka-II v. Rishi Dikshit (2006) 9 SCC 90 ]32. When a statute provides for a condition which is impossible to be performed, unreasonableness of a statute shall be presumed. It would be for the State in such a situation to justify the reasonableness thereof.33. The Division Bench has, in our opinion, posed a wrong question unto itself when it proceeded on the premise that availability of a mechanical instrument to measure the contents of ethyl alcohol is of no moment. When a subordinate legislation imposes conditions upon a licensee regulating the manner in which the trade is to be carried out, the same must be based on reasonable criteria. A person must have means to prevent commission of a crime by himself or by his employees. He must know where he stands. He must know to what extent or under what circumstances he is entitled to sell liquor. The statute in that sense must be definite and not vague. Where a statute is vague, the same is liable to be struck down. [Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and Another v. Union of India and Others AIR 1960 SC 554 ].34. The learned Single Judge although did not deal with the matter in details, but was of the opinion that the statute is not workable.35. Workability of a statute vis-a-vis the question as to whether it is vague or otherwise must also be considered having regard to the question as to whether it is at all practical.36. We must state that where two interpretations are possible, having regard to the workability or unworkability of a statute, the one which leads to the workability of the statute must be preferred than the other, keeping in view the principle ut rest magis valeat quam pereat.45. A person may be held to be guilty even if the contents of ethyl alcohol exceed 8.1% marginally. He must, therefore, be in a position to know as to what extent he can go and to what extent he cannot. The matter cannot, thus, be left to an act of nature. A penal provision must be definite. Unless the statutory intention otherwise provides, existence of mens rea must be read into a penal statute. It must be a deliberate act and not an unintentional one, unless the statute says so explicitly or by necessary implication. The Act or the Rules do not say either. It is in that sense vague or unreasonable.46. Once, thus, it is found to be ex facie unreasonable and unworkable, the court would not hesitate to strike down the said rule. We do so.47. We for the reasons aforementioned, hold Rule 9(2) to be unworkable being vague in nature, unless read in the manner as suggested supra.In this case we are satisfied that the High Court was correct in its view that the ingredients of Section 57 of the Act are not attracted in the instant case.We are, however, dealing with a different situation. Section 57 must also receive strict construction, having regard to the fact that thereby an offence proved would lead to a higher penalty; although on the self-same fact another penal provision involving a minor punishment, viz., Section 56 would be attracted. It has to be read having regard to the constitutional protection available to an accused as also other civil consequences, if any, entailing therefor. While construing a penal statute, in a case of this nature, it is necessary to apply the rule of strict construction.It is not in dispute that whereas if an offence is committed under Section 56 of the Act, renewal of licence is permissible; but in a case where a licensee faces a prosecution under Section 57, renewal of licence would be denied to him. Consequences of attracting the provisions of Section 57, thus, must also be judged from the said angle.63. Reliance placed by Mr. Bhat upon Sundaram Pillai (supra), in our opinion, is wholly misplaced. The court therein was considering a rent control statute. It laid down law with regard to the interpretation of proviso and explanation.Ironing out the creases is possible but not rewriting the language to serve a notation of public policy held by the Judges. Legislature must have legislated for a purpose by Act 23 of 1973 and used the expression "shall be construed" in Explanation in the manner it did.It, however, added a note of caution that a purposive construction can be applied if the statute is read as a whole, requires such application.66. Reliance upon Bhagwan Das Jain (supra), in our opinion, is also misplaced. In fact, upon construction of a statute, we have held that the licensees are not guilty of any adulteration. The said decision has, therefore, no application. | 0 | 6,781 | 1,509 | ### Instruction:
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such broad proposition as has been sought to be urged. In Craies on Statute Law (1971 Edn., Chapter 21), the principle regarding penal provisions has been stated as under:"But penal statutes must never be construed so as to narrow the words of the statute to the exclusion of cases which those words in their ordinary acceptation would comprehend. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common-sense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument." 58. In Lalita Jalan v. Bombay Gas Co. Ltd. this question was examined in considerable detail and it was held that the principle that a statute enacting an offence or imposing a penalty is to be strictly construed is not of universal application which must necessarily be observed in every case. The Court after referring to Murlidhar Meghraj Loya v. State of Maharashtra, Kisan Trimbak Kothula v. State of Maharashtra, Supdt. and Remembrancer of Legal Affairs to Govt. of W.B. v. Abani Maity and State of Maharashtra v. Natwarlal Damodardas Soni held that the penal provisions should be construed in a manner which will suppress the mischief and advance the object which the legislature had in view. 59. We are, however, dealing with a different situation. Section 57 must also receive strict construction, having regard to the fact that thereby an offence proved would lead to a higher penalty; although on the self-same fact another penal provision involving a minor punishment, viz., Section 56 would be attracted. It has to be read having regard to the constitutional protection available to an accused as also other civil consequences, if any, entailing therefor. While construing a penal statute, in a case of this nature, it is necessary to apply the rule of strict construction. 60. In Standard Chartered Bank and Others v. Directorate of Enforcement and Others [(2005) 4 SCC 530] , yet again a Constitution Bench in a case where two different interpretations were possible, opined : "The counsel for the appellant contended that the penal provision in the statute is to be strictly construed. Reference was made to Tolaram Relumal v. State of Bombay, SCR at p. 164 and Girdhari Lal Gupta v. D.H. Mehta. It is true that all penal statutes are to be strictly construed in the sense that the court must see that the thing charged as an offence is within the plain meaning of the words used and must not strain the words on any notion that there has been a slip that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. All penal provisions like all other statutes are to be fairly construed according to the legislative intent as expressed in the enactment. Here, the legislative intent to prosecute corporate bodies for the offence committed by them is clear and explicit and the statute never intended to exonerate them from being prosecuted. It is sheer violence to common sense that the legislature intended to punish the corporate bodies for minor and silly offences and extended immunity of prosecution to major and grave economic crimes." 61. The matter may have to be considered from another angle. Renewal of a licence is a valuable right. [See D. Nataraja Mudialiar v. The State Transport Authority, Madras - AIR 1979 SC 114 ]. 62. It is not in dispute that whereas if an offence is committed under Section 56 of the Act, renewal of licence is permissible; but in a case where a licensee faces a prosecution under Section 57, renewal of licence would be denied to him. Consequences of attracting the provisions of Section 57, thus, must also be judged from the said angle.63. Reliance placed by Mr. Bhat upon Sundaram Pillai (supra), in our opinion, is wholly misplaced. The court therein was considering a rent control statute. It laid down law with regard to the interpretation of proviso and explanation. It was while so doing referred to the well-known decision of Seaford Court Estates Ltd. v. Asher [(1949) 2 All ER 155 : (1969) 2 KB 481 (CA)], stating : "It has been observed that statutory provisions must be so construed, if it is possible, that absurdity and mischief may be avoided. Where the plain and literal interpretation of a statutory provision produced a manifestly absurd and unjust result, the court might modify the language used by the Legislature or even do some violence to it so as to achieve the obvious intention of the Legislature and produce rational construction and just results. See in this connection, the observations in the case of Bhag Mal v. Ch. Parbhu Ram. Lord Denning in the case of Seaford Court Estates Ltd. v. Asher has observed :"if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it must not alter the material of which the Act is woven, but he can and should iron out the ceases." 64. Ironing out the creases is possible but not rewriting the language to serve a notation of public policy held by the Judges. Legislature must have legislated for a purpose by Act 23 of 1973 and used the expression "shall be construed" in Explanation in the manner it did. 65. It, however, added a note of caution that a purposive construction can be applied if the statute is read as a whole, requires such application.66. Reliance upon Bhagwan Das Jain (supra), in our opinion, is also misplaced. In fact, upon construction of a statute, we have held that the licensees are not guilty of any adulteration. The said decision has, therefore, no application.
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and is analyzed, the volume of ethyl alcohol may increase. Although we are informed that some chemical is mixed when a sample is taken, no material has been placed in that behalf.25. The validity or otherwise of Rule 9.2 must be considered from this point of view.The constitutionality of a statute is presumed in view of the principles laid down in ut rest magis valeat quam pareat. The principles on which constitutionality of a statute is judged and that of a subordinate legislation are different.Unreasonableness is one of the grounds of judicial review of delegated legislation. Reasonableness of a statute or otherwise must be judged having regard to the various factors which, of course, would include the effect thereof on a person carrying on a business.31. While we are not oblivious of the fact that nobody has any fundamental right to carry on business in toddy or liquor, but all the licensees are entitled to be treated equally. If the matter of validity or otherwise of the subordinate legislation is to be considered, Article 14 of the Constitution of India shall be attracted. [See State of Punjab and Another v. Devans Modern Breweries Ltd. and Another (2004) 11 SCC 26 , Ashok Lanka and Another v. Rishi Dikshit and Others (2005) 5 SCC 598 and Ashok Lanka-II v. Rishi Dikshit (2006) 9 SCC 90 ]32. When a statute provides for a condition which is impossible to be performed, unreasonableness of a statute shall be presumed. It would be for the State in such a situation to justify the reasonableness thereof.33. The Division Bench has, in our opinion, posed a wrong question unto itself when it proceeded on the premise that availability of a mechanical instrument to measure the contents of ethyl alcohol is of no moment. When a subordinate legislation imposes conditions upon a licensee regulating the manner in which the trade is to be carried out, the same must be based on reasonable criteria. A person must have means to prevent commission of a crime by himself or by his employees. He must know where he stands. He must know to what extent or under what circumstances he is entitled to sell liquor. The statute in that sense must be definite and not vague. Where a statute is vague, the same is liable to be struck down. [Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and Another v. Union of India and Others AIR 1960 SC 554 ].34. The learned Single Judge although did not deal with the matter in details, but was of the opinion that the statute is not workable.35. Workability of a statute vis-a-vis the question as to whether it is vague or otherwise must also be considered having regard to the question as to whether it is at all practical.36. We must state that where two interpretations are possible, having regard to the workability or unworkability of a statute, the one which leads to the workability of the statute must be preferred than the other, keeping in view the principle ut rest magis valeat quam pereat.45. A person may be held to be guilty even if the contents of ethyl alcohol exceed 8.1% marginally. He must, therefore, be in a position to know as to what extent he can go and to what extent he cannot. The matter cannot, thus, be left to an act of nature. A penal provision must be definite. Unless the statutory intention otherwise provides, existence of mens rea must be read into a penal statute. It must be a deliberate act and not an unintentional one, unless the statute says so explicitly or by necessary implication. The Act or the Rules do not say either. It is in that sense vague or unreasonable.46. Once, thus, it is found to be ex facie unreasonable and unworkable, the court would not hesitate to strike down the said rule. We do so.47. We for the reasons aforementioned, hold Rule 9(2) to be unworkable being vague in nature, unless read in the manner as suggested supra.In this case we are satisfied that the High Court was correct in its view that the ingredients of Section 57 of the Act are not attracted in the instant case.We are, however, dealing with a different situation. Section 57 must also receive strict construction, having regard to the fact that thereby an offence proved would lead to a higher penalty; although on the self-same fact another penal provision involving a minor punishment, viz., Section 56 would be attracted. It has to be read having regard to the constitutional protection available to an accused as also other civil consequences, if any, entailing therefor. While construing a penal statute, in a case of this nature, it is necessary to apply the rule of strict construction.It is not in dispute that whereas if an offence is committed under Section 56 of the Act, renewal of licence is permissible; but in a case where a licensee faces a prosecution under Section 57, renewal of licence would be denied to him. Consequences of attracting the provisions of Section 57, thus, must also be judged from the said angle.63. Reliance placed by Mr. Bhat upon Sundaram Pillai (supra), in our opinion, is wholly misplaced. The court therein was considering a rent control statute. It laid down law with regard to the interpretation of proviso and explanation.Ironing out the creases is possible but not rewriting the language to serve a notation of public policy held by the Judges. Legislature must have legislated for a purpose by Act 23 of 1973 and used the expression "shall be construed" in Explanation in the manner it did.It, however, added a note of caution that a purposive construction can be applied if the statute is read as a whole, requires such application.66. Reliance upon Bhagwan Das Jain (supra), in our opinion, is also misplaced. In fact, upon construction of a statute, we have held that the licensees are not guilty of any adulteration. The said decision has, therefore, no application.
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Trimbak Narayan Hardas Vs. Babulal Motaji & Others | have been exhibited. He referred to some extracts of accounts which he said he had himself prepared from his account books. There is no evidence that any of the contesting defendants agreed to these copies of extracts of account going in evidence. It would appear that even these extracts were not exhibited at the time of the trial but accepted by the learned Judge after the trial was over when the judgment was written some months later. It does not also appear that these extracts were verified in the office by any ministerial officer of the court, because the usual practice is that when original books of account are produced in court and they are required for daily use, extracts are produced in court, and after their verification with the originals by a ministerial officer of the court the originals are allowed to be taken away, to be produced again at the time of the hearing. The extracts produced in this case do not show that they had been verified with the originals by any ministerial officer of the court. The High Court observed in its judgment that it was more than likely that the plaintiff had produced the books of account in court and for this support was derived from the fact that during the cross-examination no questions have been put to the plaintiff in connection with the entries in the account books. We are afraid this is a wrong approach. If the plaintiff does not produce his original books of account in court and does not give evidence after referring to the entries therein, there is no obligation - in fact it will be wrong - on the part of the learned counsel for the opposite side to ask questions with regard to the entries in the books of account. It is true that the plaintiff had said that he had produced extracts and that these extracts were true copies of the originals. But counsel for the other side need not take any notice of this statement because that statement does not prove the books of account. If the learned Judge were satisfied with the extracts at the time and had decided to exhibit the same, counsel would have promptly objected to the same being done in the absence of the originals.It must be, therefore, held that the books of account had not been produced in court and the extracts were inadmissible in evidence.12. The High Court saw this difficulty and asked the plaintiff to produce these books of account for the courts inspection. It further appears that the learned Judges went through the original books of account and straightway relying on them held that the whole of the earnest money must have been received by defendant no. 1. Strong objection is taken by learned counsel for the appellant to the manner in which an important point has been disposed of. In fact this was letting in fresh evidence without giving the parties an opportunity to cross-examine the witness with regard to the books of account or the truthfulness of the entries. We agree that the High Court was not justified in looking into the books of account which had not been put in as evidence in the trial court. The High Court has suggested that the appellant had a duty to call the books of account for inspection in the trial court. One really does not see the point of this. The plaintiff was proving his case both with regard to the execution of the document and the money he had paid under it. Apart from his own word there was no other evidence except the evidence of books of account These books of account ought to have been produced by him to corroborate his own oral evidence. If he does not produce the books of account, the other side was under no obligation to call on the plaintiff to produce them for their inspection. Indeed, if the plaintiff had given intimation that he was going to rely on his books of account and had offered to give inspection of the same to the other side that would have been a different matter. We must, therefore, proceed in this case on the footing that the books of account had not been proved in the trial court and the High Court was not justified in looking into these books and deciding about their correctness without giving an opportunity to the other side to challenge them by the cross-examination of the plaintiff. As we have already shown, the plaintiffs oral evidence is not trustworthy and it is not possible to believe that he had paid Rs. 30,000/- under this document.13. Plaintiffs claim to have a prior charge over defendant no. 6 arises from the claim that this agreement to sell (Ext. 49) is a genuine document. We have pointed out serious deficiencies in the evidence of the plaintiff, which go to show that there must not have been a genuine transaction for sale of property. It appears from the judgment of the High Court that on inspection of the books of account it was possible to discover that these were loan transactions and that actual deductions by way of interest had been made before payment. We cannot take notice of what the learned Judges found on going through the account books because they were not evidence. But even otherwise, if that finding is correct, we do not see how the document against which these loans had been made can be described as a genuine document to sell immovable property. We are not concerned to decide whether Ext. 49 embodied a loan transaction. In our opinion, the transaction was not an agreement to sell immovable property; which alone would have attracted the statutory charge under Section 55 (6) (b) of the Transfer of Property Act. And if the plaintiff does not get a charge over the property, it should follow that there is no prior charge against defendant no. 6. | 1[ds]There was no question of any collusion because we find that defendant no. 6 filed an execution application against defendant no. 1 and took out a warrant for the attachment of defendant no. 1s movables. To avoid the ignominy which an actual execution of the warrant would have brought on defendant no. l, the latter hurried to give possession of house no. 108 in Mangalwar Peth to defendant no. 6 which under the award decree he was bound to sell to defendant no. 6. It is true that defendant no. 1 and defendant no. 6 were related, though distantly, but it cannot be ignored that the matters between them had come to such a head that defendant no 6 Hardas had come all the way from Amaravati to Poona to take out execution against defendant no. 1 in satisfaction of his decree. Under the pressure of execution he had also obtained possession of one of the houses belonging to defendant no. 1. There was no question thereafter of any cordiality between defendant no. 1 and defendant no. 6. It is suggested on his behalf that the agreement to sell in favour of the plaintiff must have come into existence at about this time, the sole object of the document being merely to defeat his claims. It must be noted here that defendant no 6 had to file an application to raise the attachment levied by one other creditor who had been made defendant no. 7 in the suit and actually the attachment was raised at his instance onThe award decree had directed that defendant no. 1 should sell house premises 108 Mangalwar Peth to defendant no 6. So after the first petition of execution had been disposed of ondefendant no. 6 filed a second execution petition onand had demanded the execution of the sale deed of the property of which he was now in possession in accordance with the award decree. A point to be noted is that it is at this stage that defendant no. l receives a notice from the plaintiff datedLearned counsel for the appellant has asked us to note these particular facts, namely, that this agreement to sell sees the light of the day for the first time when defendant no. 6 was seriously prosecuting his claim against defendant no. 1 filing execution petitions one after the other. We have felt no hesitation in agreeing with the High Court that the transactions between defendant no. 1 and defendant no. 6 were genuine transactions and the award decree was also equally genuine. The trial court has held that if the award decree is held to be not collusive then there is no evidence to show on behalf of the plaintiff that defendant no. 6, who was a resident of Amaravati, had any notice of the alleged agreement to sell. We agree with that finding also.7. Since defendant no. 1 did not contest the claim of the plaintiff and the plaintiffs claim against the minor sons of defendant no. 1 has also been finally dismissed, it would not have been necessary to examine the genuineness of the alleged agreement to sell (Ext. 49) but for the fact that the High Court has declared that plaintiff gets a prior charge as against defendant no. 6s charge under the award decree. It is contended on behalf of the appellant (Hardas) that in order to claim a charge on the property under Section 55 (6) (b) of the Transfer of Property Act, there must be a genuine transaction of an agreement to sell, and if there is no genuine transaction there could be no statutory charge under that provision. The issue as to whether the transaction was a genuine one or not was before the trial court as well as, in appeal, in the High Court. The trial court held that there was no genuine transaction. The Appellate Court held there was and we have to see which view is correct.8. In the first place, the document (Ext. 49) makes very strange reading. It says that there were two mortgages, one of Pendse and the other of Ranabhor and the total amount due thereon was about Rs.The dates of these mortgages are not mentioned. Then it proceeds to say that the vendor had decided to sell the property for Rs. 50,000/out of which the vendor had received Rupees 30,000/as earnest money The document reads as if Rs .30.000/had been received in cash by the vendor at the time of the execution of the document. One years time is given for executing the sale deed and then it proceeds to say "we will clear away all debts and liabilities as above described and render the property absolutely free from all encumbrances and execute a sale deed at our cost in your favour or in favour of any other party nominated or assigned by you." In other words, there is no stipulation that out of Rs. 30,000/that had been received by the vendor he should first pay off the mortgages. Where a vendor is serious about taking a sale deed and knows that property is under mortgage he generally takes upon himself to pay off the mortgages out of the amount payable to the vendor or, in any case, insists that the mortgages may be paid off immediately so that the burden on the property may not increase. Secondly, it sounds rather extraordinary that where the price is fixed as Rs. 50,000/the vendee should make a payment of Rs. 30,000/without any security for his money except this unregistered agreement. The matter becomes more curious when the plaintiff in his evidence says that Jangli was not a friend of his but just an acquaintance and the plaintiff himself was not even aJangli was not able to sell the property within the first year. So the time was extended by six months. Even after those six months the sale deed was not passed and then the plaintiff extends the period by one more year and all this time the plaintiff knows that the previous mortgages have not been paid off and his own amount of Rs. 30,000/does not bear any interest. It is extraordinary that the plaintiff who pays Rs. 30,000/as earnest money to a mere acquaintance would not even stipulate for interest on that amount if the document was not executed in time, with his eyes open, the plaintiff extends the time for executing the sale deed. He had the balance of Rs. 20,000/ with him at the time and if he was really serious about the transaction he could have himself paid off the mortgages but he does not do anything of the kind.On the face of it, therefore, the document does not impress one as being a genuine transaction for sale of property.9. This was a property in Poona. The plaintiff had known that there were mortgages on this property. It does not appear that the plaintiff made any enquiries about these mortgages. No doubt he says in his evidence that he had enquired from the mortgagees but these very mortgagees, who were called as his witnesses, did not say that any enquiries had been made with them. Admittedly the plaintiff did not give public notice before purchase in order to see if there are any claims against the property or objections to the sale. According to him, just two or three days before the document, the vendor had approached him and thereupon he decided to purchase the property for Rs.Asked how he fixed the price at Rs. 50,000/he said that one contractor Ambekar had told him that the property was worth Rs. 52,000/or Rs. 53,000/ and so he agreed to pay Rs.This contractor was not examined and it is admitted that the contractor did not make any written estimate of the value. In his evidence he tried to make out that he had made all necessary enquiries before purchase by asking: the mortgagees and consulting a lawyer named Mr. Bankar. According to him Mr. Bankar was to make enquiries in the City Survey Office. He admitted that Mr. Bankar did not give any opinion in writing nor was Mr. Bankar examined as a witness. It is hence, clear, that no enquiries were made as to the title of the property. The plaintiff also admits that he could not say how much rent was received from the property. In a place like Poona it is impossible to believe that anybody will offer to buy house premises without making detailed enquiry whether there are any tenants in the premises or not and if there are, what rents are being paid. His whole case in the evidence that he had made all enquiries with regard to a clear title is belied by the notice he had given before filing the suit. In this notice he had clearly charged defendant no. 1 that the latter had not satisfied him about a marketable title. In the plaint also in two or three places he alleged that defendant no. 1 had not satisfied him with regard to the title to the property.We have no doubt, whatsoever, that the plaintiff had made no enquiries regarding the premises, its occupants, the rents received or the incumbrances to which they were subject. He did not make enquiries as to the proper price. All this does not speak of a genuine desire to purchase house property infather is not examined in the case nor do we have any evidence to show that the father had at any time made an advance of Rs.It is said by the plaintiff that that payment was also made by cheque but neither of the two cheques or their counterfoils have been produced in court. Nothing would have been easier than to show that these various amounts had been paid by cheque. In any case, if there were really three connected transactions like these, not for small amounts, but amounts running into thousands, it is impossible to believe that the document itself will not show how the previous amounts forming part of Rs. 30,000/had been discharged. In thethe plaintiff came into further difficulties. Having said that two sums of Rs. 12,000/and Rs. 4,500/had been paid by him and his father to defendant no. 1 by chequeand the cheques were not forthcoming,he started wriggling out in theby saying that the cheques had not been actually issued by him and his father for those amounts but that defendant no. 1 himself had given cheques to them and against the security of those cheques those two items had been paid. The obvious conclusion from that would be that the plaintiff and his father must have encashed the cheques given by defendant no. 1 and reimbursed themselves against the accommodation loans, because the plaintiff is very firm that he had not charged any interest nor was he aIn that case there would be no prior debt payable by defendant no. 1 to the plaintiff or his father, in which case the whole of Rs. 30,000/must be deemed to have been paid on the date of the agreement itself. If, on the other hand, the plaintiff and his father were not able to encash the two cheques given by defendant no. 1 then some mention of these cheques would have been made in the agreement itself; secondly if they were not able to encash those cheques, it is difficult to believe that on the date of the execution of the deed the plaintiff would still pay in cash Rs. 13,500/and all those amounts without interest. The whole story appears to be so fantastic that we must say that the plaintiff is not telling the court the truth about the matter and his oral testimony is really of no value.11. Admittedly he had no evidence about the payment of the money except his books of account. He did not produce his books of account at the hearing because if they had been produced the originals would have been exhibited. He referred to some extracts of accounts which he said he had himself prepared from his account books. There is no evidence that any of the contesting defendants agreed to these copies of extracts of account going in evidence. It would appear that even these extracts were not exhibited at the time of the trial but accepted by the learned Judge after the trial was over when the judgment was written some months later. It does not also appear that these extracts were verified in the office by any ministerial officer of the court, because the usual practice is that when original books of account are produced in court and they are required for daily use, extracts are produced in court, and after their verification with the originals by a ministerial officer of the court the originals are allowed to be taken away, to be produced again at the time of the hearing. The extracts produced in this case do not show that they had been verified with the originals by any ministerial officer of the court. The High Court observed in its judgment that it was more than likely that the plaintiff had produced the books of account in court and for this support was derived from the fact that during theno questions have been put to the plaintiff in connection with the entries in the account books. We are afraid this is a wrong approach. If the plaintiff does not produce his original books of account in court and does not give evidence after referring to the entries therein, there is no obligationin fact it will be wrongon the part of the learned counsel for the opposite side to ask questions with regard to the entries in the books of account. It is true that the plaintiff had said that he had produced extracts and that these extracts were true copies of the originals. But counsel for the other side need not take any notice of this statement because that statement does not prove the books of account. If the learned Judge were satisfied with the extracts at the time and had decided to exhibit the same, counsel would have promptly objected to the same being done in the absence of the originals.It must be, therefore, held that the books of account had not been produced in court and the extracts were inadmissible in evidence.12. The High Court saw this difficulty and asked the plaintiff to produce these books of account for the courts inspection. It further appears that the learned Judges went through the original books of account and straightway relying on them held that the whole of the earnest money must have been received by defendant no. 1. Strong objection is taken by learned counsel for the appellant to the manner in which an important point has been disposed of. In fact this was letting in fresh evidence without giving the parties an opportunity tothe witness with regard to the books of account or the truthfulness of the entries. We agree that the High Court was not justified in looking into the books of account which had not been put in as evidence in the trial court. The High Court has suggested that the appellant had a duty to call the books of account for inspection in the trial court. One really does not see the point of this. The plaintiff was proving his case both with regard to the execution of the document and the money he had paid under it. Apart from his own word there was no other evidence except the evidence of books of account These books of account ought to have been produced by him to corroborate his own oral evidence. If he does not produce the books of account, the other side was under no obligation to call on the plaintiff to produce them for their inspection. Indeed, if the plaintiff had given intimation that he was going to rely on his books of account and had offered to give inspection of the same to the other side that would have been a different matter. We must, therefore, proceed in this case on the footing that the books of account had not been proved in the trial court and the High Court was not justified in looking into these books and deciding about their correctness without giving an opportunity to the other side to challenge them by theof the plaintiff. As we have already shown, the plaintiffs oral evidence is not trustworthy and it is not possible to believe that he had paid Rs. 30,000/under this document.13. Plaintiffs claim to have a prior charge over defendant no. 6 arises from the claim that this agreement to sell (Ext. 49) is a genuine document. We have pointed out serious deficiencies in the evidence of the plaintiff, which go to show that there must not have been a genuine transaction for sale of property. It appears from the judgment of the High Court that on inspection of the books of account it was possible to discover that these were loan transactions and that actual deductions by way of interest had been made before payment. We cannot take notice of what the learned Judges found on going through the account books because they were not evidence. But even otherwise, if that finding is correct, we do not see how the document against which these loans had been made can be described as a genuine document to sell immovable property. We are not concerned to decide whether Ext. 49 embodied a loan transaction. In our opinion, the transaction was not an agreement to sell immovable property; which alone would have attracted the statutory charge under Section 55 (6) (b) of the Transfer of Property Act. And if the plaintiff does not get a charge over the property, it should follow that there is no prior charge against defendant no. 6. | 1 | 5,576 | 3,215 | ### Instruction:
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have been exhibited. He referred to some extracts of accounts which he said he had himself prepared from his account books. There is no evidence that any of the contesting defendants agreed to these copies of extracts of account going in evidence. It would appear that even these extracts were not exhibited at the time of the trial but accepted by the learned Judge after the trial was over when the judgment was written some months later. It does not also appear that these extracts were verified in the office by any ministerial officer of the court, because the usual practice is that when original books of account are produced in court and they are required for daily use, extracts are produced in court, and after their verification with the originals by a ministerial officer of the court the originals are allowed to be taken away, to be produced again at the time of the hearing. The extracts produced in this case do not show that they had been verified with the originals by any ministerial officer of the court. The High Court observed in its judgment that it was more than likely that the plaintiff had produced the books of account in court and for this support was derived from the fact that during the cross-examination no questions have been put to the plaintiff in connection with the entries in the account books. We are afraid this is a wrong approach. If the plaintiff does not produce his original books of account in court and does not give evidence after referring to the entries therein, there is no obligation - in fact it will be wrong - on the part of the learned counsel for the opposite side to ask questions with regard to the entries in the books of account. It is true that the plaintiff had said that he had produced extracts and that these extracts were true copies of the originals. But counsel for the other side need not take any notice of this statement because that statement does not prove the books of account. If the learned Judge were satisfied with the extracts at the time and had decided to exhibit the same, counsel would have promptly objected to the same being done in the absence of the originals.It must be, therefore, held that the books of account had not been produced in court and the extracts were inadmissible in evidence.12. The High Court saw this difficulty and asked the plaintiff to produce these books of account for the courts inspection. It further appears that the learned Judges went through the original books of account and straightway relying on them held that the whole of the earnest money must have been received by defendant no. 1. Strong objection is taken by learned counsel for the appellant to the manner in which an important point has been disposed of. In fact this was letting in fresh evidence without giving the parties an opportunity to cross-examine the witness with regard to the books of account or the truthfulness of the entries. We agree that the High Court was not justified in looking into the books of account which had not been put in as evidence in the trial court. The High Court has suggested that the appellant had a duty to call the books of account for inspection in the trial court. One really does not see the point of this. The plaintiff was proving his case both with regard to the execution of the document and the money he had paid under it. Apart from his own word there was no other evidence except the evidence of books of account These books of account ought to have been produced by him to corroborate his own oral evidence. If he does not produce the books of account, the other side was under no obligation to call on the plaintiff to produce them for their inspection. Indeed, if the plaintiff had given intimation that he was going to rely on his books of account and had offered to give inspection of the same to the other side that would have been a different matter. We must, therefore, proceed in this case on the footing that the books of account had not been proved in the trial court and the High Court was not justified in looking into these books and deciding about their correctness without giving an opportunity to the other side to challenge them by the cross-examination of the plaintiff. As we have already shown, the plaintiffs oral evidence is not trustworthy and it is not possible to believe that he had paid Rs. 30,000/- under this document.13. Plaintiffs claim to have a prior charge over defendant no. 6 arises from the claim that this agreement to sell (Ext. 49) is a genuine document. We have pointed out serious deficiencies in the evidence of the plaintiff, which go to show that there must not have been a genuine transaction for sale of property. It appears from the judgment of the High Court that on inspection of the books of account it was possible to discover that these were loan transactions and that actual deductions by way of interest had been made before payment. We cannot take notice of what the learned Judges found on going through the account books because they were not evidence. But even otherwise, if that finding is correct, we do not see how the document against which these loans had been made can be described as a genuine document to sell immovable property. We are not concerned to decide whether Ext. 49 embodied a loan transaction. In our opinion, the transaction was not an agreement to sell immovable property; which alone would have attracted the statutory charge under Section 55 (6) (b) of the Transfer of Property Act. And if the plaintiff does not get a charge over the property, it should follow that there is no prior charge against defendant no. 6.
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the hearing because if they had been produced the originals would have been exhibited. He referred to some extracts of accounts which he said he had himself prepared from his account books. There is no evidence that any of the contesting defendants agreed to these copies of extracts of account going in evidence. It would appear that even these extracts were not exhibited at the time of the trial but accepted by the learned Judge after the trial was over when the judgment was written some months later. It does not also appear that these extracts were verified in the office by any ministerial officer of the court, because the usual practice is that when original books of account are produced in court and they are required for daily use, extracts are produced in court, and after their verification with the originals by a ministerial officer of the court the originals are allowed to be taken away, to be produced again at the time of the hearing. The extracts produced in this case do not show that they had been verified with the originals by any ministerial officer of the court. The High Court observed in its judgment that it was more than likely that the plaintiff had produced the books of account in court and for this support was derived from the fact that during theno questions have been put to the plaintiff in connection with the entries in the account books. We are afraid this is a wrong approach. If the plaintiff does not produce his original books of account in court and does not give evidence after referring to the entries therein, there is no obligationin fact it will be wrongon the part of the learned counsel for the opposite side to ask questions with regard to the entries in the books of account. It is true that the plaintiff had said that he had produced extracts and that these extracts were true copies of the originals. But counsel for the other side need not take any notice of this statement because that statement does not prove the books of account. If the learned Judge were satisfied with the extracts at the time and had decided to exhibit the same, counsel would have promptly objected to the same being done in the absence of the originals.It must be, therefore, held that the books of account had not been produced in court and the extracts were inadmissible in evidence.12. The High Court saw this difficulty and asked the plaintiff to produce these books of account for the courts inspection. It further appears that the learned Judges went through the original books of account and straightway relying on them held that the whole of the earnest money must have been received by defendant no. 1. Strong objection is taken by learned counsel for the appellant to the manner in which an important point has been disposed of. In fact this was letting in fresh evidence without giving the parties an opportunity tothe witness with regard to the books of account or the truthfulness of the entries. We agree that the High Court was not justified in looking into the books of account which had not been put in as evidence in the trial court. The High Court has suggested that the appellant had a duty to call the books of account for inspection in the trial court. One really does not see the point of this. The plaintiff was proving his case both with regard to the execution of the document and the money he had paid under it. Apart from his own word there was no other evidence except the evidence of books of account These books of account ought to have been produced by him to corroborate his own oral evidence. If he does not produce the books of account, the other side was under no obligation to call on the plaintiff to produce them for their inspection. Indeed, if the plaintiff had given intimation that he was going to rely on his books of account and had offered to give inspection of the same to the other side that would have been a different matter. We must, therefore, proceed in this case on the footing that the books of account had not been proved in the trial court and the High Court was not justified in looking into these books and deciding about their correctness without giving an opportunity to the other side to challenge them by theof the plaintiff. As we have already shown, the plaintiffs oral evidence is not trustworthy and it is not possible to believe that he had paid Rs. 30,000/under this document.13. Plaintiffs claim to have a prior charge over defendant no. 6 arises from the claim that this agreement to sell (Ext. 49) is a genuine document. We have pointed out serious deficiencies in the evidence of the plaintiff, which go to show that there must not have been a genuine transaction for sale of property. It appears from the judgment of the High Court that on inspection of the books of account it was possible to discover that these were loan transactions and that actual deductions by way of interest had been made before payment. We cannot take notice of what the learned Judges found on going through the account books because they were not evidence. But even otherwise, if that finding is correct, we do not see how the document against which these loans had been made can be described as a genuine document to sell immovable property. We are not concerned to decide whether Ext. 49 embodied a loan transaction. In our opinion, the transaction was not an agreement to sell immovable property; which alone would have attracted the statutory charge under Section 55 (6) (b) of the Transfer of Property Act. And if the plaintiff does not get a charge over the property, it should follow that there is no prior charge against defendant no. 6.
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Supreme Court Advocates-On-Record Association & Others Vs. Union of India | scheme, to achieve the constitutional purpose without conferring absolute discretion or veto upon either the judiciary or the executive, much less in any individual, be he the Chief Justice of India or the Prime Minister. 494. The norms developed in actual practice, which have crystallised into conventions in this behalf, as visualised in the speech of the President of the Constituent Assembly, are mentioned later. 495. TRANSFERS Every power vested in a public authority is to subserve a public purpose, and must invariably be exercised to promote public interest. This guideline is inherent in every such provision, and so also in Art.222. The provision requiring exercise of this power by the President only after consultation with the Chief Justice of India, and the absence of the requirement or consultation with any other functionary is clearly indicative of the determinative nature, not mere primacy, of the Chief Justice of Indias opinion in this matter. The entire gamut in respect of the transfer of Judges is covered by Union of India v. Sankal Chand Himatlal Sheth, (1978) 1 SCR 423 : (AIR 1977 SC 2328 ) and S. P. Gupta v. Union of India, (1982) 2 SCR 365 : (AIR 1982 SC 149 ). It was held by majority in both the decisions that there is no requirement of prior consent of the Judge before his transfer under Art.222. This power has been so exercised since then, and transfer of Chief Justices has been the ordinary rule. It is unnecessary to repeat the same. 496. The initiation of the proposal for the transfer of a Judge/ Chief Justice should be by the Chief Justice of India alone. This requirement in the case of a transfer is greater, since consultation with the Chief Justice of India alone is prescribed. However, in the case of Jammu and Kashmir, the special provision relating to that State must be kept in view, while initiating the proposal. 497. The power of transfer can be exercised only in public interest i.e. for promoting better administration of justice throughout the country. After adoption of the transfer policy, and with the clear provision for transfer in Art.222, any transfer in accordance with the recommendation of the Chief Justice of India cannot be treated as punitive or an erosion in the independence of judiciary. Such Judges as may be transferred hereafter will have been, for the most part, initially appointed after the transfer policy was adopted and judicially upheld by this Court. There will be no reason for any of them to even think that his transfer is punitive, when it is made in accordance with the recommendation of the Chief Justice of India. In his case, transfer was an obvious incident of his tenure. This applies equally to all Judges appointed after the adoption of the transfer policy, irrespective of whether they gave an undertaking to go on transfer or not. 498. The Constituent Assembly Debates indicate that the High Court Judges were intended to constitute an All India Cadre. This position cannot now be doubted after adoption of the policy of appointing Chief Justices from outside and the maintenance of an All India seniority based on the date of initial appointment, treating all High Courts as equal. If the transfer of a Judge on appointment as Chief Justice is not punitive, there is no occasion to treat the transfer of any other Judge as punitive. 499. There is nothing in Art.222 to require the consent of a Judge / Chief Justice for his first or even a subsequent transfer. Since his consent is not read as a requirement for the first transfer, there is no reason to require his consent for any subsequent transfer, according to the same provision. The power under Art.222 is available throughout the tenure of a High Court Judge/Chief Justice, and it is not exhausted after the first transfer is made. The contrary view in S. P. Gupta (AIR 1982 SC 149 ) has no basis in the Constitution. It is reasonable to assume that the Chief Justice of India will recommend a subsequent transfer only in public interest, for promoting better administration of justice throughout the country, or at the request of the concerned Judge. As indicated, at least now, after the lapse of more than a decade since the decision In S. P. Gupta there is no reason to treat any transfer as punitive; and, therefore, the observation in S. P. Gupta that a punitive transfer is impermissible has no application any more. As indicated by us later, a transfer made in accordance with the recommendation of the Chief Justice of India, is not justiciable. 500. Promotion of public interest by proper functioning of the High Courts and, for that reason, the transfer of any Judge / Chief Justice from one High Court to another must be the lodestar for the performance of this duty enjoined on the Chief Justice of India, as the head of the Indian Judiciary. Suitable norms, including those indicated hereafter, must be followed by the Chief Justice of India, for his guidance, while dealing with individual cases. 501. MEANING OF PRESIDENT The expression President in Art.124(2), 217(1) and 222 means the President acting on the aid and advice of the Council of Ministers in accordance with Art.74(1); and the advice given by the Council of Ministers has to be in accordance with the concept of the primacy of the Chief Justice of India and the other norms indicated herein, to accord with the mandate in the Constitution. A fortiori the advice given by the Council of Ministers according to the Constitution binds the President and, therefore, the advice must accord with the principles indicated herein. 502. NORMS The absence of specific guidelines in the enacted provisions appears to be deliberate, since the power is vested in high constitutional functionaries and it was expected of them to develop requisite norms by convention in actual working as envisaged in the concluding speech of the President of the Constituent Assembly. The | 1[ds]questions have to be considered in the context of the independence of the judiciary, as a part of the basic structure of the Constitution, to secure the rule of law, essential for the preservation of the democratic system. The broad scheme of separation of powers adopted in the Constitution, together with the directive principle of separation of judiciary from executive even at the lowest strata, provide some insight to the true meaning of the relevant provisions in the Constitution relating to the composition of the judiciary. The construction of those provisions must accord with these fundamental concepts in the constitutional scheme to preserve the vitality and promote the growth essential for retaining the Constitution as a vibrant organism.449. It is, therefore, realistic that there has to be room for discretionary authority within the operation of the rule of law, even though it has to be reduced to the minimum extent necessary for proper governance; and within the area of discretionary authority, the existence of proper guidelines or norms of general application excludes any arbitrary exercise of discretionary authority. In such a situation, the exercise of discretionary authority in its application to individuals, according to proper guidelines or norms, further reduces the area of discretion; but to that extent discretionary authority has to be given to make the system workable. A further check in that limited sphere is provided by the conferment of the discretionary authority not to one individual but to a body of men, requiring the final decision to be taken after full interaction and effective consultation between them, to ensure projection of all likely points of view and procuring the element of plurality in the final decision with the benefit of the collective wisdom of all those involved in the process. The conferment of this discretionary authority in the highest functionaries is a further check in the same direction. The constitutional scheme excludes the scope of absolute power in any one individual. Such a construction of the provisions also, therefore, matches the constitutional scheme and the constitutional purpose for which these provisioned were enacted452. The need for judicial determination of this controversy has arisen only because the warning of Dr. Rajendra Prasad does not appear to have been duly heeded by the functionaries entrusted with the constitutional obligation of properly composing the higher judiciary, and ensuring its satisfactory consultation with the Chief Justice of India as functioning, for the administration of justice in the country. The adverse consequence of the head of the Indian Judiciary, for this failure is manifested in many ways453. It is well known that the appointment of superior, Judges is from amongst persons of mature age with known background and reputation in the legal profession. By that time the personality is fully developed and the propensities and background of the appointee are well known. The collective wisdom of the constitutional functionaries involved in the process of appointing superior Judges is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful persons gain entry. It is not unlikely that the care and attention expected from them in the discharge of this obligation has not been bestowed in all cases. It is, therefore, time that all the constitutional functionaries involved in the process of appointment of superior Judges should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment can be made. This is not difficult to achieve454. The question of primacy of the role of the Chief Justice of India in the context of appointment of Judges in the Supreme Court and the High Courts must be considered in this backdrop for the proper picture of the constitutional scheme to emerge from the mixture of various hues, to achieve the constitutional purpose of selecting the best available for composition of the Supreme Court and the High Courts, so essential to ensure the independence of the judiciary, and, thereby, to preserve democracy. A fortiori any construction of the constitutional provisions which conflicts with this constitutional purpose or negates the avowed object has to be eschewed, being opposed to the true meaning and spirit of the Constitution and, therefore, an alien concept455. It is with this perception that. the nature of primacy, if any, of the Chief Justice of India, in the present context, has to be examined in the constitutional scheme. The hue of the word consultation, when the consultation with the Chief Justice of India as the head of the Indian Judiciary, for the purpose of composition of higher judiciary, has to be distinguished from the colour the same word consultation may take in the context of the executive associated in that process to assist in the selection of the best available material.true significance of this stand of the Government of India is, that in the actual working of this process, even the executive attaches primacy to the role of the Chief Justice of India in the matter of appointments to the superior judiciary, notwithstanding the decision in S. P. Gupta that the primacy is with the Government of India and not in the Chief Justice of India.463. The primacy of one constitutional functionary qua the others, who together participate in the performance of this function assumes significance only when they cannot reach an agreed conclusion. The debate is academic, when a decision is reached by agreement taking into account the opinion of every one participating together in the process, as primarily intended. The situation of a difference at the end, raising the question of primacy is best avoided by each constitutional functionary remembering that all of them are participants in a joint venture, the aim of which is to find out and select the most suitable candidate for appointment, after assessing the comparative merit of all those available. This exercise must be performed as a pious duty to discharge the constitutional obligation imposed collectively on the highest functionaries drawn from the executive and the judiciary, in view of the great significance of these appointments. The common purpose to be achieved points in the direction that emphasis has to be on the importance of the purpose and not on the comparative importance. Of the participants working together to achieve the purpose. Attention has to be focussed on the purpose to enable better appreciation of the significance of the role of each participant, with the consciousness that each of them has some inherent limitation, and it is only collectively that they constitute the selector464. The discharge of the assigned role by each functionary, viewed in the context of the obligation of each to achieve the common constitutional purpose in the joint venture will help to transcend the concept of primacy between them. However, if there be any disagreement even then between them which cannot be ironed out by joint effort, the question of primacy would arise to avoid stalemate.466. The aforementioned perception in all the constitutional functionaries associated in the integrated participatory consultative process to achieve the avowed common purpose should ordinarily prevent the situation when the question of primacy arises; and in the exceptional cases when it does arise, the functionary having primacy would do well to respect the viewpoint of others and recall that it implies the carrying by him of a greater burden. This will ensure better performance of the role with primacy, in the proper spirit, and will make it easier for the others to accept the primacy.appointment of Judges to the Supreme Court and the High Courts is made by the President and is, therefore, ultimately an executive act. Art.74(1) clearly provides, and the proviso inserted therein by the Constitution (Forty fourth Amendment) Act, 1978 reinforces, that the President, in exercise of his functions, shall act in accordance with the advice tendered by the Council of Ministers. If Arts.124(2) and 217(1) provided for appointments of judges by the President without obligatory consultation with the functionaries specified therein, then, by virtue of the full effect of Art.74, there would be no room for any controversy that the appointments were not to be made by the executive in its absolute discretion.470. Thus, even under the Government of India Act, 1935, appointments of Judges of the Federal Court and the High Courts were in the absolute discretion of the Crown or, in other words, of the executive, with no specific provision for consultation with the Chief Justice in the appointment process. The consultation, if any, with the Chief Justice under the Government of India Acts was merely to enable the executive to take into account that view, if it so desired, but prior consultation with the Chief Justice was not an essential prerequisite471. When the Constitution was being drafted, there was general agreement that the appointments of Judges in the superior judiciary should not be left to the absolute discretion of the executive, and this was the reason for the provision made in the Constitution imposing the obligation to consult the Chief Justice of India and the Chief Justice of the High Court. This was done to achieve independence of the Judges of the superior judiciary even at the time of their appointment, instead of confining it only to the provision of security of tenure and other conditions of service after the appointment was made. It was realised that the independence of the judiciary had to be safeguarded not merely by providing security of tenure and other conditions of service after the appointment, but also by preventing the influence of political considerations in making the appointments, if left to the absolute discretion of the executive as the appointing authority. It is this reason which implied the incorporation of the obligation of consultation with the Chief Justice of India and the Chief Justice of the High Court in Art.124(2) and 217(1). The Constituent Assembly Debates disclose this purpose in prescribing for or such consultation, even though the appointment is ultimately executive act.472. This clear departure in the constitutional scheme from the earlier pattern in the Government of India Acts, wherein the appointments were in the absolute discretion of the Crown is a sure indication that irrespective of the question of primacy of the Chief Justice of India in the matter of appointments, the constitutional provisions cannot be construed to read therein the absolute discretion or primacy of the Government of India to make appointments of its choice, after completing formally the requirement of consultation, even if the opinion given by the consultees of the judiciary is to the contrary. In our opinion this departure made in the Constitution of India from the earlier scheme under the Government of India Acts is itself a strong circumstance to negative the view that in the constitutional scheme primacy is given to the opinion of the Government of India, notwithstanding the mandate of obligatory consultation with the Chief Justice of India in all cases, and also with the Chief Justice of the High Court in the case of appointment to a High Court473. The consideration must, therefore, be confined to the comparative weight to be attached to the opinion of the Chief Justice of India vis a vis the opinion of the other consultees and the Central Government.474. It follows that the view of Bhagwati, J. (as he then was) in S. P. Gupta (1982 (2) SCR 365 : AIR 1982 SC 149 ) which reflects the majority opinion therein, at least to the extent indicated hereafter, conflicts with this constitutional scheme, and, with respect, does not appear to be a correct construction of the provisions in Art.124(2) and 217(1). Certain portions from the opinion of Bhagwati, J. to this effect are as under :-............... It is clear on a plain reading of these two Articles that the Chief Justice of India, the Chief Justice of the High Court and such other Judges of the High Courts and of the Supreme Court as the Central Government may deem it necessary to consult are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government........ It would therefore be open to the Central Government to override the opinion given by the constitutional functionaries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge in the High Court or the Supreme Court,.......... Even if the opinion given by all the constitutional functionaries consulted by it is identical the Central Government is not bound to act in accordance with such opinion. ........475. It is obvious, that the provision - for consultation with the Chief Justice of India and, in the case of the High Courts, with the Chief Justice of the High Court was introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of the candidate, and his suitability for appointment as a superior Judge; and it was also necessary to eliminate political influence even at the stage of the initial appointment of a Judge, since the provisions for securing his independence after appointment were alone not sufficient for an independent judiciary. At the same time, the phraseology used indicated that giving absolute discretion or the power of veto to the Chief Justice of India as an individual in the matter of appointments was not considered desirable, so that there should remain some power with the executive to be exercised as a check, whenever necessary. The indication is that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated. It was for this reason that the word consultation instead of concurrence was used, but that was done merely to indicate that absolute discretion was not given to any one not even to the Chief Justice of India an individual much less to the executive which earlier had absolute. discretion under the Government of India Acts.476. The primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India Who, as earlier stated, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion. However, if conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises. For reasons indicated earlier, primacy to the executive is negatived by the historical change and the nature of functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief Justice of India, unless for very good reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable.479. The majority view in S. P. Gupta (AIR 1982 SC 149 ) to the effect that the executive should have primacy, since it is accountable to the people while the judiciary has no such accountability, is an easily exploded myth, a bubble which vanishes on a mere touch. Accountability of the executive to the people in the matter of appointments of Superior Judges has been assumed, and it does not have any real basis. There is no occasion to discuss the merits of any individual appointment in the legislature on account of the restriction imposed by Art.121 and 211 of the Constitution. Experience has shown that it also does not form a part of the manifesto of any political party, and is not a matter which is, or can be, debated during the election campaign. There is thus no manner in which the assumed accountability of the executive in the matter of appointment of an individual Judge can be raised, or has been raised at anytime. On the other hand, in actual practice, the Chief Justice of India and the Chief Justice of the High Court being responsible for the functioning of the Courts, have to face the consequence of any unsuitable appointment which gives rise to criticism levelled by the ever vigilant Bar. That controversy is raised primarily in the Courts. Similarly, the Judges of the Supreme Court and the High Courts, whose participation is involved with the Chief Justice in the functioning of the Courts, and whose opinion is taken into account in the selection process, bear the consequences and become accountable. Thus, in actual practice, the real accountability in the matter of appointments of superior Judges is of the Chief Justice of India and the Chief Justices of the High Courts, and not of the executive which has always held out, as it did even at the hearing before us, that, except for rare instances, the executive is guided in the matter of appointments by the opinion of the Chief Justice of India.480. If that is the position in actual practice of the constitutional provisions relating to the appointments of the superior Judges, wherein the executive itself holds out that it gives primacy to the opinion of the Chief Justice of India, and in the matter of accountability also it indicates the primary responsibility of the Chief Justice of India, it stands to reason that the actual practice being in conformity with the constitutional scheme, should also be accorded legal sanction by permissible constitutional interpretation. This reason given by the majority in S. P. Gupta (AIR 1982 SC 149 ) for its view, that the executive has primacy, does not withstand scrutiny, and is also not in accord with the existing practice and the perception even of the executive.481. However, it need hardly be stressed that the primacy of the opinion of the Chief Justice of India in this context is, in effect, primacy of the opinion of the Chief Justice of India formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion.482. In view of the provision in Art.74(1), the expression President in Art.124(2) and 217(1) means the President acting in accordance with the advice of the Council of Ministers with the Prime Minister at the head; and the advice given by the Council of Ministers has to accord with the mandate in the Constitution, or, in other words, with the construction made of Art.124(2) and 217(1) by this Court, in discharge of its constitutional duty to interpret the Constitution. A fortiori, advice given by the Council of Ministers which binds the President and requires him to act in accordance therewith, has to be the advice given in accordance with the constitutional provisions, as interpreted by this Court483. If it were to be held that, notwithstanding the requirement of Art.124(2) and 217(1) of mandatory consultation with the Chief Justice of India and Chief Justice of the High Court, the Council of Ministers has the unfettered discretion to give contrary advice, ignoring the views of the Chief Justice of India, and the President is bound by Art.74(1) to act in accordance with that advice, then constitutional purpose of introducing the mandatory requirement of consultation in Art.124(2) and 217(1) would be frustrated. It is for this reason, that in the matter of appointments of Judges of the superior judiciary, the interaction and harmonisation of Art.74(1) with Art.124(2) and 217(1) has to be borne in mind, to serve the constitutional purpose. In short, in the matter of appointments of Judges of the superior judiciary, the constitutional requirement is, that the President is to act in accordance with the advice of the Council of Ministers as provided in Art.74(1); and the advice of the Council of Ministers is to be given in accordance with Art.124(2) and 217(1), as construed by this Court. In this sphere, Art.74(1) is circumscribed by the requirement of Art.124(2) and 217(1), and all of them have to be read together484. The above view also accords with the provisions in the Constitution pertaining to the removal from office of Judges of the Supreme Court and the High Courts. The removal of a Supreme Court Judge in accordance with clauses (4) and (5) of Art.124, and of a High Court Judge similarly, as provided in Art.218, requires a different scheme to be followed, to which Art.74(1), in terms does not apply. It cannot be suggested that the President, while making an order removing a Judge of the Supreme Court or of a High Court, is to be governed entirely by the advice of the Council of Ministers in accordance with Art.74(1), ignoring the special provisions relating to the removal of a Judge, incorporated in the Constitution. Similarly, in the case of appointments, the special provision prescribing the process for appointment is of significance, and Art.74(1) has to be read along therewith, and not in isolation, to make the correct construction485. The question of primacy of the role of the Chief Justice of India has to be examined not merely with reference to the fact that an appointment is an executive act, or with reference only to the comparative constitutional status of the different consultees involved in the process, but with reference also to the constitutional purpose sought to be achieved by these provisions, and the manner in which that purpose can be best achieved486. Providing for the role of the judiciary as well as the executive in the integrated process of appointment merely indicates, that it is a participatory consultative process, and the purpose is best served if at the end of an effective consultative process between all the consultees the decision is reached by consensus, and no question arises of giving primacy to any consultee. Primarily, it is this indication which is given by the constitutional provisions, and the constitutional purpose would be best served if the decision is made by consensus without the need of giving primacy to any one of the consultees on account of any difference remaining between them. The question of primacy of the opinion of any one of the constitutional functionaries qua the others would arise only if the resultant of the consultative process is not one opinion reached by consensus487. The constitutional purpose to be served by these provisions is to select the best from amongst those available for appointment as Judges of the superior judiciary, after consultation with those functionaries who are best suited to make the selection. It is obvious that only those persons should be considered fit for appointment as Judges of the superior judiciary who combine the attributes essential for making an able, independent and fearless Judge. Several attributes together combine to constitute such a personality. Legal expertise, ability to handle cases, proper personal conduct and ethical behaviour, firmness and fearlessness are obvious essential attributes of a person suitable for appointment as a superior Judge. The initial appointment of Judges in the High Courts is made from the Bar and the subordinate judiciary. Appointment to the Supreme Court is mainly from amongst High Court Judges, and on occasion directly from the Bar. The arena of performance of those men are the Courts. It is, therefore, obvious that the maximum opportunity for adjudging their ability and traits is in the Courts and, therefore, the Judges are best suited to assess their true worth and fitness for appointment as Judges. This is obviously the reason for introducing the requirement of consultation with the Chief Justice of India in the matter of appointment of all Judges, and with the Chief Justice of the High Court in the case of appointment of a Judge in a High Court. Even the personal traits of the members of the Bar and the Judges are quite often fully known to the Chief Justice of India and the Chief Justice of the High Court who get such information from various sources. There may, however, be some personal trait of an individual lawyer or Judge, which may be better known to the executive and may be unknown to the Chief Justice of India and the Chief Justice of the High Court, and which may be relevant for assessing his potentiality to become a good Judge. It is for this reason, that the executive is also one of the consultees in the process of appointment. The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consultees before the appointment is made. It is the role assigned to the judiciary and the executive in the process of appointment of Judges which is the true index for deciding the question of primacy between them, in case of any difference in their opinion. The answer which best subserves this constitutional purpose would be the correct answer488. It has been indicated that the judiciary being best suited and having the best opportunity to assess the true worth of the candidates, the constitutional purpose of selecting the best available men for appointment as superior Judges is best served by ascribing to the judiciary, as a consultee, a more significant role in the process of appointment. The only question is of the extent of such significance and the true meaning of the primacy of the role of the Chief Justice of India in this context.489. It is of considerable significance that Bhagwati, J. (as he then was), after subscribing to the majority view in S. P. Gupta (AIR 1982 SC 149 ), speaking for the unanimous view of the Constitution Bench, in Ashok Kumar Yadav v. State of Haryana, (1985 (4) SCC 417 (AIR 1987 SC 454) , stated thus:-We would also like to point out that in some of the States, and the State of Haryana is one of them, the practice followed is to invite a retired Judge of the High Court as an expert when selections for recruitment to the Judicial Service of the State are being made and the advice given by such retired High Court Judge who participates in the viva voce test as an expert is sometimes ignored by the Chairman and members of the Public Service Commission. This practice is in our opinion undesirable and does not commend itself to us. When selections for the Judicial Service of the State are being made, it is necessary to exercise the utmost care to see that competent and able persons possessing a high degree of rectitude and integrity are selected, because if we do not have good, competent and honest Judges, the democratic polity of the State itself will be in serious peril. It is therefore essential that when selections to the Judicial Service are being made, a sitting Judge of the High Court to be nominated by, the Chief Justice of the State should be invited to participate in the interview as an expert and since such sitting Judge comes as an expert who, by reason of the fact that he is a sitting High Court Judge, knows the quality and character of the candidates appearing for the interview, the advice given by him should ordinarily be accepted, unless there are strong and cogent reasons for not accepting such advice and such strong and cogent reasons must be recorded in writing by the Chairman and members of the Public Service Commission. We are giving this direction to the Public Service Commission in every State because we are anxious that the final talent should be recruited in the Judicial Service and that can be secured only by having a real expert whose advice constitutes a determinative factor in the selection process.(Emphasis supplied)s 456 - 57) (of SCC)490. We respectfully agree with the above observation made in the context of the subordinate judiciary, and would add that it is even more true in the context of appointments made to the superior judiciary. The majority opinion of Bhagwati, J. in S. P. Gupta (AIR 1982 SC 149 ) must be read along with the above unanimous opinion of the Constitution Bench in Ashok Kumar Yadav (AIR 1987 SC 454 ).491. It has to be borne in mind that the principle of non arbitrariness which is an essential attribute of the rule of law is all pervasive throughout the Constitution; and an adjunct of this principle is the absence of absolute power in one individual in any sphere of constitutional activity. The possibility of intrusion of arbitrariness has to be kept in view, and eschewed, in constitutional interpretation and, therefore, the meaning of the opinion of the Chief Justice of India, in the context of primacy, must be ascertained. A homogenous mixture, which accords with the constitutional purpose and its ethos, indicates that it is the opinion of the judiciary symbolised by the view of the Chief Justice of India which is given greater significance or primary the matter of appointments. In other words the view of the Chief Justice of India is to be expressed in the consultative process as truly reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation. In actual practice, this is how the Chief Justice of India does, and is expected to function, so that the final opinion expressed by him is not merely his individual opinion, but the collective opinion formed after taking into account the views of some other Judges who are traditionally associated with this function.492. In view of the primacy of judiciary in this process, the question next is of the modality for achieving this purpose.The indication in the constitutional provisions is found from the reference to the office of the Chief Justice of India, which has been named for achieving this object in a pragmatic manner. The opinion of the judiciary symbolised by the view of the Chief Justice of India, is to be obtained by consultation with the Chief Justice of India; and it is this opinion which has primacy.492. In view of the primacy of judiciary in this process493. The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner. Entrustment of the task of appointment of superior Judges to high constitutional functionaries; the greatest significance attached to the view of the Chief Justice of India, who is best equipped to assess the true worth of the candidates for adjudging their suitability; the opinion of the Chief Justice of India being the collective opinion formed after taking into account the views of some of his colleagues; and the executive being permitted to prevent an appointment considered to be unsuitable, for strong reasons disclosed to the Chief Justice of India, provide the best method, in the constitutions scheme, to achieve the constitutional purpose without conferring absolute discretion or veto upon either the judiciary or the executive, much less in any individual, be he the Chief Justice of India or the Prime Minister.Every power vested in a public authority is to subserve a public purpose, and must invariably be exercised to promote public interest. This guideline is inherent in every such provision, and so also in Art.222. The provision requiring exercise of this power by the President only after consultation with the Chief Justice of India, and the absence of the requirement or consultation with any other functionary is clearly indicative of the determinative nature, not mere primacy, of the Chief Justice of Indias opinion in this matter. The entire gamut in respect of the transfer of Judges is covered by Union of India v. Sankal Chand Himatlal Sheth, (1978) 1 SCR 423 : (AIR 1977 SC 2328 ) and S. P. Gupta v. Union of India, (1982) 2 SCR 365 : (AIR 1982 SC 149 ). It was held by majority in both the decisions that there is no requirement of prior consent of the Judge before his transfer under Art.222. This power has been so exercised since then, and transfer of Chief Justices has been the ordinary rule. It is unnecessary to repeat the same.496. The initiation of the proposal for the transfer of a Judge/ Chief Justice should be by the Chief Justice of India alone. This requirement in the case of a transfer is greater, since consultation with the Chief Justice of India alone is prescribed. However, in the case of Jammu and Kashmir, the special provision relating to that State must be kept in view, while initiating the proposal497. The power of transfer can be exercised only in public interest i.e. for promoting better administration of justice throughout the country. After adoption of the transfer policy, and with the clear provision for transfer in Art.222, any transfer in accordance with the recommendation of the Chief Justice of India cannot be treated as punitive or an erosion in the independence of judiciary. Such Judges as may be transferred hereafter will have been, for the most part, initially appointed after the transfer policy was adopted and judicially upheld by this Court. There will be no reason for any of them to even think that his transfer is punitive, when it is made in accordance with the recommendation of the Chief Justice of India. In his case, transfer was an obvious incident of his tenure. This applies equally to all Judges appointed after the adoption of the transfer policy, irrespective of whether they gave an undertaking to go on transfer or not498. The Constituent Assembly Debates indicate that the High Court Judges were intended to constitute an All India Cadre. This position cannot now be doubted after adoption of the policy of appointing Chief Justices from outside and the maintenance of an All India seniority based on the date of initial appointment, treating all High Courts as equal. If the transfer of a Judge on appointment as Chief Justice is not punitive, there is no occasion to treat the transfer of any other Judge as punitive499. There is nothing in Art.222 to require the consent of a Judge / Chief Justice for his first or even a subsequent transfer. Since his consent is not read as a requirement for the first transfer, there is no reason to require his consent for any subsequent transfer, according to the same provision. The power under Art.222 is available throughout the tenure of a High Court Judge/Chief Justice, and it is not exhausted after the first transfer is made. The contrary view in S. P. Gupta (AIR 1982 SC 149 ) has no basis in the Constitution. It is reasonable to assume that the Chief Justice of India will recommend a subsequent transfer only in public interest, for promoting better administration of justice throughout the country, or at the request of the concerned Judge. As indicated, at least now, after the lapse of more than a decade since the decision In S. P. Gupta there is no reason to treat any transfer as punitive; and, therefore, the observation in S. P. Gupta that a punitive transfer is impermissible has no application any more. As indicated by us later, a transfer made in accordance with the recommendation of the Chief Justice of India, is not justiciable.500. Promotion of public interest by proper functioning of the High Courts and, for that reason, the transfer of any Judge / Chief Justice from one High Court to another must be the lodestar for the performance of this duty enjoined on the Chief Justice of India, as the head of the Indian Judiciary. Suitable norms, including those indicated hereafter, must be followed by the Chief Justice of India, for his guidance, while dealing with individual cases.expression President in Art.124(2), 217(1) and 222 means the President acting on the aid and advice of the Council of Ministers in accordance with Art.74(1); and the advice given by the Council of Ministers has to be in accordance with the concept of the primacy of the Chief Justice of India and the other norms indicated herein, to accord with the mandate in the Constitution. A fortiori the advice given by the Council of Ministers according to the Constitution binds the President and, therefore, the advice must accord with the principles indicated herein.absence of specific guidelines in the enacted provisions appears to be deliberate, since the power is vested in high constitutional functionaries and it was expected of them to develop requisite norms by convention in actual working as envisaged in the concluding speech of the President of the Constituent Assembly.primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judicial review of those decisions, which is ordinarily needed as a check against possible executive excess or arbitrariness. Plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias, even subconciously, of any individual. T he judicial element being predominant in the case of appointments, and decisive in transfers, as indicated, the need for further judicial review, as in other executive actions, is eliminated The reduction of the area of discretion to the minimum, the element of plurality of Judges in formation of the opinion of the Chief Justice of India, effective consultation writing, and prevailing norms to regulate the area of discretion are sufficient checks against arbitrariness504. These guidelines in the form of norms are not to be construed as conferring any justiciable right in the transferred Judge. Apart from the constitutional requirement of a transfer being made only on the recommendation of the Chief Justice of India, the issue of transfer is not justiciable on any other ground, including the reasons for the transfer of their sufficiency. The opinion of the Chief Justice of India formed in the manner indicated is sufficient safeguard and protection against any arbitrariness or bias, as well as any erosion of the independence of the judiciary505. This is also in accord with the public interest of excluding these appointments and transfers from litigative debate, to avoid any erosion in the credibility of the decisions, and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision. The growing tendency of needless intrusion by strangers and busy bodies in the functioning of the judiciary under the garb of public interest litigation, in spite of the caution in S. P. Gupta (AIR 1982 SC 149 ) while expanding the concept of locus standi, was adverted to recently by a Constitution Bench in Raj Kanwar, Advocates v. Union of India, (1992) 4 SCC 605. It is, therefore, necessary to spell out clearly the limited scope of judicial review in such matters, to avoid similar situations in future. Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the Chief Justice of India, these matters are not justiciable on any other ground, including that of bias, which in any case is excluded by the element of plurality in the process of decision making.Art.216 deals with constitution of High Courts. It provides that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. To enable proper exercise of this function of appointment of other Judges, it is necessary to make a periodical review of the Judge strength of every High Court with reference to the felt need for disposal of cases, taking into account the backlog and expected future filling. This is essential to ensure speedy disposal of cases, to secure that the operation of the legal system promotes justice a directive principle fundamental in the governance of the country which, it is the duty of the State to observe in all its actions; and to make meaningful the guarantee of fundamental rights in Part III of the Constitution. Accordingly, the failure to perform this obligation, resulting in negation of the rule of law by the laws delay must be justiciable, to compel performance of that duty507. Accordingly, it must be held that, fixation of Judge strength in a High Court is justiciable; and if it is shown that the existing strength is inadequate to provide speedy justice to the people - speedy trial being a requirement of Art.21 in spite of the optimum efficiency of the existing strength, a direction can be issued to assess the felt need and fix the strength of Judges commensurate with the need to fulfil the State obligation of providing speedy justice and to thereby secure that the operation of the legal system promotes justicea solemn resolve declared also in the preamble of the Constitution. In making the review of the Judge strength in High Court, the President must attach great weight to the opinion of the Chief Justice o the High Court and the Chief Justice of India, and if the Chief Justice of India so recommends, the exercise must be performed with! due despatch508. The decision in S. P. Gupta (AIR 1982 SC 149 ), taking the view that this matter is not justiciable to any extent does not commend itself to us as a correct exposition of the constitutional obligation in Art.216 of the Constitution, and the constitutional purpose of its enactment. This provision, like all constitutional provisions, is not to be construed in isolation, but as a part of the entire constitutional scheme, conforming to the constitutional purpose and its ethos. So construed, this matter is justiciable to the extent and in the manner indicated. Of course, the area of justiciability does not extend further, to enable the Court to make the review and fix the actual Judge strength itself, instead of requiring the performance of that exercise in accordance with the recommendation of the Chief Justice of India.Chief Justice of India or the Chief Justice of a High Court, as the case may be, is known to be primus inter partes i.e. first among equals while functioning judicially, but in matters other than judicial enjoys a unique position of status, rank and precedence by virtue of his office. This distinction is first borne in mind and then constitutionally kept alive, whenever he is referred to singularly in the Constitution in contrast to the word court, wherever occurring. It is on that basis that his role has an indivisibility of its own having a primal element.clearly no principle of consideration which would justify reading into the plain and simple words of Art.124(2) any additional words to suggest that the Chief justice of India as described therein is only in a symbolic sense, representing the judiciary. It cannot be said that the Chief Justice heads a monastic order, entry of which is regulated by the Order as a class, and its head merely a spokesman. No one can denude him of the role to which he is constitutionally entitled. Equally it is difficult for me to agree to a construction of the provision that the proposal initiated by him, or related to a High Court appointment, which passes through him, when approved by the executive goes as affirmance of his primacy. I would rather go by the scriptural thought that when one says and the other agrees, both be known as wise. | 1 | 103,653 | 8,119 | ### Instruction:
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scheme, to achieve the constitutional purpose without conferring absolute discretion or veto upon either the judiciary or the executive, much less in any individual, be he the Chief Justice of India or the Prime Minister. 494. The norms developed in actual practice, which have crystallised into conventions in this behalf, as visualised in the speech of the President of the Constituent Assembly, are mentioned later. 495. TRANSFERS Every power vested in a public authority is to subserve a public purpose, and must invariably be exercised to promote public interest. This guideline is inherent in every such provision, and so also in Art.222. The provision requiring exercise of this power by the President only after consultation with the Chief Justice of India, and the absence of the requirement or consultation with any other functionary is clearly indicative of the determinative nature, not mere primacy, of the Chief Justice of Indias opinion in this matter. The entire gamut in respect of the transfer of Judges is covered by Union of India v. Sankal Chand Himatlal Sheth, (1978) 1 SCR 423 : (AIR 1977 SC 2328 ) and S. P. Gupta v. Union of India, (1982) 2 SCR 365 : (AIR 1982 SC 149 ). It was held by majority in both the decisions that there is no requirement of prior consent of the Judge before his transfer under Art.222. This power has been so exercised since then, and transfer of Chief Justices has been the ordinary rule. It is unnecessary to repeat the same. 496. The initiation of the proposal for the transfer of a Judge/ Chief Justice should be by the Chief Justice of India alone. This requirement in the case of a transfer is greater, since consultation with the Chief Justice of India alone is prescribed. However, in the case of Jammu and Kashmir, the special provision relating to that State must be kept in view, while initiating the proposal. 497. The power of transfer can be exercised only in public interest i.e. for promoting better administration of justice throughout the country. After adoption of the transfer policy, and with the clear provision for transfer in Art.222, any transfer in accordance with the recommendation of the Chief Justice of India cannot be treated as punitive or an erosion in the independence of judiciary. Such Judges as may be transferred hereafter will have been, for the most part, initially appointed after the transfer policy was adopted and judicially upheld by this Court. There will be no reason for any of them to even think that his transfer is punitive, when it is made in accordance with the recommendation of the Chief Justice of India. In his case, transfer was an obvious incident of his tenure. This applies equally to all Judges appointed after the adoption of the transfer policy, irrespective of whether they gave an undertaking to go on transfer or not. 498. The Constituent Assembly Debates indicate that the High Court Judges were intended to constitute an All India Cadre. This position cannot now be doubted after adoption of the policy of appointing Chief Justices from outside and the maintenance of an All India seniority based on the date of initial appointment, treating all High Courts as equal. If the transfer of a Judge on appointment as Chief Justice is not punitive, there is no occasion to treat the transfer of any other Judge as punitive. 499. There is nothing in Art.222 to require the consent of a Judge / Chief Justice for his first or even a subsequent transfer. Since his consent is not read as a requirement for the first transfer, there is no reason to require his consent for any subsequent transfer, according to the same provision. The power under Art.222 is available throughout the tenure of a High Court Judge/Chief Justice, and it is not exhausted after the first transfer is made. The contrary view in S. P. Gupta (AIR 1982 SC 149 ) has no basis in the Constitution. It is reasonable to assume that the Chief Justice of India will recommend a subsequent transfer only in public interest, for promoting better administration of justice throughout the country, or at the request of the concerned Judge. As indicated, at least now, after the lapse of more than a decade since the decision In S. P. Gupta there is no reason to treat any transfer as punitive; and, therefore, the observation in S. P. Gupta that a punitive transfer is impermissible has no application any more. As indicated by us later, a transfer made in accordance with the recommendation of the Chief Justice of India, is not justiciable. 500. Promotion of public interest by proper functioning of the High Courts and, for that reason, the transfer of any Judge / Chief Justice from one High Court to another must be the lodestar for the performance of this duty enjoined on the Chief Justice of India, as the head of the Indian Judiciary. Suitable norms, including those indicated hereafter, must be followed by the Chief Justice of India, for his guidance, while dealing with individual cases. 501. MEANING OF PRESIDENT The expression President in Art.124(2), 217(1) and 222 means the President acting on the aid and advice of the Council of Ministers in accordance with Art.74(1); and the advice given by the Council of Ministers has to be in accordance with the concept of the primacy of the Chief Justice of India and the other norms indicated herein, to accord with the mandate in the Constitution. A fortiori the advice given by the Council of Ministers according to the Constitution binds the President and, therefore, the advice must accord with the principles indicated herein. 502. NORMS The absence of specific guidelines in the enacted provisions appears to be deliberate, since the power is vested in high constitutional functionaries and it was expected of them to develop requisite norms by convention in actual working as envisaged in the concluding speech of the President of the Constituent Assembly. The
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conferring any justiciable right in the transferred Judge. Apart from the constitutional requirement of a transfer being made only on the recommendation of the Chief Justice of India, the issue of transfer is not justiciable on any other ground, including the reasons for the transfer of their sufficiency. The opinion of the Chief Justice of India formed in the manner indicated is sufficient safeguard and protection against any arbitrariness or bias, as well as any erosion of the independence of the judiciary505. This is also in accord with the public interest of excluding these appointments and transfers from litigative debate, to avoid any erosion in the credibility of the decisions, and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision. The growing tendency of needless intrusion by strangers and busy bodies in the functioning of the judiciary under the garb of public interest litigation, in spite of the caution in S. P. Gupta (AIR 1982 SC 149 ) while expanding the concept of locus standi, was adverted to recently by a Constitution Bench in Raj Kanwar, Advocates v. Union of India, (1992) 4 SCC 605. It is, therefore, necessary to spell out clearly the limited scope of judicial review in such matters, to avoid similar situations in future. Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the Chief Justice of India, these matters are not justiciable on any other ground, including that of bias, which in any case is excluded by the element of plurality in the process of decision making.Art.216 deals with constitution of High Courts. It provides that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. To enable proper exercise of this function of appointment of other Judges, it is necessary to make a periodical review of the Judge strength of every High Court with reference to the felt need for disposal of cases, taking into account the backlog and expected future filling. This is essential to ensure speedy disposal of cases, to secure that the operation of the legal system promotes justice a directive principle fundamental in the governance of the country which, it is the duty of the State to observe in all its actions; and to make meaningful the guarantee of fundamental rights in Part III of the Constitution. Accordingly, the failure to perform this obligation, resulting in negation of the rule of law by the laws delay must be justiciable, to compel performance of that duty507. Accordingly, it must be held that, fixation of Judge strength in a High Court is justiciable; and if it is shown that the existing strength is inadequate to provide speedy justice to the people - speedy trial being a requirement of Art.21 in spite of the optimum efficiency of the existing strength, a direction can be issued to assess the felt need and fix the strength of Judges commensurate with the need to fulfil the State obligation of providing speedy justice and to thereby secure that the operation of the legal system promotes justicea solemn resolve declared also in the preamble of the Constitution. In making the review of the Judge strength in High Court, the President must attach great weight to the opinion of the Chief Justice o the High Court and the Chief Justice of India, and if the Chief Justice of India so recommends, the exercise must be performed with! due despatch508. The decision in S. P. Gupta (AIR 1982 SC 149 ), taking the view that this matter is not justiciable to any extent does not commend itself to us as a correct exposition of the constitutional obligation in Art.216 of the Constitution, and the constitutional purpose of its enactment. This provision, like all constitutional provisions, is not to be construed in isolation, but as a part of the entire constitutional scheme, conforming to the constitutional purpose and its ethos. So construed, this matter is justiciable to the extent and in the manner indicated. Of course, the area of justiciability does not extend further, to enable the Court to make the review and fix the actual Judge strength itself, instead of requiring the performance of that exercise in accordance with the recommendation of the Chief Justice of India.Chief Justice of India or the Chief Justice of a High Court, as the case may be, is known to be primus inter partes i.e. first among equals while functioning judicially, but in matters other than judicial enjoys a unique position of status, rank and precedence by virtue of his office. This distinction is first borne in mind and then constitutionally kept alive, whenever he is referred to singularly in the Constitution in contrast to the word court, wherever occurring. It is on that basis that his role has an indivisibility of its own having a primal element.clearly no principle of consideration which would justify reading into the plain and simple words of Art.124(2) any additional words to suggest that the Chief justice of India as described therein is only in a symbolic sense, representing the judiciary. It cannot be said that the Chief Justice heads a monastic order, entry of which is regulated by the Order as a class, and its head merely a spokesman. No one can denude him of the role to which he is constitutionally entitled. Equally it is difficult for me to agree to a construction of the provision that the proposal initiated by him, or related to a High Court appointment, which passes through him, when approved by the executive goes as affirmance of his primacy. I would rather go by the scriptural thought that when one says and the other agrees, both be known as wise.
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Sri Ram Builders Vs. State Of M.P. | application has been filed even for this formal renewal by MPRTC. In any event, MPRTC would not be in a position to continue with the lease as it is heavily indebted presently, to the tune of Rs. 3500 crores. The property of the corporation has been attached by the various creditors. Even the proposed site where the bus stand – cum – commercial complex was to be constructed is under attachment. The claim made by the appellant is in the nature of damages for breach of contract and/or the relief of specific performance of contract. So far as the breach of contract is concerned, the appellant will have no cause of action against IDA as there is no privity of contract between the parties. So far as the specific performance is concerned, it appears that the entire purpose of the contract has been frustrated by subsequent events.55. We are also not much impressed by the submission of Mr. Nariman that the doctrine of frustration cannot be applied here since it is a “self induced frustration”. In the case of Boothalinga Agencies (supra), this Court upon comparing and contrasting the English Law and the statement of Indian Law contained in Section 56 of the Indian Contract Act summed up the legal position with regard to frustration of contract as follows:- “The doctrine of frustration of contract is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of Section 56 of the Indian Contract Act. It should be noticed that Section 56 lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties.In English law therefore the question of frustration of contract has been treated by courts as a question of construction depending upon the true intention of the parties. In contrast, the statutory provisions contained in Section 56 of the Indian Contract Act lay down a positive rule of law and English authorities cannot therefore be of direct assistance, though they have persuasive value in showing how English courts have approached and decided cases under similar circumstances.” We fail to see how the aforesaid observations are of any relevance in the facts and circumstances of this case.56. We are also unable to accept the submission of Mr. Nariman that the Doctrine of Frustration would not apply in the facts of this case as it is a self induced frustration. The aforesaid expression seems to have been borrowed from certain observations made by the Judicial Committee in the case of Maritime National Fish, Limited vs. Ocean Trawlers, Limited [(1935) A.C. 524]. The facts of that case, as narrated in Boothalinga Agencies (supra), would indicate that in that case, the respondents chartered to the appellants a steam trawler fitted with an otter trawl. Both the parties knew at the time of the contract that it was illegal to use an otter trawl without a licence from the Canadian government. Some months later the appellants applied for licences for five trawlers which they were operating, including the respondent’s trawler. They were informed that only three licences would be granted, and were requested to state for which of the three trawlers they would like to have the licences. They named three trawlers other than the respondent’s trawler, and then claimed that they would not be bound by the trawler of the respondent as it was frustrated. It was held by the Judicial Committee that the failure of the contract was the result of the appellant’s own election, and, therefore, no frustration of the contract.57. This Court distinguished the aforesaid judgment and observed as follows:- “We think the principle of this case applies to the Indian law and the provisions of Section 56 of the Indian Contract Act cannot apply to a case of “self-induced frustration”. In other words, the doctrine of frustration of contract cannot apply where the event which is alleged to have frustrated the contract arises from the act or election of a party. “ 58. In our opinion, these observations are of no assistance to the appellant as in this case, the lease has come to an end by efflux of time. This apart, MPRTC is heavily indebted and had sought permission of the State and the Union of India to wind up. Furthermore, there was also a breach of the terms and conditions of the lease on the basis of which it has been terminated in accordance with law.59. In any event, these are issues which would involve adjudication of disputed questions of fact which can only be suitably adjudicated in the civil suit as directed by the High Court in the impugned judgment. The appellant shall be at liberty to seek its remedies against MPRTC for breach of contract. Our conclusion that the High Court was right in rejecting the contentions of the Appellant herein is also supported by the law laid in Rajasthan Housing Board vs. G.S. Investments (supra) which was relied upon by Mr. Cama. We may notice here the following excerpt: “..the Court should exercise its discretionary power under Article 226 of the Constitution with great care and caution and should exercise it only in furtherance of public interest. The Court should always keep the larger public interest in mind in order to decide whether it should interfere with the decision of the authority.” 60. Also, we are not much impressed by the submission of Mr. Nariman that the order passed by the High Court on 11th December, 2007 has been challenged by the companion SLP (C) No 36887 of 2012. The aforesaid SLP has been filed merely to get over the earlier lapse of not challenging the order of the High Court at the appropriate time. Having submitted to the jurisdiction of the Chief Secretary, it would not be open to the appellant to challenge the order dated 11th December, 2007. | 0[ds]. On first blush, the submission made by Mr. Nariman seems to be very attractive, but factually it has to be noticed that much more water has flown under the bridge since the passing of the order dated 5th August, 2005. Subsequently, the lease to MPRTC was cancelled on 2nd November, 2007 by the IDA. The appellant did not challenge the order dated 2nd November, 2007 passed by the IDA. The aforesaid order was challenged by MPRTC in Writ Petition No.6770 of 2007. On 11th December, 2007, the High Court without issuing notice to the appellant, who was impleaded as respondent No.3, disposed of the writ petition. The High Court noticed that two instrumentalities of the State have chosen to bring their disputes in open court. In such circumstances, the High Court was of the opinion that the entire dispute ought to be decided by the Chief Secretary of the State of Madhya Pradesh by holding meetings between the Principal Secretary of the Transport Department, Principal Secretaries of Housing and Environment Department and the Managing Director of the MPRTC. The appellant accepted the aforesaid order passed by the High Court and submitted a detailed representation before the Chief Secretary on 20th February, 2009. The Chief Secretary in the meeting held on 4th March, 2009 took a comprehensive decision on all the issues involved in writ petition with regard to the cancellation of the lease deed in favour of MPRTC by IDA. The Chief Secretary revoked the order dated 2nd November, 2007 and notice dated 30th June, 2007 cancelling the lease of land in question granted to the MPRTC by IDA. RTO was directed to release the leased land from attachment. It is noteworthy that the appellant has not chosen to challenge the aforesaid two directions. However, as noticed earlier, the appellant challenged the directions issued in Clauses III, IV and V in Writ Petition No.2937 of 2009 in the High Court of Madhya Pradesh. It was, inter alia, contended that the directions in the aforesaid clauses were in violation of the order dated 5th August, 2005. It is noteworthy that even in this writ petition, challenging the direction Nos. III, IV and V issued by the Chief Secretary, the appellant had not challenged the competence of the Chief Secretary to decide the issues. The appellant cannot now be permitted to state that the aforesaid directions are without jurisdiction. Under the orders of the Chief Secretary dated 4th March, 2009, the possession of the land has already been delivered to IDA. Therefore, it would not be possible at this stage to direct that the mandamus granted on 4th August, 2005 in Writ Petition No.636 of 2005 shall be enforced.51. In the ultimate analysis, the whole controversy boils down to a breach of contract by MPRTC entered into with the appellant. The scope of judicial review is very limited in contractual matters even where one of the contracting parties is the State or an instrumentality of the State. The parameters within which power of judicial review can be exercised, has been authoritatively laid down by this Court in a number of cases.In our opinion, the case put forward by the appellant would not be covered by the aforesaid ratio of law laid down by this Court. The High Court, in our opinion, has rightly observed that the appellant can seek the appropriate relief by way of a civil suit. The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not normally grant the relief of specific performance of a contract. This view is supported by Ramchandra Murarilal Bhattad vs. State of Maharashtra. [(2007) 2 SCC 588] This Court relying upon the earlier decision in Noble Resources Limited vs. State of Orissa [(2006) 10 SCC 236] held as…this Court would not enforce specific performance of contract where damages would be adequate remedy. It was also held that conduct of the parties would also play an important role.51. The expansive role of courts in exercising its power of judicial review is not in dispute. But as indicated hereinbefore, each case must be decided on its own facts.At no stage, the appellant had any privity of contract with IDA. MPRTC entered into a BOT contract with the appellant contrary to the terms and conditions of the lease which provided specifically that the land shall be used for constructing a bus stand–cum commercial complex. MPRTC had no legal right to create any further right in favour of the appellant with regard to the receiving of the premium on the constructed units sold to third party(ies). Even otherwise, the appellant seems to be flogging a dead horse. Admittedly, the possession of the proposed site was delivered to MPRTC on 22nd January, 1982. The maximum lease period was for 30 years. By efflux of time the aforesaid lease period expired on 21st January, 2012. We do not accept the submission of Mr. Nariman that as the entire rent had been paid, MPRTC would be entitled to automatic renewal of the lease for 90 years. The renewal clause in the lease subsequently provides that the renewal shall be with the consent of IDA. This consent by the IDA is not a mere formality. We are, therefore, not inclined to accept the submission of Mr. Nariman that the term of the lease has to be understood to have commenced from 26.05.2004.54. This apart, there is much substance in the submission of Mr. Cama that no application has been filed even for this formal renewal by MPRTC. In any event, MPRTC would not be in a position to continue with the lease as it is heavily indebted presently, to the tune of Rs. 3500 crores. The property of the corporation has been attached by the various creditors. Even the proposed site where the bus stand – cum – commercial complex was to be constructed is under attachment. The claim made by the appellant is in the nature of damages for breach of contract and/or the relief of specific performance of contract. So far as the breach of contract is concerned, the appellant will have no cause of action against IDA as there is no privity of contract between the parties. So far as the specific performance is concerned, it appears that the entire purpose of the contract has been frustrated by subsequent events.55. We are also not much impressed by the submission of Mr. Nariman that the doctrine of frustration cannot be applied here since it is aIn the case of Boothalinga Agencies (supra), this Court upon comparing and contrasting the English Law and the statement of Indian Law contained in Section 56 of the Indian Contract Act summed up the legal position with regard to frustration of contract as follows:-doctrine of frustration of contract is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of Section 56 of the Indian Contract Act. It should be noticed that Section 56 lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties.In English law therefore the question of frustration of contract has been treated by courts as a question of construction depending upon the true intention of the parties. In contrast, the statutory provisions contained in Section 56 of the Indian Contract Act lay down a positive rule of law and English authorities cannot therefore be of direct assistance, though they have persuasive value in showing how English courts have approached and decided cases under similarfail to see how the aforesaid observations are of any relevance in the facts and circumstances of this case.56. We are also unable to accept the submission of Mr. Nariman that the Doctrine of Frustration would not apply in the facts of this case as it is a self induced frustration. The aforesaid expression seems to have been borrowed from certain observations made by the Judicial Committee in the case of Maritime National Fish, Limited vs. Ocean Trawlers, Limited [(1935) A.C. 524]. The facts of that case, as narrated in Boothalinga Agencies (supra), would indicate that in that case, the respondents chartered to the appellants a steam trawler fitted with an otter trawl. Both the parties knew at the time of the contract that it was illegal to use an otter trawl without a licence from the Canadian government. Some months later the appellants applied for licences for five trawlers which they were operating, including thetrawler. They were informed that only three licences would be granted, and were requested to state for which of the three trawlers they would like to have the licences. They named three trawlers other than thetrawler, and then claimed that they would not be bound by the trawler of the respondent as it was frustrated. It was held by the Judicial Committee that the failure of the contract was the result of theown election, and, therefore, no frustration of the contract.57. This Court distinguished the aforesaid judgment and observed asthink the principle of this case applies to the Indian law and the provisions of Section 56 of the Indian Contract Act cannot apply to a case of. In other words, thedoctrine of frustration of contract cannot apply where the event which is alleged to have frustrated the contract arises from the act or election of a. In our opinion, these observations are of no assistance to the appellant as in this case, the lease has come to an end by efflux of time. This apart, MPRTC is heavily indebted and had sought permission of the State and the Union of India to wind up. Furthermore, there was also a breach of the terms and conditions of the lease on the basis of which it has been terminated in accordance with law.59. In any event, these are issues which would involve adjudication of disputed questions of fact which can only be suitably adjudicated in the civil suit as directed by the High Court in the impugned judgment. The appellant shall be at liberty to seek its remedies against MPRTC for breach of contract. Our conclusion that the High Court was right in rejecting the contentions of the Appellant herein is also supported by the law laid in Rajasthan Housing Board vs. G.S. Investments (supra) which was relied upon by Mr. Cama. We may notice here the followingCourt should exercise its discretionary power under Article 226 of the Constitution with great care and caution and should exercise it only in furtherance of public interest. The Court should always keep the larger public interest in mind in order to decide whether it should interfere with the decision of the authority.Also, we are not much impressed by the submission of Mr. Nariman that the order passed by the High Court on 11th December, 2007 has been challenged by the companion SLP (C) No 36887 of 2012. The aforesaid SLP has been filed merely to get over the earlier lapse of not challenging the order of the High Court at the appropriate time. Having submitted to the jurisdiction of the Chief Secretary, it would not be open to the appellant to challenge the order dated 11th December, 2007. | 0 | 10,744 | 2,061 | ### Instruction:
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application has been filed even for this formal renewal by MPRTC. In any event, MPRTC would not be in a position to continue with the lease as it is heavily indebted presently, to the tune of Rs. 3500 crores. The property of the corporation has been attached by the various creditors. Even the proposed site where the bus stand – cum – commercial complex was to be constructed is under attachment. The claim made by the appellant is in the nature of damages for breach of contract and/or the relief of specific performance of contract. So far as the breach of contract is concerned, the appellant will have no cause of action against IDA as there is no privity of contract between the parties. So far as the specific performance is concerned, it appears that the entire purpose of the contract has been frustrated by subsequent events.55. We are also not much impressed by the submission of Mr. Nariman that the doctrine of frustration cannot be applied here since it is a “self induced frustration”. In the case of Boothalinga Agencies (supra), this Court upon comparing and contrasting the English Law and the statement of Indian Law contained in Section 56 of the Indian Contract Act summed up the legal position with regard to frustration of contract as follows:- “The doctrine of frustration of contract is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of Section 56 of the Indian Contract Act. It should be noticed that Section 56 lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties.In English law therefore the question of frustration of contract has been treated by courts as a question of construction depending upon the true intention of the parties. In contrast, the statutory provisions contained in Section 56 of the Indian Contract Act lay down a positive rule of law and English authorities cannot therefore be of direct assistance, though they have persuasive value in showing how English courts have approached and decided cases under similar circumstances.” We fail to see how the aforesaid observations are of any relevance in the facts and circumstances of this case.56. We are also unable to accept the submission of Mr. Nariman that the Doctrine of Frustration would not apply in the facts of this case as it is a self induced frustration. The aforesaid expression seems to have been borrowed from certain observations made by the Judicial Committee in the case of Maritime National Fish, Limited vs. Ocean Trawlers, Limited [(1935) A.C. 524]. The facts of that case, as narrated in Boothalinga Agencies (supra), would indicate that in that case, the respondents chartered to the appellants a steam trawler fitted with an otter trawl. Both the parties knew at the time of the contract that it was illegal to use an otter trawl without a licence from the Canadian government. Some months later the appellants applied for licences for five trawlers which they were operating, including the respondent’s trawler. They were informed that only three licences would be granted, and were requested to state for which of the three trawlers they would like to have the licences. They named three trawlers other than the respondent’s trawler, and then claimed that they would not be bound by the trawler of the respondent as it was frustrated. It was held by the Judicial Committee that the failure of the contract was the result of the appellant’s own election, and, therefore, no frustration of the contract.57. This Court distinguished the aforesaid judgment and observed as follows:- “We think the principle of this case applies to the Indian law and the provisions of Section 56 of the Indian Contract Act cannot apply to a case of “self-induced frustration”. In other words, the doctrine of frustration of contract cannot apply where the event which is alleged to have frustrated the contract arises from the act or election of a party. “ 58. In our opinion, these observations are of no assistance to the appellant as in this case, the lease has come to an end by efflux of time. This apart, MPRTC is heavily indebted and had sought permission of the State and the Union of India to wind up. Furthermore, there was also a breach of the terms and conditions of the lease on the basis of which it has been terminated in accordance with law.59. In any event, these are issues which would involve adjudication of disputed questions of fact which can only be suitably adjudicated in the civil suit as directed by the High Court in the impugned judgment. The appellant shall be at liberty to seek its remedies against MPRTC for breach of contract. Our conclusion that the High Court was right in rejecting the contentions of the Appellant herein is also supported by the law laid in Rajasthan Housing Board vs. G.S. Investments (supra) which was relied upon by Mr. Cama. We may notice here the following excerpt: “..the Court should exercise its discretionary power under Article 226 of the Constitution with great care and caution and should exercise it only in furtherance of public interest. The Court should always keep the larger public interest in mind in order to decide whether it should interfere with the decision of the authority.” 60. Also, we are not much impressed by the submission of Mr. Nariman that the order passed by the High Court on 11th December, 2007 has been challenged by the companion SLP (C) No 36887 of 2012. The aforesaid SLP has been filed merely to get over the earlier lapse of not challenging the order of the High Court at the appropriate time. Having submitted to the jurisdiction of the Chief Secretary, it would not be open to the appellant to challenge the order dated 11th December, 2007.
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that the term of the lease has to be understood to have commenced from 26.05.2004.54. This apart, there is much substance in the submission of Mr. Cama that no application has been filed even for this formal renewal by MPRTC. In any event, MPRTC would not be in a position to continue with the lease as it is heavily indebted presently, to the tune of Rs. 3500 crores. The property of the corporation has been attached by the various creditors. Even the proposed site where the bus stand – cum – commercial complex was to be constructed is under attachment. The claim made by the appellant is in the nature of damages for breach of contract and/or the relief of specific performance of contract. So far as the breach of contract is concerned, the appellant will have no cause of action against IDA as there is no privity of contract between the parties. So far as the specific performance is concerned, it appears that the entire purpose of the contract has been frustrated by subsequent events.55. We are also not much impressed by the submission of Mr. Nariman that the doctrine of frustration cannot be applied here since it is aIn the case of Boothalinga Agencies (supra), this Court upon comparing and contrasting the English Law and the statement of Indian Law contained in Section 56 of the Indian Contract Act summed up the legal position with regard to frustration of contract as follows:-doctrine of frustration of contract is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of Section 56 of the Indian Contract Act. It should be noticed that Section 56 lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties.In English law therefore the question of frustration of contract has been treated by courts as a question of construction depending upon the true intention of the parties. In contrast, the statutory provisions contained in Section 56 of the Indian Contract Act lay down a positive rule of law and English authorities cannot therefore be of direct assistance, though they have persuasive value in showing how English courts have approached and decided cases under similarfail to see how the aforesaid observations are of any relevance in the facts and circumstances of this case.56. We are also unable to accept the submission of Mr. Nariman that the Doctrine of Frustration would not apply in the facts of this case as it is a self induced frustration. The aforesaid expression seems to have been borrowed from certain observations made by the Judicial Committee in the case of Maritime National Fish, Limited vs. Ocean Trawlers, Limited [(1935) A.C. 524]. The facts of that case, as narrated in Boothalinga Agencies (supra), would indicate that in that case, the respondents chartered to the appellants a steam trawler fitted with an otter trawl. Both the parties knew at the time of the contract that it was illegal to use an otter trawl without a licence from the Canadian government. Some months later the appellants applied for licences for five trawlers which they were operating, including thetrawler. They were informed that only three licences would be granted, and were requested to state for which of the three trawlers they would like to have the licences. They named three trawlers other than thetrawler, and then claimed that they would not be bound by the trawler of the respondent as it was frustrated. It was held by the Judicial Committee that the failure of the contract was the result of theown election, and, therefore, no frustration of the contract.57. This Court distinguished the aforesaid judgment and observed asthink the principle of this case applies to the Indian law and the provisions of Section 56 of the Indian Contract Act cannot apply to a case of. In other words, thedoctrine of frustration of contract cannot apply where the event which is alleged to have frustrated the contract arises from the act or election of a. In our opinion, these observations are of no assistance to the appellant as in this case, the lease has come to an end by efflux of time. This apart, MPRTC is heavily indebted and had sought permission of the State and the Union of India to wind up. Furthermore, there was also a breach of the terms and conditions of the lease on the basis of which it has been terminated in accordance with law.59. In any event, these are issues which would involve adjudication of disputed questions of fact which can only be suitably adjudicated in the civil suit as directed by the High Court in the impugned judgment. The appellant shall be at liberty to seek its remedies against MPRTC for breach of contract. Our conclusion that the High Court was right in rejecting the contentions of the Appellant herein is also supported by the law laid in Rajasthan Housing Board vs. G.S. Investments (supra) which was relied upon by Mr. Cama. We may notice here the followingCourt should exercise its discretionary power under Article 226 of the Constitution with great care and caution and should exercise it only in furtherance of public interest. The Court should always keep the larger public interest in mind in order to decide whether it should interfere with the decision of the authority.Also, we are not much impressed by the submission of Mr. Nariman that the order passed by the High Court on 11th December, 2007 has been challenged by the companion SLP (C) No 36887 of 2012. The aforesaid SLP has been filed merely to get over the earlier lapse of not challenging the order of the High Court at the appropriate time. Having submitted to the jurisdiction of the Chief Secretary, it would not be open to the appellant to challenge the order dated 11th December, 2007.
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Shiv Lal & Ors Vs. Chet Ram & Ors | that date. It appears that the plaintiffs have deliberately given a wrong date of the mortgage in the plaint with a view to bring the suit within the period of limitation. The learned District Judge has opined that the claim for redemption of this item of property is also within time in view of Ex. P-8. Here again no evidence was led to show that the original statement was signed either by the mortgagors or by their representatives. The original was not produced in Court. Ex. P-8 is only a certified copy. By merely producing a copy, it cannot be said that the plaintiffs have succeeded in proving that the signature in the original statement is that of the mortgagors or their representatives. As discussed earlier the plaintiffs cannot take the benefit of Section 90 of the Evidence Act or Section 44 of the Punjab Land Revenue Act or Section 114 (e) of the Evidence Act to prove that the original was signed by the mortgagors or their representatives. Hence the plaintiffs claim in respect of plaint item No. 3 must also fail.9. In the result Civil Appeal No. 1250 of 1966 is partly allowed and the plaintiffs claim for redemption of plaint items Nos. 2, 3 and 4 is dismissed and the decree for redemption of plaint item No. 1 is upheld.10. Now we shall take up Civil Appeal No. 1251 of 1966 arising from Suit No. 334 of 1961. Therein redemption of two mortgages said to have been executed on June 19, 1894 and May 15, 1896 was sought. Prima facie the suit is barred by limitation. But it was contended and that contention was accented by the appellate Court and the High Court that the suit is within time in view of (1) the acknowledgments made by the mortgagors or their representatives on several occasions, the last of which was on June 25, 1919 and (2) in view of the application made by the plaintiffs-respondents under Section 4 of the Redemption of Mortgages (Punjab) Act, 1913 (Act No. II of 1913). We shall first take up the question of acknowledgments. The acknowledgments in question were sought to be proved by production of certain certified copies. The originals of those copies were not produced. No evidence was led to show that the originals were signed either by the mortgagors or by their representatives. For the reasons earlier mentioned those copies cannot serve as acknowledgments.11. Now coming to the application made under Section 4 of the Redemption of Mortgages (Punjab) Act, 1913, the same was made on May 16, 1959 and it was dismissed on April 18, 1061. Therein the parties were referred to a civil suit. Ever if the period taken in prosecuting the said application is excluded in computing the period of limitation, the suit for redemptionis admittedly barred. But what was urged on behalf of the plaintiffs is that in view of Section 12 of the Redemption of Mortgages (Punjab) Act, 1913, the plaintiffs were entitled to bring the suit within one year from April 18, 1961, the date on which their application was dismissed. There is no dispute that for the suit contemplated by the aforesaid Section 12, the period of limitation prescribed is one year from the date of the order. The dismissal of the petition in this case was made under Section 10 of the Redemption of Mortgages (Punjab) Act, 1913. Therefore the order made on that application comes within the scope of Section 12. But the real question is whether S. 12 enlarges the period of limitation for a redemption suit. That section to the extent material for our present purpose reads as follows:"Any party aggrieved by an order made under Sections 6, 7, 8, 9, 10 and 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."12. This section merely provides that a summary order made under Sections 6, 7, 8, 9, 10 and 11 of the Redemption of Mortgages (Punjab) Act, 1913 becomes final unless a suit to establish the rights of the mortgagors is instituted within the prescribed period. From this provision we are unable to hold that in view of that section, the period of limitation fixed for redemption of mortgages can be enlarged. Several decisions of the Lahore High Court holding that if a suit as required by Section 12 is not filed within the time prescribed then the right of redemption will be lost even if the time prescribed under the Limitation Act for instituting a suit for redemption has not expired. It is not necessary to go into the correctness of these decisions though prima facie we are inclined to accept their correctness because they merely lay down that if any party aggrieved by an order under Sections 6, 7, 8, 9, 10 and 11 of the Redemption of Mortgages (Punjab) Act, 1913 does not institute a suit to establish his rights in respect of the mortgage within the time prescribed, his right to sue for redemption is lost. Those decisions do not support the contention of the plaintiffs that a mortgagor whose application for redemption under Section 4 of the aforesaid Act is dismissed can file a suit for redemption of the mortgage even though the limitation prescribed for such a suit had expired, if only he files that suit within a period of one year from the date of the order dismissing his petition under Section 4. No decision taking that view was brought to our notice. What is made conclusive by Section 12 is the order made by the Collector if the suit as conclusive by Section 12 is not instituted within the prescribed time. That provision does not lend any support for the contention that if an application which fulfils the requirements of S. 4 is brought then the period of limitation prescribed for a redemption suit becomes irrelevant. | 1[ds]12. This section merely provides that a summary order made under Sections 6, 7, 8, 9, 10 and 11 ofthe Redemption of Mortgages (Punjab) Act, 1913 becomes final unless a suit to establish the rights of the mortgagors is instituted within the prescribed period. From this provision we are unable to hold that in view of that section, the period of limitation fixed for redemption of mortgages can be enlarged. Several decisions of the Lahore High Court holding that if a suit as required by Section 12 is not filed within the time prescribed then the right of redemption will be lost even if the time prescribed under the Limitation Act for instituting a suit for redemption has not expired. It is not necessary to go into the correctness of these decisions though prima facie we are inclined to accept their correctness because they merely lay down that if any party aggrieved by an order under Sections 6, 7, 8, 9, 10 and 11 ofthe Redemption of Mortgages (Punjab) Act, 1913 does not institute a suit to establish his rights in respect of the mortgage within the time prescribed, his right to sue for redemption is lost. Those decisions do not support the contention of the plaintiffs that a mortgagor whose application for redemption under Section 4 of the aforesaid Act is dismissed can file a suit for redemption of the mortgage even though the limitation prescribed for such a suit had expired, if only he files that suit within a period of one year from the date of the order dismissing his petition under Section 4. No decision taking that view was brought to our notice. What is made conclusive by Section 12 is the order made by the Collector if the suit as conclusive by Section 12 is not instituted within the prescribed time. That provision does not lend any support for the contention that if an application which fulfils the requirements of S. 4 is brought then the period of limitation prescribed for a redemption suit becomes irrelevant. | 1 | 2,362 | 371 | ### Instruction:
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that date. It appears that the plaintiffs have deliberately given a wrong date of the mortgage in the plaint with a view to bring the suit within the period of limitation. The learned District Judge has opined that the claim for redemption of this item of property is also within time in view of Ex. P-8. Here again no evidence was led to show that the original statement was signed either by the mortgagors or by their representatives. The original was not produced in Court. Ex. P-8 is only a certified copy. By merely producing a copy, it cannot be said that the plaintiffs have succeeded in proving that the signature in the original statement is that of the mortgagors or their representatives. As discussed earlier the plaintiffs cannot take the benefit of Section 90 of the Evidence Act or Section 44 of the Punjab Land Revenue Act or Section 114 (e) of the Evidence Act to prove that the original was signed by the mortgagors or their representatives. Hence the plaintiffs claim in respect of plaint item No. 3 must also fail.9. In the result Civil Appeal No. 1250 of 1966 is partly allowed and the plaintiffs claim for redemption of plaint items Nos. 2, 3 and 4 is dismissed and the decree for redemption of plaint item No. 1 is upheld.10. Now we shall take up Civil Appeal No. 1251 of 1966 arising from Suit No. 334 of 1961. Therein redemption of two mortgages said to have been executed on June 19, 1894 and May 15, 1896 was sought. Prima facie the suit is barred by limitation. But it was contended and that contention was accented by the appellate Court and the High Court that the suit is within time in view of (1) the acknowledgments made by the mortgagors or their representatives on several occasions, the last of which was on June 25, 1919 and (2) in view of the application made by the plaintiffs-respondents under Section 4 of the Redemption of Mortgages (Punjab) Act, 1913 (Act No. II of 1913). We shall first take up the question of acknowledgments. The acknowledgments in question were sought to be proved by production of certain certified copies. The originals of those copies were not produced. No evidence was led to show that the originals were signed either by the mortgagors or by their representatives. For the reasons earlier mentioned those copies cannot serve as acknowledgments.11. Now coming to the application made under Section 4 of the Redemption of Mortgages (Punjab) Act, 1913, the same was made on May 16, 1959 and it was dismissed on April 18, 1061. Therein the parties were referred to a civil suit. Ever if the period taken in prosecuting the said application is excluded in computing the period of limitation, the suit for redemptionis admittedly barred. But what was urged on behalf of the plaintiffs is that in view of Section 12 of the Redemption of Mortgages (Punjab) Act, 1913, the plaintiffs were entitled to bring the suit within one year from April 18, 1961, the date on which their application was dismissed. There is no dispute that for the suit contemplated by the aforesaid Section 12, the period of limitation prescribed is one year from the date of the order. The dismissal of the petition in this case was made under Section 10 of the Redemption of Mortgages (Punjab) Act, 1913. Therefore the order made on that application comes within the scope of Section 12. But the real question is whether S. 12 enlarges the period of limitation for a redemption suit. That section to the extent material for our present purpose reads as follows:"Any party aggrieved by an order made under Sections 6, 7, 8, 9, 10 and 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."12. This section merely provides that a summary order made under Sections 6, 7, 8, 9, 10 and 11 of the Redemption of Mortgages (Punjab) Act, 1913 becomes final unless a suit to establish the rights of the mortgagors is instituted within the prescribed period. From this provision we are unable to hold that in view of that section, the period of limitation fixed for redemption of mortgages can be enlarged. Several decisions of the Lahore High Court holding that if a suit as required by Section 12 is not filed within the time prescribed then the right of redemption will be lost even if the time prescribed under the Limitation Act for instituting a suit for redemption has not expired. It is not necessary to go into the correctness of these decisions though prima facie we are inclined to accept their correctness because they merely lay down that if any party aggrieved by an order under Sections 6, 7, 8, 9, 10 and 11 of the Redemption of Mortgages (Punjab) Act, 1913 does not institute a suit to establish his rights in respect of the mortgage within the time prescribed, his right to sue for redemption is lost. Those decisions do not support the contention of the plaintiffs that a mortgagor whose application for redemption under Section 4 of the aforesaid Act is dismissed can file a suit for redemption of the mortgage even though the limitation prescribed for such a suit had expired, if only he files that suit within a period of one year from the date of the order dismissing his petition under Section 4. No decision taking that view was brought to our notice. What is made conclusive by Section 12 is the order made by the Collector if the suit as conclusive by Section 12 is not instituted within the prescribed time. That provision does not lend any support for the contention that if an application which fulfils the requirements of S. 4 is brought then the period of limitation prescribed for a redemption suit becomes irrelevant.
### Response:
1
### Explanation:
12. This section merely provides that a summary order made under Sections 6, 7, 8, 9, 10 and 11 ofthe Redemption of Mortgages (Punjab) Act, 1913 becomes final unless a suit to establish the rights of the mortgagors is instituted within the prescribed period. From this provision we are unable to hold that in view of that section, the period of limitation fixed for redemption of mortgages can be enlarged. Several decisions of the Lahore High Court holding that if a suit as required by Section 12 is not filed within the time prescribed then the right of redemption will be lost even if the time prescribed under the Limitation Act for instituting a suit for redemption has not expired. It is not necessary to go into the correctness of these decisions though prima facie we are inclined to accept their correctness because they merely lay down that if any party aggrieved by an order under Sections 6, 7, 8, 9, 10 and 11 ofthe Redemption of Mortgages (Punjab) Act, 1913 does not institute a suit to establish his rights in respect of the mortgage within the time prescribed, his right to sue for redemption is lost. Those decisions do not support the contention of the plaintiffs that a mortgagor whose application for redemption under Section 4 of the aforesaid Act is dismissed can file a suit for redemption of the mortgage even though the limitation prescribed for such a suit had expired, if only he files that suit within a period of one year from the date of the order dismissing his petition under Section 4. No decision taking that view was brought to our notice. What is made conclusive by Section 12 is the order made by the Collector if the suit as conclusive by Section 12 is not instituted within the prescribed time. That provision does not lend any support for the contention that if an application which fulfils the requirements of S. 4 is brought then the period of limitation prescribed for a redemption suit becomes irrelevant.
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Calcutta Municipal Corporation Vs. East India Hotels Ltd. | that under Section 443 of the Calcutta Municipal Act, 1951 the Corporation of Calcutta is entitled to issue licences against payment of fees to theatres, circuses, cinema-house, dancing halls and other similar place of public resort, recreation or amusement but not to other establishment which do not fall in same class as the above. We hold further that a restaurant which provides items of amusement occasionally or incidentally in its main business, to its customers is not a place of public resort, recreation or amusement similar to a theatre, circus, cinema- house, dancing hall, which form a class by themselves, and does not fall within the mischief of Section 443. The respondents have no jurisdiction to call upon the appellant No. 1 to take out a licence under Section 443. 8. It was not necessary for the Division Bench of the High Court to rely on the rule of ejusdem generis in this case. The provision of Section 443 of the Act are on the face of it clear and unambiguous and, as such, there was no occasion to call into aid the said rule. Section 443 clearly states that a theatre, circus, cinema-house, dancing hall or ``other similar place of public resort, recreation or amusement cannot be run without obtaining a licence from the Commissioner of the Corporation. It is thus obvious that apart from the four places of recreation/amusement specifically mentioned in the section ``any other place which comes within the mischief of the Act must be ``a similar place. The short question for our consideration, therefore, is whether the three restaurants run by the company in the premises of the hotel are similar to any of the four instances given under Section 443 of the Act.9. Since the question argued before the Division Bench was neither pleaded nor raised before the learned single Judge, the necessary facts required to support the said question were not directly forthcoming from the writ petition a copy of which is placed on the appeal-papers. In any case, the companys own case in the writ petition before the High Court was as under :- "In order to be categorised as a Government classified Hotel, it should have certain basic features and amenities like Cabaret and evening entertainments etc. and unless these special facilities were available and continued to remain available your petitioners said hotel would not have been a Government classified hotel. Your petitioners crave leave to refer to the said question arise for classification at the time of hearing if necessary.Your petitioner state that the said hotel is a residential hotel and maintain a very high standard of service for twenty-four hours round the clock. It also provides entertainments during the evening, specially to cater for the tourist, foreign visitors but also earn foreign exchange for the country. The said hotel enjoys international reputation.....As stated above your petitioners run a hotel, in which lodging and meals including service of alcoholic beverages, both foreign liquor and Indian made foreign liquor are provided to the residents and customers from the Restaurants, Bars and other rooms within the hotel precincts. The said Restaurants cater for outsiders though mostly foreign tourists and the said Restaurants are being maintained and/or run in accordance with the International standards for which your petitioner have had to incur heavy overhead expenses as is the case in the matter of maintenance of lodging. These Restaurants and Bar are part and parcel of the Hotel though the same is not restricted to residents of the Hotel only. 10. In the written statement filed before the High Court on March 22, 1983, the Corporation affirmed as under :- "With reference to paragraph 7 of the petition I dispute and deny allegations. I say that the hotel provides entertainment with all items of music amusement etc. and is famous for its cabaret any allegation contrary thereto are denied. I say that before entering into the cabaret room one has to purchase a special ticket for admission on a very high price. 11. It is not disputed in the counter filed by the company in the special leave petition that the said restaurants in the evening provide piped music and sometimes vocal as well as instrumental music. The said restaurants also have dancing floors where the guests are allowed to dance to the tune of the music.12. The admitted facts, therefore, are that there are dancing floors in the restaurants where the residents and other guests entertain themselves. The entertainment is further provided by music including vocal music. At the relevant time the cabaret shows were also performed in the restaurant to entertain the guests. In the counter filed in this Court the company has, however, stated that cabaret shows are done on rare occasions like Christmas and New Year eve etc.13. A ``dancing hall cannot operate obtaining a licence under Section 443 of the Act. What is a dancing hall ? A dancing hall as understood in the ordinary parlance is a place where dancing floor is provided and live orchestra or music in any other form is played to entertain the guests who wish to come on the floor and dance. Dancing halls are peculiar to the Western social life. In the cosmopolitan cities in this country, even today, one finds number of dancing halls and discotheques where people go in the evenings and entertain themselves. We see no difference in a ``dancing hall and a restaurant where a proper dancing floor is provided and the guests entertain themselves by using the floor to the tune of live or recorded music. Simply because the recreation in the shape of dancing is provided along with a posh-eating place would not make it different than a ``dancing hall where drinks and eatables are also invariably provided. We are, therefore, of the view that the restaurants run by the company are places similar to the dancing halls and, as such, are places of public amusement covered by the provisions of Section 443 of the Act. | 1[ds]8. It was not necessary for the Division Bench of the High Court to rely on the rule of ejusdem generis in this case. The provision of Section 443 of the Act are on the face of it clear and unambiguous and, as such, there was no occasion to call into aid the said rule. Section 443 clearly states that a theatre, circus, cinema-house, dancing hall or ``other similar place of public resort, recreation or amusement cannot be run without obtaining a licence from the Commissioner of the Corporation. It is thus obvious that apart from the four places of recreation/amusement specifically mentioned in the section ``any other place which comes within the mischief of the Act must be ``a similar place. The short question for our consideration, therefore, is whether the three restaurants run by the company in the premises of the hotel are similar to any of the four instances given under Section 443 of the Act.9. Since the question argued before the Division Bench was neither pleaded nor raised before the learned single Judge, the necessary facts required to support the said question were not directly forthcoming from the writ petition a copy of which is placed on the appeal-papers. In any case, the companys own case in the writ petition before the High Court was as underorder to be categorised as a Government classified Hotel, it should have certain basic features and amenities like Cabaret and evening entertainments etc. and unless these special facilities were available and continued to remain available your petitioners said hotel would not have been a Government classified hotel. Your petitioners crave leave to refer to the said question arise for classification at the time of hearing if necessary.Your petitioner state that the said hotel is a residential hotel and maintain a very high standard of service for twenty-four hours round the clock. It also provides entertainments during the evening, specially to cater for the tourist, foreign visitors but also earn foreign exchange for the country. The said hotel enjoys international reputation.....As stated above your petitioners run a hotel, in which lodging and meals including service of alcoholic beverages, both foreign liquor and Indian made foreign liquor are provided to the residents and customers from the Restaurants, Bars and other rooms within the hotel precincts. The said Restaurants cater for outsiders though mostly foreign tourists and the said Restaurants are being maintained and/or run in accordance with the International standards for which your petitioner have had to incur heavy overhead expenses as is the case in the matter of maintenance of lodging. These Restaurants and Bar are part and parcel of the Hotel though the same is not restricted to residents of the Hotel only.In the written statement filed before the High Court on March 22, 1983, the Corporation affirmed as underreference to paragraph 7 of the petition I dispute and deny allegations. I say that the hotel provides entertainment with all items of music amusement etc. and is famous for its cabaret any allegation contrary thereto are denied. I say that before entering into the cabaret room one has to purchase a special ticket for admission on a very high price.It is not disputed in the counter filed by the company in the special leave petition that the said restaurants in the evening provide piped music and sometimes vocal as well as instrumental music. The said restaurants also have dancing floors where the guests are allowed to dance to the tune of the music.12. The admitted facts, therefore, are that there are dancing floors in the restaurants where the residents and other guests entertain themselves. The entertainment is further provided by music including vocal music. At the relevant time the cabaret shows were also performed in the restaurant to entertain the guests. In the counter filed in this Court the company has, however, stated that cabaret shows are done on rare occasions like Christmas and New Year eve etc.13. A ``dancing hall cannot operate obtaining a licence under Section 443 of the Act. What is a dancing hall ? A dancing hall as understood in the ordinary parlance is a place where dancing floor is provided and live orchestra or music in any other form is played to entertain the guests who wish to come on the floor and dance. Dancing halls are peculiar to the Western social life. In the cosmopolitan cities in this country, even today, one finds number of dancing halls and discotheques where people go in the evenings and entertain themselves. We see no difference in a ``dancing hall and a restaurant where a proper dancing floor is provided and the guests entertain themselves by using the floor to the tune of live or recorded music. Simply because the recreation in the shape of dancing is provided along with a posh-eating place would not make it different than a ``dancing hall where drinks and eatables are also invariably provided. We are, therefore, of the view that the restaurants run by the company are places similar to the dancing halls and, as such, are places of public amusement covered by the provisions of Section 443 of the Act. | 1 | 2,071 | 931 | ### Instruction:
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that under Section 443 of the Calcutta Municipal Act, 1951 the Corporation of Calcutta is entitled to issue licences against payment of fees to theatres, circuses, cinema-house, dancing halls and other similar place of public resort, recreation or amusement but not to other establishment which do not fall in same class as the above. We hold further that a restaurant which provides items of amusement occasionally or incidentally in its main business, to its customers is not a place of public resort, recreation or amusement similar to a theatre, circus, cinema- house, dancing hall, which form a class by themselves, and does not fall within the mischief of Section 443. The respondents have no jurisdiction to call upon the appellant No. 1 to take out a licence under Section 443. 8. It was not necessary for the Division Bench of the High Court to rely on the rule of ejusdem generis in this case. The provision of Section 443 of the Act are on the face of it clear and unambiguous and, as such, there was no occasion to call into aid the said rule. Section 443 clearly states that a theatre, circus, cinema-house, dancing hall or ``other similar place of public resort, recreation or amusement cannot be run without obtaining a licence from the Commissioner of the Corporation. It is thus obvious that apart from the four places of recreation/amusement specifically mentioned in the section ``any other place which comes within the mischief of the Act must be ``a similar place. The short question for our consideration, therefore, is whether the three restaurants run by the company in the premises of the hotel are similar to any of the four instances given under Section 443 of the Act.9. Since the question argued before the Division Bench was neither pleaded nor raised before the learned single Judge, the necessary facts required to support the said question were not directly forthcoming from the writ petition a copy of which is placed on the appeal-papers. In any case, the companys own case in the writ petition before the High Court was as under :- "In order to be categorised as a Government classified Hotel, it should have certain basic features and amenities like Cabaret and evening entertainments etc. and unless these special facilities were available and continued to remain available your petitioners said hotel would not have been a Government classified hotel. Your petitioners crave leave to refer to the said question arise for classification at the time of hearing if necessary.Your petitioner state that the said hotel is a residential hotel and maintain a very high standard of service for twenty-four hours round the clock. It also provides entertainments during the evening, specially to cater for the tourist, foreign visitors but also earn foreign exchange for the country. The said hotel enjoys international reputation.....As stated above your petitioners run a hotel, in which lodging and meals including service of alcoholic beverages, both foreign liquor and Indian made foreign liquor are provided to the residents and customers from the Restaurants, Bars and other rooms within the hotel precincts. The said Restaurants cater for outsiders though mostly foreign tourists and the said Restaurants are being maintained and/or run in accordance with the International standards for which your petitioner have had to incur heavy overhead expenses as is the case in the matter of maintenance of lodging. These Restaurants and Bar are part and parcel of the Hotel though the same is not restricted to residents of the Hotel only. 10. In the written statement filed before the High Court on March 22, 1983, the Corporation affirmed as under :- "With reference to paragraph 7 of the petition I dispute and deny allegations. I say that the hotel provides entertainment with all items of music amusement etc. and is famous for its cabaret any allegation contrary thereto are denied. I say that before entering into the cabaret room one has to purchase a special ticket for admission on a very high price. 11. It is not disputed in the counter filed by the company in the special leave petition that the said restaurants in the evening provide piped music and sometimes vocal as well as instrumental music. The said restaurants also have dancing floors where the guests are allowed to dance to the tune of the music.12. The admitted facts, therefore, are that there are dancing floors in the restaurants where the residents and other guests entertain themselves. The entertainment is further provided by music including vocal music. At the relevant time the cabaret shows were also performed in the restaurant to entertain the guests. In the counter filed in this Court the company has, however, stated that cabaret shows are done on rare occasions like Christmas and New Year eve etc.13. A ``dancing hall cannot operate obtaining a licence under Section 443 of the Act. What is a dancing hall ? A dancing hall as understood in the ordinary parlance is a place where dancing floor is provided and live orchestra or music in any other form is played to entertain the guests who wish to come on the floor and dance. Dancing halls are peculiar to the Western social life. In the cosmopolitan cities in this country, even today, one finds number of dancing halls and discotheques where people go in the evenings and entertain themselves. We see no difference in a ``dancing hall and a restaurant where a proper dancing floor is provided and the guests entertain themselves by using the floor to the tune of live or recorded music. Simply because the recreation in the shape of dancing is provided along with a posh-eating place would not make it different than a ``dancing hall where drinks and eatables are also invariably provided. We are, therefore, of the view that the restaurants run by the company are places similar to the dancing halls and, as such, are places of public amusement covered by the provisions of Section 443 of the Act.
### Response:
1
### Explanation:
8. It was not necessary for the Division Bench of the High Court to rely on the rule of ejusdem generis in this case. The provision of Section 443 of the Act are on the face of it clear and unambiguous and, as such, there was no occasion to call into aid the said rule. Section 443 clearly states that a theatre, circus, cinema-house, dancing hall or ``other similar place of public resort, recreation or amusement cannot be run without obtaining a licence from the Commissioner of the Corporation. It is thus obvious that apart from the four places of recreation/amusement specifically mentioned in the section ``any other place which comes within the mischief of the Act must be ``a similar place. The short question for our consideration, therefore, is whether the three restaurants run by the company in the premises of the hotel are similar to any of the four instances given under Section 443 of the Act.9. Since the question argued before the Division Bench was neither pleaded nor raised before the learned single Judge, the necessary facts required to support the said question were not directly forthcoming from the writ petition a copy of which is placed on the appeal-papers. In any case, the companys own case in the writ petition before the High Court was as underorder to be categorised as a Government classified Hotel, it should have certain basic features and amenities like Cabaret and evening entertainments etc. and unless these special facilities were available and continued to remain available your petitioners said hotel would not have been a Government classified hotel. Your petitioners crave leave to refer to the said question arise for classification at the time of hearing if necessary.Your petitioner state that the said hotel is a residential hotel and maintain a very high standard of service for twenty-four hours round the clock. It also provides entertainments during the evening, specially to cater for the tourist, foreign visitors but also earn foreign exchange for the country. The said hotel enjoys international reputation.....As stated above your petitioners run a hotel, in which lodging and meals including service of alcoholic beverages, both foreign liquor and Indian made foreign liquor are provided to the residents and customers from the Restaurants, Bars and other rooms within the hotel precincts. The said Restaurants cater for outsiders though mostly foreign tourists and the said Restaurants are being maintained and/or run in accordance with the International standards for which your petitioner have had to incur heavy overhead expenses as is the case in the matter of maintenance of lodging. These Restaurants and Bar are part and parcel of the Hotel though the same is not restricted to residents of the Hotel only.In the written statement filed before the High Court on March 22, 1983, the Corporation affirmed as underreference to paragraph 7 of the petition I dispute and deny allegations. I say that the hotel provides entertainment with all items of music amusement etc. and is famous for its cabaret any allegation contrary thereto are denied. I say that before entering into the cabaret room one has to purchase a special ticket for admission on a very high price.It is not disputed in the counter filed by the company in the special leave petition that the said restaurants in the evening provide piped music and sometimes vocal as well as instrumental music. The said restaurants also have dancing floors where the guests are allowed to dance to the tune of the music.12. The admitted facts, therefore, are that there are dancing floors in the restaurants where the residents and other guests entertain themselves. The entertainment is further provided by music including vocal music. At the relevant time the cabaret shows were also performed in the restaurant to entertain the guests. In the counter filed in this Court the company has, however, stated that cabaret shows are done on rare occasions like Christmas and New Year eve etc.13. A ``dancing hall cannot operate obtaining a licence under Section 443 of the Act. What is a dancing hall ? A dancing hall as understood in the ordinary parlance is a place where dancing floor is provided and live orchestra or music in any other form is played to entertain the guests who wish to come on the floor and dance. Dancing halls are peculiar to the Western social life. In the cosmopolitan cities in this country, even today, one finds number of dancing halls and discotheques where people go in the evenings and entertain themselves. We see no difference in a ``dancing hall and a restaurant where a proper dancing floor is provided and the guests entertain themselves by using the floor to the tune of live or recorded music. Simply because the recreation in the shape of dancing is provided along with a posh-eating place would not make it different than a ``dancing hall where drinks and eatables are also invariably provided. We are, therefore, of the view that the restaurants run by the company are places similar to the dancing halls and, as such, are places of public amusement covered by the provisions of Section 443 of the Act.
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THE PEERLESS GEN.FIN AND INVESTMENT COMPANY LIMITED Vs. COMMNR. OF INCOME TAX | of India (1992) 75 Comp Cas 12, the Supreme Court on similar facts held that the deposits were capital receipts and not revenue receipts (vide paragraphs 67 & 68 of the aforesaid judgment). That case also pertains to a finance company which used to collect deposits, and credited part of its deposits to the profit and loss account, as in the present case. Hence, the ratio of the said decision, in our opinion, applies to this case also.It is well settled in income-tax law that book keeping entries are not decisive or determinative of the true nature of the entries as held by the Supreme Court in CIT vs. India Discount Co. Ltd. [1970] 75 ITR 191 and in Godhra Electricity Co. Ltd v. CIT [1997] 225 ITR 746 (SC) . It has been held in those decisions that the court has to see the true nature of the receipts and not go only by the entry in the books of account.We agree with the Tribunal that these deposits are really capital receipts and not revenue receipts. In Chowringhee Sales Bureau P. Ltd. V. CIT [1973] 87 ITR 542 (SC) which was followed in Sinclair Murray and Co. P. Ltd. V. CIT [1974] 97 ITR 615 , the Supreme Court observed (page 619):?It is the true nature and quality of the receipt and not the head under which it is entered in the account books that would prove decisive. If a receipt is a trading receipt, the fact that it is not so shown in the account books of the assessee would not prevent the assessing authority from treating it as trading receipt.It has been held by the Supreme court that the primary liability and onus is on the Department to prove that a certain receipt is liable to be taxed vide Parimisetti Seetharamamma v. CIT [1965] 57 ITR 532 (SC).Sri Chopra then relied on the decision of the Supreme Court in CIT v. Lakshmi Vilas Bank Ltd. [1996] 220 ITR 305. In our opinion that decision is also distinguishable because in that case the deposit was forfeited and the result of the transaction was that the bank became full owner of the security and the amount lying in deposit with it became its own money. In the present case there is no such finding that the deposit was forfeited or that at the end of the transaction the security deposit became the property of the assessee or that changed from a capital receipt to a revenue receipt. Hence, that decision is clearly distinguishable.?This Court, on 21.07.2015, in appeal against the said judgment held as under:"After reading of the decision of the High Court, we find that the High Court has rightly relied upon the judgment of this Court in ?Peerless General Finance & Investment Co. Ltd. & Anr. v. Reserve Bank of India? (1992) 2 SCC 343. Since the case is squarely covered by the judgment, we do not find any merit in these appeals and petitions which are accordingly, dismissed.?It is also correct to state that there can be no estoppel against a settled position in law [See Commissioner of Income-Tax, Bombay vs. C. Parakh & Co. (India) Ltd. 29 ITR 661 at 665 and Commissioner of Income-Tax, Madras vs. V.MR.P. Firm, Muar (1965) 56 ITR 67. 11. Shri Arijit Prasad, learned senior counsel, appearing on behalf of the Revenue, however, strongly relied upon the observations in Ram Janki Devi and another v. M/s. Juggilal Kamlapat, (1971) 1 SCC 477. In particular, he relied upon paragraph 12 of the judgment which reads as follows:-?The case of a deposit is something more than a mere loan of money. It will depend on the facts of each case whether the transaction is clothed with the character of a deposit of money. The surrounding circumstances, the relationship and character of the transaction and the manner in which parties treated the transaction will throw light on the true form of the transaction.?12. This judgment has no direct relevance to the facts of the present case. The vexed question in that case was as to whether a particular transaction in question was a loan or a deposit. It was in that context that paragraph 12 laid down that whether a loan of money could be called a deposit, would depend upon the facts of each case, having regard to the surrounding circumstances etc. In the present case, there is no such question raised by Revenue. The question raised is completely different, and as has been held by us above, the character of the transaction being clearly a capital receipt in the hands of the assessee cannot possibly be taxed as income in the assessee?s hands.13. Shri Prasad then relied upon the judgment of this Court in Poona Electric Supply Co. Ltd., Bombay v. Commissioner of Income-tax, Bombay City I, Bombay, AIR 1966 SC 30 . In particular, he relied upon a quotation from a Bombay High Court judgment which was approved by this Court, as follows: -?The principle of real income is not to be subordinated as to amount virtually to a negation of it when a surrender or concession or rebate in respect of managing agency commission is made, agreed to or given on grounds of commercial expediency, simply because it takes place some time after the close of an accounting year. In examining any transaction and situation of this nature the court would have more regard to the reality and specialty of the situation rather than the purely theoretical or doctrinaire aspect of it. It will lay greater emphasis on the business aspect of the matter viewed as a whole when that can be done without disregarding statutory language.?The ?theoretical? aspect of the present transaction is the fact that the assessee treated subscription receipts as income. The reality of the situation, however, is that the business aspect of the matter, when viewed as a whole, leads inevitably to the conclusion that the receipts in question were capital receipts and not income. | 1[ds]8. What is clear, even on general principle, on the facts of this case, is that subscriptions were received in the years in question from the public at large under a collective investment scheme, and these subscriptions were never at any point of time forfeited. Indeed, the supplementary affidavit filed before this Court states this as a fact, being based on an interim order of the High Court dated 03.09.1979 which obtained during the assessment years in question. This being the case, and surrendered certificates not being the subject-matter of the appeal before us, it is clear that even on general principles, deposits by way of amounts pursuant to these investment schemes made by subscribers which have never been forfeited can only be stated to be capital receipts.While it is true that there was no direct focus of the Court on whether subscriptions so received are capital or revenue in nature, we may still advert to the fact that this Court has also, on general principles, held that such subscriptions would be capital receipts, and if they were treated to be income, this would violate the Companies Act. It is, therefore, incorrect to state, as has been stated by the High Court, that the decision in Peerless General Finance and Investment Co. Limited (supra) must be read as not having laid down any absolute proposition of law that all receipts of subscription at the hands of the assessee for these years must be treated as capital receipts. We reiterate that though the Court?s focus was not directly on this, yet, a pronouncement by this Court, even if it cannot be strictly called the ratio decidendi of the judgment, would certainly be binding on the High Court. Even otherwise, as we have stated, it is clear that on general principles also such subscription cannot possibly be treated as income. Mr. Ganesh is right in stating that in cases of this nature it would not be possible to go only by the treatment of such subscriptions in the hands of accounts of the assessee itself.We agree with the Tribunal that these deposits are really capital receipts and not revenue receipts.is also correct to state that there can be no estoppel against a settled position in law [See Commissioner of Income-Tax, Bombay vs. C. Parakh & Co. (India) Ltd. 29 ITR 661 at 665 and Commissioner of Income-Tax, Madras vs. V.MR.P. Firm, Muar (1965) 56 ITR 67. This judgment has no direct relevance to the facts of the present case. The vexed question in that case was as to whether a particular transaction in question was a loan or a deposit. It was in that context that paragraph 12 laid down that whether a loan of money could be called a deposit, would depend upon the facts of each case, having regard to the surrounding circumstances etc. In the present case, there is no such question raised by Revenue. The question raised is completely different, and as has been held by us above, the character of the transaction being clearly a capital receipt in the hands of the assessee cannot possibly be taxed as income in the assessee?s?theoretical? aspect of the present transaction is the fact that the assessee treated subscription receipts as income. The reality of the situation, however, is that the business aspect of the matter, when viewed as a whole, leads inevitably to the conclusion that the receipts in question were capital receipts and not income. | 1 | 4,226 | 648 | ### 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:
of India (1992) 75 Comp Cas 12, the Supreme Court on similar facts held that the deposits were capital receipts and not revenue receipts (vide paragraphs 67 & 68 of the aforesaid judgment). That case also pertains to a finance company which used to collect deposits, and credited part of its deposits to the profit and loss account, as in the present case. Hence, the ratio of the said decision, in our opinion, applies to this case also.It is well settled in income-tax law that book keeping entries are not decisive or determinative of the true nature of the entries as held by the Supreme Court in CIT vs. India Discount Co. Ltd. [1970] 75 ITR 191 and in Godhra Electricity Co. Ltd v. CIT [1997] 225 ITR 746 (SC) . It has been held in those decisions that the court has to see the true nature of the receipts and not go only by the entry in the books of account.We agree with the Tribunal that these deposits are really capital receipts and not revenue receipts. In Chowringhee Sales Bureau P. Ltd. V. CIT [1973] 87 ITR 542 (SC) which was followed in Sinclair Murray and Co. P. Ltd. V. CIT [1974] 97 ITR 615 , the Supreme Court observed (page 619):?It is the true nature and quality of the receipt and not the head under which it is entered in the account books that would prove decisive. If a receipt is a trading receipt, the fact that it is not so shown in the account books of the assessee would not prevent the assessing authority from treating it as trading receipt.It has been held by the Supreme court that the primary liability and onus is on the Department to prove that a certain receipt is liable to be taxed vide Parimisetti Seetharamamma v. CIT [1965] 57 ITR 532 (SC).Sri Chopra then relied on the decision of the Supreme Court in CIT v. Lakshmi Vilas Bank Ltd. [1996] 220 ITR 305. In our opinion that decision is also distinguishable because in that case the deposit was forfeited and the result of the transaction was that the bank became full owner of the security and the amount lying in deposit with it became its own money. In the present case there is no such finding that the deposit was forfeited or that at the end of the transaction the security deposit became the property of the assessee or that changed from a capital receipt to a revenue receipt. Hence, that decision is clearly distinguishable.?This Court, on 21.07.2015, in appeal against the said judgment held as under:"After reading of the decision of the High Court, we find that the High Court has rightly relied upon the judgment of this Court in ?Peerless General Finance & Investment Co. Ltd. & Anr. v. Reserve Bank of India? (1992) 2 SCC 343. Since the case is squarely covered by the judgment, we do not find any merit in these appeals and petitions which are accordingly, dismissed.?It is also correct to state that there can be no estoppel against a settled position in law [See Commissioner of Income-Tax, Bombay vs. C. Parakh & Co. (India) Ltd. 29 ITR 661 at 665 and Commissioner of Income-Tax, Madras vs. V.MR.P. Firm, Muar (1965) 56 ITR 67. 11. Shri Arijit Prasad, learned senior counsel, appearing on behalf of the Revenue, however, strongly relied upon the observations in Ram Janki Devi and another v. M/s. Juggilal Kamlapat, (1971) 1 SCC 477. In particular, he relied upon paragraph 12 of the judgment which reads as follows:-?The case of a deposit is something more than a mere loan of money. It will depend on the facts of each case whether the transaction is clothed with the character of a deposit of money. The surrounding circumstances, the relationship and character of the transaction and the manner in which parties treated the transaction will throw light on the true form of the transaction.?12. This judgment has no direct relevance to the facts of the present case. The vexed question in that case was as to whether a particular transaction in question was a loan or a deposit. It was in that context that paragraph 12 laid down that whether a loan of money could be called a deposit, would depend upon the facts of each case, having regard to the surrounding circumstances etc. In the present case, there is no such question raised by Revenue. The question raised is completely different, and as has been held by us above, the character of the transaction being clearly a capital receipt in the hands of the assessee cannot possibly be taxed as income in the assessee?s hands.13. Shri Prasad then relied upon the judgment of this Court in Poona Electric Supply Co. Ltd., Bombay v. Commissioner of Income-tax, Bombay City I, Bombay, AIR 1966 SC 30 . In particular, he relied upon a quotation from a Bombay High Court judgment which was approved by this Court, as follows: -?The principle of real income is not to be subordinated as to amount virtually to a negation of it when a surrender or concession or rebate in respect of managing agency commission is made, agreed to or given on grounds of commercial expediency, simply because it takes place some time after the close of an accounting year. In examining any transaction and situation of this nature the court would have more regard to the reality and specialty of the situation rather than the purely theoretical or doctrinaire aspect of it. It will lay greater emphasis on the business aspect of the matter viewed as a whole when that can be done without disregarding statutory language.?The ?theoretical? aspect of the present transaction is the fact that the assessee treated subscription receipts as income. The reality of the situation, however, is that the business aspect of the matter, when viewed as a whole, leads inevitably to the conclusion that the receipts in question were capital receipts and not income.
### Response:
1
### Explanation:
8. What is clear, even on general principle, on the facts of this case, is that subscriptions were received in the years in question from the public at large under a collective investment scheme, and these subscriptions were never at any point of time forfeited. Indeed, the supplementary affidavit filed before this Court states this as a fact, being based on an interim order of the High Court dated 03.09.1979 which obtained during the assessment years in question. This being the case, and surrendered certificates not being the subject-matter of the appeal before us, it is clear that even on general principles, deposits by way of amounts pursuant to these investment schemes made by subscribers which have never been forfeited can only be stated to be capital receipts.While it is true that there was no direct focus of the Court on whether subscriptions so received are capital or revenue in nature, we may still advert to the fact that this Court has also, on general principles, held that such subscriptions would be capital receipts, and if they were treated to be income, this would violate the Companies Act. It is, therefore, incorrect to state, as has been stated by the High Court, that the decision in Peerless General Finance and Investment Co. Limited (supra) must be read as not having laid down any absolute proposition of law that all receipts of subscription at the hands of the assessee for these years must be treated as capital receipts. We reiterate that though the Court?s focus was not directly on this, yet, a pronouncement by this Court, even if it cannot be strictly called the ratio decidendi of the judgment, would certainly be binding on the High Court. Even otherwise, as we have stated, it is clear that on general principles also such subscription cannot possibly be treated as income. Mr. Ganesh is right in stating that in cases of this nature it would not be possible to go only by the treatment of such subscriptions in the hands of accounts of the assessee itself.We agree with the Tribunal that these deposits are really capital receipts and not revenue receipts.is also correct to state that there can be no estoppel against a settled position in law [See Commissioner of Income-Tax, Bombay vs. C. Parakh & Co. (India) Ltd. 29 ITR 661 at 665 and Commissioner of Income-Tax, Madras vs. V.MR.P. Firm, Muar (1965) 56 ITR 67. This judgment has no direct relevance to the facts of the present case. The vexed question in that case was as to whether a particular transaction in question was a loan or a deposit. It was in that context that paragraph 12 laid down that whether a loan of money could be called a deposit, would depend upon the facts of each case, having regard to the surrounding circumstances etc. In the present case, there is no such question raised by Revenue. The question raised is completely different, and as has been held by us above, the character of the transaction being clearly a capital receipt in the hands of the assessee cannot possibly be taxed as income in the assessee?s?theoretical? aspect of the present transaction is the fact that the assessee treated subscription receipts as income. The reality of the situation, however, is that the business aspect of the matter, when viewed as a whole, leads inevitably to the conclusion that the receipts in question were capital receipts and not income.
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The Alote Estate & Anr Vs. R.B. Seth Hiralal Kalyanmal & Ors | Estate were liable as contributories in the sum of Rs. 16 lakhs as the shares were not fully paid by value in kind. The Maharaja and the Alote Estate in reply took up the position that in the absence of rectification of register by appropriate action they were not liable to pay as contributories because they held shares which were fully paid up. As regards the companys a resolution to give up 2,000 acres out of 6.000 acres and reduce the value of shares allotted to 9 lakhs it was maintained that the same was an independent transaction and its effect could be considered only in appropriate proceedings in accordance with law.5. The learned Company Judge by his order dated July 31, 1962 held that in a proceeding for winding up and while settling the list of contributories it was not open to go behind the transaction entered into at the time of the formation of the Company and that the consideration which had been freely accepted by the company could not be challenged as being inadequate in the absence of any allegation of fraud. He was further of the view that the contention of respondent No. 1 that the valuation of the land was Rs. 30 and not Rs. 300/- per acre could not be inquired into and it was not necessary to consider whether such inquiry was barred by limitation in view of Section 235 of the Act. It was, however, observed that if the allegation of respondent No. 1 was that the Alote Estate as an officer of the company was guilty of misfeasance or breach of trust the application having been made more than three years from the date of first appointment of liquidators would be clearly barred. Reference was made to numerous English and Indian decisions for coming to the conclusion that a fully paid shareholder could not be called upon to contribute towards the assets of the company in respect of such shares held by him. Other points were left for decision after the petition for confirmation of the resolution of the company was disposed of.6. Respondent No. I filed an appeal under the Letters Patent. The Division Bench hearing the appeal seems to have been influenced by the possibility that the land had been purchased by the Alote Estate at a small fraction of value for which it had been sold to the company largely owing to the Maharaja being all powerful in the conduct of its affairs. It was considered that an inquiry would be necessary when there was a prima facie indication that the allottee of the shares had paid only a fraction of the nominal value.7. Now Section 156 of the Act deals with the liability as contributories. Clause (iv) of sub-section (1) provides that in the case of a company limited by shares no contribution shall be required from any member exceeding the amount unpaid on the shares in respect of which he is liable as a present or past member. Section 158 defines the term "contributory". It means every person liable to contribute to the assets of a company in the event of its being wound up. Under Section 184 the Court shall settle the list of contributories with power to rectify the register of members in all cases where rectification is required in pursuance of the Act. Sections 185 and 186 confer power on the Court to require delivery of property from a contributory and to order payment of debts determined by it.8. The material question, therefore, was whether the appellants could be placed on the list of contributories. It could hardly be disputed that a shareholder of fully paid up shares will not be placed on the list of contributories and made to contribute towards the assets of the company unless the register is rectified and it is determined in appropriate proceedings that he is not a fully paid up shareholder.9. In England the rule which has been accepted as settled is that although the court can inquire into an allegation that owing to fraud the contract relating to fully paid up shares was vitiated but unless the contract is impeached mere inadequacy of price is not sufficient of itself to invalidate the contract. In the words of Vaughan Williams LJ, in In re Innes and Co. Ltd., (1903) 2 Ch Div 254, at page 262."You must shew that, these shares not having been paid for at all, the contract for purchase was a colourable transaction, and that in truth and in fact, qua value, these shares were not part of the consideration...."As stated in Palmers Company Law, 21st Edition, pages 190-191, the consideration for the allotment of shares may be money or moneys worth e. g., the transfer to the company of property. If a valid contract is made for the acceptance by the company of specified property in payment of shares the court will not whilst the contract stands inquire into the value of the consideration even at the instance of the liquidator. Where, however, the contract is fraudulent or shows on the face of it that the consideration given to the company is illusory or is clearly not equivalent to the nominal value of the shares the shares cannot, to this extent, be treated as fully paid and the shareholder may be held liable to pay for them in full. It is significant that no steps were taken by the liquidators to have the register rectified or the contract entered into by the company with the appellants avoided by means of appropriate proceedings. Even in the application filed by respondent No 1 in October 1961 there was no allegation of fraud. The fact stated related more to inadequacy of price or consideration and not to its being illusory or the like. In our judgment the learned single judge was right and the Division Bench was in error in directing an inquiry into the question whether the appellants had paid consideration which was inadequate. | 1[ds]As stated in Palmers Company Law, 21st Edition, pages 190-191, the consideration for the allotment of shares may be money or moneys worth e. g., the transfer to the company of property. If a valid contract is made for the acceptance by the company of specified property in payment of shares the court will not whilst the contract stands inquire into the value of the consideration even at the instance of the liquidator. Where, however, the contract is fraudulent or shows on the face of it that the consideration given to the company is illusory or is clearly not equivalent to the nominal value of the shares the shares cannot, to this extent, be treated as fully paid and the shareholder may be held liable to pay for them in full. It is significant that no steps were taken by the liquidators to have the register rectified or the contract entered into by the company with the appellants avoided by means of appropriate proceedings. Even in the application filed by respondent No 1 in October 1961 there was no allegation of fraud. The fact stated related more to inadequacy of price or consideration and not to its being illusory or the like. In our judgment the learned single judge was right and the Division Bench was in error in directing an inquiry into the question whether the appellants had paid consideration which was inadequate. | 1 | 1,783 | 254 | ### 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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Estate were liable as contributories in the sum of Rs. 16 lakhs as the shares were not fully paid by value in kind. The Maharaja and the Alote Estate in reply took up the position that in the absence of rectification of register by appropriate action they were not liable to pay as contributories because they held shares which were fully paid up. As regards the companys a resolution to give up 2,000 acres out of 6.000 acres and reduce the value of shares allotted to 9 lakhs it was maintained that the same was an independent transaction and its effect could be considered only in appropriate proceedings in accordance with law.5. The learned Company Judge by his order dated July 31, 1962 held that in a proceeding for winding up and while settling the list of contributories it was not open to go behind the transaction entered into at the time of the formation of the Company and that the consideration which had been freely accepted by the company could not be challenged as being inadequate in the absence of any allegation of fraud. He was further of the view that the contention of respondent No. 1 that the valuation of the land was Rs. 30 and not Rs. 300/- per acre could not be inquired into and it was not necessary to consider whether such inquiry was barred by limitation in view of Section 235 of the Act. It was, however, observed that if the allegation of respondent No. 1 was that the Alote Estate as an officer of the company was guilty of misfeasance or breach of trust the application having been made more than three years from the date of first appointment of liquidators would be clearly barred. Reference was made to numerous English and Indian decisions for coming to the conclusion that a fully paid shareholder could not be called upon to contribute towards the assets of the company in respect of such shares held by him. Other points were left for decision after the petition for confirmation of the resolution of the company was disposed of.6. Respondent No. I filed an appeal under the Letters Patent. The Division Bench hearing the appeal seems to have been influenced by the possibility that the land had been purchased by the Alote Estate at a small fraction of value for which it had been sold to the company largely owing to the Maharaja being all powerful in the conduct of its affairs. It was considered that an inquiry would be necessary when there was a prima facie indication that the allottee of the shares had paid only a fraction of the nominal value.7. Now Section 156 of the Act deals with the liability as contributories. Clause (iv) of sub-section (1) provides that in the case of a company limited by shares no contribution shall be required from any member exceeding the amount unpaid on the shares in respect of which he is liable as a present or past member. Section 158 defines the term "contributory". It means every person liable to contribute to the assets of a company in the event of its being wound up. Under Section 184 the Court shall settle the list of contributories with power to rectify the register of members in all cases where rectification is required in pursuance of the Act. Sections 185 and 186 confer power on the Court to require delivery of property from a contributory and to order payment of debts determined by it.8. The material question, therefore, was whether the appellants could be placed on the list of contributories. It could hardly be disputed that a shareholder of fully paid up shares will not be placed on the list of contributories and made to contribute towards the assets of the company unless the register is rectified and it is determined in appropriate proceedings that he is not a fully paid up shareholder.9. In England the rule which has been accepted as settled is that although the court can inquire into an allegation that owing to fraud the contract relating to fully paid up shares was vitiated but unless the contract is impeached mere inadequacy of price is not sufficient of itself to invalidate the contract. In the words of Vaughan Williams LJ, in In re Innes and Co. Ltd., (1903) 2 Ch Div 254, at page 262."You must shew that, these shares not having been paid for at all, the contract for purchase was a colourable transaction, and that in truth and in fact, qua value, these shares were not part of the consideration...."As stated in Palmers Company Law, 21st Edition, pages 190-191, the consideration for the allotment of shares may be money or moneys worth e. g., the transfer to the company of property. If a valid contract is made for the acceptance by the company of specified property in payment of shares the court will not whilst the contract stands inquire into the value of the consideration even at the instance of the liquidator. Where, however, the contract is fraudulent or shows on the face of it that the consideration given to the company is illusory or is clearly not equivalent to the nominal value of the shares the shares cannot, to this extent, be treated as fully paid and the shareholder may be held liable to pay for them in full. It is significant that no steps were taken by the liquidators to have the register rectified or the contract entered into by the company with the appellants avoided by means of appropriate proceedings. Even in the application filed by respondent No 1 in October 1961 there was no allegation of fraud. The fact stated related more to inadequacy of price or consideration and not to its being illusory or the like. In our judgment the learned single judge was right and the Division Bench was in error in directing an inquiry into the question whether the appellants had paid consideration which was inadequate.
### Response:
1
### Explanation:
As stated in Palmers Company Law, 21st Edition, pages 190-191, the consideration for the allotment of shares may be money or moneys worth e. g., the transfer to the company of property. If a valid contract is made for the acceptance by the company of specified property in payment of shares the court will not whilst the contract stands inquire into the value of the consideration even at the instance of the liquidator. Where, however, the contract is fraudulent or shows on the face of it that the consideration given to the company is illusory or is clearly not equivalent to the nominal value of the shares the shares cannot, to this extent, be treated as fully paid and the shareholder may be held liable to pay for them in full. It is significant that no steps were taken by the liquidators to have the register rectified or the contract entered into by the company with the appellants avoided by means of appropriate proceedings. Even in the application filed by respondent No 1 in October 1961 there was no allegation of fraud. The fact stated related more to inadequacy of price or consideration and not to its being illusory or the like. In our judgment the learned single judge was right and the Division Bench was in error in directing an inquiry into the question whether the appellants had paid consideration which was inadequate.
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State of Telangana and Ors Vs. D. Mahesh Kumar and Ors | the award had been made five years or more prior to commencement of 2013 Act but the physical possession of the land had not been taken or the compensation had not been paid. The provision of Section 24(2) and its proviso together further clarify that, in case the award has been made and compensation in respect of majority of land holdings has not been deposited in the account of the beneficiaries, then, all the beneficiaries specified in the notification for Acquisition shall be entitled to compensation in accordance with the provisions of Act of 2013. Even if, minority of the claimants are disbursed with the compensation such claimants also would get benefit of compensation under the Act of 2013. Thus it is clear that even if the acquisition does not lapse, all the beneficiaries to whom the compensation is payable would be entitled to compensation under the Act of 2013. If the proviso to Sub-section (2) of Section 24 is read as part of Sub-section (1) of Section 24, the same makes the said provision completely different and inconsistent. When we consider the expression where an Award Under Section 11 has been made provided Under Section 24(1)(b), the proceedings have to continue under the provisions of Act of 1894. If the proviso to Sub-section (2) of Section 24 read as proviso to Section 24(1), then Section 24(1)(b) will be rendered nugatory and/or becomes otiose. True effect has to be given to the provision contained in Section 24(1)(b) which says that when award Under Section 11 has been made, then such proceedings shall continue under the provisions of Land Acquisition Act 1894, as if the said Act has not been repealed. The three contingencies are provided Under Sub-section (2) of Section 24 i.e. (i) in case if award was passed five years or more prior to the commencement of Act of 2013 and (ii) if compensation has not been paid, or (iii) possession has not been taken. Exception is carved out by adding the proviso to Section 24(2) - wherein the land acquisition would not lapse, in case some of the land losers are paid compensation but land owners of majority of holding are not paid. Thus we are of the considered opinion that the proviso to Section 24(2) cannot be lifted and made part of Section 24(1)(b). At the cost of repetition, we observe that reading of Sections 24(1) and 24(2) conjointly & homogenously makes it abundantly clear that they operate in two different fields. Section 24(1)(b) unequivocally indicates that in case the award has been passed under the Act of 1894, all the proceedings shall continue as if the Act of 1894 has not been repealed. Section 24(1)(a) makes the provision of Act of 2013 applicable only in case where the award has not been passed. In other words, it gives a clue that when an award has been passed, obviously further proceedings have to be undertaken under the Act of 1894, to that extent proceedings under the said Act is saved, and the Act of 2013 will not apply. In such cases, there is no necessity of initiation of acquisition proceedings afresh except in cases as provided Under Section 24(2). Whereas Section 24(2) would be applicable if the Award Under Section 11 of the old Act has been made five years or more prior to commencement of 1894 but physical possession of the land has not been taken or the compensation has not been paid. Proviso to Section 24(2) further makes it clear that in case the compensation in respect of majority of land holdings has not been deposited in the account of the beneficiaries, then, all the beneficiaries, specified in the notification for Acquisition shall be entitled to compensation in accordance with the provisions of Act of 2013. The legislature has provided different consequences in the provisions keeping in mind the time gap as enumerated in Sections 24(1) and 24(2). The legislature has visualized and expected that the things would not happen overnight on passing of an award. 13. We have already clarified supra based on catena of judgments, that a proviso appended to a provision has to be specifically interpreted in the manner so as to enable the field which is covered by the main provision. The proviso is only an exception to main provision to which it has been enacted and no other. The proviso deals with a situation which takes something out of the main enactment to provide a particular course of action, which course of action could not have been adopted in the absence of the proviso. The proviso appended to Section 24(2) indicates that it carves out an exception for a situation where the land acquisition proceedings shall not be deemed to lapse. Thus, for the applicability of the proviso, a case has to be covered by Section 24(2) i.e. (1) award has been made five years or more prior to the enforcement of the 2013 Act. The proviso to Section 24(2) contemplates a situation where with respect to majority of the holding compensation not deposited event of minority of holding the landowners are paid, meaning thereby that for majority of the landholding in case amount is deposited acquisition is saved by the proviso. The proviso in fact extends the benefit even to those land holders who have received compensation as per the 1894 Act. Thus all land holders are to receive benefit of higher and liberal compensation under 2013 Act. This situation is one where land acquisition proceedings shall not lapse and are saved. The purpose and object of the proviso is to give benefit of computation of compensation to all landholders and to save land acquisition proceedings. Hence, it is evident that the proviso is appropriately be treated as a proviso to Sub-section (2) of Section 24 and cannot be read as proviso to Section 24(1)(b) of Act of 2013. 10. Thus, for the aforesaid reasons in the instant case, the first question raised is answered against the landowners, and | 1[ds]7. This Court in the case of Delhi Metro Rail Corporation Limited (DMRC) v. Tarun Pal Singh and Ors. decided on 15th November 2017 has considered the first question, with respect to the proviso of Section 24(2)of the Act of 2013. The learned senior Counsel, appearing on behalf of the landowners, in this case, was also heard before deciding the question. This Court has decided that as per Rules of construction of a proviso has to be read as the part of Section 24(2), and not as independent provision neither a proviso to Section 24(1)(b). It would be applicable, as provided Under Section 24(2), with respect to an award passed before five years or more and in a case when compensation has not been deposited in the account of beneficiaries/landholders with respect to the majority of the holding and not in a case where award has been passed within five years of the commencement of the Act of 2013. In case, an award has been passed within five years, the proceedings would continue under the Act of 1894 as if it had not been repealed, as provided in Section 24(1)(b) of the Act of 2013.Ultimately, this Court in the DMRC (supra), has observed:9. What follows from aforesaid enunciation that effect of a proviso is to except all preceding portion of the enactment. It is only occasionally that proviso is unrelated to subject matter of preceding section, it may have to be interpreted as a substantive provision. Ordinarily, a proviso is not interpreted as stating a general rule. Provisos are often added as saving clauses. A proviso must be construed with reference to the preceding parts of the Clause to which it is appended. The proviso is ordinarily subordinate to the main section. A construction placed on proviso which brings general harmony to the terms of the Section should prevail. A proviso may sometime contain substantive provision. Ordinarily, proviso to a Section is intended to take out a part of the main Section for special treatment. Normally, a proviso does not travel beyond the main provision to which it is a proviso. A proviso is not interpreted as stating a general rule, it is an exception to main provision to which it is carved out as a proviso. Proviso cannot be construed as enlarging the scope of enactment when it can be fairly and properly constructed without attributing that effect. It is not open to read in the words of enactment which are not to be found there and which would alter its operative effect.11. An exception is also carved out by a non-obstante Clause contained in Sub-section (2) of Section 24; it begins with notwithstanding anything contained in Sub-section (1). Thus, it would supersede provisions of Section 24(1) also. In case of land acquisition proceedings, initiated under the Act of 1894, wherein an Award has been made within 5 years or more prior to the commencement of the Act of 2013, if physical possession has not been taken or compensation has not been paid, then the said proceedings shall be deemed to have lapsed. The proviso to Sub-section (2) makes it clear that when the Award has been made and, compensation in respect of majority of holdings has not been deposited in the account of beneficiaries the acquisition would not lapse. However, all the beneficiaries shall be entitled to enhanced compensation under the Act of 2013. This proviso is to be necessarily part of Sub-section (2) of Section 24 only. The legislative intention is clear that it is enacted as proviso to Section 24(2), and otherwise also if read as if it were a proviso to Section 24(1)(b), it would create repugnancy with said provision and the provisions of Section 24(1)(b) and proviso to 24(2) would become wholly inconsistent with each other. This is a trite law that the interpretation which creates inconsistency or repugnancy has to be avoided and proviso has to be part of Section 24(2) as enacted. As per fundamental Rule of its construction, no contrary intention is available in the provisions so as not to read it as part of Section 24(2). As Section 24(1)(b) provides, in case award has been passed under Act of 1894, the proceedings shall continue of the said Act as if it has not been replaced whereas Section 24(2) provides deemed lapse in case award is passed 5 years or more before commencement of Act of 2013 and possession has not been taken or compensation has not been paid and as per the proviso with respect to majority of holding compensation has not been deposited in account of land owners. In case award has been passed few days before commencement of the Act of 2013, then deposit of compensation with respect to majority of holding is bound to take time, that is why legislature has made difference of consequences based upon time gap in passing of award as requisite steps to be taken are bound to consume some time by providing proceedings to continue under the Act of 1894.12. Section 24(1) begins with non-obstante clause. The Parliament has given overriding effect to this provision over all other provisions of Act of 2013. Section 24(2) also begins with non-obstante clause. This provision has overriding effect over Section 24(1). It is apparent that Sub-section (2) of Section 24 deals with the lapse of acquisition in case the award had been made five years or more prior to commencement of 2013 Act but the physical possession of the land had not been taken or the compensation had not been paid. The provision of Section 24(2) and its proviso together further clarify that, in case the award has been made and compensation in respect of majority of land holdings has not been deposited in the account of the beneficiaries, then, all the beneficiaries specified in the notification for Acquisition shall be entitled to compensation in accordance with the provisions of Act of 2013. Even if, minority of the claimants are disbursed with the compensation such claimants also would get benefit of compensation under the Act of 2013. Thus it is clear that even if the acquisition does not lapse, all the beneficiaries to whom the compensation is payable would be entitled to compensation under the Act of 2013.If the proviso to Sub-section (2) of Section 24 is read as part of Sub-section (1) of Section 24, the same makes the said provision completely different and inconsistent. When we consider the expression where an Award Under Section 11 has been made provided Under Section 24(1)(b), the proceedings have to continue under the provisions of Act of 1894. If the proviso to Sub-section (2) of Section 24 read as proviso to Section 24(1), then Section 24(1)(b) will be rendered nugatory and/or becomes otiose. True effect has to be given to the provision contained in Section 24(1)(b) which says that when award Under Section 11 has been made, then such proceedings shall continue under the provisions of Land Acquisition Act 1894, as if the said Act has not been repealed.The three contingencies are provided Under Sub-section (2) of Section 24 i.e. (i) in case if award was passed five years or more prior to the commencement of Act of 2013 and (ii) if compensation has not been paid, or (iii) possession has not been taken. Exception is carved out by adding the proviso to Section 24(2) - wherein the land acquisition would not lapse, in case some of the land losers are paid compensation but land owners of majority of holding are not paid. Thus we are of the considered opinion that the proviso to Section 24(2) cannot be lifted and made part of Section 24(1)(b).At the cost of repetition, we observe that reading of Sections 24(1) and 24(2) conjointly & homogenously makes it abundantly clear that they operate in two different fields. Section 24(1)(b) unequivocally indicates that in case the award has been passed under the Act of 1894, all the proceedings shall continue as if the Act of 1894 has not been repealed. Section 24(1)(a) makes the provision of Act of 2013 applicable only in case where the award has not been passed. In other words, it gives a clue that when an award has been passed, obviously further proceedings have to be undertaken under the Act of 1894, to that extent proceedings under the said Act is saved, and the Act of 2013 will not apply. In such cases, there is no necessity of initiation of acquisition proceedings afresh except in cases as provided Under Section 24(2). Whereas Section 24(2) would be applicable if the Award Under Section 11 of the old Act has been made five years or more prior to commencement of 1894 but physical possession of the land has not been taken or the compensation has not been paid. Proviso to Section 24(2) further makes it clear that in case the compensation in respect of majority of land holdings has not been deposited in the account of the beneficiaries, then, all the beneficiaries, specified in the notification for Acquisition shall be entitled to compensation in accordance with the provisions of Act of 2013. The legislature has provided different consequences in the provisions keeping in mind the time gap as enumerated in Sections 24(1) and 24(2). The legislature has visualized and expected that the things would not happen overnight on passing of an award.13. We have already clarified supra based on catena of judgments, that a proviso appended to a provision has to be specifically interpreted in the manner so as to enable the field which is covered by the main provision. The proviso is only an exception to main provision to which it has been enacted and no other. The proviso deals with a situation which takes something out of the main enactment to provide a particular course of action, which course of action could not have been adopted in the absence of the proviso.The proviso appended to Section 24(2) indicates that it carves out an exception for a situation where the land acquisition proceedings shall not be deemed to lapse. Thus, for the applicability of the proviso, a case has to be covered by Section 24(2) i.e. (1) award has been made five years or more prior to the enforcement of the 2013 Act.The proviso to Section 24(2) contemplates a situation where with respect to majority of the holding compensation not deposited event of minority of holding the landowners are paid, meaning thereby that for majority of the landholding in case amount is deposited acquisition is saved by the proviso. The proviso in fact extends the benefit even to those land holders who have received compensation as per the 1894 Act. Thus all land holders are to receive benefit of higher and liberal compensation under 2013 Act. This situation is one where land acquisition proceedings shall not lapse and are saved. The purpose and object of the proviso is to give benefit of computation of compensation to all landholders and to save land acquisition proceedings. Hence, it is evident that the proviso is appropriately be treated as a proviso to Sub-section (2) of Section 24 and cannot be read as proviso to Section 24(1)(b) of Act of 2013.10. Thus, for the aforesaid reasons in the instant case, the first question raised is answered against the landowners,The Single Bench, as well as the Division Bench, of the High Court, has rightly found that award is not antedated. It was pronounced on 23.12.2013; there is a presumption of correctness of official acts Under Section 114(e) of Evidence Act the anti-dating has not been proved, the notices issued Under Section 12(2) were received on different dates by the landowners. The purchasers after the notification issued Under Section 4 of the Act of 1894; had received the notice a little later; however, that would not make any difference with respect of the date of the award being 23.12.2013. Original records have also been perused by the High Court, and the finding on facts recorded is that the award had not been antedated. We fully endorse the said finding. We have no hesitation to reject the contention to the contrary, advanced on behalf of the landowners.in the instant case, it was signed on 23.12.201315. It is apparent, from a conjoint reading of Sections 11-A and 12, that when the award is made, the period of limitation of two years for passing of award is to be adhered to, as provided in Section 11-A, it has to be computed from the date in terms of provisions of Section 12 read with Section 6; and none of the provisions is dependent upon the service of notice Under Section 12(2) on the such of the interested persons as were not present when the award had been made.Thus, the date of passing of Collectors award has been legislatively provided for to be the date on which it is made. Communication is relevant only for the purpose of computing the period of limitation within which reference can be sought17. No period is provided for seeking reference Under Section 30, which is on limited grounds not as wide as the one Under Section 18. Under Section 18 measurement and quantum of compensation can be also be questioned whereas it is not so Under Section 30 in that apportionment and entitlement of compensation between interested persons can be raised.18. In view of the aforementioned statutory scheme provided for by the legislature, in our considered opinion, date of communication of an award cannot be said to be the date of the award as suggested on behalf of the landowners.ection 18 provides for the grounds on which Collector can make Reference to the Court on behalf of any interested person. The first proviso of Section 18(2) requires of a person who was present when the award had been made to seek the reference within six weeks from the date of the Collectors award. The second proviso of Section 18(2) provides for all cases other than the one provided for by the first proviso; six weeks from the date of receipt of the notice from the Collector Under Section 12(2), or within six months from the date of the Collectors award which is to be treated as date of knowledge whichever period first expire.19. Reliance has been placed by the landowners on a three Judges Bench decision in State of Punjab v. Mst. Qaisar Jehan Begum and Anr. AIR 1963 SC 1604 This Court has made aforesaid observation clearly in the context of period of limitation during which reference is provided Under Section 18 read with Section 12(2) of the Act of 1894. This Court was not concerned at all in the said decision what date is to be taken as the date of award. The decision is distinguishable and cannot be said to be applicable.21. It is apparent from the aforesaid discussion that date of award is final and conclusive and there cannot be different dates of award with respect to different persons based on date of its communication. It is not provided under the scheme of the Act of 1894. In Mrs. Khorshed Shapoor Chenai and Ors. v. Assistant Controller of Estate Duty, Andhra Pradesh and Ors.(1980) 2 SCC 1 this Court considered the right to receive compensation for acquisition of land in the Act of 1894 it observed that there was no separate right to receive further compensation after Collectors award and right to challenge award in further proceedings would be part of right to receive compensation. This Court has explained the nature of the Collectors award Under Section 11 of the Act of 1894. Right to compensation does not merge in the award. The payment can indicate the correctness of award because the right to compensation is not fully redeemed. The decision does not espouse the proposition urged by the landowners.24. In Premji Nathu v. State of Gujarat and Anr. (2012) 5 SCC 250 this Court has observed that notice issued Under Section 12(2) should accompany a copy of the award, to be supplied to the landowner who is not present or not represented before the Collector at the time of making of the award. Whereas there is no such requirement Under Section 12(2) to send copy of award. Other decisions also indicate that there is no need of supplying a copy of the award along with a notice Under Section 12(2) of the Act of 1894. But this is not the question involved in the case, as such; it is not necessary to examine correctness of decision in Premji Nathu case. This Court was not concerned in Premji Nathu case (supra) with question what date is to be taken as the date of the award Under Section 11-A. Thus, decision is of no avail to landowners, to invoke the provisions of the Act of 2013.25. In Bhagwan Das and Ors. v. State of Uttar Pradesh and Ors. (2010) 3 SCC 545 this Court has considered the proviso contained in Clause (b) of Section 18 of the Act of 1894 and has observed that if person interested was not present when the award was made, and if he does not receive notice Under Section 12(2) from Collector, he can make application within six months of the date on which he actually or constructively came to know about contents of the award. This Court held that the expression six months from date of Collectors award is not to be literally construed but from the date of knowledge of award. This Court has observed:26. If the words six months from the date of the Collectors award should be literally interpreted as referring to the date of the award and not the date of knowledge of the award, it will lead to unjust and absurd results. For example, the Collector may choose to make an award but not to issue any notice Under Section 12(2) of the Act, either due to negligence or oversight or due to any ulterior reasons. Or he may send a notice but may not bother to ensure that it is served on the landowner as required Under Section 45 of the Act. If the words date of the Collectors award are literally interpreted, the effect would be that on the expiry of six months from the date of award, even though the claimant had no notice of the award, he would lose the right to seek a reference. That will lead to arbitrary and unreasonable discrimination between those who are notified of the award and those who are not notified of the award.27. Unless the procedure under the Act is fair, reasonable and non-discriminatory, it will run the risk of being branded as being violative of Article 14 as also Article 300-A of the Constitution of India. To avoid such consequences, the words date of the Collectors award occurring in proviso (b) to Section 18 requires to be read as referring to the date of knowledge of the essential contents of the award, and not the actual date of the Collectors award.28. The following position, therefore, emerges from the interpretation of the proviso to Section 18 of the Act.(i) If the award is made in the presence of the person interested (or his authorized representative), he has to make the application within six weeks from the date of the Collectors award itself.(ii) If the award is not made in the presence of the person interested (or his authorized representative), he has to make the application seeking reference within six weeks of the receipt of the notice from the Collector Under Section 12(2).(iii) If the person interested (or his representative) was not present when the award is made, and if he does not receive the notice Under Section 12(2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award.(iv) If a person interested receives a notice Under Section 12(2) of the Act, after the expiry of six weeks from the date of receipt of such notice, he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice Under Section 12(2) of the Act was the date of knowledge of the contents of the award.It is apparent that this Court has distinguished between the date of the award and the date of the knowledge. Date of knowledge is material for the purpose of seeking the reference but the date of award remains static and final.26. Resultantly, the date of award in the instant case has to be taken as 23.12.2013. Thus, the provisions of the Act of 1894 would be applicable as provided Under Section 24(1)(b) the proceedings shall continue under the provisions of the said Act as if it has not been repealed, though notice of award is served when the Act of 2013 has come into force. | 1 | 4,053 | 4,004 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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the award had been made five years or more prior to commencement of 2013 Act but the physical possession of the land had not been taken or the compensation had not been paid. The provision of Section 24(2) and its proviso together further clarify that, in case the award has been made and compensation in respect of majority of land holdings has not been deposited in the account of the beneficiaries, then, all the beneficiaries specified in the notification for Acquisition shall be entitled to compensation in accordance with the provisions of Act of 2013. Even if, minority of the claimants are disbursed with the compensation such claimants also would get benefit of compensation under the Act of 2013. Thus it is clear that even if the acquisition does not lapse, all the beneficiaries to whom the compensation is payable would be entitled to compensation under the Act of 2013. If the proviso to Sub-section (2) of Section 24 is read as part of Sub-section (1) of Section 24, the same makes the said provision completely different and inconsistent. When we consider the expression where an Award Under Section 11 has been made provided Under Section 24(1)(b), the proceedings have to continue under the provisions of Act of 1894. If the proviso to Sub-section (2) of Section 24 read as proviso to Section 24(1), then Section 24(1)(b) will be rendered nugatory and/or becomes otiose. True effect has to be given to the provision contained in Section 24(1)(b) which says that when award Under Section 11 has been made, then such proceedings shall continue under the provisions of Land Acquisition Act 1894, as if the said Act has not been repealed. The three contingencies are provided Under Sub-section (2) of Section 24 i.e. (i) in case if award was passed five years or more prior to the commencement of Act of 2013 and (ii) if compensation has not been paid, or (iii) possession has not been taken. Exception is carved out by adding the proviso to Section 24(2) - wherein the land acquisition would not lapse, in case some of the land losers are paid compensation but land owners of majority of holding are not paid. Thus we are of the considered opinion that the proviso to Section 24(2) cannot be lifted and made part of Section 24(1)(b). At the cost of repetition, we observe that reading of Sections 24(1) and 24(2) conjointly & homogenously makes it abundantly clear that they operate in two different fields. Section 24(1)(b) unequivocally indicates that in case the award has been passed under the Act of 1894, all the proceedings shall continue as if the Act of 1894 has not been repealed. Section 24(1)(a) makes the provision of Act of 2013 applicable only in case where the award has not been passed. In other words, it gives a clue that when an award has been passed, obviously further proceedings have to be undertaken under the Act of 1894, to that extent proceedings under the said Act is saved, and the Act of 2013 will not apply. In such cases, there is no necessity of initiation of acquisition proceedings afresh except in cases as provided Under Section 24(2). Whereas Section 24(2) would be applicable if the Award Under Section 11 of the old Act has been made five years or more prior to commencement of 1894 but physical possession of the land has not been taken or the compensation has not been paid. Proviso to Section 24(2) further makes it clear that in case the compensation in respect of majority of land holdings has not been deposited in the account of the beneficiaries, then, all the beneficiaries, specified in the notification for Acquisition shall be entitled to compensation in accordance with the provisions of Act of 2013. The legislature has provided different consequences in the provisions keeping in mind the time gap as enumerated in Sections 24(1) and 24(2). The legislature has visualized and expected that the things would not happen overnight on passing of an award. 13. We have already clarified supra based on catena of judgments, that a proviso appended to a provision has to be specifically interpreted in the manner so as to enable the field which is covered by the main provision. The proviso is only an exception to main provision to which it has been enacted and no other. The proviso deals with a situation which takes something out of the main enactment to provide a particular course of action, which course of action could not have been adopted in the absence of the proviso. The proviso appended to Section 24(2) indicates that it carves out an exception for a situation where the land acquisition proceedings shall not be deemed to lapse. Thus, for the applicability of the proviso, a case has to be covered by Section 24(2) i.e. (1) award has been made five years or more prior to the enforcement of the 2013 Act. The proviso to Section 24(2) contemplates a situation where with respect to majority of the holding compensation not deposited event of minority of holding the landowners are paid, meaning thereby that for majority of the landholding in case amount is deposited acquisition is saved by the proviso. The proviso in fact extends the benefit even to those land holders who have received compensation as per the 1894 Act. Thus all land holders are to receive benefit of higher and liberal compensation under 2013 Act. This situation is one where land acquisition proceedings shall not lapse and are saved. The purpose and object of the proviso is to give benefit of computation of compensation to all landholders and to save land acquisition proceedings. Hence, it is evident that the proviso is appropriately be treated as a proviso to Sub-section (2) of Section 24 and cannot be read as proviso to Section 24(1)(b) of Act of 2013. 10. Thus, for the aforesaid reasons in the instant case, the first question raised is answered against the landowners, and
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communication. It is not provided under the scheme of the Act of 1894. In Mrs. Khorshed Shapoor Chenai and Ors. v. Assistant Controller of Estate Duty, Andhra Pradesh and Ors.(1980) 2 SCC 1 this Court considered the right to receive compensation for acquisition of land in the Act of 1894 it observed that there was no separate right to receive further compensation after Collectors award and right to challenge award in further proceedings would be part of right to receive compensation. This Court has explained the nature of the Collectors award Under Section 11 of the Act of 1894. Right to compensation does not merge in the award. The payment can indicate the correctness of award because the right to compensation is not fully redeemed. The decision does not espouse the proposition urged by the landowners.24. In Premji Nathu v. State of Gujarat and Anr. (2012) 5 SCC 250 this Court has observed that notice issued Under Section 12(2) should accompany a copy of the award, to be supplied to the landowner who is not present or not represented before the Collector at the time of making of the award. Whereas there is no such requirement Under Section 12(2) to send copy of award. Other decisions also indicate that there is no need of supplying a copy of the award along with a notice Under Section 12(2) of the Act of 1894. But this is not the question involved in the case, as such; it is not necessary to examine correctness of decision in Premji Nathu case. This Court was not concerned in Premji Nathu case (supra) with question what date is to be taken as the date of the award Under Section 11-A. Thus, decision is of no avail to landowners, to invoke the provisions of the Act of 2013.25. In Bhagwan Das and Ors. v. State of Uttar Pradesh and Ors. (2010) 3 SCC 545 this Court has considered the proviso contained in Clause (b) of Section 18 of the Act of 1894 and has observed that if person interested was not present when the award was made, and if he does not receive notice Under Section 12(2) from Collector, he can make application within six months of the date on which he actually or constructively came to know about contents of the award. This Court held that the expression six months from date of Collectors award is not to be literally construed but from the date of knowledge of award. This Court has observed:26. If the words six months from the date of the Collectors award should be literally interpreted as referring to the date of the award and not the date of knowledge of the award, it will lead to unjust and absurd results. For example, the Collector may choose to make an award but not to issue any notice Under Section 12(2) of the Act, either due to negligence or oversight or due to any ulterior reasons. Or he may send a notice but may not bother to ensure that it is served on the landowner as required Under Section 45 of the Act. If the words date of the Collectors award are literally interpreted, the effect would be that on the expiry of six months from the date of award, even though the claimant had no notice of the award, he would lose the right to seek a reference. That will lead to arbitrary and unreasonable discrimination between those who are notified of the award and those who are not notified of the award.27. Unless the procedure under the Act is fair, reasonable and non-discriminatory, it will run the risk of being branded as being violative of Article 14 as also Article 300-A of the Constitution of India. To avoid such consequences, the words date of the Collectors award occurring in proviso (b) to Section 18 requires to be read as referring to the date of knowledge of the essential contents of the award, and not the actual date of the Collectors award.28. The following position, therefore, emerges from the interpretation of the proviso to Section 18 of the Act.(i) If the award is made in the presence of the person interested (or his authorized representative), he has to make the application within six weeks from the date of the Collectors award itself.(ii) If the award is not made in the presence of the person interested (or his authorized representative), he has to make the application seeking reference within six weeks of the receipt of the notice from the Collector Under Section 12(2).(iii) If the person interested (or his representative) was not present when the award is made, and if he does not receive the notice Under Section 12(2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award.(iv) If a person interested receives a notice Under Section 12(2) of the Act, after the expiry of six weeks from the date of receipt of such notice, he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice Under Section 12(2) of the Act was the date of knowledge of the contents of the award.It is apparent that this Court has distinguished between the date of the award and the date of the knowledge. Date of knowledge is material for the purpose of seeking the reference but the date of award remains static and final.26. Resultantly, the date of award in the instant case has to be taken as 23.12.2013. Thus, the provisions of the Act of 1894 would be applicable as provided Under Section 24(1)(b) the proceedings shall continue under the provisions of the said Act as if it has not been repealed, though notice of award is served when the Act of 2013 has come into force.
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Salar Jung Sugar Nulls Ltd. Etc Vs. State Of Mysore & Ors | Section 2 (t) of the Mysore Sales Tax Act, 1957.Sale is defined in Section 2 (t) as follows:-"sale with all its grammatical variations and cognate expressions means every transfer of the property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration, but does not include a mortgage, hypothecation, charge or pledge". 49. The Control Orders are to be kept in the forefront for appreciating the true character of transactions. It is apparent that the area is restricted. The parties are determined by the order. The minimum price is fixed. The minimum quantity of supply is also regulated. These features do not complete the picture. The entire transaction indicates that the parties agree to buy and sell. The parties choose the terms of delivery. The parties have choice with regard to obtaining supply of a quantity higher than 95 per cent of the yield. The parties can stipulate for a price higher than the minimum. The parties can have terms for payment in advance as well as in cash. A grower may not cultivate and there may not be any yield. A factory may be closed or wound up and may not buy sugarcane. A factory can reject goods after inspection. The combination of all these features indicates that the parties entered into agreement with mutual assent and with volition for transfer of goods in consideration of price. Transactions of purchase and sale may be regulated by schemes and may be liable to restrictions as to the manner or mode of sale. Such restrictions may become necessary by reason of co-ordination between production and distribution in planning the economy of the country. The contention of the appellants fails. The transactions amount to sales within the meaning of the Mysore Sales Tax Act. 50. The second contention on behalf of the appellants was that the factories were not dealers within the meaning of then Mysore Sales Tax Act. Dealer is defined in Section 2 (k) of the Mysore Sales Tax Act of 1957 as follows:-"Dealers means any person who carries on the business of buying , selling, supplying or distributing goods, directly or otherwise whether for cash or for deferred payment or for commission remuneration or other valuable consideration and includes :- (v) a person who sells goods produced by him by manufacture or otherwise". It was contended that the factory was a manufacturer of sugar and paid excise duty on sugar to the Central Government and sugar was item 34 of the Second schedule and therefore, no tax was payable by a dealer who is a manufacturer of sugar. The purchase of sugarcane was said to be for manufacture of sugar and not for resale of sugarcane and therefore the tax which is levied on the dealer will not fall on the appellants on the purchase of sugarcane. The High Court held relying on the decision of this Court in State of Andhra Pradesh v. Abdul Bakshi and Bros., AIR 1965 SC 531 that if a person carried on the business of buying or selling a commodity it is not necessary that he should sell the same commodity to become a dealer. The commodity may be converted into another saleable commodity or it may be used as an ingredient in the manufacture of a commodity. Therefore, the factories which bought sugarcane could be said to carry on the business of buying and selling sugarcane and the factories are dealer within the meaning of the Mysore Sales Tax Act. 51. The third contention on behalf of the appellants was that the levy of 15 per cent purchase tax on the sugarcane on the appellants was in violation of Article 14 of the Constitution inasmuch as the rates were different in different States. It is an indisputable feature in the present appeals that all the factories in Mysore have been treated equally. Different rates in different States are explicable on various grounds. The quantity available, the conditions of agriculturists, the number of factories will all have distinctive features. Therefore, there can be no infraction of Article 14 of the Constitution. 52. It was also said on behalf of the appellants that tax on purchase of sugarcane could not be collected by the appellants as tax. The High Court relying on the decision on 1958 SCR 1355 = (AIR 1958 SC 452 ) said that the mere circumstance that the appellants could not collect from the purchasers of the sugar the amount the factories had paid as purchase tax on sugarcane would not alter the nature or quality of tax. This Court in the case of Tata Iron and Steel Co., 1958 SCR 1355 = (AIR 1958 SC 452 ) said This is further made clear by the fact that the registered dealer need not, if he so pleases or chooses, collect the tax from the purchaser and sometimes by reason of competition with other registered dealers he may find it profitable to sale his goods and to retain his old customers even at the sacrifice of the sales tax. This also makes it clear that the sales tax need not be passed on to the purchasers and this fact does not alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller. It therefore follows that the appellants cannot impeach the imposition or levy of sales tax on the ground that the appellants could not collect from the purchasers of sugar the purchase tax paid by the appellants on purchase of sugarcane. 53. Another contention was raised on behalf of the appellants that the authorities had not taken into account the varying rates of tax on purchase of sugarcane levied by different States while computing the cost of production of sugar and different States and fixing different selling prices of sugar. The High Court rightly did not entertain this contention because there were no materials to support the contention. | 0[ds]21. At all relevant times sugarcane was declared to be an essential commodity. The various orders were made for regulating the supply of sugarcane to the factories having regard to the crushing capacity of the factory, the availability of sugarcane in the area and the need for production of sugarcane. This co-ordination between production and distribution of sugarcane on the one hand and production and distribution of sugar on the other hung together as complementary to each other in regard to the requirements of basic ingredient. The carving out of areas for production and distribution of sugarcane is necessary to preserve continuity of supply and to prevent shortage and defective distribution. The regulation of supply of sugarcane by fixing the minimum price is an application of the principle of utilitarianism which receives the approbation and goodwill of both the grower and the factory so that the grower is assured of an economic competitive return and the factory is also assured of not being scared by soaring and fluctuating price to thwart and impede production and manufacture of sugarThese decisions establish that statutory orders regulating the supply and distribution of goods by and between the parties under Control Orders in a State do not absolutely impinge on the freedom to enter into contract. Legislative measures or statutory provisions fixing the price, delivery, supply, restricting areas for transactions are all within the realm of planning economic needs ensuring production and distribution of essential commodities and basic necessities of community. The recent trends in these legal rules delimit the variety of structure of rights and duties which individuals may create by such acts and transactions. The complexity of modern activities and the consequent difficulty of providing for every eventuality have shaken fervour for freedom of contract as there was during the nineteenth century. The economic environment has changed42. The individual freedom is to be reconciled with adequate performance by the Government of its functions in a highly organised Society. Delimiting areas for transactions or parties or denoting price for transactions are all within the area of individual freedom of contract with limited choice by reason of ensuring the greatest good for the greatest number by achieving proper supply at standard or fair price to eliminate the evils of hoarding and scarcity on the one hand and availability on the other43. In the present case, the parties are certain. The parties are defined, namely, that the sugarcane grower is delivering and supplying and the factory is accepting the goods. The property in the goods is transferred from the grower to the factory. The transaction is not a gift nor an exchange nor a hypothecation nor a loan. There is consideration for the transfer. Counsel for the appellants contended that there was no mutual assent because the price was fixed, the quantity for supply and delivery was determined, the parties had no choice to go to strangers or outsiders in the open market. In Benjamin on Sale, 8th Edn. at page 68 the law as to mutual assent is stated as this"The assent need not as a general rule be express. It may be implied from their language or from their conduct; may be signified by a nod or a gesture, or may even be inferred from silence in certain cases; as if a customer takes up wares off a tradesmans counter and carried them away and nothing is said on other side, the law presumes an agreement of sale for the reasonable worth of the goods. But the assent must in order to constitute a valid contract, be mutual and intended to bind both sides. It must also co-exist on the same moment of time."The assent must be mutual and bind both sides. The proposal by one man must be accepted by another and this acceptance must be unconditional. The assent must be communicated to the other party or some act must be done which the other party has expressly or impliedly offered to treat as a communication. Judged by these standards in the forefront exists the agreement between the parties in the present case. The statutory orders required parties to enter into agreement. The parties did in fact enter into agreements. The agreement contains intrinsic evidence that the growers agreed to sell and the factory agreed to buy goodsThe most commonplace illustration of supply and acceptance of goods resulting in sale under the present conditions is furnished by the present system of sale of rationed goods. There are ration shops in particular areas. Ration cards are distributed to residents in that area. The owners of these cards are required to go to the particular shop mentioned in the card for supply of rationed articles. Price is also regulated by the Rationing Order. Therefore the parties, the price the shop, the supply and the acceptance of goods in accordance with the provisions of the Rationing Order are all regulated. When one presents a ration card to the shop and the shop owner delivers the rationed articles and the holder of the ration card accepts them and pays the price, there is indisputably a sale. Counsel for the appellants said that choice was left with the ration card holder to go to the shop or not to go there at all but the parties had no choice in the present case whether the factory would or would not enter into agreement. In the present case both the factory and the sugarcane grower have some choice in the matter. The factory owner and the grower might not have occasion to enter into agreements at all. The factory may be closed. The grower may not grow sugarcane. The grower might not tender the goods. The factory owners might not accept delivery. The choice of the parties is there as in ordinary sales. The position of the factory owner vis-a-vis the sugarcane grower is either that factory will be shut and closed down or the factory will have to be kept running and for that supply will have to be taken from the sugarcane growers. This may be comparable to undertaking a journey by rail or air with no choice as to the medium46. The agreement between the factory owner and the sugarcane grower furnishes the guide to ascertain the real character of the transaction between the parties. These are the features. The factory agrees to buy. The grower agrees to sell. It is true that 95 per cent, of the sugarcane will be sold. The parties have the choice to increase the quantity above 95 per cent. The quantity to be bought and sold is cultivated or to be cultivated by the grower. The delivery is to be at a factory. Delivery will be in such lots, on such dates and at such time as shall be agreed upon. The mode of delivery may also be within the scope of agreement. The price will be the controlled price. The grower can bargain for higher price. The sugarcane grower can ask for payment in advance. Payment may be in cash or in kind. The sugarcane will be accepted after inspection. There is scope for rejection of goods. Various columns in the agreement indicate the villages where sugarcane is to be cultivated, the names of the varieties of sugarcane to be cultivated. The last two columns are estimated quantity offered to be delivered and the period of delivery. All these features indicate with unerring accuracy that there is offer, inspection, and appropriation of goods to the contract. The goods will be accepted by the factory after inspection and price will be paid on delivery. The mutual assent is not only implicit but is also explicit47. Another feature in the agreements in the present case is that the goods are unascertained. The agreements speak of inspection of goods. Inspection and appropriation of unascertained goods indicates not only freedom in the formation but also in the performance of contracts. Unascertained goods are distinct from specific or ascertained goods in the sense that future goods include goods not yet in existence or goods in existence but not yet acquired by the seller. It is safe to say that future goods for purposes of passing of property can never be specific. Future goods if and when sufficiently identified might be specific goods. Unascertained goods are not defined by the Sale of Goods Act but they fall into three main categories. First, goods to be manufactured or grown by the seller which are necessarily future goods. Second, generic goods, for example, 100 tons of sugarcane or the like which must also be future goods where the seller does not own sufficient goods of the description in question to appropriate to the contract. The third category is an unidentified part of a specific whole, for example, 1000 tons of sugarcane out of a particular lot of 5000 tons of sugarcane. In the present case, sugarcane was to be grown by the grower. Delivery was to be made thereafter. The goods were to be inspected and then paid for. Therefore, in the present case, it would be a sale of unascertained goods. Under Section 23 of the Indian Sale of Goods Act when there is a contract of sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. Then again, under Section 23 of the Indian Sale of Goods Act where there is a contract for the sale of unascertained or future goods by description when the goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller, with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. It is this unconditional appropriation which will pass the property. Again, under Section 23 of the Indian Sale of Goods Act where the seller delivers the goods to the buyer or to a carrier or other bailee for the purpose of transmission to the buyer and does not reserve the right of disposal he is deemed to have unconditionally appropriated the goods to the contract. Therefore, in the present case the goods were to be ascertained by identification, delivery, inspection and unconditional appropriation48. These foregoing features indicate that the transactions in the present case constituted sale within the meaning of sale in Section 2 (t) of the Mysore Sales Tax Act, 1957.Sale is defined in Section 2 (t)The Control Orders are to be kept in the forefront for appreciating the true character of transactions. It is apparent that the area is restrictedThe parties are determined by the order. The minimum price is fixed. The minimum quantity of supply is also regulated. These features do not complete the picture. The entire transaction indicates that the parties agree to buy and sell. The parties choose the terms of delivery. The parties have choice with regard to obtaining supply of a quantity higher than 95 per cent of the yield. The parties can stipulate for a price higher than the minimum. The parties can have terms for payment in advance as well as in cash. A grower may not cultivate and there may not be any yield. A factory may be closed or wound up and may not buy sugarcane. A factory can reject goods after inspection. The combination of all these features indicates that the parties entered into agreement with mutual assent and with volition for transfer of goods in consideration of price. Transactions of purchase and sale may be regulated by schemes and may be liable to restrictions as to the manner or mode of sale. Such restrictions may become necessary by reason of co-ordination between production and distribution in planning the economy of the country. The contention of the appellants fails. The transactions amount to sales within the meaning of the Mysore Sales Tax ActThe High Court held relying on the decision of this Court in State of Andhra Pradesh v. Abdul Bakshi and Bros., AIR 1965 SC 531 that if a person carried on the business of buying or selling a commodity it is not necessary that he should sell the same commodity to become a dealer. The commodity may be converted into another saleable commodity or it may be used as an ingredient in the manufacture of a commodity. Therefore, the factories which bought sugarcane could be said to carry on the business of buying and selling sugarcane and the factories are dealer within the meaning of the Mysore Sales Tax ActIt is an indisputable feature in the present appeals that all the factories in Mysore have been treated equally. Different rates in different States are explicable on various grounds. The quantity available, the conditions of agriculturists, the number of factories will all have distinctive features. Therefore, there can be no infraction of Article 14 of the ConstitutionThe High Court relying on the decision on 1958 SCR 1355 = (AIR 1958 SC 452 ) said that the mere circumstance that the appellants could not collect from the purchasers of the sugar the amount the factories had paid as purchase tax on sugarcane would not alter the nature or quality of tax. This Court in the case of Tata Iron and Steel Co., 1958 SCR 1355 = (AIR 1958 SC 452 ) said This is further made clear by the fact that the registered dealer need not, if he so pleases or chooses, collect the tax from the purchaser and sometimes by reason of competition with other registered dealers he may find it profitable to sale his goods and to retain his old customers even at the sacrifice of the sales tax. This also makes it clear that the sales tax need not be passed on to the purchasers and this fact does not alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller. It therefore follows that the appellants cannot impeach the imposition or levy of sales tax on the ground that the appellants could not collect from the purchasers of sugar the purchase tax paid by the appellants on purchase of sugarcaneThe High Court rightly did not entertain this contention because there were no materials to support the contention33. The Colliery Coal Control Order 1945 came up for consideration in State of Rajasthan v. M/s. Karam Chand Thappar and Bros. Ltd., (1969) 1 CR 861 = (AIR 1969 SC 343 ). Under a contract with Equitable Coal Company, Karam Chand Thappar and Bros. Ltd. acquired the monopoly right to supply coal on behalf of the collieries in Rajasthan and sold coal as the agent of the Equitable Coal Company. Karam Chand Thappar and Bros. entered into an agreement with the State of Rajasthan to supply coal to the Rajasthan Government. The company contended that the supply of coal to the State of Rajasthan did not constitute sale as the supply was controlled by the Colliery Control Order, 1945 and even if there was a sale it would be inter-State sale. It was held that the Colliery Control Order super-imposed upon the agreement between the parties the rate fixed and the elements necessary to render turnover from sale of goods liable to sales tax, namely, competency of parties, mutual assent of the parties, passing of property in the goods supplied to the purchaser and payment or promise of payment of price were present in the transaction. In the Rajasthan case it was noticed that when the goods supply of which is controlled by statutory orders are delivered pursuant to contract of sale the principle of the decision in the case of New India Sugar Mills Ltd., 1963 Supp. (2) SCR 459 = (AIR 1963 SC 1207 ) has no application. Shah, J. speaking for the Court in the Rajasthan case said that there was an agreement of sale between the parties competent to contract and in pursuance of the agreement of sale property in goods supplied passed to the purchaser for price agreed to be paid. The transaction was, therefore, one of sale of goods within the meaning of the Rajasthan Sales Tax Act35. The U. P. Wheat Procurement Order was challenged in M/s. Chitter Mal Narain Das v. Commissioner of Sales Tax, (1971) 1 SCR 671 = (AIR 1970 SC 2000 ) on the ground that there was no contract between the licensed dealer and the State pursuant to which goods were sold within the meaning of the U. P. Sales Tax Act. It was held that the obligation to deliver wheat arose out of the statute and there was no volition of the licensed dealer. The source of the obligations to deliver the goods and pay for them was said to be not in consensus but in the statutory order. It was said that the order did not envisage any consensual agreement and it did "not require the State to enter into even an informal agreement. It was said On the date of the commencement of the U. P. Wheat Procurement (Levy) Order, upon the licensed dealer was imposed a liability to deliver half the quantity of wheat on hand, and he had also to supply to the State Government 50 per cent of the quantity of wheat procured or purchased by him every day beginning with the date of commencement of the Order. If he failed to carry out the obligation he was liable to be penalised. To ensure that he carried out his obligation his premises were liable to be searched and his property sequestered (sic). The Order ignored the volition of the dealer40. The consensus between vendor and purchaser which is involved in the natural meaning of the word sale came up for consideration in the recent decision of the Court of Appeal in the case of Ridge Nominees Ltd., 1962 Ch. 376. Ridge Securities made an offer to purchase from the stockholders of another company Gresham the whole of the stock of that company. The offer was conditional upon acceptance before a certain date. A document of transfer of 440 shares in Gresham was made by Mrs. Rita Bell in consideration of 891 paid by Ridge. The question was whether the document was properly described as a conveyance or transfer on sale of any property within the meaning of the English Stamp Act, 1891. Section 209 of the English Companies Act, 1948 conferred power on an agent to execute an instrument of transfer on a dissenting shareholders behalf. The offer made by Ridge Company to purchase shares in Gresham company was conditional upon acceptance by the holders of not less than 90 per cent, of the issued capital of Gresham. In fact, more than 90 per cent, in value did accept the offer. Mrs. Rita Bell was one of those who did not think it fit to accept it. Thereupon Ridge Company invoked powers and provisions of Section 209 of the English Companies Act. The transfer of the shares of Mrs. Bell was not executed by her but pursuant to the powers given by Section 209 of the English Companies Act by some one on her behalf. Mrs. Bell was not an assenting but a dissenting shareholder. Her shares were transferred by virtue of the powers given to the transferee company by the Act. It is in that context that the question was whether the conveyance or transfer was sale of any property. The contention was that there could not be a sale because the essential element of mutual assent was absent. The Court of Appeal held that the instrument must be regarded as a transfer of sale. Lord Evershed, M. R. said that by the machinery created by the Companies Act and the statutory authority given by the Act to the agent to execute transfer on Mrs. Bells behalf it has in truth brought into being that which ex facie in all its essential characteristics and effect is, and becomes, a transfer on sale of Mrs. Bells stock. Danckwerts, L. J. in the same case said about the transfer of shares"It seems to me that a sale may not always require the consensual element mentioned in Benjamin on sale, 8th edn. p.2, and that there may, in truth, be a compulsory sale of property with which the owner is compelled to part for a price against his will. The effect of the statute in such a case is to say that the absence of the transferors consent does not matter and the sale is proceed without it." | 0 | 10,502 | 3,687 | ### 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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Section 2 (t) of the Mysore Sales Tax Act, 1957.Sale is defined in Section 2 (t) as follows:-"sale with all its grammatical variations and cognate expressions means every transfer of the property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration, but does not include a mortgage, hypothecation, charge or pledge". 49. The Control Orders are to be kept in the forefront for appreciating the true character of transactions. It is apparent that the area is restricted. The parties are determined by the order. The minimum price is fixed. The minimum quantity of supply is also regulated. These features do not complete the picture. The entire transaction indicates that the parties agree to buy and sell. The parties choose the terms of delivery. The parties have choice with regard to obtaining supply of a quantity higher than 95 per cent of the yield. The parties can stipulate for a price higher than the minimum. The parties can have terms for payment in advance as well as in cash. A grower may not cultivate and there may not be any yield. A factory may be closed or wound up and may not buy sugarcane. A factory can reject goods after inspection. The combination of all these features indicates that the parties entered into agreement with mutual assent and with volition for transfer of goods in consideration of price. Transactions of purchase and sale may be regulated by schemes and may be liable to restrictions as to the manner or mode of sale. Such restrictions may become necessary by reason of co-ordination between production and distribution in planning the economy of the country. The contention of the appellants fails. The transactions amount to sales within the meaning of the Mysore Sales Tax Act. 50. The second contention on behalf of the appellants was that the factories were not dealers within the meaning of then Mysore Sales Tax Act. Dealer is defined in Section 2 (k) of the Mysore Sales Tax Act of 1957 as follows:-"Dealers means any person who carries on the business of buying , selling, supplying or distributing goods, directly or otherwise whether for cash or for deferred payment or for commission remuneration or other valuable consideration and includes :- (v) a person who sells goods produced by him by manufacture or otherwise". It was contended that the factory was a manufacturer of sugar and paid excise duty on sugar to the Central Government and sugar was item 34 of the Second schedule and therefore, no tax was payable by a dealer who is a manufacturer of sugar. The purchase of sugarcane was said to be for manufacture of sugar and not for resale of sugarcane and therefore the tax which is levied on the dealer will not fall on the appellants on the purchase of sugarcane. The High Court held relying on the decision of this Court in State of Andhra Pradesh v. Abdul Bakshi and Bros., AIR 1965 SC 531 that if a person carried on the business of buying or selling a commodity it is not necessary that he should sell the same commodity to become a dealer. The commodity may be converted into another saleable commodity or it may be used as an ingredient in the manufacture of a commodity. Therefore, the factories which bought sugarcane could be said to carry on the business of buying and selling sugarcane and the factories are dealer within the meaning of the Mysore Sales Tax Act. 51. The third contention on behalf of the appellants was that the levy of 15 per cent purchase tax on the sugarcane on the appellants was in violation of Article 14 of the Constitution inasmuch as the rates were different in different States. It is an indisputable feature in the present appeals that all the factories in Mysore have been treated equally. Different rates in different States are explicable on various grounds. The quantity available, the conditions of agriculturists, the number of factories will all have distinctive features. Therefore, there can be no infraction of Article 14 of the Constitution. 52. It was also said on behalf of the appellants that tax on purchase of sugarcane could not be collected by the appellants as tax. The High Court relying on the decision on 1958 SCR 1355 = (AIR 1958 SC 452 ) said that the mere circumstance that the appellants could not collect from the purchasers of the sugar the amount the factories had paid as purchase tax on sugarcane would not alter the nature or quality of tax. This Court in the case of Tata Iron and Steel Co., 1958 SCR 1355 = (AIR 1958 SC 452 ) said This is further made clear by the fact that the registered dealer need not, if he so pleases or chooses, collect the tax from the purchaser and sometimes by reason of competition with other registered dealers he may find it profitable to sale his goods and to retain his old customers even at the sacrifice of the sales tax. This also makes it clear that the sales tax need not be passed on to the purchasers and this fact does not alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller. It therefore follows that the appellants cannot impeach the imposition or levy of sales tax on the ground that the appellants could not collect from the purchasers of sugar the purchase tax paid by the appellants on purchase of sugarcane. 53. Another contention was raised on behalf of the appellants that the authorities had not taken into account the varying rates of tax on purchase of sugarcane levied by different States while computing the cost of production of sugar and different States and fixing different selling prices of sugar. The High Court rightly did not entertain this contention because there were no materials to support the contention.
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to supply coal on behalf of the collieries in Rajasthan and sold coal as the agent of the Equitable Coal Company. Karam Chand Thappar and Bros. entered into an agreement with the State of Rajasthan to supply coal to the Rajasthan Government. The company contended that the supply of coal to the State of Rajasthan did not constitute sale as the supply was controlled by the Colliery Control Order, 1945 and even if there was a sale it would be inter-State sale. It was held that the Colliery Control Order super-imposed upon the agreement between the parties the rate fixed and the elements necessary to render turnover from sale of goods liable to sales tax, namely, competency of parties, mutual assent of the parties, passing of property in the goods supplied to the purchaser and payment or promise of payment of price were present in the transaction. In the Rajasthan case it was noticed that when the goods supply of which is controlled by statutory orders are delivered pursuant to contract of sale the principle of the decision in the case of New India Sugar Mills Ltd., 1963 Supp. (2) SCR 459 = (AIR 1963 SC 1207 ) has no application. Shah, J. speaking for the Court in the Rajasthan case said that there was an agreement of sale between the parties competent to contract and in pursuance of the agreement of sale property in goods supplied passed to the purchaser for price agreed to be paid. The transaction was, therefore, one of sale of goods within the meaning of the Rajasthan Sales Tax Act35. The U. P. Wheat Procurement Order was challenged in M/s. Chitter Mal Narain Das v. Commissioner of Sales Tax, (1971) 1 SCR 671 = (AIR 1970 SC 2000 ) on the ground that there was no contract between the licensed dealer and the State pursuant to which goods were sold within the meaning of the U. P. Sales Tax Act. It was held that the obligation to deliver wheat arose out of the statute and there was no volition of the licensed dealer. The source of the obligations to deliver the goods and pay for them was said to be not in consensus but in the statutory order. It was said that the order did not envisage any consensual agreement and it did "not require the State to enter into even an informal agreement. It was said On the date of the commencement of the U. P. Wheat Procurement (Levy) Order, upon the licensed dealer was imposed a liability to deliver half the quantity of wheat on hand, and he had also to supply to the State Government 50 per cent of the quantity of wheat procured or purchased by him every day beginning with the date of commencement of the Order. If he failed to carry out the obligation he was liable to be penalised. To ensure that he carried out his obligation his premises were liable to be searched and his property sequestered (sic). The Order ignored the volition of the dealer40. The consensus between vendor and purchaser which is involved in the natural meaning of the word sale came up for consideration in the recent decision of the Court of Appeal in the case of Ridge Nominees Ltd., 1962 Ch. 376. Ridge Securities made an offer to purchase from the stockholders of another company Gresham the whole of the stock of that company. The offer was conditional upon acceptance before a certain date. A document of transfer of 440 shares in Gresham was made by Mrs. Rita Bell in consideration of 891 paid by Ridge. The question was whether the document was properly described as a conveyance or transfer on sale of any property within the meaning of the English Stamp Act, 1891. Section 209 of the English Companies Act, 1948 conferred power on an agent to execute an instrument of transfer on a dissenting shareholders behalf. The offer made by Ridge Company to purchase shares in Gresham company was conditional upon acceptance by the holders of not less than 90 per cent, of the issued capital of Gresham. In fact, more than 90 per cent, in value did accept the offer. Mrs. Rita Bell was one of those who did not think it fit to accept it. Thereupon Ridge Company invoked powers and provisions of Section 209 of the English Companies Act. The transfer of the shares of Mrs. Bell was not executed by her but pursuant to the powers given by Section 209 of the English Companies Act by some one on her behalf. Mrs. Bell was not an assenting but a dissenting shareholder. Her shares were transferred by virtue of the powers given to the transferee company by the Act. It is in that context that the question was whether the conveyance or transfer was sale of any property. The contention was that there could not be a sale because the essential element of mutual assent was absent. The Court of Appeal held that the instrument must be regarded as a transfer of sale. Lord Evershed, M. R. said that by the machinery created by the Companies Act and the statutory authority given by the Act to the agent to execute transfer on Mrs. Bells behalf it has in truth brought into being that which ex facie in all its essential characteristics and effect is, and becomes, a transfer on sale of Mrs. Bells stock. Danckwerts, L. J. in the same case said about the transfer of shares"It seems to me that a sale may not always require the consensual element mentioned in Benjamin on sale, 8th edn. p.2, and that there may, in truth, be a compulsory sale of property with which the owner is compelled to part for a price against his will. The effect of the statute in such a case is to say that the absence of the transferors consent does not matter and the sale is proceed without it."
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Sivakami & Others Vs. State of Tamil Nadu & Others | Abhay Manohar Sapre, J.1. Leave granted.2. These appeals are directed against the final judgment and order dated 13.03.2013 passed by the High Court of Judicature at Madras in Review Application No.77 of 2012 in W.A. No.868 of 2011 whereby the Division Bench of the High Court dismissed the review application filed by the appellants herein as not maintainable and also on merits and order dated 02.09.2008 in WA No.868 of 2001 whereby the Division Bench set aside the order dated 06.01.1997 passed by the Single Judge of the High Court which was in favour of the appellants herein.3. These appeals involve a short point. Few facts need mention infra to appreciate the point involved in the appeals.4. The appellants herein are the writ petitioners before the High Court in the writ proceedings out of which these appeals arise.5. The appellants claim to be the owners of the land in question admeasuring around 1.52 acres in Survey No.142/1A situated at Ganapathi Village, Coimbatore Taluk.6. The land in question was the subject matter of land acquisition proceedings under the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") in the year 1985 at the instance of State of Tamil Nadu, which had issued notifications under Sections 4 and 6 of the Act for its acquisition. The appellants, felt aggrieved of the acquisition of their land in question, filed Writ Petition No.5220 of 1987 in the High Court at Madras and questioned therein the legality and correctness of the entire acquisition proceedings including the orders in G.O. Ms. No.1119, Social Welfare Department dated 15.05.1985 and G.O.Ms. No.1536, Social Welfare Department dated 18.06.1986.7. The challenge to the acquisition proceedings was on several grounds as is clear from the grounds taken by the appellants (writ petitioners) in the writ petition and the SLP.8. The writ petition was contested by the State wherein it defended the acquisition proceedings as being legal, proper and in conformity with the provisions of the Act.9. The Single Judge, by order dated 06.01.1997, allowed the appellants writ petition and quashed G.O.Ms. No.1119 dated 15.05.1985 and G.O. Ms. No. 1536 dated 18.06.1986.10. The State felt aggrieved and filed intra court appeal before the Division Bench out of which these appeals arise. By impugned order, the Division Bench allowed the States appeal and while setting aside the order of the Single Judge dismissed the appellants writ petition. In other words, the acquisition proceedings were upheld by the Division Bench as being legal and proper. Against the said order, review application was filed by the appellants herein but it was dismissed. It is against these two orders of the Division Bench, the writ petitioners felt aggrieved and filed these appeals by way of special leave in this Court.11. Heard Mr. A Mariarputham, learned senior counsel for the appellants and Mr. Thomas P. Joseph, learned senior counsel, Mr. B. Balaji and Mr. K.V. Vijaya Kumar, learned counsel for the respondents. | 1[ds]13. In our considered opinion, the reasons to remand the case to the Division Bench are more than one, which are set out hereinbelow.14. First, the Division Bench in Paras 4 and 5 of its main order dated 02.09.2008 in W.A.No.868 of 2001 having rightly observed that the Single Judge neither discussed any issue nor gave his reasoning and nor even dealt with any of the grounds raised by the parties in support of their case and yet allowed the writ petition and quashed the acquisition proceedings erred in not dealing with any of the issues arising in the case, It is apposite to reproduce paras 4 and 5From the impugned order passed by the learned Single Judge, it would be evident that the learned Single Judge, without discussing the relevant facts of the case pertaining to the writ petitioners (respondents 1 to 4 in this writ appeal) and without analyzing the relevant proposition of law laid down by a Single Judge of this Court in the decision reported in 1994 Writ L.R. 764 (Seethalakshmi/Ramakrishnanda v. Special Tahsildear (LA) II, Bharathiyar University, Coimbatore and another) and without considering the question as to whether the case of the writ petitioners, was similar to the one reported in 1994 Writ L.R. 764 (supra), merely allowed the writ petition based on the submission made by the learned counsel appearing for the respective parties.5. In the facts and circumstances, as contended by the learned counsel appearing for thethe impugned order passed by the learned Single Judge, can be held to be not a reasoned order, erroneous and not sustainable in the eye of law. We accordingly set aside the impugned order passed by the learned Single Judge.Second, in the light offindings, the Division Bench should have either dealt with all the issues raised by the parties and given its own reasoning on all such issues while deciding the appeal or remanded the case to the writ Court (Single Judge) for deciding the appellants writ petition afresh on merits and to pass a reasoned order dealing with all the grounds raised by the parties in support of their respective contentions.16. The Division Bench, however, simply allowed the States appeal and, in consequence, dismissed the writ petition and upheld the acquisition proceedings as being legal and proper and that too without assigning any reason in support thereof.17. Third, it was .0` for the Division Bench to deal with all the grounds raised by the parties while reversing the order of writ Court and to record their own findings by assigning reasons in support of the conclusion. It was, however, not done.18. In our considered opinion, this appears to be a case where the Single Judge (writ Court) allowed the appellants writ petition without assigning any reason and without dealing with any of the grounds raised by the parties except placing reliance on one decision for allowing the writ petition whereas the Division Bench allowed the States appeal without dealing with any of the issues raised by the parties in the writ petition and without assigning any reason as to why the writ petition deserved to be dismissed.19. In our view, what the Division Bench was required to do while deciding the appeal, it was done by the Division Bench while deciding the review application. We find that the order in review application runs into 10 pages whereas the order in appeal runs into 6 pages. We cannot countenance such approach of the Division Bench while deciding the appeal and the review application.A fortiori, what was not decided in appeal by the Division Bench could not be decided by the Division Bench while deciding the review application. It is for this reason, we are also constrained to set aside the review order.22. In the light of foregoing discussion, we are of the view that the orders passed by the High Court, i.e., (writ Court and Division Bench) are bad in law and cannot be legally sustained for want of any reason, discussion and finding on any of the grounds/issues raised by the parties in support of their respective contentions.23. Since the matter is pending for the last three decades, we consider it just and proper to remand the case (writ petition) to the Division Bench for its decision afresh on merits in accordance with law instead of remanding it to the Writ Court. | 1 | 536 | 798 | ### Instruction:
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Abhay Manohar Sapre, J.1. Leave granted.2. These appeals are directed against the final judgment and order dated 13.03.2013 passed by the High Court of Judicature at Madras in Review Application No.77 of 2012 in W.A. No.868 of 2011 whereby the Division Bench of the High Court dismissed the review application filed by the appellants herein as not maintainable and also on merits and order dated 02.09.2008 in WA No.868 of 2001 whereby the Division Bench set aside the order dated 06.01.1997 passed by the Single Judge of the High Court which was in favour of the appellants herein.3. These appeals involve a short point. Few facts need mention infra to appreciate the point involved in the appeals.4. The appellants herein are the writ petitioners before the High Court in the writ proceedings out of which these appeals arise.5. The appellants claim to be the owners of the land in question admeasuring around 1.52 acres in Survey No.142/1A situated at Ganapathi Village, Coimbatore Taluk.6. The land in question was the subject matter of land acquisition proceedings under the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") in the year 1985 at the instance of State of Tamil Nadu, which had issued notifications under Sections 4 and 6 of the Act for its acquisition. The appellants, felt aggrieved of the acquisition of their land in question, filed Writ Petition No.5220 of 1987 in the High Court at Madras and questioned therein the legality and correctness of the entire acquisition proceedings including the orders in G.O. Ms. No.1119, Social Welfare Department dated 15.05.1985 and G.O.Ms. No.1536, Social Welfare Department dated 18.06.1986.7. The challenge to the acquisition proceedings was on several grounds as is clear from the grounds taken by the appellants (writ petitioners) in the writ petition and the SLP.8. The writ petition was contested by the State wherein it defended the acquisition proceedings as being legal, proper and in conformity with the provisions of the Act.9. The Single Judge, by order dated 06.01.1997, allowed the appellants writ petition and quashed G.O.Ms. No.1119 dated 15.05.1985 and G.O. Ms. No. 1536 dated 18.06.1986.10. The State felt aggrieved and filed intra court appeal before the Division Bench out of which these appeals arise. By impugned order, the Division Bench allowed the States appeal and while setting aside the order of the Single Judge dismissed the appellants writ petition. In other words, the acquisition proceedings were upheld by the Division Bench as being legal and proper. Against the said order, review application was filed by the appellants herein but it was dismissed. It is against these two orders of the Division Bench, the writ petitioners felt aggrieved and filed these appeals by way of special leave in this Court.11. Heard Mr. A Mariarputham, learned senior counsel for the appellants and Mr. Thomas P. Joseph, learned senior counsel, Mr. B. Balaji and Mr. K.V. Vijaya Kumar, learned counsel for the respondents.
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13. In our considered opinion, the reasons to remand the case to the Division Bench are more than one, which are set out hereinbelow.14. First, the Division Bench in Paras 4 and 5 of its main order dated 02.09.2008 in W.A.No.868 of 2001 having rightly observed that the Single Judge neither discussed any issue nor gave his reasoning and nor even dealt with any of the grounds raised by the parties in support of their case and yet allowed the writ petition and quashed the acquisition proceedings erred in not dealing with any of the issues arising in the case, It is apposite to reproduce paras 4 and 5From the impugned order passed by the learned Single Judge, it would be evident that the learned Single Judge, without discussing the relevant facts of the case pertaining to the writ petitioners (respondents 1 to 4 in this writ appeal) and without analyzing the relevant proposition of law laid down by a Single Judge of this Court in the decision reported in 1994 Writ L.R. 764 (Seethalakshmi/Ramakrishnanda v. Special Tahsildear (LA) II, Bharathiyar University, Coimbatore and another) and without considering the question as to whether the case of the writ petitioners, was similar to the one reported in 1994 Writ L.R. 764 (supra), merely allowed the writ petition based on the submission made by the learned counsel appearing for the respective parties.5. In the facts and circumstances, as contended by the learned counsel appearing for thethe impugned order passed by the learned Single Judge, can be held to be not a reasoned order, erroneous and not sustainable in the eye of law. We accordingly set aside the impugned order passed by the learned Single Judge.Second, in the light offindings, the Division Bench should have either dealt with all the issues raised by the parties and given its own reasoning on all such issues while deciding the appeal or remanded the case to the writ Court (Single Judge) for deciding the appellants writ petition afresh on merits and to pass a reasoned order dealing with all the grounds raised by the parties in support of their respective contentions.16. The Division Bench, however, simply allowed the States appeal and, in consequence, dismissed the writ petition and upheld the acquisition proceedings as being legal and proper and that too without assigning any reason in support thereof.17. Third, it was .0` for the Division Bench to deal with all the grounds raised by the parties while reversing the order of writ Court and to record their own findings by assigning reasons in support of the conclusion. It was, however, not done.18. In our considered opinion, this appears to be a case where the Single Judge (writ Court) allowed the appellants writ petition without assigning any reason and without dealing with any of the grounds raised by the parties except placing reliance on one decision for allowing the writ petition whereas the Division Bench allowed the States appeal without dealing with any of the issues raised by the parties in the writ petition and without assigning any reason as to why the writ petition deserved to be dismissed.19. In our view, what the Division Bench was required to do while deciding the appeal, it was done by the Division Bench while deciding the review application. We find that the order in review application runs into 10 pages whereas the order in appeal runs into 6 pages. We cannot countenance such approach of the Division Bench while deciding the appeal and the review application.A fortiori, what was not decided in appeal by the Division Bench could not be decided by the Division Bench while deciding the review application. It is for this reason, we are also constrained to set aside the review order.22. In the light of foregoing discussion, we are of the view that the orders passed by the High Court, i.e., (writ Court and Division Bench) are bad in law and cannot be legally sustained for want of any reason, discussion and finding on any of the grounds/issues raised by the parties in support of their respective contentions.23. Since the matter is pending for the last three decades, we consider it just and proper to remand the case (writ petition) to the Division Bench for its decision afresh on merits in accordance with law instead of remanding it to the Writ Court.
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India General Navigation and Railway Company, Limited Vs. Brojolal Chakraborty | disputes the decision given by the chairman of the committee would be final.5. The committee was accordingly appointed and it examined about 100 cases including that of the respondent. In December, 1954, the said committee, having examined the respondent and his records and the medical report, decided that the age recorded in the service card of the respondent should be reduced to 31 years as on the date of his appointment since his age was held to be 59 years 6 months on the date of the decision. The evidence about the respondents age produced before the committee was signed by the assistant secretary and the vice-president of the recognized union. In accordance with this decision the service card of the respondent was duly amended.On 15 June 1955, the respondent was told by a letter that he would be retired with effect from 1 July, 1955, on the ground of his reaching the age of 60 years. It was this order which was challenged by the respondent and which ultimately led to the present reference by the Government of West Bengal on on 25 July, 1956. The question referred to the tribunal was whether the company had forcibly retired the respondent before the age of superannuation and to what relief he would be entitled. It is on this reference that the tribunal has made the award which has given rise to the present appeal.6. It was not disputed before the tribunal, and it has not been disputed before us, that the relevant agreements under which the retirement age has been fixed by the appellant and the committee appointed to examine the question of each employees age are valid. The only contention raised is about the correctness of the decision reached by the appellant that the respondent had attained the age of superannuation on 1 July, 1955. Prima facie, it is difficult to appreciate the attack made by the respondent against the decision of the appellant on the question of respondents age. The committee considered the evidence, took into account the statement of the respondent himself and came to a definite conclusion about his age. This question is purely a question of fact; and it is not alleged that in reaching the particular conclusion either the committee or the appellant acted unfairly or mala fide.7. But, part from this consideration, the conclusion of the tribunal on the question of respondents age is patently erroneous. The tribunal was not satisfied with the documentary evidence adduced by both the parties. It throughout that it lacked precision and was even inconsistent. The tribunal then considered the evidence led by the respondent himself and it observed that the documents produced by the respondent were patently unreliable. It made reference to two of his documents in particular which showed, that, whereas, the respondent was 45 years old in 1949 he was shown as 44 years in 1950. In this state of the record the tribunal held that it was impossible to base its finding about age of the respondent on the strength of any of the documents. The tribunal also was not impressed with the evidence supplied by the certificate of the doctor. It is no doubt opinion evidence and the tribunal felt that there may be some scope for an error in medical calculations about age. The tribunal then examined the oral evidence of the respondent and observed that the respondent was not prepared to give a strictly truthful account of things and the ring of truth was missing from his testimony. In fact, the tribunal had "not a shred of doubt that the respondent had suppressed the truth. He had stated that he had not appeared before the committee when, in fact, he had appeared and made a statement before the committee."8. Even, so, the tribunal ultimately came to the conclusion that, in the absence of any other dependable evidence, there was no alternative but to accept the statement of the respondent, and so it held that he had not completed the age of 60 on 1 July, 1955. The tribunal has made no finding of its own about the age of the respondent. It has contented itself by holding that the respondent has not completed 60 years on 1 July, 1955, and on this view it has directed the appellant to treat the respondent as continuing in its service. How long the respondent should continue in service the tribunal has not cared to specify.9. We have deliberately set out in detail the findings, and the relevant observations, made by the tribunal in its award. We are satisfied that the approach adopted by the tribunal in dealing with this simple question of fact is wholly improper. Even if the evidence did not appear to the tribunal to be entirely satisfactorily, it should have made an attempt to assess it and to come to some conclusion about the age of the respondent. Having criticized the respondent in strong terms and having held that he had no regard for truth, it is difficult to understand how the tribunal felt justified in solemnly alternative its conclusion that there was no alternative but to accept the respondents the rest of the findings, this conclusion must be characterized as perverse.10. We have ourselves looked at the evidence adduced before the tribunal and we are satisfied that the statements made by the respondent and the evidence adduced by the appellant may not be quite satisfactory; in a sense, such evidence about age generally presents some infirmities. After all, this is a matter which the respondent could have easily proved and the appellant is naturally at a disadvantage. However, having regard to the whole of the evidence available on the record, we see no justification for holding that the conclusion reached by the appellant after a fair and formal enquiry about the age of the respondent can be said to be erroneous. In the result, we must hold that it is not shown that the appellant has improperly retired the respondent. | 1[ds]But, part from this consideration, the conclusion of the tribunal on the question of respondents age is patently erroneous. The tribunal was not satisfied with the documentary evidence adduced by both the parties. It throughout that it lacked precision and was evenare satisfied that the approach adopted by the tribunal in dealing with this simple question of fact is wholly improper. Even if the evidence did not appear to the tribunal to be entirely satisfactorily, it should have made an attempt to assess it and to come to some conclusion about the age of the respondent. Having criticized the respondent in strong terms and having held that he had no regard for truth, it is difficult to understand how the tribunal felt justified in solemnly alternative its conclusion that there was no alternative but to accept the respondents the rest of the findings, this conclusion must be characterized ashaving regard to the whole of the evidence available on the record, we see no justification for holding that the conclusion reached by the appellant after a fair and formal enquiry about the age of the respondent can be said to be erroneous. In the result, we must hold that it is not shown that the appellant has improperly retired the respondent. | 1 | 1,626 | 227 | ### Instruction:
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disputes the decision given by the chairman of the committee would be final.5. The committee was accordingly appointed and it examined about 100 cases including that of the respondent. In December, 1954, the said committee, having examined the respondent and his records and the medical report, decided that the age recorded in the service card of the respondent should be reduced to 31 years as on the date of his appointment since his age was held to be 59 years 6 months on the date of the decision. The evidence about the respondents age produced before the committee was signed by the assistant secretary and the vice-president of the recognized union. In accordance with this decision the service card of the respondent was duly amended.On 15 June 1955, the respondent was told by a letter that he would be retired with effect from 1 July, 1955, on the ground of his reaching the age of 60 years. It was this order which was challenged by the respondent and which ultimately led to the present reference by the Government of West Bengal on on 25 July, 1956. The question referred to the tribunal was whether the company had forcibly retired the respondent before the age of superannuation and to what relief he would be entitled. It is on this reference that the tribunal has made the award which has given rise to the present appeal.6. It was not disputed before the tribunal, and it has not been disputed before us, that the relevant agreements under which the retirement age has been fixed by the appellant and the committee appointed to examine the question of each employees age are valid. The only contention raised is about the correctness of the decision reached by the appellant that the respondent had attained the age of superannuation on 1 July, 1955. Prima facie, it is difficult to appreciate the attack made by the respondent against the decision of the appellant on the question of respondents age. The committee considered the evidence, took into account the statement of the respondent himself and came to a definite conclusion about his age. This question is purely a question of fact; and it is not alleged that in reaching the particular conclusion either the committee or the appellant acted unfairly or mala fide.7. But, part from this consideration, the conclusion of the tribunal on the question of respondents age is patently erroneous. The tribunal was not satisfied with the documentary evidence adduced by both the parties. It throughout that it lacked precision and was even inconsistent. The tribunal then considered the evidence led by the respondent himself and it observed that the documents produced by the respondent were patently unreliable. It made reference to two of his documents in particular which showed, that, whereas, the respondent was 45 years old in 1949 he was shown as 44 years in 1950. In this state of the record the tribunal held that it was impossible to base its finding about age of the respondent on the strength of any of the documents. The tribunal also was not impressed with the evidence supplied by the certificate of the doctor. It is no doubt opinion evidence and the tribunal felt that there may be some scope for an error in medical calculations about age. The tribunal then examined the oral evidence of the respondent and observed that the respondent was not prepared to give a strictly truthful account of things and the ring of truth was missing from his testimony. In fact, the tribunal had "not a shred of doubt that the respondent had suppressed the truth. He had stated that he had not appeared before the committee when, in fact, he had appeared and made a statement before the committee."8. Even, so, the tribunal ultimately came to the conclusion that, in the absence of any other dependable evidence, there was no alternative but to accept the statement of the respondent, and so it held that he had not completed the age of 60 on 1 July, 1955. The tribunal has made no finding of its own about the age of the respondent. It has contented itself by holding that the respondent has not completed 60 years on 1 July, 1955, and on this view it has directed the appellant to treat the respondent as continuing in its service. How long the respondent should continue in service the tribunal has not cared to specify.9. We have deliberately set out in detail the findings, and the relevant observations, made by the tribunal in its award. We are satisfied that the approach adopted by the tribunal in dealing with this simple question of fact is wholly improper. Even if the evidence did not appear to the tribunal to be entirely satisfactorily, it should have made an attempt to assess it and to come to some conclusion about the age of the respondent. Having criticized the respondent in strong terms and having held that he had no regard for truth, it is difficult to understand how the tribunal felt justified in solemnly alternative its conclusion that there was no alternative but to accept the respondents the rest of the findings, this conclusion must be characterized as perverse.10. We have ourselves looked at the evidence adduced before the tribunal and we are satisfied that the statements made by the respondent and the evidence adduced by the appellant may not be quite satisfactory; in a sense, such evidence about age generally presents some infirmities. After all, this is a matter which the respondent could have easily proved and the appellant is naturally at a disadvantage. However, having regard to the whole of the evidence available on the record, we see no justification for holding that the conclusion reached by the appellant after a fair and formal enquiry about the age of the respondent can be said to be erroneous. In the result, we must hold that it is not shown that the appellant has improperly retired the respondent.
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But, part from this consideration, the conclusion of the tribunal on the question of respondents age is patently erroneous. The tribunal was not satisfied with the documentary evidence adduced by both the parties. It throughout that it lacked precision and was evenare satisfied that the approach adopted by the tribunal in dealing with this simple question of fact is wholly improper. Even if the evidence did not appear to the tribunal to be entirely satisfactorily, it should have made an attempt to assess it and to come to some conclusion about the age of the respondent. Having criticized the respondent in strong terms and having held that he had no regard for truth, it is difficult to understand how the tribunal felt justified in solemnly alternative its conclusion that there was no alternative but to accept the respondents the rest of the findings, this conclusion must be characterized ashaving regard to the whole of the evidence available on the record, we see no justification for holding that the conclusion reached by the appellant after a fair and formal enquiry about the age of the respondent can be said to be erroneous. In the result, we must hold that it is not shown that the appellant has improperly retired the respondent.
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The Amalgamated Electricity Co., Ltd Vs. N. S. Bathena | a refund of the amount paid in excess of what he thought was the legitimate charge. The appellant then applied under s. 34 of the Arbitration Act for a stay of the suit on the ground that the matter was referable to arbitration under the provisions of the Electricity (Supply) Act, 1948. The application was dismissed by the Civil Judge and his decision was confirmed by the Extra Assistant Sessions Judge on appeal and lastly, by the High Court in revision. The appellant has now come to this Court.3. The appellant contends that this matter is referable to arbitration under the provision contained in cl. XVI of the Sixth Schedule of the Act of 1948. A few of the provisions of these Acts will now have to be referred to. Under the Act of 1910 the business of supplying electrical energy can be carried on only with the sanction of the Government. Section 3 of that Act makes provision for the grant of a licence for supplying electrical energy. The appellant obtained a licence in 1932.A form of the licence is set out in the rules framed under the Act of 1910 and that form prescribes the maximum limit which a licensee is entitled to charge a consumer for the electrical energy supplied. The Act of 1948 made a somewhat different provision with regard to these charges. It provided by s. 57 as follows :-"S. 57. (1) The provisions of the Sixth Schedule and the Table appended to the Seventh Schedule shall be deemed to be incorporated in the licence of every licensee, not being a local authority, from the date of the commencement of the licensees next succeeding year of account, and from such date the licensee shall comply therewith accordingly and any provisions of such licence or of the Indian Electricity Act, 1910, or any other law, agreement or instrument applicable to the licensee shall, in relation to the licensee, be void and of no effect in so far as they are inconsistent with the provisions of this section and the said schedule and Table :(2)............................................................"This section had therefore the effect of incorporating in the licence the terms of these two Schedules and provided that they would prevail over the terms of any previously granted licence or the provisions of the Act of 1910, or any other law, agreement or instrument inconsistent with these Schedules. The Sixth Schedule made new provisions about the charges that a licensee was entitled to realise for the current supplied. Clause XVI of that Schedule contains a provision for arbitration and it is on that that the appellant relies. That clause is in these terms : "Any dispute or difference as to the interpretation or any matter arising out of the provisions of this Schedule shall be referred to the arbitration of the Authority." The appellant contends that the dispute covered by the respondents suit is one of the kind mentioned in this clause and therefore must be referred to arbitration under its terms.4. We will assume that the dispute is of the kind mentioned in cl. XVI of the Sixth Schedule. We are however unable to see that it is a dispute which is referable to arbitration under that clause. It is not the appellants case that cl. XVI is a clause in any contract between it and the respondent. That being so, the only other way in which it is possible for the appellant to contend that the respondent is bound to refer the dispute to arbitration under this clause is by showing that it is a statutory provision for arbitration. No doubt if it were so, then in view of the provisions of s. 46 of the Arbitration Act the appellant would be entitled to apply for a stay of the suit under s. 34 of that Act. We are however wholly unable to agree that cl. XVI is such a statutory provision. The only statutory provision that we find on the subject is that contained in s. 57 and its effect is that the terms of cl. XVI and the other clauses in the Sixth Schedule are to be deemed incorporated in a licence granted by the Government under s. 3 of the Act of 1910 and the licensee is to comply with the terms of that Schedule. Therefore all that we get is that the licence which is granted by the Government to a supplier of electricity, like the appellant, is to contain a clause that certain disputes would be referred to arbitration. The licence is an engagement between the Government and the licensee, binding the parties to it to its provisions. It is unnecessary to decide whether this engagement is contractual or statutory, for, in either case it is between the two of them only. An arbitration clause in an instrument like this can only be in respect of disputes between the parties to it. Such an arbitration clause does not contemplate a dispute between a party to the instrument and one who is not such a party. We are unable to read s. 57 as making cl. XVI in the Sixth Schedule a statutory provision by which certain disputes between any and every person have to be referred to arbitrationIt was said on behalf of the appellant that the licence is a statutory document. That, in our view, is a loose way of putting the thing. By that the utmost that can be meant is that it is issued under the terms of a statutory provision and must comply with the provisions thereof. But that cannot convert it into a statutory provision for reference to arbitration of disputes irrespective of the parties between whom the disputes may exist.5. In our view, therefore, cl. XVI of the Sixth Schedule of the Act of 1948 contains no provision for arbitration, statutory or otherwise, for reference of the dispute of the nature we have before us, between a licensed supplier of electricity and a consumer of it from him. | 0[ds]4. We will assume that the dispute is of the kind mentioned in cl. XVI of the Sixth Schedule. We are however unable to see that it is a dispute which is referable to arbitration under that clause. It is not the appellants case that cl. XVI is a clause in any contract between it and the respondent. That being so, the only other way in which it is possible for the appellant to contend that the respondent is bound to refer the dispute to arbitration under this clause is by showing that it is a statutory provision for arbitration. No doubt if it were so, then in view of the provisions of s. 46 of the Arbitration Act the appellant would be entitled to apply for a stay of the suit under s. 34 of that Act. We are however wholly unable to agree that cl. XVI is such a statutory provision. The only statutory provision that we find on the subject is that contained in s. 57 and its effect is that the terms of cl. XVI and the other clauses in the Sixth Schedule are to be deemed incorporated in a licence granted by the Government under s. 3 of the Act of 1910 and the licensee is to comply with the terms of that Schedule. Therefore all that we get is that the licence which is granted by the Government to a supplier of electricity, like the appellant, is to contain a clause that certain disputes would be referred to arbitration. The licence is an engagement between the Government and the licensee, binding the parties to it to its provisions. It is unnecessary to decide whether this engagement is contractual or statutory, for, in either case it is between the two of them only. An arbitration clause in an instrument like this can only be in respect of disputes between the parties to it. Such an arbitration clause does not contemplate a dispute between a party to the instrument and one who is not such a party. We are unable to read s. 57 as making cl. XVI in the Sixth Schedule a statutory provision by which certain disputes between any and every person have to be referred to arbitrationIt was said on behalf of the appellant that the licence is a statutory document. That, in our view, is a loose way of putting the thing. By that the utmost that can be meant is that it is issued under the terms of a statutory provision and must comply with the provisions thereof. But that cannot convert it into a statutory provision for reference to arbitration of disputes irrespective of the parties between whom the disputes may exist.5. In our view, therefore, cl. XVI of the Sixth Schedule of the Act of 1948 contains no provision for arbitration, statutory or otherwise, for reference of the dispute of the nature we have before us, between a licensed supplier of electricity and a consumer of it from him. | 0 | 1,230 | 543 | ### Instruction:
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a refund of the amount paid in excess of what he thought was the legitimate charge. The appellant then applied under s. 34 of the Arbitration Act for a stay of the suit on the ground that the matter was referable to arbitration under the provisions of the Electricity (Supply) Act, 1948. The application was dismissed by the Civil Judge and his decision was confirmed by the Extra Assistant Sessions Judge on appeal and lastly, by the High Court in revision. The appellant has now come to this Court.3. The appellant contends that this matter is referable to arbitration under the provision contained in cl. XVI of the Sixth Schedule of the Act of 1948. A few of the provisions of these Acts will now have to be referred to. Under the Act of 1910 the business of supplying electrical energy can be carried on only with the sanction of the Government. Section 3 of that Act makes provision for the grant of a licence for supplying electrical energy. The appellant obtained a licence in 1932.A form of the licence is set out in the rules framed under the Act of 1910 and that form prescribes the maximum limit which a licensee is entitled to charge a consumer for the electrical energy supplied. The Act of 1948 made a somewhat different provision with regard to these charges. It provided by s. 57 as follows :-"S. 57. (1) The provisions of the Sixth Schedule and the Table appended to the Seventh Schedule shall be deemed to be incorporated in the licence of every licensee, not being a local authority, from the date of the commencement of the licensees next succeeding year of account, and from such date the licensee shall comply therewith accordingly and any provisions of such licence or of the Indian Electricity Act, 1910, or any other law, agreement or instrument applicable to the licensee shall, in relation to the licensee, be void and of no effect in so far as they are inconsistent with the provisions of this section and the said schedule and Table :(2)............................................................"This section had therefore the effect of incorporating in the licence the terms of these two Schedules and provided that they would prevail over the terms of any previously granted licence or the provisions of the Act of 1910, or any other law, agreement or instrument inconsistent with these Schedules. The Sixth Schedule made new provisions about the charges that a licensee was entitled to realise for the current supplied. Clause XVI of that Schedule contains a provision for arbitration and it is on that that the appellant relies. That clause is in these terms : "Any dispute or difference as to the interpretation or any matter arising out of the provisions of this Schedule shall be referred to the arbitration of the Authority." The appellant contends that the dispute covered by the respondents suit is one of the kind mentioned in this clause and therefore must be referred to arbitration under its terms.4. We will assume that the dispute is of the kind mentioned in cl. XVI of the Sixth Schedule. We are however unable to see that it is a dispute which is referable to arbitration under that clause. It is not the appellants case that cl. XVI is a clause in any contract between it and the respondent. That being so, the only other way in which it is possible for the appellant to contend that the respondent is bound to refer the dispute to arbitration under this clause is by showing that it is a statutory provision for arbitration. No doubt if it were so, then in view of the provisions of s. 46 of the Arbitration Act the appellant would be entitled to apply for a stay of the suit under s. 34 of that Act. We are however wholly unable to agree that cl. XVI is such a statutory provision. The only statutory provision that we find on the subject is that contained in s. 57 and its effect is that the terms of cl. XVI and the other clauses in the Sixth Schedule are to be deemed incorporated in a licence granted by the Government under s. 3 of the Act of 1910 and the licensee is to comply with the terms of that Schedule. Therefore all that we get is that the licence which is granted by the Government to a supplier of electricity, like the appellant, is to contain a clause that certain disputes would be referred to arbitration. The licence is an engagement between the Government and the licensee, binding the parties to it to its provisions. It is unnecessary to decide whether this engagement is contractual or statutory, for, in either case it is between the two of them only. An arbitration clause in an instrument like this can only be in respect of disputes between the parties to it. Such an arbitration clause does not contemplate a dispute between a party to the instrument and one who is not such a party. We are unable to read s. 57 as making cl. XVI in the Sixth Schedule a statutory provision by which certain disputes between any and every person have to be referred to arbitrationIt was said on behalf of the appellant that the licence is a statutory document. That, in our view, is a loose way of putting the thing. By that the utmost that can be meant is that it is issued under the terms of a statutory provision and must comply with the provisions thereof. But that cannot convert it into a statutory provision for reference to arbitration of disputes irrespective of the parties between whom the disputes may exist.5. In our view, therefore, cl. XVI of the Sixth Schedule of the Act of 1948 contains no provision for arbitration, statutory or otherwise, for reference of the dispute of the nature we have before us, between a licensed supplier of electricity and a consumer of it from him.
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4. We will assume that the dispute is of the kind mentioned in cl. XVI of the Sixth Schedule. We are however unable to see that it is a dispute which is referable to arbitration under that clause. It is not the appellants case that cl. XVI is a clause in any contract between it and the respondent. That being so, the only other way in which it is possible for the appellant to contend that the respondent is bound to refer the dispute to arbitration under this clause is by showing that it is a statutory provision for arbitration. No doubt if it were so, then in view of the provisions of s. 46 of the Arbitration Act the appellant would be entitled to apply for a stay of the suit under s. 34 of that Act. We are however wholly unable to agree that cl. XVI is such a statutory provision. The only statutory provision that we find on the subject is that contained in s. 57 and its effect is that the terms of cl. XVI and the other clauses in the Sixth Schedule are to be deemed incorporated in a licence granted by the Government under s. 3 of the Act of 1910 and the licensee is to comply with the terms of that Schedule. Therefore all that we get is that the licence which is granted by the Government to a supplier of electricity, like the appellant, is to contain a clause that certain disputes would be referred to arbitration. The licence is an engagement between the Government and the licensee, binding the parties to it to its provisions. It is unnecessary to decide whether this engagement is contractual or statutory, for, in either case it is between the two of them only. An arbitration clause in an instrument like this can only be in respect of disputes between the parties to it. Such an arbitration clause does not contemplate a dispute between a party to the instrument and one who is not such a party. We are unable to read s. 57 as making cl. XVI in the Sixth Schedule a statutory provision by which certain disputes between any and every person have to be referred to arbitrationIt was said on behalf of the appellant that the licence is a statutory document. That, in our view, is a loose way of putting the thing. By that the utmost that can be meant is that it is issued under the terms of a statutory provision and must comply with the provisions thereof. But that cannot convert it into a statutory provision for reference to arbitration of disputes irrespective of the parties between whom the disputes may exist.5. In our view, therefore, cl. XVI of the Sixth Schedule of the Act of 1948 contains no provision for arbitration, statutory or otherwise, for reference of the dispute of the nature we have before us, between a licensed supplier of electricity and a consumer of it from him.
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Commissioner of Income Tax, Kerala Vs. Joseph John | first proviso to section 23(5)(a) does not apply to loss incurred by a registered firm in speculative business which is to be kept apart under the first proviso to section 24(1), and is not to be taken into account when computing the total income of the firm under section 23(1), (3) or (4). It was further held in that case that speculation loss of a registered firm kept apart under the first proviso to section 24(1) in computing its total income for one year could not be apportioned between the partners and the registered firm could claim to carry forward such loss and have it set off against speculation profits of the firm of a later year in accordance with section 24(2)As regards the first question, the High Court took the view that the finding of the Appellate Tribunal that the transactions are speculative transactions and not hedging transactions seemed to be based on a misapprehension of the ambit of the assessees business. It was observed by the High Court that the Tribunal had proceeded on the basis that the assessee was only a miller who bought copra, crushed it and then sold the resultant oil. The High Court said that the assessee had, as a matter of fact, the business of buying and selling quite apart from his business as a miller. The assessment order also clearly showed that, in addition to the oil produced in the assessees oil mill, he was selling oil purchased by him. It was argued on behalf of the appellant that the finding of the Appellate Tribunal that the transactions were speculative transactions and not hedging transactions was a finding of fact based on proper evidence and the High Court acted beyond its jurisdiction in interfering with that finding. In our opinion, the argument put forward on behalf of the appellant is well-founded and must be accepted as correct. Upon examination of the order of the Appellate Tribunal we are satisfied that the majority of the Appellate Tribunal entertained no misapprehension with regard to the scope of the assessees business and the High Court had no justification for saying that the Tribunals conclusion was based upon any such misapprehension. It is manifest that the finding of the Appellate Tribunal that the transactions were speculative transactions and not hedging transactions is essentially a finding on a question of fact and it is not open to the High Court to interfere with that finding unless there is no evidence to support that finding or it is perverse. In the present case, there is the admission of the assessee before the Appellate Assistant Commissioner that he was carrying on two different businesses--one of cocoanut oil and the other of speculation in cocoanut oil. By its remand order dated November 29, 1956, the Appellate Tribunal directed the Appellate Assistant Commissioner to ascertain whether the speculative transactions could be said to constitute " hedging " operations and part of the normal trading activity of the assessee. After receipt of the remand order the Appellate Assistant Commissioner required the assessee to produce a full account of the " hedging " transactions out of the " oil satta price difference account " maintained in his books of account. The assessee was required to give full details with regard to each of these contracts but the assessee expressed his inability to furnish these details separately and said that all his transactions both of speculation and hedging were mixed up in the " oil satta price difference account ". It was admitted by the assessee that no separate account of speculative transactions and hedging transactions was maintained and it was not possible to segregate from the so-called account entitled " oil satta price difference account " the transactions which are purely speculative from the hedging transactions. It was therefore held by the Tribunal that there was no evidence produced by the assessee of the hedging transactions and the transactions in question must be held to be speculative transactions which are in the nature of a business within the meaning of the first proviso to section 24(1) of the Act. Explanation 2 of section 24(1) of the Act states" A speculative transaction means a transaction in which a contract for purchase and sale of any commodity including stocks and shares is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrips.Provided that for the purposes of this section, --(a) a contract in respect of raw materials or merchandise entered into by a person in the course of his manufacturing or merchanting business to guard against loss through future price fluctuations in respect of his contracts for actual delivery of goods manufactured by him or merchandise sold by him ; or(b) a contract in respect of stocks and shares entered into by a dealer or investor therein to guard against loss in his holdings of stocks and shares through price fluctuations ; or(c) a contract entered into by a member of a forward market or a stock exchange in the course of any transaction in the nature of jobbing or arbitrage to guard against loss which may arise in the ordinary course of his business as such member ;shall not be deemed to be a speculative transaction. "6. It is manifest that the burden of proof was upon the assessee to show that the transactions are merely hedging transactions within the meaning of proviso (a) and in the absence of any evidence produced on the part of the assessee, Explanation 2 applied to the case and the transactions must be held to be speculative transactions as defined therein. We are accordingly of the opinion that there was sufficient material before the Tribunal to hold that the transactions constituted speculative transactions in the nature of a business within the meaning of the first proviso to section 24(1) of the Act and the first question referred to the High Court must be answered in the affirmative and against the assessee. | 1[ds]6. It is manifest that the burden of proof was upon the assessee to show that the transactions are merely hedging transactions within the meaning of proviso (a) and in the absence of any evidence produced on the part of the assessee, Explanation 2 applied to the case and the transactions must be held to be speculative transactions as defined therein. We are accordingly of the opinion that there was sufficient material before the Tribunal to hold that the transactions constituted speculative transactions in the nature of a business within the meaning of the first proviso to section 24(1) of the Act and the first question referred to the High Court must be answered in the affirmative and against the assessee. | 1 | 2,005 | 134 | ### 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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first proviso to section 23(5)(a) does not apply to loss incurred by a registered firm in speculative business which is to be kept apart under the first proviso to section 24(1), and is not to be taken into account when computing the total income of the firm under section 23(1), (3) or (4). It was further held in that case that speculation loss of a registered firm kept apart under the first proviso to section 24(1) in computing its total income for one year could not be apportioned between the partners and the registered firm could claim to carry forward such loss and have it set off against speculation profits of the firm of a later year in accordance with section 24(2)As regards the first question, the High Court took the view that the finding of the Appellate Tribunal that the transactions are speculative transactions and not hedging transactions seemed to be based on a misapprehension of the ambit of the assessees business. It was observed by the High Court that the Tribunal had proceeded on the basis that the assessee was only a miller who bought copra, crushed it and then sold the resultant oil. The High Court said that the assessee had, as a matter of fact, the business of buying and selling quite apart from his business as a miller. The assessment order also clearly showed that, in addition to the oil produced in the assessees oil mill, he was selling oil purchased by him. It was argued on behalf of the appellant that the finding of the Appellate Tribunal that the transactions were speculative transactions and not hedging transactions was a finding of fact based on proper evidence and the High Court acted beyond its jurisdiction in interfering with that finding. In our opinion, the argument put forward on behalf of the appellant is well-founded and must be accepted as correct. Upon examination of the order of the Appellate Tribunal we are satisfied that the majority of the Appellate Tribunal entertained no misapprehension with regard to the scope of the assessees business and the High Court had no justification for saying that the Tribunals conclusion was based upon any such misapprehension. It is manifest that the finding of the Appellate Tribunal that the transactions were speculative transactions and not hedging transactions is essentially a finding on a question of fact and it is not open to the High Court to interfere with that finding unless there is no evidence to support that finding or it is perverse. In the present case, there is the admission of the assessee before the Appellate Assistant Commissioner that he was carrying on two different businesses--one of cocoanut oil and the other of speculation in cocoanut oil. By its remand order dated November 29, 1956, the Appellate Tribunal directed the Appellate Assistant Commissioner to ascertain whether the speculative transactions could be said to constitute " hedging " operations and part of the normal trading activity of the assessee. After receipt of the remand order the Appellate Assistant Commissioner required the assessee to produce a full account of the " hedging " transactions out of the " oil satta price difference account " maintained in his books of account. The assessee was required to give full details with regard to each of these contracts but the assessee expressed his inability to furnish these details separately and said that all his transactions both of speculation and hedging were mixed up in the " oil satta price difference account ". It was admitted by the assessee that no separate account of speculative transactions and hedging transactions was maintained and it was not possible to segregate from the so-called account entitled " oil satta price difference account " the transactions which are purely speculative from the hedging transactions. It was therefore held by the Tribunal that there was no evidence produced by the assessee of the hedging transactions and the transactions in question must be held to be speculative transactions which are in the nature of a business within the meaning of the first proviso to section 24(1) of the Act. Explanation 2 of section 24(1) of the Act states" A speculative transaction means a transaction in which a contract for purchase and sale of any commodity including stocks and shares is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrips.Provided that for the purposes of this section, --(a) a contract in respect of raw materials or merchandise entered into by a person in the course of his manufacturing or merchanting business to guard against loss through future price fluctuations in respect of his contracts for actual delivery of goods manufactured by him or merchandise sold by him ; or(b) a contract in respect of stocks and shares entered into by a dealer or investor therein to guard against loss in his holdings of stocks and shares through price fluctuations ; or(c) a contract entered into by a member of a forward market or a stock exchange in the course of any transaction in the nature of jobbing or arbitrage to guard against loss which may arise in the ordinary course of his business as such member ;shall not be deemed to be a speculative transaction. "6. It is manifest that the burden of proof was upon the assessee to show that the transactions are merely hedging transactions within the meaning of proviso (a) and in the absence of any evidence produced on the part of the assessee, Explanation 2 applied to the case and the transactions must be held to be speculative transactions as defined therein. We are accordingly of the opinion that there was sufficient material before the Tribunal to hold that the transactions constituted speculative transactions in the nature of a business within the meaning of the first proviso to section 24(1) of the Act and the first question referred to the High Court must be answered in the affirmative and against the assessee.
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### Explanation:
6. It is manifest that the burden of proof was upon the assessee to show that the transactions are merely hedging transactions within the meaning of proviso (a) and in the absence of any evidence produced on the part of the assessee, Explanation 2 applied to the case and the transactions must be held to be speculative transactions as defined therein. We are accordingly of the opinion that there was sufficient material before the Tribunal to hold that the transactions constituted speculative transactions in the nature of a business within the meaning of the first proviso to section 24(1) of the Act and the first question referred to the High Court must be answered in the affirmative and against the assessee.
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M/s. Advanta India Ltd Vs. B.N. Shivanna | assist the defense set up by him or would controvert the claim made by the complainant in this petition. The respondent in this case, except making all efforts to stall the proceedings has not done the positive known to law to disprove the case set up against him.? 17. It would be pertinent to mention that even in the appeal filed by the respondent before the BCI, he had raised this ground. After considering the same, in the light of arguments of both sides and the material placed on the record, the BCI specifically rejected this contention, finding no merit therein, in its order dated September 10, 2011 and also affirmed the findings recorded by the State Bar Council that respondent had committed a serious professional misconduct by revisiting the matter as an appellate authority. Relevant portion of the order of the BCI, discussing this aspect, goes on to say the following : ?The appellant further contended that the learned Lower D.C. has not granted full opportunity to lead evidence in his defense and the learned Lower D.C. hastily and in a speedy manner without giving proper opportunity to the appellant had decided the case. After going through the proceedings, we are satisfied that ample opportunities were given to appellant for cross-examination of the complainant as well as tendering evidence in his favour. From the proceedings and conduct of the appellant it is revealed that he was found delaying the proceedings on one pretext or other, therefore, the learned Lower Disciplinary Committee has rightly closed the right of cross-examination and further found that inspite of providing sufficient opportunities to tender his evidence in defense – the appellant to do so. Moreover, the learned Lower D.C. has also dealt with this issue elaborately in paragraph 9 of the judgment and we find no infirmity in it. Thus, the objection raised by the appellant in this context has no substance.? 18. It is clear from the above that the issue as to whether there was any denial of principles of natural justice or fair trial in closing the cross-examination of PW-1 or whether this course of action was right on the part of the State Bar Council after giving sufficient opportunities to the respondent, was specifically dealt with by the BCI and authoritatively rejected while deciding the appeal of the respondent. It arrived at a categorical and definite conclusion that the respondent was given sufficient opportunities to cross-examine the complainant and it is the respondent who was at fault in failing to avail the said opportunities as he was found delaying the proceedings on one pretext or the other. It clearly follows that the BCI found fault with the respondent whose attitude was non-participatory and he was avoiding attending the hearings on false pretext. 19. When we examine the review power of the BCI, keeping in view the aforesaid factual matrix in mind, the necessary consequence would be to hold that in such a situation revisiting the issue on merits again on the pretext that the respondent was not granted proper opportunities to cross-examine PW-1 is clearly beyond review jurisdiction. No doubt, in view of dicta of this Court in O.N. Mohindroo case, the review power of the Disciplinary Committee/BCI is not to be confined within the narrow parameters laid down in Section 114 and Order 47 Rule 1, CPC. At the same time, the power also cannot be extended to the extent that the reviewing authority becomes appellate authority over its own order passed earlier. The liberty taken by the BCI outstrips even the wider amplitude and greater discretion that is granted to the Bar Council. It has reviewed its own finding of fact and overturned the same on the same material which was produced earlier and going by the same arguments which were advanced earlier. 20. After going through the record, we find that the BCI has shown undue indulgence to the respondent by allowing him to take advantage of his own wrong, in the guise of exercising its review power. It is a case of Nullus Commodum Capere Potest De Injuria Sua Propria meaning thereby a party cannot take advantage of its own wrong. This maxim is explained in Eureka Forbes Limited v. Allahabad Bank and Ors. (2010) 6 SCC 193 )in the following manner: ?The maxim nullus commodum capere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations.? 21. It was argued before us by the learned counsel for the appellant that it is a gross case of misconduct committed by the respondent. The respondent has tarnished the image of a noble profession by indulging into cheating and fraud. He duped the appellant by pretending that various criminal cases were filed against the appellant and there was inherent threat of arrest of the appellant therein. On the basis of this cooked up story of fictitious cases, the responded extracted huge amounts of money from the appellant by adopting illegal means. In the process, in order to project semblance of those cases, the respondent fabricated number of documents. Ultimately, it was found that no such criminal cases were filed by the farmers against the appellant. The respondent stands convicted by the trial court in criminal proceedings. He had even the audacity of producing fabricated copy of the order of the High Court, for which the High Court of Karnataka initiated contempt proceedings against him and in those contempt petitions, he is found guilty by the orders dated August 18, 2004 passed by the High Court and is sentenced to undergo 6 months? simple imprisonment along with fine of Rs. 2000/-. 22. However, we refrain from making any comments as the appeal of the respondent against his conviction is pending before the appellate court and, moreover, those aspects would have been relevant in deciding Civil Appeal No. 273 of 2012. 23. | 1[ds]Taking umbrage under the aforesaid dicta, the impugned order proceeds to hold that if a manifest wrong has been done, it is never too late to undo the wrong, since the factors that are placed on civil courts on their review powers are absent in review powers of the Disciplinary Committee, in terms of Section 44 and Section 48AA of the Advocate?s Act,There cannot be any doubt about the aforesaid proposition stated by the BCI. However, its application on the facts of the present case is clearly unsustainable. We are of the opinion that the BCI has, in fact, gone much beyond the scope of review powers, even when these are liberally construed. Our reasons for this conclusion are discussedWhen we examine the review power of the BCI, keeping in view the aforesaid factual matrix in mind, the necessary consequence would be to hold that in such a situation revisiting the issue on merits again on the pretext that the respondent was not granted proper opportunities to1 is clearly beyond reviewAfter going through the record, we find that the BCI has shown undue indulgence to the respondent by allowing him to take advantage of his own wrong, in the guise of exercising its review power. It is a case of Nullus Commodum Capere Potest De Injuria Sua Propria meaning thereby a party cannot take advantage of its ownHowever, we refrain from making any comments as the appeal of the respondent against his conviction is pending before the appellate court and, moreover, those aspects would have been relevant in deciding Civil Appeal No. 273 of 2012. | 1 | 3,730 | 296 | ### 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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assist the defense set up by him or would controvert the claim made by the complainant in this petition. The respondent in this case, except making all efforts to stall the proceedings has not done the positive known to law to disprove the case set up against him.? 17. It would be pertinent to mention that even in the appeal filed by the respondent before the BCI, he had raised this ground. After considering the same, in the light of arguments of both sides and the material placed on the record, the BCI specifically rejected this contention, finding no merit therein, in its order dated September 10, 2011 and also affirmed the findings recorded by the State Bar Council that respondent had committed a serious professional misconduct by revisiting the matter as an appellate authority. Relevant portion of the order of the BCI, discussing this aspect, goes on to say the following : ?The appellant further contended that the learned Lower D.C. has not granted full opportunity to lead evidence in his defense and the learned Lower D.C. hastily and in a speedy manner without giving proper opportunity to the appellant had decided the case. After going through the proceedings, we are satisfied that ample opportunities were given to appellant for cross-examination of the complainant as well as tendering evidence in his favour. From the proceedings and conduct of the appellant it is revealed that he was found delaying the proceedings on one pretext or other, therefore, the learned Lower Disciplinary Committee has rightly closed the right of cross-examination and further found that inspite of providing sufficient opportunities to tender his evidence in defense – the appellant to do so. Moreover, the learned Lower D.C. has also dealt with this issue elaborately in paragraph 9 of the judgment and we find no infirmity in it. Thus, the objection raised by the appellant in this context has no substance.? 18. It is clear from the above that the issue as to whether there was any denial of principles of natural justice or fair trial in closing the cross-examination of PW-1 or whether this course of action was right on the part of the State Bar Council after giving sufficient opportunities to the respondent, was specifically dealt with by the BCI and authoritatively rejected while deciding the appeal of the respondent. It arrived at a categorical and definite conclusion that the respondent was given sufficient opportunities to cross-examine the complainant and it is the respondent who was at fault in failing to avail the said opportunities as he was found delaying the proceedings on one pretext or the other. It clearly follows that the BCI found fault with the respondent whose attitude was non-participatory and he was avoiding attending the hearings on false pretext. 19. When we examine the review power of the BCI, keeping in view the aforesaid factual matrix in mind, the necessary consequence would be to hold that in such a situation revisiting the issue on merits again on the pretext that the respondent was not granted proper opportunities to cross-examine PW-1 is clearly beyond review jurisdiction. No doubt, in view of dicta of this Court in O.N. Mohindroo case, the review power of the Disciplinary Committee/BCI is not to be confined within the narrow parameters laid down in Section 114 and Order 47 Rule 1, CPC. At the same time, the power also cannot be extended to the extent that the reviewing authority becomes appellate authority over its own order passed earlier. The liberty taken by the BCI outstrips even the wider amplitude and greater discretion that is granted to the Bar Council. It has reviewed its own finding of fact and overturned the same on the same material which was produced earlier and going by the same arguments which were advanced earlier. 20. After going through the record, we find that the BCI has shown undue indulgence to the respondent by allowing him to take advantage of his own wrong, in the guise of exercising its review power. It is a case of Nullus Commodum Capere Potest De Injuria Sua Propria meaning thereby a party cannot take advantage of its own wrong. This maxim is explained in Eureka Forbes Limited v. Allahabad Bank and Ors. (2010) 6 SCC 193 )in the following manner: ?The maxim nullus commodum capere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations.? 21. It was argued before us by the learned counsel for the appellant that it is a gross case of misconduct committed by the respondent. The respondent has tarnished the image of a noble profession by indulging into cheating and fraud. He duped the appellant by pretending that various criminal cases were filed against the appellant and there was inherent threat of arrest of the appellant therein. On the basis of this cooked up story of fictitious cases, the responded extracted huge amounts of money from the appellant by adopting illegal means. In the process, in order to project semblance of those cases, the respondent fabricated number of documents. Ultimately, it was found that no such criminal cases were filed by the farmers against the appellant. The respondent stands convicted by the trial court in criminal proceedings. He had even the audacity of producing fabricated copy of the order of the High Court, for which the High Court of Karnataka initiated contempt proceedings against him and in those contempt petitions, he is found guilty by the orders dated August 18, 2004 passed by the High Court and is sentenced to undergo 6 months? simple imprisonment along with fine of Rs. 2000/-. 22. However, we refrain from making any comments as the appeal of the respondent against his conviction is pending before the appellate court and, moreover, those aspects would have been relevant in deciding Civil Appeal No. 273 of 2012. 23.
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### Explanation:
Taking umbrage under the aforesaid dicta, the impugned order proceeds to hold that if a manifest wrong has been done, it is never too late to undo the wrong, since the factors that are placed on civil courts on their review powers are absent in review powers of the Disciplinary Committee, in terms of Section 44 and Section 48AA of the Advocate?s Act,There cannot be any doubt about the aforesaid proposition stated by the BCI. However, its application on the facts of the present case is clearly unsustainable. We are of the opinion that the BCI has, in fact, gone much beyond the scope of review powers, even when these are liberally construed. Our reasons for this conclusion are discussedWhen we examine the review power of the BCI, keeping in view the aforesaid factual matrix in mind, the necessary consequence would be to hold that in such a situation revisiting the issue on merits again on the pretext that the respondent was not granted proper opportunities to1 is clearly beyond reviewAfter going through the record, we find that the BCI has shown undue indulgence to the respondent by allowing him to take advantage of his own wrong, in the guise of exercising its review power. It is a case of Nullus Commodum Capere Potest De Injuria Sua Propria meaning thereby a party cannot take advantage of its ownHowever, we refrain from making any comments as the appeal of the respondent against his conviction is pending before the appellate court and, moreover, those aspects would have been relevant in deciding Civil Appeal No. 273 of 2012.
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State Bank Of Travancore Vs. Elias Elias & Ors | necessarily follow that he should, in the transferee bank, be placed in a post having the same designation. x x x. On examining the position the Reserve Bank of India is of opinion that the duties which the employee was discharging in the transferor bank do not relate to the duties which a clerk has to do in the office."In the view of the Bank the duties performed by the Civil Agent were "essentially different from those of a clerk and called for a much lower degree of qualifications, skill and competence than those which a clerk normally brings to bear on his work, and since the subordinate cadre of the State Bank in which Elias was fitted was "in effect a residual classification" there was no change and the Bank was justified in placing him in that classification. It was also observed that there was "no change in the work" allotted to Elias nor was he expected to do the work of a chaprasi or a peon and that his emoluments were better than those in the transferor bank. The fact that prior to the fitment in the transferee bank, in terms of the provisions of paragraph 15 of the Scheme, Elias was addressed as a civil clerk did not confer on him the status of a clerk in the transferee bank. These observations relate to matters which could not be referred to the Reserve Bank and the decision of the Reserve Bank thereon is not made fina1 under the second proviso to sub-section (5) (i) of S. 45 of the Act. Only the question whether the qualifications and experience of any of the employees of the transferor bank are the same as or equivalent to the qualifications and experience of the other employees of corresponding rank or status under Clause (ii) of the first proviso is intended to be referred to the Reserve Bank. In that view the first argument advanced on behalf of the appellant must be rejected.9. It is said that Elias "had studied only upto 5th Form". But that is not decisive of the corresponding rank or status in which "he could be fitted" in the State Bank Elias was employed in the K O. Bank as a Civil Agent. The duties of a Civil Agent were clerical and not menial. In the K O. Bank no separate scale was prescribed for the post of a Civil Agent. The salary paid to Elias was that of a Clerk and his duties were those of a Clerk. In the State Bank, Elias was also performing the duties of a Civil Agent and there was no separate classification of the office of a Civil Agent. The subordinate cadre consisted of peons, watchmen and sweepers and of employees performing similar duties and a Civil Agent performing duties which were clerical in nature could not appropriately be placed in that classification. The decision of the Reserve Bank that the subordinate cadre was a residual cadre, is, in our judgment, not supported by any evidence. It was conceded before the High Court that Elias satisfied "three conditions as to the rank, status and qualifications" of a Clerk in the State Bank. It was only urged that he had not the requisite experience. Under Clause (ii) of the first proviso to Section 45 (5) (i) the transferee bank has to grant the same remuneration and the same terms and conditions of service as are applicable to employees of corresponding rank or status of the transferee bank subject to the qualifications and experience of the said employees being the same as or equivalent to those of such other employees of the transferee bank. The guarantee under Clause (i) of Section 45 (5) of the Act does not cover merely the remuneration: it covers the terms and conditions of service as well. It would be a gross denial of the guarantee if the employee is not given the rank and status which he had in the transferor bank. It is in our judgment, not open to the transferee bank to "fit" an employee of the transferor bank performing the duties of a clerk into a subordinate cadre manned by employees performing duties which are not clerical but of peons, watchmen, sweepers and the like.10. The Banking Regulation Act, 1949, guarantees the same terms and conditions of service, and the transferee bank is entitled to "fit" the employees of the transferor bank into the corresponding rank or status. In doing so it has to take into account the qualifications and experience of the employees of the transferor bank. But in "fitting" an employee into the transferee bank, the rank and status enjoyed by an employee in the transferor bank cannot be ignored. A person performing certain duties in the transferor bank when admitted into the service of the transferee bank may be so "fitted" in a cadre which is equivalent in status and rank with the status and rank of the employees in the transferee bank, but in grading him into the cadre of equivalent status and rank experience and qualifications must be taken into account. On the ground of lack of experience and qualifications a person cannot be deprived of his rank and status in the transferee bank. Clause (ii) to the first proviso of Section 45 (5) (i) does not, in our judgment, authorise the transferee bank to "fit" an employee in the transferee bank into a post with rank and status lower than the rank and status enjoyed by the employee in the transferor bank. To accept the contention raised on behalf of the State Bank is in effect to defeat the guarantee relating to the terms and conditions of service under Clause (i) of Section 45 (5) and the first proviso thereto.11. In our judgment the High Court was right in holding that the orders passed by the State Bank "fitting" Elias into a subordinate cadre infringed the guarantee under Section 45 (5) (i) of the Banking Regulation Act, 1949. | 0[ds]10. The Banking Regulation Act, 1949, guarantees the same terms and conditions of service, and the transferee bank is entitled to "fit" the employees of the transferor bank into the corresponding rank or status. In doing so it has to take into account the qualifications and experience of the employees of the transferor bank. But in "fitting" an employee into the transferee bank, the rank and status enjoyed by an employee in the transferor bank cannot be ignored. A person performing certain duties in the transferor bank when admitted into the service of the transferee bank may be so "fitted" in a cadre which is equivalent in status and rank with the status and rank of the employees in the transferee bank, but in grading him into the cadre of equivalent status and rank experience and qualifications must be taken into account. On the ground of lack of experience and qualifications a person cannot be deprived of his rank and status in the transferee bank. Clause (ii) to the first proviso of Section 45 (5) (i) does not, in our judgment, authorise the transferee bank to "fit" an employee in the transferee bank into a post with rank and status lower than the rank and status enjoyed by the employee in the transferor bank. To accept the contention raised on behalf of the State Bank is in effect to defeat the guarantee relating to the terms and conditions of service under Clause (i) of Section 45 (5) and the first proviso thereto.11. In our judgment the High Court was right in holding that the orders passed by the State Bank "fitting" Elias into a subordinate cadre infringed the guarantee under Section 45 (5) (i) ofthe Banking Regulation Act, 1949. | 0 | 2,717 | 336 | ### 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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necessarily follow that he should, in the transferee bank, be placed in a post having the same designation. x x x. On examining the position the Reserve Bank of India is of opinion that the duties which the employee was discharging in the transferor bank do not relate to the duties which a clerk has to do in the office."In the view of the Bank the duties performed by the Civil Agent were "essentially different from those of a clerk and called for a much lower degree of qualifications, skill and competence than those which a clerk normally brings to bear on his work, and since the subordinate cadre of the State Bank in which Elias was fitted was "in effect a residual classification" there was no change and the Bank was justified in placing him in that classification. It was also observed that there was "no change in the work" allotted to Elias nor was he expected to do the work of a chaprasi or a peon and that his emoluments were better than those in the transferor bank. The fact that prior to the fitment in the transferee bank, in terms of the provisions of paragraph 15 of the Scheme, Elias was addressed as a civil clerk did not confer on him the status of a clerk in the transferee bank. These observations relate to matters which could not be referred to the Reserve Bank and the decision of the Reserve Bank thereon is not made fina1 under the second proviso to sub-section (5) (i) of S. 45 of the Act. Only the question whether the qualifications and experience of any of the employees of the transferor bank are the same as or equivalent to the qualifications and experience of the other employees of corresponding rank or status under Clause (ii) of the first proviso is intended to be referred to the Reserve Bank. In that view the first argument advanced on behalf of the appellant must be rejected.9. It is said that Elias "had studied only upto 5th Form". But that is not decisive of the corresponding rank or status in which "he could be fitted" in the State Bank Elias was employed in the K O. Bank as a Civil Agent. The duties of a Civil Agent were clerical and not menial. In the K O. Bank no separate scale was prescribed for the post of a Civil Agent. The salary paid to Elias was that of a Clerk and his duties were those of a Clerk. In the State Bank, Elias was also performing the duties of a Civil Agent and there was no separate classification of the office of a Civil Agent. The subordinate cadre consisted of peons, watchmen and sweepers and of employees performing similar duties and a Civil Agent performing duties which were clerical in nature could not appropriately be placed in that classification. The decision of the Reserve Bank that the subordinate cadre was a residual cadre, is, in our judgment, not supported by any evidence. It was conceded before the High Court that Elias satisfied "three conditions as to the rank, status and qualifications" of a Clerk in the State Bank. It was only urged that he had not the requisite experience. Under Clause (ii) of the first proviso to Section 45 (5) (i) the transferee bank has to grant the same remuneration and the same terms and conditions of service as are applicable to employees of corresponding rank or status of the transferee bank subject to the qualifications and experience of the said employees being the same as or equivalent to those of such other employees of the transferee bank. The guarantee under Clause (i) of Section 45 (5) of the Act does not cover merely the remuneration: it covers the terms and conditions of service as well. It would be a gross denial of the guarantee if the employee is not given the rank and status which he had in the transferor bank. It is in our judgment, not open to the transferee bank to "fit" an employee of the transferor bank performing the duties of a clerk into a subordinate cadre manned by employees performing duties which are not clerical but of peons, watchmen, sweepers and the like.10. The Banking Regulation Act, 1949, guarantees the same terms and conditions of service, and the transferee bank is entitled to "fit" the employees of the transferor bank into the corresponding rank or status. In doing so it has to take into account the qualifications and experience of the employees of the transferor bank. But in "fitting" an employee into the transferee bank, the rank and status enjoyed by an employee in the transferor bank cannot be ignored. A person performing certain duties in the transferor bank when admitted into the service of the transferee bank may be so "fitted" in a cadre which is equivalent in status and rank with the status and rank of the employees in the transferee bank, but in grading him into the cadre of equivalent status and rank experience and qualifications must be taken into account. On the ground of lack of experience and qualifications a person cannot be deprived of his rank and status in the transferee bank. Clause (ii) to the first proviso of Section 45 (5) (i) does not, in our judgment, authorise the transferee bank to "fit" an employee in the transferee bank into a post with rank and status lower than the rank and status enjoyed by the employee in the transferor bank. To accept the contention raised on behalf of the State Bank is in effect to defeat the guarantee relating to the terms and conditions of service under Clause (i) of Section 45 (5) and the first proviso thereto.11. In our judgment the High Court was right in holding that the orders passed by the State Bank "fitting" Elias into a subordinate cadre infringed the guarantee under Section 45 (5) (i) of the Banking Regulation Act, 1949.
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10. The Banking Regulation Act, 1949, guarantees the same terms and conditions of service, and the transferee bank is entitled to "fit" the employees of the transferor bank into the corresponding rank or status. In doing so it has to take into account the qualifications and experience of the employees of the transferor bank. But in "fitting" an employee into the transferee bank, the rank and status enjoyed by an employee in the transferor bank cannot be ignored. A person performing certain duties in the transferor bank when admitted into the service of the transferee bank may be so "fitted" in a cadre which is equivalent in status and rank with the status and rank of the employees in the transferee bank, but in grading him into the cadre of equivalent status and rank experience and qualifications must be taken into account. On the ground of lack of experience and qualifications a person cannot be deprived of his rank and status in the transferee bank. Clause (ii) to the first proviso of Section 45 (5) (i) does not, in our judgment, authorise the transferee bank to "fit" an employee in the transferee bank into a post with rank and status lower than the rank and status enjoyed by the employee in the transferor bank. To accept the contention raised on behalf of the State Bank is in effect to defeat the guarantee relating to the terms and conditions of service under Clause (i) of Section 45 (5) and the first proviso thereto.11. In our judgment the High Court was right in holding that the orders passed by the State Bank "fitting" Elias into a subordinate cadre infringed the guarantee under Section 45 (5) (i) ofthe Banking Regulation Act, 1949.
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Moti Singh & Another Vs. State of Uttar Pradesh | the deciding factor. It said:"The number of assailants mentioned in the dying declaration Ex. Kha 75 is only four. It is doubtful if the assailants were more than four in number. NO offence under S. 148 was therefore committed and section 149 I. P. C. is not applicable".12. It is clear from the above that the High Court mainly relied on the alleged dying declaration of Gaya Charan for determining that Moti Singh and Jagdamba Prasad, appellants, fired from the room and the platform and that if their names had not been mentioned in this statement of Gaya Charan, they too would have got the benefit of doubt just as Sheo Darshan Singh and Avadh Behari got. There is no other factor for making a distinction between the cases of these two appellants and those two accused as all the prosecution witnesses and named all the accused as assailants of the victim party. It follows that if this alleged dying declaration of Gaya Charan be inadmissible in evidence as urged for the appellants, the appeals have to be allowed and the conviction of the appellants set aside.13. The incident took place on February 9, 1960. Gaya Charans injuries were examined by Dr. Bhatnagar the same day. He found two gunshot wounds of entry 1/4" x 1/4" up to the depth of abdomen and considered those injuries to be caused by gunshot and to be dangerous to life. Gaya Charan left the hospital. He was either discharged on the injuries healing up or he left the hospital before they healed up. There is nothing on the record to show in what circumstance he left the hospital. He died on March 1, 1960.14. Sub-Inspector Puttu Lal, P. W. 24, has deposed that it was know on March 1, 1960 that Gaya Charan had died in Kanpur and that when he reached the Bhairon Ghat he learnt that the dead body of Gaya Charan had been burnt a couple of hours before. There is no evidence on record as to what caused Gaya Charans death. In this state of evidence the finding of the Sessions Judge that Gaya Charan must have died on account of the injuries received in the incident cannot be held be a good finding. What he says in this connection is :"Gaya Charan had a gunshot wound of entry on the left hypochondrium region and one gunshot wound of entry on the right lumber region. Both the injuries were dangerous to life, according to the Doctor. Gaya Charan must have died of these injuries and the mere fact, that no post mortem could be conducted on his dead body before his cremation, does not show that we cannot rely on his dying declaration".The mere fact that the two gun shot injuries were dangerous to life is not sufficient for holding that Gaya Charans death which took place about three weeks after the incident must have been on account of those injuries.15. In this connection our attention was drawn to the fact that Ram Shankar who was also injured in that incident had received one gunshot wound 1/4"x1/4" up to the depth of his abdomen, 1/2" above the right end of upper border of syihphysis Pubes, and that injury was also considered by the Doctor to be dangerous to life, but fortunately Ram Shaker did not succumb to the injury. The High Court did not refer to this question as it appears the admissibility of the alleged dying declaration of Gaya Charan was not raised before it. That however does not mean that we cannot look into the finding of fact about Gaya Charan having died on account of the injuries received in the incident. It is necessary for proving the charge of murder of Gay Charan that he had died on account of the injuries received and any finding to that effect in the absence of evidence, can be looked into by this Court even though the Courts below have confirmed that finding. We find that there is no evidence to support that finding and hod that Gaya Charan is not proved to have died due to the injuries received in the incident.16. The effect of this finding is that the alleged dying declaration of Gaya Charan Ex. Kha 75, cannot be admissible in evidence.Clause (1) of S. 32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by as person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question. When Gaya Charan is not proved to have died as a result of the injuries received in the incident his statement cannot be said to be the statement as to the cause of his death or as any of the circumstances of the transaction which resulted in his death. This is obvious and is not disputed for the respondent State.17. The result then is that the statement of Gaya Charan Ex. Kha 75 is inadmissible in evidence. It was the mainstay of the judgment of the High Court upholding the finding of the Sessions Judge that Moti Singh and Jagdamba Prasad appellants, were among the persons who had fired from the room and the platform. When this evidence is to be ignored as inadmissible, the remaining evidence on the record, according to the view of the High Court, was insufficient to establish beyond reasonable doubt that these two persons were among the assailants. The appellants deserve the benefit of the doubt. They would have got it if the High Court had not erroneously relied on the statement Ex. Kha 75.18. We therefore hold that Moti Singh and Jagdamba Prasad have not been proved to have taken part in that incident on February 9, 1960, which led to the deaths of Lallan and Matrumal and the causing of hurt to several other persons. | 1[ds]15. In this connection our attention was drawn to the fact that Ram Shankar who was also injured in that incident had received one gunshot wound 1/4"x1/4" up to the depth of his abdomen, 1/2" above the right end of upper border of syihphysis Pubes, and that injury was also considered by the Doctor to be dangerous to life, but fortunately Ram Shaker did not succumb to the injury. The High Court did not refer to this question as it appears the admissibility of the alleged dying declaration of Gaya Charan was not raised before it. That however does not mean that we cannot look into the finding of fact about Gaya Charan having died on account of the injuries received in the incident. It is necessary for proving the charge of murder of Gay Charan that he had died on account of the injuries received and any finding to that effect in the absence of evidence, can be looked into by this Court even though the Courts below have confirmed that finding. We find that there is no evidence to support that finding and hod that Gaya Charan is not proved to have died due to the injuries received in the incident.16. The effect of this finding is that the alleged dying declaration of Gaya Charan Ex. Kha 75, cannot be admissible in evidence.Clause (1) of S. 32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by as person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question. When Gaya Charan is not proved to have died as a result of the injuries received in the incident his statement cannot be said to be the statement as to the cause of his death or as any of the circumstances of the transaction which resulted in his death. This is obvious and is not disputed for the respondent State.17. The result then is that the statement of Gaya Charan Ex. Kha 75 is inadmissible in evidence. It was the mainstay of the judgment of the High Court upholding the finding of the Sessions Judge that Moti Singh and Jagdamba Prasad appellants, were among the persons who had fired from the room and the platform. When this evidence is to be ignored as inadmissible, the remaining evidence on the record, according to the view of the High Court, was insufficient to establish beyond reasonable doubt that these two persons were among the assailants. The appellants deserve the benefit of the doubt. They would have got it if the High Court had not erroneously relied on the statement Ex. Kha 75.18. We therefore hold that Moti Singh and Jagdamba Prasad have not been proved to have taken part in that incident on February 9, 1960, which led to the deaths of Lallan and Matrumal and the causing of hurt to several other persons. | 1 | 2,469 | 552 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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the deciding factor. It said:"The number of assailants mentioned in the dying declaration Ex. Kha 75 is only four. It is doubtful if the assailants were more than four in number. NO offence under S. 148 was therefore committed and section 149 I. P. C. is not applicable".12. It is clear from the above that the High Court mainly relied on the alleged dying declaration of Gaya Charan for determining that Moti Singh and Jagdamba Prasad, appellants, fired from the room and the platform and that if their names had not been mentioned in this statement of Gaya Charan, they too would have got the benefit of doubt just as Sheo Darshan Singh and Avadh Behari got. There is no other factor for making a distinction between the cases of these two appellants and those two accused as all the prosecution witnesses and named all the accused as assailants of the victim party. It follows that if this alleged dying declaration of Gaya Charan be inadmissible in evidence as urged for the appellants, the appeals have to be allowed and the conviction of the appellants set aside.13. The incident took place on February 9, 1960. Gaya Charans injuries were examined by Dr. Bhatnagar the same day. He found two gunshot wounds of entry 1/4" x 1/4" up to the depth of abdomen and considered those injuries to be caused by gunshot and to be dangerous to life. Gaya Charan left the hospital. He was either discharged on the injuries healing up or he left the hospital before they healed up. There is nothing on the record to show in what circumstance he left the hospital. He died on March 1, 1960.14. Sub-Inspector Puttu Lal, P. W. 24, has deposed that it was know on March 1, 1960 that Gaya Charan had died in Kanpur and that when he reached the Bhairon Ghat he learnt that the dead body of Gaya Charan had been burnt a couple of hours before. There is no evidence on record as to what caused Gaya Charans death. In this state of evidence the finding of the Sessions Judge that Gaya Charan must have died on account of the injuries received in the incident cannot be held be a good finding. What he says in this connection is :"Gaya Charan had a gunshot wound of entry on the left hypochondrium region and one gunshot wound of entry on the right lumber region. Both the injuries were dangerous to life, according to the Doctor. Gaya Charan must have died of these injuries and the mere fact, that no post mortem could be conducted on his dead body before his cremation, does not show that we cannot rely on his dying declaration".The mere fact that the two gun shot injuries were dangerous to life is not sufficient for holding that Gaya Charans death which took place about three weeks after the incident must have been on account of those injuries.15. In this connection our attention was drawn to the fact that Ram Shankar who was also injured in that incident had received one gunshot wound 1/4"x1/4" up to the depth of his abdomen, 1/2" above the right end of upper border of syihphysis Pubes, and that injury was also considered by the Doctor to be dangerous to life, but fortunately Ram Shaker did not succumb to the injury. The High Court did not refer to this question as it appears the admissibility of the alleged dying declaration of Gaya Charan was not raised before it. That however does not mean that we cannot look into the finding of fact about Gaya Charan having died on account of the injuries received in the incident. It is necessary for proving the charge of murder of Gay Charan that he had died on account of the injuries received and any finding to that effect in the absence of evidence, can be looked into by this Court even though the Courts below have confirmed that finding. We find that there is no evidence to support that finding and hod that Gaya Charan is not proved to have died due to the injuries received in the incident.16. The effect of this finding is that the alleged dying declaration of Gaya Charan Ex. Kha 75, cannot be admissible in evidence.Clause (1) of S. 32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by as person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question. When Gaya Charan is not proved to have died as a result of the injuries received in the incident his statement cannot be said to be the statement as to the cause of his death or as any of the circumstances of the transaction which resulted in his death. This is obvious and is not disputed for the respondent State.17. The result then is that the statement of Gaya Charan Ex. Kha 75 is inadmissible in evidence. It was the mainstay of the judgment of the High Court upholding the finding of the Sessions Judge that Moti Singh and Jagdamba Prasad appellants, were among the persons who had fired from the room and the platform. When this evidence is to be ignored as inadmissible, the remaining evidence on the record, according to the view of the High Court, was insufficient to establish beyond reasonable doubt that these two persons were among the assailants. The appellants deserve the benefit of the doubt. They would have got it if the High Court had not erroneously relied on the statement Ex. Kha 75.18. We therefore hold that Moti Singh and Jagdamba Prasad have not been proved to have taken part in that incident on February 9, 1960, which led to the deaths of Lallan and Matrumal and the causing of hurt to several other persons.
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1
### Explanation:
15. In this connection our attention was drawn to the fact that Ram Shankar who was also injured in that incident had received one gunshot wound 1/4"x1/4" up to the depth of his abdomen, 1/2" above the right end of upper border of syihphysis Pubes, and that injury was also considered by the Doctor to be dangerous to life, but fortunately Ram Shaker did not succumb to the injury. The High Court did not refer to this question as it appears the admissibility of the alleged dying declaration of Gaya Charan was not raised before it. That however does not mean that we cannot look into the finding of fact about Gaya Charan having died on account of the injuries received in the incident. It is necessary for proving the charge of murder of Gay Charan that he had died on account of the injuries received and any finding to that effect in the absence of evidence, can be looked into by this Court even though the Courts below have confirmed that finding. We find that there is no evidence to support that finding and hod that Gaya Charan is not proved to have died due to the injuries received in the incident.16. The effect of this finding is that the alleged dying declaration of Gaya Charan Ex. Kha 75, cannot be admissible in evidence.Clause (1) of S. 32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by as person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question. When Gaya Charan is not proved to have died as a result of the injuries received in the incident his statement cannot be said to be the statement as to the cause of his death or as any of the circumstances of the transaction which resulted in his death. This is obvious and is not disputed for the respondent State.17. The result then is that the statement of Gaya Charan Ex. Kha 75 is inadmissible in evidence. It was the mainstay of the judgment of the High Court upholding the finding of the Sessions Judge that Moti Singh and Jagdamba Prasad appellants, were among the persons who had fired from the room and the platform. When this evidence is to be ignored as inadmissible, the remaining evidence on the record, according to the view of the High Court, was insufficient to establish beyond reasonable doubt that these two persons were among the assailants. The appellants deserve the benefit of the doubt. They would have got it if the High Court had not erroneously relied on the statement Ex. Kha 75.18. We therefore hold that Moti Singh and Jagdamba Prasad have not been proved to have taken part in that incident on February 9, 1960, which led to the deaths of Lallan and Matrumal and the causing of hurt to several other persons.
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M/s. Hukam Chand Jute Mills Limited Vs. Second Industrial Tribunal, West Bengal and Others | the Act gives no guidance to fix the quantum of festival b onus; nor does it expressly wish away such a usage. The conclusion seems to be fairly clear, unless we strain judicial sympathy countrarywise, that the Bonus Act dealt with only profit bonus and matters connected t herewith and did not govern customary, traditional or contractual bonus.The end product of our study of the anatomy and other related factors is that the Bonus Act spreads the canvas wide to exhaust profit-based bonus but beyond its frontiers is not void other cousin claims bearing the caste name bonus flourish-miniatures of other colours ! The Act is neither proscriptive nor predicative of other existences." 6. After dealing with Ghewar Chands case(1), the Court arrived at the final view that:"A discerning and concrete analysis of the scheme of the Act and the reasoning of the Court leaves us in no doubt that it leaves untouched customary bonus." (2) T his ruling has our concurrence and, indeed, the principal plea of Shri Pai, counsel for the appellant, is that the effect of the 1976 amending Act has been left open in that decision and that is precisely the justification for his submission that the new provisions nullify all kinds of claims of bonus except profit-or-productivity-based bonuses, having regard to ss. 31A and 34A brought into the statute Act. 7. Counsel made his goal-oriented submissions by taking us through the new provisions. As we have stated earlier many of the statutory modifications brought about in 1976 in the then wisdom of Parliament have been repealed and the original position restored in 1977 by the later wisdom of the new Parliament. However, we are concerned only with the import and effect of the few provisions incorporated by Act 23 of 1976. The fundamental fact which we must reiterate is that the Bonus Act before the 1976 amendment had nothing to say on bonus not oriented on profit. What the n was the departure made ? Did it travel beyond the broad territory of the original statute and invade other forms of bonus ? Apart from the clauses which we will presently deal with, a key to the understanding of the changes is the long title. The long title of the Bonus Act was also amended in 1976 and the substituted one runs thus:"An Act to provide for the payment of bonus to persons employed in certain establishments on the basis of profits or on the basis of production or productivity and for matters connected therewith." 8. The clear light that we glean from the new long title is contrary to the intent of Shri Pais argument. Specifically, the new long title purports to provide for t he payment of bonus "on the basis of profits or on the basis of production or productivity and for matters connected therewith". The emphatic inference flows therefrom that customary or contractual bonus goes beyond the pale of the a mending Act which modifies the previous one by bringing within its range bonus on the basis of production or productivity also. Nothing more-unless the text expressly states to the contrary. It is important to remember that s. 17 of the Bonus Act has been left intact. That Section in express terms refers to puja bonus and other customary bonus as available for deduction from the bonus payable under the Act, thus making a clear distinction between the bonus payable under the Act and "puja" bonus or other customary bonus. So long as this Section remains without amendment the inference is clear that the categories covered by the Act, as amended, did not deal with customary bonus 9. Strong reliance was placed by counsel for the appellant on new s. 31A read with substituted s. 34. It is proper to read s. 34 at this stage:"34. Subject to the provisions of section 31A, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the terms of any award, agreement, settlement or contract of service." 10. The only changes that we notice as between this Section and its predecessor are (i) that agreements, settlements and contracts of service inconsistent with the provisions of the Act regardless of whether they were made before 29th May, 1965 or after would now stand superseded; and (ii) s. 24 shall be subject to the provisions of s. 31A newly inserted.We may straightway dispose of the argument based on s. 31A. That relates to bonus linked with production or productivity in lieu of bonus based on profits. We are not concerned with such a situation and we agree that in regard to productivity bonus s. 31A shall have operation but it speaks nothing about the other kinds of bonus and cannot, therefore, be said to have the spin-off benefits claimed by the appellant. Similarly, the submission that all agreements inconsistent with the Bonus Act shall become inoperative also has no substance vis-a-vis customary bonus. The fallacy is simple. Once we agree-and this is incontestable now-that the Bonus Act (1965) does not deal with customary bonus and is confined to profit-based or productivity-based bonus, the provisions of the Act have no say on customary bonus and cannot, therefore, be inconsistent therewith. Conceptually, statutory bonus and customary bonus operate in two fields and do not clash with each other. 11. We have reached the end of journey because the focal point of the debate is as to whether customary bonus, as claimed in this case, is impaired or eliminated by the 1976 amendment Act. Moreover, both parties have a greed that throughout they have been dealing with customary bonus only and whenever there has been a settlement or agreement it has been not the source of the right but the quantification thereof. The claim was rooted in custom but quantified by contract. It did not originate in any agreement, but was organised by it. We are, therefore, satisfied that the appeal must fail. 12. | 0[ds]The clear light that we glean from the new long title is contrary to the intent of Shri Pais argument. Specifically, the new long title purports to provide for t he payment of bonus "on the basis of profits or on the basis of production or productivity and for matters connected therewith". The emphatic inference flows therefrom that customary or contractual bonus goes beyond the pale of the a mending Act which modifies the previous one by bringing within its range bonus on the basis of production or productivity also. Nothing more-unless the text expressly states to the contrary. It is important to remember that s. 17 of the Bonus Act has been left intact. That Section in express terms refers to puja bonus and other customary bonus as available for deduction from the bonus payable under the Act, thus making a clear distinction between the bonus payable under the Act and "puja" bonus or other customary bonus. So long as this Section remains without amendment the inference is clear that the categories covered by the Act, as amended, did not deal with customary bonusThe only changes that we notice as between this Section and its predecessor are (i) that agreements, settlements and contracts of service inconsistent with the provisions of the Act regardless of whether they were made before 29th May, 1965 or after would now stand superseded; and (ii) s. 24 shall be subject to the provisions of s. 31A newly inserted.We may straightway dispose of the argument based on s. 31A. That relates to bonus linked with production or productivity in lieu of bonus based on profits. We are not concerned with such a situation and we agree that in regard to productivity bonus s. 31A shall have operation but it speaks nothing about the other kinds of bonus and cannot, therefore, be said to have the spin-off benefits claimed by the appellant. Similarly, the submission that all agreements inconsistent with the Bonus Act shall become inoperative also has no substance vis-a-vis customary bonus. The fallacy is simple. Once we agree-and this is incontestable now-that the Bonus Act (1965) does not deal with customary bonus and is confined to profit-based or productivity-based bonus, the provisions of the Act have no say on customary bonus and cannot, therefore, be inconsistent therewith. Conceptually, statutory bonus and customary bonus operate in two fields and do not clash with each otherWe have reached the end of journey because the focal point of the debate is as to whether customary bonus, as claimed in this case, is impaired or eliminated by the 1976 amendment Act. Moreover, both parties have a greed that throughout they have been dealing with customary bonus only and whenever there has been a settlement or agreement it has been not the source of the right but the quantification thereof. The claim was rooted in custom but quantified by contract. It did not originate in any agreement, but was organised by it. We are, therefore, satisfied that the appeal must fail. | 0 | 2,189 | 555 | ### Instruction:
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the Act gives no guidance to fix the quantum of festival b onus; nor does it expressly wish away such a usage. The conclusion seems to be fairly clear, unless we strain judicial sympathy countrarywise, that the Bonus Act dealt with only profit bonus and matters connected t herewith and did not govern customary, traditional or contractual bonus.The end product of our study of the anatomy and other related factors is that the Bonus Act spreads the canvas wide to exhaust profit-based bonus but beyond its frontiers is not void other cousin claims bearing the caste name bonus flourish-miniatures of other colours ! The Act is neither proscriptive nor predicative of other existences." 6. After dealing with Ghewar Chands case(1), the Court arrived at the final view that:"A discerning and concrete analysis of the scheme of the Act and the reasoning of the Court leaves us in no doubt that it leaves untouched customary bonus." (2) T his ruling has our concurrence and, indeed, the principal plea of Shri Pai, counsel for the appellant, is that the effect of the 1976 amending Act has been left open in that decision and that is precisely the justification for his submission that the new provisions nullify all kinds of claims of bonus except profit-or-productivity-based bonuses, having regard to ss. 31A and 34A brought into the statute Act. 7. Counsel made his goal-oriented submissions by taking us through the new provisions. As we have stated earlier many of the statutory modifications brought about in 1976 in the then wisdom of Parliament have been repealed and the original position restored in 1977 by the later wisdom of the new Parliament. However, we are concerned only with the import and effect of the few provisions incorporated by Act 23 of 1976. The fundamental fact which we must reiterate is that the Bonus Act before the 1976 amendment had nothing to say on bonus not oriented on profit. What the n was the departure made ? Did it travel beyond the broad territory of the original statute and invade other forms of bonus ? Apart from the clauses which we will presently deal with, a key to the understanding of the changes is the long title. The long title of the Bonus Act was also amended in 1976 and the substituted one runs thus:"An Act to provide for the payment of bonus to persons employed in certain establishments on the basis of profits or on the basis of production or productivity and for matters connected therewith." 8. The clear light that we glean from the new long title is contrary to the intent of Shri Pais argument. Specifically, the new long title purports to provide for t he payment of bonus "on the basis of profits or on the basis of production or productivity and for matters connected therewith". The emphatic inference flows therefrom that customary or contractual bonus goes beyond the pale of the a mending Act which modifies the previous one by bringing within its range bonus on the basis of production or productivity also. Nothing more-unless the text expressly states to the contrary. It is important to remember that s. 17 of the Bonus Act has been left intact. That Section in express terms refers to puja bonus and other customary bonus as available for deduction from the bonus payable under the Act, thus making a clear distinction between the bonus payable under the Act and "puja" bonus or other customary bonus. So long as this Section remains without amendment the inference is clear that the categories covered by the Act, as amended, did not deal with customary bonus 9. Strong reliance was placed by counsel for the appellant on new s. 31A read with substituted s. 34. It is proper to read s. 34 at this stage:"34. Subject to the provisions of section 31A, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the terms of any award, agreement, settlement or contract of service." 10. The only changes that we notice as between this Section and its predecessor are (i) that agreements, settlements and contracts of service inconsistent with the provisions of the Act regardless of whether they were made before 29th May, 1965 or after would now stand superseded; and (ii) s. 24 shall be subject to the provisions of s. 31A newly inserted.We may straightway dispose of the argument based on s. 31A. That relates to bonus linked with production or productivity in lieu of bonus based on profits. We are not concerned with such a situation and we agree that in regard to productivity bonus s. 31A shall have operation but it speaks nothing about the other kinds of bonus and cannot, therefore, be said to have the spin-off benefits claimed by the appellant. Similarly, the submission that all agreements inconsistent with the Bonus Act shall become inoperative also has no substance vis-a-vis customary bonus. The fallacy is simple. Once we agree-and this is incontestable now-that the Bonus Act (1965) does not deal with customary bonus and is confined to profit-based or productivity-based bonus, the provisions of the Act have no say on customary bonus and cannot, therefore, be inconsistent therewith. Conceptually, statutory bonus and customary bonus operate in two fields and do not clash with each other. 11. We have reached the end of journey because the focal point of the debate is as to whether customary bonus, as claimed in this case, is impaired or eliminated by the 1976 amendment Act. Moreover, both parties have a greed that throughout they have been dealing with customary bonus only and whenever there has been a settlement or agreement it has been not the source of the right but the quantification thereof. The claim was rooted in custom but quantified by contract. It did not originate in any agreement, but was organised by it. We are, therefore, satisfied that the appeal must fail. 12.
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The clear light that we glean from the new long title is contrary to the intent of Shri Pais argument. Specifically, the new long title purports to provide for t he payment of bonus "on the basis of profits or on the basis of production or productivity and for matters connected therewith". The emphatic inference flows therefrom that customary or contractual bonus goes beyond the pale of the a mending Act which modifies the previous one by bringing within its range bonus on the basis of production or productivity also. Nothing more-unless the text expressly states to the contrary. It is important to remember that s. 17 of the Bonus Act has been left intact. That Section in express terms refers to puja bonus and other customary bonus as available for deduction from the bonus payable under the Act, thus making a clear distinction between the bonus payable under the Act and "puja" bonus or other customary bonus. So long as this Section remains without amendment the inference is clear that the categories covered by the Act, as amended, did not deal with customary bonusThe only changes that we notice as between this Section and its predecessor are (i) that agreements, settlements and contracts of service inconsistent with the provisions of the Act regardless of whether they were made before 29th May, 1965 or after would now stand superseded; and (ii) s. 24 shall be subject to the provisions of s. 31A newly inserted.We may straightway dispose of the argument based on s. 31A. That relates to bonus linked with production or productivity in lieu of bonus based on profits. We are not concerned with such a situation and we agree that in regard to productivity bonus s. 31A shall have operation but it speaks nothing about the other kinds of bonus and cannot, therefore, be said to have the spin-off benefits claimed by the appellant. Similarly, the submission that all agreements inconsistent with the Bonus Act shall become inoperative also has no substance vis-a-vis customary bonus. The fallacy is simple. Once we agree-and this is incontestable now-that the Bonus Act (1965) does not deal with customary bonus and is confined to profit-based or productivity-based bonus, the provisions of the Act have no say on customary bonus and cannot, therefore, be inconsistent therewith. Conceptually, statutory bonus and customary bonus operate in two fields and do not clash with each otherWe have reached the end of journey because the focal point of the debate is as to whether customary bonus, as claimed in this case, is impaired or eliminated by the 1976 amendment Act. Moreover, both parties have a greed that throughout they have been dealing with customary bonus only and whenever there has been a settlement or agreement it has been not the source of the right but the quantification thereof. The claim was rooted in custom but quantified by contract. It did not originate in any agreement, but was organised by it. We are, therefore, satisfied that the appeal must fail.
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Union of India & Others Vs. G.R. Prabhavalkar & Others | Government to the State Government.The entire proceedings resulting in the order of February 15, 1969 leave doubt in our minds that Central Government have considered only very relevant factors and the decision has also been taken in conformity with the provisions of the Act.They also show that the Central Government has given a proper consideration to the representations made by the Bombay and Madhya Pradesh Officers. The order deals with every one of the points raised in both sets of representations and it also gives elaborately the reasons for rejecting the representations of the Bombay Officers and for accepting those of the Madhya Pradesh Officers.20. The learned Additional Solicitor General pointed out that it is only necessary that the authorities concerned should bear in mind the four factors, referred to earlier, in the matter of equation of posts. According to him, when once these factors have been properly taken into account, the mere fact that certain other additional or incidental matters relevant to the question have also been considered, will not vitiate the orders passed by the Central Government. In this connection the learned Additional Solicitor General drew our attention to the decision of the Judicial Committee in Ryots of Garabandho v. Zemindar of Parlakimedi, 70 Ind App 129 = (AIR 1943 PC 164) The provision that the Judicial Committee had to consider was contained in sub-section (2) of Section l68 of the Madras Estates Land Act 1908, that in settling rents the collector "shall have regard to the provisions of this Act". The Judicial Committee held that these provisions only require that they must be taken into consideration by the Officers concerned and it is impossible to say that there is a duty on the part of Officers to keep rigidly within the limits imposed by these provisions. Based upon this decision, the contention of the learned Additional Solicitor General was that even if certain other additional matters relevant to the question have been taken into account by the Central Government, its order cannot be considered to be erroneous. In our view, the earlier order dated April 23, l960 as well as the latter order dated February 15, l969 have both passed by the Central Government having due regard to the principles settled for purposes of equation of posts. In this view, it is not necessary for us to consider the point raised by the learned Additional Solicitor General based upon the decision of the Judicial Committee.21. This order of February 15, l969, has not, in our view, received due consideration at the hands of the High Court. On the other hand, the High Court has dealt mainly with the order dated April 23,1960, as well as the consequential orders passed by the State Government. As we are satisfied that the order of February 15, 1969, has been passed by the Central Government on a proper consideration of all relevant factors and materials, it is not necessary for us to deal elaborately with the reasons given by the High Court for striking down the previous order, except to say that the High Courts view in respect of those matters is not justified. Even the grievance that the Bombay Officers did not have an opportunity to make any representation before the order dated April 23, 1960 was passed, has now been removed by the Central Government furnishing the said opportunity before it passed the order of February 15, 1963. Even before us, the learned counsel for respondents 1 to 7, has not been able to point out infirmities, if any, in this order.22. The criticism of Mr. Singhvi learned counsel, levelled against the order of February 15, 1969 that the Central Government did not give a personal hearing to the Bombay Officers before, passing the order, need not detain us long. Though such a grievance was made faintly during the arguments in the Writ Petition, the High Court has not struck down even this order on this ground. The High Court, in the judgment, has stated that the proceedings were adjourned on March 19, 1968, to enable "the Central Government to consider the representations of the Writ Petitioners." Therefore the High Court, which passed the order of March 19, l968, adjourning the proceedings had understood that the object of the said adjournment was to enable the Writ Petitioners to "make representations" and that the Central Government should properly consider the same. Admittedly, representations were made by the Writ Petitioners and as stated earlier by us, they have been dealt with by the Central Government in its order dated February 15, 1969. Section 115 (5) (b) refers to a proper consideration of any representation made by any officer. This is satisfied in this case. Mr. Singhvi, learned Counsel, drew our attention to the decision of this Court in N. Subba v. Union of India, (1972) 2 SCC 862 = (AIR 1973 SC 69 ), and urged that it is implicit in the said decision that there is an obligation on the Central Government to give a personal hearing to the Officers concerned under the Act. We have gone through the decision carefully and we do not find any basis for this contention. Therefore, there is no substance in this criticism of Mr. Singhvi.23. Mr. Singhvi learned counsel, then referred us to the fact that after the judgment of the High Court the State Government has passed an order on March 19, 197l, the effect of which is to equate the Sales Tax Officers of the erstwhile Madhya Pradesh State with the Sales Tax Officers, Grade III, of Bombay. This order, in our opinion, has been passed by the State Government only to comply with the directions given by the High Court. It was made during a period when the appeal against the judgment was pending in this Court. The fact that the State Government took steps to comply with the directions of the High Court cannot lead to the inference that the appeal by the Union of India has become infructuous. | 1[ds]13. In our opinion. the contentions of the learned additional Solicitor General are well founded. The Central Government, under Sec. 115 of the Act, has to determine the principles governing equation of posts and prepare a common gradation list by integration of services. To assist it in the task of integration of services and for a proper consideration of representations, the Central Government is empowered to establish Advisory Committees. The Central Government is bound to ensure a fair and equitable treatment to officers in the matter of integration of services and preparation of gradation lists. It has also to give a full and fair opportunity to the parties affected to make their representations; and the Central Government has also to give a proper consideration to those representations. So long as the Central Government has acted properly according to the provisions of the Act, we are of the view, that a Court cannot go into the merits or otherwise of equation of posts which is a matter within the province of the Central Government.14. It is no doubt true that the Central Government must have due regard to the principles enunciated by it in consultation with the States for the purpose of equation of posts. It must not only give an opportunity to the concerned officers to make representations, but it must also give those representations a proper consideration. It is not within the province of the Courts to lay down what are the principles to be adopted for purposes of equation. That falls within the purview of the statute concerned and the authorities charged with such duty. The power of the Courts is only to see that an authority has acted properly in accordance with the statute. If that is established, the decision of the authorities concerned will have to stand. If a particular decision is male fide or arrived at on totally irrelevant and extraneous considerations, such a decision can be interfered with by Courts.In this case, no male fides are alleged.In our view, the High Court has grossly erred. In the case of equation of posts, especially among officers who are allotted from other States, it cannot be done with any mathematical accuracy. There will be some hardship or other caused to the Officers of one particular region or other. That is inevitable when the service conditions of the officers coming from different regions vary. When the Central Government was impleaded as a party in the Writ Petition before the High Court, an affidavit of the Deputy Secretary, Home Affairs, was filed. That affidavit very exhaustively deals with the circumstances under which the Sales Tax Officers of Madhya Pradesh were equated with Sales Tax Officers, Grade II, of Bombay by the Central Governments order dated April 23, .1960. The Central Government had constituted the Central Advisory Committee as is required under sub-section (5) of S. 115 of the Act. The composition of the Committee has been referred to earlier. It was, after taking into account the views of the Central Advisory Committee and having due regard to the comments of the State Governments, and the representations made by the officers concerned that the Central Government took the decision. The factors which had to be taken into account as per the decision taken at the conference held in May, 1956, were all duly stated to have been considered by the Central Government. We do not find that any irrelevant or extraneous matters have influenced the decision of the Central Government.17. It is true that a decision taken by the Central Government without giving an opportunity to the officers affected to make representations, is not a validhave already referred to the fact that originally the State Government equated the Madhya Pradesh Officers with Sales Tax Officers Grade III, of Bombay. The Madhya Pradesh Officers filed representations to the Central Government against this equation. It is not clear from the records whether any counter representations were received by the Central Government from the Bombay Officers. Nor is it clear whether the Central Government called upon the Bombay Officers to offer their comments or views on the claims made by the Madhya Pradesh Officers. Anyhow the order came to be passed on April 23, 1960. This order has been struck down by the High Court, not on the ground that the Bombay Officers have not been given an opportunity to make representations, but on other grounds.18. Assuming that the Central Government did not give an opportunity to the Bombay Officers to make their representations before passing the order of April 23, l960, the defect in this regard stands rectified by the fresh order passed on February 15, 1969. We have already referred to the fact that during the hearing of the Writ Petition, after the Central Government was impleaded, a representation was made on its behalf that the Union Government was willing to review the equation of posts of Sales Tax Officers from the erstwhile State of Madhya Pradesh after hearing the affected officers from the various integrating areas. This representation was incorporated in an order of Court dated March 19, 1968 and the proceedings stood adjourned. There is no controversy that all the officers concerned, including the Bombay Officers made representations to the Central Government. The Bombay Officers wanted the order of April 23, 1960, to be modified by equating the Madhya Pradesh Officers with the Sales Tax Officers, Grade III, of Bombay, as was originally done by the State Government. The Madhya Pradesh Officers, on the other hand, reinforced their claim to sustain the order of April 23, 1960. The Central Government passed the order on February 15, 1969, which was made known to the learned Judges hearing the Writ Petition. In fact this is also one of the orders that has been struck down by the High Court. When the order has been struck down, it is quite reasonable to infer that the Court and all parties were fully aware of the very elaborate reasons given by the Central Government for equating the Madhya Pradesh Sales Tax Officers with the Sales Tax Officers, Grade II of Bombay. There was no attack, so far as we could see levelled by the Writ Petitioners against this order of the Central Government excepting that a personal hearing was not given to them by the Central Government. The High Court brushed aside this order by a mere statement that the additional matters that was considered by the Central Government related to the hierarchy of revenue officers under the Land Revenue Code and that the said matter is outside those to be considered according to the minutes of the joint conference of the representatives of the State and the Centralour view, the earlier order dated April 23, l960 as well as the latter order dated February 15, l969 have both passed by the Central Government having due regard to the principles settled for purposes of equation of posts. In this view, it is not necessary for us to consider the point raised by the learned Additional Solicitor General based upon the decision of the Judicial Committee.21. This order of February 15, l969, has not, in our view, received due consideration at the hands of the High Court. On the other hand, the High Court has dealt mainly with the order dated April 23,1960, as well as the consequential orders passed by the State Government. As we are satisfied that the order of February 15, 1969, has been passed by the Central Government on a proper consideration of all relevant factors and materials, it is not necessary for us to deal elaborately with the reasons given by the High Court for striking down the previous order, except to say that the High Courts view in respect of those matters is not justified. Even the grievance that the Bombay Officers did not have an opportunity to make any representation before the order dated April 23, 1960 was passed, has now been removed by the Central Government furnishing the said opportunity before it passed the order of February 15, 1963. Even before us, the learned counsel for respondents 1 to 7, has not been able to point out infirmities, if any, in this order.22. The criticism of Mr. Singhvi learned counsel, levelled against the order of February 15, 1969 that the Central Government did not give a personal hearing to the Bombay Officers before, passing the order, need not detain us long. Though such a grievance was made faintly during the arguments in the Writ Petition, the High Court has not struck down even this order on this ground. The High Court, in the judgment, has stated that the proceedings were adjourned on March 19, 1968, to enable "the Central Government to consider the representations of the Writ Petitioners." Therefore the High Court, which passed the order of March 19, l968, adjourning the proceedings had understood that the object of the said adjournment was to enable the Writ Petitioners to "make representations" and that the Central Government should properly consider the same. Admittedly, representations were made by the Writ Petitioners and as stated earlier by us, they have been dealt with by the Central Government in its order dated February 15, 1969. Section 115 (5) (b) refers to a proper consideration of any representation made by any officer. This is satisfied in thishave gone through the decision carefully and we do not find any basis for this contention. Therefore, there is no substance in this criticism of Mr.order, in our opinion, has been passed by the State Government only to comply with the directions given by the High Court. It was made during a period when the appeal against the judgment was pending in this Court. The fact that the State Government took steps to comply with the directions of the High Court cannot lead to the inference that the appeal by the Union of India has become infructuous. | 1 | 5,619 | 1,815 | ### Instruction:
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Government to the State Government.The entire proceedings resulting in the order of February 15, 1969 leave doubt in our minds that Central Government have considered only very relevant factors and the decision has also been taken in conformity with the provisions of the Act.They also show that the Central Government has given a proper consideration to the representations made by the Bombay and Madhya Pradesh Officers. The order deals with every one of the points raised in both sets of representations and it also gives elaborately the reasons for rejecting the representations of the Bombay Officers and for accepting those of the Madhya Pradesh Officers.20. The learned Additional Solicitor General pointed out that it is only necessary that the authorities concerned should bear in mind the four factors, referred to earlier, in the matter of equation of posts. According to him, when once these factors have been properly taken into account, the mere fact that certain other additional or incidental matters relevant to the question have also been considered, will not vitiate the orders passed by the Central Government. In this connection the learned Additional Solicitor General drew our attention to the decision of the Judicial Committee in Ryots of Garabandho v. Zemindar of Parlakimedi, 70 Ind App 129 = (AIR 1943 PC 164) The provision that the Judicial Committee had to consider was contained in sub-section (2) of Section l68 of the Madras Estates Land Act 1908, that in settling rents the collector "shall have regard to the provisions of this Act". The Judicial Committee held that these provisions only require that they must be taken into consideration by the Officers concerned and it is impossible to say that there is a duty on the part of Officers to keep rigidly within the limits imposed by these provisions. Based upon this decision, the contention of the learned Additional Solicitor General was that even if certain other additional matters relevant to the question have been taken into account by the Central Government, its order cannot be considered to be erroneous. In our view, the earlier order dated April 23, l960 as well as the latter order dated February 15, l969 have both passed by the Central Government having due regard to the principles settled for purposes of equation of posts. In this view, it is not necessary for us to consider the point raised by the learned Additional Solicitor General based upon the decision of the Judicial Committee.21. This order of February 15, l969, has not, in our view, received due consideration at the hands of the High Court. On the other hand, the High Court has dealt mainly with the order dated April 23,1960, as well as the consequential orders passed by the State Government. As we are satisfied that the order of February 15, 1969, has been passed by the Central Government on a proper consideration of all relevant factors and materials, it is not necessary for us to deal elaborately with the reasons given by the High Court for striking down the previous order, except to say that the High Courts view in respect of those matters is not justified. Even the grievance that the Bombay Officers did not have an opportunity to make any representation before the order dated April 23, 1960 was passed, has now been removed by the Central Government furnishing the said opportunity before it passed the order of February 15, 1963. Even before us, the learned counsel for respondents 1 to 7, has not been able to point out infirmities, if any, in this order.22. The criticism of Mr. Singhvi learned counsel, levelled against the order of February 15, 1969 that the Central Government did not give a personal hearing to the Bombay Officers before, passing the order, need not detain us long. Though such a grievance was made faintly during the arguments in the Writ Petition, the High Court has not struck down even this order on this ground. The High Court, in the judgment, has stated that the proceedings were adjourned on March 19, 1968, to enable "the Central Government to consider the representations of the Writ Petitioners." Therefore the High Court, which passed the order of March 19, l968, adjourning the proceedings had understood that the object of the said adjournment was to enable the Writ Petitioners to "make representations" and that the Central Government should properly consider the same. Admittedly, representations were made by the Writ Petitioners and as stated earlier by us, they have been dealt with by the Central Government in its order dated February 15, 1969. Section 115 (5) (b) refers to a proper consideration of any representation made by any officer. This is satisfied in this case. Mr. Singhvi, learned Counsel, drew our attention to the decision of this Court in N. Subba v. Union of India, (1972) 2 SCC 862 = (AIR 1973 SC 69 ), and urged that it is implicit in the said decision that there is an obligation on the Central Government to give a personal hearing to the Officers concerned under the Act. We have gone through the decision carefully and we do not find any basis for this contention. Therefore, there is no substance in this criticism of Mr. Singhvi.23. Mr. Singhvi learned counsel, then referred us to the fact that after the judgment of the High Court the State Government has passed an order on March 19, 197l, the effect of which is to equate the Sales Tax Officers of the erstwhile Madhya Pradesh State with the Sales Tax Officers, Grade III, of Bombay. This order, in our opinion, has been passed by the State Government only to comply with the directions given by the High Court. It was made during a period when the appeal against the judgment was pending in this Court. The fact that the State Government took steps to comply with the directions of the High Court cannot lead to the inference that the appeal by the Union of India has become infructuous.
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counter representations were received by the Central Government from the Bombay Officers. Nor is it clear whether the Central Government called upon the Bombay Officers to offer their comments or views on the claims made by the Madhya Pradesh Officers. Anyhow the order came to be passed on April 23, 1960. This order has been struck down by the High Court, not on the ground that the Bombay Officers have not been given an opportunity to make representations, but on other grounds.18. Assuming that the Central Government did not give an opportunity to the Bombay Officers to make their representations before passing the order of April 23, l960, the defect in this regard stands rectified by the fresh order passed on February 15, 1969. We have already referred to the fact that during the hearing of the Writ Petition, after the Central Government was impleaded, a representation was made on its behalf that the Union Government was willing to review the equation of posts of Sales Tax Officers from the erstwhile State of Madhya Pradesh after hearing the affected officers from the various integrating areas. This representation was incorporated in an order of Court dated March 19, 1968 and the proceedings stood adjourned. There is no controversy that all the officers concerned, including the Bombay Officers made representations to the Central Government. The Bombay Officers wanted the order of April 23, 1960, to be modified by equating the Madhya Pradesh Officers with the Sales Tax Officers, Grade III, of Bombay, as was originally done by the State Government. The Madhya Pradesh Officers, on the other hand, reinforced their claim to sustain the order of April 23, 1960. The Central Government passed the order on February 15, 1969, which was made known to the learned Judges hearing the Writ Petition. In fact this is also one of the orders that has been struck down by the High Court. When the order has been struck down, it is quite reasonable to infer that the Court and all parties were fully aware of the very elaborate reasons given by the Central Government for equating the Madhya Pradesh Sales Tax Officers with the Sales Tax Officers, Grade II of Bombay. There was no attack, so far as we could see levelled by the Writ Petitioners against this order of the Central Government excepting that a personal hearing was not given to them by the Central Government. The High Court brushed aside this order by a mere statement that the additional matters that was considered by the Central Government related to the hierarchy of revenue officers under the Land Revenue Code and that the said matter is outside those to be considered according to the minutes of the joint conference of the representatives of the State and the Centralour view, the earlier order dated April 23, l960 as well as the latter order dated February 15, l969 have both passed by the Central Government having due regard to the principles settled for purposes of equation of posts. In this view, it is not necessary for us to consider the point raised by the learned Additional Solicitor General based upon the decision of the Judicial Committee.21. This order of February 15, l969, has not, in our view, received due consideration at the hands of the High Court. On the other hand, the High Court has dealt mainly with the order dated April 23,1960, as well as the consequential orders passed by the State Government. As we are satisfied that the order of February 15, 1969, has been passed by the Central Government on a proper consideration of all relevant factors and materials, it is not necessary for us to deal elaborately with the reasons given by the High Court for striking down the previous order, except to say that the High Courts view in respect of those matters is not justified. Even the grievance that the Bombay Officers did not have an opportunity to make any representation before the order dated April 23, 1960 was passed, has now been removed by the Central Government furnishing the said opportunity before it passed the order of February 15, 1963. Even before us, the learned counsel for respondents 1 to 7, has not been able to point out infirmities, if any, in this order.22. The criticism of Mr. Singhvi learned counsel, levelled against the order of February 15, 1969 that the Central Government did not give a personal hearing to the Bombay Officers before, passing the order, need not detain us long. Though such a grievance was made faintly during the arguments in the Writ Petition, the High Court has not struck down even this order on this ground. The High Court, in the judgment, has stated that the proceedings were adjourned on March 19, 1968, to enable "the Central Government to consider the representations of the Writ Petitioners." Therefore the High Court, which passed the order of March 19, l968, adjourning the proceedings had understood that the object of the said adjournment was to enable the Writ Petitioners to "make representations" and that the Central Government should properly consider the same. Admittedly, representations were made by the Writ Petitioners and as stated earlier by us, they have been dealt with by the Central Government in its order dated February 15, 1969. Section 115 (5) (b) refers to a proper consideration of any representation made by any officer. This is satisfied in thishave gone through the decision carefully and we do not find any basis for this contention. Therefore, there is no substance in this criticism of Mr.order, in our opinion, has been passed by the State Government only to comply with the directions given by the High Court. It was made during a period when the appeal against the judgment was pending in this Court. The fact that the State Government took steps to comply with the directions of the High Court cannot lead to the inference that the appeal by the Union of India has become infructuous.
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Bisra Stone Lime Company, Limited Vs. Industrial Tribunal, Orissa, and Another | was driving fast and Mohanti asked him to drive slowly. When Das Gupta did not listen to Mohanti, the latter took a handful of dust and rubbish from the floor of the vehicle and threw it on Das Gupta. Das Gupta says that the dust went into his eyes and further that Mohanti pushed through the window an iron and prodded him with it to make him comply. To cut the story short : it may be stated briefly that Das Gupta stopped the dumper and he and Mohanti grappled with each other. Das Gupta hit Mohanti with a spanner and plucked a handful of hair from his head.3. On the following day Das Gupta was served with the following charge :"It has been reported that you did assault auto-electrician P. C. Mohanti on the night duty of 7 November, 1962. This is your misconduct under the companys order 20, Sub-secs. (8) and (25).">4. Standing order 20(8) reads :"Drunkenness, fighting, riotous, disorderly or indecent behaviour."5. Standing order 20(25) reads :"Any breach of the Indian Mines Act or any other Act, or any rules or by laws thereunder or of standing orders.These two, among others, are acts of misconduct for which an employee is liable to be dismissed. The enquiry was held by the Chief Personnel Officer whose finding was as follows"From the statement of the witnesses it is evident that Das Gupta was driving the Leyland in a manner that caused discomfort to those who were sitting in its body including Mohanti. If Mohanti repeatedly asked him to drive slow or threw a little quantity of dust (which did not fall on him) there was no such provocation for Das Gupta to get up into the body of the truck and assault him with a spanner and pull his hair. As a result of this Mohanti was badly hurt.Das Gupta is, therefore, found guilty of misconduct under companys standing order 20(8) for fighting and disorderly behaviour inside the companys vehicle.Exemplary punishment of discharge from service is recommended."A notice to show cause was issued to Das Gupta and he showed cause on 20 November, 1962. The following order was passed :"Action taken. - He is undoubtedly guilty of assault and what is more was driving in a reckless fashion. This offence was most serious. He is to be dismissed."An application under S. 33(2)(b) was made to the tribunal for approval as the other dispute was pending. It was stated in that application that wages for one month had been paid to Das Gupta.6. The first dispute came to an end on 8 December, 1962. The present matter was taken up for consideration from 20 December, 1962, when the other dispute had already come to an end. The tribunal declined to give approval to the dismissal of Das Gupta. Two grounds seem to have been urged. The first was that the tribunal, having become functus officio by reason of the termination of the original dispute, had no jurisdiction left to pass orders on the application. This was not accepted by the tribunal. The second was that the management had taken into account the fact of driving the dumper without per mission and in a reckless fashion which were not the subject-matter of the charge. On the second ground the dismissal of Das Gupta was not approved. No order about costs was made. The High Court was moved under Arts. 226 and 227 of the Constitution but declined to interfere although it also did not think that the first ground was sound.7. In this appeal it is conceded that in view of the decisions in this Court the first ground now does not survive. A tribunal can give or withhold approval under S. 33(2)(b) even though the original dispute before it has come to an end. The tribunal does not become functus officio by reason of the termination of the original dispute.8. As to the second point held against the management by the tribunal and the High Court it is sufficient to say that the High Court and the tribunal misused both the finding as well as the action proposed which we have set out above. The reference in the finding to the vehicle being fast is a part of the recital and is not a subject of the charge or a part of the finding. The finding is that he was guilty of misconduct under standing order 20(8) for fighting and disorderly behaviour inside the companys vehicle. In the "action taken" the real offence for which he was punished is assault. The words of the order are "he is undoubtedly guilty of assault" and "this offence was most serious." Driving without permission and in a reckless fashion are indicated as aggravating circumstances. It is, therefore, obvious that the management did not go beyond the charge or hold Das Gupta responsible for anything for which he was not charged.9. It has been repeatedly observed in this Court that the tribunals must not exercise appellate jurisdiction since the legislature has not chosen to confer such a jurisdiction upon them. In the present case the facts were amply proved and, therefore, the finding that Das Gupta was guilty of assault was supported by evidence. The decision of the management was, therefore, final and it was not open to the tribunal to take a different view of the facts or of the findings unless there was victimization or some unfair labour practice or failure of justice. There is not even a suggestion that the enquiry was not properly conducted or was in any way unfair. Since no such ground existed, the tribunal erred in law in the exercise of its jurisdiction. In this view of the matter the order should have been to approve the dismissal of Das Gupta. It seems that the tribunal was mainly persuaded to decline to give approval because it considered that Das Gupta was punished for something for which there was no charge. That, of course, was not a valid ground. | 1[ds]8. As to the second point held against the management by the tribunal and the High Court it is sufficient to say that the High Court and the tribunal misused both the finding as well as the action proposed which we have set out above. The reference in the finding to the vehicle being fast is a part of the recital and is not a subject of the charge or a part of the finding. The finding is that he was guilty of misconduct under standing order 20(8) for fighting and disorderly behaviour inside the companys vehicle. In the "action taken" the real offence for which he was punished is assault. The words of the order are "he is undoubtedly guilty of assault" and "this offence was most serious." Driving without permission and in a reckless fashion are indicated as aggravating circumstances. It is, therefore, obvious that the management did not go beyond the charge or hold Das Gupta responsible for anything for which he was not charged.9. It has been repeatedly observed in this Court that the tribunals must not exercise appellate jurisdiction since the legislature has not chosen to confer such a jurisdiction upon them. In the present case the facts were amply proved and, therefore, the finding that Das Gupta was guilty of assault was supported by evidence. The decision of the management was, therefore, final and it was not open to the tribunal to take a different view of the facts or of the findings unless there was victimization or some unfair labour practice or failure of justice. There is not even a suggestion that the enquiry was not properly conducted or was in any way unfair. Since no such ground existed, the tribunal erred in law in the exercise of its jurisdiction. In this view of the matter the order should have been to approve the dismissal of Das Gupta. It seems that the tribunal was mainly persuaded to decline to give approval because it considered that Das Gupta was punished for something for which there was no charge. That, of course, was not a valid ground. | 1 | 1,410 | 390 | ### Instruction:
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was driving fast and Mohanti asked him to drive slowly. When Das Gupta did not listen to Mohanti, the latter took a handful of dust and rubbish from the floor of the vehicle and threw it on Das Gupta. Das Gupta says that the dust went into his eyes and further that Mohanti pushed through the window an iron and prodded him with it to make him comply. To cut the story short : it may be stated briefly that Das Gupta stopped the dumper and he and Mohanti grappled with each other. Das Gupta hit Mohanti with a spanner and plucked a handful of hair from his head.3. On the following day Das Gupta was served with the following charge :"It has been reported that you did assault auto-electrician P. C. Mohanti on the night duty of 7 November, 1962. This is your misconduct under the companys order 20, Sub-secs. (8) and (25).">4. Standing order 20(8) reads :"Drunkenness, fighting, riotous, disorderly or indecent behaviour."5. Standing order 20(25) reads :"Any breach of the Indian Mines Act or any other Act, or any rules or by laws thereunder or of standing orders.These two, among others, are acts of misconduct for which an employee is liable to be dismissed. The enquiry was held by the Chief Personnel Officer whose finding was as follows"From the statement of the witnesses it is evident that Das Gupta was driving the Leyland in a manner that caused discomfort to those who were sitting in its body including Mohanti. If Mohanti repeatedly asked him to drive slow or threw a little quantity of dust (which did not fall on him) there was no such provocation for Das Gupta to get up into the body of the truck and assault him with a spanner and pull his hair. As a result of this Mohanti was badly hurt.Das Gupta is, therefore, found guilty of misconduct under companys standing order 20(8) for fighting and disorderly behaviour inside the companys vehicle.Exemplary punishment of discharge from service is recommended."A notice to show cause was issued to Das Gupta and he showed cause on 20 November, 1962. The following order was passed :"Action taken. - He is undoubtedly guilty of assault and what is more was driving in a reckless fashion. This offence was most serious. He is to be dismissed."An application under S. 33(2)(b) was made to the tribunal for approval as the other dispute was pending. It was stated in that application that wages for one month had been paid to Das Gupta.6. The first dispute came to an end on 8 December, 1962. The present matter was taken up for consideration from 20 December, 1962, when the other dispute had already come to an end. The tribunal declined to give approval to the dismissal of Das Gupta. Two grounds seem to have been urged. The first was that the tribunal, having become functus officio by reason of the termination of the original dispute, had no jurisdiction left to pass orders on the application. This was not accepted by the tribunal. The second was that the management had taken into account the fact of driving the dumper without per mission and in a reckless fashion which were not the subject-matter of the charge. On the second ground the dismissal of Das Gupta was not approved. No order about costs was made. The High Court was moved under Arts. 226 and 227 of the Constitution but declined to interfere although it also did not think that the first ground was sound.7. In this appeal it is conceded that in view of the decisions in this Court the first ground now does not survive. A tribunal can give or withhold approval under S. 33(2)(b) even though the original dispute before it has come to an end. The tribunal does not become functus officio by reason of the termination of the original dispute.8. As to the second point held against the management by the tribunal and the High Court it is sufficient to say that the High Court and the tribunal misused both the finding as well as the action proposed which we have set out above. The reference in the finding to the vehicle being fast is a part of the recital and is not a subject of the charge or a part of the finding. The finding is that he was guilty of misconduct under standing order 20(8) for fighting and disorderly behaviour inside the companys vehicle. In the "action taken" the real offence for which he was punished is assault. The words of the order are "he is undoubtedly guilty of assault" and "this offence was most serious." Driving without permission and in a reckless fashion are indicated as aggravating circumstances. It is, therefore, obvious that the management did not go beyond the charge or hold Das Gupta responsible for anything for which he was not charged.9. It has been repeatedly observed in this Court that the tribunals must not exercise appellate jurisdiction since the legislature has not chosen to confer such a jurisdiction upon them. In the present case the facts were amply proved and, therefore, the finding that Das Gupta was guilty of assault was supported by evidence. The decision of the management was, therefore, final and it was not open to the tribunal to take a different view of the facts or of the findings unless there was victimization or some unfair labour practice or failure of justice. There is not even a suggestion that the enquiry was not properly conducted or was in any way unfair. Since no such ground existed, the tribunal erred in law in the exercise of its jurisdiction. In this view of the matter the order should have been to approve the dismissal of Das Gupta. It seems that the tribunal was mainly persuaded to decline to give approval because it considered that Das Gupta was punished for something for which there was no charge. That, of course, was not a valid ground.
### Response:
1
### Explanation:
8. As to the second point held against the management by the tribunal and the High Court it is sufficient to say that the High Court and the tribunal misused both the finding as well as the action proposed which we have set out above. The reference in the finding to the vehicle being fast is a part of the recital and is not a subject of the charge or a part of the finding. The finding is that he was guilty of misconduct under standing order 20(8) for fighting and disorderly behaviour inside the companys vehicle. In the "action taken" the real offence for which he was punished is assault. The words of the order are "he is undoubtedly guilty of assault" and "this offence was most serious." Driving without permission and in a reckless fashion are indicated as aggravating circumstances. It is, therefore, obvious that the management did not go beyond the charge or hold Das Gupta responsible for anything for which he was not charged.9. It has been repeatedly observed in this Court that the tribunals must not exercise appellate jurisdiction since the legislature has not chosen to confer such a jurisdiction upon them. In the present case the facts were amply proved and, therefore, the finding that Das Gupta was guilty of assault was supported by evidence. The decision of the management was, therefore, final and it was not open to the tribunal to take a different view of the facts or of the findings unless there was victimization or some unfair labour practice or failure of justice. There is not even a suggestion that the enquiry was not properly conducted or was in any way unfair. Since no such ground existed, the tribunal erred in law in the exercise of its jurisdiction. In this view of the matter the order should have been to approve the dismissal of Das Gupta. It seems that the tribunal was mainly persuaded to decline to give approval because it considered that Das Gupta was punished for something for which there was no charge. That, of course, was not a valid ground.
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Shri U.R. Mavinkurve Vs. Thakor Madhavsinghji Gambhirsingh And Others | 3 of the Jagirs Abolition Act all jagirs were abolished and all the rights of the jagirdars were extinguished, save those rights which are expressly provided by other provisions of the Act itself. It is also manifest that under S. 5 (1) (b) of the Act the only rights conferred on the jagirdars are the rights of occupancy of the forest lands. In our opinion, the rights of the occupants under the Bombay Land Revenue Code do not include the right to cut and remove the trees from the forest lands. The reason is that the 36 villages in dispute have not been surveyed or settled and until there is completion of the survey and settlement there is no question of concession on the part of the State Government of the right to the trees in favour of the occupants. Section 40 of the Bombay Land Revenue Code provides that in the case of villages of which the original survey settlement has been completed before the passing of the Act, the right of the Government to all trees in unalienated land, except trees reserved by the Government or by any survey officer, whether by express order made at, or about the time of such settlement, or under any rule, or general order in force at the time of such settlement, or by notification made and published at, or at any time after, such settlement, shall be deemed to have been conceded to the occupant. The second para of S. 40 deals with concession of Government rights to trees in case of settlements completed after the passing of the Act. The second para states that in the case of villages or portions of villages of which the original survey settlement shall be completed after the passing of the Act, the right of the Government to all trees in unalienated land shall be deemed to be conceded to the occupant of such land except in so far as any such rights may be reserved by the Government, or by any survey officer on behalf of the Government, either expressly at or about the time of such settlement, or generally by notification made and published at any time previous to the completion of the survey settlement. The third paragraph of S. 40 relates to the concession of Government rights to trees in case of land taken up after completion of settlement. The section states that when permission to occupy land has been granted after the completion of the survey settlement of the village the said permission shall be deemed to include the concession of the right of the Government to all trees growing on that land which may not have been or which shall not hereafter be, expressly reserved at the time of granting such permission. In the present case, the 36 villages in question have admittedly not been surveyed and settled and the necessary conclusion to be drawn is that the rights of the State Government to trees cannot be deemed to be conceded to the occupants of the land. The assumption is implicit in S. 40 of the Bombay Land Revenue Code that all the trees standing and growing on the lands with the occupants belong to the State Government and not to the occupants and until there is a survey and settlement of the village the question of concession on the part of the State Government of rights to the trees does not arise. In other words, until there is survey and settlement of the land there is no implication in favour of respondents 1 to 11 that they had concession of the rights of the Government to the trees standing on the forest lands. 8. On behalf of the respondents Mr. S. T. Desai referred to S. 9 of the Jagirs Abolition Act and stressed the argument that the right to trees mentioned in that section alone vested in the State Government and there was no other reservation in the Act or any other law, in favour of the State Government. It was contended that by implication it must be held that the jagirdars had rights to the trees in the forest areas apart from those mentioned in S. 9 of the Act. We do not accept this argument as correct. Section 3 of the Act provides for abolition for jagirs and under that section all jagirs shall be deemed to have been abolished on and from the appointed date, i. e. August 1, 1954 and all rights of a Jagirdar, in respect of a jagir village as incidents of jagir, shall be deemed to have been extinguished by virtue of the section unless there is express provision in the Act saving such right. In our opinion, S. 9 of the Jagirs Abolition Act is not an express provision saving the right of the jagirdars with regard to the trees, and the argument of Mr. Desai must be rejected on this point. Our view is supported by the language of S. 10 of the Jagirs Abolition Act which expressly saves the right of the jagirdar to mines or mineral products in a jagir village subsisting on the appointed day. There is no provision in the Jagirs Abolition Act corresponding to S. 10 with regard to the saving of the rights to the trees in favour of the jagirdars. We are accordingly of the opinion that after coming into force of the Jagirs Abolition Act respondents 1 to 11 became occupants in respect of the forest lands in the 36 villages and the only rights which they have are those of occupants under the provisions of the Bombay Land Revenue Code and such rights do not include the right to cut and remove the trees from the forest lands of the villages in question. 9. In our opinion, the High Court was in error in holding that the respondents were entitled to cut and remove all species of trees standing in the forest lands of the 36 villages in question. | 1[ds]7. The High Court expressed the view that under S. 3 of the Jagirs Abolition Act the rights of the jagirdars in the forest land and the trees which grew upon them were extinguished. The High Court further held that with the coming into force of the Jagirs Abolition Act jagirdars became the occupants in the forest lands under S. 5 (1) (b) of that Act and the respondents 1 to 11 became, therefore, entitled to the trees standing on the forest lands. In our opinion, the view expressed by the High Court is erroneous and must be reversed. It is manifest that under S. 3 of the Jagirs Abolition Act all jagirs were abolished and all the rights of the jagirdars were extinguished, save those rights which are expressly provided by other provisions of the Act itself. It is also manifest that under S. 5 (1) (b) of the Act the only rights conferred on the jagirdars are the rights of occupancy of the forest lands. In our opinion, the rights of the occupants under the Bombay Land Revenue Code do not include the right to cut and remove the trees from the forest lands. The reason is that the 36 villages in dispute have not been surveyed or settled and until there is completion of the survey and settlement there is no question of concession on the part of the State Government of the right to the trees in favour of the occupants. Section 40 of the Bombay Land Revenue Code provides that in the case of villages of which the original survey settlement has been completed before the passing of the Act, the right of the Government to all trees in unalienated land, except trees reserved by the Government or by any survey officer, whether by express order made at, or about the time of such settlement, or under any rule, or general order in force at the time of such settlement, or by notification made and published at, or at any time after, such settlement, shall be deemed to have been conceded to the occupant. The second para of S. 40 deals with concession of Government rights to trees in case of settlements completed after the passing of the Act. The second para states that in the case of villages or portions of villages of which the original survey settlement shall be completed after the passing of the Act, the right of the Government to all trees in unalienated land shall be deemed to be conceded to the occupant of such land except in so far as any such rights may be reserved by the Government, or by any survey officer on behalf of the Government, either expressly at or about the time of such settlement, or generally by notification made and published at any time previous to the completion of the survey settlement. The third paragraph of S. 40 relates to the concession of Government rights to trees in case of land taken up after completion of settlement. The section states that when permission to occupy land has been granted after the completion of the survey settlement of the village the said permission shall be deemed to include the concession of the right of the Government to all trees growing on that land which may not have been or which shall not hereafter be, expressly reserved at the time of granting such permission. In the present case, the 36 villages in question have admittedly not been surveyed and settled and the necessary conclusion to be drawn is that the rights of the State Government to trees cannot be deemed to be conceded to the occupants of the land. The assumption is implicit in S. 40 of the Bombay Land Revenue Code that all the trees standing and growing on the lands with the occupants belong to the State Government and not to the occupants and until there is a survey and settlement of the village the question of concession on the part of the State Government of rights to the trees does not arise. In other words, until there is survey and settlement of the land there is no implication in favour of respondents 1 to 11 that they had concession of the rights of the Government to the trees standing on the forest lands8. On behalf of the respondents Mr. S. T. Desai referred to S. 9 of the Jagirs Abolition Act and stressed the argument that the right to trees mentioned in that section alone vested in the State Government and there was no other reservation in the Act or any other law, in favour of the State Government. It was contended that by implication it must be held that the jagirdars had rights to the trees in the forest areas apart from those mentioned in S. 9 of theAct.We do not accept this argument as correct. Section 3 of the Act provides for abolition for jagirs and under that section all jagirs shall be deemed to have been abolished on and from the appointed date, i. e. August 1, 1954 and all rights of a Jagirdar, in respect of a jagir village as incidents of jagir, shall be deemed to have been extinguished by virtue of the section unless there is express provision in the Act saving such right. In our opinion, S. 9 of the Jagirs Abolition Act is not an express provision saving the right of the jagirdars with regard to the trees, and the argument of Mr. Desai must be rejected on this point. Our view is supported by the language of S. 10 of the Jagirs Abolition Act which expressly saves the right of the jagirdar to mines or mineral products in a jagir village subsisting on the appointed day. There is no provision in the Jagirs Abolition Act corresponding to S. 10 with regard to the saving of the rights to the trees in favour of the jagirdars. We are accordingly of the opinion that after coming into force of the Jagirs Abolition Act respondents 1 to 11 became occupants in respect of the forest lands in the 36 villages and the only rights which they have are those of occupants under the provisions of the Bombay Land Revenue Code and such rights do not include the right to cut and remove the trees from the forest lands of the villages in question9. In our opinion, the High Court was in error in holding that the respondents were entitled to cut and remove all species of trees standing in the forest lands of the 36 villages in question. | 1 | 4,142 | 1,168 | ### Instruction:
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3 of the Jagirs Abolition Act all jagirs were abolished and all the rights of the jagirdars were extinguished, save those rights which are expressly provided by other provisions of the Act itself. It is also manifest that under S. 5 (1) (b) of the Act the only rights conferred on the jagirdars are the rights of occupancy of the forest lands. In our opinion, the rights of the occupants under the Bombay Land Revenue Code do not include the right to cut and remove the trees from the forest lands. The reason is that the 36 villages in dispute have not been surveyed or settled and until there is completion of the survey and settlement there is no question of concession on the part of the State Government of the right to the trees in favour of the occupants. Section 40 of the Bombay Land Revenue Code provides that in the case of villages of which the original survey settlement has been completed before the passing of the Act, the right of the Government to all trees in unalienated land, except trees reserved by the Government or by any survey officer, whether by express order made at, or about the time of such settlement, or under any rule, or general order in force at the time of such settlement, or by notification made and published at, or at any time after, such settlement, shall be deemed to have been conceded to the occupant. The second para of S. 40 deals with concession of Government rights to trees in case of settlements completed after the passing of the Act. The second para states that in the case of villages or portions of villages of which the original survey settlement shall be completed after the passing of the Act, the right of the Government to all trees in unalienated land shall be deemed to be conceded to the occupant of such land except in so far as any such rights may be reserved by the Government, or by any survey officer on behalf of the Government, either expressly at or about the time of such settlement, or generally by notification made and published at any time previous to the completion of the survey settlement. The third paragraph of S. 40 relates to the concession of Government rights to trees in case of land taken up after completion of settlement. The section states that when permission to occupy land has been granted after the completion of the survey settlement of the village the said permission shall be deemed to include the concession of the right of the Government to all trees growing on that land which may not have been or which shall not hereafter be, expressly reserved at the time of granting such permission. In the present case, the 36 villages in question have admittedly not been surveyed and settled and the necessary conclusion to be drawn is that the rights of the State Government to trees cannot be deemed to be conceded to the occupants of the land. The assumption is implicit in S. 40 of the Bombay Land Revenue Code that all the trees standing and growing on the lands with the occupants belong to the State Government and not to the occupants and until there is a survey and settlement of the village the question of concession on the part of the State Government of rights to the trees does not arise. In other words, until there is survey and settlement of the land there is no implication in favour of respondents 1 to 11 that they had concession of the rights of the Government to the trees standing on the forest lands. 8. On behalf of the respondents Mr. S. T. Desai referred to S. 9 of the Jagirs Abolition Act and stressed the argument that the right to trees mentioned in that section alone vested in the State Government and there was no other reservation in the Act or any other law, in favour of the State Government. It was contended that by implication it must be held that the jagirdars had rights to the trees in the forest areas apart from those mentioned in S. 9 of the Act. We do not accept this argument as correct. Section 3 of the Act provides for abolition for jagirs and under that section all jagirs shall be deemed to have been abolished on and from the appointed date, i. e. August 1, 1954 and all rights of a Jagirdar, in respect of a jagir village as incidents of jagir, shall be deemed to have been extinguished by virtue of the section unless there is express provision in the Act saving such right. In our opinion, S. 9 of the Jagirs Abolition Act is not an express provision saving the right of the jagirdars with regard to the trees, and the argument of Mr. Desai must be rejected on this point. Our view is supported by the language of S. 10 of the Jagirs Abolition Act which expressly saves the right of the jagirdar to mines or mineral products in a jagir village subsisting on the appointed day. There is no provision in the Jagirs Abolition Act corresponding to S. 10 with regard to the saving of the rights to the trees in favour of the jagirdars. We are accordingly of the opinion that after coming into force of the Jagirs Abolition Act respondents 1 to 11 became occupants in respect of the forest lands in the 36 villages and the only rights which they have are those of occupants under the provisions of the Bombay Land Revenue Code and such rights do not include the right to cut and remove the trees from the forest lands of the villages in question. 9. In our opinion, the High Court was in error in holding that the respondents were entitled to cut and remove all species of trees standing in the forest lands of the 36 villages in question.
### Response:
1
### Explanation:
manifest that under S. 3 of the Jagirs Abolition Act all jagirs were abolished and all the rights of the jagirdars were extinguished, save those rights which are expressly provided by other provisions of the Act itself. It is also manifest that under S. 5 (1) (b) of the Act the only rights conferred on the jagirdars are the rights of occupancy of the forest lands. In our opinion, the rights of the occupants under the Bombay Land Revenue Code do not include the right to cut and remove the trees from the forest lands. The reason is that the 36 villages in dispute have not been surveyed or settled and until there is completion of the survey and settlement there is no question of concession on the part of the State Government of the right to the trees in favour of the occupants. Section 40 of the Bombay Land Revenue Code provides that in the case of villages of which the original survey settlement has been completed before the passing of the Act, the right of the Government to all trees in unalienated land, except trees reserved by the Government or by any survey officer, whether by express order made at, or about the time of such settlement, or under any rule, or general order in force at the time of such settlement, or by notification made and published at, or at any time after, such settlement, shall be deemed to have been conceded to the occupant. The second para of S. 40 deals with concession of Government rights to trees in case of settlements completed after the passing of the Act. The second para states that in the case of villages or portions of villages of which the original survey settlement shall be completed after the passing of the Act, the right of the Government to all trees in unalienated land shall be deemed to be conceded to the occupant of such land except in so far as any such rights may be reserved by the Government, or by any survey officer on behalf of the Government, either expressly at or about the time of such settlement, or generally by notification made and published at any time previous to the completion of the survey settlement. The third paragraph of S. 40 relates to the concession of Government rights to trees in case of land taken up after completion of settlement. The section states that when permission to occupy land has been granted after the completion of the survey settlement of the village the said permission shall be deemed to include the concession of the right of the Government to all trees growing on that land which may not have been or which shall not hereafter be, expressly reserved at the time of granting such permission. In the present case, the 36 villages in question have admittedly not been surveyed and settled and the necessary conclusion to be drawn is that the rights of the State Government to trees cannot be deemed to be conceded to the occupants of the land. The assumption is implicit in S. 40 of the Bombay Land Revenue Code that all the trees standing and growing on the lands with the occupants belong to the State Government and not to the occupants and until there is a survey and settlement of the village the question of concession on the part of the State Government of rights to the trees does not arise. In other words, until there is survey and settlement of the land there is no implication in favour of respondents 1 to 11 that they had concession of the rights of the Government to the trees standing on the forest lands8. On behalf of the respondents Mr. S. T. Desai referred to S. 9 of the Jagirs Abolition Act and stressed the argument that the right to trees mentioned in that section alone vested in the State Government and there was no other reservation in the Act or any other law, in favour of the State Government. It was contended that by implication it must be held that the jagirdars had rights to the trees in the forest areas apart from those mentioned in S. 9 of theAct.We do not accept this argument as correct. Section 3 of the Act provides for abolition for jagirs and under that section all jagirs shall be deemed to have been abolished on and from the appointed date, i. e. August 1, 1954 and all rights of a Jagirdar, in respect of a jagir village as incidents of jagir, shall be deemed to have been extinguished by virtue of the section unless there is express provision in the Act saving such right. In our opinion, S. 9 of the Jagirs Abolition Act is not an express provision saving the right of the jagirdars with regard to the trees, and the argument of Mr. Desai must be rejected on this point. Our view is supported by the language of S. 10 of the Jagirs Abolition Act which expressly saves the right of the jagirdar to mines or mineral products in a jagir village subsisting on the appointed day. There is no provision in the Jagirs Abolition Act corresponding to S. 10 with regard to the saving of the rights to the trees in favour of the jagirdars. We are accordingly of the opinion that after coming into force of the Jagirs Abolition Act respondents 1 to 11 became occupants in respect of the forest lands in the 36 villages and the only rights which they have are those of occupants under the provisions of the Bombay Land Revenue Code and such rights do not include the right to cut and remove the trees from the forest lands of the villages in question9. In our opinion, the High Court was in error in holding that the respondents were entitled to cut and remove all species of trees standing in the forest lands of the 36 villages in question.
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Ram Gopal Dwivedi and Ors Vs. Kanpur Electricity Supply Co. Ltd. through its General Manager | employees working with the Respondent are governed by the statutory Regulations framed by the Board in exercise of its powers Under Section 78 (c) of the Electricity (Supply) Act, 1948. 4. The Appellants were engaged by the Respondent to work in their set up as trade Apprentices under the Apprentices Act, 1961. In terms of the agreement, they were to undergo training in the trade of Boiler Attendant/Cable Jointer. Their period of training was 3 years. It was to come to an end after the expiry of contract period. 5. The Respondent accordingly terminated the services of the Appellant in C.A. No. 8125 of 2009 on 01.08.1989 and the Appellant in C.A. No. 8126 of 2009 on 13.07.1990. This gave rise to the dispute between the Appellants and the Respondent, which led to making of the industrial reference to the Labour Court, Kanpur to decide as to whether the termination of the Appellants from the services was legal or/and proper and, if so, what relief the Appellants are entitled to? 6. Parties filed their statements and adduced evidence before the Labour Court. By awards dated 29.08.1996 and 28.02.1997, the Labour Court answered the reference in Appellants favour. It was held that, (i) the Appellants were not paid any retrenchment compensation before terminating their services; (ii) no inquiry was held; (iii) the Appellant having served with the Respondent for more than two years, they were entitled to the protection of labour laws. The Labour Court, therefore, set aside the termination order and directed reinstatement of the Appellants together with payment of 50% of back wages. 7. The Respondent (employer), felt aggrieved of the awards, filed writ petitions before the High Court at Allahabad and questioned its legality and correctness. By impugned judgments, the High Court allowed the writ petitions and set aside the awards of the Labour Court. The High Court held that the case at hand are fully covered by the decision of this Court in U.P. State Electricity Board v. Shiv Mohan Singh and Anr. (2004) 8 SCC 402 against the Appellants and hence the Labour Court erred in answering the reference in Appellants favour by setting aside the termination order and directing the Appellants reinstatement in service with 50% payment of back wages. It was held that the reference should have been answered in Respondents favour by upholding the Appellants termination as legal and proper. 8. The Appellants, felt aggrieved by the impugned judgments, have filed these appeals by special leave before this Court. 9. Heard Mr. Satya Mitra Garg, learned Counsel for the Appellants and Dr, Rajeev Sharma, leaned Counsel for the Respondent. 10. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find no merit in these appeals. 11. In our considered opinion, the High Court was fully justified in placing reliance on the decision rendered by this Court in the case of U.P. State Electricity Board (supra) for allowing the Respondents writ petitions and setting aside of the awards of the Labour Court. Indeed, the facts of this case and of U.P. State Electricity Boards case (supra) are almost identical. 12. In fact, we find that in both the cases, the employees were working as Boiler Attendant/Cable Jointer in UPSEB and were appointed as Apprentices. 13. This Court (Three Judge Bench) in the case of U.P. State Electricity Board (supra) examined the provisions of Apprentices Act, 1961 in the context of U.P. Industrial Disputes Act, 1947 and then applying the law laid down in the case set aside the award of the Labour Court and upheld the termination. 14. This would be clear from the facts set out from the case of U.P. State Electricity Board (supra) in para 63 which reads as under: 63. Respondent 1 Shiv Mohan Singh was appointed as an apprentice Boiler Attendant under the Apprentices Act, 1961 from 11-4-1985 to 10-4-1988 and underwent training of the U.P. State Electricity Board. His contract was drawn up but not registered with the Apprenticeship Adviser. He completed his three years training and a certificate to this effect was issued to him and he was directed to appear before the National Council and on passing thereof he was to be awarded a certificate of proficiency as a Boiler Attendant. From this fact it is apparent that he was appointed as an apprentice trainee in the designated trade of Boiler Attendant. After completion of his training his services were terminated on 10-4-1988. It is clear from this fact that he was a Boiler Attendant. He completed three years training and after end of the training he was relieved as per the terms and conditions of the appointment as an apprentice in designated trade of Boiler Attendant and therefore he cannot be declared to be a worker under the Act and he cannot claim the benefit of Section 25-F of the Industrial Disputes Act, 1947 or Under Section 6-N of the U.P. Industrial Disputes Act, 1947. In this light the award given by the Labour Court in Award Dispute No. 166 of 1991 dated 12-8-1993 and the order dated 26-9-2002 passed in WP No. 21560 of 1995 by the High Court cannot be sustained. Civil appeal is allowed. Both the orders of the High Court dated 26-9-2002 and the award of the Labour Court dated 12-8-1993 are set aside. 15. As mentioned supra, the facts of both the cases appear identical. In this view of the matter, the High Court, in our view, was justified in placing reliance on the decision of this Court in U.P. State Electricity Board (supra) and rightly allowed the Respondents (employers) writ petitions and set aside the awards of the Labour Court. It is rather unfortunate that the Labour Court did not take note of the law laid down in U.P. State Electricity Boards case and wrongly set aside the termination orders. We, therefore, concur with the reasoning and the conclusion arrived at by the High Court and uphold the impugned judgment. | 0[ds]10. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find no merit in these appeals11. In our considered opinion, the High Court was fully justified in placing reliance on the decision rendered by this Court in the case of U.P. State Electricity Board (supra) for allowing the Respondents writ petitions and setting aside of the awards of the Labour Court. Indeed, the facts of this case and of U.P. State Electricity Boards case (supra) are almost identical12. In fact, we find that in both the cases, the employees were working as Boiler Attendant/Cable Jointer in UPSEB and were appointed as Apprentices13. This Court (Three Judge Bench) in the case of U.P. State Electricity Board (supra) examined the provisions of Apprentices Act, 1961 in the context of U.P. Industrial Disputes Act, 1947 and then applying the law laid down in the case set aside the award of the Labour Court and upheld the termination14. This would be clear from the facts set out from the case of U.P. State Electricity Board (supra) in para 63 which reads as under:63. Respondent 1 Shiv Mohan Singh was appointed as an apprentice Boiler Attendant under the Apprentices Act, 1961 from 11-4-1985 to 10-4-1988 and underwent training of the U.P. State Electricity Board. His contract was drawn up but not registered with the Apprenticeship Adviser. He completed his three years training and a certificate to this effect was issued to him and he was directed to appear before the National Council and on passing thereof he was to be awarded a certificate of proficiency as a Boiler Attendant. From this fact it is apparent that he was appointed as an apprentice trainee in the designated trade of Boiler Attendant. After completion of his training his services were terminated on 10-4-1988. It is clear from this fact that he was a Boiler Attendant. He completed three years training and after end of the training he was relieved as per the terms and conditions of the appointment as an apprentice in designated trade of Boiler Attendant and therefore he cannot be declared to be a worker under the Act and he cannot claim the benefit of Section 25-F of the Industrial Disputes Act, 1947 or Under Section 6-N of the U.P. Industrial Disputes Act, 1947. In this light the award given by the Labour Court in Award Dispute No. 166 of 1991 dated 12-8-1993 and the order dated 26-9-2002 passed in WP No. 21560 of 1995 by the High Court cannot be sustained. Civil appeal is allowed. Both the orders of the High Court dated 26-9-2002 and the award of the Labour Court dated 12-8-1993 are set aside15. As mentioned supra, the facts of both the cases appear identical. In this view of the matter, the High Court, in our view, was justified in placing reliance on the decision of this Court in U.P. State Electricity Board (supra) and rightly allowed the Respondents (employers) writ petitions and set aside the awards of the Labour Court. It is rather unfortunate that the Labour Court did not take note of the law laid down in U.P. State Electricity Boards case and wrongly set aside the termination orders. We, therefore, concur with the reasoning and the conclusion arrived at by the High Court and uphold the impugned judgment. | 0 | 1,317 | 627 | ### Instruction:
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employees working with the Respondent are governed by the statutory Regulations framed by the Board in exercise of its powers Under Section 78 (c) of the Electricity (Supply) Act, 1948. 4. The Appellants were engaged by the Respondent to work in their set up as trade Apprentices under the Apprentices Act, 1961. In terms of the agreement, they were to undergo training in the trade of Boiler Attendant/Cable Jointer. Their period of training was 3 years. It was to come to an end after the expiry of contract period. 5. The Respondent accordingly terminated the services of the Appellant in C.A. No. 8125 of 2009 on 01.08.1989 and the Appellant in C.A. No. 8126 of 2009 on 13.07.1990. This gave rise to the dispute between the Appellants and the Respondent, which led to making of the industrial reference to the Labour Court, Kanpur to decide as to whether the termination of the Appellants from the services was legal or/and proper and, if so, what relief the Appellants are entitled to? 6. Parties filed their statements and adduced evidence before the Labour Court. By awards dated 29.08.1996 and 28.02.1997, the Labour Court answered the reference in Appellants favour. It was held that, (i) the Appellants were not paid any retrenchment compensation before terminating their services; (ii) no inquiry was held; (iii) the Appellant having served with the Respondent for more than two years, they were entitled to the protection of labour laws. The Labour Court, therefore, set aside the termination order and directed reinstatement of the Appellants together with payment of 50% of back wages. 7. The Respondent (employer), felt aggrieved of the awards, filed writ petitions before the High Court at Allahabad and questioned its legality and correctness. By impugned judgments, the High Court allowed the writ petitions and set aside the awards of the Labour Court. The High Court held that the case at hand are fully covered by the decision of this Court in U.P. State Electricity Board v. Shiv Mohan Singh and Anr. (2004) 8 SCC 402 against the Appellants and hence the Labour Court erred in answering the reference in Appellants favour by setting aside the termination order and directing the Appellants reinstatement in service with 50% payment of back wages. It was held that the reference should have been answered in Respondents favour by upholding the Appellants termination as legal and proper. 8. The Appellants, felt aggrieved by the impugned judgments, have filed these appeals by special leave before this Court. 9. Heard Mr. Satya Mitra Garg, learned Counsel for the Appellants and Dr, Rajeev Sharma, leaned Counsel for the Respondent. 10. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find no merit in these appeals. 11. In our considered opinion, the High Court was fully justified in placing reliance on the decision rendered by this Court in the case of U.P. State Electricity Board (supra) for allowing the Respondents writ petitions and setting aside of the awards of the Labour Court. Indeed, the facts of this case and of U.P. State Electricity Boards case (supra) are almost identical. 12. In fact, we find that in both the cases, the employees were working as Boiler Attendant/Cable Jointer in UPSEB and were appointed as Apprentices. 13. This Court (Three Judge Bench) in the case of U.P. State Electricity Board (supra) examined the provisions of Apprentices Act, 1961 in the context of U.P. Industrial Disputes Act, 1947 and then applying the law laid down in the case set aside the award of the Labour Court and upheld the termination. 14. This would be clear from the facts set out from the case of U.P. State Electricity Board (supra) in para 63 which reads as under: 63. Respondent 1 Shiv Mohan Singh was appointed as an apprentice Boiler Attendant under the Apprentices Act, 1961 from 11-4-1985 to 10-4-1988 and underwent training of the U.P. State Electricity Board. His contract was drawn up but not registered with the Apprenticeship Adviser. He completed his three years training and a certificate to this effect was issued to him and he was directed to appear before the National Council and on passing thereof he was to be awarded a certificate of proficiency as a Boiler Attendant. From this fact it is apparent that he was appointed as an apprentice trainee in the designated trade of Boiler Attendant. After completion of his training his services were terminated on 10-4-1988. It is clear from this fact that he was a Boiler Attendant. He completed three years training and after end of the training he was relieved as per the terms and conditions of the appointment as an apprentice in designated trade of Boiler Attendant and therefore he cannot be declared to be a worker under the Act and he cannot claim the benefit of Section 25-F of the Industrial Disputes Act, 1947 or Under Section 6-N of the U.P. Industrial Disputes Act, 1947. In this light the award given by the Labour Court in Award Dispute No. 166 of 1991 dated 12-8-1993 and the order dated 26-9-2002 passed in WP No. 21560 of 1995 by the High Court cannot be sustained. Civil appeal is allowed. Both the orders of the High Court dated 26-9-2002 and the award of the Labour Court dated 12-8-1993 are set aside. 15. As mentioned supra, the facts of both the cases appear identical. In this view of the matter, the High Court, in our view, was justified in placing reliance on the decision of this Court in U.P. State Electricity Board (supra) and rightly allowed the Respondents (employers) writ petitions and set aside the awards of the Labour Court. It is rather unfortunate that the Labour Court did not take note of the law laid down in U.P. State Electricity Boards case and wrongly set aside the termination orders. We, therefore, concur with the reasoning and the conclusion arrived at by the High Court and uphold the impugned judgment.
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10. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find no merit in these appeals11. In our considered opinion, the High Court was fully justified in placing reliance on the decision rendered by this Court in the case of U.P. State Electricity Board (supra) for allowing the Respondents writ petitions and setting aside of the awards of the Labour Court. Indeed, the facts of this case and of U.P. State Electricity Boards case (supra) are almost identical12. In fact, we find that in both the cases, the employees were working as Boiler Attendant/Cable Jointer in UPSEB and were appointed as Apprentices13. This Court (Three Judge Bench) in the case of U.P. State Electricity Board (supra) examined the provisions of Apprentices Act, 1961 in the context of U.P. Industrial Disputes Act, 1947 and then applying the law laid down in the case set aside the award of the Labour Court and upheld the termination14. This would be clear from the facts set out from the case of U.P. State Electricity Board (supra) in para 63 which reads as under:63. Respondent 1 Shiv Mohan Singh was appointed as an apprentice Boiler Attendant under the Apprentices Act, 1961 from 11-4-1985 to 10-4-1988 and underwent training of the U.P. State Electricity Board. His contract was drawn up but not registered with the Apprenticeship Adviser. He completed his three years training and a certificate to this effect was issued to him and he was directed to appear before the National Council and on passing thereof he was to be awarded a certificate of proficiency as a Boiler Attendant. From this fact it is apparent that he was appointed as an apprentice trainee in the designated trade of Boiler Attendant. After completion of his training his services were terminated on 10-4-1988. It is clear from this fact that he was a Boiler Attendant. He completed three years training and after end of the training he was relieved as per the terms and conditions of the appointment as an apprentice in designated trade of Boiler Attendant and therefore he cannot be declared to be a worker under the Act and he cannot claim the benefit of Section 25-F of the Industrial Disputes Act, 1947 or Under Section 6-N of the U.P. Industrial Disputes Act, 1947. In this light the award given by the Labour Court in Award Dispute No. 166 of 1991 dated 12-8-1993 and the order dated 26-9-2002 passed in WP No. 21560 of 1995 by the High Court cannot be sustained. Civil appeal is allowed. Both the orders of the High Court dated 26-9-2002 and the award of the Labour Court dated 12-8-1993 are set aside15. As mentioned supra, the facts of both the cases appear identical. In this view of the matter, the High Court, in our view, was justified in placing reliance on the decision of this Court in U.P. State Electricity Board (supra) and rightly allowed the Respondents (employers) writ petitions and set aside the awards of the Labour Court. It is rather unfortunate that the Labour Court did not take note of the law laid down in U.P. State Electricity Boards case and wrongly set aside the termination orders. We, therefore, concur with the reasoning and the conclusion arrived at by the High Court and uphold the impugned judgment.
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RAGHUNATH(D) BY LRS Vs. RADHA MOHAN (D) THR. LRS | shall lose such, right unless within two months from the date of the service of such notice, he or his agent pays or tenders the price specified in the notice given under section 8 to the person so proposing to sell: Provided that the right of pre-emption shall not be so lost if the immovable property in question is actually sold for an amount smaller than that mentioned in the notice or to a person not mentioned in the notice as purchaser. 17. A reading of the Section shows that the loss is only occasioned, when, within two months from the date of service of the notice, the price is not tendered. However, that is the loss of the right, vis-à-vis the transaction in question. The moot point is whether such a right of pre-emption is a recurring right, i.e. every time the property is sold, the right would rearise, in a case the pre-empting plaintiff himself has chosen not to exercise such right over the subject immovable property when sold to another purchaser earlier. 18. In our view, it would not be appropriate or permissible to adopt legal reasoning making such a weak right, some kind of a right in perpetuity arising to a plaintiff every time there is a subsequent transaction or sale once the plaintiff has waived his right or pre-emption over the subject immovable property. The loss of right mandated under Section 9 of the Act is absolute. A plain reading of the said provision does not reveal that such right can re-arise to the person who waives his right of pre-emption in an earlier transaction. To do so would mean that a person, whether not having the means or for any other reason, does not exercise the right of pre- emption and yet he, even after decades, can exercise such a right. This would create, if one may say, some sort of a cloud on a title and uncertainty as a subsequent purchaser would not know, when he wants to sell the property, whether he can complete the transaction or not or whether a co- sharer will jump into the scene. This is not contemplated in the 1966 Act. This is bound to have an effect on the price offered by a purchaser at that time because he would have an impression of uncertainty about the proposed transaction. 19. We are in agreement with the consistent view taken in the judgments earlier of the Rajasthan High Court. So far as the case of Kutina Bibi (supra) is concerned, the factual basis of that decision does not fit with the legal controversy involved in this proceeding. In that case, by a previous transaction the entire land had been sold. It was held in that perspective, that the plaintiffs right as a co-sharer had become disputed in absence of challenge to the previous transaction. We are of opinion that such a right is available once - whether to take it or leave it to a person having a right of pre-emption. If such person finds it is not worth once, it is not an open right available for all times to come to that person. The aforesaid being the position, this would itself be an impediment in exercise of the right of pre- emption in a subsequent transaction. This is so since, we find the right of waiver under section 9 of the said Act is relatable to the transaction and also the person. These provisions may not impede the right of pre-emption in that particular transaction by a particular pre-emptor and the factum of not having exercised such a right to an earlier transaction would amount to the surrender of the right of substitution to such intended pre-emptor. 20. The judgments referred to by the respondent of Bishan Singh (supra) and Barasat Eye Hospital (supra) are only for the proposition that the right of pre-emption is a right of substitution – no doubt exists over this proposition. The question is whether this right of substitution can be exercised recurringly or only once. Our answer to the query is only once. 21. We may also notice another judgment of this Court in Indira Bai vs. Nand Kishore (1990) 4 SCC 668 . Once again in relation to the said Act (it appears that there is a frequent exercise of this right in Rajasthan apart from West Bengal & Bihar!) The question which was framed for decision in the case was: Is estoppel a good defence to archaic right of pre- emption which is a weak right and can be defeated by any legitimate method? In the aforesaid context, in para 5, it has been observed that the Act does not debar the pre-emptor from giving up his right. Rather in case of its non-exercise within two months, may be for the financial reasons, the right stands extinguished. It does not pass on to anyone. It was further observed, No social disturbance is caused. It settles in purchaser. Giving up such right, expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy. These observations, once again, in our view, are based on the right being weak. Conclusion: 22. We suppose that the aforesaid answers the dilemma, i.e. whether the right of pre-emption can be enforced for an indefinite number of transactions or it is exercisable only the first time. We opine that it is only exercisable for the first time when the cause of such a right arises, in a situation where the plaintiff-pre-emptor chooses to waive such right after the 1966 Act becoming operational. Section 9 of the said Act operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property. We also wonder what really remains of this right of pre-emption after so many years in the facts of this case when the purchaser has been enjoying it for more than four decades! | 1[ds]The pre-emptor has been held by the judicial pronouncements to have two rights. Firstly, the inherent or primary right, which is the right to the offer of a thing about to be sold and the secondary or remedial right to follow the thing sold. It is a secondary right, which is simply a right of substitution in place of the original vendee. The pre-emptor is bound to show that he not only has a right as good as that of the vendee, but it is superior to that of the vendee; And that too at the time when the pre-emptor exercises his right. In our view, it is relevant to note this observation and we once again emphasise that the right is a very weak right and is, thus, capable of being defeated by all legitimate methods including the claim of superior or equal right.We may notice the observation in the Ghanshyam case (supra) which deals with the scenario where at the first instance the right was not exercised apparently on account of lack of financial means and that was held to be no ground to permit exercise of that right at the second stage. The consistent view taken by the Rajasthan High Court, as reflected in not only Ghanshyam case (supra) but also in Rukmani Devi (supra) and Prahlad Kumar (supra) has been that the right of substitution is capable of being invoked only at the first instance and does not continue to substitution is capable of being invoked only at the first instance and does not continue to permeate for an indefinite period of time for each sale transaction. In the case of Ghanshyam (supra), finding of the High Court was that the plaintiffs claiming pre-emption had waived their rights. In the case of Rukmani Devi (supra), where the plaintiff raised the plea of pre- emption on second sale transaction, evidence was led by the defendant that the same plaintiff had earlier refused to purchase the subject property and had on the other hand participated in the sale process. In the case of Prahlad Kumar (supra), it was found that the plaintiff himself had waived his right of pre-emption in respect of an earlier sale transaction involving the same property. Thus, to this extent, the view taken in the impugned order seems to charter a new course. The view of the Assam High Court in Kutina Bibi (supra) was consistently followed by the Rajasthan High Court.The stipulation in Section 21 is that the right of pre-emption has to be exercised, in case of a sale, within one year from the date of sale and if the sale is not by a registered deed, on the purchaser taking the physical possession of any part of the property sold. Since the period has to be as per Article 97, the wordings of the Article show that it is one year from the date when the sale is registered (in case such registration takes place as is in the present case). It is this expression, which is sought to be construed by the respondent No. 1 as well as by the High Court to mean that it is a recurring right for every sale. The loss of right of pre- emption on transfer has been defined under Section 9 of the said Act17. A reading of the Section shows that the loss is only occasioned, when, within two months from the date of service of the notice, the price is not tendered. However, that is the loss of the right, vis-à-vis the transaction in question.17. A reading of the Section shows that the loss is only occasioned, when, within two months from the date of service of the notice, the price is not tendered. However, that is the loss of the right, vis-à-vis the transaction in question.18. In our view, it would not be appropriate or permissible to adopt legal reasoning making such a weak right, some kind of a right in perpetuity arising to a plaintiff every time there is a subsequent transaction or sale once the plaintiff has waived his right or pre-emption over the subject immovable property. The loss of right mandated under Section 9 of the Act is absolute. A plain reading of the said provision does not reveal that such right can re-arise to the person who waives his right of pre-emption in an earlier transaction. To do so would mean that a person, whether not having the means or for any other reason, does not exercise the right of pre- emption and yet he, even after decades, can exercise such a right. This would create, if one may say, some sort of a cloud on a title and uncertainty as a subsequent purchaser would not know, when he wants to sell the property, whether he can complete the transaction or not or whether a co- sharer will jump into the scene. This is not contemplated in the 1966 Act. This is bound to have an effect on the price offered by a purchaser at that time because he would have an impression of uncertainty about the proposed transaction.19. We are in agreement with the consistent view taken in the judgments earlier of the Rajasthan High Court. So far as the case of Kutina Bibi (supra) is concerned, the factual basis of that decision does not fit with the legal controversy involved in this proceeding. In that case, by a previous transaction the entire land had been sold. It was held in that perspective, that the plaintiffs right as a co-sharer had become disputed in absence of challenge to the previous transaction. We are of opinion that such a right is available once - whether to take it or leave it to a person having a right of pre-emption. If such person finds it is not worth once, it is not an open right available for all times to come to that person. The aforesaid being the position, this would itself be an impediment in exercise of the right of pre- emption in a subsequent transaction. This is so since, we find the right of waiver under section 9 of the said Act is relatable to the transaction and also the person. These provisions may not impede the right of pre-emption in that particular transaction by a particular pre-emptor and the factum of not having exercised such a right to an earlier transaction would amount to the surrender of the right of substitution to such intended pre-emptor.20. The judgments referred to by the respondent of Bishan Singh (supra) and Barasat Eye Hospital (supra) are only for the proposition that the right of pre-emption is a right of substitution – no doubt exists over this proposition.The question is whether this right of substitution can be exercised recurringly or only once.Our answer to the query is only once.21. We may also notice another judgment of this Court in Indira Bai vs. Nand Kishore (1990) 4 SCC 668 . Once again in relation to the said Act (it appears that there is a frequent exercise of this right in Rajasthan apart from West Bengal & Bihar!) The question which was framed for decision in the case was:Is estoppel a good defence to archaic right of pre- emption which is a weak right and can be defeated by any legitimate method?In the aforesaid context, in para 5, it has been observed that the Act does not debar the pre-emptor from giving up his right. Rather in case of its non-exercise within two months, may be for the financial reasons, the right stands extinguished. It does not pass on to anyone. It was further observed, No social disturbance is caused. It settles in purchaser. Giving up such right, expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy. These observations, once again, in our view, are based on the right being weak.22. We suppose that the aforesaid answers the dilemma, i.e.whether the right of pre-emption can be enforced for an indefinite number of transactions or it is exercisable only the firstWe opine that it is only exercisable for the first time when the cause of such a right arises, in a situation where the plaintiff-pre-emptor chooses to waive such right after the 1966 Act becoming operational. Section 9 of the said Act operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property. We also wonder what really remains of this right of pre-emption after so many years in the facts of this case when the purchaser has been enjoying it for more than four decades!In this behalf, we had discussed the right of pre-emption in a recent judgment in Barasat Eye Hospital & Ors. v. Kaustabh Mondal (2019) SCC Online SC 1351. The said judgment, authored by one of us (Sanjay Kishan Kaul, J.), in its initial paragraph itself discusses this aspect and it would suffice to quote the same.1. The right of pre-emption holds its origination to the advent of the Mohammedan rule, based on customs which came to be accepted in various courts largely located in the north of India. This law is stated to be largely absent in the south of India on account of the fact that it never formed a part of Hindu law in respect of property. However, this law came to be incorporated in various statutes, both, prior to the Constitution of India (for short the Constitution) coming into force, and even post that. Bhau Ram v. Baij Nath Singh, AIR 1962 SC 1476 The constitutional validity of such laws of pre-emption came to be debated before the Constitution Bench of this Court, in Bhau Ram, (supra) . There are different views expressed by the members of the Constitution Bench of five Judges, and also dependent on the various State legislations in this regard. Even though there were views expressed that this right of pre-emption is opposed to the principles of justice, equity and good conscience, it was felt that the reasonableness of these statutes has to be appreciated in the context of a society where there were certain privileged classes holding land and, thus, there may have been utility in allowing persons to prevent a stranger from acquiring property in an area which has been populated by a particular fraternity or class of people. This aspect was sought to be balanced with the constitutional scheme, prohibiting discrimination against citizens on the grounds of only religion, race, caste, sex, place of birth or any of them, under Article 15 of the Constitution, and the guarantees given to every citizen to acquire, hold and dispose of property, subject only to the test of reasonable restriction and the interest of general public.The judicial approach adopted towards this right of pre-emption was thereafter discussed in the said judgment in the following terms:10. In order to appreciate the aforesaid provisions relating to the right of pre-emption, it would be appropriate to refer to an extremely lucid judgment of this Court by Justice K. Subbarao (as he then was), setting forth the contours of the right of pre-emption in Bishan Singh v. Khazan Singh AIR 1958 SC 838 , in a four Judge Bench judgement. The Bench proceeded to discuss the view of different Courts on this right of preemption, as found in the following:a. Plowden, J. in Dhani Nath v. Budhu, 136 P.R. 1894b. Mahmood, J. in Gobind Dayal v. Inayatullah, (1885) ILR 7 All 775, 809.c. Mool Chand v. Ganga Jal, (1930) ILR 11 Lahore (F.B.) 258, 273.11. In view of the aforesaid elucidation, it was opined that the preemptor has two rights: first, the inherent or primary right, i.e., right for the offer of a thing about to be sold; and second, the secondary or remedial right to follow the thing sold. The secondary right of preemption is simply a right of substitution, in place of an original vendee and the pre-emptor is bound to show not only that his right is as good as that of that vendee, but that it is superior to that of the vendee. Such superior right has to subsist at the time when the pre-emptor exercises his right. The position is thereafter summarized in the following terms:11. …..(1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re-purchase i. e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place.12. We have given our thoughtful consideration to the aforesaid issue and in order to determine the same, we had, at the inception itself, set out the judgment in Barasat Eye Hospital case (supra). | 1 | 5,848 | 2,501 | ### Instruction:
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shall lose such, right unless within two months from the date of the service of such notice, he or his agent pays or tenders the price specified in the notice given under section 8 to the person so proposing to sell: Provided that the right of pre-emption shall not be so lost if the immovable property in question is actually sold for an amount smaller than that mentioned in the notice or to a person not mentioned in the notice as purchaser. 17. A reading of the Section shows that the loss is only occasioned, when, within two months from the date of service of the notice, the price is not tendered. However, that is the loss of the right, vis-à-vis the transaction in question. The moot point is whether such a right of pre-emption is a recurring right, i.e. every time the property is sold, the right would rearise, in a case the pre-empting plaintiff himself has chosen not to exercise such right over the subject immovable property when sold to another purchaser earlier. 18. In our view, it would not be appropriate or permissible to adopt legal reasoning making such a weak right, some kind of a right in perpetuity arising to a plaintiff every time there is a subsequent transaction or sale once the plaintiff has waived his right or pre-emption over the subject immovable property. The loss of right mandated under Section 9 of the Act is absolute. A plain reading of the said provision does not reveal that such right can re-arise to the person who waives his right of pre-emption in an earlier transaction. To do so would mean that a person, whether not having the means or for any other reason, does not exercise the right of pre- emption and yet he, even after decades, can exercise such a right. This would create, if one may say, some sort of a cloud on a title and uncertainty as a subsequent purchaser would not know, when he wants to sell the property, whether he can complete the transaction or not or whether a co- sharer will jump into the scene. This is not contemplated in the 1966 Act. This is bound to have an effect on the price offered by a purchaser at that time because he would have an impression of uncertainty about the proposed transaction. 19. We are in agreement with the consistent view taken in the judgments earlier of the Rajasthan High Court. So far as the case of Kutina Bibi (supra) is concerned, the factual basis of that decision does not fit with the legal controversy involved in this proceeding. In that case, by a previous transaction the entire land had been sold. It was held in that perspective, that the plaintiffs right as a co-sharer had become disputed in absence of challenge to the previous transaction. We are of opinion that such a right is available once - whether to take it or leave it to a person having a right of pre-emption. If such person finds it is not worth once, it is not an open right available for all times to come to that person. The aforesaid being the position, this would itself be an impediment in exercise of the right of pre- emption in a subsequent transaction. This is so since, we find the right of waiver under section 9 of the said Act is relatable to the transaction and also the person. These provisions may not impede the right of pre-emption in that particular transaction by a particular pre-emptor and the factum of not having exercised such a right to an earlier transaction would amount to the surrender of the right of substitution to such intended pre-emptor. 20. The judgments referred to by the respondent of Bishan Singh (supra) and Barasat Eye Hospital (supra) are only for the proposition that the right of pre-emption is a right of substitution – no doubt exists over this proposition. The question is whether this right of substitution can be exercised recurringly or only once. Our answer to the query is only once. 21. We may also notice another judgment of this Court in Indira Bai vs. Nand Kishore (1990) 4 SCC 668 . Once again in relation to the said Act (it appears that there is a frequent exercise of this right in Rajasthan apart from West Bengal & Bihar!) The question which was framed for decision in the case was: Is estoppel a good defence to archaic right of pre- emption which is a weak right and can be defeated by any legitimate method? In the aforesaid context, in para 5, it has been observed that the Act does not debar the pre-emptor from giving up his right. Rather in case of its non-exercise within two months, may be for the financial reasons, the right stands extinguished. It does not pass on to anyone. It was further observed, No social disturbance is caused. It settles in purchaser. Giving up such right, expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy. These observations, once again, in our view, are based on the right being weak. Conclusion: 22. We suppose that the aforesaid answers the dilemma, i.e. whether the right of pre-emption can be enforced for an indefinite number of transactions or it is exercisable only the first time. We opine that it is only exercisable for the first time when the cause of such a right arises, in a situation where the plaintiff-pre-emptor chooses to waive such right after the 1966 Act becoming operational. Section 9 of the said Act operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property. We also wonder what really remains of this right of pre-emption after so many years in the facts of this case when the purchaser has been enjoying it for more than four decades!
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two months, may be for the financial reasons, the right stands extinguished. It does not pass on to anyone. It was further observed, No social disturbance is caused. It settles in purchaser. Giving up such right, expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy. These observations, once again, in our view, are based on the right being weak.22. We suppose that the aforesaid answers the dilemma, i.e.whether the right of pre-emption can be enforced for an indefinite number of transactions or it is exercisable only the firstWe opine that it is only exercisable for the first time when the cause of such a right arises, in a situation where the plaintiff-pre-emptor chooses to waive such right after the 1966 Act becoming operational. Section 9 of the said Act operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property. We also wonder what really remains of this right of pre-emption after so many years in the facts of this case when the purchaser has been enjoying it for more than four decades!In this behalf, we had discussed the right of pre-emption in a recent judgment in Barasat Eye Hospital & Ors. v. Kaustabh Mondal (2019) SCC Online SC 1351. The said judgment, authored by one of us (Sanjay Kishan Kaul, J.), in its initial paragraph itself discusses this aspect and it would suffice to quote the same.1. The right of pre-emption holds its origination to the advent of the Mohammedan rule, based on customs which came to be accepted in various courts largely located in the north of India. This law is stated to be largely absent in the south of India on account of the fact that it never formed a part of Hindu law in respect of property. However, this law came to be incorporated in various statutes, both, prior to the Constitution of India (for short the Constitution) coming into force, and even post that. Bhau Ram v. Baij Nath Singh, AIR 1962 SC 1476 The constitutional validity of such laws of pre-emption came to be debated before the Constitution Bench of this Court, in Bhau Ram, (supra) . There are different views expressed by the members of the Constitution Bench of five Judges, and also dependent on the various State legislations in this regard. Even though there were views expressed that this right of pre-emption is opposed to the principles of justice, equity and good conscience, it was felt that the reasonableness of these statutes has to be appreciated in the context of a society where there were certain privileged classes holding land and, thus, there may have been utility in allowing persons to prevent a stranger from acquiring property in an area which has been populated by a particular fraternity or class of people. This aspect was sought to be balanced with the constitutional scheme, prohibiting discrimination against citizens on the grounds of only religion, race, caste, sex, place of birth or any of them, under Article 15 of the Constitution, and the guarantees given to every citizen to acquire, hold and dispose of property, subject only to the test of reasonable restriction and the interest of general public.The judicial approach adopted towards this right of pre-emption was thereafter discussed in the said judgment in the following terms:10. In order to appreciate the aforesaid provisions relating to the right of pre-emption, it would be appropriate to refer to an extremely lucid judgment of this Court by Justice K. Subbarao (as he then was), setting forth the contours of the right of pre-emption in Bishan Singh v. Khazan Singh AIR 1958 SC 838 , in a four Judge Bench judgement. The Bench proceeded to discuss the view of different Courts on this right of preemption, as found in the following:a. Plowden, J. in Dhani Nath v. Budhu, 136 P.R. 1894b. Mahmood, J. in Gobind Dayal v. Inayatullah, (1885) ILR 7 All 775, 809.c. Mool Chand v. Ganga Jal, (1930) ILR 11 Lahore (F.B.) 258, 273.11. In view of the aforesaid elucidation, it was opined that the preemptor has two rights: first, the inherent or primary right, i.e., right for the offer of a thing about to be sold; and second, the secondary or remedial right to follow the thing sold. The secondary right of preemption is simply a right of substitution, in place of an original vendee and the pre-emptor is bound to show not only that his right is as good as that of that vendee, but that it is superior to that of the vendee. Such superior right has to subsist at the time when the pre-emptor exercises his right. The position is thereafter summarized in the following terms:11. …..(1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re-purchase i. e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place.12. We have given our thoughtful consideration to the aforesaid issue and in order to determine the same, we had, at the inception itself, set out the judgment in Barasat Eye Hospital case (supra).
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SHATRUGHNA BABAN MESHRAM Vs. STATE OF MAHARASHTRA | based on circumstantial evidence in our jurisprudence, the standard that is adopted in terms of law laid down by this Court as noticed in Sharad Birdhichand Sarda (1984) 4 SCC 116 and subsequent decisions is that the circumstances must not only be individually proved or established, but they must form a consistent chain, so conclusive as to rule out the possibility of any other hypothesis except the guilt of the accused. On the strength of these principles, the burden in such cases is already of a greater magnitude. Once that burden is discharged, it is implicit that any other hypothesis or the innocence of the accused, already stands ruled out when the matter is taken up at the stage of sentence after returning the finding of guilt. So, theoretically the concept or theory of residual doubt does not have any place in a case based on circumstantial evidence. As a matter of fact, the theory of residual doubt was never accepted by US Supreme Court as discussed earlier. However, as summed up in Kalu Khan (2015) 16 SCC 492 paras 16, 23 and 31 , while dealing with cases based on circumstantial evidence, for imposition of a death sentence, higher or stricter standard must be insisted upon. The approach to be adopted in matters concerning capital punishment, therefore ought to be in conformity with the principles culled out in paragraph 41 hereinabove and the instant matter must therefore be considered in the light of those principles. 53. If the present case is so considered, the discussion must broadly be classified under following two heads: - (A) Whether the circumstantial evidence in the present case is of unimpeachable character in establishing the guilt of the Appellant or leads to an exceptional case. (B) Whether the evidence on record is so strong and convincing that the option of a sentence lesser than a death penalty is foreclosed. Going by the circumstances proved on record and, more particularly the facets detailed in paragraph 19 hereinabove as well as the law laid down by this Court in series of decisions, the circumstances on record rule out any hypothesis of innocence of the Appellant. The circumstances are clear, consistent and conclusive in nature and are of unimpeachable character in establishing the guilt of the Appellant. The evidence on record also depicts an exceptional case where two and half years old girl was subjected to sexual assault. The assault was accompanied by bites on the body of the victim. The rape was of such intensity that there was merging of vaginal and anal orifices of the victim. The age of the victim, the fact that the Appellant was a maternal uncle of the victim and the intensity of the assault make the present case an exceptional one. However, if the case is considered against the second head, we do not find that the option of a sentence lesser than death penalty is completely foreclosed. It is true that the sexual assault was very severe and the conduct of the Appellant could be termed as perverse and barbaric. However, a definite pointer in favour of the Appellant is the fact that he did not consciously cause any injury with the intent to extinguish the life of the victim. Though all the injuries are attributable to him and it was injury No.17 which was the cause of death, his conviction under Section 302 IPC is not under any of the first three clauses of Section 300 IPC. In matters where the conviction is recorded with the aid of clause fourthly under Section 300 of IPC, it is very rare that the death sentence is awarded. In cases at Serial Nos. 10, 11, 16, 24, 40, 45 and 64 of the Chart tabulated in paragraph 30 hereinabove, where the victims were below 16 years of age and had died during the course of sexual assault on them, the maximum sentence awarded was life sentence. This aspect is of crucial importance while considering whether the option of a sentence lesser than death penalty is foreclosed or not. 54. We therefore, find that though the Appellant is guilty of the offence punishable under Section 302 IPC, since there was no requisite intent as would bring the case under any of the first three clauses of Section 300 IPC, the offence in the present case does not deserve death penalty. 55. The second count on which death sentence has been imposed is under Section 376A of IPC. As noted earlier, the offence was committed on 11.02.2013 and just few days before such commission, Section 376A was inserted in IPC by the Ordinance. As concluded by us in paragraph 16 hereinabove, the ex-post facto effect given to Section 376A inserted by the Amendment Act would not in any way be inconsistent with sub-Article (1) of Article 20 of the Constitution. The Appellant is thus definitely guilty of the offence punishable under Section 376A IPC. But the question remains whether punishment lesser than death sentence gets ruled out or not. As against Section 302 IPC while dealing with cases under Section 376A IPC, a wider spectrum is available for consideration by the Courts as to the punishment to be awarded. On the basis of the same aspects that weighed with us while considering the appropriate punishment for the offence under Section 302 IPC, in view of the fact that Section 376A IPC was brought on the statute book just few days before the commission of the offence, the Appellant does not deserve death penalty for said offence. At the same time, considering the nature and enormity of the offence, it must be observed that the appropriate punishment for the offence under Section 376A IPC must be rigorous imprisonment for a term of 25 years. 56. In view of the aforestated conclusions drawn by us, it is not necessary to deal with the submissions IV, V, VI, VII, VIII and IX, advanced by Ms. Mathur, learned Senior Advocate in respect of the issue of sentence. | 1[ds]13. If the abovementioned provisions of IPC are considered in three compartments, that is to say,(A) The situation obtaining before 03.02.2013(B) The situation in existence during 03.02.2013 to 02.04.2013 and,(C) The situation obtaining after 02.04.2013:following features emerge: -(i) The offence under Section 375, as is clear from the definition of relevant provision in compartment (A), could be committed against a woman. The situation was sought to be changed and made gender neutral in compartment (B). However, the earlier position now stands restored as a result of provisions in compartment (C)(ii) Before 03.02.2013 the sentence for an offence under Section 376(1) could not be less than seven years but the maximum sentence could be life imprisonment; and for an offence under Section 376(2) the minimum sentence could not be less than ten years while the maximum sentence could be imprisonment for life. Section 376A dealt with cases where a man committed non-consensual sexual intercourse with his wife in certain situations.(iii) As a result of the Ordinance, the sentences for offences under Sections 376(1) and 376(2) were retained in the same fashion. However, a new provision in the form of Section 376A was incorporated under which, if while committing an offence punishable under sub-section (1) or sub-section (2) of Section 376, a person inflicts an injury which causes the death of the victim, the accused could be punished with rigorous imprisonment for a term which shall not be less than 20 years but which may extend to imprisonment for life, which shall mean the remainder of that persons natural life or with death. Thus, for the first time, Death Sentence could be imposed if a fatal injury was caused during the commission of offence under subsection (1) or (2) of Section 376.(iv) Though the provisions of the Amendment Act restored the original non gender-neutral position vis-à-vis the victim, it made certain changes in sub-section (2) of Section 376. Now, the punishment for the offence could be rigorous imprisonment for not less than ten years which could extend to imprisonment for life, which shall mean imprisonment for the remainder of that persons natural life. It was, thus, statutorily made clear that the imprisonment for life would mean till the last breath of that persons natural life.(V) Similarly, by virtue of the Amendment Act, for the offence under Section 376A, the punishment could not be less than 20 years which may extend to imprisonment for life which shall mean imprisonment for the remainder of that persons natural life, or with death.14. In the instant case, the offence was committed on 11.02.2013 when the provisions of the Ordinance were in force. However, the Amendment Act having been given retrospective effect from 03.02.2013, the question arises whether imposition of life sentence for the offence under Section 376(2) could mean imprisonment for the remainder of that persons natural life.In the present case, since the victim was about two and half years of age at the time of incident and since it was the Ordinance which was holding the field, going by the provisions of the Ordinance, Clauses (f), (h) and (l) of Section 376(2) would get attracted. The comparable provisions of Section 376(2) as amended by the Amendment Act would be, Clauses (f), (i) and (m) respectively. As the substantive penal provisions under the Clauses (f), (h) and (l) as inserted by the Ordinance and Clauses (f), (i) and (m) as inserted by the Amendment Act are identical, no difficulty on that count is presented. But the sentence prescribed by Section 376(2) as amended by the Amendment Act, has now, for the first time provided that the imprisonment for life shall mean imprisonment for the remainder of that persons natural life. This provision comes with retrospective effect and in a situation where such prescription was not available on the statute when the offence was committed, the question arises whether such ex-post facto prescription would be consistent with the provisions of sub-Article (1) of Article 20 of the Constitution.15. An imposition of life sentence simpliciter does not put any restraints on the power of the executive to grant remission and commutation in exercise of its statutory power, subject of course to Section 433A of the Code. But, a statutory prescription that it shall mean the remainder of that persons life will certainly restrain the executive from exercising any such statutory power and to that extent the concerned provision definitely prescribes a higher punishment ex-post facto. In the process, the protection afforded by Article 20(1) of the Constitution would stand negated. We must, therefore, declare that the punishment under Section 376(2) of the IPC in the present case cannot come with stipulation that the life imprisonment shall mean the remainder of that persons life. Similar prescription in Section 6 of the POCSO Act, which came by way of amendment in 2019, would not be applicable and the governing provision for punishment for the offence under the POCSO Act must be taken to be the pre-amendment position as noted hereinabove.16. However, in so far as the situation covered by Section 376A of IPC as amended by the Amendment Act is concerned, substantively identical situation was dealt with by Section 376A as amended by the Ordinance and the prescription of sentence in Section 376A by the Amendment Act is identical to that prescribed by Section 376A as amended by the Ordinance. Section 376A as amended by the Ordinance being gender neutral so far as victim was concerned, naturally covered cases where a victim was a woman. Thus, the ex-post facto effect given to Section 376A by the Amendment Act from the day the Ordinance was promulgated, would not in way be inconsistent with the provisions of sub-Article (1) of Article 20 of the Constitution.The law on the point is clear from the following observations of this Court in Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 ,153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the observations were made:Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions.(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.These principles have since then been followed consistently.18.1 According to the prosecution, on the day in question at about 7:30 p.m. when the victim was with her grandfather, on the pretext that the father of the victim had asked the Appellant to bring the victim, the Appellant, who was maternal uncle of the victim, took her away. This part of the evidence is conclusively established through the testimony of PW2, the grandfather. This version finds mention in the FIR which was recorded within few hours of the incident and in the statement of PW2 recorded under Section 164 of the Code. There is nothing on record to doubt the veracity of said version. It is true that some other witnesses were not examined by the prosecution but the strength of the testimony of PW2 does not get diminished on any count nor can it be said that his testimony loses its weight because the witness was the grandfather of the victim. The version coming through this witness is cogent, consistent and also figured in prompt reporting of the FIR. We have, therefore, no hesitation in accepting that the first circumstance as noted by the Trial Court stands conclusively established.18.2 As deposed by PWs 1 and 2, the Appellant was found by the side of the victim at the spot i.e. in the premises of Anganwadi. The victim was having various injuries whereafter she was taken for medical attention. Soon after the incident, the Appellant was also medically examined and Report Exbt. 46 showed injury on his body. Even if PW9 had turned hostile and some other witnesses were not examined, the fact that the victim was always in the custody of Appellant till she was found at the spot alongside the Appellant is quite clear. The proximity in terms of time and the promptitude in reporting are crucial factors and the evidence in that behalf is completely trustworthy. Thus, in our view, the second and third circumstances are also fully established.18.3 Soon after his arrest, the Appellant was produced for medical examination before PW 7 Dr. Ulhas Digambar Lingawar, who found injury on private parts of the Appellant. The approximate time of said injury as given in the opinion Exh.46 is consistent with the case of prosecution. The submission however is that the Appellant was also examined by another medical professional and that report was not placed on record. The reference to the medical examination of the Appellant in terms of Section 53A of the Code was not to any other medical professional but to PW 7 Dr. Lingawar. No explanation, not even a suggestion came from the Appellant how there could be an injury on his body as noticed in Report Exh.46. Thus, the 4th circumstance also stands fully established.18.4 While considering the 5 th circumstance, it must be stated that as per record, the chappals were not proved to be that of the Appellant and the pieces of flesh found at the spot of incident were also not proved to be that of a human being. To that extent, 5th circumstance was not proved at all. However, the fact that the pant of the victim was found at the spot of incident is well established on record, and the 5 th circumstance must be taken to be proved only with respect to the recovery of the pant of the victim.18.5 There is nothing on record to show that the stains of semen found on clothing referred to in 6th circumstance, were medically proved to be that of, or could be associated with the Appellant. The 6th circumstance cannot therefore be taken to be pointing against the Appellant.18.6 In terms of Chemical Analysers Report Ext.54, the blood found on the trousers of the Appellant was that of the victim. This fact is completely established. The submission however, is:-(a) Nothing suspicious was found by PW13 the Investigating Officer with the Appellant at the time of his arrest; and(b) PW7 Dr. Lingawar had not noticed any blood stains on the trousers of the Appellant at the time of his medical examination;(c) No malkhana report or evidence was produced on record to state that the articles remained in proper custody and in sealed condition.The answer given by the Investigating Officer cannot be stretched to say that there were no blood stains on his trousers at the time of arrest. The medical opinion was obtained to consider whether there were any injuries on the private parts of the Appellant and whether he was capable of having sexual intercourse. The facts on record show that the articles were sent for FSL examination at the earliest.The Appellant was represented by a counsel of standing in the Trial Court. The theory that the blood spots on the trousers of the Appellant were subsequently planted was not even developed in the cross examination of the concerned witnesses.Given the quick succession of steps in investigation, including the medical examination and seizure of the clothes of the Appellant, we do not find any infirmity. We, therefore, accept that the 7th circumstance stands fully established.18.7 It is a matter of record that as per Post-Mortem report and medical opinion, there was forceful sexual assault on the victim and her death was caused due to injury No.17 which was in the nature of multiple lacerations over vaginal and anal region; and merging of vaginal and anal orifices.The 8th circumstance must therefore be taken to be proved fully except to the extent that said circumstance makes reference to pieces of flesh found at the spot of incident.The established circumstances show:-a) The victim was in the custody of the Appellant, from the time she was taken from her grandfather till she was found lying in the premises of Anganwadi; where the Appellant was also found lying next to her.b) The victim, who was hale and hearty when she was taken by the Appellant, had number of injuries on her body when she was found next to the Appellant.c) The injuries on the body of the victim show that she was abused and sexually exploited.d) The sexual assault was so forceful that the victim, a two-and-ahalf-year-old girl suffered, among other injuries, Injury No.17.e) Injury No.17, as described above, was so severe that there was merging of vaginal and anal orifices.f) The victim died because of Injury No.17.g) The Appellant had an injury on his private parts corresponding to the period when the victim was in his custody.h) The Appellant was found to be capable of having sexual intercourse.i) The trousers of the Appellant had blood stains, the DNA profiles of which, matched with that of the blood of the victim.These circumstances at serial numbers a) to i) stand proved beyond any doubt and by themselves constitute a conclusive and consistent chain excluding every other hypothesis except the guilt of the Appellant.It is true that the injuries on the lips of the victim showed that the margins were clean cut and given the nature of evidence in that behalf, it cannot be said with certainty that those injuries could be taken to be the result of human bites. But the other injuries on the body of the victim were definitely by human bites and as such the absence of clarity with regard to the injuries on the lips does not render the case of the prosecution doubtful in any manner.Again, the absence of association of vaginal, cervical and anal swabs with the Appellant does not in any way diminish the strength of evidence against the Appellant.21. The circumstances proved on record are not only conclusive in nature but completely support the case of the prosecution and are consistent with only one hypothesis and that is the guilt of the Appellant. They form a chain, so complete, consistent and clear, that no room for doubt or ground arises pointing towards innocence of the Appellant. It is, therefore, established beyond any shadow of doubt that the Appellant committed the acts of rape and sexual assault upon the victim and that injury no.17 was the cause of death of the victim.22. The Appellant is thus guilty of having committed offences punishable under clauses (f), (i) and (m) of sub-section (2) of Section 376 of IPC; and also, under clauses (j) and (m) of Section 5 read with Section 6 of the POCSO Act, (as it stood before it was amended by Act 25 of 2019). Since according to medical opinion, the death was because of injury No.17, the Appellant is also guilty of having committed offence punishable under Section 376A of IPC.23. The injuries suffered by the victim were directly as a result of sexual assault inflicted upon her. But the medical evidence does not disclose that either before or after the commission of sexual assault, any other injury was consciously caused with the intention to extinguish the life of the victim. Injury No.17 which was the cause of death was suffered by the victim during the course of commission of sexual assault upon her.The interplay between clauses of Sections 299 and 300 of the IPC was considered by this Court in State of Andhra Pradesh vs. Rayavarapu Punnayya and Another (1976) 4 SCC 382 as under:-11. The principal question that falls to be considered in this appeal is, whether the offence disclosed by the facts and circumstances established by the prosecution against the respondent, is murder or culpable homicide not amounting to murder.12. In the scheme of the Penal Code, culpable homicide is genus and murder its specie. All murder is culpable homicide but not vice-versa. Speaking generally, culpable homicide sans special characteristics of murder, is culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree.This is the greatest form of culpable homicide, which is defined in Section 300 as murder. The second may be termed as culpable homicide of the second degree. This is punishable under the first part of Section 304. Then, there is culpable homicide of the third degree. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.13. The academic distinction between murder and culpable homicide not amounting to murder has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the intention to cause death is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offenders knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.Section 299 Section 300A person commits culpable homicide if the act by which the death is caused is done — Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done —(a)With the intention of causing death; or (1) With the intention of causing death; or(b) With the intention of causing such bodily injury as is likely to cause death; or (2) With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or(3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or(c)With the knowledge that the act is likely to cause death (4) With the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.16. In clause (3) of Section 300, instead of the words likely to cause death occurring in the corresponding clause (b) of Section 299, the words sufficient in the ordinary course of nature have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word likely in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words bodily injury … sufficient in the ordinary course of nature to cause death mean that death will be the most probable result of the injury, having regard to the ordinary course of nature.17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala AIR 1966 SC 1874 is an apt illustration of this point.18. In Virsa Singh v. State of Punjab AIR 1958 SC 465 Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause (3), thus (at p. 1500):The prosecution must prove the following facts before it can bring a case under Section 300, thirdly. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.19. Thus according to the rule laid down in Virsa Singh case AIR 1958 SC 465 of even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general — as distinguished from a particular person or persons — being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of murder contained in Section 300. If the answer to this question is in the negative the offence would be culpable homicide not amounting to murder, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304, of the Penal Code.22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.27. The guiding principles were summed up in State of Madhya Pradesh v. Ram Prasad (1968) 2 SCR 522 to the effect that even if there be no intention to cause death, if there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death clause fourthly of Section 300 IPC will get attracted and that the offender must be taken to have known that he was running the risk of causing the death or such bodily injury as was likely to cause the death of the victim. Same principle is discernible from the decision of this Court in Dattatraya Ambo Rokade v. State of Maharashtra (2019) 13 SCALE 187 . 28. Considering the age of the victim in the present case, the accused must have known the consequence that his sexual assault on a child of 2 ½ years would cause death or such bodily injury as was likely to cause her death. The instant matter thus comes within the parameters of clause fourthly to Section 300 IPC and the question posed at the beginning of the discussion on this issue must be answered against the Appellant. The Appellant is therefore guilty of having committed the offence of culpable homicide amounting to murder.29. It must be observed at this stage that the decisions of this Court referred to in paragraphs 26.1, 26.2 and 26.4 hereinabove failed to consider the effect of clause fourthly to Section 300 IPC.30. Before we turn to the submissions on sentence advanced by Ms. Mathur, learned Senior Advocate, it needs to be noted that about 67 cases were dealt with by this Court in last 40 years since the decision of this Court in Bachan Singh (1980) 2 SCC 684 , where i) the alleged offences were under Sections 376 and 302 IPC; and ii) the ages of the victims were 16 years or below. The Cases are:-Out of these 67 cases, this Court affirmed the award of death sentence to the accused in 15 cases. In three (at Sr. Nos. 26A, 33A and 41A) out of said 15 cases, the death sentence was commuted to life sentence by this Court in Review Petitions. Out of remaining 12 cases, in two cases (where Review Petitions were heard in open Court in terms of law laid down in Mohd. Arif alias Ashfaq vs. Registrar, Supreme Court of India (2014) 9 SCC 737 ) namely in cases at Sr. Nos. 51A and 65A, the death sentence was confirmed by this Court and the Review Petitions were dismissed. Thus, as on date, the death sentence stands confirmed in 12 out of 67 cases where the principal offences allegedly committed were under Sections 376 and 302 IPC and where the victims were aged about 16 years or below.Out of these 67 cases, at least in 51 cases the victims were aged below 12 years. In 12 out of those 51 cases, the death sentence was initially awarded. However, in 3 cases (at Sr. Nos. 26A, 33A and 41A) the death sentence was commuted to life sentence in Review.In 2 out of aforesaid 67 cases (at Sr. Nos. 58 and 67), the offences were committed on 23.02.2015 and 22.05.2015 respectively i.e., after the Amendment Act received the assent of the President and was published on 02.04.2013 (but given retrospective effect from 03.02.2013). The conviction was also under Section 376A of IPC and the evidence showed specific acts such as drowning the victim or throttling her. In the first case, the age of the victim was 5 years while in the second case the victim was aged 13 years. In the first case the sentence imposed by this Court was 25 years of imprisonment without remission while in the second, the life sentence for the remainder of the life of the accused, was imposed.31. We now turn to the first submission advanced by Ms. Mathur, learned Senior Advocate on the issue of sentence. Section 235 (2) of the Code mandates that the accused must be heard on sentence. In the instant case the order of sentence was made on the same day the order of conviction was pronounced. In Santa Singh v. State of Punjab (1976) 4 SCC 190 the accused was convicted and sentenced to death by one single judgment and thus a bench of two judges of this Court found that there was infraction of Section 235 (2) of the Code. The sentence of death was therefore set aside and the matter was remanded to the Sessions Court. Whether, for non-compliance of Section 235 (2) of the Code, the matter be remanded in the light of the decision in Santa Singh v. State of Punjab (1976) 4 SCC 190 was thereafter considered by a bench of three judges of this Court in Dagdu v. State of Maharashtra (1977) 3 SCC 68 . Chandrachud, CJ. who delivered the leading judgment, observed: -79. But we are unable to read the judgment in Santa Singh as laying down that the failure on the part of the Court, which convicts an accused, to hear him on the question of sentence must necessarily entail a remand to that Court in order to afford to the accused an opportunity to be heard on the question us sentence. The Court, on convicting an accused, must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open to that Court to remedy the breach by giving a hearing to the accused on the question of sentence. That opportunity has to be real and effective, which means that the accused must be permitted to adduce before the Court all the data which he desires to adduce on the question of sentence. The accused may exercise that right either by instructing his counsel to make oral submissions to the Court or he may, on affidavit or otherwise, place in writing before the Court whatever he desires to place before it on the question of sentence. The Court may, in appropriate cases, have to adjourn the matter in order to give to the accused sufficient time to produce the necessary data and to make his contentions on the question of sentence. That, perhaps, must inevitably happen where the conviction is recorded for the first time by a higher court.Goswami, J., authored a concurring opinion, the relevant part of which was quoted in B. A. Umesh v. High Court of Karnataka (2017) 4 SCC 124 . (ix) Kalu Khan v. State of Rajasthan (2015) 16 SCC 492 paras 16, 23 and 3124. In respect of award of death sentence in cases where sole basis for conviction is circumstantial evidence, this Court in Swamy Shraddananda v. State of Karnataka (2007) 12 SCC 288 para 87, has acknowledged that such cases have far greater chances of turning out to be wrongful convictions, later on, in comparison to ones which are based on fitter sources of proof. This Court cautioned that convictions based on seemingly conclusive circumstantial evidence should not be presumed as foolproof incidences and the fact that the same are based on circumstantial evidence must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability. Further, this Court observed that any characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder.25. This Court noticed certain decisions under the American death penalty jurisprudence as follows: (Swamy Shraddananda case (2007) 12 SCC 288 para 87, SCC pp. 320-21, paras 88-90)88. One of the older cases in this league dates back to 1874, Merritt v. State (1874) 52 Gs 82, where the Supreme Court of Georgia described the applicable law in Georgia as follows:By the Penal Code of this State the punishment of murder shall be death, except when the conviction is founded solely on circumstantial testimony. When the conviction is had solely on circumstantial testimony, then it is discretionary with the Presiding Judge to impose the death penalty or to sentence the defendant to imprisonment in the penitentiary for life, unless the jury … shall recommend that the defendant be imprisoned in the penitentiary for life; in that case the Presiding Judge has no discretion, but is bound to commute the punishment from death to imprisonment for life in the penitentiary.89. Later case of Jackson v. State 74 Ala 26 (1883), Ala at pp. 29-30 followed the aforementioned case. [Also see S.M. Phillipps, Famous Cases of Circumstantial Evidence with an Introduction on the Theory of Presumptive Proof, 50-52 (1875).]90. In United States v. Quinones 205 F Supp. 2d 256 (SDNY 2002), F Supp 2d at p. 267 the Court remarked:Many States that allow the death penalty permit a conviction based solely on circumstantial evidence only if such evidence excludes to a moral certainty every other reasonable inference except guilt.26. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 , all the accused persons including the appellant were unemployed young men in search of employment. In execution of a plan proposed by the appellant and accepted by them, they kidnapped their friend with the motive of procuring ransom from his family but later murdered him and after cutting his body into pieces disposed of the same at different places. One of the accused persons turned approver and the prosecution case was based entirely on his evidence. The trial court awarded death sentence to the appellant. The High Court confirmed the death sentence. In appeal, this Court observed that punishment cannot be determined on grounds of proportionality alone. This Court observed that though there was nothing to show that the appellant could not be reformed and rehabilitated and the manner and method of disposal of the dead body of the deceased reflected most foul and despicable case of murder, mere mode of disposal of the dead body may not by itself be made the ground for inclusion of a case in the rarest of rare category for the purpose of imposition of death sentence. Other factors require to be considered along with the aforesaid. This Court was of the view that the fact that the prosecution case rested on the evidence of the approver, will have to be kept in mind. Further, that where the death sentence is to be imposed on the basis of circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case. It was further observed that the discretion given to the court in such cases assumes onerous importance and its exercise becomes extremely difficult because of the irrevocable character of death penalty. Where two views ordinarily could be taken, imposition of death sentence would not be appropriate. In the circumstances, the death sentence was converted to life imprisonment.30. In Mahesh Dhanaji Shinde v. State of Maharashtra (2014) 4 SCC 292 , the conviction of the appellant-accused was upheld keeping in view that the circumstantial evidence pointed only in the direction of their guilt given that the modus operandi of the crime, homicidal death, identity of 9 of 10 victims, last seen theory and other incriminating circumstances were proved. However, the Court has thought it fit to commute the sentence of death to imprisonment for life considering the age, socio-economic conditions, custodial behaviour of the appellant-accused persons and that the case was entirely based on circumstantial evidence……31. In the instant case, admittedly the entire web of evidence is circumstantial. The appellant-accuseds culpability rests on various independent evidence, such as, him being last seen with the deceased before she went missing; the extra-judicial confession of his coaccused before PW 1 and the village members; corroborative testimonies of the said village members to the extra-judicial confession and recovery of the deceaseds body; coupled with the medical evidence which when joined together paint him in the blood of the deceased. While the said evidence proves the guilt of the appellant-accused and makes this a fit case for conviction, it does not sufficiently convince the judicial mind to entirely foreclose the option of a sentence lesser than the death penalty. Even though there are no missing links in the chain, the evidence also does not sufficiently provide any direct indicia whereby irrefutable conclusions can be drawn with regard to the nexus between the crime and the criminal. Undoubtedly, the aggravating circumstances reflected through the nature of the crime and young age of the victim make the crime socially abhorrent and demand harsh punishment. However, there exist the circumstances such as there being no criminal antecedents of the appellant-accused and the entire case having been rested on circumstantial evidence including the extra-judicial confession of a co-accused. These factors impregnate the balance of circumstances and introduce uncertainty in the culpability calculus and thus, persuade us that death penalty is not an inescapable conclusion in the instant case. We are inclined to conclude that in the present scenario an alternate to the death penalty, that is, imprisonment for life would be appropriate punishment in the present circumstances.32. In our considered view, in the impugned judgment and order, the High Court has rightly noticed that life and death are acts of the divine and the divines authority has been delegated to the human courts of law to be only exercised in exceptional circumstances with utmost caution. Further, that the first and foremost effort of the Court should be to continue the life till its natural end and the delegated divine authority should be exercised only after arriving at a conclusion that no other punishment but for death will serve the ends of justice. We have critically appreciated the entire evidence in its minutest detail and are of the considered opinion that the present case does not warrant award of the extreme sentence of death to the appellant-accused and the sentence of life imprisonment would be adequate and meet the ends of justice. We are of the opinion that the four main objectives which the State intends to achieve, namely, deterrence, prevention, retribution and reformation can be achieved by sentencing the appellant-accused for life.40. These cases discussed in preceding paragraphs show that though it is accepted that the observations in Swamy Shraddananda (2) (2008) 13 SCC 767 did not lay down any firm principle that in a case involving circumstantial evidence, imposition of death penalty would not be permissible, a definite line of thought that where the sentence of death is to be imposed on the basis of circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case was accepted by a bench of three Judges of this Court in Kalu Khan (2015) 16 SCC 492 paras 16, 23 and 31 . As a matter of fact, it accepted the caution expressed by Sinha J. in Swamy Shraddananda vs. State of Karnataka (2007) 12 SCC 288 para 87 and the conclusions in Santosh Kumar Satishbhushan Bariyar (2009) 6 SCC 498 to restate the principles with clarity in its decision.41. It can therefore be summed up :- | 1 | 42,022 | 7,846 | ### Instruction:
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based on circumstantial evidence in our jurisprudence, the standard that is adopted in terms of law laid down by this Court as noticed in Sharad Birdhichand Sarda (1984) 4 SCC 116 and subsequent decisions is that the circumstances must not only be individually proved or established, but they must form a consistent chain, so conclusive as to rule out the possibility of any other hypothesis except the guilt of the accused. On the strength of these principles, the burden in such cases is already of a greater magnitude. Once that burden is discharged, it is implicit that any other hypothesis or the innocence of the accused, already stands ruled out when the matter is taken up at the stage of sentence after returning the finding of guilt. So, theoretically the concept or theory of residual doubt does not have any place in a case based on circumstantial evidence. As a matter of fact, the theory of residual doubt was never accepted by US Supreme Court as discussed earlier. However, as summed up in Kalu Khan (2015) 16 SCC 492 paras 16, 23 and 31 , while dealing with cases based on circumstantial evidence, for imposition of a death sentence, higher or stricter standard must be insisted upon. The approach to be adopted in matters concerning capital punishment, therefore ought to be in conformity with the principles culled out in paragraph 41 hereinabove and the instant matter must therefore be considered in the light of those principles. 53. If the present case is so considered, the discussion must broadly be classified under following two heads: - (A) Whether the circumstantial evidence in the present case is of unimpeachable character in establishing the guilt of the Appellant or leads to an exceptional case. (B) Whether the evidence on record is so strong and convincing that the option of a sentence lesser than a death penalty is foreclosed. Going by the circumstances proved on record and, more particularly the facets detailed in paragraph 19 hereinabove as well as the law laid down by this Court in series of decisions, the circumstances on record rule out any hypothesis of innocence of the Appellant. The circumstances are clear, consistent and conclusive in nature and are of unimpeachable character in establishing the guilt of the Appellant. The evidence on record also depicts an exceptional case where two and half years old girl was subjected to sexual assault. The assault was accompanied by bites on the body of the victim. The rape was of such intensity that there was merging of vaginal and anal orifices of the victim. The age of the victim, the fact that the Appellant was a maternal uncle of the victim and the intensity of the assault make the present case an exceptional one. However, if the case is considered against the second head, we do not find that the option of a sentence lesser than death penalty is completely foreclosed. It is true that the sexual assault was very severe and the conduct of the Appellant could be termed as perverse and barbaric. However, a definite pointer in favour of the Appellant is the fact that he did not consciously cause any injury with the intent to extinguish the life of the victim. Though all the injuries are attributable to him and it was injury No.17 which was the cause of death, his conviction under Section 302 IPC is not under any of the first three clauses of Section 300 IPC. In matters where the conviction is recorded with the aid of clause fourthly under Section 300 of IPC, it is very rare that the death sentence is awarded. In cases at Serial Nos. 10, 11, 16, 24, 40, 45 and 64 of the Chart tabulated in paragraph 30 hereinabove, where the victims were below 16 years of age and had died during the course of sexual assault on them, the maximum sentence awarded was life sentence. This aspect is of crucial importance while considering whether the option of a sentence lesser than death penalty is foreclosed or not. 54. We therefore, find that though the Appellant is guilty of the offence punishable under Section 302 IPC, since there was no requisite intent as would bring the case under any of the first three clauses of Section 300 IPC, the offence in the present case does not deserve death penalty. 55. The second count on which death sentence has been imposed is under Section 376A of IPC. As noted earlier, the offence was committed on 11.02.2013 and just few days before such commission, Section 376A was inserted in IPC by the Ordinance. As concluded by us in paragraph 16 hereinabove, the ex-post facto effect given to Section 376A inserted by the Amendment Act would not in any way be inconsistent with sub-Article (1) of Article 20 of the Constitution. The Appellant is thus definitely guilty of the offence punishable under Section 376A IPC. But the question remains whether punishment lesser than death sentence gets ruled out or not. As against Section 302 IPC while dealing with cases under Section 376A IPC, a wider spectrum is available for consideration by the Courts as to the punishment to be awarded. On the basis of the same aspects that weighed with us while considering the appropriate punishment for the offence under Section 302 IPC, in view of the fact that Section 376A IPC was brought on the statute book just few days before the commission of the offence, the Appellant does not deserve death penalty for said offence. At the same time, considering the nature and enormity of the offence, it must be observed that the appropriate punishment for the offence under Section 376A IPC must be rigorous imprisonment for a term of 25 years. 56. In view of the aforestated conclusions drawn by us, it is not necessary to deal with the submissions IV, V, VI, VII, VIII and IX, advanced by Ms. Mathur, learned Senior Advocate in respect of the issue of sentence.
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men in search of employment. In execution of a plan proposed by the appellant and accepted by them, they kidnapped their friend with the motive of procuring ransom from his family but later murdered him and after cutting his body into pieces disposed of the same at different places. One of the accused persons turned approver and the prosecution case was based entirely on his evidence. The trial court awarded death sentence to the appellant. The High Court confirmed the death sentence. In appeal, this Court observed that punishment cannot be determined on grounds of proportionality alone. This Court observed that though there was nothing to show that the appellant could not be reformed and rehabilitated and the manner and method of disposal of the dead body of the deceased reflected most foul and despicable case of murder, mere mode of disposal of the dead body may not by itself be made the ground for inclusion of a case in the rarest of rare category for the purpose of imposition of death sentence. Other factors require to be considered along with the aforesaid. This Court was of the view that the fact that the prosecution case rested on the evidence of the approver, will have to be kept in mind. Further, that where the death sentence is to be imposed on the basis of circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case. It was further observed that the discretion given to the court in such cases assumes onerous importance and its exercise becomes extremely difficult because of the irrevocable character of death penalty. Where two views ordinarily could be taken, imposition of death sentence would not be appropriate. In the circumstances, the death sentence was converted to life imprisonment.30. In Mahesh Dhanaji Shinde v. State of Maharashtra (2014) 4 SCC 292 , the conviction of the appellant-accused was upheld keeping in view that the circumstantial evidence pointed only in the direction of their guilt given that the modus operandi of the crime, homicidal death, identity of 9 of 10 victims, last seen theory and other incriminating circumstances were proved. However, the Court has thought it fit to commute the sentence of death to imprisonment for life considering the age, socio-economic conditions, custodial behaviour of the appellant-accused persons and that the case was entirely based on circumstantial evidence……31. In the instant case, admittedly the entire web of evidence is circumstantial. The appellant-accuseds culpability rests on various independent evidence, such as, him being last seen with the deceased before she went missing; the extra-judicial confession of his coaccused before PW 1 and the village members; corroborative testimonies of the said village members to the extra-judicial confession and recovery of the deceaseds body; coupled with the medical evidence which when joined together paint him in the blood of the deceased. While the said evidence proves the guilt of the appellant-accused and makes this a fit case for conviction, it does not sufficiently convince the judicial mind to entirely foreclose the option of a sentence lesser than the death penalty. Even though there are no missing links in the chain, the evidence also does not sufficiently provide any direct indicia whereby irrefutable conclusions can be drawn with regard to the nexus between the crime and the criminal. Undoubtedly, the aggravating circumstances reflected through the nature of the crime and young age of the victim make the crime socially abhorrent and demand harsh punishment. However, there exist the circumstances such as there being no criminal antecedents of the appellant-accused and the entire case having been rested on circumstantial evidence including the extra-judicial confession of a co-accused. These factors impregnate the balance of circumstances and introduce uncertainty in the culpability calculus and thus, persuade us that death penalty is not an inescapable conclusion in the instant case. We are inclined to conclude that in the present scenario an alternate to the death penalty, that is, imprisonment for life would be appropriate punishment in the present circumstances.32. In our considered view, in the impugned judgment and order, the High Court has rightly noticed that life and death are acts of the divine and the divines authority has been delegated to the human courts of law to be only exercised in exceptional circumstances with utmost caution. Further, that the first and foremost effort of the Court should be to continue the life till its natural end and the delegated divine authority should be exercised only after arriving at a conclusion that no other punishment but for death will serve the ends of justice. We have critically appreciated the entire evidence in its minutest detail and are of the considered opinion that the present case does not warrant award of the extreme sentence of death to the appellant-accused and the sentence of life imprisonment would be adequate and meet the ends of justice. We are of the opinion that the four main objectives which the State intends to achieve, namely, deterrence, prevention, retribution and reformation can be achieved by sentencing the appellant-accused for life.40. These cases discussed in preceding paragraphs show that though it is accepted that the observations in Swamy Shraddananda (2) (2008) 13 SCC 767 did not lay down any firm principle that in a case involving circumstantial evidence, imposition of death penalty would not be permissible, a definite line of thought that where the sentence of death is to be imposed on the basis of circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case was accepted by a bench of three Judges of this Court in Kalu Khan (2015) 16 SCC 492 paras 16, 23 and 31 . As a matter of fact, it accepted the caution expressed by Sinha J. in Swamy Shraddananda vs. State of Karnataka (2007) 12 SCC 288 para 87 and the conclusions in Santosh Kumar Satishbhushan Bariyar (2009) 6 SCC 498 to restate the principles with clarity in its decision.41. It can therefore be summed up :-
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Jaswant Singh Saluja & Another Vs. Chief Settlement Commissioner, New Delhi & Another | Hegde, J.1. The appellants and their deceased father S. Bhagat Singh Saluja were originally residents of Wazirabad District which is now in Pakistan. At about the time of partition of the country, they migrated to India. In pursuance of a notification under S. 5 of the Displaced Persons (Claims) Act, 1950 they filed a claim for Rs. 1,63,500/- in respect of 10 items of immovable property left by them in Pakistan, out of which 9 were in the town of Wazirabad and one was in the village Mangat Tehsil. Their claim was duly verified and accepted by the Claims Officer. Thereafter on February 15, 1955, the appellants received from respondent No. 2 a notice requiring them to appear before him on February 25, 1955 in connection with the proposed revision of their claim under the suo motu powers given under S. 5 of the Displaced Persons (Claims) Supplementary Act, 1954. In the notice the appellants were not informed the grounds on which the revision was sought to be made. When the 1st appellant appeared before Respondent No. 2 on February 25 1955, he examined him and recorded his statement and thereafter on February 26 1955-the very next day-respondent No. 1 served an order on the appellants reducing the value of their property and fixing the same at Rupees 58,165/-.2. The appellants challenged this order by means of a writ petition in the High Court of Punjab. The main ground taken in the writ petition was that the appellants had not been given adequate opportunity to show cause against the proposed revision of their claim The learned single Judge who heard the writ petition dismissed the same holding that the first appellant being an advocate, the opportunity given to him must be considered as adequate. The other grounds taken on behalf of the appellants were also rejected. The Letters Patent Appeal taken by the appellants was also dismissed. Thereafter the present appeal has been brought after obtaining special leave from this Court.3. The principal question that falls for decision in this appeal is whether the appellants had been given adequate opportunity to show cause against the proposed revision of the value of the property fixed by the Claims Officer. It may be noted that the Claims Officers valuation had become final. If the authorities wanted to suo motu revise that order, the appellants should have been given a reasonable opportunity to show cause against the proposed revision. The appellants should have been informed the grounds on which the valuation was sought to be revised and they should have been also informed about the material in possession of the authorities justifying revision of the valuation earlier made. The notice issued to the appellants was a bald one. It merely called upon the appellants to appear before respondent No. 2 in connection with the proposed suo motu revision; the first appellant when he appeared before respondent No. 2 was not informed the grounds on which the latter proposed to revise the valuation made by the Claims Officer; nor was he called upon to produce documents or oral evidence in support of his claim. It is clear from the material on record that the appellants had not been given reasonable opportunity to show cause against the proposed revision of the valuation. The mere fact that the first appellant is an advocate cannot cure all these defects. Even an advocate could not have divined what was passing in the mind of respondent No. 2 unless the appellants had been informed the grounds on which the revision of the valuation was sought to be made. They might have showed cause against the proposed revision and possibly placed material before respondent No. 2 to show that the impression gathered by him was not correct. Quite clearly the procedure adopted by respondent No. 2 was opposed to the principles of natural justice. To say the least it was arbitrary. | 1[ds]If the authorities wanted to suo motu revise that order, the appellants should have been given a reasonable opportunity to show cause against the proposed revision. The appellants should have been informed the grounds on which the valuation was sought to be revised and they should have been also informed about the material in possession of the authorities justifying revision of the valuation earlier made. The notice issued to the appellants was a bald one. It merely called upon the appellants to appear before respondent No. 2 in connection with the proposed suo motu revision; the first appellant when he appeared before respondent No. 2 was not informed the grounds on which the latter proposed to revise the valuation made by the Claims Officer; nor was he called upon to produce documents or oral evidence in support of his claim. It is clear from the material on record that the appellants had not been given reasonable opportunity to show cause against the proposed revision of the valuation. The mere fact that the first appellant is an advocate cannot cure all these defects. Even an advocate could not have divined what was passing in the mind of respondent No. 2 unless the appellants had been informed the grounds on which the revision of the valuation was sought to be made. They might have showed cause against the proposed revision and possibly placed material before respondent No. 2 to show that the impression gathered by him was not correct. Quite clearly the procedure adopted by respondent No. 2 was opposed to the principles of natural justice. To say the least it was arbitrary. | 1 | 703 | 294 | ### 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:
Hegde, J.1. The appellants and their deceased father S. Bhagat Singh Saluja were originally residents of Wazirabad District which is now in Pakistan. At about the time of partition of the country, they migrated to India. In pursuance of a notification under S. 5 of the Displaced Persons (Claims) Act, 1950 they filed a claim for Rs. 1,63,500/- in respect of 10 items of immovable property left by them in Pakistan, out of which 9 were in the town of Wazirabad and one was in the village Mangat Tehsil. Their claim was duly verified and accepted by the Claims Officer. Thereafter on February 15, 1955, the appellants received from respondent No. 2 a notice requiring them to appear before him on February 25, 1955 in connection with the proposed revision of their claim under the suo motu powers given under S. 5 of the Displaced Persons (Claims) Supplementary Act, 1954. In the notice the appellants were not informed the grounds on which the revision was sought to be made. When the 1st appellant appeared before Respondent No. 2 on February 25 1955, he examined him and recorded his statement and thereafter on February 26 1955-the very next day-respondent No. 1 served an order on the appellants reducing the value of their property and fixing the same at Rupees 58,165/-.2. The appellants challenged this order by means of a writ petition in the High Court of Punjab. The main ground taken in the writ petition was that the appellants had not been given adequate opportunity to show cause against the proposed revision of their claim The learned single Judge who heard the writ petition dismissed the same holding that the first appellant being an advocate, the opportunity given to him must be considered as adequate. The other grounds taken on behalf of the appellants were also rejected. The Letters Patent Appeal taken by the appellants was also dismissed. Thereafter the present appeal has been brought after obtaining special leave from this Court.3. The principal question that falls for decision in this appeal is whether the appellants had been given adequate opportunity to show cause against the proposed revision of the value of the property fixed by the Claims Officer. It may be noted that the Claims Officers valuation had become final. If the authorities wanted to suo motu revise that order, the appellants should have been given a reasonable opportunity to show cause against the proposed revision. The appellants should have been informed the grounds on which the valuation was sought to be revised and they should have been also informed about the material in possession of the authorities justifying revision of the valuation earlier made. The notice issued to the appellants was a bald one. It merely called upon the appellants to appear before respondent No. 2 in connection with the proposed suo motu revision; the first appellant when he appeared before respondent No. 2 was not informed the grounds on which the latter proposed to revise the valuation made by the Claims Officer; nor was he called upon to produce documents or oral evidence in support of his claim. It is clear from the material on record that the appellants had not been given reasonable opportunity to show cause against the proposed revision of the valuation. The mere fact that the first appellant is an advocate cannot cure all these defects. Even an advocate could not have divined what was passing in the mind of respondent No. 2 unless the appellants had been informed the grounds on which the revision of the valuation was sought to be made. They might have showed cause against the proposed revision and possibly placed material before respondent No. 2 to show that the impression gathered by him was not correct. Quite clearly the procedure adopted by respondent No. 2 was opposed to the principles of natural justice. To say the least it was arbitrary.
### Response:
1
### Explanation:
If the authorities wanted to suo motu revise that order, the appellants should have been given a reasonable opportunity to show cause against the proposed revision. The appellants should have been informed the grounds on which the valuation was sought to be revised and they should have been also informed about the material in possession of the authorities justifying revision of the valuation earlier made. The notice issued to the appellants was a bald one. It merely called upon the appellants to appear before respondent No. 2 in connection with the proposed suo motu revision; the first appellant when he appeared before respondent No. 2 was not informed the grounds on which the latter proposed to revise the valuation made by the Claims Officer; nor was he called upon to produce documents or oral evidence in support of his claim. It is clear from the material on record that the appellants had not been given reasonable opportunity to show cause against the proposed revision of the valuation. The mere fact that the first appellant is an advocate cannot cure all these defects. Even an advocate could not have divined what was passing in the mind of respondent No. 2 unless the appellants had been informed the grounds on which the revision of the valuation was sought to be made. They might have showed cause against the proposed revision and possibly placed material before respondent No. 2 to show that the impression gathered by him was not correct. Quite clearly the procedure adopted by respondent No. 2 was opposed to the principles of natural justice. To say the least it was arbitrary.
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Bharat Beedi Works Private Limited and Anothers Vs. Commissioner of Income Tax | of member, as the case may be, has a substantial interest in the business or profession of the assessee. In short, the net is cast very wide to ensure that excessive or unreasonable payments are not made to the persons in control of the affairs of the assessee in the name of paying for the goods, services and facilities rendered, supplied or extended by them, as the case may be13. That the payments made by the assessee-company to the firm on account of royalty in terms of clause (4) (a) of the agreement fall within the meaning of the expression expenditure in sub-clause (i) of clause (c) is not disputed. The observations in CIT v. Indian Engineering and Commercial Corpn. (P) Ltd. ( 1993 (3) SCC 246 : 1993 (2) JT 683) do not say otherwise. That case arose under section 40-A(5). The payments in question were made to the directors by way of commission on sales. The question was whether the said payments fell within sub-clause (ii) of clause (a) of sub-section (5) of Section 40-A. It was held that they did not. While holding so it was observed that "it is difficult to say that payment of a certain cash amount by way of commission on sales, directly to an employee, can be said to fall within the Revenues argument that the said payment constituted perquisites within the meaning of sub-clause (ii) of clause (a) of Section 40-A(5). The observations are clearly confined to the said sub-clause and have no relevance to any other provision in the Act. The observations cannot be read dissociated from their context. Coming back to the provisions of Section 40(c) and the facts of the case before us, the only question is whether the royalty payments to the firm fell within clause (c). We assume for the purpose of this argument that in this case, payments to firm were payments to partners. Even so, we think that the said payments did not fall within clause (c). The payments were made in consideration of a valuable right parted by the firm/partners/directors/ of the assessee-company in favour of the assessee. so long as the agreement whereunder the said payments were made is not held to be a mere device or a mere screen, the said payments cannot be treated as payments made to the directors as directors (qua directors).The payments were made by way of consideration for allowing the assessee to use a valuable right belonging to them viz., the brand name. Such a payment may be liable to be scrutinised under sub-section (2) of section 40-A, but it certainly did not fall within the four corners of Section 40(c)14. In T. T. (P) Ltd. v. ITO ( 1980 (121) ITR 551 (Kant)) a bench of Karnataka High Court comprising D. M. Chandrashekhar, C.J. and E. S. Venkataramiah, J. has taken a view which accords with the one taken by us. Speaking for the Bench, E. S. Venkataramiah, J. (as he then was) observed; "A close reading of the above provision shows that Section 40(c) refers to an expenditure incurred by making periodical payments to a person mentioned in that clause apparently for any personal service that may be rendered by him. It cannot have any reference to payments made by the assessee for all kinds of services or facilities referred to in Section 40-a(2)(a). It is argued that the proviso thereto suggests that any expenditure incurred for any kind of service which is referred to in the main part of section 40-A(2)(a) and the expenditure referred to in Section 40(c) belong to the same category. This contention is not correct. The expression services in section 40-A(2)(a) is an expression of wider importIf the remuneration, benefit or amenity referred to in Section 40(c) is treated as the same as what is paid in return for the goods, services or facilities then irrespective of the fair market value of the goods, services and facilities provided by a person who may be a director or a person who has a substantial interest in the company or a relative of the director or of such person, as the case may be, only a maximum of Rs. 72, 000 can be allowed to be deducted in computing the income of the company in any one year. We do not think that Parliament ever intended that such a result should follow. The goods, services and facilities referred to in Section 40-A(2)(a) are those which have a market value and which are commercial in character. Many of the services and facilities referred to above are those which are nowadays provided by independent organisations." * 15. The said decision has been followed by the Punjab and Haryana High court in CIT v. Avon Cycles (P) Ltd. ( 1980 (126) ITR 448 : 1980 TaxLR 148 (P&H HC)) The Calcutta High Court has also taken a similar view in India Jute Co. Ltd. v. CIT ( 1989 (178) ITR 649 (CAl) 16. Mr. Ahuja, learned counsel for the Revenue submitted that the argument of the assessee that only the payments made to directors as directors fall within clause(c) and not the other payments, becomes inapt when the payments are made to the relatives of the directors or to persons holding substantial interest in the assessee-company or their relatives. The ceiling prescribed in clause (c) cannot also be applied to such persons - says the counsel. The answer perhaps lies in the clause itself-in the power vested in the ITO to determine whether any expenditure or allowance is excessive or unreasonable having regard to the legitimate business needs of the company and the benefit derived by the assessee or accruing therefrom. Any payment to a relative of a director or other persons mentioned in clause(c) will necessarily be examined applying the above test and if it is found that they are unwarranted, unreasonable or excessive, they will be disallowed. Since such a situation does not arise herein, we need not pursue the argument further | 1[ds]11. The object behind the provision undoubtedly was to discourage and disallow "payment of high salaries and remunerations which go ill with the norms of egalitarian society". The provision was, of course, not confined to the directors. It took in relatives of directors, persons having substantial interest in the company and their relatives. The clause vested in the ITO the power to determine whether any such expenditure or allowances as is mentioned in the said clause was excessive or unreasonable having regard to the legitimate business needs of the company and the benefit derived by or accruing to it therefrom. In addition to it, a ceiling was also prescribed beyond which such expenditure or allowance could not go in any event12. At this juncture, it would be appropriate to notice the provision contained in sub-section (2) of Section 40-A. Clause (a) of sub-section (2) provides that where the assessee incurs any expenditure in respect of which payment has been made or is to be made to any person referred to in clause (b) of the sub-section, and the Income Tax Officer is of the opinion that such expenditure is excessive or unreasonable having regard to the fair market value of the goods, services or facilities for which the payment is made or the legitimate needs of the business or profession of the assessee or the benefit derived by or accruing to him therefrom, so much of the expenditure as is so considered by him to be excessive or unreasonable shall not be allowed as deduction. Clause (b) mentions the categories of persons to whom the provision in Clause (a) applies. It includes directors of the company and their relatives among others. Clause (b) also takes in any payment to any company, fire, association of persons or Hindu undivided family of which a director, partner of member, as the case may be, has a substantial interest in the business or profession of the assessee. In short, the net is cast very wide to ensure that excessive or unreasonable payments are not made to the persons in control of the affairs of the assessee in the name of paying for the goods, services and facilities rendered, supplied or extended by them, as the case may be13. That the payments made by the assessee-company to the firm on account of royalty in terms of clause (4) (a) of the agreement fall within the meaning of the expression expenditure in sub-clause (i) of clause (c) is not disputed. The observations in CIT v. Indian Engineering and Commercial Corpn. (P) Ltd. ( 1993 (3) SCC 246 : 1993 (2) JT 683) do not say otherwise. That case arose under section 40-A(5). The payments in question were made to the directors by way of commission on sales. The question was whether the said payments fell within sub-clause (ii) of clause (a) of sub-section (5) of Section 40-A. It was held that they did not. While holding so it was observed that "it is difficult to say that payment of a certain cash amount by way of commission on sales, directly to an employee, can be said to fall within the Revenues argument that the said payment constituted perquisites within the meaning of sub-clause (ii) of clause (a) of Section 40-A(5). The observations are clearly confined to the said sub-clause and have no relevance to any other provision in the Act. The observations cannot be read dissociated from their context. Coming back to the provisions of Section 40(c) and the facts of the case before us, the only question is whether the royalty payments to the firm fell within clause (c). We assume for the purpose of this argument that in this case, payments to firm were payments to partners. Even so, we think that the said payments did not fall within clause (c). The payments were made in consideration of a valuable right parted by the firm/partners/directors/ of the assessee-company in favour of the assessee. so long as the agreement whereunder the said payments were made is not held to be a mere device or a mere screen, the said payments cannot be treated as payments made to the directors as directors (qua directors).The payments were made by way of consideration for allowing the assessee to use a valuable right belonging to them viz., the brand name. Such a payment may be liable to be scrutinised under sub-section (2) of section 40-A, but it certainly did not fall within the four corners of Section 40(c)14. In T. T. (P) Ltd. v. ITO ( 1980 (121) ITR 551 (Kant)) a bench of Karnataka High Court comprising D. M. Chandrashekhar, C.J. and E. S. Venkataramiah, J. has taken a view which accords with the one taken by us. Speaking for the Bench, E. S. Venkataramiah, J. (as he then was)close reading of the above provision shows that Section 40(c) refers to an expenditure incurred by making periodical payments to a person mentioned in that clause apparently for any personal service that may be rendered by him. It cannot have any reference to payments made by the assessee for all kinds of services or facilities referred to in Section 40-a(2)(a). It is argued that the proviso thereto suggests that any expenditure incurred for any kind of service which is referred to in the main part of section 40-A(2)(a) and the expenditure referred to in Section 40(c) belong to the same category. This contention is not correct. The expression services in section 40-A(2)(a) is an expression of wider importIf the remuneration, benefit or amenity referred to in Section 40(c) is treated as the same as what is paid in return for the goods, services or facilities then irrespective of the fair market value of the goods, services and facilities provided by a person who may be a director or a person who has a substantial interest in the company or a relative of the director or of such person, as the case may be, only a maximum of Rs. 72, 000 can be allowed to be deducted in computing the income of the company in any one year. We do not think that Parliament ever intended that such a result should follow. The goods, services and facilities referred to in Section 40-A(2)(a) are those which have a market value and which are commercial in character. Many of the services and facilities referred to above are those which are nowadays provided by independent organisations."The said decision has been followed by the Punjab and Haryana High court in CIT v. Avon Cycles (P) Ltd. ( 1980 (126) ITR 448 : 1980 TaxLR 148 (P&H HC)) The Calcutta High Court has also taken a similar view in India Jute Co. Ltd. v. CIT ( 1989 (178) ITR 649 answer perhaps lies in the clause itself-in the power vested in the ITO to determine whether any expenditure or allowance is excessive or unreasonable having regard to the legitimate business needs of the company and the benefit derived by the assessee or accruing therefrom. Any payment to a relative of a director or other persons mentioned in clause(c) will necessarily be examined applying the above test and if it is found that they are unwarranted, unreasonable or excessive, they will be disallowed. Since such a situation does not arise herein, we need not pursue the argument further | 1 | 3,466 | 1,433 | ### 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:
of member, as the case may be, has a substantial interest in the business or profession of the assessee. In short, the net is cast very wide to ensure that excessive or unreasonable payments are not made to the persons in control of the affairs of the assessee in the name of paying for the goods, services and facilities rendered, supplied or extended by them, as the case may be13. That the payments made by the assessee-company to the firm on account of royalty in terms of clause (4) (a) of the agreement fall within the meaning of the expression expenditure in sub-clause (i) of clause (c) is not disputed. The observations in CIT v. Indian Engineering and Commercial Corpn. (P) Ltd. ( 1993 (3) SCC 246 : 1993 (2) JT 683) do not say otherwise. That case arose under section 40-A(5). The payments in question were made to the directors by way of commission on sales. The question was whether the said payments fell within sub-clause (ii) of clause (a) of sub-section (5) of Section 40-A. It was held that they did not. While holding so it was observed that "it is difficult to say that payment of a certain cash amount by way of commission on sales, directly to an employee, can be said to fall within the Revenues argument that the said payment constituted perquisites within the meaning of sub-clause (ii) of clause (a) of Section 40-A(5). The observations are clearly confined to the said sub-clause and have no relevance to any other provision in the Act. The observations cannot be read dissociated from their context. Coming back to the provisions of Section 40(c) and the facts of the case before us, the only question is whether the royalty payments to the firm fell within clause (c). We assume for the purpose of this argument that in this case, payments to firm were payments to partners. Even so, we think that the said payments did not fall within clause (c). The payments were made in consideration of a valuable right parted by the firm/partners/directors/ of the assessee-company in favour of the assessee. so long as the agreement whereunder the said payments were made is not held to be a mere device or a mere screen, the said payments cannot be treated as payments made to the directors as directors (qua directors).The payments were made by way of consideration for allowing the assessee to use a valuable right belonging to them viz., the brand name. Such a payment may be liable to be scrutinised under sub-section (2) of section 40-A, but it certainly did not fall within the four corners of Section 40(c)14. In T. T. (P) Ltd. v. ITO ( 1980 (121) ITR 551 (Kant)) a bench of Karnataka High Court comprising D. M. Chandrashekhar, C.J. and E. S. Venkataramiah, J. has taken a view which accords with the one taken by us. Speaking for the Bench, E. S. Venkataramiah, J. (as he then was) observed; "A close reading of the above provision shows that Section 40(c) refers to an expenditure incurred by making periodical payments to a person mentioned in that clause apparently for any personal service that may be rendered by him. It cannot have any reference to payments made by the assessee for all kinds of services or facilities referred to in Section 40-a(2)(a). It is argued that the proviso thereto suggests that any expenditure incurred for any kind of service which is referred to in the main part of section 40-A(2)(a) and the expenditure referred to in Section 40(c) belong to the same category. This contention is not correct. The expression services in section 40-A(2)(a) is an expression of wider importIf the remuneration, benefit or amenity referred to in Section 40(c) is treated as the same as what is paid in return for the goods, services or facilities then irrespective of the fair market value of the goods, services and facilities provided by a person who may be a director or a person who has a substantial interest in the company or a relative of the director or of such person, as the case may be, only a maximum of Rs. 72, 000 can be allowed to be deducted in computing the income of the company in any one year. We do not think that Parliament ever intended that such a result should follow. The goods, services and facilities referred to in Section 40-A(2)(a) are those which have a market value and which are commercial in character. Many of the services and facilities referred to above are those which are nowadays provided by independent organisations." * 15. The said decision has been followed by the Punjab and Haryana High court in CIT v. Avon Cycles (P) Ltd. ( 1980 (126) ITR 448 : 1980 TaxLR 148 (P&H HC)) The Calcutta High Court has also taken a similar view in India Jute Co. Ltd. v. CIT ( 1989 (178) ITR 649 (CAl) 16. Mr. Ahuja, learned counsel for the Revenue submitted that the argument of the assessee that only the payments made to directors as directors fall within clause(c) and not the other payments, becomes inapt when the payments are made to the relatives of the directors or to persons holding substantial interest in the assessee-company or their relatives. The ceiling prescribed in clause (c) cannot also be applied to such persons - says the counsel. The answer perhaps lies in the clause itself-in the power vested in the ITO to determine whether any expenditure or allowance is excessive or unreasonable having regard to the legitimate business needs of the company and the benefit derived by the assessee or accruing therefrom. Any payment to a relative of a director or other persons mentioned in clause(c) will necessarily be examined applying the above test and if it is found that they are unwarranted, unreasonable or excessive, they will be disallowed. Since such a situation does not arise herein, we need not pursue the argument further
### Response:
1
### Explanation:
assessee or the benefit derived by or accruing to him therefrom, so much of the expenditure as is so considered by him to be excessive or unreasonable shall not be allowed as deduction. Clause (b) mentions the categories of persons to whom the provision in Clause (a) applies. It includes directors of the company and their relatives among others. Clause (b) also takes in any payment to any company, fire, association of persons or Hindu undivided family of which a director, partner of member, as the case may be, has a substantial interest in the business or profession of the assessee. In short, the net is cast very wide to ensure that excessive or unreasonable payments are not made to the persons in control of the affairs of the assessee in the name of paying for the goods, services and facilities rendered, supplied or extended by them, as the case may be13. That the payments made by the assessee-company to the firm on account of royalty in terms of clause (4) (a) of the agreement fall within the meaning of the expression expenditure in sub-clause (i) of clause (c) is not disputed. The observations in CIT v. Indian Engineering and Commercial Corpn. (P) Ltd. ( 1993 (3) SCC 246 : 1993 (2) JT 683) do not say otherwise. That case arose under section 40-A(5). The payments in question were made to the directors by way of commission on sales. The question was whether the said payments fell within sub-clause (ii) of clause (a) of sub-section (5) of Section 40-A. It was held that they did not. While holding so it was observed that "it is difficult to say that payment of a certain cash amount by way of commission on sales, directly to an employee, can be said to fall within the Revenues argument that the said payment constituted perquisites within the meaning of sub-clause (ii) of clause (a) of Section 40-A(5). The observations are clearly confined to the said sub-clause and have no relevance to any other provision in the Act. The observations cannot be read dissociated from their context. Coming back to the provisions of Section 40(c) and the facts of the case before us, the only question is whether the royalty payments to the firm fell within clause (c). We assume for the purpose of this argument that in this case, payments to firm were payments to partners. Even so, we think that the said payments did not fall within clause (c). The payments were made in consideration of a valuable right parted by the firm/partners/directors/ of the assessee-company in favour of the assessee. so long as the agreement whereunder the said payments were made is not held to be a mere device or a mere screen, the said payments cannot be treated as payments made to the directors as directors (qua directors).The payments were made by way of consideration for allowing the assessee to use a valuable right belonging to them viz., the brand name. Such a payment may be liable to be scrutinised under sub-section (2) of section 40-A, but it certainly did not fall within the four corners of Section 40(c)14. In T. T. (P) Ltd. v. ITO ( 1980 (121) ITR 551 (Kant)) a bench of Karnataka High Court comprising D. M. Chandrashekhar, C.J. and E. S. Venkataramiah, J. has taken a view which accords with the one taken by us. Speaking for the Bench, E. S. Venkataramiah, J. (as he then was)close reading of the above provision shows that Section 40(c) refers to an expenditure incurred by making periodical payments to a person mentioned in that clause apparently for any personal service that may be rendered by him. It cannot have any reference to payments made by the assessee for all kinds of services or facilities referred to in Section 40-a(2)(a). It is argued that the proviso thereto suggests that any expenditure incurred for any kind of service which is referred to in the main part of section 40-A(2)(a) and the expenditure referred to in Section 40(c) belong to the same category. This contention is not correct. The expression services in section 40-A(2)(a) is an expression of wider importIf the remuneration, benefit or amenity referred to in Section 40(c) is treated as the same as what is paid in return for the goods, services or facilities then irrespective of the fair market value of the goods, services and facilities provided by a person who may be a director or a person who has a substantial interest in the company or a relative of the director or of such person, as the case may be, only a maximum of Rs. 72, 000 can be allowed to be deducted in computing the income of the company in any one year. We do not think that Parliament ever intended that such a result should follow. The goods, services and facilities referred to in Section 40-A(2)(a) are those which have a market value and which are commercial in character. Many of the services and facilities referred to above are those which are nowadays provided by independent organisations."The said decision has been followed by the Punjab and Haryana High court in CIT v. Avon Cycles (P) Ltd. ( 1980 (126) ITR 448 : 1980 TaxLR 148 (P&H HC)) The Calcutta High Court has also taken a similar view in India Jute Co. Ltd. v. CIT ( 1989 (178) ITR 649 answer perhaps lies in the clause itself-in the power vested in the ITO to determine whether any expenditure or allowance is excessive or unreasonable having regard to the legitimate business needs of the company and the benefit derived by the assessee or accruing therefrom. Any payment to a relative of a director or other persons mentioned in clause(c) will necessarily be examined applying the above test and if it is found that they are unwarranted, unreasonable or excessive, they will be disallowed. Since such a situation does not arise herein, we need not pursue the argument further
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A.V.Padma Vs. R.Venugopal | persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit. 5. Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semi- literate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money. The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him. The Tribunals very often dispose of the claimants application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice. 6. In this case, the victim of the accident died on 21.7.1993. The award was passed by the Tribunal on 15.2.2002. The amount of compensation was enhanced by the High Court on 6.7.2006. Neither the Tribunal in its award nor the High Court in its order enhancing compensation had directed to invest the amount of compensation in long term fixed deposit. The Insurance Company deposited the compensation amount in the Tribunal on 7.1.2008. In the application filed by the appellants on 19.6.2008 seeking withdrawal of the amount without insisting on investment of any portion of the amount in long term deposit, it was specifically stated that the first appellant is an educated lady who retired as a Superintendent of the Karnataka Road Transport Corporation, Bangalore. It was also stated that the second appellant Poornachandrika is a M.Sc. degree holder and the third appellant Shalini was holding Master Degree both in Commerce and in Philosophy. It was stated that they were well versed in managing their lives and finances. The first appellant was already aged 71 years and her health was not very good. She required money for maintenance and also to put up construction on the existing house to provide dwelling house for her second daughter who was a co- owner along with her. The second daughter was stated to be residing in a rented house paying exorbitant rent which she could not afford in view of the spiralling costs. It was further stated in the application that the first appellant was obliged to provide a shelter to the first daughter Poornachandrika. It was pointed out that if the money was locked up in a nationalised bank, only the bank would be benefited by the deposit as they give a paltry interest which could not be equated to the costs of materials which were ever increasing. It was further stated that the delay in payment of compensation amount exposed the appellants to serious prejudice and economic ruin. Along with the application, the second and third appellants had filed separate affidavits supporting the prayer in the application and stating that they had no objection to the amount being paid to the first appellant. 7. While rejecting the application of the appellants, the Tribunal did not consider any of the above-mentioned aspects mentioned in the application. Unfortunately, the High Court lost sight of the said aspects and failed to properly consider whether, in the facts and circumstances of the case, there was any need for keeping the compensation amount in long term fixed deposit. 8. Having regard to the facts and circumstances of the case and in view of the uncontroverted averments in the application of the appellants referred to above, we are of the view that the Tribunal ought to have allowed the prayer of the appellants. Hence the | 1[ds]6. In this case, the victim of the accident died on 21.7.1993. The award was passed by the Tribunal on 15.2.2002. The amount of compensation was enhanced by the High Court on 6.7.2006. Neither the Tribunal in its award nor the High Court in its order enhancing compensation had directed to invest the amount of compensation in long term fixed deposit. The Insurance Company deposited the compensation amount in the Tribunal on 7.1.2008. In the application filed by the appellants on 19.6.2008 seeking withdrawal of the amount without insisting on investment of any portion of the amount in long term deposit, it was specifically stated that the first appellant is an educated lady who retired as a Superintendent of the Karnataka Road Transport Corporation, Bangalore. It was also stated that the second appellant Poornachandrika is a M.Sc. degree holder and the third appellant Shalini was holding Master Degree both in Commerce and in Philosophy. It was stated that they were well versed in managing their lives and finances. The first appellant was already aged 71 years and her health was not very good. She required money for maintenance and also to put up construction on the existing house to provide dwelling house for her second daughter who was a co- owner along with her. The second daughter was stated to be residing in a rented house paying exorbitant rent which she could not afford in view of the spiralling costs. It was further stated in the application that the first appellant was obliged to provide a shelter to the first daughter Poornachandrika. It was pointed out that if the money was locked up in a nationalised bank, only the bank would be benefited by the deposit as they give a paltry interest which could not be equated to the costs of materials which were ever increasing. It was further stated that the delay in payment of compensation amount exposed the appellants to serious prejudice and economic ruin. Along with the application, the second and third appellants had filed separate affidavits supporting the prayer in the application and stating that they had no objection to the amount being paid to the first appellant. | 1 | 1,855 | 388 | ### 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:
persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit. 5. Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semi- literate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money. The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him. The Tribunals very often dispose of the claimants application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice. 6. In this case, the victim of the accident died on 21.7.1993. The award was passed by the Tribunal on 15.2.2002. The amount of compensation was enhanced by the High Court on 6.7.2006. Neither the Tribunal in its award nor the High Court in its order enhancing compensation had directed to invest the amount of compensation in long term fixed deposit. The Insurance Company deposited the compensation amount in the Tribunal on 7.1.2008. In the application filed by the appellants on 19.6.2008 seeking withdrawal of the amount without insisting on investment of any portion of the amount in long term deposit, it was specifically stated that the first appellant is an educated lady who retired as a Superintendent of the Karnataka Road Transport Corporation, Bangalore. It was also stated that the second appellant Poornachandrika is a M.Sc. degree holder and the third appellant Shalini was holding Master Degree both in Commerce and in Philosophy. It was stated that they were well versed in managing their lives and finances. The first appellant was already aged 71 years and her health was not very good. She required money for maintenance and also to put up construction on the existing house to provide dwelling house for her second daughter who was a co- owner along with her. The second daughter was stated to be residing in a rented house paying exorbitant rent which she could not afford in view of the spiralling costs. It was further stated in the application that the first appellant was obliged to provide a shelter to the first daughter Poornachandrika. It was pointed out that if the money was locked up in a nationalised bank, only the bank would be benefited by the deposit as they give a paltry interest which could not be equated to the costs of materials which were ever increasing. It was further stated that the delay in payment of compensation amount exposed the appellants to serious prejudice and economic ruin. Along with the application, the second and third appellants had filed separate affidavits supporting the prayer in the application and stating that they had no objection to the amount being paid to the first appellant. 7. While rejecting the application of the appellants, the Tribunal did not consider any of the above-mentioned aspects mentioned in the application. Unfortunately, the High Court lost sight of the said aspects and failed to properly consider whether, in the facts and circumstances of the case, there was any need for keeping the compensation amount in long term fixed deposit. 8. Having regard to the facts and circumstances of the case and in view of the uncontroverted averments in the application of the appellants referred to above, we are of the view that the Tribunal ought to have allowed the prayer of the appellants. Hence the
### Response:
1
### Explanation:
6. In this case, the victim of the accident died on 21.7.1993. The award was passed by the Tribunal on 15.2.2002. The amount of compensation was enhanced by the High Court on 6.7.2006. Neither the Tribunal in its award nor the High Court in its order enhancing compensation had directed to invest the amount of compensation in long term fixed deposit. The Insurance Company deposited the compensation amount in the Tribunal on 7.1.2008. In the application filed by the appellants on 19.6.2008 seeking withdrawal of the amount without insisting on investment of any portion of the amount in long term deposit, it was specifically stated that the first appellant is an educated lady who retired as a Superintendent of the Karnataka Road Transport Corporation, Bangalore. It was also stated that the second appellant Poornachandrika is a M.Sc. degree holder and the third appellant Shalini was holding Master Degree both in Commerce and in Philosophy. It was stated that they were well versed in managing their lives and finances. The first appellant was already aged 71 years and her health was not very good. She required money for maintenance and also to put up construction on the existing house to provide dwelling house for her second daughter who was a co- owner along with her. The second daughter was stated to be residing in a rented house paying exorbitant rent which she could not afford in view of the spiralling costs. It was further stated in the application that the first appellant was obliged to provide a shelter to the first daughter Poornachandrika. It was pointed out that if the money was locked up in a nationalised bank, only the bank would be benefited by the deposit as they give a paltry interest which could not be equated to the costs of materials which were ever increasing. It was further stated that the delay in payment of compensation amount exposed the appellants to serious prejudice and economic ruin. Along with the application, the second and third appellants had filed separate affidavits supporting the prayer in the application and stating that they had no objection to the amount being paid to the first appellant.
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Shafikuth Hussain @ Ravi Vs. State of A.P | 1. This appeal by way of special leave arises out of the following facts:- 1.1 At about 3:45 p.m. On 19th September, 1991, A1 armed with a country made revolver and A2 and A3 armed with knives reached the first floor of the Engineering Construction Company belonging to one S.V. Laxmipathi Rao in Ram Nagar, Vishakapatnam. They enquired from P.W. 1 about the whereabouts of the owner. He replied that he would come the next day. A1 then asked P.W. 1 to get some drinking water and as she went inside the residential premises to do so, A1 followed her and entered the house. On seeing that A1 was following her, P.W. 1 raised an alarm, but he threatened her by showing a knife and when she tried to run away he caused an injury to her with the knife. A1 also forcibly removed the chain which P.W. 1 was wearing around her neck. In the meantime, one Swarajya Laxmi accosted the accused as to who he was, but A1 came to her side as well holding out a knife and forcibly pushed her down by placing his hand on her chest. In the meanwhile A2 also entered the building carrying a revolver and when P.W. 2 tried to rescue P.W. 1, A2 forcibly pushed her, due to which she fell down. The neighbours in the meanwhile gathered outside and on hearing the commotion the accused attempted to run away. P.W. 6, however, chased the accused and apprehended A1 and a folding knife with blood stains was recovered from him. A1 was also interrogated and information was extracted with regard to the identities of A2 and A3 and they too were arrested and two rounds of ammunition were recovered from A2 and a knife from A3. After the completion of the investigation, a charge sheet was filed against the accused for offences punishable under Sections 442, 393, 394, 397 and 398 of the IPC. It appears that the trial of the accused was separated with respect to the accused and A3 is the only accused before us today. The trial court on a consideration of the evidence primarily that of P.W. 6, convicted the accused appellant for offences punishable under Sections 452 and 393 of the IPC and sentenced him to undergo imprisonment for 3= years and to pay a fine of Rs. 500/- (Rupees five hundred only) and for 2 months for the offence under Section 393 of IPC both sentences to run concurrently. An appeal was thereafter taken to the High Court which confirmed the judgment of conviction but reduced the maximum sentence to one year on both counts. The matter is before us by way of special leave. 2. We have heard the learned counsel for the parties and gone through the record. We find that the only witness with regard to the involvement, if any, of the appellant is P.W. 6, as he was the one who had chased all the three accused but apprehended only A1 who is not before us. It is clear from the record that the appellant was arrested subsequent to the arrest of A1 on the basis of information provided by A1 to the police. The trial court and the High Court have disbelieved the evidence of P.W. 1 and P.W. 2, the star witnesses of the prosecution, on the ground that it lacked credibility as there were many contradictions therein. The courts, accordingly, have relied on P.W. 6 alone. We have gone through the evidence of P.W. 6 and this is what he has to say in his examination in chief: "I can only identify the person who was chased by me. I did not participate in the test identification parade. Accused present in the Court was not among the 3 persons we chased. My statement was recorded by the Police." 3. A perusal of the evidence of P.W. 6 surprises us that the trial court and High Court still thought it fit to rely on this evidence for purposes of the appellants conviction in the light of the fact that P.W. 1 and P.W. 2 have been disbelieved by both the courts below and had failed to identify the appellant even in court, whereas P.W. 6 has completely discarded the prosecution story as well. | 1[ds]We find that the only witness with regard to the involvement, if any, of the appellant is P.W. 6, as he was the one who had chased all the three accused but apprehended only A1 who is not before us. It is clear from the record that the appellant was arrested subsequent to the arrest of A1 on the basis of information provided by A1 to the police. The trial court and the High Court have disbelieved the evidence of P.W. 1 and P.W. 2, the star witnesses of the prosecution, on the ground that it lacked credibility as there were many contradictions therein.A perusal of the evidence of P.W. 6 surprises us that the trial court and High Court still thought it fit to rely on this evidence for purposes of the appellants conviction in the light of the fact that P.W. 1 and P.W. 2 have been disbelieved by both the courts below and had failed to identify the appellant even in court, whereas P.W. 6 has completely discarded the prosecution story as well. | 1 | 795 | 196 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
1. This appeal by way of special leave arises out of the following facts:- 1.1 At about 3:45 p.m. On 19th September, 1991, A1 armed with a country made revolver and A2 and A3 armed with knives reached the first floor of the Engineering Construction Company belonging to one S.V. Laxmipathi Rao in Ram Nagar, Vishakapatnam. They enquired from P.W. 1 about the whereabouts of the owner. He replied that he would come the next day. A1 then asked P.W. 1 to get some drinking water and as she went inside the residential premises to do so, A1 followed her and entered the house. On seeing that A1 was following her, P.W. 1 raised an alarm, but he threatened her by showing a knife and when she tried to run away he caused an injury to her with the knife. A1 also forcibly removed the chain which P.W. 1 was wearing around her neck. In the meantime, one Swarajya Laxmi accosted the accused as to who he was, but A1 came to her side as well holding out a knife and forcibly pushed her down by placing his hand on her chest. In the meanwhile A2 also entered the building carrying a revolver and when P.W. 2 tried to rescue P.W. 1, A2 forcibly pushed her, due to which she fell down. The neighbours in the meanwhile gathered outside and on hearing the commotion the accused attempted to run away. P.W. 6, however, chased the accused and apprehended A1 and a folding knife with blood stains was recovered from him. A1 was also interrogated and information was extracted with regard to the identities of A2 and A3 and they too were arrested and two rounds of ammunition were recovered from A2 and a knife from A3. After the completion of the investigation, a charge sheet was filed against the accused for offences punishable under Sections 442, 393, 394, 397 and 398 of the IPC. It appears that the trial of the accused was separated with respect to the accused and A3 is the only accused before us today. The trial court on a consideration of the evidence primarily that of P.W. 6, convicted the accused appellant for offences punishable under Sections 452 and 393 of the IPC and sentenced him to undergo imprisonment for 3= years and to pay a fine of Rs. 500/- (Rupees five hundred only) and for 2 months for the offence under Section 393 of IPC both sentences to run concurrently. An appeal was thereafter taken to the High Court which confirmed the judgment of conviction but reduced the maximum sentence to one year on both counts. The matter is before us by way of special leave. 2. We have heard the learned counsel for the parties and gone through the record. We find that the only witness with regard to the involvement, if any, of the appellant is P.W. 6, as he was the one who had chased all the three accused but apprehended only A1 who is not before us. It is clear from the record that the appellant was arrested subsequent to the arrest of A1 on the basis of information provided by A1 to the police. The trial court and the High Court have disbelieved the evidence of P.W. 1 and P.W. 2, the star witnesses of the prosecution, on the ground that it lacked credibility as there were many contradictions therein. The courts, accordingly, have relied on P.W. 6 alone. We have gone through the evidence of P.W. 6 and this is what he has to say in his examination in chief: "I can only identify the person who was chased by me. I did not participate in the test identification parade. Accused present in the Court was not among the 3 persons we chased. My statement was recorded by the Police." 3. A perusal of the evidence of P.W. 6 surprises us that the trial court and High Court still thought it fit to rely on this evidence for purposes of the appellants conviction in the light of the fact that P.W. 1 and P.W. 2 have been disbelieved by both the courts below and had failed to identify the appellant even in court, whereas P.W. 6 has completely discarded the prosecution story as well.
### Response:
1
### Explanation:
We find that the only witness with regard to the involvement, if any, of the appellant is P.W. 6, as he was the one who had chased all the three accused but apprehended only A1 who is not before us. It is clear from the record that the appellant was arrested subsequent to the arrest of A1 on the basis of information provided by A1 to the police. The trial court and the High Court have disbelieved the evidence of P.W. 1 and P.W. 2, the star witnesses of the prosecution, on the ground that it lacked credibility as there were many contradictions therein.A perusal of the evidence of P.W. 6 surprises us that the trial court and High Court still thought it fit to rely on this evidence for purposes of the appellants conviction in the light of the fact that P.W. 1 and P.W. 2 have been disbelieved by both the courts below and had failed to identify the appellant even in court, whereas P.W. 6 has completely discarded the prosecution story as well.
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Narayan Bhondoo Pimputkar & Another Vs. Laxman Purshottam Pimputkar & Ors | of all connections between the watandar and the watan land because of the abolition of patel watans and the extinguishment of incidents appertaining to such watans. A residual right was still there in the erstwhile watandar and that included the right to retain possession of watan land if the conditions mentioned in Section 6 were complied with. Section 7 of the Act contains provisions for regrant of watan lands to authorised holders, while Section 10 provides for eviction of unauthorised holders. Provision is also made for regrant of the land by the State Government to unauthorised holders if the Government forms the opinion that his eviction would cause undue hardship to him.9. It would follow from a combined reading of Sections 4, 6, 7 and 10 of the Act that a watandar on the abolition of patel watans and extinguishment of the incidents appertaining to the watans does not automatically lose his right to possession of the watan lands. The same is true of an authorised holder. Their right to retain possession of watan land as long as they comply with the prescribed conditions is statutorily recognised.The position of a watandar and an authorised holder is in marked contrast to that of an unauthorised holder who can be summarily evicted from the watan lands by the Collector under Section 10 of the Act. So far as quondam watandars are concerned, they are entitled to be in possession of the watan lands not in their capacity as watandars but by virtue of the operation of Section 6 of the Act.Likewise, the authorised holders are entitled to be in possession by virtue of Section 7 of the Act. If the respondent is entitled to be in possession of the land in dispute under Section 6 of the Act, the right to execute the decree for possession of the land can plainly be not denied to him on account of the provisions of the Act.10. According to Mr. Desai, if the appellants are not dispossessed from the land in dispute in execution of the decree obtained by the respondent against them, the appellants can approach the State Government for regrant of the land in dispute to them because their eviction would cause undue hardship to them. It is, in our opinion, not necessary for the purpose of the present case to go into the question whether the appellants can claim regrant of the land under Section 10 of the Act because this question does not materially affect the right of the respondent to execute the decree for possession of the land in dispute obtained by him against the appellants. If the respondent is entitled to execute the decree for possession of the land obtained against the appellants, in that event the question whether the appellants, if allowed to remain in possession, could have applied for regrant of the land to them, is hardly of any relevance.11. Reference has been made by Mr. Desai to the words "any decree or order of a court" in the opening clause of Section 4 of the Act. It is urged that those words indicate that the decree or order of a court can also be not executed with effect from the appointed day. This contention, in our opinion, is not well founded. What is contemplated by the opening clause of Section 4 of the Act is that notwithstanding any usage or custom or anything contained in any settlement, grant, agreement, sanad, or any decree or order of a court or the existing law with effect from the appointed day, the results mentioned in the various clauses of that section would follow. The words "any decree or order of a court" are preceded by the words "anything contained in any settlement, grant, agreement, sanad." It is a well-established rule in construction of statutes that general terms following particular ones apply only to such persons or things as are ejusdem generis with those comprehended in the language of the Legislature. In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended (see p. 297 of Maxwell on the Interpretation of Statutes, Twelfth Edition). In our opinion, the opening clause of Section 4 indicates that irrespective of any usage or custom and irrespective of any settlement, grant, agreement, sanad, or decree or order of a court or the existing watan law, which might have defined and declared the incidents appertaining to patel watans, the results contemplated by the various clauses of Section 4 would follow and nothing contained in the settlement, grant, agreement, sanad, or decree or order of the court or the existing watan law would prevent the operation of that section.12. In view of what has been held above, it is, in our opinion, not necessary to deal with the alternative argument of Mr. Patel that the execution proceedings taken by the respondent to recover possession of the land were also protected by Section 22 of the Act.13. Reference has been made by Mr. Desai to a Full Bench decision of Nagpur High Court in the case of Chhote Khan v. Mohammad Obedulla Khan, AIR 1953 Nag 361 (FB). It was held by the majority in that case that after the coming into force of the M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 the pre-emption decree obtained by landlords are no longer executable because the persons seeking to enforce them have lost their proprietary interest. The aforesaid case cannot be of any help to the appellants because it has been conceded by Mr. Desai that there were no provisions in the abovementioned Madhya Pradesh Act corresponding to Sections 6, 7 and 10 of the Act with which we are concerned. It is also consequently not necessary to express any opinion about the correctness of the view taken by the majority in the abovementioned Full Bench decision. | 0[ds]7. The provisions of Section 4 of the Act have been reproduced above and it is manifest therefrom that with effect from the appointed day, viz., April 1, 1963 all patel watans are abolished and all incidents appertaining to the said watans are extinguished. It is further provided that as from the appointed day no office of patel shall be hereditary and that subject to the provisions of Sections 6, 7 and 10 all watan lands are resumed and would be subject to the payment of land revenue.The question with which we are concerned is whether the right to execute the decree for the possession of watan land which has been obtained by the watandar against other persons comes to an end because of the abolition of patel watans and the extinguishment of all incidents appertaining to the said watans. The answer to this question, in our opinion, should be in the negative. There is nothing in the language of Section 4 which renders such decrees for possession to be inexecutable. Had the legislature intended that the decrees for possession of the watan lands which had been obtained by the watandars against third persons should become inexecutable, the legislature would have indicated such an intention by incorporating some provision to that effect. In the absence of any such provision, it is not permissible to read a prohibition in Section 4 of the Act on the execution of a decree for possession of the watan land obtained in favour of the watandar.It would follow from a combined reading of Sections 4, 6, 7 and 10 of the Act that a watandar on the abolition of patel watans and extinguishment of the incidents appertaining to the watans does not automatically lose his right to possession of the watan lands. The same is true of an authorised holder. Their right to retain possession of watan land as long as they comply with the prescribed conditions is statutorily recognised.The position of a watandar and an authorised holder is in marked contrast to that of an unauthorised holder who can be summarily evicted from the watan lands by the Collector under Section 10 of the Act. So far as quondam watandars are concerned, they are entitled to be in possession of the watan lands not in their capacity as watandars but by virtue of the operation of Section 6 of the Act.Likewise, the authorised holders are entitled to be in possession by virtue of Section 7 of the Act. If the respondent is entitled to be in possession of the land in dispute under Section 6 of the Act, the right to execute the decree for possession of the land can plainly be not denied to him on account of the provisions of theis, in our opinion, not necessary for the purpose of the present case to go into the question whether the appellants can claim regrant of the land under Section 10 of the Act because this question does not materially affect the right of the respondent to execute the decree for possession of the land in dispute obtained by him against the appellants. If the respondent is entitled to execute the decree for possession of the land obtained against the appellants, in that event the question whether the appellants, if allowed to remain in possession, could have applied for regrant of the land to them, is hardly of anycontention, in our opinion, is not well founded. What is contemplated by the opening clause of Section 4 of the Act is that notwithstanding any usage or custom or anything contained in any settlement, grant, agreement, sanad, or any decree or order of a court or the existing law with effect from the appointed day, the results mentioned in the various clauses of that section would follow. The words "any decree or order of a court" are preceded by the words "anything contained in any settlement, grant, agreement, sanad." It is a well-established rule in construction of statutes that general terms following particular ones apply only to such persons or things as are ejusdem generis with those comprehended in the language of the Legislature. | 0 | 3,865 | 741 | ### Instruction:
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of all connections between the watandar and the watan land because of the abolition of patel watans and the extinguishment of incidents appertaining to such watans. A residual right was still there in the erstwhile watandar and that included the right to retain possession of watan land if the conditions mentioned in Section 6 were complied with. Section 7 of the Act contains provisions for regrant of watan lands to authorised holders, while Section 10 provides for eviction of unauthorised holders. Provision is also made for regrant of the land by the State Government to unauthorised holders if the Government forms the opinion that his eviction would cause undue hardship to him.9. It would follow from a combined reading of Sections 4, 6, 7 and 10 of the Act that a watandar on the abolition of patel watans and extinguishment of the incidents appertaining to the watans does not automatically lose his right to possession of the watan lands. The same is true of an authorised holder. Their right to retain possession of watan land as long as they comply with the prescribed conditions is statutorily recognised.The position of a watandar and an authorised holder is in marked contrast to that of an unauthorised holder who can be summarily evicted from the watan lands by the Collector under Section 10 of the Act. So far as quondam watandars are concerned, they are entitled to be in possession of the watan lands not in their capacity as watandars but by virtue of the operation of Section 6 of the Act.Likewise, the authorised holders are entitled to be in possession by virtue of Section 7 of the Act. If the respondent is entitled to be in possession of the land in dispute under Section 6 of the Act, the right to execute the decree for possession of the land can plainly be not denied to him on account of the provisions of the Act.10. According to Mr. Desai, if the appellants are not dispossessed from the land in dispute in execution of the decree obtained by the respondent against them, the appellants can approach the State Government for regrant of the land in dispute to them because their eviction would cause undue hardship to them. It is, in our opinion, not necessary for the purpose of the present case to go into the question whether the appellants can claim regrant of the land under Section 10 of the Act because this question does not materially affect the right of the respondent to execute the decree for possession of the land in dispute obtained by him against the appellants. If the respondent is entitled to execute the decree for possession of the land obtained against the appellants, in that event the question whether the appellants, if allowed to remain in possession, could have applied for regrant of the land to them, is hardly of any relevance.11. Reference has been made by Mr. Desai to the words "any decree or order of a court" in the opening clause of Section 4 of the Act. It is urged that those words indicate that the decree or order of a court can also be not executed with effect from the appointed day. This contention, in our opinion, is not well founded. What is contemplated by the opening clause of Section 4 of the Act is that notwithstanding any usage or custom or anything contained in any settlement, grant, agreement, sanad, or any decree or order of a court or the existing law with effect from the appointed day, the results mentioned in the various clauses of that section would follow. The words "any decree or order of a court" are preceded by the words "anything contained in any settlement, grant, agreement, sanad." It is a well-established rule in construction of statutes that general terms following particular ones apply only to such persons or things as are ejusdem generis with those comprehended in the language of the Legislature. In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended (see p. 297 of Maxwell on the Interpretation of Statutes, Twelfth Edition). In our opinion, the opening clause of Section 4 indicates that irrespective of any usage or custom and irrespective of any settlement, grant, agreement, sanad, or decree or order of a court or the existing watan law, which might have defined and declared the incidents appertaining to patel watans, the results contemplated by the various clauses of Section 4 would follow and nothing contained in the settlement, grant, agreement, sanad, or decree or order of the court or the existing watan law would prevent the operation of that section.12. In view of what has been held above, it is, in our opinion, not necessary to deal with the alternative argument of Mr. Patel that the execution proceedings taken by the respondent to recover possession of the land were also protected by Section 22 of the Act.13. Reference has been made by Mr. Desai to a Full Bench decision of Nagpur High Court in the case of Chhote Khan v. Mohammad Obedulla Khan, AIR 1953 Nag 361 (FB). It was held by the majority in that case that after the coming into force of the M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 the pre-emption decree obtained by landlords are no longer executable because the persons seeking to enforce them have lost their proprietary interest. The aforesaid case cannot be of any help to the appellants because it has been conceded by Mr. Desai that there were no provisions in the abovementioned Madhya Pradesh Act corresponding to Sections 6, 7 and 10 of the Act with which we are concerned. It is also consequently not necessary to express any opinion about the correctness of the view taken by the majority in the abovementioned Full Bench decision.
### Response:
0
### Explanation:
7. The provisions of Section 4 of the Act have been reproduced above and it is manifest therefrom that with effect from the appointed day, viz., April 1, 1963 all patel watans are abolished and all incidents appertaining to the said watans are extinguished. It is further provided that as from the appointed day no office of patel shall be hereditary and that subject to the provisions of Sections 6, 7 and 10 all watan lands are resumed and would be subject to the payment of land revenue.The question with which we are concerned is whether the right to execute the decree for the possession of watan land which has been obtained by the watandar against other persons comes to an end because of the abolition of patel watans and the extinguishment of all incidents appertaining to the said watans. The answer to this question, in our opinion, should be in the negative. There is nothing in the language of Section 4 which renders such decrees for possession to be inexecutable. Had the legislature intended that the decrees for possession of the watan lands which had been obtained by the watandars against third persons should become inexecutable, the legislature would have indicated such an intention by incorporating some provision to that effect. In the absence of any such provision, it is not permissible to read a prohibition in Section 4 of the Act on the execution of a decree for possession of the watan land obtained in favour of the watandar.It would follow from a combined reading of Sections 4, 6, 7 and 10 of the Act that a watandar on the abolition of patel watans and extinguishment of the incidents appertaining to the watans does not automatically lose his right to possession of the watan lands. The same is true of an authorised holder. Their right to retain possession of watan land as long as they comply with the prescribed conditions is statutorily recognised.The position of a watandar and an authorised holder is in marked contrast to that of an unauthorised holder who can be summarily evicted from the watan lands by the Collector under Section 10 of the Act. So far as quondam watandars are concerned, they are entitled to be in possession of the watan lands not in their capacity as watandars but by virtue of the operation of Section 6 of the Act.Likewise, the authorised holders are entitled to be in possession by virtue of Section 7 of the Act. If the respondent is entitled to be in possession of the land in dispute under Section 6 of the Act, the right to execute the decree for possession of the land can plainly be not denied to him on account of the provisions of theis, in our opinion, not necessary for the purpose of the present case to go into the question whether the appellants can claim regrant of the land under Section 10 of the Act because this question does not materially affect the right of the respondent to execute the decree for possession of the land in dispute obtained by him against the appellants. If the respondent is entitled to execute the decree for possession of the land obtained against the appellants, in that event the question whether the appellants, if allowed to remain in possession, could have applied for regrant of the land to them, is hardly of anycontention, in our opinion, is not well founded. What is contemplated by the opening clause of Section 4 of the Act is that notwithstanding any usage or custom or anything contained in any settlement, grant, agreement, sanad, or any decree or order of a court or the existing law with effect from the appointed day, the results mentioned in the various clauses of that section would follow. The words "any decree or order of a court" are preceded by the words "anything contained in any settlement, grant, agreement, sanad." It is a well-established rule in construction of statutes that general terms following particular ones apply only to such persons or things as are ejusdem generis with those comprehended in the language of the Legislature.
|
Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal | act of notifying such list in the official gazette by the State under 1995 Act, (it was by the Board under 1954 Act). As mentioned supra, the list would be prepared by the Survey Commissioner after making due enquiry and after valid survey as well as after due application of mind. The enquiry contemplated under sub-section (3) of Section 4 is not merely an informal enquiry but a formal enquiry to find out at the grass root level, as to whether the property is a Wakf Property or not. Thereafter the Wakf Board will once again examine the list sent to it with due application of its mind and only thereafter the same will be sent to Government for notifying the same in the Gazette. Since the list is prepared and published in the official Gazette by following aforementioned procedure, there is no scope for the plaintiff to get the matter reopened by generating some sort of doubt about Survey Commissioners report. Since the surveyors report was required to be considered by the State Government as well as Wakf Board (as the case may be), prior to finalisation of the list of properties to be published in the Official Gazette, it was not open for the High Court to conclude that the Surveyors report will have to be reconsidered. On the contrary Surveyors report merges with the Gazette Notification published under Section 5 of the Wakf Act.18. As held by the Tribunal as well as the High Court, the property in question does not find place in the Gazette notification published under Section 5 of the Wakf Act. In other words, the property in question is not notified in the official Gazette as Wakf property. If anybody including the Wakf Board or the plaintiff was aggrieved by such non-inclusion of the property in the list notified, the aggrieved person should have raised the dispute under Section 6 within a period of one year from the date of publication of the Gazette notification in the matter. The plaintiff has practically questioned the non-inclusion of the property in the list and the validity of the list notified in the official gazette dated 28.06.1962 after the lapse of about 50 years, i.e. in the year 2013 by filing the present suit.19. As per Section 27 of 1954 Act (Section 40 of 1995 Act), the Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not the Board after making such enquiry as it deems fit, decide the question. The decision of the Board on any question under sub-section (1) of Section 27 of 1954 Act (or under Section 40(1) of 1995 Act) shall, unless revoked or modified by the Civil Court, be final. The effect of Section 27 of 1954 Act or Section 40 of 1995 Act is that, if any property had been omitted to be included in the list of auqaf by inadvertence or otherwise, then it was/is for the Wakf Board to take action, as per said provision. In this context, it is relevant to note the observations by this Court in the case of T.N.Wakf Board v. Hathija Ammal, 2002(2) R.C.R.(Civil) 383 : (2001) 8 SCC 528 which read thus:"In the event, any property has been omitted by inadvertence or otherwise, then it is for the Wakf Board to take action as provided under Section 27 of the Act. If the Wakf Board has reason to believe that a particular property is a wakf property then it can itself collect information and if any question arises whether a particular property is a wakf property or not, it may, after making such enquiry as it may deem fit decide the question and such decision of the Wakf Board shall be final unless revoked or modified by a civil court. Such action has not been taken by the Wakf Board in this case."20. Sub-section (1A) of Section 4 is inserted by Act 27 of 2013 w.e.f. 1.11.2013 and the same reads thus:"(1A) Every State Government shall maintain a list of auqaf referred to in sub-section (1) and the survey of auqaf shall be completed within a period of one year from the date of commencement of the Wakf (Amendment) Act, 2013, in case such survey was not done before the commencement of the Wakf (Amendment) Act, 2013:Provided that where no Survey Commissioner of Waqf has been appointed a Survey Commissioner for auqaf shall be appointed within three months from the date of such commencement."21. In the matter on hand, the said provision also will not come to the aid of the plaintiff inasmuch as the said sub-section can be employed only if survey of auqaf was not done before the commencement of Wakf (Amendment) Act, 2013. Admittedly in the matter on hand, the survey was conducted prior to 1962 and based on such Surveyors report only, the list was prepared and the same was submitted to State Government, which in turn, was forwarded to Wakf Board, the Wakf Board after examining the report published the list in the official gazette in the year 1962. Hence, sub-section (1A) of Section 4 also will be of no avail to the plaintiff.22. In the matter on hand, as mentioned supra, the Tribunal and the High Court, on facts have held that the property in question is not included in the list published in the Official Gazette as a wakf property. Such non-inclusion was never questioned by any person including the Wakf Board. The Board has not exercised jurisdiction under Section 27 of 1954 Act and Section 40 of 1995 Act, though 50 years have elapsed from the date of the gazette notification. Hence, in our considered opinion, the averments in the plaint do not disclose the cause of action for filing the suit. The suit is manifestly meritless and vexatious. So also the suit is barred by law for the reasons mentioned supra. | 1[ds]12. A bare reading of the afore-quoted provisions (relevant provisions for the purpose of this matter) contained in 1954 Act and 1995 Act, makes it manifestly clear that the provisions, which are relevant for this case are almost parimateria with each other.The overall view of the aforementioned provisions contained in Wakf Act, 1954 and Waqf Act 1995 make it evident that even under 1954 Act, as in 1995 Act, the Survey Commissioners were appointed for the purpose of making survey of wakfs in State. The Survey Commissioner was duty bound to conduct the survey of wakfs in the State and after making such enquiry, as he might consider necessary, would submit his report in respect of Wakfs existing in the State to the State Government with necessary particulars. Copy of the said report would be forwarded by the State to the Wakf Board which in turn would examine the report by applying its mind and thereafter would publish the notification. Whereas under 1995 Act, the Wakf Board after examining the report forwards it back to Government within a period of 6 months for publication in the Official Gazette in the State. Pursuant thereto the State will publish the Gazette notification. The revenue authorities will consequently include the list of Auqaf properties while updating the revenue records under sub-section (3) of Section 5 of 1995 Act.17. Thus it is amply clear that the conducting of survey by the Survey Commissioner and preparing a report and forwarding the same to the State or the Wakf Board precedes the final act of notifying such list in the official gazette by the State under 1995 Act, (it was by the Board under 1954 Act). As mentioned supra, the list would be prepared by the Survey Commissioner after making due enquiry and after valid survey as well as after due application of mind. The enquiry contemplated under sub-section (3) of Section 4 is not merely an informal enquiry but a formal enquiry to find out at the grass root level, as to whether the property is a Wakf Property or not. Thereafter the Wakf Board will once again examine the list sent to it with due application of its mind and only thereafter the same will be sent to Government for notifying the same in the Gazette. Since the list is prepared and published in the official Gazette by following aforementioned procedure, there is no scope for the plaintiff to get the matter reopened by generating some sort of doubt about Survey Commissioners report. Since the surveyors report was required to be considered by the State Government as well as Wakf Board (as the case may be), prior to finalisation of the list of properties to be published in the Official Gazette, it was not open for the High Court to conclude that the Surveyors report will have to be reconsidered. On the contrary Surveyors report merges with the Gazette Notification published under Section 5 of the Wakf Act.18. As held by the Tribunal as well as the High Court, the property in question does not find place in the Gazette notification published under Section 5 of the Wakf Act. In other words, the property in question is not notified in the official Gazette as Wakf property. If anybody including the Wakf Board or the plaintiff was aggrieved by such non-inclusion of the property in the list notified, the aggrieved person should have raised the dispute under Section 6 within a period of one year from the date of publication of the Gazette notification in the matter. The plaintiff has practically questioned the non-inclusion of the property in the list and the validity of the list notified in the official gazette dated 28.06.1962 after the lapse of about 50 years, i.e. in the year 2013 by filing the present suit.In the matter on hand, the said provision also will not come to the aid of the plaintiff inasmuch as the said sub-section can be employed only if survey of auqaf was not done before the commencement of Wakf (Amendment) Act, 2013. Admittedly in the matter on hand, the survey was conducted prior to 1962 and based on such Surveyors report only, the list was prepared and the same was submitted to State Government, which in turn, was forwarded to Wakf Board, the Wakf Board after examining the report published the list in the official gazette in the year 1962. Hence, sub-section (1A) of Section 4 also will be of no avail to the plaintiff.22. In the matter on hand, as mentioned supra, the Tribunal and the High Court, on facts have held that the property in question is not included in the list published in the Official Gazette as a wakf property. Such non-inclusion was never questioned by any person including the Wakf Board. The Board has not exercised jurisdiction under Section 27 of 1954 Act and Section 40 of 1995 Act, though 50 years have elapsed from the date of the gazette notification. Hence, in our considered opinion, the averments in the plaint do not disclose the cause of action for filing the suit. The suit is manifestly meritless and vexatious. So also the suit is barred by law for the reasons mentioned supra. | 1 | 5,629 | 947 | ### Instruction:
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act of notifying such list in the official gazette by the State under 1995 Act, (it was by the Board under 1954 Act). As mentioned supra, the list would be prepared by the Survey Commissioner after making due enquiry and after valid survey as well as after due application of mind. The enquiry contemplated under sub-section (3) of Section 4 is not merely an informal enquiry but a formal enquiry to find out at the grass root level, as to whether the property is a Wakf Property or not. Thereafter the Wakf Board will once again examine the list sent to it with due application of its mind and only thereafter the same will be sent to Government for notifying the same in the Gazette. Since the list is prepared and published in the official Gazette by following aforementioned procedure, there is no scope for the plaintiff to get the matter reopened by generating some sort of doubt about Survey Commissioners report. Since the surveyors report was required to be considered by the State Government as well as Wakf Board (as the case may be), prior to finalisation of the list of properties to be published in the Official Gazette, it was not open for the High Court to conclude that the Surveyors report will have to be reconsidered. On the contrary Surveyors report merges with the Gazette Notification published under Section 5 of the Wakf Act.18. As held by the Tribunal as well as the High Court, the property in question does not find place in the Gazette notification published under Section 5 of the Wakf Act. In other words, the property in question is not notified in the official Gazette as Wakf property. If anybody including the Wakf Board or the plaintiff was aggrieved by such non-inclusion of the property in the list notified, the aggrieved person should have raised the dispute under Section 6 within a period of one year from the date of publication of the Gazette notification in the matter. The plaintiff has practically questioned the non-inclusion of the property in the list and the validity of the list notified in the official gazette dated 28.06.1962 after the lapse of about 50 years, i.e. in the year 2013 by filing the present suit.19. As per Section 27 of 1954 Act (Section 40 of 1995 Act), the Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not the Board after making such enquiry as it deems fit, decide the question. The decision of the Board on any question under sub-section (1) of Section 27 of 1954 Act (or under Section 40(1) of 1995 Act) shall, unless revoked or modified by the Civil Court, be final. The effect of Section 27 of 1954 Act or Section 40 of 1995 Act is that, if any property had been omitted to be included in the list of auqaf by inadvertence or otherwise, then it was/is for the Wakf Board to take action, as per said provision. In this context, it is relevant to note the observations by this Court in the case of T.N.Wakf Board v. Hathija Ammal, 2002(2) R.C.R.(Civil) 383 : (2001) 8 SCC 528 which read thus:"In the event, any property has been omitted by inadvertence or otherwise, then it is for the Wakf Board to take action as provided under Section 27 of the Act. If the Wakf Board has reason to believe that a particular property is a wakf property then it can itself collect information and if any question arises whether a particular property is a wakf property or not, it may, after making such enquiry as it may deem fit decide the question and such decision of the Wakf Board shall be final unless revoked or modified by a civil court. Such action has not been taken by the Wakf Board in this case."20. Sub-section (1A) of Section 4 is inserted by Act 27 of 2013 w.e.f. 1.11.2013 and the same reads thus:"(1A) Every State Government shall maintain a list of auqaf referred to in sub-section (1) and the survey of auqaf shall be completed within a period of one year from the date of commencement of the Wakf (Amendment) Act, 2013, in case such survey was not done before the commencement of the Wakf (Amendment) Act, 2013:Provided that where no Survey Commissioner of Waqf has been appointed a Survey Commissioner for auqaf shall be appointed within three months from the date of such commencement."21. In the matter on hand, the said provision also will not come to the aid of the plaintiff inasmuch as the said sub-section can be employed only if survey of auqaf was not done before the commencement of Wakf (Amendment) Act, 2013. Admittedly in the matter on hand, the survey was conducted prior to 1962 and based on such Surveyors report only, the list was prepared and the same was submitted to State Government, which in turn, was forwarded to Wakf Board, the Wakf Board after examining the report published the list in the official gazette in the year 1962. Hence, sub-section (1A) of Section 4 also will be of no avail to the plaintiff.22. In the matter on hand, as mentioned supra, the Tribunal and the High Court, on facts have held that the property in question is not included in the list published in the Official Gazette as a wakf property. Such non-inclusion was never questioned by any person including the Wakf Board. The Board has not exercised jurisdiction under Section 27 of 1954 Act and Section 40 of 1995 Act, though 50 years have elapsed from the date of the gazette notification. Hence, in our considered opinion, the averments in the plaint do not disclose the cause of action for filing the suit. The suit is manifestly meritless and vexatious. So also the suit is barred by law for the reasons mentioned supra.
### Response:
1
### Explanation:
12. A bare reading of the afore-quoted provisions (relevant provisions for the purpose of this matter) contained in 1954 Act and 1995 Act, makes it manifestly clear that the provisions, which are relevant for this case are almost parimateria with each other.The overall view of the aforementioned provisions contained in Wakf Act, 1954 and Waqf Act 1995 make it evident that even under 1954 Act, as in 1995 Act, the Survey Commissioners were appointed for the purpose of making survey of wakfs in State. The Survey Commissioner was duty bound to conduct the survey of wakfs in the State and after making such enquiry, as he might consider necessary, would submit his report in respect of Wakfs existing in the State to the State Government with necessary particulars. Copy of the said report would be forwarded by the State to the Wakf Board which in turn would examine the report by applying its mind and thereafter would publish the notification. Whereas under 1995 Act, the Wakf Board after examining the report forwards it back to Government within a period of 6 months for publication in the Official Gazette in the State. Pursuant thereto the State will publish the Gazette notification. The revenue authorities will consequently include the list of Auqaf properties while updating the revenue records under sub-section (3) of Section 5 of 1995 Act.17. Thus it is amply clear that the conducting of survey by the Survey Commissioner and preparing a report and forwarding the same to the State or the Wakf Board precedes the final act of notifying such list in the official gazette by the State under 1995 Act, (it was by the Board under 1954 Act). As mentioned supra, the list would be prepared by the Survey Commissioner after making due enquiry and after valid survey as well as after due application of mind. The enquiry contemplated under sub-section (3) of Section 4 is not merely an informal enquiry but a formal enquiry to find out at the grass root level, as to whether the property is a Wakf Property or not. Thereafter the Wakf Board will once again examine the list sent to it with due application of its mind and only thereafter the same will be sent to Government for notifying the same in the Gazette. Since the list is prepared and published in the official Gazette by following aforementioned procedure, there is no scope for the plaintiff to get the matter reopened by generating some sort of doubt about Survey Commissioners report. Since the surveyors report was required to be considered by the State Government as well as Wakf Board (as the case may be), prior to finalisation of the list of properties to be published in the Official Gazette, it was not open for the High Court to conclude that the Surveyors report will have to be reconsidered. On the contrary Surveyors report merges with the Gazette Notification published under Section 5 of the Wakf Act.18. As held by the Tribunal as well as the High Court, the property in question does not find place in the Gazette notification published under Section 5 of the Wakf Act. In other words, the property in question is not notified in the official Gazette as Wakf property. If anybody including the Wakf Board or the plaintiff was aggrieved by such non-inclusion of the property in the list notified, the aggrieved person should have raised the dispute under Section 6 within a period of one year from the date of publication of the Gazette notification in the matter. The plaintiff has practically questioned the non-inclusion of the property in the list and the validity of the list notified in the official gazette dated 28.06.1962 after the lapse of about 50 years, i.e. in the year 2013 by filing the present suit.In the matter on hand, the said provision also will not come to the aid of the plaintiff inasmuch as the said sub-section can be employed only if survey of auqaf was not done before the commencement of Wakf (Amendment) Act, 2013. Admittedly in the matter on hand, the survey was conducted prior to 1962 and based on such Surveyors report only, the list was prepared and the same was submitted to State Government, which in turn, was forwarded to Wakf Board, the Wakf Board after examining the report published the list in the official gazette in the year 1962. Hence, sub-section (1A) of Section 4 also will be of no avail to the plaintiff.22. In the matter on hand, as mentioned supra, the Tribunal and the High Court, on facts have held that the property in question is not included in the list published in the Official Gazette as a wakf property. Such non-inclusion was never questioned by any person including the Wakf Board. The Board has not exercised jurisdiction under Section 27 of 1954 Act and Section 40 of 1995 Act, though 50 years have elapsed from the date of the gazette notification. Hence, in our considered opinion, the averments in the plaint do not disclose the cause of action for filing the suit. The suit is manifestly meritless and vexatious. So also the suit is barred by law for the reasons mentioned supra.
|
Harcharan Singh Vs. Shiv Rani and Others | proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that w hen service is effected by refusal of a postal communication the addressee must be imputed. with the knowledge of the contents thereof and in our view, this follows upon the presumptions that are raised under s. 27 of the General Clauses Act, 1897 and s. 114 of the Indian Evidence Act.7. Turning to the Bombay decision in Vaman Vithals case (supra), We would like to point out two aspects that emerge clearly from the very observations which have been strongly relied upon by counsel for the appellant. In the first place, the observations clearly show that the refusal to accept the notice was not satisfactorily proved in the case inasmuch as the postman who took the letter and brought it back had not been examined; consequently the further observations made by the leaned Chief Justice were unnecessary for decision on the point and as such will have to be regarded as obiter.8. Secondly, while making those observations the learned Chief Justice WAS himself conscious of the fact that there were some authorities of that Court taking the contrary view. Having regard to these aspects it is difficult to hold that the concerned observations lay down the correct legal position in the matter. In any event we approve of the view taken by the Allahabad High Court in its three decisions, namely, Sri Naths case, Fanni Lals case and Ganga Rams case (supra) and would confirm the High Courts finding on the point in favour of the respondents.9. Counsel for the appellant then faintly argued that the respondents suit was not maintainable under s. 14(1) of the Act inasmuch as no permission of the District Magistrate had been obtained by the respondents before filing the suit as required by s. 14 and in this behalf reliance was placed on s. 14(a) of the Act which ran thus:"14. Restrictions on eviction. No suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds, namely:(a) that the tenant has willfully failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a notice of demand from the landlord."According to counsel for the appellant the aforesaid provision clearly shows that under the Act two safeguards were available to a tenant- (i) eviction could not be had by any landlord except on one or more of the grounds specified in cls. (a) to (f) of s. 14 and (ii) no suit for eviction even on those grounds specified in cls. (a) to (f) could be instituted without the permission of the District Magistrate, and admittedly the landlords in the instant case had filed the suit against the appellant without obtaining the permission of the District Magistrate. He, therefore, urged that the Civil Court had no jurisdiction to entertain the suit and the decree was without jurisdiction.10. It must be observed that no such contention was raised by the appellant in any of the Courts below presumably because the appellant as well as this lawyer knew how an identical provision contain ed in s. 3(1) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, an allied enactment, had been judicially interpreted by in this Court in Bhagwan Dass v. Paras Nath Section 3 of the U.P. Act 3 of 1947 ran thus:"3. Restrictions on evictions.-Subject to any order passed under sub-section (3), no suit shall without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his evict ion from any accommodation, except on one or more of the following grounds:(a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand."This Court in Bhagwan Dass case Asupra) has explained at page 305 of the report the legal position arising on a grammatical construction of s. 3(1) thus:"Section (3) 1 does not restrict the landlords right to evict his tenant on any of the grounds mentioned in cls. (a) to (g) of that sub-section. But if he wants to sue his tenant for eviction on any ground other than those mentioned in those clauses then he has to obtain the permission of the District Magistrate whose discretion is subject to any order passed under sub-s. (3) of s . 3 by the Commissioner. These are the only restrictions placed on the power of a landlord to institute a suit for eviction of his tenant."11. It would be conducive to judicial discipline to interpret an identical provision contained in s. 14(1) of the U.P. Cantonment (Control of Rent &Eviction) Act, 1952 in a similar manner. In other words, under s. 14(1) of the concerned Central Act permission of the District Magistrate was required if the landlord sought eviction of his tenant on any ground other than those specified in cls. (a) to (f) and not when it was sought on any of the grounds specified in cls. (a) to (f). (If may be stated that both the enactments have since been repealed). It is, therefore, not possible to accept the contention of the counsel for the appellant that the instant suit filed by the respondents against the appellant could not be entertained by the Civil Court.12. | 0[ds]In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to ac cept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under s. 27 of the General Clauses Act as well as under s. 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that w hen service is effected by refusal of a postal communication the addressee must be imputed. with the knowledge of the contents thereof and in our view, this follows upon the presumptions that are raised under s. 27 of the General Clauses Act, 1897 and s. 114 of the Indian Evidenceto the Bombay decision in Vaman Vithals case (supra), We would like to point out two aspects that emerge clearly from the very observations which have been strongly relied upon by counsel for the appellant. In the first place, the observations clearly show that the refusal to accept the notice was not satisfactorily proved in the case inasmuch as the postman who took the letter and brought it back had not been examined; consequently the further observations made by the leaned Chief Justice were unnecessary for decision on the point and as such will have to be regarded aswhile making those observations the learned Chief Justice WAS himself conscious of the fact that there were some authorities of that Court taking the contrary view. Having regard to these aspects it is difficult to hold that the concerned observations lay down the correct legal position in the matter. In any event we approve of the view taken by the Allahabad High Court in its three decisions, namely, Sri Naths case, Fanni Lals case and Ganga Rams case (supra) and would confirm the High Courts finding on the point in favour of theCourt in Bhagwan Dass case Asupra) has explained at page 305 of the report the legal position arising on a grammatical construction of s. 3(1)(3) 1 does not restrict the landlords right to evict his tenant on any of the grounds mentioned in cls. (a) to (g) of that sub-section. But if he wants to sue his tenant for eviction on any ground other than those mentioned in those clauses then he has to obtain the permission of the District Magistrate whose discretion is subject to any order passed under sub-s. (3) of s . 3 by the Commissioner. These are the only restrictions placed on the power of a landlord to institute a suit for eviction of hiswould be conducive to judicial discipline to interpret an identical provision contained in s. 14(1) of the U.P. Cantonment (Control of Rent &Eviction) Act, 1952 in a similar manner. In other words, under s. 14(1) of the concerned Central Act permission of the District Magistrate was required if the landlord sought eviction of his tenant on any ground other than those specified in cls. (a) to (f) and not when it was sought on any of the grounds specified in cls. (a) to (f). (If may be stated that both the enactments have since been repealed). It is, therefore, not possible to accept the contention of the counsel for the appellant that the instant suit filed by the respondents against the appellant could not be entertained by the Civil Court. | 0 | 3,869 | 823 | ### Instruction:
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proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that w hen service is effected by refusal of a postal communication the addressee must be imputed. with the knowledge of the contents thereof and in our view, this follows upon the presumptions that are raised under s. 27 of the General Clauses Act, 1897 and s. 114 of the Indian Evidence Act.7. Turning to the Bombay decision in Vaman Vithals case (supra), We would like to point out two aspects that emerge clearly from the very observations which have been strongly relied upon by counsel for the appellant. In the first place, the observations clearly show that the refusal to accept the notice was not satisfactorily proved in the case inasmuch as the postman who took the letter and brought it back had not been examined; consequently the further observations made by the leaned Chief Justice were unnecessary for decision on the point and as such will have to be regarded as obiter.8. Secondly, while making those observations the learned Chief Justice WAS himself conscious of the fact that there were some authorities of that Court taking the contrary view. Having regard to these aspects it is difficult to hold that the concerned observations lay down the correct legal position in the matter. In any event we approve of the view taken by the Allahabad High Court in its three decisions, namely, Sri Naths case, Fanni Lals case and Ganga Rams case (supra) and would confirm the High Courts finding on the point in favour of the respondents.9. Counsel for the appellant then faintly argued that the respondents suit was not maintainable under s. 14(1) of the Act inasmuch as no permission of the District Magistrate had been obtained by the respondents before filing the suit as required by s. 14 and in this behalf reliance was placed on s. 14(a) of the Act which ran thus:"14. Restrictions on eviction. No suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds, namely:(a) that the tenant has willfully failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a notice of demand from the landlord."According to counsel for the appellant the aforesaid provision clearly shows that under the Act two safeguards were available to a tenant- (i) eviction could not be had by any landlord except on one or more of the grounds specified in cls. (a) to (f) of s. 14 and (ii) no suit for eviction even on those grounds specified in cls. (a) to (f) could be instituted without the permission of the District Magistrate, and admittedly the landlords in the instant case had filed the suit against the appellant without obtaining the permission of the District Magistrate. He, therefore, urged that the Civil Court had no jurisdiction to entertain the suit and the decree was without jurisdiction.10. It must be observed that no such contention was raised by the appellant in any of the Courts below presumably because the appellant as well as this lawyer knew how an identical provision contain ed in s. 3(1) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, an allied enactment, had been judicially interpreted by in this Court in Bhagwan Dass v. Paras Nath Section 3 of the U.P. Act 3 of 1947 ran thus:"3. Restrictions on evictions.-Subject to any order passed under sub-section (3), no suit shall without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his evict ion from any accommodation, except on one or more of the following grounds:(a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand."This Court in Bhagwan Dass case Asupra) has explained at page 305 of the report the legal position arising on a grammatical construction of s. 3(1) thus:"Section (3) 1 does not restrict the landlords right to evict his tenant on any of the grounds mentioned in cls. (a) to (g) of that sub-section. But if he wants to sue his tenant for eviction on any ground other than those mentioned in those clauses then he has to obtain the permission of the District Magistrate whose discretion is subject to any order passed under sub-s. (3) of s . 3 by the Commissioner. These are the only restrictions placed on the power of a landlord to institute a suit for eviction of his tenant."11. It would be conducive to judicial discipline to interpret an identical provision contained in s. 14(1) of the U.P. Cantonment (Control of Rent &Eviction) Act, 1952 in a similar manner. In other words, under s. 14(1) of the concerned Central Act permission of the District Magistrate was required if the landlord sought eviction of his tenant on any ground other than those specified in cls. (a) to (f) and not when it was sought on any of the grounds specified in cls. (a) to (f). (If may be stated that both the enactments have since been repealed). It is, therefore, not possible to accept the contention of the counsel for the appellant that the instant suit filed by the respondents against the appellant could not be entertained by the Civil Court.12.
### Response:
0
### Explanation:
In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to ac cept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under s. 27 of the General Clauses Act as well as under s. 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that w hen service is effected by refusal of a postal communication the addressee must be imputed. with the knowledge of the contents thereof and in our view, this follows upon the presumptions that are raised under s. 27 of the General Clauses Act, 1897 and s. 114 of the Indian Evidenceto the Bombay decision in Vaman Vithals case (supra), We would like to point out two aspects that emerge clearly from the very observations which have been strongly relied upon by counsel for the appellant. In the first place, the observations clearly show that the refusal to accept the notice was not satisfactorily proved in the case inasmuch as the postman who took the letter and brought it back had not been examined; consequently the further observations made by the leaned Chief Justice were unnecessary for decision on the point and as such will have to be regarded aswhile making those observations the learned Chief Justice WAS himself conscious of the fact that there were some authorities of that Court taking the contrary view. Having regard to these aspects it is difficult to hold that the concerned observations lay down the correct legal position in the matter. In any event we approve of the view taken by the Allahabad High Court in its three decisions, namely, Sri Naths case, Fanni Lals case and Ganga Rams case (supra) and would confirm the High Courts finding on the point in favour of theCourt in Bhagwan Dass case Asupra) has explained at page 305 of the report the legal position arising on a grammatical construction of s. 3(1)(3) 1 does not restrict the landlords right to evict his tenant on any of the grounds mentioned in cls. (a) to (g) of that sub-section. But if he wants to sue his tenant for eviction on any ground other than those mentioned in those clauses then he has to obtain the permission of the District Magistrate whose discretion is subject to any order passed under sub-s. (3) of s . 3 by the Commissioner. These are the only restrictions placed on the power of a landlord to institute a suit for eviction of hiswould be conducive to judicial discipline to interpret an identical provision contained in s. 14(1) of the U.P. Cantonment (Control of Rent &Eviction) Act, 1952 in a similar manner. In other words, under s. 14(1) of the concerned Central Act permission of the District Magistrate was required if the landlord sought eviction of his tenant on any ground other than those specified in cls. (a) to (f) and not when it was sought on any of the grounds specified in cls. (a) to (f). (If may be stated that both the enactments have since been repealed). It is, therefore, not possible to accept the contention of the counsel for the appellant that the instant suit filed by the respondents against the appellant could not be entertained by the Civil Court.
|
Union of India and Others Etc Vs. Metal Box Company of India Limited | But first we must mention that the filing of, and entertaining, the writ petition straightaway against a notice of demand issued by a Central Excise Officer (Superintendent of Central Excise) in a matter involving valuation was inadvisable. It has been repeatedly deprecated by this Court, the latest decision being in Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh & Ors. which decision refers to and affirms the ratio of the earlier decisions of this Court. 4. Now coming to the merits of the case, the relevant tariff item, viz. Tariff Item 27 in the Schedule to the Central Excise Act, as it stood at the relevant time, read as follows : ALUMINIUM (a) (i) In any crude from including ingots, bars, blocks, slabs, billets, shots and pellets. (ii) Wire bars, wire rods and castings, not otherwise specified. (b) Manufactures, the following : Namely, plates, sheets, circles and strips in any form or size, not otherwise specified.(c) Foils, that is a product of thickness (Excluding any backing) not exceeding 0-15 millimetres. (d) Pipes and tubes, other than extruded pipes and tubes. (e) Extruded shapes and sections including extruded pipes and tubes. 5. Subsequently, clause (f) has been added in the above Tariff Item, which reads : (f) Containers, plain, lacquered or printed or lacquered and printed. The definition of manufacture, as inserted by the Finance Act (No. 25) of 195 with effect from March 1, 1975 reads, insofar as is relevant, thus : "(2f) Manufacture includes any process incidental or ancillary to the completion of a manufactured process; and Section 4 provides that where the duty of excise is chargeable with reference to value, such value shall, subject to other provisions of the said section, be deemed to be the normal price thereof. The normal price means the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale - vide Section 4(1)(a)." 6. In Bombay Tyre International, it has been held by this Court that the wholesale cash price at the place of removal is the basis for determination of value of an excisable article and whatever be the wholesale cash price at which the excisable article is sold in wholesale trade at the place of removal would represent the value of the excisable article on which excise duty is leviable and that no deduction from such wholesale cash price is permissible except in respect of trade discount and the amount of excisable duty payable at the time of removal of the excisable article from the place of removal. It has been held that the expenses incurred by the assessee upto the date of delivery cannot be excluded from the assessable value. Of course, so far as the cost of packing is concerned, separate principles have been enunciated in that behalf which have been reiterated and explained recently in Madras Rubber Factory Limited, where it has been reiterated that the fundamental criterion for computing the value of the excisable article is the price at which the excisable article is sold by the manufacturer and that it is not the bare manufacturing cost and manufacturing profit which constitute the basis for determining such value. It has also been held that no deductions except those provided by Section 4 are permissible to be made from the wholesale price and that all expenses incurred on account of several factors which have contributed to the value of the excisable goods upto the date of sale/date of delivery are liable to be included. Applying the said test, it would be evident that the theory underlying the judgment of the learned Single Judge that only the value of the extruded tube shall from the basis of the assessable value and that the costs/charges for coating/printing etc. are not includible in the assessable value, is unsustainable in law. It is not necessary to discuss the issue relating to packing charges for the reason that it has not been agitated before us. [As we have said earlier, the law in that behalf is enunciated in Bombay Tyre International and Madras Rubber Factory Limited.]For these reasons, it is also not possible for us to agree with the decision of the Gujarat High Court in Extrusion Process Private Limited. 7. So far as the value of the plastic cap is concerned, it is submitted by the learned counsel for the assessee that it is not only supplied by the purchaser to the assessee but that it does not form part of the tube which is sold by the assessee to the purchaser. It is further submitted by the learned counsel that fitting of the cap to the tube does not amount to manufacture, because these caps are manufactured separately and by another manufacturer. The learned counsel invited our attention to the order of this Court dated November 20, 1989 dismissing Civil Appeal No. 1930 of 1984 filed by the Collector of Central Excise, Calcutta, against the Appellate Tribunals order in the case of Metal Box of India Ltd., Calcutta v. Collector of Central Excise itself [reported in whereunder the Tribunal had upheld the aforesaid contention of the Metal Box. We are, however, of the opinion that whether the cap forms part of the tube cleared and sold by the respondent, or not, is a question of fact to be decided in a given case and no generalisation is possible. There has been no investigation of this factual aspect in this case because the respondent rushed to the High Court soon after receiving the demand notice. Moreover, the said decision was rendered prior to the decisions of this Court in Bombay Tyre International and Madras Rubber Factory Limited. We do not, however, express any opinion on the correctness or otherwise of the said decision of the Tribunal in Metal Box of India Ltd. | 1[ds]A reading of the judgment of the learned Single Judge, which was rendered on July 24, 1979, shows that it is influenced by the concept of post-manufacturing expenses, which was then in vogue but which theory has since been rejected by this Court in Union of India v. Bombay Tyre International (SC) = ECR C 663 SC and again recently by this Court in Government of India & Ors. v. Madras Rubber Factory Ltd. & Ors. (SC) where even the expression post-removal expenses is held to be not an accurate description of the method of levy and valuation underlying Sections 3 and 4 of the Central Excise Act. We find it difficult to sustain the judgment of the learned Single Judge and of the Division Bench, for more than one reason. But first we must mention that the filing of, and entertaining, the writ petition straightaway against a notice of demand issued by a Central Excise Officer (Superintendent of Central Excise) in a matter involving valuation was inadvisableApplying the said test, it would be evident that the theory underlying the judgment of the learned Single Judge that only the value of the extruded tube shall from the basis of the assessable value and that the costs/charges for coating/printing etc. are not includible in the assessable value, is unsustainable in law. It is not necessary to discuss the issue relating to packing charges for the reason that it has not been agitated before us. [As we have said earlier, the law in that behalf is enunciated in Bombay Tyre International and Madras Rubber Factory Limited.]For these reasons, it is also not possible for us to agree with the decision of the Gujarat High Court in Extrusion Process Private LimitedWe are, however, of the opinion that whether the cap forms part of the tube cleared and sold by the respondent, or not, is a question of fact to be decided in a given case and no generalisation is possible. There has been no investigation of this factual aspect in this case because the respondent rushed to the High Court soon after receiving the demand notice. Moreover, the said decision was rendered prior to the decisions of this Court in Bombay Tyre International and Madras Rubber Factory Limited. We do not, however, express any opinion on the correctness or otherwise of the said decision of the Tribunal in Metal Box of India LtdCivil Appeal No. 2132 of 1991,The challenge is liable to fail in view of the decision of this Court in Ujagar Prints & Ors. etc. v. Union of India & Ors. (SC) = ECR C 1281 SCNot only is this argument untenable in law but it does not actually arise for consideration in view of our holding in Civil Appeal No. 100 of 1981, that even apart from the said clause (f), the said charges are includible in the assessable value | 1 | 2,266 | 535 | ### Instruction:
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But first we must mention that the filing of, and entertaining, the writ petition straightaway against a notice of demand issued by a Central Excise Officer (Superintendent of Central Excise) in a matter involving valuation was inadvisable. It has been repeatedly deprecated by this Court, the latest decision being in Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh & Ors. which decision refers to and affirms the ratio of the earlier decisions of this Court. 4. Now coming to the merits of the case, the relevant tariff item, viz. Tariff Item 27 in the Schedule to the Central Excise Act, as it stood at the relevant time, read as follows : ALUMINIUM (a) (i) In any crude from including ingots, bars, blocks, slabs, billets, shots and pellets. (ii) Wire bars, wire rods and castings, not otherwise specified. (b) Manufactures, the following : Namely, plates, sheets, circles and strips in any form or size, not otherwise specified.(c) Foils, that is a product of thickness (Excluding any backing) not exceeding 0-15 millimetres. (d) Pipes and tubes, other than extruded pipes and tubes. (e) Extruded shapes and sections including extruded pipes and tubes. 5. Subsequently, clause (f) has been added in the above Tariff Item, which reads : (f) Containers, plain, lacquered or printed or lacquered and printed. The definition of manufacture, as inserted by the Finance Act (No. 25) of 195 with effect from March 1, 1975 reads, insofar as is relevant, thus : "(2f) Manufacture includes any process incidental or ancillary to the completion of a manufactured process; and Section 4 provides that where the duty of excise is chargeable with reference to value, such value shall, subject to other provisions of the said section, be deemed to be the normal price thereof. The normal price means the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale - vide Section 4(1)(a)." 6. In Bombay Tyre International, it has been held by this Court that the wholesale cash price at the place of removal is the basis for determination of value of an excisable article and whatever be the wholesale cash price at which the excisable article is sold in wholesale trade at the place of removal would represent the value of the excisable article on which excise duty is leviable and that no deduction from such wholesale cash price is permissible except in respect of trade discount and the amount of excisable duty payable at the time of removal of the excisable article from the place of removal. It has been held that the expenses incurred by the assessee upto the date of delivery cannot be excluded from the assessable value. Of course, so far as the cost of packing is concerned, separate principles have been enunciated in that behalf which have been reiterated and explained recently in Madras Rubber Factory Limited, where it has been reiterated that the fundamental criterion for computing the value of the excisable article is the price at which the excisable article is sold by the manufacturer and that it is not the bare manufacturing cost and manufacturing profit which constitute the basis for determining such value. It has also been held that no deductions except those provided by Section 4 are permissible to be made from the wholesale price and that all expenses incurred on account of several factors which have contributed to the value of the excisable goods upto the date of sale/date of delivery are liable to be included. Applying the said test, it would be evident that the theory underlying the judgment of the learned Single Judge that only the value of the extruded tube shall from the basis of the assessable value and that the costs/charges for coating/printing etc. are not includible in the assessable value, is unsustainable in law. It is not necessary to discuss the issue relating to packing charges for the reason that it has not been agitated before us. [As we have said earlier, the law in that behalf is enunciated in Bombay Tyre International and Madras Rubber Factory Limited.]For these reasons, it is also not possible for us to agree with the decision of the Gujarat High Court in Extrusion Process Private Limited. 7. So far as the value of the plastic cap is concerned, it is submitted by the learned counsel for the assessee that it is not only supplied by the purchaser to the assessee but that it does not form part of the tube which is sold by the assessee to the purchaser. It is further submitted by the learned counsel that fitting of the cap to the tube does not amount to manufacture, because these caps are manufactured separately and by another manufacturer. The learned counsel invited our attention to the order of this Court dated November 20, 1989 dismissing Civil Appeal No. 1930 of 1984 filed by the Collector of Central Excise, Calcutta, against the Appellate Tribunals order in the case of Metal Box of India Ltd., Calcutta v. Collector of Central Excise itself [reported in whereunder the Tribunal had upheld the aforesaid contention of the Metal Box. We are, however, of the opinion that whether the cap forms part of the tube cleared and sold by the respondent, or not, is a question of fact to be decided in a given case and no generalisation is possible. There has been no investigation of this factual aspect in this case because the respondent rushed to the High Court soon after receiving the demand notice. Moreover, the said decision was rendered prior to the decisions of this Court in Bombay Tyre International and Madras Rubber Factory Limited. We do not, however, express any opinion on the correctness or otherwise of the said decision of the Tribunal in Metal Box of India Ltd.
### Response:
1
### Explanation:
A reading of the judgment of the learned Single Judge, which was rendered on July 24, 1979, shows that it is influenced by the concept of post-manufacturing expenses, which was then in vogue but which theory has since been rejected by this Court in Union of India v. Bombay Tyre International (SC) = ECR C 663 SC and again recently by this Court in Government of India & Ors. v. Madras Rubber Factory Ltd. & Ors. (SC) where even the expression post-removal expenses is held to be not an accurate description of the method of levy and valuation underlying Sections 3 and 4 of the Central Excise Act. We find it difficult to sustain the judgment of the learned Single Judge and of the Division Bench, for more than one reason. But first we must mention that the filing of, and entertaining, the writ petition straightaway against a notice of demand issued by a Central Excise Officer (Superintendent of Central Excise) in a matter involving valuation was inadvisableApplying the said test, it would be evident that the theory underlying the judgment of the learned Single Judge that only the value of the extruded tube shall from the basis of the assessable value and that the costs/charges for coating/printing etc. are not includible in the assessable value, is unsustainable in law. It is not necessary to discuss the issue relating to packing charges for the reason that it has not been agitated before us. [As we have said earlier, the law in that behalf is enunciated in Bombay Tyre International and Madras Rubber Factory Limited.]For these reasons, it is also not possible for us to agree with the decision of the Gujarat High Court in Extrusion Process Private LimitedWe are, however, of the opinion that whether the cap forms part of the tube cleared and sold by the respondent, or not, is a question of fact to be decided in a given case and no generalisation is possible. There has been no investigation of this factual aspect in this case because the respondent rushed to the High Court soon after receiving the demand notice. Moreover, the said decision was rendered prior to the decisions of this Court in Bombay Tyre International and Madras Rubber Factory Limited. We do not, however, express any opinion on the correctness or otherwise of the said decision of the Tribunal in Metal Box of India LtdCivil Appeal No. 2132 of 1991,The challenge is liable to fail in view of the decision of this Court in Ujagar Prints & Ors. etc. v. Union of India & Ors. (SC) = ECR C 1281 SCNot only is this argument untenable in law but it does not actually arise for consideration in view of our holding in Civil Appeal No. 100 of 1981, that even apart from the said clause (f), the said charges are includible in the assessable value
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Commissioner of Income Tax (Central), Calcutta Vs. Bikaner Trading Company Limited | in the hands of the company while for the assessment year 1957-58 no income was assessed on account of dividends. The Income-tax Officer found that dividends amounting to Rs. 40, 562 (net) had been declared by the Calcutta Gas Co. Ltd. and dividends amounting to Rs. 5, 000 had been declared by the Moon Mills Ltd. during the financial year 1955-56. Similarly, dividends amounting to Rs. 7, 500 net ha been declared by the Moon Mills Ltd. during the financial year 1956-57 in favour of the assessee but the latter had not shown the sum in its return for the assessment years 1956-57 and 1957-58 respectively, on the basis that they had not been received in the respective previous years. It may be mentioned that the corresponding accounting periods for the two assessment years in question were those ending June 30, 1955, and June 30, 1956. The Income-tax Officer started action under section 34(1)(a) of the Income-tax Act, hereinafter called "the Act", and completed the assessment including the above-mentioned dividends in the income of the assessee. When the assessee appealed to the Appellate Assistant Commissioner he took the view that while dividends had to be accounted for on the basis of the declaration, the previous year in respect thereof need not necessarily be the financial year and that dividends must be accounted for if they were declared during the previous year adopted by the assessee for the source of income. He found that dividends amounting to Rs. 40, 562 and Rs. 7, 500 had been declared by the Calcutta Gas Co. Ltd. and the Moon Mills Ltd., respectively, during the previous year ending June 30, 1955. Similarly, these two companies had declared dividends of Rs. 20, 281 and Rs. 5, 000 during the year ending June 30, 1956. These dividends had been declared in favour of the assessee. He, therefore, on proper calculation included the dividend amount of Rs. 48, 063 for the assessment year 1956-57 and an amount of Rs. 25, 281 for the assessment year 1957-58. When appeals were taken to the Tribunal by the assessee the controversy centered on the question whether the dividends were to be included during the relevant assessment years unless they had been received by the assessee since it was following the cash system of account or whether mere declaration of dividends amounted to a payment unless qualified by any condition. The Tribunal only accepted the contention of the assessee that if dividends had to be included on the basis of the dates of declaration then those dividends which had been declared during the earlier period should be excluded. However, reference was sought by the assessee on the question of law which has already been set outThe judgment of the High Court is very brief and the relevant portion may be reproduced:"It is unnecessary to go into the facts of this case. The central question is whether a mere declaration of dividend attracts the operation of section 16(2) of the Indian Income-tax Act. The point has now been laid at rest by the Supreme Court in T. Dalmia v. Commissioner of Income-tax, where it was said that a mere declaration of dividend in general meeting of the company is not to be regarded as payment within the meaning of section 16(2)."3. Now section 16(2) of the Act prescribes a special rule relating to the determination of the previous year in which a dividend is liable to be included in the total income of the assessee. It is provided thereby that for the purpose of inclusion in the total income of an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been paid, credited or distributed to him. In a recent decision of this court in Benares State Bank Ltd. v. Commissioner of Income-tax, the scope of the provision of section 16(2) and the case law relating thereto have been fully discussed. It has been pointed out that this court in J. Dalmia v. Commissioner of Income-tax held that the expression "paid" in section 16(2) did not contemplate actual receipt of the dividend by the shareholder. Generally the dividend could be said to have been paid within the meaning of section 16(2) when the company discharged its liability and made the amount of dividend unconditionally available to the member entitled thereto. It was said that the legislature had not made dividend income taxable in the year in which it became due; by express words of the statute it was taxable only in the year in which it was paid, credited or distributed or was deemed to be paid, credited or distributed. The other cases which have been referred to and in which the above view has been reiterated are Ramesh R. Saraiya v. Commissioner of Income-tax and Punjab Distilling Industries Ltd. v. Commissioner of Income-taxIn the present case apart from the declaration of dividend there are hardly any facts found by the Tribunal from which it can be legally inferred that there was payment or distribution of dividends at a particular point of time. In this connection it is necessary to ascertain the date or dates on which the dividend warrants were handed over to the assessee. We therefore propose to follow the same course which was followed in the case of Benares State Bank Ltd. v. Commissioner of Income-tax, namely, to direct the Tribunal to submit a supplementary statement of the case under section 66(4) of the Act with regard to the point of time when the dividend warrants were delivered to the assessee. The Tribunal will undoubtedly have to restrict itself to the evidence on the record and cannot take additional evidence. The Tribunal will submit the supplementary statement of the case within three months from the date on which the order of this court is received by it. After the supplementary statement of the case is received, these appeals will be posted for hearingSHAH J.4. | 0[ds]The judgment of the High Court is very brief and the relevant portion may beis unnecessary to go into the facts of this case. The central question is whether a mere declaration of dividend attracts the operation of section 16(2) of the Indian Income-tax Act. The point has now been laid at rest by the Supreme Court in T. Dalmia v. Commissioner of Income-tax, where it was said that a mere declaration of dividend in general meeting of the company is not to be regarded as payment within the meaning of sectionsection 16(2) of the Act prescribes a special rule relating to the determination of the previous year in which a dividend is liable to be included in the total income of the assessee. It is provided thereby that for the purpose of inclusion in the total income of an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been paid, credited or distributed to him. In a recent decision of this court in Benares State Bank Ltd. v. Commissioner of Income-tax, the scope of the provision of section 16(2) and the case law relating thereto have been fully discussed. It has been pointed out that this court in J. Dalmia v. Commissioner of Income-tax held that the expression "paid" in section 16(2) did not contemplate actual receipt of the dividend by the shareholder. Generally the dividend could be said to have been paid within the meaning of section 16(2) when the company discharged its liability and made the amount of dividend unconditionally available to the member entitled thereto. It was said that the legislature had not made dividend income taxable in the year in which it became due; by express words of the statute it was taxable only in the year in which it was paid, credited or distributed or was deemed to be paid, credited or distributed. The other cases which have been referred to and in which the above view has been reiterated are Ramesh R. Saraiya v. Commissioner of Income-tax and Punjab Distilling Industries Ltd. v. Commissioner of Income-taxIn the present case apart from the declaration of dividend there are hardly any facts found by the Tribunal from which it can be legally inferred that there was payment or distribution of dividends at a particular point of time. In this connection it is necessary to ascertain the date or dates on which the dividend warrants were handed over to the assessee. We therefore propose to follow the same course which was followed in the case of Benares State Bank Ltd. v. Commissioner of Income-tax, namely, to direct the Tribunal to submit a supplementary statement of the case under section 66(4) of the Act with regard to the point of time when the dividend warrants were delivered to the assessee. The Tribunal will undoubtedly have to restrict itself to the evidence on the record and cannot take additionalTribunal has submitted a statement of case, and has observed that there is no information on record as to when the dividend warrants were handed over to the assessee. In the absence of any evidence to show that the dividend warrants were handed over to the assessee within the years of account ending June 30, 1955, and June 30, 1956, it cannot be held that the assessee is liable to pay income-tax on the dividends received by it. The burden of proving that an amount was taxable because it was received in the year of account lay upon the department, and in the absence of the information called for they are not liable to be taxed | 0 | 1,226 | 666 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
in the hands of the company while for the assessment year 1957-58 no income was assessed on account of dividends. The Income-tax Officer found that dividends amounting to Rs. 40, 562 (net) had been declared by the Calcutta Gas Co. Ltd. and dividends amounting to Rs. 5, 000 had been declared by the Moon Mills Ltd. during the financial year 1955-56. Similarly, dividends amounting to Rs. 7, 500 net ha been declared by the Moon Mills Ltd. during the financial year 1956-57 in favour of the assessee but the latter had not shown the sum in its return for the assessment years 1956-57 and 1957-58 respectively, on the basis that they had not been received in the respective previous years. It may be mentioned that the corresponding accounting periods for the two assessment years in question were those ending June 30, 1955, and June 30, 1956. The Income-tax Officer started action under section 34(1)(a) of the Income-tax Act, hereinafter called "the Act", and completed the assessment including the above-mentioned dividends in the income of the assessee. When the assessee appealed to the Appellate Assistant Commissioner he took the view that while dividends had to be accounted for on the basis of the declaration, the previous year in respect thereof need not necessarily be the financial year and that dividends must be accounted for if they were declared during the previous year adopted by the assessee for the source of income. He found that dividends amounting to Rs. 40, 562 and Rs. 7, 500 had been declared by the Calcutta Gas Co. Ltd. and the Moon Mills Ltd., respectively, during the previous year ending June 30, 1955. Similarly, these two companies had declared dividends of Rs. 20, 281 and Rs. 5, 000 during the year ending June 30, 1956. These dividends had been declared in favour of the assessee. He, therefore, on proper calculation included the dividend amount of Rs. 48, 063 for the assessment year 1956-57 and an amount of Rs. 25, 281 for the assessment year 1957-58. When appeals were taken to the Tribunal by the assessee the controversy centered on the question whether the dividends were to be included during the relevant assessment years unless they had been received by the assessee since it was following the cash system of account or whether mere declaration of dividends amounted to a payment unless qualified by any condition. The Tribunal only accepted the contention of the assessee that if dividends had to be included on the basis of the dates of declaration then those dividends which had been declared during the earlier period should be excluded. However, reference was sought by the assessee on the question of law which has already been set outThe judgment of the High Court is very brief and the relevant portion may be reproduced:"It is unnecessary to go into the facts of this case. The central question is whether a mere declaration of dividend attracts the operation of section 16(2) of the Indian Income-tax Act. The point has now been laid at rest by the Supreme Court in T. Dalmia v. Commissioner of Income-tax, where it was said that a mere declaration of dividend in general meeting of the company is not to be regarded as payment within the meaning of section 16(2)."3. Now section 16(2) of the Act prescribes a special rule relating to the determination of the previous year in which a dividend is liable to be included in the total income of the assessee. It is provided thereby that for the purpose of inclusion in the total income of an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been paid, credited or distributed to him. In a recent decision of this court in Benares State Bank Ltd. v. Commissioner of Income-tax, the scope of the provision of section 16(2) and the case law relating thereto have been fully discussed. It has been pointed out that this court in J. Dalmia v. Commissioner of Income-tax held that the expression "paid" in section 16(2) did not contemplate actual receipt of the dividend by the shareholder. Generally the dividend could be said to have been paid within the meaning of section 16(2) when the company discharged its liability and made the amount of dividend unconditionally available to the member entitled thereto. It was said that the legislature had not made dividend income taxable in the year in which it became due; by express words of the statute it was taxable only in the year in which it was paid, credited or distributed or was deemed to be paid, credited or distributed. The other cases which have been referred to and in which the above view has been reiterated are Ramesh R. Saraiya v. Commissioner of Income-tax and Punjab Distilling Industries Ltd. v. Commissioner of Income-taxIn the present case apart from the declaration of dividend there are hardly any facts found by the Tribunal from which it can be legally inferred that there was payment or distribution of dividends at a particular point of time. In this connection it is necessary to ascertain the date or dates on which the dividend warrants were handed over to the assessee. We therefore propose to follow the same course which was followed in the case of Benares State Bank Ltd. v. Commissioner of Income-tax, namely, to direct the Tribunal to submit a supplementary statement of the case under section 66(4) of the Act with regard to the point of time when the dividend warrants were delivered to the assessee. The Tribunal will undoubtedly have to restrict itself to the evidence on the record and cannot take additional evidence. The Tribunal will submit the supplementary statement of the case within three months from the date on which the order of this court is received by it. After the supplementary statement of the case is received, these appeals will be posted for hearingSHAH J.4.
### Response:
0
### Explanation:
The judgment of the High Court is very brief and the relevant portion may beis unnecessary to go into the facts of this case. The central question is whether a mere declaration of dividend attracts the operation of section 16(2) of the Indian Income-tax Act. The point has now been laid at rest by the Supreme Court in T. Dalmia v. Commissioner of Income-tax, where it was said that a mere declaration of dividend in general meeting of the company is not to be regarded as payment within the meaning of sectionsection 16(2) of the Act prescribes a special rule relating to the determination of the previous year in which a dividend is liable to be included in the total income of the assessee. It is provided thereby that for the purpose of inclusion in the total income of an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been paid, credited or distributed to him. In a recent decision of this court in Benares State Bank Ltd. v. Commissioner of Income-tax, the scope of the provision of section 16(2) and the case law relating thereto have been fully discussed. It has been pointed out that this court in J. Dalmia v. Commissioner of Income-tax held that the expression "paid" in section 16(2) did not contemplate actual receipt of the dividend by the shareholder. Generally the dividend could be said to have been paid within the meaning of section 16(2) when the company discharged its liability and made the amount of dividend unconditionally available to the member entitled thereto. It was said that the legislature had not made dividend income taxable in the year in which it became due; by express words of the statute it was taxable only in the year in which it was paid, credited or distributed or was deemed to be paid, credited or distributed. The other cases which have been referred to and in which the above view has been reiterated are Ramesh R. Saraiya v. Commissioner of Income-tax and Punjab Distilling Industries Ltd. v. Commissioner of Income-taxIn the present case apart from the declaration of dividend there are hardly any facts found by the Tribunal from which it can be legally inferred that there was payment or distribution of dividends at a particular point of time. In this connection it is necessary to ascertain the date or dates on which the dividend warrants were handed over to the assessee. We therefore propose to follow the same course which was followed in the case of Benares State Bank Ltd. v. Commissioner of Income-tax, namely, to direct the Tribunal to submit a supplementary statement of the case under section 66(4) of the Act with regard to the point of time when the dividend warrants were delivered to the assessee. The Tribunal will undoubtedly have to restrict itself to the evidence on the record and cannot take additionalTribunal has submitted a statement of case, and has observed that there is no information on record as to when the dividend warrants were handed over to the assessee. In the absence of any evidence to show that the dividend warrants were handed over to the assessee within the years of account ending June 30, 1955, and June 30, 1956, it cannot be held that the assessee is liable to pay income-tax on the dividends received by it. The burden of proving that an amount was taxable because it was received in the year of account lay upon the department, and in the absence of the information called for they are not liable to be taxed
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All India Itdc Workers Union & Ors Vs. Itdc & Ors | is gone through without contravening any law, then the normal consequences as a result of disinvestment must follow.49. The Government could have run the industry departmentally or in any other form. When it chooses to run an industry by forming a company and it becomes its shareholder then under the provisions of the Companies Act as a shareholder, it would have a right to transfer its shares. When persons seek and get employment with such a company registered under the Companies Act, it must be presumed that they accept the right of the directors and the shareholders to conduct the affairs of the company in accordance with law and at the same time they can exercise the right to sell their shares." 36. We may also usefully refer to the decision of the Madras High Court in the case of (Southern Structurals Staff Union vs. Southern Structurals Ltd.) (1994) 81 Comp. Cases 389 (Mad) wherein the Madras High Court held as follows:- "The employees have no vested right in the employer company continuing to be a government company or other authority for the purpose of Article 12 of the Constitution of India..... The status so conferred on the employees does not prevent the Government from disinvesting; nor does it make the consent of the employees a necessary precondition for disinvestment." 37. In the case of Balco, as well as in the present case, the Government of India has ensured that the interest of the workmen are fully protected. As in the case of Balco, the shareholder agreement between Government of India and the purchaser has been reproduced in the reply affidavit filed on behalf of the Union of India in transfer case No. 73 of 2002.38. We may also place on record the submission made by learned senior counsel Mr. Rakesh Dwivedi that the Government of India cannot have any objection to a direction to the Hotel Yamuna View Private Limited to float a VRS scheme keeping in view its obligation under para 9.4(iv) of the share purchase agreement in terms of the office memo dated 05.05.2000.39. A perusal of paragraphs 23, 24, 54, 55 and 56 of the judgment of this Court in Balco would indicate that the above protection of the workers interest in similar circumstances has been held by this Court to be adequate and lawful. This Court in para 55 has observed as follows:- "55.We are satisfied that the workers interests are adequately protected in the process of disinvestment. Apart from the aforesaid undertaking given in the Court, the existing laws adequately protect workers interest and no decision affecting a huge body of workers can be taken without the prior consent of the State Government. Furthermore, the service conditions are governed by the certified orders of the Company and any change in the conditions thereto can only be made in accordance with law." 40. Further as per the Demerger Scheme, all the liabilities relating to the transferred undertaking upto the date of transfer were taken over and were to be discharged by the transferee. Thus, the transferee is liable to pay all the liabilities and dues (including gratuity) to the employees on the same terms and conditions of service which were applicable to the employees in the hotel, including the benefits related to the tenure of service in the hotel upto the date of transfer. As far as the provident fund of the employees is concerned, the PF accounts of the employees of the hotel in ITDC PF Trust were transferred by the trust to the new accounts of the concerned employees in the Regional Provident Fund Commissioner after the completion of formalities under the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952.41. The demerger of the hotel union from ITDC was a considered decision taken by the Cabinet Committee on Disinvestment and had the approval of the Department of Company Affairs in terms of the Companies Act, 1956. The reasons for creating a separate companies has been given in the reply affidavit and the contents of the same are reiterated in reply.42. By order made by the Department of Company Affairs on 04.10.2001, ITDC was directed to convene a meeting of the creditors of Hotel Agra Ashok for the purpose of considering and if thought fit approving with or without modifications, the scheme and the said order also appointed Mr. S.B.Mathur D- 11 (Retd.) Department of Company Affairs as Chairman for the meeting who was also to report the result of the meeting to the Department of Company Affairs on the conclusion of the creditors meeting. A meeting was held on 30.10.2001 and the Chairman of the said meeting had directly reported the result of the meeting to the Department of Company Affairs.43. It may also be noticed that a fresh petition was filed with the Department of Company Affairs on 26.12.2001 under Section 391 and 394 of the Companies Act for approval to new scheme of agreement between ITDC and Hotel Yamuna View Private Limited and their respective shareholders for Hotel Agra Ashok. The company was also directed vide order dated 01.01.2002 to give public notice regarding the scheme of arrangement and hearing through advertisement in a leading English and vernacular daily newspaper. The notice was duly published in Indian Express on 04.01.2002 and Amar Ujala, Agra Edition Hindi on 05.01.2002 after protecting the interest of the creditors and hearing the parties the Department of Company Affairs gave approval of the scheme of agreement on 01.02.2002. The demerger was complete on 01.02.2002. It is only thereafter that the shares of Government of India in Hotel Yamuna View Private Limited was sold to Respondent No.5 on 07.02.2002 by the share purchase agreement.44. It is also brought to our notice at the time of hearing that all the 8 petitioners who have challenged the policy decision of the Government of India have resigned their job and joined some other service. The statement was not disputed or denied by learned senior counsel for the petitioners. | 0[ds]19. The above judgment is distinguishable on facts and on law. The Jawaharlal Nehru University case (supra) would indicate that, in that case there was a purported transfer of the employee from Jawaharlal Nehru University to the Manipur University without his consent. Admittedly the JNU did not exercise any control over Manipur University. In the instant case, the transfer was from ITDC Ltd. to respondent No.3 Company, thepattern of the two companies were exactly the same. Therefore, it did not make any difference to the employees, especially, when the scheme ofitself provide that the employee will continue in service of the respondent No.3 with full benefits including continuity in service. The provisions of the Companies Act, 1956 were not involved in the JNUs case. Further the two Universities were totally unconnected entities hence the ratio of that judgment, in our opinion, is not applicable to the facts in hand. Even in the judgment of this Court, in JNU in para 8 it has been observed that at worst this would not impinge upon the validity of thescheme. The effect of that would be that the employee would be deemed to have retrenched and would be entitled to compensation as such in accordance with law. In the instant case, the employees never claimed that they may be considered as retrenched. Even if it is the claim of the petitioners that they have been retrenched, the writ petition is not the appropriate proceedings and the petitioners were required to institute appropriate proceedings as per the industrial/labour laws.We have given our thoughtful consideration to the rival submissions made by the respective counsel appearing for the respective parties. In our opinion, the present writ petitions filed by the employees merits to be dismissed. Since disinvestment was a policy decision of the Government of India. This Court also has held that the said policy decision should be least interfered in judicial review and that the Government employees have no absolute right under Article 14, 21 and 311 of the Constitution of India and that the Government can abolish the post itself. In the present case, the petitioners are not government servants and are merely employees of a public sector undertaking. This apart, the service conditions of the petitioners are being protected under the new management on the disinvestment of the Hotel and the fact that other hotels are also in an advanced stage of disinvestment in pursuance of the policy decision taken by the Government of India for disinvestment of the hotel units. We see no reason to interfere with the aforesaid decision. In case ultimately the petitioners are aggrieved by any aspect of terms of reference and formalization of agreement and completion of disinvestment it is always open to the petitioners to approach the courts for redressal of their grievances.24. We have already extracted Clause 9.4 of the share purchase agreement dated 07.02.2002 in paragraphs supra. In our view, the decision of the Government of India to divest the property was a policy decision which was not in any manner contrary to the law of the land. Similar policy decision of the Government of India to disinvest 51% of this share holding in Bharat Aluminium Company Limited referred to as Balco was challenged before this Court and this Court has dealt with the scope of the judicial review in such economic policy decisions. This Court rejected the contention that the sale of the shares of the Government of India in Balco was legal and the employees of Balco have ceased to be employees of a government company. However, it is stated that the service conditions of the employees were not affected by the transfer of the shares.25. We have also carefully perused the scheme. It is evident from the scheme itself that all the employees were to be retained as stipulated in the transfer documents on the same terms and conditions of service for 1 year and they were entitled for payment of gratuity and provident fund as per the then existing scheme. The terms and conditions of service applicable to the employees was not in any way be less favourable than those applicable to them immediately on the date thereof.In view of the above, we are of the opinion that the apprehension of the employees is baseless and is liable to be rejected.27. It is also pertinent to notice that ITDC has not participated in the disinvestment process as the same was carried out by the Ministry of Disinvestment, Government of India. The safeguards regarding the service conditions of the employees have been duly provided in the transfer document i.e.scheme and share purchase agreement. This Court also in Balco Employees Union (Regd.) vs. Union of India and Others, (2002) 2 SCC 333 held that the employees of the company registered under the Indian Companies Act do not have any vested right to continue to enjoy the status of the employee of an instrumentality of the State.28. In the instant case, with the intention to promote the scheme of disinvestment, the Government issued an advertisement to outright sale of 6 hotels and long term lease for 2 hotels. The property of respondent No.1 was demerged in the name of the new company with the approval of the Company Law Board. We have perused the order approving the scheme of arrangement as annexed and marked asAll the employees after the creation of the new company were shifted to the new company which was also a subsidiary company of ITDC. Respondent No.1 invited tenders for sale of the Hotel. The offer made by Respondent Nos. 4 and 5 was accepted by respondent No.1 as successful bidder and accordingly, the shares of Hotel Yamuna View Private Limited were transferred under share purchase agreement dated 07.02.2002. It is pertinent to notice that at the time of inviting bid, no such liabilities of VRS to the employees were shown against Hotel Agra Ashok. All the liabilities were mentioned in the balance sheet of the company including property tax and water tax to be deposited with the Cantonment Board. Respondent Nos. 4 and 5 got the shares of Hotel Yamuna Private Limited transferred in their favour while share transfer agreement dated 07.02.2002 wherein certain conditions were put in by respondent No.1 keeping in mind the order of the High Court for maintaining the status quo of the class III and IV employees. Pursuant to the agreement, the Management of the Hotel was transferred to respondent No.4.29.The employees have also challenged the nonimplementation of VRS in respect of the employees of Hotel Agra Ashok.In our view, the petitioners/employees cannot claim parity in respect of other employees working under ITDC in different properties who have been granted benefits under VRS as the scheme was never made applicable to the employees working with the present property. No disclosure of any such introduction of VRS was given by ITDC at the time of sale, neither was any amount to be deposited by the purchaser. We are, therefore, of the opinion that respondent Nos. 4 and 5 is under no obligation to float the VRS scheme because in para 9(4), the VRS has to be given only when company retrenches its regular employees. But here the company is ready to continue with its employees with the same terms and conditions mentioned in the share purchase agreement. The employees are unwilling to continue on the same terms and, therefore, they cannot compel the management to introduce VRS scheme. When the share purchase agreement was executed with respondent No.5, then there was no scheme introduced for grant of VRS because prior to the sale the petitioners were employees of ITDC and not of Hotel Yamuna View Limited. They have already objected their transfer to Hotel Yamuna Private Limited. The petitioners are demanding VRS from ITDC because as per the orders dated 13.12.2001 and 05.03.2002 of the Allahabad High Court, the employees of Hotel Agra Ashok cannot be transferred to the new company Hotel Yamuna Private Limited. With intention to escape the liability of contempt, the ITDC specifically asked the buyer to maintain the service conditions of the employees on the same terms by entering into a share purchase agreement, however, no condition in this agreement was mentioned for offering VRS. In other words, a VRS scheme for employees of Ashok Travels & Tours was introduced by circular dated 02.03.2001 but there was no policy for VRS regarding Hotel Agra Ashok. Also under Clause 8 of the said circular regarding introduction of VRS, it is clearly stated that the scheme does not confer any right whatsoever on any employee to have their request for voluntary retirement accepted. The respondent has also no such obligation under para 94 (IV).As already noticed, the Government of India constituted the Disinvestment Commission and accepted the recommendation of the said Commission. A decision was taken byGroup and at the level of the Cabinet Committee on Disinvestment to divest each property individually rather than altogether or in groups.32. It is also beneficial for us to refer to the judgment of Balco Employees Union (Regd.) vs. Union of India and Others (supra) by which this Court has dealt with the scope of the judicial review in such economic policy decisions.In the instant case, the Government has acted on advice of experts before taking a decision to disinvest its shares in ITDC Limited. Even thereafter, through a fair and transparent process as detailed in the reply affidavit of the Union of India, the Government has ensured that it has got the best price for its shares. It is also pertinent to notice that the Government has not received any other higher offer. The contention of the learned senior counsel for the writ petitioners that the price is less has not been supported by any documentary evidence.In the case of Balco, as well as in the present case, the Government of India has ensured that the interest of the workmen are fully protected. As in the case of Balco, the shareholder agreement between Government of India and the purchaser has been reproduced in the reply affidavit filed on behalf of the Union of India in transfer case No. 73 of 2002.38. We may also place on record the submission made by learned senior counsel Mr. Rakesh Dwivedi that the Government of India cannot have any objection to a direction to the Hotel Yamuna View Private Limited to float a VRS scheme keeping in view its obligation under para 9.4(iv) of the share purchase agreement in terms of the office memo dated 05.05.2000.39. A perusal of paragraphs 23, 24, 54, 55 and 56 of the judgment of this Court in Balco would indicate that the above protection of the workers interest in similar circumstances has been held by this Court to be adequate and lawful.Further as per the Demerger Scheme, all the liabilities relating to the transferred undertaking upto the date of transfer were taken over and were to be discharged by the transferee. Thus, the transferee is liable to pay all the liabilities and dues (including gratuity) to the employees on the same terms and conditions of service which were applicable to the employees in the hotel, including the benefits related to the tenure of service in the hotel upto the date of transfer. As far as the provident fund of the employees is concerned, the PF accounts of the employees of the hotel in ITDC PF Trust were transferred by the trust to the new accounts of the concerned employees in the Regional Provident Fund Commissioner after the completion of formalities under the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952.41. The demerger of the hotel union from ITDC was a considered decision taken by the Cabinet Committee on Disinvestment and had the approval of the Department of Company Affairs in terms of the Companies Act, 1956. The reasons for creating a separate companies has been given in the reply affidavit and the contents of the same are reiterated in reply.42. By order made by the Department of Company Affairs on 04.10.2001, ITDC was directed to convene a meeting of the creditors of Hotel Agra Ashok for the purpose of considering and if thought fit approving with or without modifications, the scheme and the said order also appointed Mr. S.B.Mathur D11 (Retd.) Department of Company Affairs as Chairman for the meeting who was also to report the result of the meeting to the Department of Company Affairs on the conclusion of the creditors meeting. A meeting was held on 30.10.2001 and the Chairman of the said meeting had directly reported the result of the meeting to the Department of Company Affairs.43. It may also be noticed that a fresh petition was filed with the Department of Company Affairs on 26.12.2001 under Section 391 and 394 of the Companies Act for approval to new scheme of agreement between ITDC and Hotel Yamuna View Private Limited and their respective shareholders for Hotel Agra Ashok. The company was also directed vide order dated 01.01.2002 to give public notice regarding the scheme of arrangement and hearing through advertisement in a leading English and vernacular daily newspaper. The notice was duly published in Indian Express on 04.01.2002 and Amar Ujala, Agra Edition Hindi on 05.01.2002 after protecting the interest of the creditors and hearing the parties the Department of Company Affairs gave approval of the scheme of agreement on 01.02.2002. The demerger was complete on 01.02.2002. It is only thereafter that the shares of Government of India in Hotel Yamuna View Private Limited was sold to Respondent No.5 on 07.02.2002 by the share purchase agreement.44. It is also brought to our notice at the time of hearing that all the 8 petitioners who have challenged the policy decision of the Government of India have resigned their job and joined some other service. The statement was not disputed or denied by learned senior counsel for the petitioners. | 0 | 7,825 | 2,486 | ### Instruction:
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is gone through without contravening any law, then the normal consequences as a result of disinvestment must follow.49. The Government could have run the industry departmentally or in any other form. When it chooses to run an industry by forming a company and it becomes its shareholder then under the provisions of the Companies Act as a shareholder, it would have a right to transfer its shares. When persons seek and get employment with such a company registered under the Companies Act, it must be presumed that they accept the right of the directors and the shareholders to conduct the affairs of the company in accordance with law and at the same time they can exercise the right to sell their shares." 36. We may also usefully refer to the decision of the Madras High Court in the case of (Southern Structurals Staff Union vs. Southern Structurals Ltd.) (1994) 81 Comp. Cases 389 (Mad) wherein the Madras High Court held as follows:- "The employees have no vested right in the employer company continuing to be a government company or other authority for the purpose of Article 12 of the Constitution of India..... The status so conferred on the employees does not prevent the Government from disinvesting; nor does it make the consent of the employees a necessary precondition for disinvestment." 37. In the case of Balco, as well as in the present case, the Government of India has ensured that the interest of the workmen are fully protected. As in the case of Balco, the shareholder agreement between Government of India and the purchaser has been reproduced in the reply affidavit filed on behalf of the Union of India in transfer case No. 73 of 2002.38. We may also place on record the submission made by learned senior counsel Mr. Rakesh Dwivedi that the Government of India cannot have any objection to a direction to the Hotel Yamuna View Private Limited to float a VRS scheme keeping in view its obligation under para 9.4(iv) of the share purchase agreement in terms of the office memo dated 05.05.2000.39. A perusal of paragraphs 23, 24, 54, 55 and 56 of the judgment of this Court in Balco would indicate that the above protection of the workers interest in similar circumstances has been held by this Court to be adequate and lawful. This Court in para 55 has observed as follows:- "55.We are satisfied that the workers interests are adequately protected in the process of disinvestment. Apart from the aforesaid undertaking given in the Court, the existing laws adequately protect workers interest and no decision affecting a huge body of workers can be taken without the prior consent of the State Government. Furthermore, the service conditions are governed by the certified orders of the Company and any change in the conditions thereto can only be made in accordance with law." 40. Further as per the Demerger Scheme, all the liabilities relating to the transferred undertaking upto the date of transfer were taken over and were to be discharged by the transferee. Thus, the transferee is liable to pay all the liabilities and dues (including gratuity) to the employees on the same terms and conditions of service which were applicable to the employees in the hotel, including the benefits related to the tenure of service in the hotel upto the date of transfer. As far as the provident fund of the employees is concerned, the PF accounts of the employees of the hotel in ITDC PF Trust were transferred by the trust to the new accounts of the concerned employees in the Regional Provident Fund Commissioner after the completion of formalities under the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952.41. The demerger of the hotel union from ITDC was a considered decision taken by the Cabinet Committee on Disinvestment and had the approval of the Department of Company Affairs in terms of the Companies Act, 1956. The reasons for creating a separate companies has been given in the reply affidavit and the contents of the same are reiterated in reply.42. By order made by the Department of Company Affairs on 04.10.2001, ITDC was directed to convene a meeting of the creditors of Hotel Agra Ashok for the purpose of considering and if thought fit approving with or without modifications, the scheme and the said order also appointed Mr. S.B.Mathur D- 11 (Retd.) Department of Company Affairs as Chairman for the meeting who was also to report the result of the meeting to the Department of Company Affairs on the conclusion of the creditors meeting. A meeting was held on 30.10.2001 and the Chairman of the said meeting had directly reported the result of the meeting to the Department of Company Affairs.43. It may also be noticed that a fresh petition was filed with the Department of Company Affairs on 26.12.2001 under Section 391 and 394 of the Companies Act for approval to new scheme of agreement between ITDC and Hotel Yamuna View Private Limited and their respective shareholders for Hotel Agra Ashok. The company was also directed vide order dated 01.01.2002 to give public notice regarding the scheme of arrangement and hearing through advertisement in a leading English and vernacular daily newspaper. The notice was duly published in Indian Express on 04.01.2002 and Amar Ujala, Agra Edition Hindi on 05.01.2002 after protecting the interest of the creditors and hearing the parties the Department of Company Affairs gave approval of the scheme of agreement on 01.02.2002. The demerger was complete on 01.02.2002. It is only thereafter that the shares of Government of India in Hotel Yamuna View Private Limited was sold to Respondent No.5 on 07.02.2002 by the share purchase agreement.44. It is also brought to our notice at the time of hearing that all the 8 petitioners who have challenged the policy decision of the Government of India have resigned their job and joined some other service. The statement was not disputed or denied by learned senior counsel for the petitioners.
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Ashok cannot be transferred to the new company Hotel Yamuna Private Limited. With intention to escape the liability of contempt, the ITDC specifically asked the buyer to maintain the service conditions of the employees on the same terms by entering into a share purchase agreement, however, no condition in this agreement was mentioned for offering VRS. In other words, a VRS scheme for employees of Ashok Travels & Tours was introduced by circular dated 02.03.2001 but there was no policy for VRS regarding Hotel Agra Ashok. Also under Clause 8 of the said circular regarding introduction of VRS, it is clearly stated that the scheme does not confer any right whatsoever on any employee to have their request for voluntary retirement accepted. The respondent has also no such obligation under para 94 (IV).As already noticed, the Government of India constituted the Disinvestment Commission and accepted the recommendation of the said Commission. A decision was taken byGroup and at the level of the Cabinet Committee on Disinvestment to divest each property individually rather than altogether or in groups.32. It is also beneficial for us to refer to the judgment of Balco Employees Union (Regd.) vs. Union of India and Others (supra) by which this Court has dealt with the scope of the judicial review in such economic policy decisions.In the instant case, the Government has acted on advice of experts before taking a decision to disinvest its shares in ITDC Limited. Even thereafter, through a fair and transparent process as detailed in the reply affidavit of the Union of India, the Government has ensured that it has got the best price for its shares. It is also pertinent to notice that the Government has not received any other higher offer. The contention of the learned senior counsel for the writ petitioners that the price is less has not been supported by any documentary evidence.In the case of Balco, as well as in the present case, the Government of India has ensured that the interest of the workmen are fully protected. As in the case of Balco, the shareholder agreement between Government of India and the purchaser has been reproduced in the reply affidavit filed on behalf of the Union of India in transfer case No. 73 of 2002.38. We may also place on record the submission made by learned senior counsel Mr. Rakesh Dwivedi that the Government of India cannot have any objection to a direction to the Hotel Yamuna View Private Limited to float a VRS scheme keeping in view its obligation under para 9.4(iv) of the share purchase agreement in terms of the office memo dated 05.05.2000.39. A perusal of paragraphs 23, 24, 54, 55 and 56 of the judgment of this Court in Balco would indicate that the above protection of the workers interest in similar circumstances has been held by this Court to be adequate and lawful.Further as per the Demerger Scheme, all the liabilities relating to the transferred undertaking upto the date of transfer were taken over and were to be discharged by the transferee. Thus, the transferee is liable to pay all the liabilities and dues (including gratuity) to the employees on the same terms and conditions of service which were applicable to the employees in the hotel, including the benefits related to the tenure of service in the hotel upto the date of transfer. As far as the provident fund of the employees is concerned, the PF accounts of the employees of the hotel in ITDC PF Trust were transferred by the trust to the new accounts of the concerned employees in the Regional Provident Fund Commissioner after the completion of formalities under the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952.41. The demerger of the hotel union from ITDC was a considered decision taken by the Cabinet Committee on Disinvestment and had the approval of the Department of Company Affairs in terms of the Companies Act, 1956. The reasons for creating a separate companies has been given in the reply affidavit and the contents of the same are reiterated in reply.42. By order made by the Department of Company Affairs on 04.10.2001, ITDC was directed to convene a meeting of the creditors of Hotel Agra Ashok for the purpose of considering and if thought fit approving with or without modifications, the scheme and the said order also appointed Mr. S.B.Mathur D11 (Retd.) Department of Company Affairs as Chairman for the meeting who was also to report the result of the meeting to the Department of Company Affairs on the conclusion of the creditors meeting. A meeting was held on 30.10.2001 and the Chairman of the said meeting had directly reported the result of the meeting to the Department of Company Affairs.43. It may also be noticed that a fresh petition was filed with the Department of Company Affairs on 26.12.2001 under Section 391 and 394 of the Companies Act for approval to new scheme of agreement between ITDC and Hotel Yamuna View Private Limited and their respective shareholders for Hotel Agra Ashok. The company was also directed vide order dated 01.01.2002 to give public notice regarding the scheme of arrangement and hearing through advertisement in a leading English and vernacular daily newspaper. The notice was duly published in Indian Express on 04.01.2002 and Amar Ujala, Agra Edition Hindi on 05.01.2002 after protecting the interest of the creditors and hearing the parties the Department of Company Affairs gave approval of the scheme of agreement on 01.02.2002. The demerger was complete on 01.02.2002. It is only thereafter that the shares of Government of India in Hotel Yamuna View Private Limited was sold to Respondent No.5 on 07.02.2002 by the share purchase agreement.44. It is also brought to our notice at the time of hearing that all the 8 petitioners who have challenged the policy decision of the Government of India have resigned their job and joined some other service. The statement was not disputed or denied by learned senior counsel for the petitioners.
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MAHABIR PROSAD CHOUDHARY Vs. M/S OCTAVIUS TEA AND INDUSTRIES LTD. AND ANR | the submission of the parties had made following observations:-?On a perusal of the order dated 30.09.2008 it is difficult for this Court to accept the contention raised on behalf of the workman. It appears from the said order that the Tribunal had accepted the position that notice under Rule 21 of the said Rules had not been served upon the company before placing the case for ex-parte hearing. It has also accepted that Written Statement filed the workman had not been served upon them in accordance with provisions contained in Rules 20B(5) of the said Rules. On the face of such finding recorded by the Tribunal, it is absolutely clear that proceedings were conducted before it, leading to the impugned award, in clear violation of principles of natural as well as mandatory provisions of law. The award passed on 26.2.2008 is liable to be set aside only on this ground.?12. Shri Manoj Swarup, learned counsel for the appellant has strenuously contended that present is not a case of any breach of Rule 20B(5) as held by the High Court. The relevant order of the Industrial Tribunal has been brought on the record by the appellant, i.e., of 11.10.2007, where workman had appeared and filed Written Statement. It has been noted in the order that copy of the W/S cannot be served upon the another party as none appeared on behalf of the company. Sub-rule (5) of Rule 20B, which is relevant for present case is reproduced for ready reference:- 20B. Statement of case or written statement. – XXXXXXXXXXXXXXXXXXXXXXXX (5) A copy of the statement of case or the written statement shall be served on the first party or the second party, as the case may be, by the Industrial Tribunal/Labour Court within seven days from the date on which copies of the statement of case or the written statement, as the case may be, are filed by making it over to the party concerned or to its authorised representative in the Office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court.13. A perusal of sub-rule(5) of Rule 20B indicates that the copy of the statement of the case or the W/S is to be served on the first party or the second party, as the case may be, by the Industrial Tribunal/Labour Court within seven days from the date on which copies of the statement of case or the written statement, as the case may be, are filed, by making it over to the party concerned or to its authorised representative in the Office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court. The duty, thus, has been cast on the Tribunal to serve a copy of W/S or statement of case on either side. The use of word ?shall be served? in sub-clause (5) of Rule 20B has to be given some meaning and purpose. The provision obviously cast a duty on Industrial Tribunal and the Court to ensure that service should be completed within seven days. Another aspect, which is decipherable from the Rule is that Tribunal has to ensure that statement of case of W/S has to be served by making it available to the party concerned or its authorised representative in the office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose. The last line of the sub-rule (5) used the expression ?on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court?. The above expression contains two requirements, firstly, the Industrial Tribunal/Labour Court has to fix a date for service of statement of case of W/S within 7 days, specially, fixed date for the purpose and secondly date and time fixed for purpose has to be intimated to the party concerned. Although sub-rule(5) does not contemplate issuing any second notice after receipt of the statement of a case or a W/S, i.e. date and time is required to be fixed for the purpose of statement of case and a date and time, which is also required to be intimated to the party concerned for the purpose. In the facts of present case, it has to be held that the Tribunal was required to intimate date and time for receiving of the written statement by the company. Neither the order sheet of Tribunal indicate that any date was fixed for such service of W/S nor any intimation was sent to the company. Thus, there was a clear breach of sub-rule(5) of Rule 20B, no error has been committed by High Court in taking the view that Rule 20B(5) has been violated, resulting in violation of principles of natural justice.14. Now coming to Rule 21, which empowers the Tribunal to proceed when any party to a proceeding fails to attend. Learned counsel for the appellant is right in his submission that the plain language of Rule 21 does not indicate that it is necessary for Tribunal to issue any notice to a party before proceeding ex-parte. However, the expression used in Rule 21 is ?may proceed?. Thus, on non-appearance on one day does not oblige the Tribunal to proceed ex-parte. The Tribunal or arbitrator can exercise his discretion and may decide to send a notice before proceeding ex-parte in facts of each case, which may be required in facts of a particular case. But even otherwise accepting, the submission of the learned counsel for the appellant that no mandatory notice under Rule 21 was required to be issued by the Tribunal to the company, there being violation of Rule 20B(5), the High Court committed no error in setting aside the order of the Tribunal?s ex-parte award by directing the Tribunal to proceed afresh.15. Learned counsel for the appellant submitted that appellant has already attained the age of superannuation in July, 2018. | 0[ds]From the above quotation it would appear that in Grindlays Bank the recall application was filed within thirty days from the date of publication of the award and hence, the objection raised on the basis of Section 17-A did not arise in this case. In Grindlays Bank this Court did not say that the Industrial Courts would have no jurisdiction to entertain an application for setting aside an award made after thirty days of its publication. Nevertheless, on the basis of the passage marked in italics in the above quotation Ms Issar strongly contended that that is the true import of the judgment. 17. We are unable to accept.13. A perusal of sub-rule(5) of Rule 20B indicates that the copy of the statement of the case or the W/S is to be served on the first party or the second party, as the case may be, by the Industrial Tribunal/Labour Court within seven days from the date on which copies of the statement of case or the written statement, as the case may be, are filed, by making it over to the party concerned or to its authorised representative in the Office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court. The duty, thus, has been cast on the Tribunal to serve a copy of W/S or statement of case on either side. The use of word ?shall be served? in sub-clause (5) of Rule 20B has to be given some meaning and purpose. The provision obviously cast a duty on Industrial Tribunal and the Court to ensure that service should be completed within seven days. Another aspect, which is decipherable from the Rule is that Tribunal has to ensure that statement of case of W/S has to be served by making it available to the party concerned or its authorised representative in the office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose. The last line of the sub-rule (5) used the expression ?on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court?. The above expression contains two requirements, firstly, the Industrial Tribunal/Labour Court has to fix a date for service of statement of case of W/S within 7 days, specially, fixed date for the purpose and secondly date and time fixed for purpose has to be intimated to the party concerned. Although sub-rule(5) does not contemplate issuing any second notice after receipt of the statement of a case or a W/S, i.e. date and time is required to be fixed for the purpose of statement of case and a date and time, which is also required to be intimated to the party concerned for the purpose. In the facts of present case, it has to be held that the Tribunal was required to intimate date and time for receiving of the written statement by the company. Neither the order sheet of Tribunal indicate that any date was fixed for such service of W/S nor any intimation was sent to the company. Thus, there was a clear breach of sub-rule(5) of Rule 20B, no error has been committed by High Court in taking the view that Rule 20B(5) has been violated, resulting in violation of principles of natural justice.14. Now coming to Rule 21, which empowers the Tribunal to proceed when any party to a proceeding fails to attend. Learned counsel for the appellant is right in his submission that the plain language of Rule 21 does not indicate that it is necessary for Tribunal to issue any notice to a party before proceeding ex-parte. However, the expression used in Rule 21 is ?may proceed?. Thus, on non-appearance on one day does not oblige the Tribunal to proceed ex-parte. The Tribunal or arbitrator can exercise his discretion and may decide to send a notice before proceeding ex-parte in facts of each case, which may be required in facts of a particular case. But even otherwise accepting, the submission of the learned counsel for the appellant that no mandatory notice under Rule 21 was required to be issued by the Tribunal to the company, there being violation of Rule 20B(5), the High Court committed no error in setting aside the order of the Tribunal?s ex-parte award by directing the Tribunal to proceed afresh. | 0 | 4,622 | 815 | ### Instruction:
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### Input:
the submission of the parties had made following observations:-?On a perusal of the order dated 30.09.2008 it is difficult for this Court to accept the contention raised on behalf of the workman. It appears from the said order that the Tribunal had accepted the position that notice under Rule 21 of the said Rules had not been served upon the company before placing the case for ex-parte hearing. It has also accepted that Written Statement filed the workman had not been served upon them in accordance with provisions contained in Rules 20B(5) of the said Rules. On the face of such finding recorded by the Tribunal, it is absolutely clear that proceedings were conducted before it, leading to the impugned award, in clear violation of principles of natural as well as mandatory provisions of law. The award passed on 26.2.2008 is liable to be set aside only on this ground.?12. Shri Manoj Swarup, learned counsel for the appellant has strenuously contended that present is not a case of any breach of Rule 20B(5) as held by the High Court. The relevant order of the Industrial Tribunal has been brought on the record by the appellant, i.e., of 11.10.2007, where workman had appeared and filed Written Statement. It has been noted in the order that copy of the W/S cannot be served upon the another party as none appeared on behalf of the company. Sub-rule (5) of Rule 20B, which is relevant for present case is reproduced for ready reference:- 20B. Statement of case or written statement. – XXXXXXXXXXXXXXXXXXXXXXXX (5) A copy of the statement of case or the written statement shall be served on the first party or the second party, as the case may be, by the Industrial Tribunal/Labour Court within seven days from the date on which copies of the statement of case or the written statement, as the case may be, are filed by making it over to the party concerned or to its authorised representative in the Office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court.13. A perusal of sub-rule(5) of Rule 20B indicates that the copy of the statement of the case or the W/S is to be served on the first party or the second party, as the case may be, by the Industrial Tribunal/Labour Court within seven days from the date on which copies of the statement of case or the written statement, as the case may be, are filed, by making it over to the party concerned or to its authorised representative in the Office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court. The duty, thus, has been cast on the Tribunal to serve a copy of W/S or statement of case on either side. The use of word ?shall be served? in sub-clause (5) of Rule 20B has to be given some meaning and purpose. The provision obviously cast a duty on Industrial Tribunal and the Court to ensure that service should be completed within seven days. Another aspect, which is decipherable from the Rule is that Tribunal has to ensure that statement of case of W/S has to be served by making it available to the party concerned or its authorised representative in the office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose. The last line of the sub-rule (5) used the expression ?on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court?. The above expression contains two requirements, firstly, the Industrial Tribunal/Labour Court has to fix a date for service of statement of case of W/S within 7 days, specially, fixed date for the purpose and secondly date and time fixed for purpose has to be intimated to the party concerned. Although sub-rule(5) does not contemplate issuing any second notice after receipt of the statement of a case or a W/S, i.e. date and time is required to be fixed for the purpose of statement of case and a date and time, which is also required to be intimated to the party concerned for the purpose. In the facts of present case, it has to be held that the Tribunal was required to intimate date and time for receiving of the written statement by the company. Neither the order sheet of Tribunal indicate that any date was fixed for such service of W/S nor any intimation was sent to the company. Thus, there was a clear breach of sub-rule(5) of Rule 20B, no error has been committed by High Court in taking the view that Rule 20B(5) has been violated, resulting in violation of principles of natural justice.14. Now coming to Rule 21, which empowers the Tribunal to proceed when any party to a proceeding fails to attend. Learned counsel for the appellant is right in his submission that the plain language of Rule 21 does not indicate that it is necessary for Tribunal to issue any notice to a party before proceeding ex-parte. However, the expression used in Rule 21 is ?may proceed?. Thus, on non-appearance on one day does not oblige the Tribunal to proceed ex-parte. The Tribunal or arbitrator can exercise his discretion and may decide to send a notice before proceeding ex-parte in facts of each case, which may be required in facts of a particular case. But even otherwise accepting, the submission of the learned counsel for the appellant that no mandatory notice under Rule 21 was required to be issued by the Tribunal to the company, there being violation of Rule 20B(5), the High Court committed no error in setting aside the order of the Tribunal?s ex-parte award by directing the Tribunal to proceed afresh.15. Learned counsel for the appellant submitted that appellant has already attained the age of superannuation in July, 2018.
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### Explanation:
From the above quotation it would appear that in Grindlays Bank the recall application was filed within thirty days from the date of publication of the award and hence, the objection raised on the basis of Section 17-A did not arise in this case. In Grindlays Bank this Court did not say that the Industrial Courts would have no jurisdiction to entertain an application for setting aside an award made after thirty days of its publication. Nevertheless, on the basis of the passage marked in italics in the above quotation Ms Issar strongly contended that that is the true import of the judgment. 17. We are unable to accept.13. A perusal of sub-rule(5) of Rule 20B indicates that the copy of the statement of the case or the W/S is to be served on the first party or the second party, as the case may be, by the Industrial Tribunal/Labour Court within seven days from the date on which copies of the statement of case or the written statement, as the case may be, are filed, by making it over to the party concerned or to its authorised representative in the Office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court. The duty, thus, has been cast on the Tribunal to serve a copy of W/S or statement of case on either side. The use of word ?shall be served? in sub-clause (5) of Rule 20B has to be given some meaning and purpose. The provision obviously cast a duty on Industrial Tribunal and the Court to ensure that service should be completed within seven days. Another aspect, which is decipherable from the Rule is that Tribunal has to ensure that statement of case of W/S has to be served by making it available to the party concerned or its authorised representative in the office of the Industrial Tribunal/Labour Court on a date and time fixed for the purpose. The last line of the sub-rule (5) used the expression ?on a date and time fixed for the purpose and intimated to the party concerned by the Industrial Tribunal/Labour Court?. The above expression contains two requirements, firstly, the Industrial Tribunal/Labour Court has to fix a date for service of statement of case of W/S within 7 days, specially, fixed date for the purpose and secondly date and time fixed for purpose has to be intimated to the party concerned. Although sub-rule(5) does not contemplate issuing any second notice after receipt of the statement of a case or a W/S, i.e. date and time is required to be fixed for the purpose of statement of case and a date and time, which is also required to be intimated to the party concerned for the purpose. In the facts of present case, it has to be held that the Tribunal was required to intimate date and time for receiving of the written statement by the company. Neither the order sheet of Tribunal indicate that any date was fixed for such service of W/S nor any intimation was sent to the company. Thus, there was a clear breach of sub-rule(5) of Rule 20B, no error has been committed by High Court in taking the view that Rule 20B(5) has been violated, resulting in violation of principles of natural justice.14. Now coming to Rule 21, which empowers the Tribunal to proceed when any party to a proceeding fails to attend. Learned counsel for the appellant is right in his submission that the plain language of Rule 21 does not indicate that it is necessary for Tribunal to issue any notice to a party before proceeding ex-parte. However, the expression used in Rule 21 is ?may proceed?. Thus, on non-appearance on one day does not oblige the Tribunal to proceed ex-parte. The Tribunal or arbitrator can exercise his discretion and may decide to send a notice before proceeding ex-parte in facts of each case, which may be required in facts of a particular case. But even otherwise accepting, the submission of the learned counsel for the appellant that no mandatory notice under Rule 21 was required to be issued by the Tribunal to the company, there being violation of Rule 20B(5), the High Court committed no error in setting aside the order of the Tribunal?s ex-parte award by directing the Tribunal to proceed afresh.
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PAUL Vs. T. MOHAN AND ANOTHER | annum from the date of auction i.e. on 04.03.2010 till the date of deposit, before the Executing Court namely; the learned Ist Additional Subordinate Judge, Madurai, within a period of two weeks from the date of receipt of a copy of this order; (c) The 2 nd respondent/auction purchaser shall be entitled to claim the amount by making necessary application before the Executing Court; (d) The Executing Court namely; the learned Ist Additional Subordinate Court, Madurai is directed to pass orders for proclamation informing the concerned Registrar of Registration Department for making necessary entry to this effect and further cancel the entry regarding the sale certificate dated 21.7.2014 issued in favour of 2 nd respondent/auction purchaser; (e) The Executing Court is directed to complete the said exercise within a period of two weeks from the date of deposit of the amount by revision petitioner as directed in clause (b); (f) The revision petitioner is entitled to make necessary application before the executing court seeking refund of the amount deposited by the 2 nd respondent/auction purchaser, pursuant to the auction held on 04.03.2010, which application shall be decided by the Executing Court after giving notice and sufficient opportunity to the Ist respondent chits, which exercise shall be completed within a period of two months from the date of such application. No costs. Consequently, connected miscellaneous petition is closed. 6. The specific case of respondent No. 1 before the High Court was that the petition filed by the respondent No. 2- Chits Company before the Deputy Registrar of Chits, Madurai South was itself not maintainable, as no prior notice was issued to the respondent No. 1. It was also contended that straightaway upset price fixed as Rs. 1,77,000/- was very much lower than the guidelines contemplated under CPC and those issued by this Court. It was further contended that respondent No. 1 was merely the guarantor of one Rajendran and the Deputy Registrar of Chits should have first considered recovering the amount from the said Rajendran before proceeding against the respondent No. 1. The specific case of respondent No. 1 was that he had paid the entire amount within a week of the auction and obtained the no-due certificate from respondent No. 2 -Chits Company, of which the Executing Court did not take notice and the matter was kept pending for nearly four years. With regard to dismissal of his Revision by the Ist Additional Subordinate Judge on the ground that the provisions of Order XXI Rule 89 CPC were not complied with, it was contended that the application preferred by respondent No. 1 to set-aside the auction was also filed under Section 151 CPC and since the entire amount had already been paid by the respondent No. 1 to the respondent No. 2-Chits Company, which had also issued a no-due certificate, there was no necessity to deposit the auction amount along with 5% interest as required under Order XXI Rule 89 CPC. 7. The main contention of the appellant before the High Court was that the Revision of respondent No. 1 was rightly dismissed by the Revisional Court for non-compliance of the provisions of Order XXI Rule 89 CPC and as such, the auction was rightly held and confirmed. 8. The High Court took notice of the said contentions of both the parties and was of the opinion that before applying the legal provisions and testing their applicability, the Court has to look into the facts and circumstances of that particular case. The High Court noted that the respondent No. 1 was merely a guarantor and not a borrower and that the entire due amount was deposited by respondent No. 1 with the respondent No. 2 – Chits Company, for which no-dues certificate was also issued, of which due information was given to the Execution Court, which had not been considered. Thus, since the Revision had been filed within less than a week of the auction and entire dues had been settled, the confirmation of the auction was not justified. The High Court further held that the application had been filed also under Section 151 CPC and the inherent powers ought to have been invoked in the facts of the present case, as the entire amount due had been paid and the respondent No. 1 was merely a guarantor, and not the borrower. After noticing that the right to property is a constitutional right, which could not be infringed in the manner as has been done in the present case, the High Court allowed the Civil Revision Petition. The High Court further held that the present case was that of a real fraud committed by the borrower, and the guarantor had lost his property and was knocking the doors of the High Court to save his right to hold the suit property. The High Court noticed that there would be substantial injury caused to the respondent No. 1-guarantor, if his property was allowed to be taken away. It was, in such facts and circumstances of this case, that the Civil Revision Petition was allowed with the directions, as have been quoted hereinabove. 9. The submission of the appellant herein is primarily based on the Revision of respondent No. 1 having been dismissed by the Revisional Court on the ground of non- compliance of Order XXI Rule 89 CPC. In our view, the said question has been dealt with by the High Court in detail and in the peculiar facts and circumstances of this case, we are of the opinion that the view taken by the High Court is not such, which would call for interference under Article 136 of the Constitution of India, as in our view, substantial justice between the parties has already been done. Without laying down any law with regard to the issue relating to the application or non-compliance of Rule XXI Order 89 CPC, in the peculiar facts and circumstances of this case, we are not inclined to interfere with the view taken by the High Court. | 0[ds]9. The submission of the appellant herein is primarily based on the Revision of respondent No. 1 having been dismissed by the Revisional Court on the ground of non- compliance of Order XXI Rule 89 CPC. In our view, the said question has been dealt with by the High Court in detail and in the peculiar facts and circumstances of this case, we are of the opinion that the view taken by the High Court is not such, which would call for interference under Article 136 of the Constitution of India, as in our view, substantial justice between the parties has already been done. Without laying down any law with regard to the issue relating to the application or non-compliance of Rule XXI Order 89 CPC, in the peculiar facts and circumstances of this case, we are not inclined to interfere with the view taken by the High Court. | 0 | 1,962 | 165 | ### 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:
annum from the date of auction i.e. on 04.03.2010 till the date of deposit, before the Executing Court namely; the learned Ist Additional Subordinate Judge, Madurai, within a period of two weeks from the date of receipt of a copy of this order; (c) The 2 nd respondent/auction purchaser shall be entitled to claim the amount by making necessary application before the Executing Court; (d) The Executing Court namely; the learned Ist Additional Subordinate Court, Madurai is directed to pass orders for proclamation informing the concerned Registrar of Registration Department for making necessary entry to this effect and further cancel the entry regarding the sale certificate dated 21.7.2014 issued in favour of 2 nd respondent/auction purchaser; (e) The Executing Court is directed to complete the said exercise within a period of two weeks from the date of deposit of the amount by revision petitioner as directed in clause (b); (f) The revision petitioner is entitled to make necessary application before the executing court seeking refund of the amount deposited by the 2 nd respondent/auction purchaser, pursuant to the auction held on 04.03.2010, which application shall be decided by the Executing Court after giving notice and sufficient opportunity to the Ist respondent chits, which exercise shall be completed within a period of two months from the date of such application. No costs. Consequently, connected miscellaneous petition is closed. 6. The specific case of respondent No. 1 before the High Court was that the petition filed by the respondent No. 2- Chits Company before the Deputy Registrar of Chits, Madurai South was itself not maintainable, as no prior notice was issued to the respondent No. 1. It was also contended that straightaway upset price fixed as Rs. 1,77,000/- was very much lower than the guidelines contemplated under CPC and those issued by this Court. It was further contended that respondent No. 1 was merely the guarantor of one Rajendran and the Deputy Registrar of Chits should have first considered recovering the amount from the said Rajendran before proceeding against the respondent No. 1. The specific case of respondent No. 1 was that he had paid the entire amount within a week of the auction and obtained the no-due certificate from respondent No. 2 -Chits Company, of which the Executing Court did not take notice and the matter was kept pending for nearly four years. With regard to dismissal of his Revision by the Ist Additional Subordinate Judge on the ground that the provisions of Order XXI Rule 89 CPC were not complied with, it was contended that the application preferred by respondent No. 1 to set-aside the auction was also filed under Section 151 CPC and since the entire amount had already been paid by the respondent No. 1 to the respondent No. 2-Chits Company, which had also issued a no-due certificate, there was no necessity to deposit the auction amount along with 5% interest as required under Order XXI Rule 89 CPC. 7. The main contention of the appellant before the High Court was that the Revision of respondent No. 1 was rightly dismissed by the Revisional Court for non-compliance of the provisions of Order XXI Rule 89 CPC and as such, the auction was rightly held and confirmed. 8. The High Court took notice of the said contentions of both the parties and was of the opinion that before applying the legal provisions and testing their applicability, the Court has to look into the facts and circumstances of that particular case. The High Court noted that the respondent No. 1 was merely a guarantor and not a borrower and that the entire due amount was deposited by respondent No. 1 with the respondent No. 2 – Chits Company, for which no-dues certificate was also issued, of which due information was given to the Execution Court, which had not been considered. Thus, since the Revision had been filed within less than a week of the auction and entire dues had been settled, the confirmation of the auction was not justified. The High Court further held that the application had been filed also under Section 151 CPC and the inherent powers ought to have been invoked in the facts of the present case, as the entire amount due had been paid and the respondent No. 1 was merely a guarantor, and not the borrower. After noticing that the right to property is a constitutional right, which could not be infringed in the manner as has been done in the present case, the High Court allowed the Civil Revision Petition. The High Court further held that the present case was that of a real fraud committed by the borrower, and the guarantor had lost his property and was knocking the doors of the High Court to save his right to hold the suit property. The High Court noticed that there would be substantial injury caused to the respondent No. 1-guarantor, if his property was allowed to be taken away. It was, in such facts and circumstances of this case, that the Civil Revision Petition was allowed with the directions, as have been quoted hereinabove. 9. The submission of the appellant herein is primarily based on the Revision of respondent No. 1 having been dismissed by the Revisional Court on the ground of non- compliance of Order XXI Rule 89 CPC. In our view, the said question has been dealt with by the High Court in detail and in the peculiar facts and circumstances of this case, we are of the opinion that the view taken by the High Court is not such, which would call for interference under Article 136 of the Constitution of India, as in our view, substantial justice between the parties has already been done. Without laying down any law with regard to the issue relating to the application or non-compliance of Rule XXI Order 89 CPC, in the peculiar facts and circumstances of this case, we are not inclined to interfere with the view taken by the High Court.
### Response:
0
### Explanation:
9. The submission of the appellant herein is primarily based on the Revision of respondent No. 1 having been dismissed by the Revisional Court on the ground of non- compliance of Order XXI Rule 89 CPC. In our view, the said question has been dealt with by the High Court in detail and in the peculiar facts and circumstances of this case, we are of the opinion that the view taken by the High Court is not such, which would call for interference under Article 136 of the Constitution of India, as in our view, substantial justice between the parties has already been done. Without laying down any law with regard to the issue relating to the application or non-compliance of Rule XXI Order 89 CPC, in the peculiar facts and circumstances of this case, we are not inclined to interfere with the view taken by the High Court.
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Arphi Electronics Private Limited Vs. Collector of Central Excise, Mumbai | The appellant is in appeal against the order of the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Tribunal). The Tribunals finding relates to hearing-aid earphones and stands equated to microphones and earphones in terms of Tariff Item No. 85.18 of the Central Excise Tariff. 2.The matter came up for consideration before the Tribunal by reason of the levy of countervailing duty which has been challenged on the ground that hearing aids fall under Tariff Item 90.21 read with Notification No. 71/86, dated 10-2-1986 providing concessional rate of duty which excludes payment of another countervailing duty. 3.As noticed above the Notification No. 71/86 issued under the Central Excise and Salt Act pertains to Tariff Item 90.21 but in the matter of imposition of countervailing duty the Tribunal has taken recourse to Tariff Item 85.18 of the Central Excise Tariff. Mr. Dayan Krishnan, learned Counsel for the appellant, in support of the appeal strongly contended that the same goods cannot be classified under two different heads; one for the ordinary rate of duty in terms of the Act and another for the countervailing duty and the Tribunal has committed a grave error of law in so attributing to the applicability of Tariff Item 85.18 of the Central Excise Tariff. We do find some substance in such contention. 4.The appellants imported various types of hearing aid earphones which are in common trade parlance as also in audiological parlance called "receiver" being specifically designed to match the specific types of hearing losses from the company known as Oticon Export A/S, Copenhagen, Denmark. The invoices dated 23rd September, 1988 issued by the foreign suppliers clearly mentioned the imported goods as component parts of hearing aids/miniature earphones/receivers and in terms therewith bill entry was filed classifying the said goods under Tariff Item 90.21 upon claiming the benefit of concessional rate of customs duty in terms of Notification No. 114/77, dated 1-7-1977.5.As a matter of fact there is no dispute that the imported items are being used as a component of hearing aids only and it is in this perspective the Central Government thought it expedient in public interest to exempt component parts being receivers of hearing aids falling under Tariff Item 90.21 in the First Schedule to the Customs Tariff Act, 1975, being imported solely for the manufacture of such aids from so much of that portion of customs duty leviable thereon as is in excess of 10 per cent ad valorem. The proviso laying down the conditions stands amply complied with and no exception can be taken in that regard neither at any stage of the proceeding there was any grievance.6.There being no dispute that these earphones are for hearing aids, the same thus is to be classified under Tariff Item 90.21 and it would be otherwise wrong to take recourse to Tariff Item 85.18. The imported items are specifically imported as components for the manufacture of hearing aids and as such falls under 90.21 and thus exemption cannot be denied and it is in this perspective we do feel it expedient that the order of the Tribunal cannot be sustained | 1[ds]5.As a matter of fact there is no dispute that the imported items are being used as a component of hearing aids only and it is in this perspective the Central Government thought it expedient in public interest to exempt component parts being receivers of hearing aids falling under Tariff Item 90.21 in the First Schedule to the Customs Tariff Act, 1975, being imported solely for the manufacture of such aids from so much of that portion of customs duty leviable thereon as is in excess of 10 per cent ad valorem. The proviso laying down the conditions stands amply complied with and no exception can be taken in that regard neither at any stage of the proceeding there was any grievance.6.There being no dispute that these earphones are for hearing aids, the same thus is to be classified under Tariff Item 90.21 and it would be otherwise wrong to take recourse to Tariff Item 85.18. The imported items are specifically imported as components for the manufacture of hearing aids and as such falls under 90.21 and thus exemption cannot be denied and it is in this perspective we do feel it expedient that the order of the Tribunal cannot be sustained | 1 | 555 | 213 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
The appellant is in appeal against the order of the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Tribunal). The Tribunals finding relates to hearing-aid earphones and stands equated to microphones and earphones in terms of Tariff Item No. 85.18 of the Central Excise Tariff. 2.The matter came up for consideration before the Tribunal by reason of the levy of countervailing duty which has been challenged on the ground that hearing aids fall under Tariff Item 90.21 read with Notification No. 71/86, dated 10-2-1986 providing concessional rate of duty which excludes payment of another countervailing duty. 3.As noticed above the Notification No. 71/86 issued under the Central Excise and Salt Act pertains to Tariff Item 90.21 but in the matter of imposition of countervailing duty the Tribunal has taken recourse to Tariff Item 85.18 of the Central Excise Tariff. Mr. Dayan Krishnan, learned Counsel for the appellant, in support of the appeal strongly contended that the same goods cannot be classified under two different heads; one for the ordinary rate of duty in terms of the Act and another for the countervailing duty and the Tribunal has committed a grave error of law in so attributing to the applicability of Tariff Item 85.18 of the Central Excise Tariff. We do find some substance in such contention. 4.The appellants imported various types of hearing aid earphones which are in common trade parlance as also in audiological parlance called "receiver" being specifically designed to match the specific types of hearing losses from the company known as Oticon Export A/S, Copenhagen, Denmark. The invoices dated 23rd September, 1988 issued by the foreign suppliers clearly mentioned the imported goods as component parts of hearing aids/miniature earphones/receivers and in terms therewith bill entry was filed classifying the said goods under Tariff Item 90.21 upon claiming the benefit of concessional rate of customs duty in terms of Notification No. 114/77, dated 1-7-1977.5.As a matter of fact there is no dispute that the imported items are being used as a component of hearing aids only and it is in this perspective the Central Government thought it expedient in public interest to exempt component parts being receivers of hearing aids falling under Tariff Item 90.21 in the First Schedule to the Customs Tariff Act, 1975, being imported solely for the manufacture of such aids from so much of that portion of customs duty leviable thereon as is in excess of 10 per cent ad valorem. The proviso laying down the conditions stands amply complied with and no exception can be taken in that regard neither at any stage of the proceeding there was any grievance.6.There being no dispute that these earphones are for hearing aids, the same thus is to be classified under Tariff Item 90.21 and it would be otherwise wrong to take recourse to Tariff Item 85.18. The imported items are specifically imported as components for the manufacture of hearing aids and as such falls under 90.21 and thus exemption cannot be denied and it is in this perspective we do feel it expedient that the order of the Tribunal cannot be sustained
### Response:
1
### Explanation:
5.As a matter of fact there is no dispute that the imported items are being used as a component of hearing aids only and it is in this perspective the Central Government thought it expedient in public interest to exempt component parts being receivers of hearing aids falling under Tariff Item 90.21 in the First Schedule to the Customs Tariff Act, 1975, being imported solely for the manufacture of such aids from so much of that portion of customs duty leviable thereon as is in excess of 10 per cent ad valorem. The proviso laying down the conditions stands amply complied with and no exception can be taken in that regard neither at any stage of the proceeding there was any grievance.6.There being no dispute that these earphones are for hearing aids, the same thus is to be classified under Tariff Item 90.21 and it would be otherwise wrong to take recourse to Tariff Item 85.18. The imported items are specifically imported as components for the manufacture of hearing aids and as such falls under 90.21 and thus exemption cannot be denied and it is in this perspective we do feel it expedient that the order of the Tribunal cannot be sustained
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Bharat Nidhi Ltd Vs. Takhatmal & Ors | assignee of the bill and that Takhatmal had no right to attach it. The Trial Court held that the appellant was the assignee of the bill and decreed the suit. Takhatmal filed an appeal against the decree. The High Court of Madhya Pradesh allowed the appeal and dismissed the suit. The present appeal has been filed by the plaintiff after obtaining a certificate from the High Court.2. The sole question in this appeal is whether the power of attorney dated July 13, 1946 coupled with the endorsement on the bill dated July 19, 1948 amounts to an equitable assignment of the monies due under the bill in favour of the appellant. There are many decisions on the question as to what constitutes an equitable assignment. The law on the subject admits of no doubt. In Palmer v. Carey, 1926 Ac 703 at p. 706 Lord Wrenbury said:"The law as to equitable assignment as stated in Rodick v. Gandell, (1852) 1 De G.M. and G. 763, (777,778) is this: The extent of the principle to be deduced is that an agreement between a debtor and a creditor that the debt owing shall be paid out of specific fund coming to the debtor, or an order given by a debtor to his creditor upon a person owing money or holding funds belonging to the giver of the order, directing such person to pay such funds to the creditor, will create a valid equitable charge upon such fund, in other words, will operate as an equitable assignment of the debts or fund to which the order refers."In construing the power of attorney it is necessary to bear in mind that the relationship of the two parties, Malhotra and the Bank was that of borrower and lender and that the document was brought into existence in connection with a proposed transaction of financing of Malhotras contracts. The loans were to be advanced by the Bank against Malhotras bills for supplies under the contracts. The obvious intention of the parties was to provide protection for the lender and to secure repayment of the loans. With that object in view the lender was authorised to receive payment of the bills and to appropriate the receipts towards repayment of the loans. As the lender had an interest in the funds the power of attorney was expressed to be irrevocable.On a proper construction of the document the conclusion is irresistible that there was an agreement between the lender and the borrower that the debt owing to the lender would be paid out of a specific fund of the borrower in the hands of the Government authorities. The power of attorney coupled with the endorsement on the bill dated July 19, 1948 was a clear engagement by Malhotra to pay the appellant Bank out of the monies receivable under the bill and amounted to an equitable assignment of the fund by way of security.3. The question whether a document amounts to an equitable assignment or not is primarily one of construction but we may mention a few decisions which throw light on the matter. In Jagabhai Lallubhai v. Rustamji Nauserwanji, (1885) ILR 9 Bom 311 the Bombay High Court held that an agreement to finance the borrower and a power of attorney of even date to receive the monies due to the borrower under certain contracts had the effect of an equitable assignment of the funds. In Loonkaran Sethiva v. State Bank of Jaipur, C. A. No. 644 of 1966, D/- 25-4-1968 = (AIR 1969 SC 73 ) this Court held that a power of attorney authorising a lender to execute a decree then pass in favour of the borrower or which might be passed in his favour in a pending appeal and to credit to the borrowers account the moines realised in execution of the decree amounted to an equitable assignment of the funds.4. In the last case the Court held that there was no transfer of the decree, or of the claim which was the subject-matter of the pending appeal as the borrower continued to be the owner and the lender was merely authorised to act as his agent, Nevertheless the Court held that the power of attorney amounted to a binding equitable assignment. An actionable claim may be transferred under S. 130 of the Transfer of Property Act. Where a document does not amount to a transfer within S. 130 it may apart from and independently of the section operate as an equitable assignment of the actionable claim.5. In the present case the power of attorney authorised the appellant to receive all monies due or to become due to Malhotra in respect of pending of future contracts with the government authorities. Counsel argued that there was no engagement to pay out of specific fund and therefore can be valid equitable assignment of future debts, see Tailby v. Official Receiver, (1888) 13 A. C. 523. As and when the debt comes into existence it passes to the assignee.6. As a matter of fact when the debt due to Malhotra came into existence, he specifically appropriated it for payment to the appellant. On July 19, 1948 he made out a bill for the monies then due to him and endorsed on it:"Please pay to Bharat Bank Ltd., Jabalpur."The bill with the endorsement was sent to and acknowledged by the military authorities. Counsel submitted that this document was a pay order.Now there is an essential distinction between a pay order and an assignment. A pay order is a revocable mandate. It gives the payee no interest in the fund. An assignment creates an interest in the fund and is not revocable. Read in the light of the power of attorney the endorsement on the bill dated July 19, 1948 created an interest in a specific fund and was irrevocable. There was thus a sufficient equitable assignment of a specific fund in favour of the appellant. The High Court was in error in holding that there was no equitable assignment. | 1[ds]In construing the power of attorney it is necessary to bear in mind that the relationship of the two parties, Malhotra and the Bank was that of borrower and lender and that the document was brought into existence in connection with a proposed transaction of financing of Malhotras contracts. The loans were to be advanced by the Bank against Malhotras bills for supplies under the contracts. The obvious intention of the parties was to provide protection for the lender and to secure repayment of the loans. With that object in view the lender was authorised to receive payment of the bills and to appropriate the receipts towards repayment of the loans. As the lender had an interest in the funds the power of attorney was expressed to be irrevocable.On a proper construction of the document the conclusion is irresistible that there was an agreement between the lender and the borrower that the debt owing to the lender would be paid out of a specific fund of the borrower in the hands of the Government authorities. The power of attorney coupled with the endorsement on the bill dated July 19, 1948 was a clear engagement by Malhotra to pay the appellant Bank out of the monies receivable under the bill and amounted to an equitable assignment of the fund by way of security.As a matter of fact when the debt due to Malhotra came into existence, he specifically appropriated it for payment to the appellant. On July 19, 1948 he made out a bill for the monies then due to him and endorsed on it:"Please pay to Bharat Bank Ltd., Jabalpur."The bill with the endorsement was sent to and acknowledged by the military authorities. Counsel submitted that this document was a pay order.Now there is an essential distinction between a pay order and an assignment. A pay order is a revocable mandate. It gives the payee no interest in the fund. An assignment creates an interest in the fund and is not revocable. Read in the light of the power of attorney the endorsement on the bill dated July 19, 1948 created an interest in a specific fund and was irrevocable. There was thus a sufficient equitable assignment of a specific fund in favour of the appellant. The High Court was in error in holding that there was no equitable assignment. | 1 | 1,691 | 420 | ### 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:
assignee of the bill and that Takhatmal had no right to attach it. The Trial Court held that the appellant was the assignee of the bill and decreed the suit. Takhatmal filed an appeal against the decree. The High Court of Madhya Pradesh allowed the appeal and dismissed the suit. The present appeal has been filed by the plaintiff after obtaining a certificate from the High Court.2. The sole question in this appeal is whether the power of attorney dated July 13, 1946 coupled with the endorsement on the bill dated July 19, 1948 amounts to an equitable assignment of the monies due under the bill in favour of the appellant. There are many decisions on the question as to what constitutes an equitable assignment. The law on the subject admits of no doubt. In Palmer v. Carey, 1926 Ac 703 at p. 706 Lord Wrenbury said:"The law as to equitable assignment as stated in Rodick v. Gandell, (1852) 1 De G.M. and G. 763, (777,778) is this: The extent of the principle to be deduced is that an agreement between a debtor and a creditor that the debt owing shall be paid out of specific fund coming to the debtor, or an order given by a debtor to his creditor upon a person owing money or holding funds belonging to the giver of the order, directing such person to pay such funds to the creditor, will create a valid equitable charge upon such fund, in other words, will operate as an equitable assignment of the debts or fund to which the order refers."In construing the power of attorney it is necessary to bear in mind that the relationship of the two parties, Malhotra and the Bank was that of borrower and lender and that the document was brought into existence in connection with a proposed transaction of financing of Malhotras contracts. The loans were to be advanced by the Bank against Malhotras bills for supplies under the contracts. The obvious intention of the parties was to provide protection for the lender and to secure repayment of the loans. With that object in view the lender was authorised to receive payment of the bills and to appropriate the receipts towards repayment of the loans. As the lender had an interest in the funds the power of attorney was expressed to be irrevocable.On a proper construction of the document the conclusion is irresistible that there was an agreement between the lender and the borrower that the debt owing to the lender would be paid out of a specific fund of the borrower in the hands of the Government authorities. The power of attorney coupled with the endorsement on the bill dated July 19, 1948 was a clear engagement by Malhotra to pay the appellant Bank out of the monies receivable under the bill and amounted to an equitable assignment of the fund by way of security.3. The question whether a document amounts to an equitable assignment or not is primarily one of construction but we may mention a few decisions which throw light on the matter. In Jagabhai Lallubhai v. Rustamji Nauserwanji, (1885) ILR 9 Bom 311 the Bombay High Court held that an agreement to finance the borrower and a power of attorney of even date to receive the monies due to the borrower under certain contracts had the effect of an equitable assignment of the funds. In Loonkaran Sethiva v. State Bank of Jaipur, C. A. No. 644 of 1966, D/- 25-4-1968 = (AIR 1969 SC 73 ) this Court held that a power of attorney authorising a lender to execute a decree then pass in favour of the borrower or which might be passed in his favour in a pending appeal and to credit to the borrowers account the moines realised in execution of the decree amounted to an equitable assignment of the funds.4. In the last case the Court held that there was no transfer of the decree, or of the claim which was the subject-matter of the pending appeal as the borrower continued to be the owner and the lender was merely authorised to act as his agent, Nevertheless the Court held that the power of attorney amounted to a binding equitable assignment. An actionable claim may be transferred under S. 130 of the Transfer of Property Act. Where a document does not amount to a transfer within S. 130 it may apart from and independently of the section operate as an equitable assignment of the actionable claim.5. In the present case the power of attorney authorised the appellant to receive all monies due or to become due to Malhotra in respect of pending of future contracts with the government authorities. Counsel argued that there was no engagement to pay out of specific fund and therefore can be valid equitable assignment of future debts, see Tailby v. Official Receiver, (1888) 13 A. C. 523. As and when the debt comes into existence it passes to the assignee.6. As a matter of fact when the debt due to Malhotra came into existence, he specifically appropriated it for payment to the appellant. On July 19, 1948 he made out a bill for the monies then due to him and endorsed on it:"Please pay to Bharat Bank Ltd., Jabalpur."The bill with the endorsement was sent to and acknowledged by the military authorities. Counsel submitted that this document was a pay order.Now there is an essential distinction between a pay order and an assignment. A pay order is a revocable mandate. It gives the payee no interest in the fund. An assignment creates an interest in the fund and is not revocable. Read in the light of the power of attorney the endorsement on the bill dated July 19, 1948 created an interest in a specific fund and was irrevocable. There was thus a sufficient equitable assignment of a specific fund in favour of the appellant. The High Court was in error in holding that there was no equitable assignment.
### Response:
1
### Explanation:
In construing the power of attorney it is necessary to bear in mind that the relationship of the two parties, Malhotra and the Bank was that of borrower and lender and that the document was brought into existence in connection with a proposed transaction of financing of Malhotras contracts. The loans were to be advanced by the Bank against Malhotras bills for supplies under the contracts. The obvious intention of the parties was to provide protection for the lender and to secure repayment of the loans. With that object in view the lender was authorised to receive payment of the bills and to appropriate the receipts towards repayment of the loans. As the lender had an interest in the funds the power of attorney was expressed to be irrevocable.On a proper construction of the document the conclusion is irresistible that there was an agreement between the lender and the borrower that the debt owing to the lender would be paid out of a specific fund of the borrower in the hands of the Government authorities. The power of attorney coupled with the endorsement on the bill dated July 19, 1948 was a clear engagement by Malhotra to pay the appellant Bank out of the monies receivable under the bill and amounted to an equitable assignment of the fund by way of security.As a matter of fact when the debt due to Malhotra came into existence, he specifically appropriated it for payment to the appellant. On July 19, 1948 he made out a bill for the monies then due to him and endorsed on it:"Please pay to Bharat Bank Ltd., Jabalpur."The bill with the endorsement was sent to and acknowledged by the military authorities. Counsel submitted that this document was a pay order.Now there is an essential distinction between a pay order and an assignment. A pay order is a revocable mandate. It gives the payee no interest in the fund. An assignment creates an interest in the fund and is not revocable. Read in the light of the power of attorney the endorsement on the bill dated July 19, 1948 created an interest in a specific fund and was irrevocable. There was thus a sufficient equitable assignment of a specific fund in favour of the appellant. The High Court was in error in holding that there was no equitable assignment.
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Sanjay Kumar Vs. Ashok Kumar | loss of earning capacity along with future prospects in income will come to [pic]10,20,600/-[[pic]6,750 x 70/100 x 12 x 18]. 10. Further, in the case of Raj Kumar v. Ajay Kumar & Anr. [(2011) 1 SCC 343] , this Court has succinctly explained the guidelines and heads for awarding compensation in cases of disability due to a motor accident. The relevant paragraphs are extracted below: “6. The heads under which compensation is awarded in personal injury cases are the following:Pecuniary damages (Special damages)(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:(a) Loss of earning during the period of treatment;(b) Loss of future earnings on account of permanent disability.(iii) Future medical expenses.Non-pecuniary damages (General damages)(iv) Damages for pain, suffering and trauma as a consequence of the injuries.(v) Loss of amenities (and/or loss of prospects of marriage).(vi) Loss of expectation of life (shortening of normal longevity).In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses—Item (iii)—depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages—Items (iv), (v) and (vi)—involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant.Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability—Item (ii)(a).” 11. The appellant has further contended that he should be awarded compensation for loss of income suffered during the period of treatment i.e. 26.10.2005 to 10.12.2005. As the accident took place on 28.09.2005, this comes to a period of around 3 months. Keeping in view the principles espoused in the aforesaid judgment, we hereby award an amount of [pic]13,500/- for this period ([pic]4,500 x 3) taking the monthly income of [pic]4,500/-, thus, bringing the total compensation under the broad head of loss of income to [pic]10,34,100/-. 12. Now, we will assess the compensation awarded under the other heads. With respect to medical expenses, attendant charges and conveyance charges, as well as possible future medical costs, we will award a total sum of [pic]75,000/- as he has suffered permanent disability due to amputation of his right leg. The appellant will need assistance in order to travel and move around, and regular check-ups and will most likely use a crutch to walk, all of which will incur expenses. On the point of loss of marriage prospects, we feel that it is a major loss, keeping in mind the young age of the appellant and the High Court has gravely erred in not awarding adequate compensation separately under this head and instead clubbed it under ‘loss of future enjoyment of life’ and ‘pain and suffering’. We thereby award [pic]75,000/- towards loss of marriage prospects. Further, as per the case of Govind Yadav v. New India Insurance Co. Ltd. [(2011) 10 SCC 683] , wherein the appellant suffered amputation of the leg, this Court awarded a sum of [pic]1,50,000/- towards ‘pain and suffering’ caused due to amputation of the leg. Therefore, towards ‘mental agony and pain and suffering’, we award a sum of [pic]1,50,000/- as the appellant has suffered tremendously due to the accident in terms of the pain and suffering involved in the amputation. Loss of a limb causes a profusion of distress and the appellant has to deal with the same for the rest of his life. We feel it is justified to award the aforesaid amount under this head as he might have to deal with discrimination and stigma in society due to the fact that he is an amputee.13. Further, it is necessary to award an amount under the head of ‘loss of amenities’ also as the appellant will definitely deal with loss of future amenities as he has lost a leg due to the accident. The injury has permanently disabled the appellant, thereby reducing his enjoyment of life and the full pursuit of all the activities he engaged in prior to the accident. We thereby award a sum of [pic]1,00,000/- towards ‘loss of amenities’. Along with the compensation under conventional heads, the appellant is also entitled to costs of litigation as per the legal principle laid down in the case of Dr. Balram Prasad v. Dr. Kunal Saha & Ors. [(2013) 13 SCALE 1] Therefore, under this head, we find it just and proper to award [pic]25,000/- towards costs of litigation.14. Thus, the total compensation, the appellant is entitled to is given hereunder:Head of compensationAmountLoss of income:Loss of earning capacity and future prospects of income +Loss of earnings during period of treatmentRs.10,20,600/- +Rs.13,500/- =Rs.10,34,100/- Medical expenses, attendant and conveyance costs and future medical costsRs.75,000/- Loss of marriage prospectsRs.75,000/- Mental agony, pain and sufferingRs.1,50,000/- Loss of amenitiesRs.1,00,000/- Cost of litigationRs.25,000/- Total compensation:Rs.14,59,100/- 15. Further, as per the case of Municipal Corporation of Delhi v. Uphaar Tragedy Victims Association & Ors. [(2011) 14 SCC 481] , we find it just and proper to increase the interest awarded from 7% to 9% per annum. Hence, the total compensation the appellant is entitled to is [pic]14,59,100/- along with 9% interest per annum from the date of the accident till the date of realization. | 1[ds]In our considered view, the appellant is entitled to be awarded compensation based on the wages for a skilled worker, as he is an embroiderer and the same cannot be considered as an unskilled work. The minimum wages in Delhi for a skilled worker as on 01.08.2005 was [pic]3589.90/per month. The appellant has claimed that he was earning [pic]4,500/per month from his work as an embroiderer. We will accept his claim as it is not practical to expect a worker in the unorganized sector to provide documentary evidence of his monthly income as per decision of this Court in the case of Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] , wherein it was held asIn the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a coolie and was earning Rs. 4500/per month at the time of the accident. This claim is reduced by the Tribunal to a sum of Rs. 3000/only on the assumption that the wages of a labourer during the relevant period viz. in the year 2004, was Rs. 100/per day. This assumption in our view has no basis. Before the Tribunal, though the Insurance Company was served, it did not choose to appear before the court nor did it repudiate the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning to be a sum of Rs 3000/per month. Secondly, the appellant was working as a coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant.14. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time.15. In the present case, the appellant was working as a coolie and in and around the date of the accident, the wage of a labourer was between Rs. 100/to Rs 150/per day or Rs. 4500/per month. In our view, the claim was honest and bona fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs. 4500/to Rs. 3000/per month. We, therefore, accept his statement that his monthly earning was Rs.in the present case, a monthly income of [pic]4,500/as claimed by the appellant for his work as an embroiderer is reflective of ground realities and is not exorbitant by any standard and in the interest of justice, we should accept his claim. Further, he was also noton the aspect of the nature of his work as an embroiderer and both the Tribunal and the High Court have erred in holding that thework was of an unskilledthe point of loss of marriage prospects, we feel that it is a major loss, keeping in mind the young age of the appellant and the High Court has gravely erred in not awarding adequate compensation separately under this head and instead clubbed it under ‘loss of future enjoyment ofand ‘pain andWe thereby award [pic]75,000/towards loss of marriage prospects. Further, as per the case of Govind Yadav v. New India Insurance Co. Ltd. [(2011) 10 SCC 683] , wherein the appellant suffered amputation of the leg, this Court awarded a sum of [pic]1,50,000/towards ‘pain andcaused due to amputation of the leg. Therefore, towards ‘mental agony and pain andwe award a sum of [pic]1,50,000/as the appellant has suffered tremendously due to the accident in terms of the pain and suffering involved in the amputation. Loss of a limb causes a profusion of distress and the appellant has to deal with the same for the rest of his life. We feel it is justified to award the aforesaid amount under this head as he might have to deal with discrimination and stigma in society due to the fact that he is an amputee.13. Further, it is necessary to award an amount under the head of ‘loss ofalso as the appellant will definitely deal with loss of future amenities as he has lost a leg due to the accident. The injury has permanently disabled the appellant, thereby reducing his enjoyment of life and the full pursuit of all the activities he engaged in prior to the accident. We thereby award a sum of [pic]1,00,000/towards ‘loss ofAlong with the compensation under conventional heads, the appellant is also entitled to costs of litigation as per the legal principle laid down in the case of Dr. Balram Prasad v. Dr. Kunal Saha & Ors. [(2013) 13 SCALE 1] Therefore, under this head, we find it just and proper to award [pic]25,000/towards costs of litigation.14. Thus, the total compensation, the appellant is entitled to is given hereunder:Head of compensationAmountLoss of income:Loss of earning capacity and future prospects of income +Loss of earnings during period of treatmentRs.10,20,600/l expenses, attendant and conveyance costs and future medicaltal agony, pain andst of. Further, as per the case of Municipal Corporation of Delhi v. Uphaar Tragedy Victims Association & Ors. [(2011) 14 SCC 481] , we find it just and proper to increase the interest awarded from 7% to 9% per annum. Hence, the total compensation the appellant is entitled to is [pic]14,59,100/along with 9% interest per annum from the date of the accident till the date of realization. | 1 | 3,127 | 1,126 | ### 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:
loss of earning capacity along with future prospects in income will come to [pic]10,20,600/-[[pic]6,750 x 70/100 x 12 x 18]. 10. Further, in the case of Raj Kumar v. Ajay Kumar & Anr. [(2011) 1 SCC 343] , this Court has succinctly explained the guidelines and heads for awarding compensation in cases of disability due to a motor accident. The relevant paragraphs are extracted below: “6. The heads under which compensation is awarded in personal injury cases are the following:Pecuniary damages (Special damages)(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:(a) Loss of earning during the period of treatment;(b) Loss of future earnings on account of permanent disability.(iii) Future medical expenses.Non-pecuniary damages (General damages)(iv) Damages for pain, suffering and trauma as a consequence of the injuries.(v) Loss of amenities (and/or loss of prospects of marriage).(vi) Loss of expectation of life (shortening of normal longevity).In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses—Item (iii)—depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages—Items (iv), (v) and (vi)—involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant.Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability—Item (ii)(a).” 11. The appellant has further contended that he should be awarded compensation for loss of income suffered during the period of treatment i.e. 26.10.2005 to 10.12.2005. As the accident took place on 28.09.2005, this comes to a period of around 3 months. Keeping in view the principles espoused in the aforesaid judgment, we hereby award an amount of [pic]13,500/- for this period ([pic]4,500 x 3) taking the monthly income of [pic]4,500/-, thus, bringing the total compensation under the broad head of loss of income to [pic]10,34,100/-. 12. Now, we will assess the compensation awarded under the other heads. With respect to medical expenses, attendant charges and conveyance charges, as well as possible future medical costs, we will award a total sum of [pic]75,000/- as he has suffered permanent disability due to amputation of his right leg. The appellant will need assistance in order to travel and move around, and regular check-ups and will most likely use a crutch to walk, all of which will incur expenses. On the point of loss of marriage prospects, we feel that it is a major loss, keeping in mind the young age of the appellant and the High Court has gravely erred in not awarding adequate compensation separately under this head and instead clubbed it under ‘loss of future enjoyment of life’ and ‘pain and suffering’. We thereby award [pic]75,000/- towards loss of marriage prospects. Further, as per the case of Govind Yadav v. New India Insurance Co. Ltd. [(2011) 10 SCC 683] , wherein the appellant suffered amputation of the leg, this Court awarded a sum of [pic]1,50,000/- towards ‘pain and suffering’ caused due to amputation of the leg. Therefore, towards ‘mental agony and pain and suffering’, we award a sum of [pic]1,50,000/- as the appellant has suffered tremendously due to the accident in terms of the pain and suffering involved in the amputation. Loss of a limb causes a profusion of distress and the appellant has to deal with the same for the rest of his life. We feel it is justified to award the aforesaid amount under this head as he might have to deal with discrimination and stigma in society due to the fact that he is an amputee.13. Further, it is necessary to award an amount under the head of ‘loss of amenities’ also as the appellant will definitely deal with loss of future amenities as he has lost a leg due to the accident. The injury has permanently disabled the appellant, thereby reducing his enjoyment of life and the full pursuit of all the activities he engaged in prior to the accident. We thereby award a sum of [pic]1,00,000/- towards ‘loss of amenities’. Along with the compensation under conventional heads, the appellant is also entitled to costs of litigation as per the legal principle laid down in the case of Dr. Balram Prasad v. Dr. Kunal Saha & Ors. [(2013) 13 SCALE 1] Therefore, under this head, we find it just and proper to award [pic]25,000/- towards costs of litigation.14. Thus, the total compensation, the appellant is entitled to is given hereunder:Head of compensationAmountLoss of income:Loss of earning capacity and future prospects of income +Loss of earnings during period of treatmentRs.10,20,600/- +Rs.13,500/- =Rs.10,34,100/- Medical expenses, attendant and conveyance costs and future medical costsRs.75,000/- Loss of marriage prospectsRs.75,000/- Mental agony, pain and sufferingRs.1,50,000/- Loss of amenitiesRs.1,00,000/- Cost of litigationRs.25,000/- Total compensation:Rs.14,59,100/- 15. Further, as per the case of Municipal Corporation of Delhi v. Uphaar Tragedy Victims Association & Ors. [(2011) 14 SCC 481] , we find it just and proper to increase the interest awarded from 7% to 9% per annum. Hence, the total compensation the appellant is entitled to is [pic]14,59,100/- along with 9% interest per annum from the date of the accident till the date of realization.
### Response:
1
### Explanation:
In our considered view, the appellant is entitled to be awarded compensation based on the wages for a skilled worker, as he is an embroiderer and the same cannot be considered as an unskilled work. The minimum wages in Delhi for a skilled worker as on 01.08.2005 was [pic]3589.90/per month. The appellant has claimed that he was earning [pic]4,500/per month from his work as an embroiderer. We will accept his claim as it is not practical to expect a worker in the unorganized sector to provide documentary evidence of his monthly income as per decision of this Court in the case of Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] , wherein it was held asIn the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a coolie and was earning Rs. 4500/per month at the time of the accident. This claim is reduced by the Tribunal to a sum of Rs. 3000/only on the assumption that the wages of a labourer during the relevant period viz. in the year 2004, was Rs. 100/per day. This assumption in our view has no basis. Before the Tribunal, though the Insurance Company was served, it did not choose to appear before the court nor did it repudiate the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning to be a sum of Rs 3000/per month. Secondly, the appellant was working as a coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant.14. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time.15. In the present case, the appellant was working as a coolie and in and around the date of the accident, the wage of a labourer was between Rs. 100/to Rs 150/per day or Rs. 4500/per month. In our view, the claim was honest and bona fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs. 4500/to Rs. 3000/per month. We, therefore, accept his statement that his monthly earning was Rs.in the present case, a monthly income of [pic]4,500/as claimed by the appellant for his work as an embroiderer is reflective of ground realities and is not exorbitant by any standard and in the interest of justice, we should accept his claim. Further, he was also noton the aspect of the nature of his work as an embroiderer and both the Tribunal and the High Court have erred in holding that thework was of an unskilledthe point of loss of marriage prospects, we feel that it is a major loss, keeping in mind the young age of the appellant and the High Court has gravely erred in not awarding adequate compensation separately under this head and instead clubbed it under ‘loss of future enjoyment ofand ‘pain andWe thereby award [pic]75,000/towards loss of marriage prospects. Further, as per the case of Govind Yadav v. New India Insurance Co. Ltd. [(2011) 10 SCC 683] , wherein the appellant suffered amputation of the leg, this Court awarded a sum of [pic]1,50,000/towards ‘pain andcaused due to amputation of the leg. Therefore, towards ‘mental agony and pain andwe award a sum of [pic]1,50,000/as the appellant has suffered tremendously due to the accident in terms of the pain and suffering involved in the amputation. Loss of a limb causes a profusion of distress and the appellant has to deal with the same for the rest of his life. We feel it is justified to award the aforesaid amount under this head as he might have to deal with discrimination and stigma in society due to the fact that he is an amputee.13. Further, it is necessary to award an amount under the head of ‘loss ofalso as the appellant will definitely deal with loss of future amenities as he has lost a leg due to the accident. The injury has permanently disabled the appellant, thereby reducing his enjoyment of life and the full pursuit of all the activities he engaged in prior to the accident. We thereby award a sum of [pic]1,00,000/towards ‘loss ofAlong with the compensation under conventional heads, the appellant is also entitled to costs of litigation as per the legal principle laid down in the case of Dr. Balram Prasad v. Dr. Kunal Saha & Ors. [(2013) 13 SCALE 1] Therefore, under this head, we find it just and proper to award [pic]25,000/towards costs of litigation.14. Thus, the total compensation, the appellant is entitled to is given hereunder:Head of compensationAmountLoss of income:Loss of earning capacity and future prospects of income +Loss of earnings during period of treatmentRs.10,20,600/l expenses, attendant and conveyance costs and future medicaltal agony, pain andst of. Further, as per the case of Municipal Corporation of Delhi v. Uphaar Tragedy Victims Association & Ors. [(2011) 14 SCC 481] , we find it just and proper to increase the interest awarded from 7% to 9% per annum. Hence, the total compensation the appellant is entitled to is [pic]14,59,100/along with 9% interest per annum from the date of the accident till the date of realization.
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Delhi Stock Exchange Association Limited Vs. Commissioner of Income Tax, Delhi | were taken into consideration by one of the members of the Tribunal and the learned judges of the High Court also decided the matter on that material which had been placed before the Income-tax authorities and which was expressly referred to in their orders and which again was placed before the High Court in the argument presented there on behalf of the appellant company.5. It is wholly immaterial in the circumstances of the present case to take into consideration as to how the appellant treated the amounts in question. It is not how an assessee treats any monies received but what is the nature of the receipts which is decisive of its being taxable. These amounts were received by the appellant as membership admission fees and as admission fees paid by the members on account of Authorised Assistants. As far as the latter payment is concerned that would fall within the decision of this Court in Commissioner of Income-tax v. Calcutta Stock Exchange Association Ltd. 1959-36 ITR 222 : (AIR 1959 SC 763 ) and therefore is taxable income. The former, i. e., members admission fees has to be decided in accordance with the nature of the business of the appellant company, its Memorandum and Articles of Association and the Rules made for the conduct of business. The appellant company was an association which carried on a trade and its profits were divisible as dividend amongst the shareholders. The object with which the company was formed was to promote and regulate the business in shares, stocks and securities etc., and to establish and conduct the business of a Stock Exchange in Delhi and to facilitate the transaction of such business. The business was more like that in Liverpool Corn Trade Association v. Monks, 1926-2 KB 110. In that case an association was formed with the object of promoting the interest of corn trade with a share capital upon which the association was empowered to declare a dividend. The Association provided a Corn Exchange market, newsroom and facilities for carrying on business and membership was confined to persons engaged in the corn trade and every member was required to be a shareholder and had to pay an entrance fee. The Association also charged the members and every person making use of facilities a subscription which varied according to the use made by them. The bulk of the receipts of the Association was derived from entrance fees and subscriptions. It was therefore contended that the Association did not carry on a trade and that it was a mutual association and entrance fees and subscriptions should be disregarded in computing assessment of the assessable profits. It was held that it was not a mutual association whose transactions were incapable of producing a profit; that it carried on a trade and the entrance fee paid by members ought to be included in the associations receipts for purposes of computing the profit. Rowlatt, J. said at p. 121 :"I do not see why that amount is not a profit. The company has a capital upon which dividends may be earned, and the company has assets which can be used for the purpose of obtaining payments from its members for the advantages of such use, and one is tempted to ask why a profit is not so made exactly on the same footing as a profit is made by a railway company who issues a travelling ticket at a price to one of its own shareholders, or at any rate as much a profit as a profit made by a company from a dealing with its own shareholders in a line of business which is restricted to the shareholders."In Commissioner of Income-tax, Bombay City v. Royal Western India Turf Club Ltd., 1954 SCR 289 at p. 308 : (AIR 1954 SC 85 at p. 91) this Court rejected the applicability of the principle of mutuality because there was no mutual dealing between members inter se. There was no putting up a common fund for discharging a common obligation undertaken by the contributors for their mutual benefit and for this reason the case decided by the House of Lords in Style v. New York Life Insurance Co., (1883-90) 2 Tax Cas 460 was held not applicable.6. In the present case the Memorandum of Association shows that the object with which the company was formed was to promote and regulate the business of exchange of stocks, shares, debentures, debenture stocks etc. The income, if any, which accrued from the business of the appellant company was distributable amongst the shareholders like in every joint stock company. According to the Articles of Association the members included shareholders and members of the Exchange and according to the rules and bye-laws of the appellant company member means an individual, body of individuals, firms, companies, corporations or any corporate body as may be on the list of working members of the Stock-Exchange for the time being. In the Articles of Association cls. 7 and 8, provision was made for the election of members by the Board of Directors and Rules 9 and 10 laid down the procedure for the election of these members. The entrance fees were payable by the trading members elected under the Rules and Bye-Laws of the Association, who alone with their Associates, could transact business in stocks and shares in the Association. Therefore, the body of trading members who paid the entrance fees, and the shareholders among whom the profits were distributed were not identical and thus the element of mutuality was lacking. It is the nature of the business of the company and the profits and the distribution thereof which are the determining factors and in this case it has not been shown that the appellants business was in any way different from that which was carried on in the case reported as 1926-2 KB 110.7. In our opinion the judgment of the High Court is right and the appeals are therefore dismissed with costs. One hearing fee.8. | 0[ds]6. In the present case the Memorandum of Association shows that the object with which the company was formed was to promote and regulate the business of exchange of stocks, shares, debentures, debenture stocks etc. The income, if any, which accrued from the business of the appellant company was distributable amongst the shareholders like in every joint stock company. According to the Articles of Association the members included shareholders and members of the Exchange and according to the rules and bye-laws of the appellant company member means an individual, body of individuals, firms, companies, corporations or any corporate body as may be on the list of working members of the Stock-Exchange for the time being. In the Articles of Association cls. 7 and 8, provision was made for the election of members by the Board of Directors and Rules 9 and 10 laid down the procedure for the election of these members. The entrance fees were payable by the trading members elected under the Rules and Bye-Laws of the Association, who alone with their Associates, could transact business in stocks and shares in the Association. Therefore, the body of trading members who paid the entrance fees, and the shareholders among whom the profits were distributed were not identical and thus the element of mutuality was lacking. It is the nature of the business of the company and the profits and the distribution thereof which are the determining factors and in this case it has not been shown that the appellants business was in any way different from that which was carried on in the case reported as 1926-2 KB 110.7. In our opinion the judgment of the High Court is right and the appeals are therefore dismissed with costs. One hearing fee. | 0 | 2,062 | 321 | ### 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:
were taken into consideration by one of the members of the Tribunal and the learned judges of the High Court also decided the matter on that material which had been placed before the Income-tax authorities and which was expressly referred to in their orders and which again was placed before the High Court in the argument presented there on behalf of the appellant company.5. It is wholly immaterial in the circumstances of the present case to take into consideration as to how the appellant treated the amounts in question. It is not how an assessee treats any monies received but what is the nature of the receipts which is decisive of its being taxable. These amounts were received by the appellant as membership admission fees and as admission fees paid by the members on account of Authorised Assistants. As far as the latter payment is concerned that would fall within the decision of this Court in Commissioner of Income-tax v. Calcutta Stock Exchange Association Ltd. 1959-36 ITR 222 : (AIR 1959 SC 763 ) and therefore is taxable income. The former, i. e., members admission fees has to be decided in accordance with the nature of the business of the appellant company, its Memorandum and Articles of Association and the Rules made for the conduct of business. The appellant company was an association which carried on a trade and its profits were divisible as dividend amongst the shareholders. The object with which the company was formed was to promote and regulate the business in shares, stocks and securities etc., and to establish and conduct the business of a Stock Exchange in Delhi and to facilitate the transaction of such business. The business was more like that in Liverpool Corn Trade Association v. Monks, 1926-2 KB 110. In that case an association was formed with the object of promoting the interest of corn trade with a share capital upon which the association was empowered to declare a dividend. The Association provided a Corn Exchange market, newsroom and facilities for carrying on business and membership was confined to persons engaged in the corn trade and every member was required to be a shareholder and had to pay an entrance fee. The Association also charged the members and every person making use of facilities a subscription which varied according to the use made by them. The bulk of the receipts of the Association was derived from entrance fees and subscriptions. It was therefore contended that the Association did not carry on a trade and that it was a mutual association and entrance fees and subscriptions should be disregarded in computing assessment of the assessable profits. It was held that it was not a mutual association whose transactions were incapable of producing a profit; that it carried on a trade and the entrance fee paid by members ought to be included in the associations receipts for purposes of computing the profit. Rowlatt, J. said at p. 121 :"I do not see why that amount is not a profit. The company has a capital upon which dividends may be earned, and the company has assets which can be used for the purpose of obtaining payments from its members for the advantages of such use, and one is tempted to ask why a profit is not so made exactly on the same footing as a profit is made by a railway company who issues a travelling ticket at a price to one of its own shareholders, or at any rate as much a profit as a profit made by a company from a dealing with its own shareholders in a line of business which is restricted to the shareholders."In Commissioner of Income-tax, Bombay City v. Royal Western India Turf Club Ltd., 1954 SCR 289 at p. 308 : (AIR 1954 SC 85 at p. 91) this Court rejected the applicability of the principle of mutuality because there was no mutual dealing between members inter se. There was no putting up a common fund for discharging a common obligation undertaken by the contributors for their mutual benefit and for this reason the case decided by the House of Lords in Style v. New York Life Insurance Co., (1883-90) 2 Tax Cas 460 was held not applicable.6. In the present case the Memorandum of Association shows that the object with which the company was formed was to promote and regulate the business of exchange of stocks, shares, debentures, debenture stocks etc. The income, if any, which accrued from the business of the appellant company was distributable amongst the shareholders like in every joint stock company. According to the Articles of Association the members included shareholders and members of the Exchange and according to the rules and bye-laws of the appellant company member means an individual, body of individuals, firms, companies, corporations or any corporate body as may be on the list of working members of the Stock-Exchange for the time being. In the Articles of Association cls. 7 and 8, provision was made for the election of members by the Board of Directors and Rules 9 and 10 laid down the procedure for the election of these members. The entrance fees were payable by the trading members elected under the Rules and Bye-Laws of the Association, who alone with their Associates, could transact business in stocks and shares in the Association. Therefore, the body of trading members who paid the entrance fees, and the shareholders among whom the profits were distributed were not identical and thus the element of mutuality was lacking. It is the nature of the business of the company and the profits and the distribution thereof which are the determining factors and in this case it has not been shown that the appellants business was in any way different from that which was carried on in the case reported as 1926-2 KB 110.7. In our opinion the judgment of the High Court is right and the appeals are therefore dismissed with costs. One hearing fee.8.
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6. In the present case the Memorandum of Association shows that the object with which the company was formed was to promote and regulate the business of exchange of stocks, shares, debentures, debenture stocks etc. The income, if any, which accrued from the business of the appellant company was distributable amongst the shareholders like in every joint stock company. According to the Articles of Association the members included shareholders and members of the Exchange and according to the rules and bye-laws of the appellant company member means an individual, body of individuals, firms, companies, corporations or any corporate body as may be on the list of working members of the Stock-Exchange for the time being. In the Articles of Association cls. 7 and 8, provision was made for the election of members by the Board of Directors and Rules 9 and 10 laid down the procedure for the election of these members. The entrance fees were payable by the trading members elected under the Rules and Bye-Laws of the Association, who alone with their Associates, could transact business in stocks and shares in the Association. Therefore, the body of trading members who paid the entrance fees, and the shareholders among whom the profits were distributed were not identical and thus the element of mutuality was lacking. It is the nature of the business of the company and the profits and the distribution thereof which are the determining factors and in this case it has not been shown that the appellants business was in any way different from that which was carried on in the case reported as 1926-2 KB 110.7. In our opinion the judgment of the High Court is right and the appeals are therefore dismissed with costs. One hearing fee.
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Grindlays Bank Limited Vs. Income Tax Officer, 'H' Ward Companies, District-IV, Calcutta | the court, by the mere circumstance that it has initiated a proceeding in the court, must be neutralised. The simple fact of the institution of litigation by itself should not be permitted to confer an advantage on the party responsible for it. The present case goes further. The appellant would not have enjoyed the advantage of the bar of limitation if, notwithstanding his immediate grievance against the notice under s. 142(1) of the Income-tax Act, he had permitted the assessment proceeding to go on after registering his protest before the Income-tax Officer, and allowed an assessment order to be made in the normal course. In an application under s. 146 against the assessment order, it would have been open to him to urge that the notice was unreasonable and invalid and he was prevented by sufficient cause from complying with it and therefore the assessment order should be cancelled . In that event, the fresh assessment made under s. 146 would not be fettered by the bar of limitation. Section 153(3)(i) removes the bar. But the appellant preferred the constitutional jurisdiction of the High Court under Article 226. If no order was made by the High Court directing a fresh assessment, he could contend as is the contention now before us, that a fresh assessment proceeding is barred by limitation. That is an advantage which the appellant seeks to derive by the mere circumstance of his filing a writ petition. It will be noted that the defect complained of by the appellant in the notice was a procedural lapse at best and one that could be readily corrected by serving an appropriate notice. It was not a defect effecting the fundamental jurisdiction of the Income- tax Officer to make the assessment. In our opinion, the High Court was plainly right in making the direction which it did. The observations of this court in Director of Inspection of Income-tax (Investigation), New Delhi and Another v. Pooran Mall &Sons and another(1) are relevant. It said:"The court in exercising its powers under article 226 has to mould the remedy to suit the facts of a case. If in a particular case a court takes the view that the Income-tax Officer, while passing an order under section 132(5), did not give an adequate opportunity to the party concerned it should not be left with the only option of quashing it and putting the party at an advantage even though it may be satisfied that on the material before him the conclusion arrived at by the Income-tax Officer was correct or dismissing the petition because otherwise the party would get an unfair advantage. The power to quash an order under Article 226 can be exercised not merely when the order sought to be quashed is one made without jurisdiction in which case there can be no room for the same authority to be directed to deal with it. But, in the circumstances of a case, the court might take the view that another authority has the jurisdiction to deal with the matter and may direct that authority to deal with it or where the order of the authority which has the jurisdiction is vitiated by circumstances like failure to observe the principles of natural justice, the court may quash the order and direct the authority to dispose of the matter afresh after giving the aggrieved party a reasonable opportunity of putting forward its case. Otherwise, it would mean that where a court quashes an order because the principles of natural justice have not been complied with, it should not while passing that order permit the tribunal or the authority to deal with it again irrespective of the merits of the case."6. The point was considered by the Calcutta High court in Cachar plywood Ltd. v. Income-Tax Officer, "A" Ward, Karimganj, Dist., Cachar &Another(1) and the High court, after considering the provisions of s. 153 of the Income-Tax Act, considered it appropriate, while disposing of the writ petition, to issue a direction to the Income-tax Officer to complete the assessment which, but for the direction of the High court, would have been barred by limitation.Our attention has been drawn to a recent decision of this Court in Rajinder Nath et c. v. The Commissioner of Income-tax, Delhi(2) (by a Bench of this Court of which one of us was a member). In that case, the Court considered the provisions of s. 153(3) (ii) of the Income-tax Act and laid down that the word "direction" in that subsection refers to a direction necessary for the disposal of the case and which the court has power to make while deciding the case. In the view taken by us that the order made by the High Court directing a fresh assessment is necessary for properly and completely disposing of the writ petition, the appellant can obtain no assistance from Rajinder Nath (supra).7. Mr. A. P. Mohanti, who appeared for the intervener, supported the contention that the High Court was not entitled to make an order directing a fresh assessment, and has referred us to three cases, Pickles v. Falsham, (1), Anisminic Ltd. v. The Foreign Compensation Commission and Another(2), and Bath and West Countries Property Trust Ltd. v. Thomas (Inspector of Taxes)(3). We are of the opinion that the cases are distinguishable. In Pickles (supra), Cave L.C. declined to remand the case to the Special Commissioners because the time for making the requisite assessment had expired. In Anisminic Ltd. (supra) the decision of the Commissioner considered by the House of Lords was a nullity. The present case is one of a mere procedural lapse, an imperfect notice which is replaceable by a proper notice. The third case, Bath and We st Countries Property Trust Ltd. (supra) was again a case where it was too late for the Inspector to make a fresh assessment. In the case before us a direction by the High court is sufficient to raise the bar of limitation, a power absent in the aforesaid cases.8. | 0[ds]The assessment year under consideration is the year 1972-73. By virtue of s. 153(1) (a) (iii) of the Income-tax Act, no assessment order in respect of that assessment year could be made after two years from the end of that assessment year. The end of the assessment year is March 31, 1975. However, the appellant filed the writ petition on March 17, 1975, fourteen days before the end of the period for making the assessment order. On the same date, March 17, 1975, the learned Single Judge granted an interim injunction restraining the Income-tax Officer from proceeding with the assessment, and on March 25 , 1975 the injunction was made operative for the pendency of the writ petition. The writ petition was disposed of by the learned single judge by his judgment dated August 31, 1976. It is apparent that the assessment proceedings remained stayed throughout the period from March 17, 1975 to August 31, 1976 by virtue of the orders of the court. As has been mentioned, the learned Single Judge disposed of the writ petition on August 31, 1976. In his judgment, besides directing the appellant to comply with the notice under s. 142(1) as construed by him, he also included a direction to the Income-tax Officer to complete the assessment by March 31, 1977. On September 22, 1976, he amended his judgment inasmuch as it now required that "the assessment for the relevant year must be completed on the 31st of March, 1977 but must not be completed before 31st March 1977." In other words, while the Income-tax Officer could continue with the assessment proceedings he was restrained b y the Court from making the assessment order before, and in fact could make it only on, March 31, 1977. Now it is important to note that when the amendment was made by the learned Single Judge in his judgment, it was an amendment made by him to a judgment disposing of the writ petition and having regard especially to the nature and the terms of the amendment, it must be deemed to have taken effect as from August 31, 1976, the date of the original judgment. In the appeal filed thereafter by the appellant, no interim order was made suspending the operation of the direction that the assessment order be made on March 31, 1977 only. A stay order was made against the enforcement of the notice of demand alone. Adhering to the directions of the learned Single Judge, the Income-tax Officer made an assessment order on March 31, 1977. In the result, the assessment proceeding remained pending during the entire period from March 17, 1975 to March 31, 1977 by successive orders of the Court. If regard be had to clause (ii) of Explanation 1 to s. 153, which provides that in computing the period of limitation for the purposes of s. 153, the period during which the assessment is stayed by an order or injunction of any court shall be excluded, it is abundantly clear that the assessment order dated March 31, 1977 is not barred by limitation. In computing the period for making the assessment, the Income-tax Officer would be entitled to exclude the entire period from March 17, 1975, on which date there were fourteen days still left within the normal operation of the rule of limitation. The assessment order was made on the very first day after the period of stay expired; it could not be faulted on the ground of limitation. There is, therefore, no force in the submission of the appellant that the limitation for making the assessment had expired and a valuable right not to be assessed had thereby accrued to it, and that consequently the High Court was not competent to make the order directing a fresh assessment.Theprincipal relief sought in the writ petition was the quashing of the notice under s. 142(1) of the Income-tax Act, and inasmuch as the assessment order dated March 31, 1977 was made during the pendency of the proceeding consequent upon a purported non -compliance with that notice, it became necessary to obtain the quashing of the assessment order also. The character of an assessment proceeding, of which the impugned notice and the assessment order formed part, being quasi-judicial, the "certiorari " jurisdiction of the High court under Article 226 was attracted. Ordinarily, where the High court exercises such jurisdiction it merely quashes the offending order and the consequential legal effect is that but for the offending order the remaining part of the proceeding stands automatically revived before the inferior court or tribunal with the need for fresh consideration and disposal by a fresh order. Ordinarily, the High Court does not substitute its own order for the order quashed by it. It is, of course, a different case where the adjudication by the High Court establishes a complete want of jurisdiction in the inferior court or tribunal to entertain or to take the proceeding at all. In that event on the quashing of t he proceeding by the High Court there is no revival at all. But although in the former kind of case the High court, after quashing the offending order, does not substitute its own order it has power nonetheless to pass such further orders as th e justice of the case requires. When passing such orders the High court draws on its inherent power to make all such orders as are necessary for doing complete justice between the parties. The interests of justice require that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court, by the mere circumstance that it has initiated a proceeding in the court, must be neutralised. The simple fact of the institution of litigation by itself should not be permitted to confer an advantage on the party responsible for it. The present case goes further. The appellant would not have enjoyed the advantage of the bar of limitation if, notwithstanding his immediate grievance against the notice under s. 142(1) of the Income-tax Act, he had permitted the assessment proceeding to go on after registering his protest before the Income-tax Officer, and allowed an assessment order to be made in the normal course. In an application under s. 146 against the assessment order, it would have been open to him to urge that the notice was unreasonable and invalid and he was prevented by sufficient cause from complying with it and therefore the assessment order should be cancelled . In that event, the fresh assessment made under s. 146 would not be fettered by the bar of limitation. Section 153(3)(i) removes the bar. But the appellant preferred the constitutional jurisdiction of the High Court under Article 226. If no order was made by the High Court directing a fresh assessment, he could contend as is the contention now before us, that a fresh assessment proceeding is barred by limitation. That is an advantage which the appellant seeks to derive by the mere circumstance of his filing a writ petition. It will be noted that the defect complained of by the appellant in the notice was a procedural lapse at best and one that could be readily corrected by serving an appropriate notice. It was not a defect effecting the fundamental jurisdiction of the Income- tax Officer to make the assessment. In our opinion, the High Court was plainly right in making the direction which itare of the opinion that the cases are distinguishable. In Pickles (supra), Cave L.C. declined to remand the case to the Special Commissioners because the time for making the requisite assessment had expired. In Anisminic Ltd. (supra) the decision of the Commissioner considered by the House of Lords was a nullity. The present case is one of a mere procedural lapse, an imperfect notice which is replaceable by a proper notice. The third case, Bath and We st Countries Property Trust Ltd. (supra) was again a case where it was too late for the Inspector to make a fresh assessment. In the case before us a direction by the High court is sufficient to raise the bar of limitation, a power absent in the aforesaid cases. | 0 | 2,589 | 1,514 | ### Instruction:
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the court, by the mere circumstance that it has initiated a proceeding in the court, must be neutralised. The simple fact of the institution of litigation by itself should not be permitted to confer an advantage on the party responsible for it. The present case goes further. The appellant would not have enjoyed the advantage of the bar of limitation if, notwithstanding his immediate grievance against the notice under s. 142(1) of the Income-tax Act, he had permitted the assessment proceeding to go on after registering his protest before the Income-tax Officer, and allowed an assessment order to be made in the normal course. In an application under s. 146 against the assessment order, it would have been open to him to urge that the notice was unreasonable and invalid and he was prevented by sufficient cause from complying with it and therefore the assessment order should be cancelled . In that event, the fresh assessment made under s. 146 would not be fettered by the bar of limitation. Section 153(3)(i) removes the bar. But the appellant preferred the constitutional jurisdiction of the High Court under Article 226. If no order was made by the High Court directing a fresh assessment, he could contend as is the contention now before us, that a fresh assessment proceeding is barred by limitation. That is an advantage which the appellant seeks to derive by the mere circumstance of his filing a writ petition. It will be noted that the defect complained of by the appellant in the notice was a procedural lapse at best and one that could be readily corrected by serving an appropriate notice. It was not a defect effecting the fundamental jurisdiction of the Income- tax Officer to make the assessment. In our opinion, the High Court was plainly right in making the direction which it did. The observations of this court in Director of Inspection of Income-tax (Investigation), New Delhi and Another v. Pooran Mall &Sons and another(1) are relevant. It said:"The court in exercising its powers under article 226 has to mould the remedy to suit the facts of a case. If in a particular case a court takes the view that the Income-tax Officer, while passing an order under section 132(5), did not give an adequate opportunity to the party concerned it should not be left with the only option of quashing it and putting the party at an advantage even though it may be satisfied that on the material before him the conclusion arrived at by the Income-tax Officer was correct or dismissing the petition because otherwise the party would get an unfair advantage. The power to quash an order under Article 226 can be exercised not merely when the order sought to be quashed is one made without jurisdiction in which case there can be no room for the same authority to be directed to deal with it. But, in the circumstances of a case, the court might take the view that another authority has the jurisdiction to deal with the matter and may direct that authority to deal with it or where the order of the authority which has the jurisdiction is vitiated by circumstances like failure to observe the principles of natural justice, the court may quash the order and direct the authority to dispose of the matter afresh after giving the aggrieved party a reasonable opportunity of putting forward its case. Otherwise, it would mean that where a court quashes an order because the principles of natural justice have not been complied with, it should not while passing that order permit the tribunal or the authority to deal with it again irrespective of the merits of the case."6. The point was considered by the Calcutta High court in Cachar plywood Ltd. v. Income-Tax Officer, "A" Ward, Karimganj, Dist., Cachar &Another(1) and the High court, after considering the provisions of s. 153 of the Income-Tax Act, considered it appropriate, while disposing of the writ petition, to issue a direction to the Income-tax Officer to complete the assessment which, but for the direction of the High court, would have been barred by limitation.Our attention has been drawn to a recent decision of this Court in Rajinder Nath et c. v. The Commissioner of Income-tax, Delhi(2) (by a Bench of this Court of which one of us was a member). In that case, the Court considered the provisions of s. 153(3) (ii) of the Income-tax Act and laid down that the word "direction" in that subsection refers to a direction necessary for the disposal of the case and which the court has power to make while deciding the case. In the view taken by us that the order made by the High Court directing a fresh assessment is necessary for properly and completely disposing of the writ petition, the appellant can obtain no assistance from Rajinder Nath (supra).7. Mr. A. P. Mohanti, who appeared for the intervener, supported the contention that the High Court was not entitled to make an order directing a fresh assessment, and has referred us to three cases, Pickles v. Falsham, (1), Anisminic Ltd. v. The Foreign Compensation Commission and Another(2), and Bath and West Countries Property Trust Ltd. v. Thomas (Inspector of Taxes)(3). We are of the opinion that the cases are distinguishable. In Pickles (supra), Cave L.C. declined to remand the case to the Special Commissioners because the time for making the requisite assessment had expired. In Anisminic Ltd. (supra) the decision of the Commissioner considered by the House of Lords was a nullity. The present case is one of a mere procedural lapse, an imperfect notice which is replaceable by a proper notice. The third case, Bath and We st Countries Property Trust Ltd. (supra) was again a case where it was too late for the Inspector to make a fresh assessment. In the case before us a direction by the High court is sufficient to raise the bar of limitation, a power absent in the aforesaid cases.8.
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the appeal filed thereafter by the appellant, no interim order was made suspending the operation of the direction that the assessment order be made on March 31, 1977 only. A stay order was made against the enforcement of the notice of demand alone. Adhering to the directions of the learned Single Judge, the Income-tax Officer made an assessment order on March 31, 1977. In the result, the assessment proceeding remained pending during the entire period from March 17, 1975 to March 31, 1977 by successive orders of the Court. If regard be had to clause (ii) of Explanation 1 to s. 153, which provides that in computing the period of limitation for the purposes of s. 153, the period during which the assessment is stayed by an order or injunction of any court shall be excluded, it is abundantly clear that the assessment order dated March 31, 1977 is not barred by limitation. In computing the period for making the assessment, the Income-tax Officer would be entitled to exclude the entire period from March 17, 1975, on which date there were fourteen days still left within the normal operation of the rule of limitation. The assessment order was made on the very first day after the period of stay expired; it could not be faulted on the ground of limitation. There is, therefore, no force in the submission of the appellant that the limitation for making the assessment had expired and a valuable right not to be assessed had thereby accrued to it, and that consequently the High Court was not competent to make the order directing a fresh assessment.Theprincipal relief sought in the writ petition was the quashing of the notice under s. 142(1) of the Income-tax Act, and inasmuch as the assessment order dated March 31, 1977 was made during the pendency of the proceeding consequent upon a purported non -compliance with that notice, it became necessary to obtain the quashing of the assessment order also. The character of an assessment proceeding, of which the impugned notice and the assessment order formed part, being quasi-judicial, the "certiorari " jurisdiction of the High court under Article 226 was attracted. Ordinarily, where the High court exercises such jurisdiction it merely quashes the offending order and the consequential legal effect is that but for the offending order the remaining part of the proceeding stands automatically revived before the inferior court or tribunal with the need for fresh consideration and disposal by a fresh order. Ordinarily, the High Court does not substitute its own order for the order quashed by it. It is, of course, a different case where the adjudication by the High Court establishes a complete want of jurisdiction in the inferior court or tribunal to entertain or to take the proceeding at all. In that event on the quashing of t he proceeding by the High Court there is no revival at all. But although in the former kind of case the High court, after quashing the offending order, does not substitute its own order it has power nonetheless to pass such further orders as th e justice of the case requires. When passing such orders the High court draws on its inherent power to make all such orders as are necessary for doing complete justice between the parties. The interests of justice require that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court, by the mere circumstance that it has initiated a proceeding in the court, must be neutralised. The simple fact of the institution of litigation by itself should not be permitted to confer an advantage on the party responsible for it. The present case goes further. The appellant would not have enjoyed the advantage of the bar of limitation if, notwithstanding his immediate grievance against the notice under s. 142(1) of the Income-tax Act, he had permitted the assessment proceeding to go on after registering his protest before the Income-tax Officer, and allowed an assessment order to be made in the normal course. In an application under s. 146 against the assessment order, it would have been open to him to urge that the notice was unreasonable and invalid and he was prevented by sufficient cause from complying with it and therefore the assessment order should be cancelled . In that event, the fresh assessment made under s. 146 would not be fettered by the bar of limitation. Section 153(3)(i) removes the bar. But the appellant preferred the constitutional jurisdiction of the High Court under Article 226. If no order was made by the High Court directing a fresh assessment, he could contend as is the contention now before us, that a fresh assessment proceeding is barred by limitation. That is an advantage which the appellant seeks to derive by the mere circumstance of his filing a writ petition. It will be noted that the defect complained of by the appellant in the notice was a procedural lapse at best and one that could be readily corrected by serving an appropriate notice. It was not a defect effecting the fundamental jurisdiction of the Income- tax Officer to make the assessment. In our opinion, the High Court was plainly right in making the direction which itare of the opinion that the cases are distinguishable. In Pickles (supra), Cave L.C. declined to remand the case to the Special Commissioners because the time for making the requisite assessment had expired. In Anisminic Ltd. (supra) the decision of the Commissioner considered by the House of Lords was a nullity. The present case is one of a mere procedural lapse, an imperfect notice which is replaceable by a proper notice. The third case, Bath and We st Countries Property Trust Ltd. (supra) was again a case where it was too late for the Inspector to make a fresh assessment. In the case before us a direction by the High court is sufficient to raise the bar of limitation, a power absent in the aforesaid cases.
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Thirunagar Panchayat Vs. Madurai Co-Operative House Construction Society | as national or State highways), shall vest in the panchayat together with all pavements, stones and other materials thereof, all works, materials and other things provided therefor, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the panchayat fund or otherwise, in, alongside or under such roads, and all works materials and things appertaining thereto. ......................................................" Section 58 is to the following effect:"Any property or income which by custom belongs to, or has been administered for the benefit of, the villagers in common, or the holders in common of village land generally or of lands a particular description or of lands under a particular source of irrigation shall vest in the panchayat and be administered by it for the benefit of the villagers or holders aforesaid." 5. The rules framed under the Co-operative Societies Act for the formation of House Building Societies required that when an area is set apart for a residential colony provisions for schools, markets, theatres, hospitals, clubs, religious places, etc., should be made in the layout. Reference was made, on behalf of the appellant, to the layout plan Ex. A-44 for the Tirunagar Housing colony. There is evidence in this case that the government had assigned to the House Building Society free of cost an area of about 5 acres for the proposed public amenities like schools, markets etc. It was submitted behalf of the appellant that the parks, play grounds, hospitals, schools, etc. of the Tirunagar Housing colony would vest in the Panchayat under S. 58 of the Act. We do not consider that there is any justification for this argument. Under S. 56 of the Act all public roads in any village shall vest in the Panchayat together with all pavements, stones and other materials thereof, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the panchayat fund or otherwise. Under 5. 2 (20) of the Act a public road means "any street road, square, court, alley, passage, cart-track, footpath or riding path, over which the public have a right of way" Section 58 of the Act provides for vesting of the communal property in the panchayat. By this section the legislature has provided that any property on income which by custom belongs to the villagers in common., or the holders in common of village land generally or of lands of a particular description shall vest in the panchayat. The legislature has further provided in this section that any property or income which by custom has been administered for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description shall vest in the panchayat and be administered by it for the benefit of the villagers or the holders aforesaid. In enacting S. 58 of the Act the legislature has made a provision for vesting of two kinds of property or income: (1) property or income which by custom belongs to the villagers in common or the holders in common of village land generally or lands of a particular description, and (2) property or income which has been administered by custom for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description. Having regard to the grammatical structure and the context, we are of opinion that the expression "by custom" qualifies not only the property or income which belongs to the villagers but also property and income which has been administered for the benefit of the villagers in common. It is manifest that S. 58 provides for the vesting of such property and income to which the villagers have acquired title as a matter of custom or which has been administered for the benefit of the villagers as a matter of custom. It was argued on behalf of the appellant that if parks or play grounds or markets had been dedicated to the public the Panchayat would acquire title to such properties under S. 58 of the Act. We do not think that dedication is a relevant circumstance in considering the scope and meaning of S. 58 of the Act. In the enactment of this section the legislature did not contemplate that parks, play grounds, schools or temple or hospital dedicated to the public should vest in the panchayat merely by the fact or such dedication. What is required by S. 58 for the purpose of vesting is the proof of custom by which the villagers in common acquire title to any property or income. Vesting of rights takes place under S. 58 if there is proof of customary right of administration of any property or income for the benefit of the villagers in common. Unless therefore there is proof of customary right, the Panchayat cannot claim title to the property or income administered for the benefit of the villagers in common. For example, the Society may have established a library or a social club or a school for the benefit of its members. Again, a private individual may have created a trust for the provision of amenities like parks, play grounds and hospitals for the residents of the village-In a case of this description the legal ownership of the Society or of the trustees will not vest in the Panchayat because of the provisions of S. 58 of the Act. It cannot be supposed that such starting and unjust result was contemplated by the legislature in enacting S. 58. We are accordingly of the opinion that the scope of S. 58 of the Act must be confined to communal property and income of the panchayat which by custom belongs to the villagers in common or has been administered for their benefit as a matter of custom, and the scope of that section cannot be extended to include parks, play grounds, hospitals, libraries and schools provided by the Society for the benefit of the members of the Tirunagar colony. | 1[ds]5. The rules framed under the Co-operative Societies Act for the formation of House Building Societies required that when an area is set apart for a residential colony provisions for schools, markets, theatres, hospitals, clubs, religious places, etc., should be made in the layout. Reference was made, on behalf of the appellant, to the layout plan Ex. A-44 for the Tirunagar Housing colony. There is evidence in this case that the government had assigned to the House Building Society free of cost an area of about 5 acres for the proposed public amenities like schools, markets etc.We do not consider that there is any justification for this argument. Under S. 56 of the Act all public roads in any village shall vest in the Panchayat together with all pavements, stones and other materials thereof, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the panchayat fund or otherwise. Under 5. 2 (20) of the Act a public road means "any street road, square, court, alley, passage, cart-track, footpath or riding path, over which the public have a right of way" Section 58 of the Act provides for vesting of the communal property in the panchayat. By this section the legislature has provided that any property on income which by custom belongs to the villagers in common., or the holders in common of village land generally or of lands of a particular description shall vest in the panchayat. The legislature has further provided in this section that any property or income which by custom has been administered for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description shall vest in the panchayat and be administered by it for the benefit of the villagers or the holders aforesaid. In enacting S. 58 of the Act the legislature has made a provision for vesting of two kinds of property or income: (1) property or income which by custom belongs to the villagers in common or the holders in common of village land generally or lands of a particular description, and (2) property or income which has been administered by custom for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description. Having regard to the grammatical structure and the context, we are of opinion that the expression "by custom" qualifies not only the property or income which belongs to the villagers but also property and income which has been administered for the benefit of the villagers in common. It is manifest that S. 58 provides for the vesting of such property and income to which the villagers have acquired title as a matter of custom or which has been administered for the benefit of the villagers as a matter of customWe do not think that dedication is a relevant circumstance in considering the scope and meaning of S. 58 of the Act. In the enactment of this section the legislature did not contemplate that parks, play grounds, schools or temple or hospital dedicated to the public should vest in the panchayat merely by the fact or such dedication. What is required by S. 58 for the purpose of vesting is the proof of custom by which the villagers in common acquire title to any property or income. Vesting of rights takes place under S. 58 if there is proof of customary right of administration of any property or income for the benefit of the villagers in common. Unless therefore there is proof of customary right, the Panchayat cannot claim title to the property or income administered for the benefit of the villagers in common. For example, the Society may have established a library or a social club or a school for the benefit of its members. Again, a private individual may have created a trust for the provision of amenities like parks, play grounds and hospitals for the residents of the village-In a case of this description the legal ownership of the Society or of the trustees will not vest in the Panchayat because of the provisions of S. 58 of theAct. Itcannot be supposed that such starting and unjust result was contemplated by the legislature in enacting S. 58. We are accordingly of the opinion that the scope of S. 58 of the Act must be confined to communal property and income of the panchayat which by custom belongs to the villagers in common or has been administered for their benefit as a matter of custom, and the scope of that section cannot be extended to include parks, play grounds, hospitals, libraries and schools provided by the Society for the benefit of the members of the Tirunagar colony. | 1 | 1,864 | 872 | ### Instruction:
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### Input:
as national or State highways), shall vest in the panchayat together with all pavements, stones and other materials thereof, all works, materials and other things provided therefor, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the panchayat fund or otherwise, in, alongside or under such roads, and all works materials and things appertaining thereto. ......................................................" Section 58 is to the following effect:"Any property or income which by custom belongs to, or has been administered for the benefit of, the villagers in common, or the holders in common of village land generally or of lands a particular description or of lands under a particular source of irrigation shall vest in the panchayat and be administered by it for the benefit of the villagers or holders aforesaid." 5. The rules framed under the Co-operative Societies Act for the formation of House Building Societies required that when an area is set apart for a residential colony provisions for schools, markets, theatres, hospitals, clubs, religious places, etc., should be made in the layout. Reference was made, on behalf of the appellant, to the layout plan Ex. A-44 for the Tirunagar Housing colony. There is evidence in this case that the government had assigned to the House Building Society free of cost an area of about 5 acres for the proposed public amenities like schools, markets etc. It was submitted behalf of the appellant that the parks, play grounds, hospitals, schools, etc. of the Tirunagar Housing colony would vest in the Panchayat under S. 58 of the Act. We do not consider that there is any justification for this argument. Under S. 56 of the Act all public roads in any village shall vest in the Panchayat together with all pavements, stones and other materials thereof, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the panchayat fund or otherwise. Under 5. 2 (20) of the Act a public road means "any street road, square, court, alley, passage, cart-track, footpath or riding path, over which the public have a right of way" Section 58 of the Act provides for vesting of the communal property in the panchayat. By this section the legislature has provided that any property on income which by custom belongs to the villagers in common., or the holders in common of village land generally or of lands of a particular description shall vest in the panchayat. The legislature has further provided in this section that any property or income which by custom has been administered for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description shall vest in the panchayat and be administered by it for the benefit of the villagers or the holders aforesaid. In enacting S. 58 of the Act the legislature has made a provision for vesting of two kinds of property or income: (1) property or income which by custom belongs to the villagers in common or the holders in common of village land generally or lands of a particular description, and (2) property or income which has been administered by custom for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description. Having regard to the grammatical structure and the context, we are of opinion that the expression "by custom" qualifies not only the property or income which belongs to the villagers but also property and income which has been administered for the benefit of the villagers in common. It is manifest that S. 58 provides for the vesting of such property and income to which the villagers have acquired title as a matter of custom or which has been administered for the benefit of the villagers as a matter of custom. It was argued on behalf of the appellant that if parks or play grounds or markets had been dedicated to the public the Panchayat would acquire title to such properties under S. 58 of the Act. We do not think that dedication is a relevant circumstance in considering the scope and meaning of S. 58 of the Act. In the enactment of this section the legislature did not contemplate that parks, play grounds, schools or temple or hospital dedicated to the public should vest in the panchayat merely by the fact or such dedication. What is required by S. 58 for the purpose of vesting is the proof of custom by which the villagers in common acquire title to any property or income. Vesting of rights takes place under S. 58 if there is proof of customary right of administration of any property or income for the benefit of the villagers in common. Unless therefore there is proof of customary right, the Panchayat cannot claim title to the property or income administered for the benefit of the villagers in common. For example, the Society may have established a library or a social club or a school for the benefit of its members. Again, a private individual may have created a trust for the provision of amenities like parks, play grounds and hospitals for the residents of the village-In a case of this description the legal ownership of the Society or of the trustees will not vest in the Panchayat because of the provisions of S. 58 of the Act. It cannot be supposed that such starting and unjust result was contemplated by the legislature in enacting S. 58. We are accordingly of the opinion that the scope of S. 58 of the Act must be confined to communal property and income of the panchayat which by custom belongs to the villagers in common or has been administered for their benefit as a matter of custom, and the scope of that section cannot be extended to include parks, play grounds, hospitals, libraries and schools provided by the Society for the benefit of the members of the Tirunagar colony.
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### Explanation:
5. The rules framed under the Co-operative Societies Act for the formation of House Building Societies required that when an area is set apart for a residential colony provisions for schools, markets, theatres, hospitals, clubs, religious places, etc., should be made in the layout. Reference was made, on behalf of the appellant, to the layout plan Ex. A-44 for the Tirunagar Housing colony. There is evidence in this case that the government had assigned to the House Building Society free of cost an area of about 5 acres for the proposed public amenities like schools, markets etc.We do not consider that there is any justification for this argument. Under S. 56 of the Act all public roads in any village shall vest in the Panchayat together with all pavements, stones and other materials thereof, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the panchayat fund or otherwise. Under 5. 2 (20) of the Act a public road means "any street road, square, court, alley, passage, cart-track, footpath or riding path, over which the public have a right of way" Section 58 of the Act provides for vesting of the communal property in the panchayat. By this section the legislature has provided that any property on income which by custom belongs to the villagers in common., or the holders in common of village land generally or of lands of a particular description shall vest in the panchayat. The legislature has further provided in this section that any property or income which by custom has been administered for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description shall vest in the panchayat and be administered by it for the benefit of the villagers or the holders aforesaid. In enacting S. 58 of the Act the legislature has made a provision for vesting of two kinds of property or income: (1) property or income which by custom belongs to the villagers in common or the holders in common of village land generally or lands of a particular description, and (2) property or income which has been administered by custom for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description. Having regard to the grammatical structure and the context, we are of opinion that the expression "by custom" qualifies not only the property or income which belongs to the villagers but also property and income which has been administered for the benefit of the villagers in common. It is manifest that S. 58 provides for the vesting of such property and income to which the villagers have acquired title as a matter of custom or which has been administered for the benefit of the villagers as a matter of customWe do not think that dedication is a relevant circumstance in considering the scope and meaning of S. 58 of the Act. In the enactment of this section the legislature did not contemplate that parks, play grounds, schools or temple or hospital dedicated to the public should vest in the panchayat merely by the fact or such dedication. What is required by S. 58 for the purpose of vesting is the proof of custom by which the villagers in common acquire title to any property or income. Vesting of rights takes place under S. 58 if there is proof of customary right of administration of any property or income for the benefit of the villagers in common. Unless therefore there is proof of customary right, the Panchayat cannot claim title to the property or income administered for the benefit of the villagers in common. For example, the Society may have established a library or a social club or a school for the benefit of its members. Again, a private individual may have created a trust for the provision of amenities like parks, play grounds and hospitals for the residents of the village-In a case of this description the legal ownership of the Society or of the trustees will not vest in the Panchayat because of the provisions of S. 58 of theAct. Itcannot be supposed that such starting and unjust result was contemplated by the legislature in enacting S. 58. We are accordingly of the opinion that the scope of S. 58 of the Act must be confined to communal property and income of the panchayat which by custom belongs to the villagers in common or has been administered for their benefit as a matter of custom, and the scope of that section cannot be extended to include parks, play grounds, hospitals, libraries and schools provided by the Society for the benefit of the members of the Tirunagar colony.
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Mahant Ram Saroop Dasji Vs. S. P. Sahi, Special Officer-In-Charge Of The Hindu Religious Trusts and Others | religious trust being a form of charitable trust is also public, but in India, according to Hindu law, religious trust may be public or private.But the most usual and commonest form of a private religious trust is one created for the worship of a family idol in which the public are not interested.Any other private religious trust must be very rare and difficult to think of.Dealing with the distinction between public and private endowments in Hindu law, Sir Dinshah Mulla has said at p. 529 of his Principles of Hindu Law (11th edition)."Religious endowments are either public or private. In a public endowment the dedication is for the use or benefit of the public. When property is set apart for the worship of a family god in which the public are not interested, the endowment is a private one."Obviously enough, the definition clause merely quotes the typical example of private endowment mentioned above. It is also significant that the exclusion of an endowment created for the worship of a family idol is based on the adjectival clause which follows it, viz.. "in which the public are not interested". In other words, the exclusion is based on the essential distinction between a public and private trust in Hindu law. If the test is that the public or any section thereof are not interested in the trust, such a test is characteristic of all private trusts in Hindu law. It also shows that there may be a trust created for the worship of a family idol in which the public may be interested. Those are cases of trust which began as a private trust but which eventually came to be thrown open to the public. This also indicates that the definition was intended to cover only public trusts.10. We now turn to some of the other provisions of the Act, which we have earlier quoted. Section 29 (1) which talks of supervision of a religious trust being veste in any committee or association appointed by the founder or by a competent court or authority is ordinarily appropriate in the case of a public trust only. Section 30 (1) which embodies the doctrine if cypres permits any Hindu to make an application for invoking the power of the Board to determine the object to which funds, property and income of a religious trust shall be applied where the original object of the trust has ceased to exist or has become impossible of achievement. This section is also inappropriate in the case of a private trust, the obvious reason being that any and every Hindu cannot be interested in a private trust so as to give him a locus standi to make the application. Further, it is difficult to visualise that a Hindu private debutter will fail, for a deity is immortal. Even if the idol gets broken or is lost or stolen, another image may be consecrated and it cannot be said that the original object has ceased to exist. Section 32 it an important section of the Act and confers power on the Board to settle schemes for proper administration of religious trusts. Now, the section says that the Board may exercise the power of its own motion or on application made to it in this behalf by two or more persons interested in any trust. The language of the section follows closely the language of S. 92, Civil Procedure Code, so far as the phrase two or more persons intersted in any trust" is concerned. It is difficult to understand why in the case of a private trust, it should be necessary that two or more persons interested in the trust must make the application to settle a scheme for such a trust. In a private or family debutter the beneficiaries are a limited and defined class of persons, as for example, the members of a family. If the trustee or shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can certainly be instituted for remedying these abuses of trust. Under the general law of the land the founder of the endowment, or any of his heirs is competent to institute a suit for proper administration of the debutter, for removal of the old trustee and for appointment of a new one. It is not necessary in such a case that two or more persons interested in the trust must join in order to institute the suit. The condition of "two or more persons" is appropriate only to a public trust, the reason being that a public trust is a matter of public concern. Section 48 of the Act is also analogous to S. 92 of the Code of Civil Procedure and one of the reasons for excluding the operation of S. 92 of the Code of Civil Procedure from trusts as defined by the Act is the existence of provisions in the Act which are analogous to S. 92 of the Code of Civil Procedure. This section is also more appropriate to public trusts than to private trusts. In fact the Act contains provisions, as the preamble : states, for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts and for that purpose certain earlier enactments like the Religious Endowments Act, 1863, the Charitable Endowments Act, l890, the Charitable and Religious Trusts Act, 1920 and the Civil Procedure Code, 1908 have either been amended or excluded from operation. All those earlier enactments related only to public trusts and if the intention was that the Act would Apply to private trusts as well, one would expect that that intention would be made clear by the use of unambiguous language.We find, on the contrary, that though the definition clause in S. 2 (1) is expressed in somewhat wide language, sub- s. (5) of S. 4 makes clear what the true scope and effect of the definition clause is. | 1[ds]In order to appreciate this argument it is necessary to state first the distinction in Hindu law between religious endowments which are public and those which are private. To put it briefly, the essential distinction is that in a public trust the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description; in a private trust the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained.The fact that the uncertain and fluctuating body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference in the matter and would not make the trust a privatethe Civil Procedure Code of 1877 a specific section was introduced, viz., S. 539, under which a suit could be instituted in case of any alleged breach of any express or constructive trust created for public religious or charitable purposes. This section was later amended, an in this amended form it became S. 92 of the present Civil Procedure Code, the first condition necessary to bring a case within its purview being the existence of a trust, whether express or constructive for public purposes of a religious or charitable nature. It is clear beyond doubt that a private trust is outside the operation of S. 92, Civil Procedure Code. Of the local Acts, the earliest was that of the Bombay Presidency of the year 1863. In more recent years were passed the Orissa Hindu Religious Endowments Act, 1939,the Bombay Public Trusts Act, 1950and the Madras Hindu Religious and Charitable Endowments Act. 1951, all of which relate to public religious institutions and endowments. No local Act has been brought to our notice which clearly or unmistakenly sought to include within its ambit private religious2 (1) of the Act, we have pointed out, recognises two exceptions : first, a trust created according to the Sikh religion or purely for the benefit of the Sikh community; and, second, a private endowment created for the worship of a family idol, in which the public are not interested. It is not disputed that the second exception is an instance of a private trust, in which the public are nottrusts are public trusts, both under the English and Indian law; in England a religious trust being a form of charitable trust is also public, but in India, according to Hindu law, religious trust may be public or private.But the most usual and commonest form of a private religious trust is one created for the worship of a family idol in which the public are not interested.Any other private religious trust must be very rare and difficult to thinkenough, the definition clause merely quotes the typical example of private endowment mentioned above. It is also significant that the exclusion of an endowment created for the worship of a family idol is based on the adjectival clause which follows it, viz.. "in which the public are not interested". In other words, the exclusion is based on the essential distinction between a public and private trust in Hindu law. If the test is that the public or any section thereof are not interested in the trust, such a test is characteristic of all private trusts in Hindu law. It also shows that there may be a trust created for the worship of a family idol in which the public may be interested. Those are cases of trust which began as a private trust but which eventually came to be thrown open to the public. This also indicates that the definition was intended to cover only public32 it an important section of the Act and confers power on the Board to settle schemes for proper administration of religious trusts. Now, the section says that the Board may exercise the power of its own motion or on application made to it in this behalf by two or more persons interested in any trust. The language of the section follows closely the language of S. 92, Civil Procedure Code, so far as the phrase two or more persons intersted in any trust" is concerned. It is difficult to understand why in the case of a private trust, it should be necessary that two or more persons interested in the trust must make the application to settle a scheme for such a trust. In a private or family debutter the beneficiaries are a limited and defined class of persons, as for example, the members of a family. If the trustee or shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can certainly be instituted for remedying these abuses of trust. Under the general law of the land the founder of the endowment, or any of his heirs is competent to institute a suit for proper administration of the debutter, for removal of the old trustee and for appointment of a new one. It is not necessary in such a case that two or more persons interested in the trust must join in order to institute the suit. The condition of "two or more persons" is appropriate only to a public trust, the reason being that a public trust is a matter of public concern. Section 48 of the Act is also analogous to S. 92 of theCode of Civil Procedureand one of the reasons for excluding the operation of S. 92 of theCode of Civil Procedurefrom trusts as defined by the Act is the existence of provisions in the Act which are analogous to S. 92 of theCode of CivilThis section is also more appropriate to public trusts than to private trusts. In fact the Act contains provisions, as the preamble : states, for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts and for that purpose certain earlier enactments likethe Religious Endowments Act,the Charitable Endowments Act, l890,the Charitable and Religious Trusts Act, 1920and the Civil Procedure Code, 1908 have either been amended or excluded from operation. All those earlier enactments related only to public trusts and if the intention was that the Act would Apply to private trusts as well, one would expect that that intention would be made clear by the use of unambiguous language.We find, on the contrary, that though the definition clause in S. 2 (1) is expressed in somewhat wide language, sub-(5) of S. 4 makes clear what the true scope and effect of the definition clausede not think that in the circumstances of this case it is necessary to consider that evidence afresh. As long as the declaration made by the High Court in First Appeal No. 10 of 1941 stands and in the absence of some evidence to the contrary, the appellant is entitled to say that the Salouna asthal and the properties appertaining thereto do not constitute a public trust and the Act and its provisions do not apply to it.attention has been drawn to S. 43 of the Act as amended by Act XVII of 1956. That section says inter alia that all disputes as to whether any immovable property is or is not a trust property shall be inquired into, either on its own motion or on an application, by the authority appointed in this behalf by the State Government by notification in the official gazette. Without expressing any opinion as to the constitutional validity of S. 43 of the Act we merely point out that no decision has been given under S. 48 of the Act (as it stood prior or after the amendment) against the appellant in respect of the Salouna asthal and the properties appertaining thereto. It would be open to the respondents to take such steps as may be available to them in law to get it determined by a competent authority that the trust in question is a public trust. | 1 | 5,809 | 1,454 | ### 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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religious trust being a form of charitable trust is also public, but in India, according to Hindu law, religious trust may be public or private.But the most usual and commonest form of a private religious trust is one created for the worship of a family idol in which the public are not interested.Any other private religious trust must be very rare and difficult to think of.Dealing with the distinction between public and private endowments in Hindu law, Sir Dinshah Mulla has said at p. 529 of his Principles of Hindu Law (11th edition)."Religious endowments are either public or private. In a public endowment the dedication is for the use or benefit of the public. When property is set apart for the worship of a family god in which the public are not interested, the endowment is a private one."Obviously enough, the definition clause merely quotes the typical example of private endowment mentioned above. It is also significant that the exclusion of an endowment created for the worship of a family idol is based on the adjectival clause which follows it, viz.. "in which the public are not interested". In other words, the exclusion is based on the essential distinction between a public and private trust in Hindu law. If the test is that the public or any section thereof are not interested in the trust, such a test is characteristic of all private trusts in Hindu law. It also shows that there may be a trust created for the worship of a family idol in which the public may be interested. Those are cases of trust which began as a private trust but which eventually came to be thrown open to the public. This also indicates that the definition was intended to cover only public trusts.10. We now turn to some of the other provisions of the Act, which we have earlier quoted. Section 29 (1) which talks of supervision of a religious trust being veste in any committee or association appointed by the founder or by a competent court or authority is ordinarily appropriate in the case of a public trust only. Section 30 (1) which embodies the doctrine if cypres permits any Hindu to make an application for invoking the power of the Board to determine the object to which funds, property and income of a religious trust shall be applied where the original object of the trust has ceased to exist or has become impossible of achievement. This section is also inappropriate in the case of a private trust, the obvious reason being that any and every Hindu cannot be interested in a private trust so as to give him a locus standi to make the application. Further, it is difficult to visualise that a Hindu private debutter will fail, for a deity is immortal. Even if the idol gets broken or is lost or stolen, another image may be consecrated and it cannot be said that the original object has ceased to exist. Section 32 it an important section of the Act and confers power on the Board to settle schemes for proper administration of religious trusts. Now, the section says that the Board may exercise the power of its own motion or on application made to it in this behalf by two or more persons interested in any trust. The language of the section follows closely the language of S. 92, Civil Procedure Code, so far as the phrase two or more persons intersted in any trust" is concerned. It is difficult to understand why in the case of a private trust, it should be necessary that two or more persons interested in the trust must make the application to settle a scheme for such a trust. In a private or family debutter the beneficiaries are a limited and defined class of persons, as for example, the members of a family. If the trustee or shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can certainly be instituted for remedying these abuses of trust. Under the general law of the land the founder of the endowment, or any of his heirs is competent to institute a suit for proper administration of the debutter, for removal of the old trustee and for appointment of a new one. It is not necessary in such a case that two or more persons interested in the trust must join in order to institute the suit. The condition of "two or more persons" is appropriate only to a public trust, the reason being that a public trust is a matter of public concern. Section 48 of the Act is also analogous to S. 92 of the Code of Civil Procedure and one of the reasons for excluding the operation of S. 92 of the Code of Civil Procedure from trusts as defined by the Act is the existence of provisions in the Act which are analogous to S. 92 of the Code of Civil Procedure. This section is also more appropriate to public trusts than to private trusts. In fact the Act contains provisions, as the preamble : states, for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts and for that purpose certain earlier enactments like the Religious Endowments Act, 1863, the Charitable Endowments Act, l890, the Charitable and Religious Trusts Act, 1920 and the Civil Procedure Code, 1908 have either been amended or excluded from operation. All those earlier enactments related only to public trusts and if the intention was that the Act would Apply to private trusts as well, one would expect that that intention would be made clear by the use of unambiguous language.We find, on the contrary, that though the definition clause in S. 2 (1) is expressed in somewhat wide language, sub- s. (5) of S. 4 makes clear what the true scope and effect of the definition clause is.
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for the benefit of the Sikh community; and, second, a private endowment created for the worship of a family idol, in which the public are not interested. It is not disputed that the second exception is an instance of a private trust, in which the public are nottrusts are public trusts, both under the English and Indian law; in England a religious trust being a form of charitable trust is also public, but in India, according to Hindu law, religious trust may be public or private.But the most usual and commonest form of a private religious trust is one created for the worship of a family idol in which the public are not interested.Any other private religious trust must be very rare and difficult to thinkenough, the definition clause merely quotes the typical example of private endowment mentioned above. It is also significant that the exclusion of an endowment created for the worship of a family idol is based on the adjectival clause which follows it, viz.. "in which the public are not interested". In other words, the exclusion is based on the essential distinction between a public and private trust in Hindu law. If the test is that the public or any section thereof are not interested in the trust, such a test is characteristic of all private trusts in Hindu law. It also shows that there may be a trust created for the worship of a family idol in which the public may be interested. Those are cases of trust which began as a private trust but which eventually came to be thrown open to the public. This also indicates that the definition was intended to cover only public32 it an important section of the Act and confers power on the Board to settle schemes for proper administration of religious trusts. Now, the section says that the Board may exercise the power of its own motion or on application made to it in this behalf by two or more persons interested in any trust. The language of the section follows closely the language of S. 92, Civil Procedure Code, so far as the phrase two or more persons intersted in any trust" is concerned. It is difficult to understand why in the case of a private trust, it should be necessary that two or more persons interested in the trust must make the application to settle a scheme for such a trust. In a private or family debutter the beneficiaries are a limited and defined class of persons, as for example, the members of a family. If the trustee or shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can certainly be instituted for remedying these abuses of trust. Under the general law of the land the founder of the endowment, or any of his heirs is competent to institute a suit for proper administration of the debutter, for removal of the old trustee and for appointment of a new one. It is not necessary in such a case that two or more persons interested in the trust must join in order to institute the suit. The condition of "two or more persons" is appropriate only to a public trust, the reason being that a public trust is a matter of public concern. Section 48 of the Act is also analogous to S. 92 of theCode of Civil Procedureand one of the reasons for excluding the operation of S. 92 of theCode of Civil Procedurefrom trusts as defined by the Act is the existence of provisions in the Act which are analogous to S. 92 of theCode of CivilThis section is also more appropriate to public trusts than to private trusts. In fact the Act contains provisions, as the preamble : states, for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts and for that purpose certain earlier enactments likethe Religious Endowments Act,the Charitable Endowments Act, l890,the Charitable and Religious Trusts Act, 1920and the Civil Procedure Code, 1908 have either been amended or excluded from operation. All those earlier enactments related only to public trusts and if the intention was that the Act would Apply to private trusts as well, one would expect that that intention would be made clear by the use of unambiguous language.We find, on the contrary, that though the definition clause in S. 2 (1) is expressed in somewhat wide language, sub-(5) of S. 4 makes clear what the true scope and effect of the definition clausede not think that in the circumstances of this case it is necessary to consider that evidence afresh. As long as the declaration made by the High Court in First Appeal No. 10 of 1941 stands and in the absence of some evidence to the contrary, the appellant is entitled to say that the Salouna asthal and the properties appertaining thereto do not constitute a public trust and the Act and its provisions do not apply to it.attention has been drawn to S. 43 of the Act as amended by Act XVII of 1956. That section says inter alia that all disputes as to whether any immovable property is or is not a trust property shall be inquired into, either on its own motion or on an application, by the authority appointed in this behalf by the State Government by notification in the official gazette. Without expressing any opinion as to the constitutional validity of S. 43 of the Act we merely point out that no decision has been given under S. 48 of the Act (as it stood prior or after the amendment) against the appellant in respect of the Salouna asthal and the properties appertaining thereto. It would be open to the respondents to take such steps as may be available to them in law to get it determined by a competent authority that the trust in question is a public trust.
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THE KARAD URBAN COOPERATIVE BANK LTD Vs. SWWAPNIL BHINGARDEVAY & ORS | total pay-out as per the Resolution Plan is Rs. 29.74 crores. 37. This meant that the workers and employees of the corporate debtor were to be paid 100% of their dues; that all statutory dues would be cleared 100% and that the financial creditors who constituted the CoC were to be paid 60% of their dues. 38. It offends common sense to think that a resolution applicant who had the benefit of leakage of information relating to liquidation value would quote a figure of Rs. 29.74 crores as the total pay-out, as against a liquidation value of Rs. 13.53 crores. The question of breach of confidentiality and leakage of confidential information can easily be tested on the touchstone of the benefit that accrued to the party who got the information. In the case on hand, no benefit accrued to the SRA. 39. It is obvious from the material on record that the Promoter/Director of the Corporate Debtor has tried to take advantage of two small mistakes on the part of the SRA, one of which was a typographical error mentioning the date 09th February 2019 at the bottom of the self-declaration and the other, which happened as a matter of coincidence. The NCLAT appears to have made a mountain out of a molehill and has recorded a finding even beyond the pleadings in the Memorandum of Appeal. Hence, the second ground on which the NCLAT was convinced to pass the impugned order, is legally and factually untenable. 40. The third ground on which NCLAT proceeded, related to the ethanol plant and machinery. We have already dealt with this issue in detail, while dealing with the first issue. As stated therein, the SRA admittedly did not make his Resolution Plan on the strength of the ethanol plant and machinery in question. The threat looming large over the availability of the ethanol plant and machinery has admittedly been taken note of by the SRA and the CoC. The Resolution Plan does not give an indication anywhere that without this plant and machinery the whole resolution plan will fail. In paragraph 8.04 of the Resolution Plan, the SRA has undertaken to continue the operations in the normal course of business. It is a commercial decision that they have taken. The corporate debtor cannot cry wolf over the said decision. Therefore, the third ground on which NCLAT chose to interfere, is also bound to be rejected. 41. The last ground revolves around the advertisement issued by the Resolution Professional on 30.03.2018. NCLAT holds that the advertisement was not in conformity with Regulation 36A of The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and as per Form G of the Schedule. 42. But the conclusions reached by NCLAT in this regard cannot hold water for two reasons. If NCLAT was convinced that the very process of inviting Expression of Interest was vitiated, NCLAT should have issued a direction to start the process afresh all over again by issuing a fresh advertisement. NCLAT did not do this and the person who raised this point is not on appeal. 43. In any case, it does not lie in the mouth of the Promoter/Director of the corporate debtor to raise any issue in this regard. It is seen from the Minutes of the 2 nd Meeting of the Committee of Creditors that the Promoter/Director of the corporate debtor attended the meeting held on 27.03.2018. In Item No. 3 of the Agenda for the said meeting, the draft of the Invitation for Expression of Interest was approved. The Promoter/Director did not raise any objections either on 27.03.2018 in the meeting in which the draft was approved or at any time thereafter, until the approval of the Resolution Plan. 44. The Promoter/Director of the corporate debtor who was the appellant before NCLAT attended the 3 rd meeting of the CoC on 15.09.2018, the 4 th meeting of the CoC held on 12.10.2018 and the 5 th meeting of the CoC held on 26.11.2018. He did not raise any whisper about the contents of the advertisement. Even when the very same Promoter/Director of the corporate debtor went before the High Court of Judicature at Bombay by way of a writ petition challenging the orders of NCLT dated 01.01.2018 and 06.03.2018, his focus was on his own application under Section 10 of the Insolvency and Bankruptcy Code. His grievance before the High Court was that his own application under Section 10 was dumped by the NCLT and the application of the financial creditor was admitted thereafter. In fact the conduct of the Promoter/Director of the corporate debtor came to adverse notice before the Bombay High Court. 45. Regulation 36A was inserted only with effect from 06.02.2018 under Notification No. IBBI/2017-18/GN/REG024 dated 06.02.2018. It underwent a change under Notification No. IBBI/2018-19/GN/REG031 dated 03.07.2018, with effect from 04.07.2018. Regulation 36A, as it stood during the period from 06.02.2018 to 04.07.2018, did not mandate the publication of the invitation of Resolution Plans, either in Form G or otherwise, in newspapers. It is only the amended Regulation 36A, which came into effect from 04.07.2018, that requires the publication of Form G in newspapers. Therefore, the publication in newspapers made by the Resolution Professional, in the case on hand, on 30.03.2018, was something that was statutorily not required of him and hence the Promoter/Director of the corporate debtor cannot take advantage of the amendment that came later, to attack the advertisement. The unamended and amended Regulation 36A are provided in a tabular column for easy comparison and appreciation. table 46. The second meeting of the Committee of Creditors was held on 27.03.2018. The advertisement was approved in the said meeting. It was the unamended Regulation 36A that was in force at that time. This has not been appreciated by NCLAT. Therefore, the NCLAT was wrong in its approach even in this regard. 47. Therefore, in fine, the impugned order of NCLAT is flawed and hence, liable to be set aside. | 1[ds]On the first question regarding the viability and feasibility of a resolution plan, the law is now well-settled. In K. Sashidhar (supra), it was held as follows:(i) There is an intrinsic assumption that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan…The opinion on the subject matter expressed by them after due deliberations in the CoC meetings through voting, as per voting shares, is a collective business decision. The legislature, consciously, has not provided any ground to challenge the commercial wisdom of the individual financial creditors or their collective decision before the adjudicating authority. That is made nonjusticiable.(paragraph 52)(ii) The provisions investing jurisdiction and authority in NCLT or NCLAT as noticed earlier, have not made the commercial decision exercised by CoC of not approving the resolution plan or rejecting the same, justiciable. This position is reinforced from the limited grounds specified for instituting an appeal that too against an order approving a resolution plan under Section 31. (paragraph 57)(iii) Further, the jurisdiction bestowed upon the appellate authority (NCLAT) is also expressly circumscribed. It can examine the challenge only in relation to the grounds specified in Section 61(3) of the I&B Code, which is limited to matters other than enquiry into the autonomy or commercial wisdom of the dissenting financial creditors. (paragraph 58)(iv) At best, the adjudicating authority (NCLT) may cause an enquiry into the approved resolution plan on limited grounds referred to in Section 30(2) read with Section 31(1) of the I&B Code. It cannot make any other inquiry nor is competent to issue any direction in relation to the exercise of commercial wisdom of the financial creditors — be it for approving, rejecting or abstaining, as the case may be. Even the inquiry before the appellate authority (NCLAT) is limited to the grounds under Section 61(3) of the I&B Code. It does not postulate jurisdiction to undertake scrutiny of the justness of the opinion expressed by financial creditors at the time of voting. (paragraph 64)Thereafter, in Essar Steel India Ltd. (supra), this Court held:(i) Thus, it is clear that the limited judicial review available, which can in no circumstance trespass upon a business decision of the majority of the Committee of Creditors, has to be within the four corners of Section 30(2) of the Code, insofar as the Adjudicating Authority is concerned, and Section 32 read with Section 61(3) of the Code, insofar as the Appellate Tribunal is concerned. (paragraph 48)(iv) Thus, while the Adjudicating Authority cannot interfere on merits with the commercial decision taken by the Committee of Creditors, the limited judicial review available is to see that the Committee of Creditors has taken into account the fact that the corporate debtor needs to keep going as a going concern during the insolvency resolution process; that it needs to maximise the value of its assets; and that the interests of all stakeholders including operational creditors has been taken care of. (paragraph 54)13. The principles laid down in the aforesaid decisions, make one thing very clear. If all the factors that need to be taken into account for determining whether or not the corporate debtor can be kept running as a going concern have been placed before the Committee of Creditors and the CoC has taken a conscious decision to approve the resolution plan, then the adjudicating authority will have to switch over to the hands off mode. It is not the case of the corporate debtor or its promoter/Director or anyone else that some of the factors which are crucial for taking a decision regarding the viability and feasibility, were not placed before the CoC or the Resolution Professional.The only basis for the corporate debtor to raise the issue of viability and feasibility is that the ownership and possession of the ethanol plant and machinery is the subject matter of another dispute and that the resolution plan does not take care of the contingency where the said plant and machinery may not eventually be available to the Successful Resolution Applicant.14. But the aforesaid argument, coming as it does from the Promoter/Director of the corporate debtor is like the wolf shedding tears for the lamb getting drenched in rain. The records very clearly show that the Successful Resolution Applicant, the Resolution Professional and the financial creditor were fully aware of the said issue. The order passed by the NCLAT in Company Appeal (AT) (Insolvency) No.897 of 2019 on 16.12.2019 shows that the possession of the ethanol plant and machinery was restored to Sarvadnya Industries Pvt. Ltd., in the appeal to which the Successful Resolution Applicant was also a party. The Successful Resolution Applicant also appears to have offered to Janata Sahkari Bank to purchase the said plant and machinery. In the appeal before the NCLAT out of which the present Civil Appeals arise, Sarvadnya Industries Pvt. Ltd. which claims ownership of the ethanol plant and machinery, were also a party.16. Therefore, the fact that there was an issue with regard to the ethanol plant and machinery, had been taken note of by the Resolution Professional, the Committee of Creditors and the Successful Resolution Applicant. Once all these three parties have taken note of the said fact and taken a conscious decision to go ahead with the Resolution Plan, it cannot be stated that the question of viability and feasibility was not examined in the proper perspective.17. Therefore, the first ground and actually the main ground on which NCLAT interfered with the decision of the NCLT to approve the Resolution Plan, is wholly untenable, misconceived and unjustified.18. In fact, our discussion could have ended here without going into the other grounds, for one simple reason. Though the Director/Promoter of the corporate debtor, who was the appellant before the NCLAT, raised other grounds apart from viability and feasibility, NCLAT issued limited notice in the appeal, on 12.09.2019, only with regard to viability and feasibility. Even in the impugned order dated 02.06.2020, it is made clear in the last sentence of paragraph 1 that this appeal on 12.09.2019 was admitted to limited extent of examining viability and feasibility of the Plan.19. It is true that in the last paragraph of the impugned order, namely paragraph 14, the Appellate Tribunal holds that the CIRP suffered from material irregularities and the Resolution Plan approved suffers from feasibility and viability. But then the operative portion of the impugned order does not take the findings on other issues to their logical end. For instance, the Tribunal holds that the advertisement inviting Expression of Interest itself was defective and that there was breach of confidentiality in as much as the liquidation value appears to have been leaked out. These findings should have taken the Appellate Tribunal to the point of setting aside the entire process and directing the Resolution Professional to start the process all over again from the stage of issue of a fresh advertisement. The NCLAT did not do so. In the operative portion, NCLAT merely remanded the matter back to the Adjudicating Authority with a direction to send back the Resolution Plan to the Committee of Creditors to resubmit the plan after taking into consideration the law laid down by this Court.20. In other words, the reliefs that would normally flow in the light of the findings with regard to breach of confidentiality and defective Invitation to Offer, were not granted by NCLAT. The Director/Promoter of the corporate debtor has not come up with any appeal against the failure of NCLAT to grant appropriate reliefs, connectable to the aforesaid findings. The Director/Promoter of the corporate debtor is obviously happy with the limited relief, if at all it is one, granted to him for the resubmission of the Resolution Plan.22. By its common order dated 01.08.2019, the NCLT dismissed MA Nos.1509 and 2104 of 2019, filed respectively by the operational creditor (lessor of the ethanol plant) and the Promoter/Director of the corporate debtor. But the application filed by the Resolution Professional was allowed.23. But the Director/Promoter of the corporate debtor filed only one appeal and the Memorandum of Appeal suggests that the Director/Promoter of the corporate debtor prayed for two reliefs, namely (i) to set aside the approval of the Resolution Plan, and (ii) to consider his own resolution plan.24. By the order impugned in the present Civil Appeals, the NCLAT granted only a limited relief, as can be seen from the operative portion of the order of NCLAT which we have extracted earlier.25. Therefore, in the light of the above facts, the consideration of all other issues, such as breach of confidentiality and defective Invitation to Offer would only be academic, as NCLAT did not grant any relief to the Promoter/Director of the corporate debtor, which could logically flow out of those other grounds.28. According to the Director/Promoter of the corporate debtor, the self-declaration signed by the Resolution Applicant, and which forms part of the Resolution Plan, bears the date 9 th February 2019. This document mentions the liquidation value as Rs. 13.53 crores. It was the same value as obtained by the Resolution Professional. It is the contention of the Director/ Promoter of the corporate debtor that the Resolution Professional wrote an email on 07.02.2019 itself (2 days before the submission of the Resolution Plan by the SRA), asking for clarification as to how the liquidation value matched. This, according to the Director of the corporate debtor, was proof enough to show that there was not merely a leakage of information, but also an attempt to cover-up.29. But we are unable to accept the above contention.31. Nowhere in the Memorandum of Appeal filed by the Promoter/Director of the corporate debtor before the NCLAT, has he claimed that the Resolution Plan was submitted by the SRA after the last date. We have perused the Memorandum of Appeal filed by the Promoter/Director of the corporate debtor before the NCLAT. It was not his case at all that the Resolution Plan was submitted by the SRA after the last date, but the same was predated by the Resolution Professional acting in collusion.32. It appears from the impugned order of NCLAT that only in the course of hearing of the appeal, the date 09th February 2019 type-written at the bottom of the self-declaration (page 29 of the Resolution Plan) was sought to be taken advantage of. Since this was not raised as one of the grounds in the Memorandum of Appeal but raised in the course of arguments, the Resolution Professional could do no more than to file the print-out of the email correspondence between him and the SRA dated 07.02.2019. In the first email dated 07.02.2019, the Resolution Professional had sought a clarification from the SRA as to how they discovered the liquidation value and the source for the same. In response to this mail, the SRA sent a reply email contending that they undertook a due diligence to know the current market value and liquidation value and that what was quoted by them in the Resolution Plan, was something that an independent agency provided to them.33. Unfortunately, NCLAT rejected the print-out of the email correspondence dated 07.02.2019 on the sole ground that the same was not supported by affidavit and that it was filed after the conclusion of the oral arguments.34. But NCLAT failed to take note of the fact that the Resolution Professional did not have any alternative except to respond in the manner that he did, to a point raised only in the course of arguments, but not raised in the Memorandum of Appeal. If the Promoter/Director of the corporate debtor had raised the issue of collusion or the submission of the Resolution Plan after the expiry of the last date, even in the Memorandum of Appeal, a duty would have been cast upon the Resolution Professional to respond in an appropriate manner. But that was not the case. Therefore, we do not approve the manner in which NCLAT rejected the contents of the email correspondence.35. The fact that there was an email correspondence between the Resolution Professional and the SRA on 07.02.2019, touching upon one of the contents of the Resolution Plan, would show (i) that the SRA had submitted the Resolution Plan before the last date and (ii) that the Resolution Professional had obviously scrutinised it, as otherwise he could not have found out the liquidation value mentioned therein matching the confidential information that he had.36. In any case, the proof of the pudding is in the eating. The liquidation value mentioned in the Resolution Plan of the SRA is Rs. 13.53 crores. But the actual total pay-out as per the Resolution Plan is Rs. 29.74 crores.37. This meant that the workers and employees of the corporate debtor were to be paid 100% of their dues; that all statutory dues would be cleared 100% and that the financial creditors who constituted the CoC were to be paid 60% of their dues.38. It offends common sense to think that a resolution applicant who had the benefit of leakage of information relating to liquidation value would quote a figure of Rs. 29.74 crores as the total pay-out, as against a liquidation value of Rs. 13.53 crores. The question of breach of confidentiality and leakage of confidential information can easily be tested on the touchstone of the benefit that accrued to the party who got the information. In the case on hand, no benefit accrued to the SRA.39. It is obvious from the material on record that the Promoter/Director of the Corporate Debtor has tried to take advantage of two small mistakes on the part of the SRA, one of which was a typographical error mentioning the date 09th February 2019 at the bottom of the self-declaration and the other, which happened as a matter of coincidence. The NCLAT appears to have made a mountain out of a molehill and has recorded a finding even beyond the pleadings in the Memorandum of Appeal. Hence, the second ground on which the NCLAT was convinced to pass the impugned order, is legally and factually untenable.As stated therein, the SRA admittedly did not make his Resolution Plan on the strength of the ethanol plant and machinery in question. The threat looming large over the availability of the ethanol plant and machinery has admittedly been taken note of by the SRA and the CoC. The Resolution Plan does not give an indication anywhere that without this plant and machinery the whole resolution plan will fail. In paragraph 8.04 of the Resolution Plan, the SRA has undertaken to continue the operations in the normal course of business. It is a commercial decision that they have taken. The corporate debtor cannot cry wolf over the said decision. Therefore, the third ground on which NCLAT chose to interfere, is also bound to be rejected.NCLAT holds that the advertisement was not in conformity with Regulation 36A of The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and as per Form G of the Schedule.42. But the conclusions reached by NCLAT in this regard cannot hold water for two reasons. If NCLAT was convinced that the very process of inviting Expression of Interest was vitiated, NCLAT should have issued a direction to start the process afresh all over again by issuing a fresh advertisement. NCLAT did not do this and the person who raised this point is not on appeal.43. In any case, it does not lie in the mouth of the Promoter/Director of the corporate debtor to raise any issue in this regard. It is seen from the Minutes of the 2 nd Meeting of the Committee of Creditors that the Promoter/Director of the corporate debtor attended the meeting held on 27.03.2018. In Item No. 3 of the Agenda for the said meeting, the draft of the Invitation for Expression of Interest was approved. The Promoter/Director did not raise any objections either on 27.03.2018 in the meeting in which the draft was approved or at any time thereafter, until the approval of the Resolution Plan.44. The Promoter/Director of the corporate debtor who was the appellant before NCLAT attended the 3 rd meeting of the CoC on 15.09.2018, the 4 th meeting of the CoC held on 12.10.2018 and the 5 th meeting of the CoC held on 26.11.2018. He did not raise any whisper about the contents of the advertisement. Even when the very same Promoter/Director of the corporate debtor went before the High Court of Judicature at Bombay by way of a writ petition challenging the orders of NCLT dated 01.01.2018 and 06.03.2018, his focus was on his own application under Section 10 of the Insolvency and Bankruptcy Code. His grievance before the High Court was that his own application under Section 10 was dumped by the NCLT and the application of the financial creditor was admitted thereafter. In fact the conduct of the Promoter/Director of the corporate debtor came to adverse notice before the Bombay High Court.45. Regulation 36A was inserted only with effect from 06.02.2018 under Notification No. IBBI/2017-18/GN/REG024 dated 06.02.2018. It underwent a change under Notification No. IBBI/2018-19/GN/REG031 dated 03.07.2018, with effect from 04.07.2018. Regulation 36A, as it stood during the period from 06.02.2018 to 04.07.2018, did not mandate the publication of the invitation of Resolution Plans, either in Form G or otherwise, in newspapers. It is only the amended Regulation 36A, which came into effect from 04.07.2018, that requires the publication of Form G in newspapers. Therefore, the publication in newspapers made by the Resolution Professional, in the case on hand, on 30.03.2018, was something that was statutorily not required of him and hence the Promoter/Director of the corporate debtor cannot take advantage of the amendment that came later, to attack the advertisement.46. The second meeting of the Committee of Creditors was held on 27.03.2018. The advertisement was approved in the said meeting. It was the unamended Regulation 36A that was in force at that time. This has not been appreciated by NCLAT. Therefore, the NCLAT was wrong in its approach even in this regard.47. Therefore, in fine, the impugned order of NCLAT is flawed and hence, liable to be set aside | 1 | 5,608 | 3,359 | ### Instruction:
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total pay-out as per the Resolution Plan is Rs. 29.74 crores. 37. This meant that the workers and employees of the corporate debtor were to be paid 100% of their dues; that all statutory dues would be cleared 100% and that the financial creditors who constituted the CoC were to be paid 60% of their dues. 38. It offends common sense to think that a resolution applicant who had the benefit of leakage of information relating to liquidation value would quote a figure of Rs. 29.74 crores as the total pay-out, as against a liquidation value of Rs. 13.53 crores. The question of breach of confidentiality and leakage of confidential information can easily be tested on the touchstone of the benefit that accrued to the party who got the information. In the case on hand, no benefit accrued to the SRA. 39. It is obvious from the material on record that the Promoter/Director of the Corporate Debtor has tried to take advantage of two small mistakes on the part of the SRA, one of which was a typographical error mentioning the date 09th February 2019 at the bottom of the self-declaration and the other, which happened as a matter of coincidence. The NCLAT appears to have made a mountain out of a molehill and has recorded a finding even beyond the pleadings in the Memorandum of Appeal. Hence, the second ground on which the NCLAT was convinced to pass the impugned order, is legally and factually untenable. 40. The third ground on which NCLAT proceeded, related to the ethanol plant and machinery. We have already dealt with this issue in detail, while dealing with the first issue. As stated therein, the SRA admittedly did not make his Resolution Plan on the strength of the ethanol plant and machinery in question. The threat looming large over the availability of the ethanol plant and machinery has admittedly been taken note of by the SRA and the CoC. The Resolution Plan does not give an indication anywhere that without this plant and machinery the whole resolution plan will fail. In paragraph 8.04 of the Resolution Plan, the SRA has undertaken to continue the operations in the normal course of business. It is a commercial decision that they have taken. The corporate debtor cannot cry wolf over the said decision. Therefore, the third ground on which NCLAT chose to interfere, is also bound to be rejected. 41. The last ground revolves around the advertisement issued by the Resolution Professional on 30.03.2018. NCLAT holds that the advertisement was not in conformity with Regulation 36A of The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and as per Form G of the Schedule. 42. But the conclusions reached by NCLAT in this regard cannot hold water for two reasons. If NCLAT was convinced that the very process of inviting Expression of Interest was vitiated, NCLAT should have issued a direction to start the process afresh all over again by issuing a fresh advertisement. NCLAT did not do this and the person who raised this point is not on appeal. 43. In any case, it does not lie in the mouth of the Promoter/Director of the corporate debtor to raise any issue in this regard. It is seen from the Minutes of the 2 nd Meeting of the Committee of Creditors that the Promoter/Director of the corporate debtor attended the meeting held on 27.03.2018. In Item No. 3 of the Agenda for the said meeting, the draft of the Invitation for Expression of Interest was approved. The Promoter/Director did not raise any objections either on 27.03.2018 in the meeting in which the draft was approved or at any time thereafter, until the approval of the Resolution Plan. 44. The Promoter/Director of the corporate debtor who was the appellant before NCLAT attended the 3 rd meeting of the CoC on 15.09.2018, the 4 th meeting of the CoC held on 12.10.2018 and the 5 th meeting of the CoC held on 26.11.2018. He did not raise any whisper about the contents of the advertisement. Even when the very same Promoter/Director of the corporate debtor went before the High Court of Judicature at Bombay by way of a writ petition challenging the orders of NCLT dated 01.01.2018 and 06.03.2018, his focus was on his own application under Section 10 of the Insolvency and Bankruptcy Code. His grievance before the High Court was that his own application under Section 10 was dumped by the NCLT and the application of the financial creditor was admitted thereafter. In fact the conduct of the Promoter/Director of the corporate debtor came to adverse notice before the Bombay High Court. 45. Regulation 36A was inserted only with effect from 06.02.2018 under Notification No. IBBI/2017-18/GN/REG024 dated 06.02.2018. It underwent a change under Notification No. IBBI/2018-19/GN/REG031 dated 03.07.2018, with effect from 04.07.2018. Regulation 36A, as it stood during the period from 06.02.2018 to 04.07.2018, did not mandate the publication of the invitation of Resolution Plans, either in Form G or otherwise, in newspapers. It is only the amended Regulation 36A, which came into effect from 04.07.2018, that requires the publication of Form G in newspapers. Therefore, the publication in newspapers made by the Resolution Professional, in the case on hand, on 30.03.2018, was something that was statutorily not required of him and hence the Promoter/Director of the corporate debtor cannot take advantage of the amendment that came later, to attack the advertisement. The unamended and amended Regulation 36A are provided in a tabular column for easy comparison and appreciation. table 46. The second meeting of the Committee of Creditors was held on 27.03.2018. The advertisement was approved in the said meeting. It was the unamended Regulation 36A that was in force at that time. This has not been appreciated by NCLAT. Therefore, the NCLAT was wrong in its approach even in this regard. 47. Therefore, in fine, the impugned order of NCLAT is flawed and hence, liable to be set aside.
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show (i) that the SRA had submitted the Resolution Plan before the last date and (ii) that the Resolution Professional had obviously scrutinised it, as otherwise he could not have found out the liquidation value mentioned therein matching the confidential information that he had.36. In any case, the proof of the pudding is in the eating. The liquidation value mentioned in the Resolution Plan of the SRA is Rs. 13.53 crores. But the actual total pay-out as per the Resolution Plan is Rs. 29.74 crores.37. This meant that the workers and employees of the corporate debtor were to be paid 100% of their dues; that all statutory dues would be cleared 100% and that the financial creditors who constituted the CoC were to be paid 60% of their dues.38. It offends common sense to think that a resolution applicant who had the benefit of leakage of information relating to liquidation value would quote a figure of Rs. 29.74 crores as the total pay-out, as against a liquidation value of Rs. 13.53 crores. The question of breach of confidentiality and leakage of confidential information can easily be tested on the touchstone of the benefit that accrued to the party who got the information. In the case on hand, no benefit accrued to the SRA.39. It is obvious from the material on record that the Promoter/Director of the Corporate Debtor has tried to take advantage of two small mistakes on the part of the SRA, one of which was a typographical error mentioning the date 09th February 2019 at the bottom of the self-declaration and the other, which happened as a matter of coincidence. The NCLAT appears to have made a mountain out of a molehill and has recorded a finding even beyond the pleadings in the Memorandum of Appeal. Hence, the second ground on which the NCLAT was convinced to pass the impugned order, is legally and factually untenable.As stated therein, the SRA admittedly did not make his Resolution Plan on the strength of the ethanol plant and machinery in question. The threat looming large over the availability of the ethanol plant and machinery has admittedly been taken note of by the SRA and the CoC. The Resolution Plan does not give an indication anywhere that without this plant and machinery the whole resolution plan will fail. In paragraph 8.04 of the Resolution Plan, the SRA has undertaken to continue the operations in the normal course of business. It is a commercial decision that they have taken. The corporate debtor cannot cry wolf over the said decision. Therefore, the third ground on which NCLAT chose to interfere, is also bound to be rejected.NCLAT holds that the advertisement was not in conformity with Regulation 36A of The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and as per Form G of the Schedule.42. But the conclusions reached by NCLAT in this regard cannot hold water for two reasons. If NCLAT was convinced that the very process of inviting Expression of Interest was vitiated, NCLAT should have issued a direction to start the process afresh all over again by issuing a fresh advertisement. NCLAT did not do this and the person who raised this point is not on appeal.43. In any case, it does not lie in the mouth of the Promoter/Director of the corporate debtor to raise any issue in this regard. It is seen from the Minutes of the 2 nd Meeting of the Committee of Creditors that the Promoter/Director of the corporate debtor attended the meeting held on 27.03.2018. In Item No. 3 of the Agenda for the said meeting, the draft of the Invitation for Expression of Interest was approved. The Promoter/Director did not raise any objections either on 27.03.2018 in the meeting in which the draft was approved or at any time thereafter, until the approval of the Resolution Plan.44. The Promoter/Director of the corporate debtor who was the appellant before NCLAT attended the 3 rd meeting of the CoC on 15.09.2018, the 4 th meeting of the CoC held on 12.10.2018 and the 5 th meeting of the CoC held on 26.11.2018. He did not raise any whisper about the contents of the advertisement. Even when the very same Promoter/Director of the corporate debtor went before the High Court of Judicature at Bombay by way of a writ petition challenging the orders of NCLT dated 01.01.2018 and 06.03.2018, his focus was on his own application under Section 10 of the Insolvency and Bankruptcy Code. His grievance before the High Court was that his own application under Section 10 was dumped by the NCLT and the application of the financial creditor was admitted thereafter. In fact the conduct of the Promoter/Director of the corporate debtor came to adverse notice before the Bombay High Court.45. Regulation 36A was inserted only with effect from 06.02.2018 under Notification No. IBBI/2017-18/GN/REG024 dated 06.02.2018. It underwent a change under Notification No. IBBI/2018-19/GN/REG031 dated 03.07.2018, with effect from 04.07.2018. Regulation 36A, as it stood during the period from 06.02.2018 to 04.07.2018, did not mandate the publication of the invitation of Resolution Plans, either in Form G or otherwise, in newspapers. It is only the amended Regulation 36A, which came into effect from 04.07.2018, that requires the publication of Form G in newspapers. Therefore, the publication in newspapers made by the Resolution Professional, in the case on hand, on 30.03.2018, was something that was statutorily not required of him and hence the Promoter/Director of the corporate debtor cannot take advantage of the amendment that came later, to attack the advertisement.46. The second meeting of the Committee of Creditors was held on 27.03.2018. The advertisement was approved in the said meeting. It was the unamended Regulation 36A that was in force at that time. This has not been appreciated by NCLAT. Therefore, the NCLAT was wrong in its approach even in this regard.47. Therefore, in fine, the impugned order of NCLAT is flawed and hence, liable to be set aside
|
Munigadappa Meenaiah Vs. The State of Andhra Pradesh | has been observed thus: "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should becomplete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....". 16. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79 ), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation 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." 17. 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. 18. 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". 19. 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. 20. 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." 21. 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. 22. These aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180 ) and State of Haryana v. Jagbir Singh (2003 (11) SCC 261 ). 23. In the instance PWs 1 and 10 as well as PW2 saw the deceased and the accused together in the night of the occurrence. In the morning, dead body of the deceased was found in front of the house of the accused. Additionally, on the basis of information given by the accused certain articles were recovered and one of them was the pestle used for inflicting the injury on the head. That being so, the judgment of the Trial Court and the High Court do not suffer from any infirmity. | 0[ds]7. We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.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.In the instance PWs 1 and 10 as well as PW2 saw the deceased and the accused together in the night of the occurrence. In the morning, dead body of the deceased was found in front of the house of the accused. Additionally, on the basis of information given by the accused certain articles were recovered and one of them was the pestle used for inflicting the injury on the head. That being so, the judgment of the Trial Court and the High Court do not suffer from any infirmity. | 0 | 2,953 | 279 | ### 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:
has been observed thus: "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should becomplete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....". 16. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79 ), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation 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." 17. 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. 18. 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". 19. 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. 20. 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." 21. 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. 22. These aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180 ) and State of Haryana v. Jagbir Singh (2003 (11) SCC 261 ). 23. In the instance PWs 1 and 10 as well as PW2 saw the deceased and the accused together in the night of the occurrence. In the morning, dead body of the deceased was found in front of the house of the accused. Additionally, on the basis of information given by the accused certain articles were recovered and one of them was the pestle used for inflicting the injury on the head. That being so, the judgment of the Trial Court and the High Court do not suffer from any infirmity.
### Response:
0
### Explanation:
7. We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.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.In the instance PWs 1 and 10 as well as PW2 saw the deceased and the accused together in the night of the occurrence. In the morning, dead body of the deceased was found in front of the house of the accused. Additionally, on the basis of information given by the accused certain articles were recovered and one of them was the pestle used for inflicting the injury on the head. That being so, the judgment of the Trial Court and the High Court do not suffer from any infirmity.
|
BALAJI BALIRAM MUPADE & ANR Vs. THE STATE OF MAHARASHTRA & ORS | of this Court as far back as in the year 1983 in the State of Punjab & Ors. v. Jagdev Singh Talwandi - 1984 (1) SCC 596 drew the attention of the High Courts to the serious difficulties which were caused on account of a practice which was increasingly being adopted by several High Courts, that of pronouncing the final orders without a reasoned judgment. The relevant paragraph is reproduced as under: 30. We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the other, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special Leave Petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment. 3. Further, much later but still almost two decades ago, this Court in Anil Rai v. State of Bihar - 2001 (7) SCC 318 deemed it appropriate to provide some guidelines regarding the pronouncement of judgments, expecting them to be followed by all concerned under the mandate of this Court. It is not necessary to reproduce the directions except to state that normally the judgment is expected within two months of the conclusion of the arguments, and on expiry of three months any of the parties can file an application in the High Court with prayer for early judgment. If, for any reason, no judgment is pronounced for six months, any of the parties is entitled to move an application before the then Chief Justice of the High Court with a prayer to re-assign the case before another Bench for fresh arguments. 4. The aforementioned principle has been forcefully restated by this Court on several occasions including in Zahira Habibulla H. Sheikh & Ors. v. State of Gujarat & Ors. [AIR 2004 SC 3467 paras 80-82], Mangat Ram v. State of Haryana (2008) 7 SCC 96 paras 5-10] and most recently in Ajay Singh & Anr. Etc. v. State of Chhattisgarh & Anr.- AIR 2017 SC 310 . 5. The facts of the present case speak for themselves. The Special Leave Petition was filed against the impugned order dated 21.01.2020 which read as under: OPERATIVE ORDER 1. For the reasons separately recorded, the present writ petition is dismissed. 2. The prayer for continuation of interim order is rejected. 3. Authenticated copy of this order be supplied to learned Asstt.Govt.Pleader. In turn, learned Asstt.Govt.Pleader is directed to communicate the same to the Returning Officer forthwith. 6. The Special Leave Petition was filed in March, 2020 and when it was listed before this Court on 07.10.2020, counsel for the petitioner categorically stated that a copy of the reasons for the order dated 21.01.2020 had still not been uploaded till the morning of that day. 7. We thus called upon the Registrar of the Aurangabad Bench of the Bombay High Court to verify the aforesaid fact and communicate to this Court forthwith as to why the order had not been uploaded. We also restrained any coercive action in pursuance of the impugned order as we were unable to appreciate the controversy in the absence of any reasons. 8. The report was submitted by the Registrar (Judicial) stating that the order was pronounced on 21.01.2020 being only the operative portion, and the reasons were received by the Registry only on 09.10.2020 after almost nine months. It was uploaded on the same date. 9. On the aforesaid short ground, without even looking at any other aspect, we issued notice returnable for today and stayed the operation of the impugned order. 10. We must note with regret that the counsel extended through various judicial pronouncements including the one referred to aforesaid appear to have been ignored, more importantly where oral orders are pronounced. In case of such orders, it is expected that they are either dictated in the Court or at least must follow immediately thereafter, to facilitate any aggrieved party to seek redressal from the higher Court. The delay in delivery of judgments has been observed to be a violation of Article 21 of the Constitution of India in Anil Rais case (supra) and as stated aforesaid, the problem gets aggravated when the operative portion is made available early and the reasons follow much later. 11. It cannot be countenanced that between the date of the operative portion of the order and the reasons disclosed, there is a hiatus period of nine months! This is much more than what has been observed to be the maximum time period for even pronouncement of reserved judgment as per Anil Rais case (supra). 12. The appellant undoubtedly being the aggrieved party and prejudiced by the impugned order is unable to avail of the legal remedy of approaching this Court where reasons can be scrutinized. It really amounts to defeating the rights of the appellant to challenge the impugned order on merits and even the succeeding party is unable to obtain the fruits of success of the litigation. | 1[ds]2. A Constitution Bench of this Court as far back as in the year 1983 in the State of Punjab & Ors. v. Jagdev Singh Talwandi - 1984 (1) SCC 596 drew the attention of the High Courts to the serious difficulties which were caused on account of a practice which was increasingly being adopted by several High Courts, that of pronouncing the final orders without a reasoned judgment. The relevant paragraph is reproduced as under:30. We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the other, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special Leave Petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.3. Further, much later but still almost two decades ago, this Court in Anil Rai v. State of Bihar - 2001 (7) SCC 318 deemed it appropriate to provide some guidelines regarding the pronouncement of judgments, expecting them to be followed by all concerned under the mandate of this Court. It is not necessary to reproduce the directions except to state that normally the judgment is expected within two months of the conclusion of the arguments, and on expiry of three months any of the parties can file an application in the High Court with prayer for early judgment. If, for any reason, no judgment is pronounced for six months, any of the parties is entitled to move an application before the then Chief Justice of the High Court with a prayer to re-assign the case before another Bench for fresh arguments.4. The aforementioned principle has been forcefully restated by this Court on several occasions including in Zahira Habibulla H. Sheikh & Ors. v. State of Gujarat & Ors. [AIR 2004 SC 3467 paras 80-82], Mangat Ram v. State of Haryana (2008) 7 SCC 96 paras 5-10] and most recently in Ajay Singh & Anr. Etc. v. State of Chhattisgarh & Anr.- AIR 2017 SC 310 .7. We thus called upon the Registrar of the Aurangabad Bench of the Bombay High Court to verify the aforesaid fact and communicate to this Court forthwith as to why the order had not been uploaded. We also restrained any coercive action in pursuance of the impugned order as we were unable to appreciate the controversy in the absence of any reasons.8. The report was submitted by the Registrar (Judicial) stating that the order was pronounced on 21.01.2020 being only the operative portion, and the reasons were received by the Registry only on 09.10.2020 after almost nine months. It was uploaded on the same date.9. On the aforesaid short ground, without even looking at any other aspect, we issued notice returnable for today and stayed the operation of the impugned order.10. We must note with regret that the counsel extended through various judicial pronouncements including the one referred to aforesaid appear to have been ignored, more importantly where oral orders are pronounced. In case of such orders, it is expected that they are either dictated in the Court or at least must follow immediately thereafter, to facilitate any aggrieved party to seek redressal from the higher Court. The delay in delivery of judgments has been observed to be a violation of Article 21 of the Constitution of India in Anil Rais case (supra) and as stated aforesaid, the problem gets aggravated when the operative portion is made available early and the reasons follow much later.11. It cannot be countenanced that between the date of the operative portion of the order and the reasons disclosed, there is a hiatus period of nine months! This is much more than what has been observed to be the maximum time period for even pronouncement of reserved judgment as per Anil Rais case (supra).12. The appellant undoubtedly being the aggrieved party and prejudiced by the impugned order is unable to avail of the legal remedy of approaching this Court where reasons can be scrutinized. It really amounts to defeating the rights of the appellant to challenge the impugned order on merits and even the succeeding party is unable to obtain the fruits of success of the litigation. | 1 | 1,156 | 950 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
of this Court as far back as in the year 1983 in the State of Punjab & Ors. v. Jagdev Singh Talwandi - 1984 (1) SCC 596 drew the attention of the High Courts to the serious difficulties which were caused on account of a practice which was increasingly being adopted by several High Courts, that of pronouncing the final orders without a reasoned judgment. The relevant paragraph is reproduced as under: 30. We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the other, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special Leave Petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment. 3. Further, much later but still almost two decades ago, this Court in Anil Rai v. State of Bihar - 2001 (7) SCC 318 deemed it appropriate to provide some guidelines regarding the pronouncement of judgments, expecting them to be followed by all concerned under the mandate of this Court. It is not necessary to reproduce the directions except to state that normally the judgment is expected within two months of the conclusion of the arguments, and on expiry of three months any of the parties can file an application in the High Court with prayer for early judgment. If, for any reason, no judgment is pronounced for six months, any of the parties is entitled to move an application before the then Chief Justice of the High Court with a prayer to re-assign the case before another Bench for fresh arguments. 4. The aforementioned principle has been forcefully restated by this Court on several occasions including in Zahira Habibulla H. Sheikh & Ors. v. State of Gujarat & Ors. [AIR 2004 SC 3467 paras 80-82], Mangat Ram v. State of Haryana (2008) 7 SCC 96 paras 5-10] and most recently in Ajay Singh & Anr. Etc. v. State of Chhattisgarh & Anr.- AIR 2017 SC 310 . 5. The facts of the present case speak for themselves. The Special Leave Petition was filed against the impugned order dated 21.01.2020 which read as under: OPERATIVE ORDER 1. For the reasons separately recorded, the present writ petition is dismissed. 2. The prayer for continuation of interim order is rejected. 3. Authenticated copy of this order be supplied to learned Asstt.Govt.Pleader. In turn, learned Asstt.Govt.Pleader is directed to communicate the same to the Returning Officer forthwith. 6. The Special Leave Petition was filed in March, 2020 and when it was listed before this Court on 07.10.2020, counsel for the petitioner categorically stated that a copy of the reasons for the order dated 21.01.2020 had still not been uploaded till the morning of that day. 7. We thus called upon the Registrar of the Aurangabad Bench of the Bombay High Court to verify the aforesaid fact and communicate to this Court forthwith as to why the order had not been uploaded. We also restrained any coercive action in pursuance of the impugned order as we were unable to appreciate the controversy in the absence of any reasons. 8. The report was submitted by the Registrar (Judicial) stating that the order was pronounced on 21.01.2020 being only the operative portion, and the reasons were received by the Registry only on 09.10.2020 after almost nine months. It was uploaded on the same date. 9. On the aforesaid short ground, without even looking at any other aspect, we issued notice returnable for today and stayed the operation of the impugned order. 10. We must note with regret that the counsel extended through various judicial pronouncements including the one referred to aforesaid appear to have been ignored, more importantly where oral orders are pronounced. In case of such orders, it is expected that they are either dictated in the Court or at least must follow immediately thereafter, to facilitate any aggrieved party to seek redressal from the higher Court. The delay in delivery of judgments has been observed to be a violation of Article 21 of the Constitution of India in Anil Rais case (supra) and as stated aforesaid, the problem gets aggravated when the operative portion is made available early and the reasons follow much later. 11. It cannot be countenanced that between the date of the operative portion of the order and the reasons disclosed, there is a hiatus period of nine months! This is much more than what has been observed to be the maximum time period for even pronouncement of reserved judgment as per Anil Rais case (supra). 12. The appellant undoubtedly being the aggrieved party and prejudiced by the impugned order is unable to avail of the legal remedy of approaching this Court where reasons can be scrutinized. It really amounts to defeating the rights of the appellant to challenge the impugned order on merits and even the succeeding party is unable to obtain the fruits of success of the litigation.
### Response:
1
### Explanation:
2. A Constitution Bench of this Court as far back as in the year 1983 in the State of Punjab & Ors. v. Jagdev Singh Talwandi - 1984 (1) SCC 596 drew the attention of the High Courts to the serious difficulties which were caused on account of a practice which was increasingly being adopted by several High Courts, that of pronouncing the final orders without a reasoned judgment. The relevant paragraph is reproduced as under:30. We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the other, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special Leave Petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.3. Further, much later but still almost two decades ago, this Court in Anil Rai v. State of Bihar - 2001 (7) SCC 318 deemed it appropriate to provide some guidelines regarding the pronouncement of judgments, expecting them to be followed by all concerned under the mandate of this Court. It is not necessary to reproduce the directions except to state that normally the judgment is expected within two months of the conclusion of the arguments, and on expiry of three months any of the parties can file an application in the High Court with prayer for early judgment. If, for any reason, no judgment is pronounced for six months, any of the parties is entitled to move an application before the then Chief Justice of the High Court with a prayer to re-assign the case before another Bench for fresh arguments.4. The aforementioned principle has been forcefully restated by this Court on several occasions including in Zahira Habibulla H. Sheikh & Ors. v. State of Gujarat & Ors. [AIR 2004 SC 3467 paras 80-82], Mangat Ram v. State of Haryana (2008) 7 SCC 96 paras 5-10] and most recently in Ajay Singh & Anr. Etc. v. State of Chhattisgarh & Anr.- AIR 2017 SC 310 .7. We thus called upon the Registrar of the Aurangabad Bench of the Bombay High Court to verify the aforesaid fact and communicate to this Court forthwith as to why the order had not been uploaded. We also restrained any coercive action in pursuance of the impugned order as we were unable to appreciate the controversy in the absence of any reasons.8. The report was submitted by the Registrar (Judicial) stating that the order was pronounced on 21.01.2020 being only the operative portion, and the reasons were received by the Registry only on 09.10.2020 after almost nine months. It was uploaded on the same date.9. On the aforesaid short ground, without even looking at any other aspect, we issued notice returnable for today and stayed the operation of the impugned order.10. We must note with regret that the counsel extended through various judicial pronouncements including the one referred to aforesaid appear to have been ignored, more importantly where oral orders are pronounced. In case of such orders, it is expected that they are either dictated in the Court or at least must follow immediately thereafter, to facilitate any aggrieved party to seek redressal from the higher Court. The delay in delivery of judgments has been observed to be a violation of Article 21 of the Constitution of India in Anil Rais case (supra) and as stated aforesaid, the problem gets aggravated when the operative portion is made available early and the reasons follow much later.11. It cannot be countenanced that between the date of the operative portion of the order and the reasons disclosed, there is a hiatus period of nine months! This is much more than what has been observed to be the maximum time period for even pronouncement of reserved judgment as per Anil Rais case (supra).12. The appellant undoubtedly being the aggrieved party and prejudiced by the impugned order is unable to avail of the legal remedy of approaching this Court where reasons can be scrutinized. It really amounts to defeating the rights of the appellant to challenge the impugned order on merits and even the succeeding party is unable to obtain the fruits of success of the litigation.
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Shiv Omkar Maheshwari Vs. Bansidhar Jagannath | author appears to have indicated his preference for the view taken by Lord Herschell. The observations of Lord Herschell in (1897) AC 239 at p. 305 (O), are cited in the book and comment is made that the view thus expressed by Lord Herschell accords with the well-established principle that it is for the company, save in exceptional oases, to sue for a breach of the articles (page 29). Buckley, in his Companies Actand, has observed :"As regards the rights of members inter se, if the articles do constitute a contract between them, the rights arising out of such contract can ordinarily only be enforced through the company; and the correct view is semble, that stated by Lord Herschell in Welton v. Saffery (O), namely, the articles constitute a contract between each member land the company, and there is no contract in terms between the individual members of the company; but the articles do not, any the less, in my opinion, regulate their rights inter se.Such rights can only be enforced by or against a member through the company or through the liquidators representing the company; but I think that no member has, as between himself and another member, any rights beyond that which the contract with the company gives". (page 53)Thus it would be seen that the view which we have taken is inconsistent with the view expressed by eminent text-writers. We would only conclude with the observation that we have reached our decision on this point with some hesitation and not without diffidence.26. That leaves only one point which was raised before us by Mr. K.T. Desai on behalf of the appellant. He argues that the award was invalid because the dispute was heard by a floating body of members and there has been no fair trial at all in the present proceedings. I have already mentioned that, during the pendency of this dispute before the Lavad Committee, three committees were formed and it is true that on several days when the dispute was heard the same set of arbitrators were naturally not present.But Bye-law 88 of the Chamber has specifically provided that objections such as the one raised before us by Mr. K.T. Desai shall not invalidate the award. Under this Bye-law, it would not be open to a party to challenge the validity of the award on the ground that the dispute was not finally decided at one sitting or that the very same members of the Arbitration Committee or of theBoard were not present at all the meetings or that members of the Arbitration Committee or of the Board who had given the final award were not present at all the meetings in which the hearing of the said dispute was taken up or the appeal heard.Mr. K.T. Desai argued that this Bye-law is ultra vires because it is opposed to natural justice, and in support of his argument he invited our attention to two reported decisions of this Court, in - Fazalally v. Khimji, 1934 Bom 476 (AIR V 21) (T), Rangnekar, J., has held that as the composition of the board of directors had changed from time to time since the appeal went on before the board, and when the award was given some of those who were present at the earlier meeting were absent and did not form part of the board which made the award, the award was not legal and could not be accepted and should be set aside.This question arose before Mr. Justice Rangnekar under bye-laws 38 and 39 of the East India Cotton Association, Ltd. But in two places the learned Judge has pointedly referred to the fact that the existence of a fluctuating body of arbitrators was not justified by any provision contained in the bye-laws themselves. In other words, the judgment shows that, if a bye-law or rule made by the Association had specifically authorised a fluctuating body of arbitrators to deal with the dispute, then the learned Judge may have taken a different view.In - Patel Bros. v. Shree Meenakshi Mills Ltd., 1942 Bom 239 (AIR V 29) (U) Beaumont, C.J. who delivered the judgment of the Bench, agreed with Rangnekar, J.s observations in Fazallallys case, (T) and held that the parties would normally be entitled to the united judgment of the board, and if a dispute was entertained by a fluctuating body of the board that introduced a serious infirmity in the decision. But it would be noticed that in stating his conclusion the learned Chief Justice has observed. "In the absence of consent, I think, the rule is that the tribunal, which has commenced the appeal, must continue, and if any member is obliged to withdraw, and the parties are not willing to go on before the remaining members, then a fresh board must be constituted". In other words, if there is a rule or a bye-law of the association specifically providing for the hearing of the dispute by a fluctuating body of arbitrators then the plea that the same arbitrators have not heard the dispute would not invalidate the award.27. We must, therefore, hold that the infirmity in the award on which Mr. K.T. Desai relies cannot invalidate the award because bye-law 88 expressly precludes the appellant from raising such a contention. Nor can the Bye-law be regarded as ultra vires for the reason that it is opposed to natural justice. Indeed, the hearing of a suit by one Judge and its decision by his successor is authorised even under O. 18, R. 15, Civil P.C.However, it is not necessary to pursue this point any further since Mr. K.T. Desai did not seriously contend that this Bye-law was ultra vires. Besides, the decision on this point would be a matter of academic importance in view of our conclusion that the dispute as to the existence of the contract itself is not covered by the arbitration agreement in the present case and the award made by the arbitrators is invalid for that reason. | 1[ds]Mr. K.T. Desaihad taken us through the details of the several meetings held by the Lavad Committees and has emphasized the fact that the members of the Committee have changed from time totime. But the change of personnel of the Lavad Committees is inevitable and unless theframed by the Association in regard to the constitution of the Lavad Committee are themselves invalid or ultra vires, no serious or valid grievance can be made against the changing constitution of the Lavad Committeesor not theprescribing the constitution of the Lavad Committees and their procedure are ultra vires, the contention that extension of time should not have been allowed by the learned Judge cannot, in our opinion, be made by the appellant because under S. 39, Arbitration Act, an order passed by the trial Judge extending time is not appealable.Legislature has clearly contemplated that the question as to whether time should be extended should be left entirely to the. discretion of the trial Judge and the order that the j trial Judge may pass in the exercise of his discretion should be regarded as final.It is true that the application made by the respondent for extending time was consolidated with the appellants application for setting aside the award. But this consolidation cannot give the appellant a right to challenge an order which, under the law, is not appealable. Therefore, in. our opinion, it is unnecessary for us to consider whether the learned Judge was right or not in extending time for making thethe present case, however, the alleged contract was not reduced to writing and the case for the respondent is that, though the contract is oral, it is nevertheless subject to the Articles of Association because under S. 21, Companies Act, the Articles of Association must be taken to constitute an agreement in writing between the appellant and the respondent inter se as they are both members of the said Association.Since the Articles of Association represent a contract between the appellant and the respondent inter se, any contract, entered into between them subsequent to their joining the said Association must inevitably be subject to the provisions of the said Articles of Association and a dispute like the present arising between them has to be referred to arbitration of the Lavad Committee appointed under theof the Association.This view has been accepted by the learned Judge andMr. K.T. Desaifor the appellant disputes the validity and the correctness of this view. It may be mentioned at this stage that the point thus raised byMr. K.T. Desaiis a vexed point of law on which sharp difference of opinion has been expressed in judicialdecision of this point would depend upon a fair and reasonable construction of the material Articles of Association andmade by the Association. It is necessary to remember that this point has been raised alternatively on the assumption that the Articles of Association can in law constitute a valid arbitration agreement as a result of the provisions of S. 21, Companies Act.Before the learned Judge below, reliance has been placed by the respondent only on Article 20(a), and we think, rightly. An arbitration agreement as required by S. 2, Arbitration Act can be said to reside only in Article 20(a) which deals with. the obligation of members. It cannot be said to reside in either Article 21(a) or in Article 21(b) because the topic which these two Articles are intended to cover is not one of the obligations of members atcannot overlook the fact that an agreement as to compulsory arbitration takes away a partys right to have his dispute with another member decided by a Court of ordinary civil jurisdiction. Even so, if the words used in Article 20(a) are capable of two constructions, we may be justified in adopting the construction that helps reference to arbitration of a domestic tribunal appointed by the Association.But having carefully considered Article 20(a), we are unable to hold that the relevant words used in this Article can reasonably yield the meaning which has been .assigned to it by the learned Judge below,in our opinion, so far as this Article is concerned, a dispute as to the existence of the transaction or dealing itself is not covered by it and no obligation has been imposed upon any member to refer such a dispute to the arbitration of the Lavad Committee provided for by thearbitration Committee is authorised under Article 21(a) to dispose of all disputes and differences arising between members and members or members and their customers with respect to any transaction or rates or dues or anything out of a transaction or in respect to any liability arising from any transaction. Here again, what the Arbitration Committee is authorised to deal with are disputes and differences arising between members in respect of any transaction and that seems to postulate the existence of an admitted transaction between the parties.Besides, even if Article 21(a) was capable of the wider construction for which Mr. M.V. Desai contends, that, in our opinion, cannot be said to constitute an arbitration agreement within the meaning of S. 2, Arbitration Act. Article 21(a) clearly does not purport to impose an obligation on the members. The obligation has already been imposed by Article 20(a) and Article 21(a) proceeds to take the subsequent step of defining and describing the powers of the Arbitration Committee.If in describing the powers of the Arbitration Committee, words of wider denotation are used., they cannot, in our opinion, widen the scope of Article 20(a) itself. An obligation to refer a dispute even in regard to the existence or factum of a contract itself cannot, in our opinion, be legitimately imposed upon a member in this indirect way and by implication.That is why we are not impressed by the argument urged before us by Mr. M.V. Desai that Article 21(a) should be held to constitute an arbitration agreement between the parties and it should be so construed as to include even a dispute as to the existence of the contract itself. What we have said about Article 21(a) applies with greater force to Article 21(b). This Article mentions that all disputes shall be settled by arbitration as provided in the Articles andand it enjoins upon members not to institute legal proceedings for settlement of such, disputes.This Article must clearly apply to disputes in respect of which an obligation has been imposed under Article 20(a). It merely says that disputes which are required to be referred to arbitration should be dealt with by the Arbitration Committee and should not be dragged to a Civil Court. There is nothing in Article 21(b) which can legitimately help the construction of the material clause in Article 20(a).The whole of Mr. M.V. Desals argument has centred on92(b). It may be assumed in favour of Mr. M.V. Desai that82(b) seems to imply that, if a dispute with regard to the existence of a Souda arises between members within two months after the date of the Souda it may be tried by the Lavad Committee. This, at the highest, can be said to be implicit in the provisions of thelaw prohibits the hearing of a dispute as to the existence of a Souda if it is raised more than two months after the date of the Souda. But can the implication arising out of the words used in thisbe said to govern the construction of Article 20(a) In our opinion, the answer to this question must be in the negative. It is possible that thismay have in view cases where a difference arises between members as to the existence of a contract and the members agree that even this dispute should be referred to the Arbitration Committee.The position, therefore, is that, in our opinion, the material Article which has to be construed is Article 20(a). The words used in this Article are not ambiguous or doubtful and so it is unnecessary to take the assistance of any other Article orin construing the said words. It is by this Article alone that an obligation has been imposed upon members to refer specific disputes to arbitration and a dispute as to the existence of a contract is not one of the disputes specified in this Article.That is why we must hold that the learned Judge below was in error in taking the view that Article 20(a) conferred jurisdiction on the Lavad Committee to deal with the preliminary dispute as to whether the contract had been entered into between the appellant and the respondent or not.In this connection, we would like to add that, though84(a) and 92(b) were cited before the learned Judge, his ultimate conclusion was based upon a construction of Article 20(a). He thought that "the wording of Article 20(a) is wide enough to cover all disputes arising out of the transactions and contracts between the members of the Chamber of Commerce."With this view we are unable to concur. If the relevant Articles of Association did not constitute an arbitration agreement in respect of a dispute as to the existence of the contract itself, then the award made by the arbitrators has to be set aside. The jurisdiction of the arbitrators is and can be derived only from an arbitration agreement. Without an arbitration agreement there would be no jurisdiction in the Lavad Committee to deal with the dispute as to the existence of the contract.A plea of acquiescence cannot be raised in respect of such jurisdictional points. The jurisdiction of the Lavad Committee being conditioned upon the existence of a prior arbitration agreement, all proceedings before the Lavad Committee must be held to be invalid notwithstanding the fact that the appellant appeared before the Lavad Committee.It is well settled that parties cannot confer jurisdiction on a tribunal by consent. Jurisdiction is conferred on arbitrators by the provisions of the Indian Arbitration Act on condition that there is a written arbitration agreement between the parties in respect of the dispute referred to the arbitrators. If the condition precedent is found to be absent there is no scope for holding that the proceedings before the Arbitration Committee are with jurisdiction.16. If that be the true position, the order passed by the learned Judge below must be set aside on this ground alone. An award has been made by a Committee which had no jurisdiction to deal with an essential part of the dispute between the parties, and so the whole of the award must be set aside.Ihave already mentioned that, during the pendency of this dispute before the Lavad Committee, three committees were formed and it is true that on several days when the dispute was heard the same set of arbitrators were naturally not present.But88 of the Chamber has specifically provided that objections such as the one raised before us byMr. K.T. Desaishall not invalidate the award. Under thisit would not be open to a party to challenge the validity of the award on the ground that the dispute was not finally decided at one sitting or that the very same members of the Arbitration Committee or of theBoard were not present at all the meetings or that members of the Arbitration Committee or of the Board who had given the final award were not present at all the meetings in which the hearing of the said dispute was taken up or the appeal heard.We must, therefore, hold that the infirmity in the award on whichMr. K.T. Desairelies cannot invalidate the award because88 expressly precludes the appellant from raising such a contention. Nor can thebe regarded as ultra vires for the reason that it is opposed to natural justice. Indeed, the hearing of a suit by one Judge and its decision by his successor is authorised even under O. 18, R. 15, Civil P.C.However, it is not necessary to pursue this point any further sinceMr. K.T. Desaidid not seriously contend that thiswas ultra vires. Besides, the decision on this point would be a matter of academic importance in view of our conclusion that the dispute as to the existence of the contract itself is not covered by the arbitration agreement in the present case and the award made by the arbitrators is invalid for that reason. | 1 | 13,241 | 2,247 | ### Instruction:
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author appears to have indicated his preference for the view taken by Lord Herschell. The observations of Lord Herschell in (1897) AC 239 at p. 305 (O), are cited in the book and comment is made that the view thus expressed by Lord Herschell accords with the well-established principle that it is for the company, save in exceptional oases, to sue for a breach of the articles (page 29). Buckley, in his Companies Actand, has observed :"As regards the rights of members inter se, if the articles do constitute a contract between them, the rights arising out of such contract can ordinarily only be enforced through the company; and the correct view is semble, that stated by Lord Herschell in Welton v. Saffery (O), namely, the articles constitute a contract between each member land the company, and there is no contract in terms between the individual members of the company; but the articles do not, any the less, in my opinion, regulate their rights inter se.Such rights can only be enforced by or against a member through the company or through the liquidators representing the company; but I think that no member has, as between himself and another member, any rights beyond that which the contract with the company gives". (page 53)Thus it would be seen that the view which we have taken is inconsistent with the view expressed by eminent text-writers. We would only conclude with the observation that we have reached our decision on this point with some hesitation and not without diffidence.26. That leaves only one point which was raised before us by Mr. K.T. Desai on behalf of the appellant. He argues that the award was invalid because the dispute was heard by a floating body of members and there has been no fair trial at all in the present proceedings. I have already mentioned that, during the pendency of this dispute before the Lavad Committee, three committees were formed and it is true that on several days when the dispute was heard the same set of arbitrators were naturally not present.But Bye-law 88 of the Chamber has specifically provided that objections such as the one raised before us by Mr. K.T. Desai shall not invalidate the award. Under this Bye-law, it would not be open to a party to challenge the validity of the award on the ground that the dispute was not finally decided at one sitting or that the very same members of the Arbitration Committee or of theBoard were not present at all the meetings or that members of the Arbitration Committee or of the Board who had given the final award were not present at all the meetings in which the hearing of the said dispute was taken up or the appeal heard.Mr. K.T. Desai argued that this Bye-law is ultra vires because it is opposed to natural justice, and in support of his argument he invited our attention to two reported decisions of this Court, in - Fazalally v. Khimji, 1934 Bom 476 (AIR V 21) (T), Rangnekar, J., has held that as the composition of the board of directors had changed from time to time since the appeal went on before the board, and when the award was given some of those who were present at the earlier meeting were absent and did not form part of the board which made the award, the award was not legal and could not be accepted and should be set aside.This question arose before Mr. Justice Rangnekar under bye-laws 38 and 39 of the East India Cotton Association, Ltd. But in two places the learned Judge has pointedly referred to the fact that the existence of a fluctuating body of arbitrators was not justified by any provision contained in the bye-laws themselves. In other words, the judgment shows that, if a bye-law or rule made by the Association had specifically authorised a fluctuating body of arbitrators to deal with the dispute, then the learned Judge may have taken a different view.In - Patel Bros. v. Shree Meenakshi Mills Ltd., 1942 Bom 239 (AIR V 29) (U) Beaumont, C.J. who delivered the judgment of the Bench, agreed with Rangnekar, J.s observations in Fazallallys case, (T) and held that the parties would normally be entitled to the united judgment of the board, and if a dispute was entertained by a fluctuating body of the board that introduced a serious infirmity in the decision. But it would be noticed that in stating his conclusion the learned Chief Justice has observed. "In the absence of consent, I think, the rule is that the tribunal, which has commenced the appeal, must continue, and if any member is obliged to withdraw, and the parties are not willing to go on before the remaining members, then a fresh board must be constituted". In other words, if there is a rule or a bye-law of the association specifically providing for the hearing of the dispute by a fluctuating body of arbitrators then the plea that the same arbitrators have not heard the dispute would not invalidate the award.27. We must, therefore, hold that the infirmity in the award on which Mr. K.T. Desai relies cannot invalidate the award because bye-law 88 expressly precludes the appellant from raising such a contention. Nor can the Bye-law be regarded as ultra vires for the reason that it is opposed to natural justice. Indeed, the hearing of a suit by one Judge and its decision by his successor is authorised even under O. 18, R. 15, Civil P.C.However, it is not necessary to pursue this point any further since Mr. K.T. Desai did not seriously contend that this Bye-law was ultra vires. Besides, the decision on this point would be a matter of academic importance in view of our conclusion that the dispute as to the existence of the contract itself is not covered by the arbitration agreement in the present case and the award made by the arbitrators is invalid for that reason.
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the Articles andand it enjoins upon members not to institute legal proceedings for settlement of such, disputes.This Article must clearly apply to disputes in respect of which an obligation has been imposed under Article 20(a). It merely says that disputes which are required to be referred to arbitration should be dealt with by the Arbitration Committee and should not be dragged to a Civil Court. There is nothing in Article 21(b) which can legitimately help the construction of the material clause in Article 20(a).The whole of Mr. M.V. Desals argument has centred on92(b). It may be assumed in favour of Mr. M.V. Desai that82(b) seems to imply that, if a dispute with regard to the existence of a Souda arises between members within two months after the date of the Souda it may be tried by the Lavad Committee. This, at the highest, can be said to be implicit in the provisions of thelaw prohibits the hearing of a dispute as to the existence of a Souda if it is raised more than two months after the date of the Souda. But can the implication arising out of the words used in thisbe said to govern the construction of Article 20(a) In our opinion, the answer to this question must be in the negative. It is possible that thismay have in view cases where a difference arises between members as to the existence of a contract and the members agree that even this dispute should be referred to the Arbitration Committee.The position, therefore, is that, in our opinion, the material Article which has to be construed is Article 20(a). The words used in this Article are not ambiguous or doubtful and so it is unnecessary to take the assistance of any other Article orin construing the said words. It is by this Article alone that an obligation has been imposed upon members to refer specific disputes to arbitration and a dispute as to the existence of a contract is not one of the disputes specified in this Article.That is why we must hold that the learned Judge below was in error in taking the view that Article 20(a) conferred jurisdiction on the Lavad Committee to deal with the preliminary dispute as to whether the contract had been entered into between the appellant and the respondent or not.In this connection, we would like to add that, though84(a) and 92(b) were cited before the learned Judge, his ultimate conclusion was based upon a construction of Article 20(a). He thought that "the wording of Article 20(a) is wide enough to cover all disputes arising out of the transactions and contracts between the members of the Chamber of Commerce."With this view we are unable to concur. If the relevant Articles of Association did not constitute an arbitration agreement in respect of a dispute as to the existence of the contract itself, then the award made by the arbitrators has to be set aside. The jurisdiction of the arbitrators is and can be derived only from an arbitration agreement. Without an arbitration agreement there would be no jurisdiction in the Lavad Committee to deal with the dispute as to the existence of the contract.A plea of acquiescence cannot be raised in respect of such jurisdictional points. The jurisdiction of the Lavad Committee being conditioned upon the existence of a prior arbitration agreement, all proceedings before the Lavad Committee must be held to be invalid notwithstanding the fact that the appellant appeared before the Lavad Committee.It is well settled that parties cannot confer jurisdiction on a tribunal by consent. Jurisdiction is conferred on arbitrators by the provisions of the Indian Arbitration Act on condition that there is a written arbitration agreement between the parties in respect of the dispute referred to the arbitrators. If the condition precedent is found to be absent there is no scope for holding that the proceedings before the Arbitration Committee are with jurisdiction.16. If that be the true position, the order passed by the learned Judge below must be set aside on this ground alone. An award has been made by a Committee which had no jurisdiction to deal with an essential part of the dispute between the parties, and so the whole of the award must be set aside.Ihave already mentioned that, during the pendency of this dispute before the Lavad Committee, three committees were formed and it is true that on several days when the dispute was heard the same set of arbitrators were naturally not present.But88 of the Chamber has specifically provided that objections such as the one raised before us byMr. K.T. Desaishall not invalidate the award. Under thisit would not be open to a party to challenge the validity of the award on the ground that the dispute was not finally decided at one sitting or that the very same members of the Arbitration Committee or of theBoard were not present at all the meetings or that members of the Arbitration Committee or of the Board who had given the final award were not present at all the meetings in which the hearing of the said dispute was taken up or the appeal heard.We must, therefore, hold that the infirmity in the award on whichMr. K.T. Desairelies cannot invalidate the award because88 expressly precludes the appellant from raising such a contention. Nor can thebe regarded as ultra vires for the reason that it is opposed to natural justice. Indeed, the hearing of a suit by one Judge and its decision by his successor is authorised even under O. 18, R. 15, Civil P.C.However, it is not necessary to pursue this point any further sinceMr. K.T. Desaidid not seriously contend that thiswas ultra vires. Besides, the decision on this point would be a matter of academic importance in view of our conclusion that the dispute as to the existence of the contract itself is not covered by the arbitration agreement in the present case and the award made by the arbitrators is invalid for that reason.
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Penu Balakrishna Iyer And Ors Vs. Sri Ariya M. Ramaswami Iyer And Ors | to the appellants under Art.136, as in the present case, can never be revoked. The true position is that in a given case, if the respondent brings to the notice of this Court facts which would justify the Court in revoking the leave already granted, this Court would, in the interests of justice, not hesitate to adopt that course. Therefore, the question which falls to be considered is whether the present appeal should be dismissed solely on the ground that the appellants did not apply for leave under the relevant clause of the Letters Patent of the Madras High Court.7. There is no doubt that if a party wants to avail himself of the remedy provided by Art. 136 in cases where the decree of the High Court under appeal has been passed under S. 100, C.P.C., it is necessary that the party must apply for leave under the Letters Patent, if the relevant clause of the Letters Patent provides for an appeal to a Division Bench against the decision of a single Judge Normally, an application for special leave against a second appellate decision would not be granted unless the remedy of a Letters Patent appeal has been availed. In fact, no appeal against second appellate decisions appears to be contemplated by the Constitution as is evident from the fact that Art. 133(3) expressly provides that normally an appeal will not lie to this court from the judgment, decree, or final order of one Judge of the High Court. It is only where an application for special leave against a second appellate judgment raises issues of law of general importance that the Court would grant the application and proceed to deal with the merits of the contentions raised by the appellant. But even in such case it is necessary that the remedy by way of a Letters Patent Appeal must be resorted to before a party comes to this Court. Even so, we do not think it would be possible to lay down an unqualified rule that leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case leave has been granted it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on this Court under Art. 136, it is not possible and indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this Court under Art 136 should be exercised or not and if yes, on what terms and conditions, is a matter which this Court has to decide on the facts of each case.8. In dealing with the respondents contention that the special leave granted to the appellant against a second appellate decision should be revoked on the ground that the appellant had not applied for leave under the relevant clause of the Letters Patent, it is necessary to bear in mind one relevant fact. If at the stage when special leave is granted, the respondent aveator appears and resists the grant of special leave on the ground that the appellant has not moved for Letters Patent Appeal and it appears that the said ground is argued and rejected on the merits and consequently special leaveis granted, then it would not be open to the respondent to raise the same point over again at the time of the final hearing of the appeal. If, however, the caveator does not appear, or having appeared, does not raise this point, or even if he raises the point the Court does not decide it before granting special leave, the same point can be raised at the time of final hearing. In such a case, there would be no technical bar of res judicata and the decision on the point will depend upon a proper consideration of all the relevant facts.9. Reverting then to the main point raised by the appellants in this appeal we do not think we would be justified in refusing to deal with the merits of the appeal solely on the ground that the appellants did not move the learned single Judge for leave to prefer an appeal before a Division Bench of the Madras High Court. The infirmity in the judgment under appeal is so glarning that the ends of justice require that we should set aside the decree and send the matter back to the Madras High Court for disposal in accordance with law. The limitations placed by S. 100, C. P.C., on the jurisdiction and powers of the High Courts in dealing with second appeals are well known and the procedure which has to be followed by the High Court in dealing with such appeals is also well established. In the present case, the learned Judge has-passed an order which reads more like an award made by an arbitrator who, by terms of his reference, is not under an obligation to give reasons for his conclusions embodied in the award. When such a course is adopted by the High Court in dealing with Second appeals it must obviously he corrected and the High Court must be asked to deal with the matter in a normal way in accordance with law. That is why we think we cannot uphold the preliminary objection raised by Mr. Rajagopal Sastri, even though we disapprove of the conduct of the appellants in coming to this Court without attempting to obtain the leave of the learned single Judge to file a Letters Patent Appeal before a Division Bench of the Madras High Court. Therefore, Without expressing any opinion on the merits of the decree passed in second appeal, we set it aside on the ground that the judgment delivered by the learned Judge does not satisfy the basic and legitimate requirements of a judgment under the Code of Civil Procedure. | 1[ds]7. There is no doubt that if a party wants to avail himself of the remedy provided by Art. 136 in cases where the decree of the High Court under appeal has been passed under S. 100, C.P.C., it is necessary that the party must apply for leave under the Letters Patent, if the relevant clause of the Letters Patent provides for an appeal to a Division Bench against the decision of a single Judge Normally, an application for special leave against a second appellate decision would not be granted unless the remedy of a Letters Patent appeal has been availed. In fact, no appeal against second appellate decisions appears to be contemplated by the Constitution as is evident from the fact that Art. 133(3) expressly provides that normally an appeal will not lie to this court from the judgment, decree, or final order of one Judge of the High Court. It is only where an application for special leave against a second appellate judgment raises issues of law of general importance that the Court would grant the application and proceed to deal with the merits of the contentions raised by the appellant. But even in such case it is necessary that the remedy by way of a Letters Patent Appeal must be resorted to before a party comes to this Court. Even so, we do not think it would be possible to lay down an unqualified rule that leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case leave has been granted it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on this Court under Art. 136, it is not possible and indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this Court under Art 136 should be exercised or not and if yes, on what terms and conditions, is a matter which this Court has to decide on the facts of each case.In dealing with the respondents contention that the special leave granted to the appellant against a second appellate decision should be revoked on the ground that the appellant had not applied for leave under the relevant clause of the Letters Patent, it is necessary to bear in mind one relevant fact. If at the stage when special leave is granted, the respondent aveator appears and resists the grant of special leave on the ground that the appellant has not moved for Letters Patent Appeal and it appears that the said ground is argued and rejected on the merits and consequently special leaveis granted, then it would not be open to the respondent to raise the same point over again at the time of the final hearing of the appeal. If, however, the caveator does not appear, or having appeared, does not raise this point, or even if he raises the point the Court does not decide it before granting special leave, the same point can be raised at the time of final hearing. In such a case, there would be no technical bar of res judicata and the decision on the point will depend upon a proper consideration of all the relevant facts.9. Reverting then to the main point raised by the appellants in this appeal we do not think we would be justified in refusing to deal with the merits of the appeal solely on the ground that the appellants did not move the learned single Judge for leave to prefer an appeal before a Division Bench of the Madras High Court. The infirmity in the judgment under appeal is so glarning that the ends of justice require that we should set aside the decree and send the matter back to the Madras High Court for disposal in accordance with law. The limitations placed by S. 100, C. P.C., on the jurisdiction and powers of the High Courts in dealing with second appeals are well known and the procedure which has to be followed by the High Court in dealing with such appeals is also well established. In the present case, the learned Judge has-passed an order which reads more like an award made by an arbitrator who, by terms of his reference, is not under an obligation to give reasons for his conclusions embodied in the award. When such a course is adopted by the High Court in dealing with Second appeals it must obviously he corrected and the High Court must be asked to deal with the matter in a normal way in accordance with law. That is why we think we cannot uphold the preliminary objection raised by Mr. Rajagopal Sastri, even though we disapprove of the conduct of the appellants in coming to this Court without attempting to obtain the leave of the learned single Judge to file a Letters Patent Appeal before a Division Bench of the Madras High Court. Therefore, Without expressing any opinion on the merits of the decree passed in second appeal, we set it aside on the ground that the judgment delivered by the learned Judge does not satisfy the basic and legitimate requirements of a judgment under theCode of Civil Procedure. | 1 | 2,116 | 962 | ### 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:
to the appellants under Art.136, as in the present case, can never be revoked. The true position is that in a given case, if the respondent brings to the notice of this Court facts which would justify the Court in revoking the leave already granted, this Court would, in the interests of justice, not hesitate to adopt that course. Therefore, the question which falls to be considered is whether the present appeal should be dismissed solely on the ground that the appellants did not apply for leave under the relevant clause of the Letters Patent of the Madras High Court.7. There is no doubt that if a party wants to avail himself of the remedy provided by Art. 136 in cases where the decree of the High Court under appeal has been passed under S. 100, C.P.C., it is necessary that the party must apply for leave under the Letters Patent, if the relevant clause of the Letters Patent provides for an appeal to a Division Bench against the decision of a single Judge Normally, an application for special leave against a second appellate decision would not be granted unless the remedy of a Letters Patent appeal has been availed. In fact, no appeal against second appellate decisions appears to be contemplated by the Constitution as is evident from the fact that Art. 133(3) expressly provides that normally an appeal will not lie to this court from the judgment, decree, or final order of one Judge of the High Court. It is only where an application for special leave against a second appellate judgment raises issues of law of general importance that the Court would grant the application and proceed to deal with the merits of the contentions raised by the appellant. But even in such case it is necessary that the remedy by way of a Letters Patent Appeal must be resorted to before a party comes to this Court. Even so, we do not think it would be possible to lay down an unqualified rule that leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case leave has been granted it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on this Court under Art. 136, it is not possible and indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this Court under Art 136 should be exercised or not and if yes, on what terms and conditions, is a matter which this Court has to decide on the facts of each case.8. In dealing with the respondents contention that the special leave granted to the appellant against a second appellate decision should be revoked on the ground that the appellant had not applied for leave under the relevant clause of the Letters Patent, it is necessary to bear in mind one relevant fact. If at the stage when special leave is granted, the respondent aveator appears and resists the grant of special leave on the ground that the appellant has not moved for Letters Patent Appeal and it appears that the said ground is argued and rejected on the merits and consequently special leaveis granted, then it would not be open to the respondent to raise the same point over again at the time of the final hearing of the appeal. If, however, the caveator does not appear, or having appeared, does not raise this point, or even if he raises the point the Court does not decide it before granting special leave, the same point can be raised at the time of final hearing. In such a case, there would be no technical bar of res judicata and the decision on the point will depend upon a proper consideration of all the relevant facts.9. Reverting then to the main point raised by the appellants in this appeal we do not think we would be justified in refusing to deal with the merits of the appeal solely on the ground that the appellants did not move the learned single Judge for leave to prefer an appeal before a Division Bench of the Madras High Court. The infirmity in the judgment under appeal is so glarning that the ends of justice require that we should set aside the decree and send the matter back to the Madras High Court for disposal in accordance with law. The limitations placed by S. 100, C. P.C., on the jurisdiction and powers of the High Courts in dealing with second appeals are well known and the procedure which has to be followed by the High Court in dealing with such appeals is also well established. In the present case, the learned Judge has-passed an order which reads more like an award made by an arbitrator who, by terms of his reference, is not under an obligation to give reasons for his conclusions embodied in the award. When such a course is adopted by the High Court in dealing with Second appeals it must obviously he corrected and the High Court must be asked to deal with the matter in a normal way in accordance with law. That is why we think we cannot uphold the preliminary objection raised by Mr. Rajagopal Sastri, even though we disapprove of the conduct of the appellants in coming to this Court without attempting to obtain the leave of the learned single Judge to file a Letters Patent Appeal before a Division Bench of the Madras High Court. Therefore, Without expressing any opinion on the merits of the decree passed in second appeal, we set it aside on the ground that the judgment delivered by the learned Judge does not satisfy the basic and legitimate requirements of a judgment under the Code of Civil Procedure.
### Response:
1
### Explanation:
7. There is no doubt that if a party wants to avail himself of the remedy provided by Art. 136 in cases where the decree of the High Court under appeal has been passed under S. 100, C.P.C., it is necessary that the party must apply for leave under the Letters Patent, if the relevant clause of the Letters Patent provides for an appeal to a Division Bench against the decision of a single Judge Normally, an application for special leave against a second appellate decision would not be granted unless the remedy of a Letters Patent appeal has been availed. In fact, no appeal against second appellate decisions appears to be contemplated by the Constitution as is evident from the fact that Art. 133(3) expressly provides that normally an appeal will not lie to this court from the judgment, decree, or final order of one Judge of the High Court. It is only where an application for special leave against a second appellate judgment raises issues of law of general importance that the Court would grant the application and proceed to deal with the merits of the contentions raised by the appellant. But even in such case it is necessary that the remedy by way of a Letters Patent Appeal must be resorted to before a party comes to this Court. Even so, we do not think it would be possible to lay down an unqualified rule that leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case leave has been granted it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on this Court under Art. 136, it is not possible and indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this Court under Art 136 should be exercised or not and if yes, on what terms and conditions, is a matter which this Court has to decide on the facts of each case.In dealing with the respondents contention that the special leave granted to the appellant against a second appellate decision should be revoked on the ground that the appellant had not applied for leave under the relevant clause of the Letters Patent, it is necessary to bear in mind one relevant fact. If at the stage when special leave is granted, the respondent aveator appears and resists the grant of special leave on the ground that the appellant has not moved for Letters Patent Appeal and it appears that the said ground is argued and rejected on the merits and consequently special leaveis granted, then it would not be open to the respondent to raise the same point over again at the time of the final hearing of the appeal. If, however, the caveator does not appear, or having appeared, does not raise this point, or even if he raises the point the Court does not decide it before granting special leave, the same point can be raised at the time of final hearing. In such a case, there would be no technical bar of res judicata and the decision on the point will depend upon a proper consideration of all the relevant facts.9. Reverting then to the main point raised by the appellants in this appeal we do not think we would be justified in refusing to deal with the merits of the appeal solely on the ground that the appellants did not move the learned single Judge for leave to prefer an appeal before a Division Bench of the Madras High Court. The infirmity in the judgment under appeal is so glarning that the ends of justice require that we should set aside the decree and send the matter back to the Madras High Court for disposal in accordance with law. The limitations placed by S. 100, C. P.C., on the jurisdiction and powers of the High Courts in dealing with second appeals are well known and the procedure which has to be followed by the High Court in dealing with such appeals is also well established. In the present case, the learned Judge has-passed an order which reads more like an award made by an arbitrator who, by terms of his reference, is not under an obligation to give reasons for his conclusions embodied in the award. When such a course is adopted by the High Court in dealing with Second appeals it must obviously he corrected and the High Court must be asked to deal with the matter in a normal way in accordance with law. That is why we think we cannot uphold the preliminary objection raised by Mr. Rajagopal Sastri, even though we disapprove of the conduct of the appellants in coming to this Court without attempting to obtain the leave of the learned single Judge to file a Letters Patent Appeal before a Division Bench of the Madras High Court. Therefore, Without expressing any opinion on the merits of the decree passed in second appeal, we set it aside on the ground that the judgment delivered by the learned Judge does not satisfy the basic and legitimate requirements of a judgment under theCode of Civil Procedure.
|
Shramik Utkarsha Sabha Vs. Raymond Woolen Mills | 1993(2) SCT 268 (SC) : 1993(2) SCC 115, the question was whether a delinquent was entitled to be represented by an officer bearer of another trade union who was not a member of either the recognised union or an un-recognised union functioning within the undertaking in which the delinquent was employed. This court held that the Act was enacted to provide for facilitating collective bargaining for certain undertakings; to confer certain powers on un-recognised unions; to define and provide for the prevention of certain unfair labour practices; and to constitute courts for carrying out the purpose of according recognition to trade unions and for enforcing the provisions relating to unfair labour practices. It was made applicable to industries to which the B.I.R. Act applied. It was clear from the scheme of the Act that, with a view to facilitating collective bargaining in certain undertakings, the concept of recognisition of unions was introduced and certain obligations and rights came to be imposed and conferred on recognised unions. 11. Mr. Jaisingh, learned counsel for the appellant, submitted that the B.I.R. Act and the M.R.T.U. and P.U.L.P. Act operated in different fields. The former did not deal with the subject of unfair labour practices, which was dealt with by the latter. Since the object of the latter was to prevent unfair labour practices, it allowed access to courts to any union, recognised, representative or otherwise, to any employee and even to a labour officer to ensure that an unfair labour practice was prevented. Since an un-recognised union could file a complaint, there was nothing incongruous about it being heard as a respondent. Section 21 was emphasised, and it was submitted that exclusivity was conferred only in regard to items 2 and 6 of Schedule IV of the M.R.T.U. and P.U.L.P. Act and an un-recognised union could appear in complaints in respect of all other unfair labour practices. Having regard to the provisions of Section 29 of the M.R.T.U. and P.U.L.P. Act, whereby any order passed would be binding on the appellant and its members, they had a right to be heard by the Industrial Court before any order could be made against them.12. Mr. A.H. Desai, learned counsel for the first respondent, submitted that the right of a representative union to represent the employees in an industry to which the B.I.R. Act applied remained unfettered and did not change by reason of the fact that the proceedings had been adopted under the M.R.T.U. and P.U.L.P. Act. Learned counsel for the second respondent adopted the arguments advanced on behalf of the first respondent. 13. The M.R.T.U. and P.U.L.P. Act takes note of the provisions of the B.I.R. Act. Many of its definitions are stated to be those contained in the B.I.R. Act. Chapter III, which deals with the recognition of unions, states, in section 10(2), that its provisions do not apply to undertakings in industries to which the provisions of the B.I.R. Act apply. The B.I.R. Act was enacted to provide for the regulation of the relation of employers and employees in certain matters and to consolidate and amend the law in relation to the settlement of industrial disputes. The M.R.T.U. and P.U.L.P. Act was enacted to provide for the recognisition of trade unions for facilitating collective bargaining for certain undertakings to state their rights and obligations; to confer certain powers on un-recognised unions; and to define and provide for the prevention of unfair labour practices; and to constitute courts in this behalf. It cannot, therefore be said that the B.I.R.Act and the M.R.T.U. and P.U.L.P. Act operate in different fields. There is commonality in their objects and their provisions. The obvious intent of the legislature which enacted them was that they should operate in tandem and complement each other in respect of industries to which the B.I.R. Act had been made applicable. The two statutes must be read together.14. Section 21 of the M.R.T.U. and P.U.L.P. Act, upon the emphasis was laid on behalf to the appellants, states that no employee in an undertaking to which the provisions of the Industrial Disputes Act applies shall be allowed to appear or act or be allowed to be represented in any proceeding relating to the unfair labour practices specified in items 2 and 6 of Schedule IV except through the recognised union. It is important to note that the reference is to employee in an undertaking to which the Industrial Disputes Act applies and not to employees in an undertaking to which the B.I.R. Act applies. Apart therefrom, the section permits an employee, not an union other than the recognised union, to so appear. The provisions of section 21 do not, therefore, lead to the conclusion that an union other than a representative union can appear in proceedings relating to all unfair labour practices other than those specified in items 2 and 6 of Schedule IV.15. It is true that an order of the Industrial Court in the concerned proceedings would bind all employees of the first respondent even though there may be some among them who owe allegiance not the representative union but to the appellant. The objective of the provisions of the B.I.R. Act and the M.R.T.U. and P.U.L.P. Act, read together, and the embargo placed upon representation by anyone other than the representative of the employees, who, for the most part, is the representative union, except in matters pertaining to an individual dispute between an employ and the employer, is to facilitate collective bargaining. The rationale is that it is in the interest of industrial peace and in the public and national interest that the employer should have to deal, in matters which concern all or most of its employees, only with a union which is representative of them. It may be that a union which was representative of the employees may have in the course of time lost that representative character; it is then open, under the provisions of the B.I.R. Act, for a rival union to seek to replace it. | 0[ds]13. The M.R.T.U. and P.U.L.P. Act takes note of the provisions of the B.I.R. Act. Many of its definitions are stated to be those contained in the B.I.R. Act. Chapter III, which deals with the recognition of unions, states, in section 10(2), that its provisions do not apply to undertakings in industries to which the provisions of the B.I.R. Act apply. The B.I.R. Act was enacted to provide for the regulation of the relation of employers and employees in certain matters and to consolidate and amend the law in relation to the settlement of industrial disputes. The M.R.T.U. and P.U.L.P. Act was enacted to provide for the recognisition of trade unions for facilitating collective bargaining for certain undertakings to state their rights and obligations; to confer certain powers onunions; and to define and provide for the prevention of unfair labour practices; and to constitute courts in this behalf. It cannot, therefore be said that the B.I.R.Act and the M.R.T.U. and P.U.L.P. Act operate in different fields. There is commonality in their objects and their provisions. The obvious intent of the legislature which enacted them was that they should operate in tandem and complement each other in respect of industries to which the B.I.R. Act had been made applicable. The two statutes must be read together.14. Section 21 of the M.R.T.U. and P.U.L.P. Act, upon the emphasis was laid on behalf to the appellants, states that no employee in an undertaking to which the provisions of the Industrial Disputes Act applies shall be allowed to appear or act or be allowed to be represented in any proceeding relating to the unfair labour practices specified in items 2 and 6 of Schedule IV except through the recognised union. It is important to note that the reference is to employee in an undertaking to which the Industrial Disputes Act applies and not to employees in an undertaking to which the B.I.R. Act applies. Apart therefrom, the section permits an employee, not an union other than the recognised union, to so appear. The provisions of section 21 do not, therefore, lead to the conclusion that an union other than a representative union can appear in proceedings relating to all unfair labour practices other than those specified in items 2 and 6 of Schedule IV.15. It is true that an order of the Industrial Court in the concerned proceedings would bind all employees of the first respondent even though there may be some among them who owe allegiance not the representative union but to the appellant. The objective of the provisions of the B.I.R. Act and the M.R.T.U. and P.U.L.P. Act, read together, and the embargo placed upon representation by anyone other than the representative of the employees, who, for the most part, is the representative union, except in matters pertaining to an individual dispute between an employ and the employer, is to facilitate collective bargaining. The rationale is that it is in the interest of industrial peace and in the public and national interest that the employer should have to deal, in matters which concern all or most of its employees, only with a union which is representative of them. It may be that a union which was representative of the employees may have in the course of time lost that representative character; it is then open, under the provisions of the B.I.R. Act, for a rival union to seek to replace it. | 0 | 3,793 | 640 | ### 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:
1993(2) SCT 268 (SC) : 1993(2) SCC 115, the question was whether a delinquent was entitled to be represented by an officer bearer of another trade union who was not a member of either the recognised union or an un-recognised union functioning within the undertaking in which the delinquent was employed. This court held that the Act was enacted to provide for facilitating collective bargaining for certain undertakings; to confer certain powers on un-recognised unions; to define and provide for the prevention of certain unfair labour practices; and to constitute courts for carrying out the purpose of according recognition to trade unions and for enforcing the provisions relating to unfair labour practices. It was made applicable to industries to which the B.I.R. Act applied. It was clear from the scheme of the Act that, with a view to facilitating collective bargaining in certain undertakings, the concept of recognisition of unions was introduced and certain obligations and rights came to be imposed and conferred on recognised unions. 11. Mr. Jaisingh, learned counsel for the appellant, submitted that the B.I.R. Act and the M.R.T.U. and P.U.L.P. Act operated in different fields. The former did not deal with the subject of unfair labour practices, which was dealt with by the latter. Since the object of the latter was to prevent unfair labour practices, it allowed access to courts to any union, recognised, representative or otherwise, to any employee and even to a labour officer to ensure that an unfair labour practice was prevented. Since an un-recognised union could file a complaint, there was nothing incongruous about it being heard as a respondent. Section 21 was emphasised, and it was submitted that exclusivity was conferred only in regard to items 2 and 6 of Schedule IV of the M.R.T.U. and P.U.L.P. Act and an un-recognised union could appear in complaints in respect of all other unfair labour practices. Having regard to the provisions of Section 29 of the M.R.T.U. and P.U.L.P. Act, whereby any order passed would be binding on the appellant and its members, they had a right to be heard by the Industrial Court before any order could be made against them.12. Mr. A.H. Desai, learned counsel for the first respondent, submitted that the right of a representative union to represent the employees in an industry to which the B.I.R. Act applied remained unfettered and did not change by reason of the fact that the proceedings had been adopted under the M.R.T.U. and P.U.L.P. Act. Learned counsel for the second respondent adopted the arguments advanced on behalf of the first respondent. 13. The M.R.T.U. and P.U.L.P. Act takes note of the provisions of the B.I.R. Act. Many of its definitions are stated to be those contained in the B.I.R. Act. Chapter III, which deals with the recognition of unions, states, in section 10(2), that its provisions do not apply to undertakings in industries to which the provisions of the B.I.R. Act apply. The B.I.R. Act was enacted to provide for the regulation of the relation of employers and employees in certain matters and to consolidate and amend the law in relation to the settlement of industrial disputes. The M.R.T.U. and P.U.L.P. Act was enacted to provide for the recognisition of trade unions for facilitating collective bargaining for certain undertakings to state their rights and obligations; to confer certain powers on un-recognised unions; and to define and provide for the prevention of unfair labour practices; and to constitute courts in this behalf. It cannot, therefore be said that the B.I.R.Act and the M.R.T.U. and P.U.L.P. Act operate in different fields. There is commonality in their objects and their provisions. The obvious intent of the legislature which enacted them was that they should operate in tandem and complement each other in respect of industries to which the B.I.R. Act had been made applicable. The two statutes must be read together.14. Section 21 of the M.R.T.U. and P.U.L.P. Act, upon the emphasis was laid on behalf to the appellants, states that no employee in an undertaking to which the provisions of the Industrial Disputes Act applies shall be allowed to appear or act or be allowed to be represented in any proceeding relating to the unfair labour practices specified in items 2 and 6 of Schedule IV except through the recognised union. It is important to note that the reference is to employee in an undertaking to which the Industrial Disputes Act applies and not to employees in an undertaking to which the B.I.R. Act applies. Apart therefrom, the section permits an employee, not an union other than the recognised union, to so appear. The provisions of section 21 do not, therefore, lead to the conclusion that an union other than a representative union can appear in proceedings relating to all unfair labour practices other than those specified in items 2 and 6 of Schedule IV.15. It is true that an order of the Industrial Court in the concerned proceedings would bind all employees of the first respondent even though there may be some among them who owe allegiance not the representative union but to the appellant. The objective of the provisions of the B.I.R. Act and the M.R.T.U. and P.U.L.P. Act, read together, and the embargo placed upon representation by anyone other than the representative of the employees, who, for the most part, is the representative union, except in matters pertaining to an individual dispute between an employ and the employer, is to facilitate collective bargaining. The rationale is that it is in the interest of industrial peace and in the public and national interest that the employer should have to deal, in matters which concern all or most of its employees, only with a union which is representative of them. It may be that a union which was representative of the employees may have in the course of time lost that representative character; it is then open, under the provisions of the B.I.R. Act, for a rival union to seek to replace it.
### Response:
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### Explanation:
13. The M.R.T.U. and P.U.L.P. Act takes note of the provisions of the B.I.R. Act. Many of its definitions are stated to be those contained in the B.I.R. Act. Chapter III, which deals with the recognition of unions, states, in section 10(2), that its provisions do not apply to undertakings in industries to which the provisions of the B.I.R. Act apply. The B.I.R. Act was enacted to provide for the regulation of the relation of employers and employees in certain matters and to consolidate and amend the law in relation to the settlement of industrial disputes. The M.R.T.U. and P.U.L.P. Act was enacted to provide for the recognisition of trade unions for facilitating collective bargaining for certain undertakings to state their rights and obligations; to confer certain powers onunions; and to define and provide for the prevention of unfair labour practices; and to constitute courts in this behalf. It cannot, therefore be said that the B.I.R.Act and the M.R.T.U. and P.U.L.P. Act operate in different fields. There is commonality in their objects and their provisions. The obvious intent of the legislature which enacted them was that they should operate in tandem and complement each other in respect of industries to which the B.I.R. Act had been made applicable. The two statutes must be read together.14. Section 21 of the M.R.T.U. and P.U.L.P. Act, upon the emphasis was laid on behalf to the appellants, states that no employee in an undertaking to which the provisions of the Industrial Disputes Act applies shall be allowed to appear or act or be allowed to be represented in any proceeding relating to the unfair labour practices specified in items 2 and 6 of Schedule IV except through the recognised union. It is important to note that the reference is to employee in an undertaking to which the Industrial Disputes Act applies and not to employees in an undertaking to which the B.I.R. Act applies. Apart therefrom, the section permits an employee, not an union other than the recognised union, to so appear. The provisions of section 21 do not, therefore, lead to the conclusion that an union other than a representative union can appear in proceedings relating to all unfair labour practices other than those specified in items 2 and 6 of Schedule IV.15. It is true that an order of the Industrial Court in the concerned proceedings would bind all employees of the first respondent even though there may be some among them who owe allegiance not the representative union but to the appellant. The objective of the provisions of the B.I.R. Act and the M.R.T.U. and P.U.L.P. Act, read together, and the embargo placed upon representation by anyone other than the representative of the employees, who, for the most part, is the representative union, except in matters pertaining to an individual dispute between an employ and the employer, is to facilitate collective bargaining. The rationale is that it is in the interest of industrial peace and in the public and national interest that the employer should have to deal, in matters which concern all or most of its employees, only with a union which is representative of them. It may be that a union which was representative of the employees may have in the course of time lost that representative character; it is then open, under the provisions of the B.I.R. Act, for a rival union to seek to replace it.
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Union of India Vs. Moksh Builders and Financers Limited and Others Etc | the rule is lacking, viz, the need and prudence of affording an opportunity of cross-examination." 15. Moreover, the defendant No.3 had full opportunity, . to appear and defend himself, but he did not do so and the case proceeded against him ex-parte. The plaintiff even tri ed to examine him as his own witness, but his appearance could not be secured in spite of the prayer for the issue of summonses and a warrant. There is therefore force in the argument to the contrary. 16. So also, there is no force in the argument that the aforesaid admissions or statements of defendant No. 3 could not be read against him as they were not adverse to his interest when made. There is no such requirement of the Evidence Act and the argument is untenable as it unreasonably restricts the opportunity to prove the true state of affairs on the partys own showing and to demolish his subsequent claim as self-contradictory. This point has also been dealt with in Wigmore on Evidence, 1048 (at page 4) in this way, --"It follows that the subject of an admission is not limited to facts against th e party opponents interest at the time of making it. No doubt the weight of credit to be given to such statements is increased when the fact stated is against the persons interest at the time; but that circumstance has no bearing upon their admissibility. On principle, it is plain that the probative reason why a party-opponents utterance is sought to beused against him is ordinarily the reason noted above, in par. (1)b, . viz. that it exhibits an inconsistency with his present claim, thus tending to throw doubt upon it, whether he was at the time speaking, apparently in his own favour or against his own interest. The contrary view, has been characterised by Wigmore as "a fallacy. in the fullest sense." Another argument which has been advanced against the admissibility of the aforesaid admissions of defendant No. 3 is that they could be evidence only in terms of section 33 of the Evidence Act. That argument is also quite untenable because section 33 deals with statements of persons who cannot be called as witnesses, and does not restrict or override the provisions relating to admissions in the Evidence Act. The High Court also committed a similar error of law in its impugned judgment. The aforesaid admissions of defendant No. 3 are therefore satisfactory evidence to prove that he himself was the owner of the house and his son, defendant No. 2 was merely a "benamidar" for him. It would thus appear that the finding of the trial court on issue No. 1 which dealt with the question whether the house was purchased by defendant No. 3 "benami" in the name of defendant No. 2, was correct and should be restored as the High Courts finding to the contrary has been vitiated by the substantial errors of law mentioned above. The other important question is whether the sale of the house in favour of the Company (defendant No. 1 ) was a sham transaction and was effected to defeat and delay the creditors of defendant No. 3. This was the subject matter of issue No. 2 and the trial courts finding in affirmative has not even been examined by the High Court. 17. We find that the admitted facts of the case are by themselves sufficient to show that the finding of the trial court is justified and does not call for any interference. Defendant No. 3 was assessed to income-tax for a sum of Rs. 1, 25, 090/11/- for assessment year 1947-48 in March 1952. Defendant No. 3 failed to pay that amount on demand and a recovery certificate was issued on October 8 , 1952. The house was therefore attached on October 13, 1952. Defendant No. 2 raised an objection, and prayed for the release of the house. The Collector rejected the objection on March 3, . 1953. No appeal, or other remedy was sought against .that order. The Appellate Assistant Commissioner however allowed the appeal of defendant No. 3 against the assessment of income-tax and ordered a fresh attachment by his order dated May 12, 1953. In the meantime, the Company was incorporated in February, 1953. The assessment of income tax for the years 1944-45 and 1948-49 was completed in March 1953 raising the tax demand to Rs. 1, 94, 735.15, and a recovery certificate was issued on May 4, 1953. It was in these circumstances that defendant No. 2, who had failed to obtain an order for the release of the house as aforesaid, hastened to sell it to the Company on May 25, 1953. As has been stated, a fresh recovery certificate was issued to the Collector on May 4, 1953 and the house was again attached on August 6, 1953. These facts speak for themselves and are quite sufficient to justify the trial courts finding that sale of the house to the Company was a sham transaction and arose out of the anxiety to save the house some how from sale for realisation of the income-tax. The Company was in fact dominated by defendant No. 2 and his close relations and did not even pay the sale price in cash. It is also significant that the shares of the other relations were insignificant. Moreover the Company could not lead evidence to show that it was able to transact any substantial business whatsoever. We have therefore no reason to disagree with the trial courts finding that the Company was formed just to transfer the ho use to it in an effort to save it from attachment and sale for realisation of the income-tax arrears of defendant No. 3. The finding of the trial court on the issue is quite correct and the High Court committed a serious error of law in not examining this aspect of the matter at all even though it had a great bearing on the controversy. 18. | 1[ds]No appeal, or other remedy was sought against .that order. The Appellate Assistant Commissioner however allowed the appeal of defendant No. 3 against the assessment ofx andordered a fresh attachment by his order dated May 12, 1953. In the meantime, the Company was incorporated in February, 1953. The assessment of income tax for the years5 and9 was completed in March 1953 raising the tax demand to Rs. 1, 94, 735.15, and a recovery certificate was issued on May 4, 1953. It was in these circumstances that defendant No. 2, who had failed to obtain an order for the release of the house as aforesaid, hastened to sell it to the Company on May 25, 1953. As has been stated, a fresh recovery certificate was issued to the Collector on May 4, 1953 and the house was again attached on August 6, 1953. These facts speak for themselves and are quite sufficient to justify the trial courts finding that sale of the house to the Company was a sham transaction and arose out of the anxiety to save the house some how from sale for realisation of the. The Company was in fact dominated by defendant No. 2 and his close relations and did not even pay the sale price in cash. It is also significant that the shares of the other relations were insignificant. Moreover the Company could not lead evidence to show that it was able to transact any substantial business whatsoever. We have therefore no reason to disagree with the trial courts finding that the Company was formed just to transfer the ho use to it in an effort to save it from attachment and sale for realisation of thex arrears of defendant No. 3. The finding of the trial court on the issue is quite correct and the High Court committed a serious error of law in not examining this aspect of the matter at all even though it had a great bearing on the controversy. | 1 | 5,842 | 364 | ### Instruction:
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the rule is lacking, viz, the need and prudence of affording an opportunity of cross-examination." 15. Moreover, the defendant No.3 had full opportunity, . to appear and defend himself, but he did not do so and the case proceeded against him ex-parte. The plaintiff even tri ed to examine him as his own witness, but his appearance could not be secured in spite of the prayer for the issue of summonses and a warrant. There is therefore force in the argument to the contrary. 16. So also, there is no force in the argument that the aforesaid admissions or statements of defendant No. 3 could not be read against him as they were not adverse to his interest when made. There is no such requirement of the Evidence Act and the argument is untenable as it unreasonably restricts the opportunity to prove the true state of affairs on the partys own showing and to demolish his subsequent claim as self-contradictory. This point has also been dealt with in Wigmore on Evidence, 1048 (at page 4) in this way, --"It follows that the subject of an admission is not limited to facts against th e party opponents interest at the time of making it. No doubt the weight of credit to be given to such statements is increased when the fact stated is against the persons interest at the time; but that circumstance has no bearing upon their admissibility. On principle, it is plain that the probative reason why a party-opponents utterance is sought to beused against him is ordinarily the reason noted above, in par. (1)b, . viz. that it exhibits an inconsistency with his present claim, thus tending to throw doubt upon it, whether he was at the time speaking, apparently in his own favour or against his own interest. The contrary view, has been characterised by Wigmore as "a fallacy. in the fullest sense." Another argument which has been advanced against the admissibility of the aforesaid admissions of defendant No. 3 is that they could be evidence only in terms of section 33 of the Evidence Act. That argument is also quite untenable because section 33 deals with statements of persons who cannot be called as witnesses, and does not restrict or override the provisions relating to admissions in the Evidence Act. The High Court also committed a similar error of law in its impugned judgment. The aforesaid admissions of defendant No. 3 are therefore satisfactory evidence to prove that he himself was the owner of the house and his son, defendant No. 2 was merely a "benamidar" for him. It would thus appear that the finding of the trial court on issue No. 1 which dealt with the question whether the house was purchased by defendant No. 3 "benami" in the name of defendant No. 2, was correct and should be restored as the High Courts finding to the contrary has been vitiated by the substantial errors of law mentioned above. The other important question is whether the sale of the house in favour of the Company (defendant No. 1 ) was a sham transaction and was effected to defeat and delay the creditors of defendant No. 3. This was the subject matter of issue No. 2 and the trial courts finding in affirmative has not even been examined by the High Court. 17. We find that the admitted facts of the case are by themselves sufficient to show that the finding of the trial court is justified and does not call for any interference. Defendant No. 3 was assessed to income-tax for a sum of Rs. 1, 25, 090/11/- for assessment year 1947-48 in March 1952. Defendant No. 3 failed to pay that amount on demand and a recovery certificate was issued on October 8 , 1952. The house was therefore attached on October 13, 1952. Defendant No. 2 raised an objection, and prayed for the release of the house. The Collector rejected the objection on March 3, . 1953. No appeal, or other remedy was sought against .that order. The Appellate Assistant Commissioner however allowed the appeal of defendant No. 3 against the assessment of income-tax and ordered a fresh attachment by his order dated May 12, 1953. In the meantime, the Company was incorporated in February, 1953. The assessment of income tax for the years 1944-45 and 1948-49 was completed in March 1953 raising the tax demand to Rs. 1, 94, 735.15, and a recovery certificate was issued on May 4, 1953. It was in these circumstances that defendant No. 2, who had failed to obtain an order for the release of the house as aforesaid, hastened to sell it to the Company on May 25, 1953. As has been stated, a fresh recovery certificate was issued to the Collector on May 4, 1953 and the house was again attached on August 6, 1953. These facts speak for themselves and are quite sufficient to justify the trial courts finding that sale of the house to the Company was a sham transaction and arose out of the anxiety to save the house some how from sale for realisation of the income-tax. The Company was in fact dominated by defendant No. 2 and his close relations and did not even pay the sale price in cash. It is also significant that the shares of the other relations were insignificant. Moreover the Company could not lead evidence to show that it was able to transact any substantial business whatsoever. We have therefore no reason to disagree with the trial courts finding that the Company was formed just to transfer the ho use to it in an effort to save it from attachment and sale for realisation of the income-tax arrears of defendant No. 3. The finding of the trial court on the issue is quite correct and the High Court committed a serious error of law in not examining this aspect of the matter at all even though it had a great bearing on the controversy. 18.
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No appeal, or other remedy was sought against .that order. The Appellate Assistant Commissioner however allowed the appeal of defendant No. 3 against the assessment ofx andordered a fresh attachment by his order dated May 12, 1953. In the meantime, the Company was incorporated in February, 1953. The assessment of income tax for the years5 and9 was completed in March 1953 raising the tax demand to Rs. 1, 94, 735.15, and a recovery certificate was issued on May 4, 1953. It was in these circumstances that defendant No. 2, who had failed to obtain an order for the release of the house as aforesaid, hastened to sell it to the Company on May 25, 1953. As has been stated, a fresh recovery certificate was issued to the Collector on May 4, 1953 and the house was again attached on August 6, 1953. These facts speak for themselves and are quite sufficient to justify the trial courts finding that sale of the house to the Company was a sham transaction and arose out of the anxiety to save the house some how from sale for realisation of the. The Company was in fact dominated by defendant No. 2 and his close relations and did not even pay the sale price in cash. It is also significant that the shares of the other relations were insignificant. Moreover the Company could not lead evidence to show that it was able to transact any substantial business whatsoever. We have therefore no reason to disagree with the trial courts finding that the Company was formed just to transfer the ho use to it in an effort to save it from attachment and sale for realisation of thex arrears of defendant No. 3. The finding of the trial court on the issue is quite correct and the High Court committed a serious error of law in not examining this aspect of the matter at all even though it had a great bearing on the controversy.
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Arvind N. Mafatlal Vs. T.A. Balakrishnan, Deputy Controller of Estate Duty, Bombay | the Supreme Court in Maharaj Kumar Kamal Singh v. Commissioner of Income-tax, to which we have already referred. With respect, we agree with the remarks of the Division Bench of this court and normally its decision is also binding is also binding on us.76. We may also say that the decision in the case just cited of the Malegaon Electricity Co. Private Ltd. directly covers the point raised in the present case. In that case, the facts were simple. In the course of the accounting year the assessee-company had sold its undertaking to another company on 19th September, 1951, but the assessee-company did not disclose in its return the excess of the sale price of building, plant and machinery over the written down value either in sections in the form of the return relating to the total income or in section D claiming that it was not taxable under any other provision of the Act. During the course of the assessment, however, the assessee had sent a letter to the Income-tax Officer stating that the assessee was enclosing the documents relating to the sale and the break-up of the sale price along with the directors resolution in that behalf. Nevertheless, the assessment was made without reference to the excess sale price. Some time after the assessment was completed, the Income-tax Officer realised that the profits accruing from the sale of the property concerned would fall within the ambit of section 10 (2) (vii) of the Act and had not been assessed and he, therefore, started proceedings under section 34. It was held that "it did not appear anywhere in the records in clear terms that the sale transaction had resulted in the assessee obtaining a price for the building, plant and machinery in excess of its written down value, and though that fact could have been ascertained by correlating the various documents on record, working on them, making arithmetical calculations, the mere failure on the part of the Income-tax Officer to correlate the various materials could not entitle the assessee to claim that assessment could not be reopened under section 34 (1) (b)." Strong reliance was placed by Mr. Joshi on behalf of the department upon this decision, but in that case the Division Bench clearly held that the primary facts had not been stated by the assessee at the time of the original assessment. At page 810, the Division Bench observed as follows:"On the record, therefore, the information that the sale price of these items was in excess of the written down value cannot be said to be patently available to the Income-tax Officer. The order of the Income-tax Officer does not show that any contention was raised before him that, though the transaction had resulted in obtaining excess price, it was not profit within the meaning of section 10 (2) (vii), inasmuch as the assessee did not carry on any business in the year of account. Thus, the position obtaining is that, on the material on record, it cannot be said that the Income-tax Officer had knowledge that the price fetched in respect of the said items of assets had exceeded the written down value. The said knowledge has been subsequently obtained by the Income-tax Officer on correlating various facts and ascertaining the resultant position after the completion of the original assessment. Thus the knowledge as to the correct position after the completion of the original assessment. Thus the knowledge as to the correct position of factual matters has been subsequently obtained by the Income-tax Officer on correlating various facts and ascertaining the resultant position after the completion of the original assessment. Thus the knowledge as to the correct position of factual matters has been obtained by the Income-tax Officer subsequent to the completion of the original assessment and that would, in our opinion, amount to information within the meaning of section34 (1) (b)." 77. Mr. Joshi relied on this passage to urge that even in the present case the correct position has been ascertained only after the correlation of all the facts and, therefore, the principle of the Malegaon Electricity Co.s case should apply here. The passage just quoted is immediately followed by a further clarification as follows :"A distinction has to be made between facts, which are clearly or patently on the record and facts, which could be gathered or could have been gathered with due diligence by elaborately correlating the various facts on the record. As regards the former, it can, without hesitation, be said that the information as to the facts, which are patently or clearly on the record was within the possession of the Income-tax Officer at the time of the original assessment. The same cannot be said of the latter because the correct factual position emerges only after the Income-tax Officer has correlated the various facts and ascertained what the resulting position is. Knowledge secured in the latter case, subsequent to the assessment, in our opinion, is information within the meaning of section 34 (1) (b)."78. In the present case, it can hardly be said that there were any facts which, even if correlated, could have amounted to "information" in the possession of the Deputy Controller. We have already shown that there were no such facts available to the department. The Malegaon Electricity Co.s case therefore, is distinguishable upon its own facts.79. In the view which we take, it is unnecessary to go into the further point urged by Mr. Palkhivala on behalf of the petitioner as to vires of rule 15 What Mr. Palkhivala urged was that, if rule 15 were to justify the assessment of estate duty on the "assets basis" without providing for it in the tax law, it is ultra vires of sections 36 and 37 of the Act. We have already shown that, in our opinion, rule 15 does not apply to the facts and circumstances of the present case. Therefore, it is unnecessary to consider whether it is also ultra vires the provisions of the Act. | 1[ds]( 17 ) IN the light of these general principles we turn to examine whether in the present case the order passed on 22nd March, 1960, was a completed and final order which could not be reopened except by virtue of express enactment or necessary intendment. We may first of all dispose of a point which Mr. Joshi made on behalf of the department that the order was not final, because the assessee had preferred an appeal. In the first place the plea is not to be found stated in any part of the affidavits filed on behalf of the department, but it is also not disputed that that appeal was filed at the instance of the assessee claiming a reduction of tax and nothing further, and in regard to minor item. We do not think that in a case where the assessee claims that he is not liable to tax it can possibly be urged that the departments right to assess or reassess was kept alive. In fact, even on that occasion the department could not have claimed that the assessee was liable to a higher rate of taxation or to a higher amount of tax. Therefore, the mere fact that an appeal on behalf of the assessee was pending would not, in our opinion, affect the question whether the order passed on 22nd March, 1960, was final and completed order or not. That order was a completed and final22 ) IN Commissioner ofv. Shantilal Punjabji the effect of the Supreme Court decision upon the view taken by the Division taken by the Division Bench of this court in Prashar v. Vasantsen Dwarkadas was considered and at page 73 it reopen an assessment which is barred under section 34 and no subsequent enlargement of time can revive such right by section 31 of the Amendment Act of 1953, as we have pointed out in Mathurdas Govinddas v. G. N. Gadgil, the Bombay decision in Prashar v. Vasantsen Dwarkadas still holds good and is binding upon us as on this point. Out of the five learned judges, two took the view, two a contrary view and the fifth judge, Sarkar J. , did not express any opinion at all and, therefore, as held by the Bombay High Court, section 31 did not save the right of the taxing authorities to issue the notice after the right to do so wasunder section 34 (1 ). " With respect we are in agreement with this view as to the effect of the decision of the Supreme Court in Prashar v. Vasantsen Dwarkadas, so far as the decision of this court in Prashar v. Vasantsen Dwarkadas is31 ) WE do not think, therefore that the decision in the Calcutta Discount Companys case, takes any view contrary to the view taken in the decision to which we have referred but on the contrary it affirms the principle that, unless there is express statutory provision or necessary intendment to be found from the language of a statute, completed and final orders of assessment cannot be reopened. The Calcutta Discount Companys case was, upon the findings of the division Bench in that case, an exception to the rule, because it was held that the rights created by the amending Act of 1948 were not new rights but merely a variant of the old rights under the replaced32 ) IN the light of these principles, we can find noting in the provisions of section 59 to suggest that it as been given any retrospective operation. Reference was made to section 73a which was also introduced into the Estate Duty Act by the same amending Act, 33 of 1958. Section 73a provides as follows : "no proceedings for the levy of any estate duty under this Act shall commenced(a) in the case of a first assessment, after the expiration of five years from the date of death of the deceased in respect of whose property estate duty became payable; and (b) in the case of a reassessment, after the expiration of tree years from the date of assessment of such property to estate duty under this Act. "( 33 ) CLAUSE (a) of the section is obviously inapplicable here, because this is not a case of a first assessment. This is undoubtedly an attempt at reassessment and to that extent clause (b) would be attracted provided it has the necessary application to the present case. There is nothing in clause (b) of section 73a to suggest a retrospective operation. No doubt, clause (b) says "in the case of a reassessment, after the expiration of three years from the date of assessment of such property to estate duty under this Act," but it does not say that the date of assessment must be a date prior to the coming into force of section 73a. Therefore, even though section 59 is subject to the provisions of section 73a, we do not think that by virtue of section 73a, clause (b), section 59 would apply for any period prior to the date of the coming into force of the Act, namely, 1st July, 1960, much less where the assessment has been final and completed, in the present case. In any case section 73a, clause (b), will clearly apply to cases of reassessment made after its provisions came into force, i. e. , prospectively. If then the provisions of section 73a, clause (b), can apply prospectively and there is no express provision or necessary intendment to suggest the retrospective operation we can see no reason why we should give this clause any retrospective operation at all. Though clause (b) says that in the case of a reassessment, the assessment cannot be reopened after the expiry of three years from the date of assessment, it does not say that a reassessment can take place in a case where a final order has already been5 ) IN this connection, we may here dispose of an ancillary point which was raised by Mr. Joshi on behalf of the department and that is that the provisions of section 62 of the old Act are in pari materia with the provisions of section 59 of the new Act, and, therefore, on the analogy of the reasoning of chief Justice Chakravartti in the Calcutta Discount Companys case, section 59 is not a new provision at all, but only a variant of the old provision which it replaced, namely, section62. We are unable to accept this contention, We have already indicated when considering the provisions of section 62 that its ambit was strictly limited. In the first place, the grounds upon which action could be taken under that section were only, mistake apparent from the record, mistake in the valuation of any property, or omission of any property. Section 59 does not at all deal with any case of mistake. In fact, in the Estate Duty Act as amended, the question of rectification of mistake is relegated to the new section 61 and that section has not been invoked by the department at any stage. Secondly, the action that could be taken under section 62 was onlyIf the assessee applied, he could be refunded the excess duty, if any, paid by him or so far as the department is concerned, the only action that could be taken was to determine the additional duty payable on the property. In no case could an assessment made be reopened under the old section 62. In other words, the assessee could not be called upon to render a fresh account or to submit a fresh return which under section 59 the department is expressly authorised to do. The words in section 59 are decisive in this respect, "may. . . . require the person accountable to submit an account as required under section 53 and may proceed to assessee or reassess such property as if the provisions of section 58 applied thereto. " Section 53 requires that every person accountable for estate duty shall, within six months of the death of the deceased, deliver to the Controller an account in the prescribed form and verified in the prescribed manner. That is the initial return which the person accountable is called upon to make and that is what the Controller is authorised to call for under section 59, if the conditions of that section are fulfilled. Therefore, it is a completely new account that could be called for. That could not be done under the old section 62. Similarly, power is given to the Controller to proceed to assess or reassess the property as if the provisions of section 58 applied thereto. Section 58 deals with the subject of "assessment" and it refers obviously to the assessment of the principal value of the estate of the deceased to determine the amount payable as estate duty. Therefore, the cumulative effect of reading the provisions of section 58 along with the provisions of section 59 is that if the conditions of section 59 is that if the conditions section 59 are fulfilled, the Controller can call upon the person accountable to render a fresh account and assess him as if he were assessing him for the first time under section 59. None of these powers or remedies, if we may say so, are conferred upon the department under the old section 62. These, in our opinion, are he fundamental differences between the rights or remedies under the old section 62 and the new section 59. Whatever similarity there was between the rights or remedies under the old section 62 and the new section 59 was in regard to the question of mistake which, in the amended Act, has been relegated to section 61, but section 61 had not been invoked by the department. So far as section 59 is concerned, in our opinion, it is not in any sense merely a variant of the old section 62 so as to attract the provisions of section 62 as held in the Calcutta Discount Companys case. We may stress here that in coming to this conclusion we have not compared the grounds upon which action could be taken under section 59 or under section 62, because of the remark of Chief Justice Chakravartti that those difference in the grounds upon which action could be taken were37 ) AT a later stage, the learned judge pointed out that the power of review under Order 47, rule 1, was more restricted in scope than the power under section 35, but the extent of that restriction was not indicated. It seems to us that upon the particular facts of that case it was held that the error sought to be corrected was a mistake apparent from the record, though it was not an error apparent on the face of the record. But the facts of the present case are entirely different. To that extent, therefore, we do not think that the distinction pointed out in that case would apply here.(39 ) THEREFORE, despite the distinction which was drawn between the words "apparent from the record" and "error apparent on the face of the record, the Supreme Court itself has indicated that even under the words "apparent from the record" the mistake contemplate is not one which is to be discovered as a result of an arguments, but it must be a mistake which becomes apparent from the examination of the record. We fail to see upon that view how section 62 of the unamended Act will not apply to the facts of the case. The words of section 35 of theAct are to that extent in pari materia with the words of section 62. We may also mention here that it was urged by Mr. Palkhivala that the very provisions of the law which fell to be considered in Asok Textiles Ltd. case namely Schedule I, Part I, Item B, proviso (ii), of the Finance Act (23 of 1951) were declared not to levy a charge ofat all and to that extent offended against section 3 of the IndianAct. See Commissioner ofv. Khatau Makhanji Spg. and Wvg. Co. Ltd. , and that, therefore, the question which arose in Asok Textiles Ltd. case need not be gone through. However, it is unnecessary to go into that question, because even accepting the view in Asok Textiles Ltd. s case, we do not think that section 62 would be attracted in the present case.No affidavit, however, has been filed by this officer and, therefore, we think that the affidavits filed by Mr. Butani and Mr. Gopalkrishnan have very little value. So far as the petitioner is concerned, he has, insubparagraph of paragraph 4 ofhis affidavit, categorically stated, "i further state that rule 15 was considered along with all relevant questions and that relevant information and documents were furnished to show that the deceased had no control within the meaning of subrule (3) of rule 15 and it was shown that the deceased was not in the position of a governing director and that he had not the powers of the board of directors. It was contended that the resolution of the board and the article 125 of the company under which the powers of the board were delegated did not amount to control within the meaning of rule 15. All the facts relating to control within the meaning of the rules were disclosed in the course of assessment proceedings". Besides these pleadings there is absolutely nothing before us to show whether rule 15 was considered or not. In these circumstances, we can see no reason why we should not accept the affidavit of the petitioner that rule 15 was considered by the original assessing officer. There is no denial of this on the part of the original assessing officer, who was still available. So far as the affidavits of Butani and Gopalakrishnan are concerned, they are admitted to have been made only from the record.One of the points which Mr. Joshi made on behalf of the department was that if rule 15 had been discussed, some mention of it would have been found in the assessment order.We think that the absence of reference to rule 15 in the assessment order cannot indicate in the present case that rule 15 was not discussed or considered at the time of the original assessment because, as we have shown, all the points of difference or dispute at the time of the assessment were in the words of the assessment order "disposed of by discussion with the parties and agreed figures" were included in the computation made. Therefore, there is nothing upon the record to suggest that rule 15 was not considered.Thus section 37 provides that it is the market value of the shares that would prevail "if not ascertainable by reference to the value of the total assets of the company". In other words, it is the value which is ascertainable, by reference to the value of the total assets of the company which must be made in the first instance and, then, if that valuation is not ascertainable then only the market value has to be resorted t. Though rule 15 purports to have been made under thepower contained in section 20(e), we have no doubt that it makes detailed provisions for computation of the valuation of shares on the basis of the total assets of the company in terms of the provisions of section 37. If then it is an admitted position that section 37 was considered by the officer who made the original assessment, there can be hardly any doubt that he must have applied his mind to both the alternative principles of valuation mentioned in section 37 and that can only mean that rule 15 must have been considered by him. At any rate, section 37 indicates two methods of valuation, (1) on the basis of the total assets of the company, and (2) on the basis of the market value. The first is under section 37 preferred to the second and it is only in the event that the first principle cannot apply that the second principle is made applicable. Now if the assessing officer makes the assessment on the basis of the second principle, namely, that of market value, we cannot but hod that he must have considered the first principle, namely, the valuation on "the assets basis", and rejected it as not ascertainable. This again would support the affidavit made by the petitioner that rule 15 was considered. At any rate, in view of the complete absence of any reference to rule 15 in the record of the original assessment proceedings, in the absence of any affidavit by the officer making the original assessment and the other circumstances which we have discussed, we cannot but hold in the present case that rule 15 was considered by the assessing officer when he made the original assessment.48. In this view, it seems to us hardly necessary to consider whether, upon the facts and circumstances of this case, rule 15 could possibly apply, but since elaborate arguments have been addressed by both the sides whether rule 15 could apply at all, and the matter may not rest with this court, we think we must deal with that point.Now in the first place, though no doubt the resolution read along with article 125 does give the managing director the powers of the board of directors as are vested in the board of directors by the articles, all that one can say is that the managing director was given plenary powers of management of the company. But we fail to see how powers of management can be approximated with control of the company such as is required by rule 15. We have already indicated that in respect of his shareholdings, the deceased did not have a controlling interest in the company, that is to say, at least more than 50% of the share capital of the company. Therefore, looked at from the point of view of his real control over the company, there was none so far as the deceased was concerned. He could at a general meeting have been always outvoted by the other shareholders and it is well known that the real control of a company lies in the fact that a person or persons hold a majority of the shares in a company and on whether they can control the general meetings of the company. That the deceased had no power to do in the present case.60. Even so far as the management of the company so vested in the deceased is concerned, two facts may be emphasized, which show, in our opinion, categorically that it was not the deceased who was controlling the board of directors or the management of the company, but that it was really the board of directors or the management of the company, but that it was really the board of directors who were controlling him. These two important facts are : (1) that the operation of the resolution was limited only to one year at a time. Surely, it is a poor way of exhibiting control of a company that a managing director has to go and ask the board of directors to give him his powers annually. (2) Secondly, article 125 itself vests plenary power of removal of the managing director in the board of directors and that power remained uncontrolled. In other words, the power of the board to remove the managing director could be exercised at any time. It was disputed that they could remove him in the course of one year after having passed a resolution such as is to be found at exhibit E, but we think that notwithstanding such resolution they could have removed him for sufficient cause. But that apart, so far as the power to remove him is vested in the board of directors and the board of directors carefully considered the exercise ofthat power and limited it to one year at a time, we do not think that in the circumstances of the present case they ever intended to part with their power of control in favour of the managing director. It is quite clear that it was the managing director who was under the control of the board of directors and notvice versa as alleged on behalf of the department.61. Some reference was made in the arguments to the definition of "manager" in the old Companies Act and to the new definition of "managing director" in the present Indian Companies Act to speed out the powers of control. We do not think that we need go into those definitions upon the view that we have taken in the present case. In our opinion, upon the facts placed before us there is no manner of doubt that the deceased, though appointed the managing director with full powers of the board of directors for one year, did not have the control of the company within the meaning of rule 15. Rule 15, therefore, could not have applied in the circumstances of the case.In the present case, we are quite unable to find any mistake, much less a mistake which is "glaring and obvious" or which "is plainly and obviously inconsistent with a specific and clear provision of the state". The department, it appears, merely reconsidered the provisions of section 62 read with rule 15 and changed its opinion, though there was no mistake apparent from the record.65. Having considered the question of the applicability of rule 15, in so far as its allegedcould constitute a mistake under the provisions of section 62, we hold that there was no mistake and, therefore, section 62 would not be applicable to the facts and circumstances of the present case. If that be so, then the point we have earlier made that section 59 cannot affect a final and concluded order of assessment made in favour of the petitioner, becomes reinforced. The finality of the order of assessment made on 22nd March, 1960, is not affected by any right existing in favour of the department arising under section 62. Therefore, the provisions of section 59 would not apply, because section 59 was brought into force as a law long after the assessment order was made.Thus two facts or circumstances are alleged as constituting "information". One is the fact of overlooking of rule 15. We have already dealt with this ground. The other ground is that the company was a dealer in shares, whereas the correct position was that the company was an investment company. In this respect, the only material placed before us by Mr. Joshi on behalf of the department was to refer to an answer given on behalf of the petitioner to a questionnaire "A" issued by the department, where a statement has been made "The company is essentially an investment company". In the affidavit of Mr. Gopalakrishan we have shown that it is stated that the Appellate Assistant Commissioner had given a finding that they are dealers in shares. No such order has been produced before us. We presume that, if a finding of that kind was at all given by the authority under the Estate Duty Act or even for that matter under the IndianAct or any other fiscal enactment, it could only be by a written order, but no such order has been placed on record. Therefore, the allegation remains completely unsubstantiated and we cannot accept the statement that some such order was passed. Apart from this, there is nothing before us to show that the company was a dealer in shares. We must hold, th refore, that there was no information in the possession of the Deputy Controller such as is required under the provisions of section 59(b) to enable him to reopen the order passed on 22nd March, 1960. The fact that the deceased was the managing director, the fact that the deceased was the managing director, the fact that the articles of association of the company were before the assessing officer as well as the facts relating to the interest of the deceased in the company and the nature of the business activities of the company and the resolution which is now sought to be invoked, do not carry the matter any further in favour of the department. All the information necessary to come to a conclusion as to the valuation of the shares was in the possession of the department. There was no information received by them subsequent to the order of assessment. Therefore, there was no jurisdiction to proceed to repent the assessment.The Division Bench relied upon the decision of the Supreme Court in Maharaj Kumar Kamal Singh v. Commissioner ofto which we have already referred. With respect, we agree with the remarks of the Division Bench of this court and normally its decision is also binding is also binding on us.In the present case, it can hardly be said that there were any facts which, even if correlated, could have amounted to "information" in the possession of the Deputy Controller. We have already shown that there were no such facts available to the department. The Malegaon Electricity Co.s case therefore, is distinguishable upon its own facts.79. In the view which we take, it is unnecessary to go into the further point urged by Mr. Palkhivala on behalf of the petitioner as to vires of rule 15 What Mr. Palkhivala urged was that, if rule 15 were to justify the assessment of estate duty on the "assets basis" without providing for it in the tax law, it is ultra vires of sections 36 and 37 of the Act. We have already shown that, in our opinion, rule 15 does not apply to the facts and circumstances of the present case. Therefore, it is unnecessary to consider whether it is also ultra vires the provisions of the Act. | 1 | 21,244 | 4,735 | ### Instruction:
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the Supreme Court in Maharaj Kumar Kamal Singh v. Commissioner of Income-tax, to which we have already referred. With respect, we agree with the remarks of the Division Bench of this court and normally its decision is also binding is also binding on us.76. We may also say that the decision in the case just cited of the Malegaon Electricity Co. Private Ltd. directly covers the point raised in the present case. In that case, the facts were simple. In the course of the accounting year the assessee-company had sold its undertaking to another company on 19th September, 1951, but the assessee-company did not disclose in its return the excess of the sale price of building, plant and machinery over the written down value either in sections in the form of the return relating to the total income or in section D claiming that it was not taxable under any other provision of the Act. During the course of the assessment, however, the assessee had sent a letter to the Income-tax Officer stating that the assessee was enclosing the documents relating to the sale and the break-up of the sale price along with the directors resolution in that behalf. Nevertheless, the assessment was made without reference to the excess sale price. Some time after the assessment was completed, the Income-tax Officer realised that the profits accruing from the sale of the property concerned would fall within the ambit of section 10 (2) (vii) of the Act and had not been assessed and he, therefore, started proceedings under section 34. It was held that "it did not appear anywhere in the records in clear terms that the sale transaction had resulted in the assessee obtaining a price for the building, plant and machinery in excess of its written down value, and though that fact could have been ascertained by correlating the various documents on record, working on them, making arithmetical calculations, the mere failure on the part of the Income-tax Officer to correlate the various materials could not entitle the assessee to claim that assessment could not be reopened under section 34 (1) (b)." Strong reliance was placed by Mr. Joshi on behalf of the department upon this decision, but in that case the Division Bench clearly held that the primary facts had not been stated by the assessee at the time of the original assessment. At page 810, the Division Bench observed as follows:"On the record, therefore, the information that the sale price of these items was in excess of the written down value cannot be said to be patently available to the Income-tax Officer. The order of the Income-tax Officer does not show that any contention was raised before him that, though the transaction had resulted in obtaining excess price, it was not profit within the meaning of section 10 (2) (vii), inasmuch as the assessee did not carry on any business in the year of account. Thus, the position obtaining is that, on the material on record, it cannot be said that the Income-tax Officer had knowledge that the price fetched in respect of the said items of assets had exceeded the written down value. The said knowledge has been subsequently obtained by the Income-tax Officer on correlating various facts and ascertaining the resultant position after the completion of the original assessment. Thus the knowledge as to the correct position after the completion of the original assessment. Thus the knowledge as to the correct position of factual matters has been subsequently obtained by the Income-tax Officer on correlating various facts and ascertaining the resultant position after the completion of the original assessment. Thus the knowledge as to the correct position of factual matters has been obtained by the Income-tax Officer subsequent to the completion of the original assessment and that would, in our opinion, amount to information within the meaning of section34 (1) (b)." 77. Mr. Joshi relied on this passage to urge that even in the present case the correct position has been ascertained only after the correlation of all the facts and, therefore, the principle of the Malegaon Electricity Co.s case should apply here. The passage just quoted is immediately followed by a further clarification as follows :"A distinction has to be made between facts, which are clearly or patently on the record and facts, which could be gathered or could have been gathered with due diligence by elaborately correlating the various facts on the record. As regards the former, it can, without hesitation, be said that the information as to the facts, which are patently or clearly on the record was within the possession of the Income-tax Officer at the time of the original assessment. The same cannot be said of the latter because the correct factual position emerges only after the Income-tax Officer has correlated the various facts and ascertained what the resulting position is. Knowledge secured in the latter case, subsequent to the assessment, in our opinion, is information within the meaning of section 34 (1) (b)."78. In the present case, it can hardly be said that there were any facts which, even if correlated, could have amounted to "information" in the possession of the Deputy Controller. We have already shown that there were no such facts available to the department. The Malegaon Electricity Co.s case therefore, is distinguishable upon its own facts.79. In the view which we take, it is unnecessary to go into the further point urged by Mr. Palkhivala on behalf of the petitioner as to vires of rule 15 What Mr. Palkhivala urged was that, if rule 15 were to justify the assessment of estate duty on the "assets basis" without providing for it in the tax law, it is ultra vires of sections 36 and 37 of the Act. We have already shown that, in our opinion, rule 15 does not apply to the facts and circumstances of the present case. Therefore, it is unnecessary to consider whether it is also ultra vires the provisions of the Act.
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directors and the board of directors carefully considered the exercise ofthat power and limited it to one year at a time, we do not think that in the circumstances of the present case they ever intended to part with their power of control in favour of the managing director. It is quite clear that it was the managing director who was under the control of the board of directors and notvice versa as alleged on behalf of the department.61. Some reference was made in the arguments to the definition of "manager" in the old Companies Act and to the new definition of "managing director" in the present Indian Companies Act to speed out the powers of control. We do not think that we need go into those definitions upon the view that we have taken in the present case. In our opinion, upon the facts placed before us there is no manner of doubt that the deceased, though appointed the managing director with full powers of the board of directors for one year, did not have the control of the company within the meaning of rule 15. Rule 15, therefore, could not have applied in the circumstances of the case.In the present case, we are quite unable to find any mistake, much less a mistake which is "glaring and obvious" or which "is plainly and obviously inconsistent with a specific and clear provision of the state". The department, it appears, merely reconsidered the provisions of section 62 read with rule 15 and changed its opinion, though there was no mistake apparent from the record.65. Having considered the question of the applicability of rule 15, in so far as its allegedcould constitute a mistake under the provisions of section 62, we hold that there was no mistake and, therefore, section 62 would not be applicable to the facts and circumstances of the present case. If that be so, then the point we have earlier made that section 59 cannot affect a final and concluded order of assessment made in favour of the petitioner, becomes reinforced. The finality of the order of assessment made on 22nd March, 1960, is not affected by any right existing in favour of the department arising under section 62. Therefore, the provisions of section 59 would not apply, because section 59 was brought into force as a law long after the assessment order was made.Thus two facts or circumstances are alleged as constituting "information". One is the fact of overlooking of rule 15. We have already dealt with this ground. The other ground is that the company was a dealer in shares, whereas the correct position was that the company was an investment company. In this respect, the only material placed before us by Mr. Joshi on behalf of the department was to refer to an answer given on behalf of the petitioner to a questionnaire "A" issued by the department, where a statement has been made "The company is essentially an investment company". In the affidavit of Mr. Gopalakrishan we have shown that it is stated that the Appellate Assistant Commissioner had given a finding that they are dealers in shares. No such order has been produced before us. We presume that, if a finding of that kind was at all given by the authority under the Estate Duty Act or even for that matter under the IndianAct or any other fiscal enactment, it could only be by a written order, but no such order has been placed on record. Therefore, the allegation remains completely unsubstantiated and we cannot accept the statement that some such order was passed. Apart from this, there is nothing before us to show that the company was a dealer in shares. We must hold, th refore, that there was no information in the possession of the Deputy Controller such as is required under the provisions of section 59(b) to enable him to reopen the order passed on 22nd March, 1960. The fact that the deceased was the managing director, the fact that the deceased was the managing director, the fact that the articles of association of the company were before the assessing officer as well as the facts relating to the interest of the deceased in the company and the nature of the business activities of the company and the resolution which is now sought to be invoked, do not carry the matter any further in favour of the department. All the information necessary to come to a conclusion as to the valuation of the shares was in the possession of the department. There was no information received by them subsequent to the order of assessment. Therefore, there was no jurisdiction to proceed to repent the assessment.The Division Bench relied upon the decision of the Supreme Court in Maharaj Kumar Kamal Singh v. Commissioner ofto which we have already referred. With respect, we agree with the remarks of the Division Bench of this court and normally its decision is also binding is also binding on us.In the present case, it can hardly be said that there were any facts which, even if correlated, could have amounted to "information" in the possession of the Deputy Controller. We have already shown that there were no such facts available to the department. The Malegaon Electricity Co.s case therefore, is distinguishable upon its own facts.79. In the view which we take, it is unnecessary to go into the further point urged by Mr. Palkhivala on behalf of the petitioner as to vires of rule 15 What Mr. Palkhivala urged was that, if rule 15 were to justify the assessment of estate duty on the "assets basis" without providing for it in the tax law, it is ultra vires of sections 36 and 37 of the Act. We have already shown that, in our opinion, rule 15 does not apply to the facts and circumstances of the present case. Therefore, it is unnecessary to consider whether it is also ultra vires the provisions of the Act.
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Union of India Vs. A. Gopalakrishna Nayak and Others | KRISHNA IYER, J. 1. This civil appeal is one of the survivals of service litigation arising from the States Reorganisation Act. 2. Respondent No. 1 was the writ petitioner before the High Court who challenged an integrated seniority list in the Transport Department of the then Mysore Government. He belonged to the then Madras Government and was allotted to the then Mysore State and claimed that he should have been equated with motor vehicles inspections instead of being assigned a rank as an assistant motor vehicles inspector. The provisional list prepared by the State Government, because it hurt him, was challenged by him by a represent action to the Central Government which, after due consideration, rejected his claim, Thus he enjoyed an opportunity to be heard by the Central Government against the provisional seniority list prepared by the Mysore Government. Afterwards, the Mysore Government (now Karnataka Government) finalised the inter-State seniority list Aggrieved by the assignment of rank as Assistant Motor Vehicles Inspector in the final list, the first respondent filed the writ petition before the Karnataka High Court. The High Court, under the impression that its earlier decision in G. M. Shankariah v. Union of India, (1965) 2 Mys LJ 40 governed the case decided that the seniority list prepared by the Central Government was no. more than a proposal in the context of which the petitioner was entitled to make a fresh representation which was to be heard and decided before the Central Government made a final list. On this footing a direction was given by the court, although it linked up its order with the final fate of Shankariahs case in the Supreme Court. 3. Actually Shankariahs case (1965) 2 Mys LJ 40 did arrive in the Supreme Court and was decided on the footing that the inter-State seniority list which was before the court was a provisional one and that in that view an opportunity to be heard against the equation which was the basis of the list was to be afforded to the petitioner (1st respondent herein). 4. There is a fundamental error in the assumption by the court as we now see. The learned Solicitor General has drawn our attention to the fact that in the present case the petitioner himself has alleged in his writ petition against the provisional list and the foundational equation made therein and he had made a representation to the Central Government which was rejected. The State Government thereafter prepared a final list. In paragraph 22 of the counter affidavit of the Central Government it has been pointed out that the Union of India had determined the question finally after taking into consideration all the representations made by the concerned official ..... and therefore, the petitioner cannot invite this Honble Court to examine the matter as if in an appeal against the order passed by this respondent (Union of India). 5. We see no. force in this contention. Actually Shankariahs case (1965) 2 Mys LJ 40 depended on its own facts and proceeded on a concession. As has been pointed out later by this Court in Union of India v. R. D. Nanjiah (1976) 4 SCC 412 : (1977 Lab IC 7) speaking for the Court Beg, J. there pointed out : We think that the concession in Shankariahs case was confined to the facts of that particular case. There the list was provisional. The most that could be urged, in the light of decisions of this Court, is that a person whose seniority is to be determined under S. 115 of the Act must be given an opportunity to object to the proposed assignment of place to him in the seniority list. As already observed above, the petitioner had ample opportunity to do that. Hence, the principle recognised in Shankariahs case was not applicable to such a case. 6. It is thus plain that Shankariahs case (1965) 2 Mys LJ 40 cannot be of any assistance to the first respondent. Here we have a final list, not a provisional one. Here the party affected has been heard and the Central Government has decided and therefore there is no. meaning in affording a second opportunity to be heard or to make representations. In this view we set aside the decision of the Karnataka High Court and allow the appeal. 7. We are handicapped in the hearing of this appeal by the absence of the 1st respondent for reasons which we are unable to guess. But the learned Solicitor-General has fairly taken us through the facts, pro and con. Even so, we make it clear that this judgment shall not preclude the 1st respondent from challenging the final inter-State seniority list on any ground or infirmity that may appertain to the final list qua final list. 8. | 1[ds]4. There is a fundamental error in the assumption by the court as we now see. The learned Solicitor General has drawn our attention to the fact that in the present case the petitioner himself has alleged in his writ petition against the provisional list and the foundational equation made therein and he had made a representation to the Central Government which was rejected. The State Government thereafter prepared a final list. In paragraph 22 of the counter affidavit of the Central Government it has been pointed out that the Union of India had determined the question finally after taking into consideration all the representations made by the concerned official ..... and therefore, the petitioner cannot invite this Honble Court to examine the matter as if in an appeal against the order passed by this respondent (Union of India).5. We see no. force in this contention. Actually Shankariahs case (1965) 2 Mys LJ 40 depended on its own facts and proceeded on a concession6. It is thus plain that Shankariahs case (1965) 2 Mys LJ 40 cannot be of any assistance to the first respondent. Here we have a final list, not a provisional one. Here the party affected has been heard and the Central Government has decided and therefore there is no. meaning in affording a second opportunity to be heard or to make representations. In this view we set aside the decision of the Karnataka High Court and allow the appeal7. We are handicapped in the hearing of this appeal by the absence of the 1st respondent for reasons which we are unable to guess. But the learnedl has fairly taken us through the facts, pro and con. Even so, we make it clear that this judgment shall not preclude the 1st respondent from challenging the finale seniority list on any ground or infirmity that may appertain to the final list qua final list. | 1 | 876 | 349 | ### Instruction:
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KRISHNA IYER, J. 1. This civil appeal is one of the survivals of service litigation arising from the States Reorganisation Act. 2. Respondent No. 1 was the writ petitioner before the High Court who challenged an integrated seniority list in the Transport Department of the then Mysore Government. He belonged to the then Madras Government and was allotted to the then Mysore State and claimed that he should have been equated with motor vehicles inspections instead of being assigned a rank as an assistant motor vehicles inspector. The provisional list prepared by the State Government, because it hurt him, was challenged by him by a represent action to the Central Government which, after due consideration, rejected his claim, Thus he enjoyed an opportunity to be heard by the Central Government against the provisional seniority list prepared by the Mysore Government. Afterwards, the Mysore Government (now Karnataka Government) finalised the inter-State seniority list Aggrieved by the assignment of rank as Assistant Motor Vehicles Inspector in the final list, the first respondent filed the writ petition before the Karnataka High Court. The High Court, under the impression that its earlier decision in G. M. Shankariah v. Union of India, (1965) 2 Mys LJ 40 governed the case decided that the seniority list prepared by the Central Government was no. more than a proposal in the context of which the petitioner was entitled to make a fresh representation which was to be heard and decided before the Central Government made a final list. On this footing a direction was given by the court, although it linked up its order with the final fate of Shankariahs case in the Supreme Court. 3. Actually Shankariahs case (1965) 2 Mys LJ 40 did arrive in the Supreme Court and was decided on the footing that the inter-State seniority list which was before the court was a provisional one and that in that view an opportunity to be heard against the equation which was the basis of the list was to be afforded to the petitioner (1st respondent herein). 4. There is a fundamental error in the assumption by the court as we now see. The learned Solicitor General has drawn our attention to the fact that in the present case the petitioner himself has alleged in his writ petition against the provisional list and the foundational equation made therein and he had made a representation to the Central Government which was rejected. The State Government thereafter prepared a final list. In paragraph 22 of the counter affidavit of the Central Government it has been pointed out that the Union of India had determined the question finally after taking into consideration all the representations made by the concerned official ..... and therefore, the petitioner cannot invite this Honble Court to examine the matter as if in an appeal against the order passed by this respondent (Union of India). 5. We see no. force in this contention. Actually Shankariahs case (1965) 2 Mys LJ 40 depended on its own facts and proceeded on a concession. As has been pointed out later by this Court in Union of India v. R. D. Nanjiah (1976) 4 SCC 412 : (1977 Lab IC 7) speaking for the Court Beg, J. there pointed out : We think that the concession in Shankariahs case was confined to the facts of that particular case. There the list was provisional. The most that could be urged, in the light of decisions of this Court, is that a person whose seniority is to be determined under S. 115 of the Act must be given an opportunity to object to the proposed assignment of place to him in the seniority list. As already observed above, the petitioner had ample opportunity to do that. Hence, the principle recognised in Shankariahs case was not applicable to such a case. 6. It is thus plain that Shankariahs case (1965) 2 Mys LJ 40 cannot be of any assistance to the first respondent. Here we have a final list, not a provisional one. Here the party affected has been heard and the Central Government has decided and therefore there is no. meaning in affording a second opportunity to be heard or to make representations. In this view we set aside the decision of the Karnataka High Court and allow the appeal. 7. We are handicapped in the hearing of this appeal by the absence of the 1st respondent for reasons which we are unable to guess. But the learned Solicitor-General has fairly taken us through the facts, pro and con. Even so, we make it clear that this judgment shall not preclude the 1st respondent from challenging the final inter-State seniority list on any ground or infirmity that may appertain to the final list qua final list. 8.
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4. There is a fundamental error in the assumption by the court as we now see. The learned Solicitor General has drawn our attention to the fact that in the present case the petitioner himself has alleged in his writ petition against the provisional list and the foundational equation made therein and he had made a representation to the Central Government which was rejected. The State Government thereafter prepared a final list. In paragraph 22 of the counter affidavit of the Central Government it has been pointed out that the Union of India had determined the question finally after taking into consideration all the representations made by the concerned official ..... and therefore, the petitioner cannot invite this Honble Court to examine the matter as if in an appeal against the order passed by this respondent (Union of India).5. We see no. force in this contention. Actually Shankariahs case (1965) 2 Mys LJ 40 depended on its own facts and proceeded on a concession6. It is thus plain that Shankariahs case (1965) 2 Mys LJ 40 cannot be of any assistance to the first respondent. Here we have a final list, not a provisional one. Here the party affected has been heard and the Central Government has decided and therefore there is no. meaning in affording a second opportunity to be heard or to make representations. In this view we set aside the decision of the Karnataka High Court and allow the appeal7. We are handicapped in the hearing of this appeal by the absence of the 1st respondent for reasons which we are unable to guess. But the learnedl has fairly taken us through the facts, pro and con. Even so, we make it clear that this judgment shall not preclude the 1st respondent from challenging the finale seniority list on any ground or infirmity that may appertain to the final list qua final list.
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Nasu Sheikh & Others Vs. State of Bihar | had been caught was a kacha road running from west to east and was known as Jalalpur-Tildanga Road. Tildanga was within the State of West Bengal at a distance of 75 yards towards east from the place where the accused persons were surrounded and caught. The learned Judge of the High Court felt that the police officer had not been cross-examined on the point whether in between the place where the carts were seized and the West Bengal border there lay any other village. It was pointed out that the appellants were residents of West Bengal.5. Learned counsel for the appellants has invited our attention to the statement of A.S.I., S. K. Jha who was posted at Barharwah police station on December 23, 1963. The following portion of his statement in cross examination may be reproduced : "I do not remember of any village known as Faridpur within Barharwa P. S. Village Ladhopara is about 50 yards from the place where I caught the accused persons, i.e., the P.O.I do not remember the names of villages, if any, lying within the four sides of Village Lodhapara but there are certain villages towards west. I do not exactly remember of any village on other side of Ladhopara. I cant say if there is any village towards east of Ladhopara." 6. A great deal of emphasis has been laid on the manner in which the aforesaid officer tried not to give the correct information about the geographical situation of village Faridpur. It had also been pointed out and that fact has not been disputed on behalf of the State that no proper plan was prepared showing the distance between the place where the carts were intercepted and seized and the West Bengal border or the exact location giving the surrounding villages. It is no where to be found in the statement of A.S.I., Jha that there was no road leading from the place where the carts were seized to village Faridpur. The statement on which the High Court relied does not exclude the possibility of some road leading to village Faridpur. The most serious infirmity, in our opinion, is the omission to prepare a proper plan showing the distance from the border of West Bengal as also the exact situation from where the carts were seized. It has not been explained by the prosecution why such a plan was not prepared. Even P.W. 4 Ismail Sheikh had stated that there was one Rasta to the east for going to Faridpur from Lodhapara and that the appellants had land in Jalalpur and had been seen selling paddy in Faridpur. It was also stated by P.W. 3 Ezhar Hussain that Faridpur was east of Lodhapara village and Tildanga and Faridpur were adjacent villages. Faridpur was also situate within the jurisdiction of police station Barharwa. The evidence of A.S.I. Jha on which the High Court mainly relied was accepted without appreciating that he was bound to know the exact location of Faridpur and yet he stated that he did not remember whether there was any village known as Faridpur within his own police station. In our judgment the police officer made an attempt to deliberately withhold a fact which was bound to be within his knowledge as he was posted to police station Barharwa. 7. The Bihar Foodgrains (Movement Control) Order, 1957, was promulgated in exercise of the power conferred by Section 3 of the Essential Commodities Act, 1955. Clause 3 of the Order provides that "no person shall export or attempt to export or abet the export of foodgrains except under and in accordance with a permit issued by the State Government in this behalf". It is true that the appellants did not possess any permit but at the earliest opportunity while they were well within the border of the State of Bihar they had explained that they were taking the paddy to village Faridpur. In the absence of a proper plan and the information in respect of the correct geographical position of Faridpur which was suppressed by A.S.I. Jha on whose testimony the High Court largely relied it was not safe to convict the appellants of a breach of Clause 3 of the Order. 8. It is noteworthy that even in the seizure list Exts. 1/1 and 1/2 there was no mention of the distance between the State of West Bengal and the place where the carts were intercepted. In the first information report the distance was not given. According to prosecution witnesses Ezhar Hussain and Ismail Sheikh the distance was about half a mile. It is a highly unsatisfactory feature of this case that the distance had not been given either in the first information report or in any of the other documents which were contemporanaeously prepared. We say this because the question of distance assumes importance in the light of the decision of this Court in Malkiat Singh and Another v. State of Punjab. ((1969) 2 SCR 663 ). In that case also the question was whether an offence had been committed under Section 7 of the Essential Commodities Act, read with paragraph 3 of the Punjab Paddy (Export Control) Order, 1959. It was held that as the paddy was seized while inside the Punjab boundary there was no export of paddy outside the State of Punjab. It was observed that it was possible that the appellants might have changed their mind at any time between the place seizure and the State Boundary. It is true that there the distance where the lorry containing the paddy was stopped was 18 miles from the Punjab-Delhi boundary. In the present case the distance certainly appears to be much less but in the absence of proper contemporaneous documents which ought to have been prepared and the omission from the first information report of the distance we are not satisfied that the possibility that the appellants might have changed their minds between the place of seizure and the boundary of West Bengal can be excluded. | 1[ds]6. A great deal of emphasis has been laid on the manner in which the aforesaid officer tried not to give the correct information about the geographical situation of village Faridpur. It had also been pointed out and that fact has not been disputed on behalf of the State that no proper plan was prepared showing the distance between the place where the carts were intercepted and seized and the West Bengal border or the exact location giving the surrounding villages.It is no where to be found in the statement of A.S.I., Jha that there was no road leading from the place where the carts were seized to village Faridpur. The statement on which the High Court relied does not exclude the possibility of some road leading to village Faridpur. The most serious infirmity, in our opinion, is the omission to prepare a proper plan showing the distance from the border of West Bengal as also the exact situation from where the carts were seized. It has not been explained by the prosecution why such a plan was not prepared. Even P.W. 4 Ismail Sheikh had stated that there was one Rasta to the east for going to Faridpur from Lodhapara and that the appellants had land in Jalalpur and had been seen selling paddy in Faridpur. It was also stated by P.W. 3 Ezhar Hussain that Faridpur was east of Lodhapara village and Tildanga and Faridpur were adjacent villages. Faridpur was also situate within the jurisdiction of police station Barharwa. The evidence of A.S.I. Jha on which the High Court mainly relied was accepted without appreciating that he was bound to know the exact location of Faridpur and yet he stated that he did not remember whether there was any village known as Faridpur within his own police station. In our judgment the police officer made an attempt to deliberately withhold a fact which was bound to be within his knowledge as he was posted to police station Barharwa7. The Bihar Foodgrains (Movement Control) Order, 1957, was promulgated in exercise of the power conferred by Section 3 of the Essential Commodities Act, 1955. Clause 3 of the Order provides that "no person shall export or attempt to export or abet the export of foodgrains except under and in accordance with a permit issued by the State Government in this behalf". It is true that the appellants did not possess any permit but at the earliest opportunity while they were well within the border of the State of Bihar they had explained that they were taking the paddy to village Faridpur. In the absence of a proper plan and the information in respect of the correct geographical position of Faridpur which was suppressed by A.S.I. Jha on whose testimony the High Court largely relied it was not safe to convict the appellants of a breach of Clause 3 of the Order8. It is noteworthy that even in the seizure list Exts. 1/1 and 1/2 there was no mention of the distance between the State of West Bengal and the place where the carts were intercepted. In the first information report the distance was not given. According to prosecution witnesses Ezhar Hussain and Ismail Sheikh the distance was about half a mile. It is a highly unsatisfactory feature of this case that the distance had not been given either in the first information report or in any of the other documents which were contemporanaeously prepared. We say this because the question of distance assumes importance in the light of the decision of this Court in Malkiat Singh and Another v. State of Punjab. ((1969) 2 SCR 663 ). In that case also the question was whether an offence had been committed under Section 7 of the Essential Commodities Act, read with paragraph 3 of the Punjab Paddy (Export Control) Order, 1959. It was held that as the paddy was seized while inside the Punjab boundary there was no export of paddy outside the State of Punjab. It was observed that it was possible that the appellants might have changed their mind at any time between the place seizure and the State Boundary. It is true that there the distance where the lorry containing the paddy was stopped was 18 miles from thei boundary. In the present case the distance certainly appears to be much less but in the absence of proper contemporaneous documents which ought to have been prepared and the omission from the first information report of the distance we are not satisfied that the possibility that the appellants might have changed their minds between the place of seizure and the boundary of West Bengal can be excluded. | 1 | 1,596 | 830 | ### 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:
had been caught was a kacha road running from west to east and was known as Jalalpur-Tildanga Road. Tildanga was within the State of West Bengal at a distance of 75 yards towards east from the place where the accused persons were surrounded and caught. The learned Judge of the High Court felt that the police officer had not been cross-examined on the point whether in between the place where the carts were seized and the West Bengal border there lay any other village. It was pointed out that the appellants were residents of West Bengal.5. Learned counsel for the appellants has invited our attention to the statement of A.S.I., S. K. Jha who was posted at Barharwah police station on December 23, 1963. The following portion of his statement in cross examination may be reproduced : "I do not remember of any village known as Faridpur within Barharwa P. S. Village Ladhopara is about 50 yards from the place where I caught the accused persons, i.e., the P.O.I do not remember the names of villages, if any, lying within the four sides of Village Lodhapara but there are certain villages towards west. I do not exactly remember of any village on other side of Ladhopara. I cant say if there is any village towards east of Ladhopara." 6. A great deal of emphasis has been laid on the manner in which the aforesaid officer tried not to give the correct information about the geographical situation of village Faridpur. It had also been pointed out and that fact has not been disputed on behalf of the State that no proper plan was prepared showing the distance between the place where the carts were intercepted and seized and the West Bengal border or the exact location giving the surrounding villages. It is no where to be found in the statement of A.S.I., Jha that there was no road leading from the place where the carts were seized to village Faridpur. The statement on which the High Court relied does not exclude the possibility of some road leading to village Faridpur. The most serious infirmity, in our opinion, is the omission to prepare a proper plan showing the distance from the border of West Bengal as also the exact situation from where the carts were seized. It has not been explained by the prosecution why such a plan was not prepared. Even P.W. 4 Ismail Sheikh had stated that there was one Rasta to the east for going to Faridpur from Lodhapara and that the appellants had land in Jalalpur and had been seen selling paddy in Faridpur. It was also stated by P.W. 3 Ezhar Hussain that Faridpur was east of Lodhapara village and Tildanga and Faridpur were adjacent villages. Faridpur was also situate within the jurisdiction of police station Barharwa. The evidence of A.S.I. Jha on which the High Court mainly relied was accepted without appreciating that he was bound to know the exact location of Faridpur and yet he stated that he did not remember whether there was any village known as Faridpur within his own police station. In our judgment the police officer made an attempt to deliberately withhold a fact which was bound to be within his knowledge as he was posted to police station Barharwa. 7. The Bihar Foodgrains (Movement Control) Order, 1957, was promulgated in exercise of the power conferred by Section 3 of the Essential Commodities Act, 1955. Clause 3 of the Order provides that "no person shall export or attempt to export or abet the export of foodgrains except under and in accordance with a permit issued by the State Government in this behalf". It is true that the appellants did not possess any permit but at the earliest opportunity while they were well within the border of the State of Bihar they had explained that they were taking the paddy to village Faridpur. In the absence of a proper plan and the information in respect of the correct geographical position of Faridpur which was suppressed by A.S.I. Jha on whose testimony the High Court largely relied it was not safe to convict the appellants of a breach of Clause 3 of the Order. 8. It is noteworthy that even in the seizure list Exts. 1/1 and 1/2 there was no mention of the distance between the State of West Bengal and the place where the carts were intercepted. In the first information report the distance was not given. According to prosecution witnesses Ezhar Hussain and Ismail Sheikh the distance was about half a mile. It is a highly unsatisfactory feature of this case that the distance had not been given either in the first information report or in any of the other documents which were contemporanaeously prepared. We say this because the question of distance assumes importance in the light of the decision of this Court in Malkiat Singh and Another v. State of Punjab. ((1969) 2 SCR 663 ). In that case also the question was whether an offence had been committed under Section 7 of the Essential Commodities Act, read with paragraph 3 of the Punjab Paddy (Export Control) Order, 1959. It was held that as the paddy was seized while inside the Punjab boundary there was no export of paddy outside the State of Punjab. It was observed that it was possible that the appellants might have changed their mind at any time between the place seizure and the State Boundary. It is true that there the distance where the lorry containing the paddy was stopped was 18 miles from the Punjab-Delhi boundary. In the present case the distance certainly appears to be much less but in the absence of proper contemporaneous documents which ought to have been prepared and the omission from the first information report of the distance we are not satisfied that the possibility that the appellants might have changed their minds between the place of seizure and the boundary of West Bengal can be excluded.
### Response:
1
### Explanation:
6. A great deal of emphasis has been laid on the manner in which the aforesaid officer tried not to give the correct information about the geographical situation of village Faridpur. It had also been pointed out and that fact has not been disputed on behalf of the State that no proper plan was prepared showing the distance between the place where the carts were intercepted and seized and the West Bengal border or the exact location giving the surrounding villages.It is no where to be found in the statement of A.S.I., Jha that there was no road leading from the place where the carts were seized to village Faridpur. The statement on which the High Court relied does not exclude the possibility of some road leading to village Faridpur. The most serious infirmity, in our opinion, is the omission to prepare a proper plan showing the distance from the border of West Bengal as also the exact situation from where the carts were seized. It has not been explained by the prosecution why such a plan was not prepared. Even P.W. 4 Ismail Sheikh had stated that there was one Rasta to the east for going to Faridpur from Lodhapara and that the appellants had land in Jalalpur and had been seen selling paddy in Faridpur. It was also stated by P.W. 3 Ezhar Hussain that Faridpur was east of Lodhapara village and Tildanga and Faridpur were adjacent villages. Faridpur was also situate within the jurisdiction of police station Barharwa. The evidence of A.S.I. Jha on which the High Court mainly relied was accepted without appreciating that he was bound to know the exact location of Faridpur and yet he stated that he did not remember whether there was any village known as Faridpur within his own police station. In our judgment the police officer made an attempt to deliberately withhold a fact which was bound to be within his knowledge as he was posted to police station Barharwa7. The Bihar Foodgrains (Movement Control) Order, 1957, was promulgated in exercise of the power conferred by Section 3 of the Essential Commodities Act, 1955. Clause 3 of the Order provides that "no person shall export or attempt to export or abet the export of foodgrains except under and in accordance with a permit issued by the State Government in this behalf". It is true that the appellants did not possess any permit but at the earliest opportunity while they were well within the border of the State of Bihar they had explained that they were taking the paddy to village Faridpur. In the absence of a proper plan and the information in respect of the correct geographical position of Faridpur which was suppressed by A.S.I. Jha on whose testimony the High Court largely relied it was not safe to convict the appellants of a breach of Clause 3 of the Order8. It is noteworthy that even in the seizure list Exts. 1/1 and 1/2 there was no mention of the distance between the State of West Bengal and the place where the carts were intercepted. In the first information report the distance was not given. According to prosecution witnesses Ezhar Hussain and Ismail Sheikh the distance was about half a mile. It is a highly unsatisfactory feature of this case that the distance had not been given either in the first information report or in any of the other documents which were contemporanaeously prepared. We say this because the question of distance assumes importance in the light of the decision of this Court in Malkiat Singh and Another v. State of Punjab. ((1969) 2 SCR 663 ). In that case also the question was whether an offence had been committed under Section 7 of the Essential Commodities Act, read with paragraph 3 of the Punjab Paddy (Export Control) Order, 1959. It was held that as the paddy was seized while inside the Punjab boundary there was no export of paddy outside the State of Punjab. It was observed that it was possible that the appellants might have changed their mind at any time between the place seizure and the State Boundary. It is true that there the distance where the lorry containing the paddy was stopped was 18 miles from thei boundary. In the present case the distance certainly appears to be much less but in the absence of proper contemporaneous documents which ought to have been prepared and the omission from the first information report of the distance we are not satisfied that the possibility that the appellants might have changed their minds between the place of seizure and the boundary of West Bengal can be excluded.
|
Snowcem India Limited & Others Vs. Union of India & Others | other public company for a period of five years from the date on which such public company, in which he is a director, failed to file annual accounts and annual returns or has failed to repay its deposit or interest or redeem its debentures on due date or pay dividend.14.We have heard learned counsel for the parties at some length regarding validity and legality of the said amendment. In view of the Statement of Objects and Reasons of enactment of section 274(1)(g) of the Act, it is abundantly clear that this amendment has been incorporated for better corporate governance and protection of the investment of the depositors. In the instant case, the company has collected huge deposits from small and poor investors, who had deposited their lifetime savings with this company, in the hope of getting reasonable interest on their deposits. It is expected that such amendment would ensure transparency in the functioning of the company and would lead to the protection of the investment of investors and better corporate governance. According to the wisdom of the Legislature, this can be achieved by enhancing penalty/punishment for contravention so as to ensure better compliance with the provisions of the Companies Act, 1956.15.We fail to appreciate how article 21 of the Constitution is attracted, which refers to right to live. The challenge seems to be totally without any merit. We would appreciate if the submission is made on behalf of the small investors, who had deposited their lifetime savings with the petitioners and similar other companies where these small investors do not receive either the principal or interest and consequently, their children may not be provided education and/or medical treatment affecting their families fundamental rights guaranteed under article 21 of the Constitution. Therefore, if at all there is violation of article 21, it is the violation of fundamental right under article 21 of the children and their parents.16.Similarly, we are unable to comprehend how the amendment of section 274(1)(g) violates the petitioners fundamental rights guaranteed under article 19(1)(g) of the Constitution. This amendment does not debar the petitioners from carrying on any business, trade or occupation, only that the persons have been rendered incapable of becoming directors in other companies. Perhaps, this amendment became imperative in view of a large number of companies becoming defaulters. It is a matter of common knowledge that millions of small investors, who had deposited their lifetime savings with these companies, in order to get reasonable returns, have been totally ruined. In most cases, they neither receive the principal amount nor any interest. A number of such petitions are pending in various courts of the country. We find no merit in the submission of the petitioners that this amendment, in any manner, violates the petitioners fundamental rights guaranteed under article 19(1)(g) of the Constitution.17.We do not see any merit in the petitioners submission that this amendment, in any manner, violates the rules of natural justice. Once the company failed to repay the interest or the principal amount, there is nothing required, but surely, when this fact is not disputed by the company, the challenge that this amendment being violative of rules of natural justice becomes hollow and without any merit.18.The petitioners submission is that no distinction is made between its failure and failure beyond the means of the directors of the company. It is pertinent to note that section 274(1)(g) does not penalise the company; it is only the directors that are rendered incapable of functioning as directors for certain period. The amendment has been carried out primarily to ensure that directors of the company should discharge their obligation properly. They should be more vigilant and careful and ensure that investors do not lose their lifetime savings.19.This would also, to some extent, ensure that the directors should not take loan and see that no loan, more than their liability to repay, is taken.20.We see no force in the submission of the petitioners that the section does not make any discrimination between director and non-director or executive and non-executive director. Once any person becomes a director, it is his primary duty to ensure that there is proper governance and investors money is protected.21.We find no merit in the submission of the petitioners that this amendment is violative of article 14 of the Constitution. The provision of section 274(1)(g) does not make distinction between the Government-nominated directors and other directors. The Government of India, Ministry of Law, Justice and Company Affairs, letter dated March 22, 2003, has interpreted the composite effect of the non obstante clause in the statute of public financial institutions like Industrial Development Bank of India, Life Insurance Corporation of India, Unit Trust of India, etc., and gave an opinion that the directors appointed by these institutions cannot be disqualified as appointment as directors is by virtue of section 274(1)(g) and also directors appointed on the boards of assisted companies, etc.22.Regarding the grievance of the petitioners that the name of the disqualified directors are given on the website, it is desirable for the public to know the names of some defaulting directors of the other companies, so that they would be wary of such persons who are directors of such companies. This can also be justified in the large public interest.23.The petitioners have placed reliance on the judgment of the Calcutta High Court in Writ Petition No. 199 of 2003 in Duncan Industries Ltd. The court passed ad interim order because the bondholders gave their consent for restructuring of the repayment schedule and the Ministry of Finance also gave their approval for restructuring the repayment schedule and extended time to make payment to the bondholders till December 31, 2010. The facts of that case are not applicable to the facts of the present case.24.It may be pertinent to mention that this Court in Cricket Club of India Ltd. v. Madhav L. Apte 1975 (45) Comp Cas 574, by the judgment dated August 30, 1974, had upheld the provisions of section 274(3) of the Companies Act, 1956. | 0[ds]14.We have heard learned counsel for the parties at some length regarding validity and legality of the said amendment. In view of the Statement of Objects and Reasons of enactment of section 274(1)(g) of the Act, it is abundantly clear that this amendment has been incorporated for better corporate governance and protection of the investment of the depositors. In the instant case, the company has collected huge deposits from small and poor investors, who had deposited their lifetime savings with this company, in the hope of getting reasonable interest on their deposits. It is expected that such amendment would ensure transparency in the functioning of the company and would lead to the protection of the investment of investors and better corporate governance. According to the wisdom of the Legislature, this can be achieved by enhancing penalty/punishment for contravention so as to ensure better compliance with the provisions of the Companies Act, 1956.15.We fail to appreciate how article 21 of the Constitution is attracted, which refers to right to live. The challenge seems to be totally without any merit. We would appreciate if the submission is made on behalf of the small investors, who had deposited their lifetime savings with the petitioners and similar other companies where these small investors do not receive either the principal or interest and consequently, their children may not be provided education and/or medical treatment affecting their families fundamental rights guaranteed under article 21 of the Constitution. Therefore, if at all there is violation of article 21, it is the violation of fundamental right under article 21 of the children and their parents.16.Similarly, we are unable to comprehend how the amendment of section 274(1)(g) violates the petitioners fundamental rights guaranteed under article 19(1)(g) of the Constitution. This amendment does not debar the petitioners from carrying on any business, trade or occupation, only that the persons have been rendered incapable of becoming directors in other companies. Perhaps, this amendment became imperative in view of a large number of companies becoming defaulters. It is a matter of common knowledge that millions of small investors, who had deposited their lifetime savings with these companies, in order to get reasonable returns, have been totally ruined. In most cases, they neither receive the principal amount nor any interest. A number of such petitions are pending in various courts of the country. We find no merit in the submission of the petitioners that this amendment, in any manner, violates the petitioners fundamental rights guaranteed under article 19(1)(g) of the Constitution.17.We do not see any merit in the petitioners submission that this amendment, in any manner, violates the rules of natural justice. Once the company failed to repay the interest or the principal amount, there is nothing required, but surely, when this fact is not disputed by the company, the challenge that this amendment being violative of rules of natural justice becomes hollow and without anysee no force in the submission of the petitioners that the section does not make any discrimination between director andor executive anddirector. Once any person becomes a director, it is his primary duty to ensure that there is proper governance and investors money is protected.21.We find no merit in the submission of the petitioners that this amendment is violative of article 14 of the Constitution. The provision of section 274(1)(g) does not make distinction between thedirectors and other directors. The Government of India, Ministry of Law, Justice and Company Affairs, letter dated March 22, 2003, has interpreted the composite effect of the non obstante clause in the statute of public financial institutions like Industrial Development Bank of India, Life Insurance Corporation of India, Unit Trust of India, etc., and gave an opinion that the directors appointed by these institutions cannot be disqualified as appointment as directors is by virtue of section 274(1)(g) and also directors appointed on the boards of assisted companies, etc.22.Regarding the grievance of the petitioners that the name of the disqualified directors are given on the website, it is desirable for the public to know the names of some defaulting directors of the other companies, so that they would be wary of such persons who are directors of such companies. This can also be justified in the large public interest.23.The petitioners have placed reliance on the judgment of the Calcutta High Court in Writ Petition No. 199 of 2003 in Duncan Industries Ltd. The court passed ad interim order because the bondholders gave their consent for restructuring of the repayment schedule and the Ministry of Finance also gave their approval for restructuring the repayment schedule and extended time to make payment to the bondholders till December 31, 2010. The facts of that case are not applicable to the facts of the present case. | 0 | 2,862 | 892 | ### 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:
other public company for a period of five years from the date on which such public company, in which he is a director, failed to file annual accounts and annual returns or has failed to repay its deposit or interest or redeem its debentures on due date or pay dividend.14.We have heard learned counsel for the parties at some length regarding validity and legality of the said amendment. In view of the Statement of Objects and Reasons of enactment of section 274(1)(g) of the Act, it is abundantly clear that this amendment has been incorporated for better corporate governance and protection of the investment of the depositors. In the instant case, the company has collected huge deposits from small and poor investors, who had deposited their lifetime savings with this company, in the hope of getting reasonable interest on their deposits. It is expected that such amendment would ensure transparency in the functioning of the company and would lead to the protection of the investment of investors and better corporate governance. According to the wisdom of the Legislature, this can be achieved by enhancing penalty/punishment for contravention so as to ensure better compliance with the provisions of the Companies Act, 1956.15.We fail to appreciate how article 21 of the Constitution is attracted, which refers to right to live. The challenge seems to be totally without any merit. We would appreciate if the submission is made on behalf of the small investors, who had deposited their lifetime savings with the petitioners and similar other companies where these small investors do not receive either the principal or interest and consequently, their children may not be provided education and/or medical treatment affecting their families fundamental rights guaranteed under article 21 of the Constitution. Therefore, if at all there is violation of article 21, it is the violation of fundamental right under article 21 of the children and their parents.16.Similarly, we are unable to comprehend how the amendment of section 274(1)(g) violates the petitioners fundamental rights guaranteed under article 19(1)(g) of the Constitution. This amendment does not debar the petitioners from carrying on any business, trade or occupation, only that the persons have been rendered incapable of becoming directors in other companies. Perhaps, this amendment became imperative in view of a large number of companies becoming defaulters. It is a matter of common knowledge that millions of small investors, who had deposited their lifetime savings with these companies, in order to get reasonable returns, have been totally ruined. In most cases, they neither receive the principal amount nor any interest. A number of such petitions are pending in various courts of the country. We find no merit in the submission of the petitioners that this amendment, in any manner, violates the petitioners fundamental rights guaranteed under article 19(1)(g) of the Constitution.17.We do not see any merit in the petitioners submission that this amendment, in any manner, violates the rules of natural justice. Once the company failed to repay the interest or the principal amount, there is nothing required, but surely, when this fact is not disputed by the company, the challenge that this amendment being violative of rules of natural justice becomes hollow and without any merit.18.The petitioners submission is that no distinction is made between its failure and failure beyond the means of the directors of the company. It is pertinent to note that section 274(1)(g) does not penalise the company; it is only the directors that are rendered incapable of functioning as directors for certain period. The amendment has been carried out primarily to ensure that directors of the company should discharge their obligation properly. They should be more vigilant and careful and ensure that investors do not lose their lifetime savings.19.This would also, to some extent, ensure that the directors should not take loan and see that no loan, more than their liability to repay, is taken.20.We see no force in the submission of the petitioners that the section does not make any discrimination between director and non-director or executive and non-executive director. Once any person becomes a director, it is his primary duty to ensure that there is proper governance and investors money is protected.21.We find no merit in the submission of the petitioners that this amendment is violative of article 14 of the Constitution. The provision of section 274(1)(g) does not make distinction between the Government-nominated directors and other directors. The Government of India, Ministry of Law, Justice and Company Affairs, letter dated March 22, 2003, has interpreted the composite effect of the non obstante clause in the statute of public financial institutions like Industrial Development Bank of India, Life Insurance Corporation of India, Unit Trust of India, etc., and gave an opinion that the directors appointed by these institutions cannot be disqualified as appointment as directors is by virtue of section 274(1)(g) and also directors appointed on the boards of assisted companies, etc.22.Regarding the grievance of the petitioners that the name of the disqualified directors are given on the website, it is desirable for the public to know the names of some defaulting directors of the other companies, so that they would be wary of such persons who are directors of such companies. This can also be justified in the large public interest.23.The petitioners have placed reliance on the judgment of the Calcutta High Court in Writ Petition No. 199 of 2003 in Duncan Industries Ltd. The court passed ad interim order because the bondholders gave their consent for restructuring of the repayment schedule and the Ministry of Finance also gave their approval for restructuring the repayment schedule and extended time to make payment to the bondholders till December 31, 2010. The facts of that case are not applicable to the facts of the present case.24.It may be pertinent to mention that this Court in Cricket Club of India Ltd. v. Madhav L. Apte 1975 (45) Comp Cas 574, by the judgment dated August 30, 1974, had upheld the provisions of section 274(3) of the Companies Act, 1956.
### Response:
0
### Explanation:
14.We have heard learned counsel for the parties at some length regarding validity and legality of the said amendment. In view of the Statement of Objects and Reasons of enactment of section 274(1)(g) of the Act, it is abundantly clear that this amendment has been incorporated for better corporate governance and protection of the investment of the depositors. In the instant case, the company has collected huge deposits from small and poor investors, who had deposited their lifetime savings with this company, in the hope of getting reasonable interest on their deposits. It is expected that such amendment would ensure transparency in the functioning of the company and would lead to the protection of the investment of investors and better corporate governance. According to the wisdom of the Legislature, this can be achieved by enhancing penalty/punishment for contravention so as to ensure better compliance with the provisions of the Companies Act, 1956.15.We fail to appreciate how article 21 of the Constitution is attracted, which refers to right to live. The challenge seems to be totally without any merit. We would appreciate if the submission is made on behalf of the small investors, who had deposited their lifetime savings with the petitioners and similar other companies where these small investors do not receive either the principal or interest and consequently, their children may not be provided education and/or medical treatment affecting their families fundamental rights guaranteed under article 21 of the Constitution. Therefore, if at all there is violation of article 21, it is the violation of fundamental right under article 21 of the children and their parents.16.Similarly, we are unable to comprehend how the amendment of section 274(1)(g) violates the petitioners fundamental rights guaranteed under article 19(1)(g) of the Constitution. This amendment does not debar the petitioners from carrying on any business, trade or occupation, only that the persons have been rendered incapable of becoming directors in other companies. Perhaps, this amendment became imperative in view of a large number of companies becoming defaulters. It is a matter of common knowledge that millions of small investors, who had deposited their lifetime savings with these companies, in order to get reasonable returns, have been totally ruined. In most cases, they neither receive the principal amount nor any interest. A number of such petitions are pending in various courts of the country. We find no merit in the submission of the petitioners that this amendment, in any manner, violates the petitioners fundamental rights guaranteed under article 19(1)(g) of the Constitution.17.We do not see any merit in the petitioners submission that this amendment, in any manner, violates the rules of natural justice. Once the company failed to repay the interest or the principal amount, there is nothing required, but surely, when this fact is not disputed by the company, the challenge that this amendment being violative of rules of natural justice becomes hollow and without anysee no force in the submission of the petitioners that the section does not make any discrimination between director andor executive anddirector. Once any person becomes a director, it is his primary duty to ensure that there is proper governance and investors money is protected.21.We find no merit in the submission of the petitioners that this amendment is violative of article 14 of the Constitution. The provision of section 274(1)(g) does not make distinction between thedirectors and other directors. The Government of India, Ministry of Law, Justice and Company Affairs, letter dated March 22, 2003, has interpreted the composite effect of the non obstante clause in the statute of public financial institutions like Industrial Development Bank of India, Life Insurance Corporation of India, Unit Trust of India, etc., and gave an opinion that the directors appointed by these institutions cannot be disqualified as appointment as directors is by virtue of section 274(1)(g) and also directors appointed on the boards of assisted companies, etc.22.Regarding the grievance of the petitioners that the name of the disqualified directors are given on the website, it is desirable for the public to know the names of some defaulting directors of the other companies, so that they would be wary of such persons who are directors of such companies. This can also be justified in the large public interest.23.The petitioners have placed reliance on the judgment of the Calcutta High Court in Writ Petition No. 199 of 2003 in Duncan Industries Ltd. The court passed ad interim order because the bondholders gave their consent for restructuring of the repayment schedule and the Ministry of Finance also gave their approval for restructuring the repayment schedule and extended time to make payment to the bondholders till December 31, 2010. The facts of that case are not applicable to the facts of the present case.
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Sardar Samsher Singh Vs. Raja Sardar Narain And Others | whatever the interest due on the contract may amount to, it will be limited to the amount of the principal found still remaining due, on the date of the application. When the Legislature goes further and provides that if prior to the application a decree has been made on the basis of the loan the findings of the Court which passed the decree shall be accepted but forbids such acceptance if such finding is inconsistent with the provisions of S. 14, the intention clearly is that the fact that there has been a decree will not make any difference as regards the duty of the Special Judge to give the applicant the benefit of the provisions of S. 14. When the Court passed the decree, there was no application under the Encumbered Estates Act, and so, there could be no question of the Court then complying with the provisions of S. 14(4) (a). Even so, when the Special Judge has to reject such of the findings as are "inconsistent" with S. 14, he must find out the effect of the several findings of the Court to ascertain whether there is such inconsistency. 11. Where the consequence of the finding of the court which passed the decree is that court which passed the decree is that the provisions of S. 14(4) (a) about the amount of interest due on the date of the application not exceeding the unpaid principal on that date are contravened, the finding should be held to be inconsistent with those provisions. In saying that if in the decree the court did not allow interest as on the date of the suit to exceed the principal then remaining due there is no inconsistency with S. 14(4) (a), the respondents counsel is in effect asking us to read for the words "in so far as they are inconsistent with the provisions of S. 14" the words "in so far as they would have been inconsistent with the provisions of S. 14, if the date of the institution of the suit be deemed to be the date of the application under S. 4". For this we cannot find any justification. Not only would this defeat the beneficial purpose of the legislation under S. 14(4)(a); but this will also not be the natural meaning of the words "in so far as they are inconsistent with the provisions of S. 14." 12. The Chief Courts view that the Special Judge has merely to see whether the Civil Court that passed the decree could have passed the decree which it did pass if that court had to apply the provisions of S. 14, treating the date of the institution of the suit as the date of the application cannot therefore be accepted as correct.The same view had been taken by the Chief Court of Oudh in an earlier decision, of Ramsagar Prasad v. Mst. Shayama, AIR 1939 Oudh 75. A Full Bench of the Allahabad High Court had in Rukun Uddin v. Lachmi Narain ILR (1945) All 307 : (AIR 1945 All 113 ) to consider the question whether a finding in a decree made by a civil court that the creditor is entitled to interest only at the rates specified in U. P. Agriculturists Relief Act was in consistent with the provisions of S. 14 of the U. P. Encumbered Estates Act and was therefore not binding on the Special Judge hearing an application under the U. P. Encumbered Estates Act. They held that such a finding must be held to be inconsistent with the provisions of S. 14 and could therefore not be binding on the Special Judge. There can be no doubt about the correctness of this view, for, as has been pointed out above S. 14(4) (c) provides that the provisions of the U. P. Agriculturists Relief Act shall not be applicable to proceedings under the Encumbered Estates Act. One of the learned Judges Mr. Justice Verma referred with approval in the course of his judgment to the view taken in Ramsagar Prasads Case, AIR 1939 Oudh 75.For the reasons mentioned earlier however we are of opinion that the view in Ramsagar Prasads Case, AIR 1939 Oudh 75 which has been followed by the Chief Court in the present case is wrong. 13. Our conclusion therefore is that the Special Judge is even where there has been a decree by a civil court in respect of a loan bound to follow the provisions of S. 14(4)(a) of the Act so that the amount of interest which he can hold to be due on the date of the application must not exceed the portion of the principal found to be due on the date of the application. Accordingly in the present case the Special Judge should have held the amount of interest due on the date of the application, i.e., October 26, 1936, to amount to rupees one lakh only, that being the principal which was still due on that date. Under the provisions of sub-S. 7 of S. 14 the Special Judge has to "pass a simple money decree for such amount, together with any costs which he may allow in respect of proceedings in his court and of proceedings in any civil court stayed under the provisions of this Act, together with pendente lite and future interest at a rate not greater than the rate specified in S. 27."It was in view of this provision that the special Judge and High Court allowed interest at the rate of 4 per cent per annum. The proper decree the Special Judge should have passed therefore was one for rupees two lakhs for the loan with permissible interest, plus Rs. 4,314-2-9, Rs. 51-3-0 and rupee one on account of costs, that is, for a total sum of Rs. 2,04,366-5-9 with proportionate costs with interest pendente lite and future interest at the rate of 4 per cent. per annum simple from the date of the application, i.e., October 26, 1936, till realisation. | 1[ds]On behalf of the decree-holder-claimant it is contended that all that is necessary to save inconsistency with Section 14(4) (a) is that the principle that the amount of interest shall not exceed the amount of the unpaid principal has been followed, in passing the decree and the fact that the result of the finding would be that on the date of the application u/s. 4 of the Act the interest due would exceed the portion of the principal unpaid on such date is of no consequenceThis contention cannot in our opinion be accepted10. The requirement of sub-s. 4(a) of S. 14 is that "the amount of interest held to be due on the date of the application shall not exceed that portion of the principal which may still be found to be due on the date of the application". The words "on the date of the application" cannot be ignored. There can be no doubt that these words "on the date of the application" were deliberately used in the sub-section for the purpose of benefiting the landlord applicant to this extent that whatever the interest due on the contract may amount to, it will be limited to the amount of the principal found still remaining due, on the date of the application. When the Legislature goes further and provides that if prior to the application a decree has been made on the basis of the loan the findings of the Court which passed the decree shall be accepted but forbids such acceptance if such finding is inconsistent with the provisions of S. 14, the intention clearly is that the fact that there has been a decree will not make any difference as regards the duty of the Special Judge to give the applicant the benefit of the provisions of S. 14. When the Court passed the decree, there was no application under the Encumbered Estates Act, and so, there could be no question of the Court then complying with the provisions of S. 14(4) (a). Even so, when the Special Judge has to reject such of the findings as are "inconsistent" with S. 14, he must find out the effect of the several findings of the Court to ascertain whether there is such inconsistency11. Where the consequence of the finding of the court which passed the decree is that court which passed the decree is that the provisions of S. 14(4) (a) about the amount of interest due on the date of the application not exceeding the unpaid principal on that date are contravened, the finding should be held to be inconsistent with those provisions. In saying that if in the decree the court did not allow interest as on the date of the suit to exceed the principal then remaining due there is no inconsistency with S. 14(4) (a), the respondents counsel is in effect asking us to read for the words "in so far as they are inconsistent with the provisions of S. 14" the words "in so far as they would have been inconsistent with the provisions of S. 14, if the date of the institution of the suit be deemed to be the date of the application under S. 4". For this we cannot find any justification. Not only would this defeat the beneficial purpose of the legislation under S. 14(4)(a); but this will also not be the natural meaning of the words "in so far as they are inconsistent with the provisions of S. 14."12. The Chief Courts view that the Special Judge has merely to see whether the Civil Court that passed the decree could have passed the decree which it did pass if that court had to apply the provisions of S. 14, treating the date of the institution of the suit as the date of the application cannot therefore be accepted as correct.The same view had been taken by the Chief Court of Oudh in an earlier decision, of Ramsagar Prasad v. Mst. Shayama, AIR 1939 Oudh 75. A Full Bench of the Allahabad High Court had in Rukun Uddin v. Lachmi Narain ILR (1945) All 307 : (AIR 1945 All 113 ) to consider the question whether a finding in a decree made by a civil court that the creditor is entitled to interest only at the rates specified in U. P. Agriculturists Relief Act was in consistent with the provisions of S. 14 of the U. P. Encumbered Estates Act and was therefore not binding on the Special Judge hearing an application under the U. P. Encumbered Estates Act. They held that such a finding must be held to be inconsistent with the provisions of S. 14 and could therefore not be binding on the Special Judge. There can be no doubt about the correctness of this view, for, as has been pointed out above S. 14(4) (c) provides that the provisions of the U. P. Agriculturists Relief Act shall not be applicable to proceedings under the Encumbered Estates Act. One of the learned Judges Mr. Justice Verma referred with approval in the course of his judgment to the view taken in Ramsagar Prasads Case, AIR 1939 Oudh 75.For the reasons mentioned earlier however we are of opinion that the view in Ramsagar Prasads Case, AIR 1939 Oudh 75 which has been followed by the Chief Court in the present case is wrong13. Our conclusion therefore is that the Special Judge is even where there has been a decree by a civil court in respect of a loan bound to follow the provisions of S. 14(4)(a) of the Act so that the amount of interest which he can hold to be due on the date of the application must not exceed the portion of the principal found to be due on the date of the application. Accordingly in the present case the Special Judge should have held the amount of interest due on the date of the application, i.e., October 26, 1936, to amount to rupees one lakh only, that being the principal which was still due on that date. Under the provisions of sub-S. 7 of S. 14 the Special Judge has to "pass a simple money decree for such amount, together with any costs which he may allow in respect of proceedings in his court and of proceedings in any civil court stayed under the provisions of this Act, together with pendente lite and future interest at a rate not greater than the rate specified in S. 27."It was in view of this provision that the special Judge and High Court allowed interest at the rate of 4 per cent per annum. The proper decree the Special Judge should have passed therefore was one for rupees two lakhs for the loan with permissible interest, plus Rs. 4,314-2-9, Rs. 51-3-0 and rupee one on account of costs, that is, for a total sum of Rs. 2,04,366-5-9 with proportionate costs with interest pendente lite and future interest at the rate of 4 per cent. per annum simple from the date of the application, i.e., October 26, 1936, till realisation. | 1 | 3,905 | 1,312 | ### Instruction:
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whatever the interest due on the contract may amount to, it will be limited to the amount of the principal found still remaining due, on the date of the application. When the Legislature goes further and provides that if prior to the application a decree has been made on the basis of the loan the findings of the Court which passed the decree shall be accepted but forbids such acceptance if such finding is inconsistent with the provisions of S. 14, the intention clearly is that the fact that there has been a decree will not make any difference as regards the duty of the Special Judge to give the applicant the benefit of the provisions of S. 14. When the Court passed the decree, there was no application under the Encumbered Estates Act, and so, there could be no question of the Court then complying with the provisions of S. 14(4) (a). Even so, when the Special Judge has to reject such of the findings as are "inconsistent" with S. 14, he must find out the effect of the several findings of the Court to ascertain whether there is such inconsistency. 11. Where the consequence of the finding of the court which passed the decree is that court which passed the decree is that the provisions of S. 14(4) (a) about the amount of interest due on the date of the application not exceeding the unpaid principal on that date are contravened, the finding should be held to be inconsistent with those provisions. In saying that if in the decree the court did not allow interest as on the date of the suit to exceed the principal then remaining due there is no inconsistency with S. 14(4) (a), the respondents counsel is in effect asking us to read for the words "in so far as they are inconsistent with the provisions of S. 14" the words "in so far as they would have been inconsistent with the provisions of S. 14, if the date of the institution of the suit be deemed to be the date of the application under S. 4". For this we cannot find any justification. Not only would this defeat the beneficial purpose of the legislation under S. 14(4)(a); but this will also not be the natural meaning of the words "in so far as they are inconsistent with the provisions of S. 14." 12. The Chief Courts view that the Special Judge has merely to see whether the Civil Court that passed the decree could have passed the decree which it did pass if that court had to apply the provisions of S. 14, treating the date of the institution of the suit as the date of the application cannot therefore be accepted as correct.The same view had been taken by the Chief Court of Oudh in an earlier decision, of Ramsagar Prasad v. Mst. Shayama, AIR 1939 Oudh 75. A Full Bench of the Allahabad High Court had in Rukun Uddin v. Lachmi Narain ILR (1945) All 307 : (AIR 1945 All 113 ) to consider the question whether a finding in a decree made by a civil court that the creditor is entitled to interest only at the rates specified in U. P. Agriculturists Relief Act was in consistent with the provisions of S. 14 of the U. P. Encumbered Estates Act and was therefore not binding on the Special Judge hearing an application under the U. P. Encumbered Estates Act. They held that such a finding must be held to be inconsistent with the provisions of S. 14 and could therefore not be binding on the Special Judge. There can be no doubt about the correctness of this view, for, as has been pointed out above S. 14(4) (c) provides that the provisions of the U. P. Agriculturists Relief Act shall not be applicable to proceedings under the Encumbered Estates Act. One of the learned Judges Mr. Justice Verma referred with approval in the course of his judgment to the view taken in Ramsagar Prasads Case, AIR 1939 Oudh 75.For the reasons mentioned earlier however we are of opinion that the view in Ramsagar Prasads Case, AIR 1939 Oudh 75 which has been followed by the Chief Court in the present case is wrong. 13. Our conclusion therefore is that the Special Judge is even where there has been a decree by a civil court in respect of a loan bound to follow the provisions of S. 14(4)(a) of the Act so that the amount of interest which he can hold to be due on the date of the application must not exceed the portion of the principal found to be due on the date of the application. Accordingly in the present case the Special Judge should have held the amount of interest due on the date of the application, i.e., October 26, 1936, to amount to rupees one lakh only, that being the principal which was still due on that date. Under the provisions of sub-S. 7 of S. 14 the Special Judge has to "pass a simple money decree for such amount, together with any costs which he may allow in respect of proceedings in his court and of proceedings in any civil court stayed under the provisions of this Act, together with pendente lite and future interest at a rate not greater than the rate specified in S. 27."It was in view of this provision that the special Judge and High Court allowed interest at the rate of 4 per cent per annum. The proper decree the Special Judge should have passed therefore was one for rupees two lakhs for the loan with permissible interest, plus Rs. 4,314-2-9, Rs. 51-3-0 and rupee one on account of costs, that is, for a total sum of Rs. 2,04,366-5-9 with proportionate costs with interest pendente lite and future interest at the rate of 4 per cent. per annum simple from the date of the application, i.e., October 26, 1936, till realisation.
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extent that whatever the interest due on the contract may amount to, it will be limited to the amount of the principal found still remaining due, on the date of the application. When the Legislature goes further and provides that if prior to the application a decree has been made on the basis of the loan the findings of the Court which passed the decree shall be accepted but forbids such acceptance if such finding is inconsistent with the provisions of S. 14, the intention clearly is that the fact that there has been a decree will not make any difference as regards the duty of the Special Judge to give the applicant the benefit of the provisions of S. 14. When the Court passed the decree, there was no application under the Encumbered Estates Act, and so, there could be no question of the Court then complying with the provisions of S. 14(4) (a). Even so, when the Special Judge has to reject such of the findings as are "inconsistent" with S. 14, he must find out the effect of the several findings of the Court to ascertain whether there is such inconsistency11. Where the consequence of the finding of the court which passed the decree is that court which passed the decree is that the provisions of S. 14(4) (a) about the amount of interest due on the date of the application not exceeding the unpaid principal on that date are contravened, the finding should be held to be inconsistent with those provisions. In saying that if in the decree the court did not allow interest as on the date of the suit to exceed the principal then remaining due there is no inconsistency with S. 14(4) (a), the respondents counsel is in effect asking us to read for the words "in so far as they are inconsistent with the provisions of S. 14" the words "in so far as they would have been inconsistent with the provisions of S. 14, if the date of the institution of the suit be deemed to be the date of the application under S. 4". For this we cannot find any justification. Not only would this defeat the beneficial purpose of the legislation under S. 14(4)(a); but this will also not be the natural meaning of the words "in so far as they are inconsistent with the provisions of S. 14."12. The Chief Courts view that the Special Judge has merely to see whether the Civil Court that passed the decree could have passed the decree which it did pass if that court had to apply the provisions of S. 14, treating the date of the institution of the suit as the date of the application cannot therefore be accepted as correct.The same view had been taken by the Chief Court of Oudh in an earlier decision, of Ramsagar Prasad v. Mst. Shayama, AIR 1939 Oudh 75. A Full Bench of the Allahabad High Court had in Rukun Uddin v. Lachmi Narain ILR (1945) All 307 : (AIR 1945 All 113 ) to consider the question whether a finding in a decree made by a civil court that the creditor is entitled to interest only at the rates specified in U. P. Agriculturists Relief Act was in consistent with the provisions of S. 14 of the U. P. Encumbered Estates Act and was therefore not binding on the Special Judge hearing an application under the U. P. Encumbered Estates Act. They held that such a finding must be held to be inconsistent with the provisions of S. 14 and could therefore not be binding on the Special Judge. There can be no doubt about the correctness of this view, for, as has been pointed out above S. 14(4) (c) provides that the provisions of the U. P. Agriculturists Relief Act shall not be applicable to proceedings under the Encumbered Estates Act. One of the learned Judges Mr. Justice Verma referred with approval in the course of his judgment to the view taken in Ramsagar Prasads Case, AIR 1939 Oudh 75.For the reasons mentioned earlier however we are of opinion that the view in Ramsagar Prasads Case, AIR 1939 Oudh 75 which has been followed by the Chief Court in the present case is wrong13. Our conclusion therefore is that the Special Judge is even where there has been a decree by a civil court in respect of a loan bound to follow the provisions of S. 14(4)(a) of the Act so that the amount of interest which he can hold to be due on the date of the application must not exceed the portion of the principal found to be due on the date of the application. Accordingly in the present case the Special Judge should have held the amount of interest due on the date of the application, i.e., October 26, 1936, to amount to rupees one lakh only, that being the principal which was still due on that date. Under the provisions of sub-S. 7 of S. 14 the Special Judge has to "pass a simple money decree for such amount, together with any costs which he may allow in respect of proceedings in his court and of proceedings in any civil court stayed under the provisions of this Act, together with pendente lite and future interest at a rate not greater than the rate specified in S. 27."It was in view of this provision that the special Judge and High Court allowed interest at the rate of 4 per cent per annum. The proper decree the Special Judge should have passed therefore was one for rupees two lakhs for the loan with permissible interest, plus Rs. 4,314-2-9, Rs. 51-3-0 and rupee one on account of costs, that is, for a total sum of Rs. 2,04,366-5-9 with proportionate costs with interest pendente lite and future interest at the rate of 4 per cent. per annum simple from the date of the application, i.e., October 26, 1936, till realisation.
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Godde Venkateswara Rao Vs. Government Of Andhra Pradesh And Others | in exercise of a quasi-judicial power. Section 62 of the Act confers a power on the Government to cancel or suspend the resolution of a Panchayat Samithi, in the circumstances mentioned therein, after giving an opportunity for explanation to the Panchayat Samithi. If the Government in exercise of that power cancels or confirms a resolution of the Panchayat Samithi, qua that order is becomes functus officio. Section 62, unlike S. 72, of the Act does not confer a power on the Government to review its orders. Therefore, there are no merits in this contention.14. Before we leave S. 62 of the Act, it may be noticed that the order dated March 7, 1962, was passed by the Government without giving notice to the Panchayat Samithi. It was in violation of the mandatory provision of sub-s. (2) of S. 62 which says that the Government shall, before taking action under sub-s. (1), give the Panchayat Samithi an opportunity for explanation. This opportunity was not given and, therefore, that order was not legal.15. Now let us assume that the said order was made under sub-s. (1) of S. 72 of the Act. Two objections were raised against the validity of the order reviewing the previous order, namely, (i) there was no mistake of fact or law, and (ii) the said order, which was prejudicial to Dharmajigudem village, was made without giving an opportunity to the representatives of the said village of making a representation. The order gives in extenso the history of the dispute between Dharmajigudem and Lingapalem in the matter of location of the Primary Health Centre. It points out that all the earlier resolutions of the Panchayat Samithi were cancelled and the only outstanding resolution was that of May 29, 1961, whereunder the said Centre was directed to be located permanently at Lingapalem. Then it proceeds to say that the order dated March 7, 1962, was passed on a mistaken impression that it was a case of shifting the Primary Health Centre from one place where it was permanently located to another, while the correct position was that the place where the Primary Health Centre was to be located permanently had not till then been decided by the Government. In that view, in suppression of the order issued by it on March 7, 1962, it directed that the said Centre should be located permanently at Lingapalem as per the resolution of the Panchayat Samithi dated May 29, 1961. No doubt the statement in that order, namely, that the place where the Primary Health Centre was to be located permanently had not so far been decided by the Government, if taken out of context, may appear to be an incorrect statement, for the Government by its order dated July 6, 1960, approved the proposal of the Panchayat Samithi, Chintalapudi, to locate the Primary Health Centre permanently at Dharmajigudem. But an analysis of the various orders passed by the Panchayat Samithi and the Government discloses, as we have already indicated, that the Primary Health Centre was never permanently located at Dharmajigudem, that before the Act it was located therein subject to certain conditions which were not fulfilled, that after the Act the Panchayat Samithi, though it passed a resolution on May 28, 1960, approving the location of the said Centre permanently at Dharmajigudem and though it was approved by the Government by its order dated July 6, 1960, cancelled its earlier resolution in accordance with law on May 29, 1961 and voted for locating the Centre at Lingapalem. Therefore, the Government was right when it said in its order that it made a mistake of fact in passing its earlier order on March 7, 1962, on a misapprehension that there was a permanent location of the Centre at Dharmajigudem.16. But there is another flaw in the order of the Government dated April 18, 1963, i.e., it made the order without giving an opportunity to the representatives of Dharmajigudem who were prejudicially affected by the said order. Learned counsel for the State said that the appellant could not be considered to be a party prejudicially affected by that order. But, as we have stated earlier, the appellant was the President of the Committee which collected the amount, he was representing the village all through and he also deposited the prescribed amount with the Block Development Officer. The Government should have, therefore, given notice either to him or to the Committee, which was representing the village all through for the purpose of securing the location of the Primary Health Centre in their village. The order made in derogation of the proviso to sub-s. (1) of S. 72 of the Act is also bad.17. The result of the discussion may be stated thus: The Primary Health Centre was not permanently located at Dharmajigudem. The representatives of the said village did not comply with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier resolutions which they were entitled to do and passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the orders of the Government, namely, the order dated March 7, 1962, and that dated April 18, 1963, were not legally passed: the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under S. 72 of the Act to review an order made under S. 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village.In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order- it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case. | 0[ds]the appellant a right to file the petition out of which the present appeal hasarisen? The appellant is the President of the Panchayat Samithi of Dharmajigudem. The villagers of Dharmajigudem formed a committee with the appellant as President for the purpose of collecting contributions from the villagers for setting up the Primary Health Centre. The said committee collected Rs. 10,000 and deposited the same with the Block Development Officer. The appellant represented the village in all its dealings with the Block Development Committee and the Panchayat Samithi in the matter of the location of the Primary Health Centre at Dharmajigudem. His conduct, the acquiescence on the part of the other members of the committee, and the treatment meted out to him by the authorities concerned support the inference that he was authorized to act on behalf of the committee. The appellant was, therefore, a representative of the committee which was in law the trustees of the amounts collected by it from the villagers for a public purpose. We have, therefore, no hesitation to hold that the appellant had the right to maintain the application under Art. 226 of the Constitution. This Court held in the decision cited supra that "ordinarily" the petitioner who seeks to file an application under Art. 226 of the Constitution should be one who has a personal or individual right in the subject-matter of the petition. A personal right need not be in respect of a proprietary interest: it can also relate to an interest of a trustee. That apart, in exceptional cases as the expression "ordinarily" indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject-matter thereof.The appellant has certainly been prejudiced by the said order. The petition under Art. 226 of the Constitution at his instanc is, therefore, maintainable.The result of the discussion may be stated thus: The Primary Health Centre was not permanently located at Dharmajigudem. The representatives of the said village did not comply with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier resolutions which they were entitled to do and passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the orders of the Government, namely, the order dated March 7, 1962, and that dated April 18, 1963, were not legally passed: the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under S. 72 of the Act to review an order made under S. 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village.In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order- it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case. | 0 | 7,149 | 595 | ### 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:
in exercise of a quasi-judicial power. Section 62 of the Act confers a power on the Government to cancel or suspend the resolution of a Panchayat Samithi, in the circumstances mentioned therein, after giving an opportunity for explanation to the Panchayat Samithi. If the Government in exercise of that power cancels or confirms a resolution of the Panchayat Samithi, qua that order is becomes functus officio. Section 62, unlike S. 72, of the Act does not confer a power on the Government to review its orders. Therefore, there are no merits in this contention.14. Before we leave S. 62 of the Act, it may be noticed that the order dated March 7, 1962, was passed by the Government without giving notice to the Panchayat Samithi. It was in violation of the mandatory provision of sub-s. (2) of S. 62 which says that the Government shall, before taking action under sub-s. (1), give the Panchayat Samithi an opportunity for explanation. This opportunity was not given and, therefore, that order was not legal.15. Now let us assume that the said order was made under sub-s. (1) of S. 72 of the Act. Two objections were raised against the validity of the order reviewing the previous order, namely, (i) there was no mistake of fact or law, and (ii) the said order, which was prejudicial to Dharmajigudem village, was made without giving an opportunity to the representatives of the said village of making a representation. The order gives in extenso the history of the dispute between Dharmajigudem and Lingapalem in the matter of location of the Primary Health Centre. It points out that all the earlier resolutions of the Panchayat Samithi were cancelled and the only outstanding resolution was that of May 29, 1961, whereunder the said Centre was directed to be located permanently at Lingapalem. Then it proceeds to say that the order dated March 7, 1962, was passed on a mistaken impression that it was a case of shifting the Primary Health Centre from one place where it was permanently located to another, while the correct position was that the place where the Primary Health Centre was to be located permanently had not till then been decided by the Government. In that view, in suppression of the order issued by it on March 7, 1962, it directed that the said Centre should be located permanently at Lingapalem as per the resolution of the Panchayat Samithi dated May 29, 1961. No doubt the statement in that order, namely, that the place where the Primary Health Centre was to be located permanently had not so far been decided by the Government, if taken out of context, may appear to be an incorrect statement, for the Government by its order dated July 6, 1960, approved the proposal of the Panchayat Samithi, Chintalapudi, to locate the Primary Health Centre permanently at Dharmajigudem. But an analysis of the various orders passed by the Panchayat Samithi and the Government discloses, as we have already indicated, that the Primary Health Centre was never permanently located at Dharmajigudem, that before the Act it was located therein subject to certain conditions which were not fulfilled, that after the Act the Panchayat Samithi, though it passed a resolution on May 28, 1960, approving the location of the said Centre permanently at Dharmajigudem and though it was approved by the Government by its order dated July 6, 1960, cancelled its earlier resolution in accordance with law on May 29, 1961 and voted for locating the Centre at Lingapalem. Therefore, the Government was right when it said in its order that it made a mistake of fact in passing its earlier order on March 7, 1962, on a misapprehension that there was a permanent location of the Centre at Dharmajigudem.16. But there is another flaw in the order of the Government dated April 18, 1963, i.e., it made the order without giving an opportunity to the representatives of Dharmajigudem who were prejudicially affected by the said order. Learned counsel for the State said that the appellant could not be considered to be a party prejudicially affected by that order. But, as we have stated earlier, the appellant was the President of the Committee which collected the amount, he was representing the village all through and he also deposited the prescribed amount with the Block Development Officer. The Government should have, therefore, given notice either to him or to the Committee, which was representing the village all through for the purpose of securing the location of the Primary Health Centre in their village. The order made in derogation of the proviso to sub-s. (1) of S. 72 of the Act is also bad.17. The result of the discussion may be stated thus: The Primary Health Centre was not permanently located at Dharmajigudem. The representatives of the said village did not comply with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier resolutions which they were entitled to do and passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the orders of the Government, namely, the order dated March 7, 1962, and that dated April 18, 1963, were not legally passed: the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under S. 72 of the Act to review an order made under S. 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village.In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order- it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case.
### Response:
0
### Explanation:
the appellant a right to file the petition out of which the present appeal hasarisen? The appellant is the President of the Panchayat Samithi of Dharmajigudem. The villagers of Dharmajigudem formed a committee with the appellant as President for the purpose of collecting contributions from the villagers for setting up the Primary Health Centre. The said committee collected Rs. 10,000 and deposited the same with the Block Development Officer. The appellant represented the village in all its dealings with the Block Development Committee and the Panchayat Samithi in the matter of the location of the Primary Health Centre at Dharmajigudem. His conduct, the acquiescence on the part of the other members of the committee, and the treatment meted out to him by the authorities concerned support the inference that he was authorized to act on behalf of the committee. The appellant was, therefore, a representative of the committee which was in law the trustees of the amounts collected by it from the villagers for a public purpose. We have, therefore, no hesitation to hold that the appellant had the right to maintain the application under Art. 226 of the Constitution. This Court held in the decision cited supra that "ordinarily" the petitioner who seeks to file an application under Art. 226 of the Constitution should be one who has a personal or individual right in the subject-matter of the petition. A personal right need not be in respect of a proprietary interest: it can also relate to an interest of a trustee. That apart, in exceptional cases as the expression "ordinarily" indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject-matter thereof.The appellant has certainly been prejudiced by the said order. The petition under Art. 226 of the Constitution at his instanc is, therefore, maintainable.The result of the discussion may be stated thus: The Primary Health Centre was not permanently located at Dharmajigudem. The representatives of the said village did not comply with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier resolutions which they were entitled to do and passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the orders of the Government, namely, the order dated March 7, 1962, and that dated April 18, 1963, were not legally passed: the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under S. 72 of the Act to review an order made under S. 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village.In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order- it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case.
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Shri Vivek Brajendra Singh & Others Vs. State Government of Maharashtra & Others | from Koradi TPS to Wardha under the authorization dated 24/8/2006 issued by the Government of Maharashtra.CHALLENGE TO ORDERS UNDER SECTION 16 OF THE INDIAN TELEGRAPH ACT, 1885:29. It must be noticed that Section 16 empowers the District Magistrate to make an order that the Telegraph Authority shall be permitted to exercise powers under Section 10, if the exercise of powers for placing an electric line is resisted or obstructed. Further the Section makes a provision for an application to be made to the District Judge, in case a dispute arises concerning the sufficiency of compensation to be paid under Section 10. In these cases, the applications were made by the to the District Magistrate within whose jurisdiction the property, over which the line is to be passed and a tower is to be situated, falls. All these applications were duly registered as revenue cases and the owners and occupiers of the land were heard after notices were issued to them. The applicant has pointed out its authorization to do the work of placing of the line and that the work was obstructed by the non-applicants and it is getting stalled on account of obstructions created by the non-applicants and the other persons. The District Magistrate has taken into account the reply and documents filed by the parties and after hearing the parties, has come to the conclusion that the Transmission Company is entitled for permission to carry out and continue the work of the transmission line in exercise of the statutory function as a State Transmission Utility. It was contended on behalf of the petitioners that the petitioners had raised numerous contentions which have not been gone into. We find that most of the contentions about which grievance is made that they were not considered are outside the scope of enquiry under Section 16, such as whether the Government of Maharashtra is an appropriate Government or not, whether the notification under Section 164 has been properly issued or not and whether the State Government can issue a notification in respect of a law which can only be enacted by Parliament under Entry 31 of List-I of the Seventh Schedule and so on. In terms of Section 16 of the Indian Telegraph Act, 1885, the enquiry is restricted to whether there is any justification for resisting or obstructing the powers under Section 10 and whether the Telegraph Authority should be permitted to exercise the powers. In the circumstances, we see no merit in the contention, which is rejected.30. It was next contended that the authorization under Section 164 can only be made, inter alia, for the purpose of proper coordination of works and there is no such purpose apparent from the authorization. We fail to see any merit in this contention. Undoubtedly the term works in the context refers to various activities referred in Section 67 of the Electricity Act, 2003 such as opening and breaking up the soil and pavement of any street, railway or tramway; opening and breaking up of any sewer, drain or tunnel; altering the position of any line or works or pipes; laying down and placing electrical lines and all other acts necessary for the transmission or supply of electricity. This obviously requires coordination since these various works are normally done by various other local authorities whose permission and cooperation is necessary to prevent a chaos. It was also contended by Mr. Sohoni and Mr. Mandlekar that Section 10 of the Indian Telegraph Act, 1885, only confers the power to place a telegraph line and post. Therefore, the transmission companies are not entitled to place towers instead of posts. Section 3(5) defines the term post as follows:3. Definitions. - In this Act, unless there is something repugnant in the subject or context,(1) .....(2) .....(3) .....(4) .....(5) post means a post, pole, standard, stay, strut or other above ground contrivance for carrying, suspending or supporting a telegraph line;A tower undoubtedly supports a line and, therefore, must be construed to be a post within the meaning of subsection (5). The work for telegraph line undoubtedly be understood as referring to an electric line in view of Section 164 which specifically empowers the appropriate Government to issue an order in writing for conferring any of the powers of the Telegraph Authority under the Telegraph Act with respect to placing of telegraph lines and post for the placing of telegraph lines.31. Mr. Mandlekar, learned counsel for the petitioners in W. P. Nos. 5811/2011, 5812/2011, 5813/2011, 6093/2011 and 6094/2011 submitted that the petitioners therein have not been given an opportunity of being heard. The learned counsel referred to the communication by transmission company to the Collector, Wardha where only seven persons were shown as obstructing the work of laying of lines. According to the learned counsel, these petitioners names have been added in the final order under Section 16, though no notice of the transmission companys application under Section 16 for removal of obstruction was served on these petitioners. The learned Addl. G. P. is not in a position to point out if, in fact, the notices were issued to these petitioners and these petitioners were heard. In the circumstances, we direct that the Collector, Wardha shall issue notice to the petitioners in the writ petitions mentioned hereinabove and pass an appropriate orders under Section 16 and till such orders are passed, the transmission company shall not carry on any work in the lands of these petitioners.PERMISSION OF LOCAL AUTHORITY :32. Mr. Mandlekar, the learned counsel for the petitioners, submitted that though the transmission company is laying lines in lands of local authorities, which are subject matter of Writ Petition Nos. 5811/2011, 5812/2011 and 5813/2011, no permission of the local authority has been obtained by the transmission company as required by section 10 (c) and 12 of the Indian Telegraph Act, 1885. We find that the local authority has not made any such grievance. It would be for the local authority to raise this issue, if aggrieved thereby, before the authorities. | 0[ds]The present case does not involve the acquisition of land but only the user by the State for a limited purpose, for which there is provision for payment of compensation. Moreover, it seems unreasonable to confer on the owners or occupiers of land a choice about what should be the route of the electric line and where it should be placed, since such a decision must yield to the dictates of technical knowledge, expertise and viability. There is no doubt that if all owners and occupiers of land over hundreds of kilometers are allowed to have a say and object to the routes and if the validity of the orders passed under objection is allowed to be contested, the route may not get finalized for years. Having regard to the importance of electricity to the life of citizen, particularly to essential services and industry, such a procedure would be detrimental to public interest. Similarly, the observations in Darshanlal Nagpals case, emphasizing the importance of the rules of natural justice cannot be applied to the present case. Apart from the fact that challenge on the ground of Article 14 is excluded by virtue of Article 31A, we are of the view that the present case calls for a situational exception and of necessity, the authorities may not be compelled to hear owners and occupiers before deciding on the route over which an electric line should be placed. Therefore, the contention that the legislative scheme, which does not require the authorities to hear the owners and occupiers of the land while planning the route of an electric line is unconstitutional, is rejected. So also the contention that Section 164 of the Electricity Act, 2003 and Section 10 of the Indian Telegraph Act, 1885 are void being violative of Article 14 is rejected.We do not see any merit in the contention that the provisions are violative of Article 21 on the ground that they adversely affect the health of persons living in or around high tension lines. In the first place, the electric line in question, which is high tension 400 KV line is to be placed over agricultural fields and not over a residential area. Secondly, no proof is placed before the court to enable it to draw an inference that the placing of electric line causes cancer as alleged. We are unable to draw this inference on the basis of a report from Australia placed onlegislative scheme in regard to the electric lines is that after the repeal of the Indian Electricity Act, 1910, the work of placing of electrical lines must be done under Sections 12 to 18 of the old Act 1910 till rules are framed under Sections 67 and 68 of the new Electricity Act, 2003. If there is any such notification under Section 164 of the new Act 2003, conferring powers of the Telegraph Authority for the purpose of placing electric lines, during the transitory period when rules are not framed under Sections 67 and 68 of the new Act 2003, the Transmission Company did not and cannot act under Sections 12 to 18 of the old Act, 1910. The contention on behalf of the petitioners is, therefore,find that most of the contentions about which grievance is made that they were not considered are outside the scope of enquiry under Section 16, such as whether the Government of Maharashtra is an appropriate Government or not, whether the notification under Section 164 has been properly issued or not and whether the State Government can issue a notification in respect of a law which can only be enacted by Parliament under Entry 31 ofof the Seventh Schedule and so on. In terms of Section 16 of the Indian Telegraph Act, 1885, the enquiry is restricted to whether there is any justification for resisting or obstructing the powers under Section 10 and whether the Telegraph Authority should be permitted to exercise the powers. In the circumstances, we see no merit in the contention, which is rejected.30. It was next contended that the authorization under Section 164 can only be made, inter alia, for the purpose of proper coordination of works and there is no such purpose apparent from the authorization. We fail to see any merit in this contention. Undoubtedly the term works in the context refers to various activities referred in Section 67 of the Electricity Act, 2003 such as opening and breaking up the soil and pavement of any street, railway or tramway; opening and breaking up of any sewer, drain or tunnel; altering the position of any line or works or pipes; laying down and placing electrical lines and all other acts necessary for the transmission or supply of electricity. This obviously requires coordination since these various works are normally done by various other local authorities whose permission and cooperation is necessary to prevent a chaos. It was also contended by Mr. Sohoni and Mr. Mandlekar that Section 10 of the Indian Telegraph Act, 1885, only confers the power to place a telegraph line and post. | 0 | 10,833 | 910 | ### 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:
from Koradi TPS to Wardha under the authorization dated 24/8/2006 issued by the Government of Maharashtra.CHALLENGE TO ORDERS UNDER SECTION 16 OF THE INDIAN TELEGRAPH ACT, 1885:29. It must be noticed that Section 16 empowers the District Magistrate to make an order that the Telegraph Authority shall be permitted to exercise powers under Section 10, if the exercise of powers for placing an electric line is resisted or obstructed. Further the Section makes a provision for an application to be made to the District Judge, in case a dispute arises concerning the sufficiency of compensation to be paid under Section 10. In these cases, the applications were made by the to the District Magistrate within whose jurisdiction the property, over which the line is to be passed and a tower is to be situated, falls. All these applications were duly registered as revenue cases and the owners and occupiers of the land were heard after notices were issued to them. The applicant has pointed out its authorization to do the work of placing of the line and that the work was obstructed by the non-applicants and it is getting stalled on account of obstructions created by the non-applicants and the other persons. The District Magistrate has taken into account the reply and documents filed by the parties and after hearing the parties, has come to the conclusion that the Transmission Company is entitled for permission to carry out and continue the work of the transmission line in exercise of the statutory function as a State Transmission Utility. It was contended on behalf of the petitioners that the petitioners had raised numerous contentions which have not been gone into. We find that most of the contentions about which grievance is made that they were not considered are outside the scope of enquiry under Section 16, such as whether the Government of Maharashtra is an appropriate Government or not, whether the notification under Section 164 has been properly issued or not and whether the State Government can issue a notification in respect of a law which can only be enacted by Parliament under Entry 31 of List-I of the Seventh Schedule and so on. In terms of Section 16 of the Indian Telegraph Act, 1885, the enquiry is restricted to whether there is any justification for resisting or obstructing the powers under Section 10 and whether the Telegraph Authority should be permitted to exercise the powers. In the circumstances, we see no merit in the contention, which is rejected.30. It was next contended that the authorization under Section 164 can only be made, inter alia, for the purpose of proper coordination of works and there is no such purpose apparent from the authorization. We fail to see any merit in this contention. Undoubtedly the term works in the context refers to various activities referred in Section 67 of the Electricity Act, 2003 such as opening and breaking up the soil and pavement of any street, railway or tramway; opening and breaking up of any sewer, drain or tunnel; altering the position of any line or works or pipes; laying down and placing electrical lines and all other acts necessary for the transmission or supply of electricity. This obviously requires coordination since these various works are normally done by various other local authorities whose permission and cooperation is necessary to prevent a chaos. It was also contended by Mr. Sohoni and Mr. Mandlekar that Section 10 of the Indian Telegraph Act, 1885, only confers the power to place a telegraph line and post. Therefore, the transmission companies are not entitled to place towers instead of posts. Section 3(5) defines the term post as follows:3. Definitions. - In this Act, unless there is something repugnant in the subject or context,(1) .....(2) .....(3) .....(4) .....(5) post means a post, pole, standard, stay, strut or other above ground contrivance for carrying, suspending or supporting a telegraph line;A tower undoubtedly supports a line and, therefore, must be construed to be a post within the meaning of subsection (5). The work for telegraph line undoubtedly be understood as referring to an electric line in view of Section 164 which specifically empowers the appropriate Government to issue an order in writing for conferring any of the powers of the Telegraph Authority under the Telegraph Act with respect to placing of telegraph lines and post for the placing of telegraph lines.31. Mr. Mandlekar, learned counsel for the petitioners in W. P. Nos. 5811/2011, 5812/2011, 5813/2011, 6093/2011 and 6094/2011 submitted that the petitioners therein have not been given an opportunity of being heard. The learned counsel referred to the communication by transmission company to the Collector, Wardha where only seven persons were shown as obstructing the work of laying of lines. According to the learned counsel, these petitioners names have been added in the final order under Section 16, though no notice of the transmission companys application under Section 16 for removal of obstruction was served on these petitioners. The learned Addl. G. P. is not in a position to point out if, in fact, the notices were issued to these petitioners and these petitioners were heard. In the circumstances, we direct that the Collector, Wardha shall issue notice to the petitioners in the writ petitions mentioned hereinabove and pass an appropriate orders under Section 16 and till such orders are passed, the transmission company shall not carry on any work in the lands of these petitioners.PERMISSION OF LOCAL AUTHORITY :32. Mr. Mandlekar, the learned counsel for the petitioners, submitted that though the transmission company is laying lines in lands of local authorities, which are subject matter of Writ Petition Nos. 5811/2011, 5812/2011 and 5813/2011, no permission of the local authority has been obtained by the transmission company as required by section 10 (c) and 12 of the Indian Telegraph Act, 1885. We find that the local authority has not made any such grievance. It would be for the local authority to raise this issue, if aggrieved thereby, before the authorities.
### Response:
0
### Explanation:
The present case does not involve the acquisition of land but only the user by the State for a limited purpose, for which there is provision for payment of compensation. Moreover, it seems unreasonable to confer on the owners or occupiers of land a choice about what should be the route of the electric line and where it should be placed, since such a decision must yield to the dictates of technical knowledge, expertise and viability. There is no doubt that if all owners and occupiers of land over hundreds of kilometers are allowed to have a say and object to the routes and if the validity of the orders passed under objection is allowed to be contested, the route may not get finalized for years. Having regard to the importance of electricity to the life of citizen, particularly to essential services and industry, such a procedure would be detrimental to public interest. Similarly, the observations in Darshanlal Nagpals case, emphasizing the importance of the rules of natural justice cannot be applied to the present case. Apart from the fact that challenge on the ground of Article 14 is excluded by virtue of Article 31A, we are of the view that the present case calls for a situational exception and of necessity, the authorities may not be compelled to hear owners and occupiers before deciding on the route over which an electric line should be placed. Therefore, the contention that the legislative scheme, which does not require the authorities to hear the owners and occupiers of the land while planning the route of an electric line is unconstitutional, is rejected. So also the contention that Section 164 of the Electricity Act, 2003 and Section 10 of the Indian Telegraph Act, 1885 are void being violative of Article 14 is rejected.We do not see any merit in the contention that the provisions are violative of Article 21 on the ground that they adversely affect the health of persons living in or around high tension lines. In the first place, the electric line in question, which is high tension 400 KV line is to be placed over agricultural fields and not over a residential area. Secondly, no proof is placed before the court to enable it to draw an inference that the placing of electric line causes cancer as alleged. We are unable to draw this inference on the basis of a report from Australia placed onlegislative scheme in regard to the electric lines is that after the repeal of the Indian Electricity Act, 1910, the work of placing of electrical lines must be done under Sections 12 to 18 of the old Act 1910 till rules are framed under Sections 67 and 68 of the new Electricity Act, 2003. If there is any such notification under Section 164 of the new Act 2003, conferring powers of the Telegraph Authority for the purpose of placing electric lines, during the transitory period when rules are not framed under Sections 67 and 68 of the new Act 2003, the Transmission Company did not and cannot act under Sections 12 to 18 of the old Act, 1910. The contention on behalf of the petitioners is, therefore,find that most of the contentions about which grievance is made that they were not considered are outside the scope of enquiry under Section 16, such as whether the Government of Maharashtra is an appropriate Government or not, whether the notification under Section 164 has been properly issued or not and whether the State Government can issue a notification in respect of a law which can only be enacted by Parliament under Entry 31 ofof the Seventh Schedule and so on. In terms of Section 16 of the Indian Telegraph Act, 1885, the enquiry is restricted to whether there is any justification for resisting or obstructing the powers under Section 10 and whether the Telegraph Authority should be permitted to exercise the powers. In the circumstances, we see no merit in the contention, which is rejected.30. It was next contended that the authorization under Section 164 can only be made, inter alia, for the purpose of proper coordination of works and there is no such purpose apparent from the authorization. We fail to see any merit in this contention. Undoubtedly the term works in the context refers to various activities referred in Section 67 of the Electricity Act, 2003 such as opening and breaking up the soil and pavement of any street, railway or tramway; opening and breaking up of any sewer, drain or tunnel; altering the position of any line or works or pipes; laying down and placing electrical lines and all other acts necessary for the transmission or supply of electricity. This obviously requires coordination since these various works are normally done by various other local authorities whose permission and cooperation is necessary to prevent a chaos. It was also contended by Mr. Sohoni and Mr. Mandlekar that Section 10 of the Indian Telegraph Act, 1885, only confers the power to place a telegraph line and post.
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Jyoti Pershad Vs. Administrator for the Union Territory of Delhi | and achieve social concord and peaceful adjustment and thus furthering the moral and material progress of the community as a whole.29. Judged in the light of the above, we consider that the restrictions imposed cannot be said to be unreasonable. As we have already pointed out, the ban imposed on evictions is temporary, though learned counsel is right in saying that its duration is not definite. In the very nature of things the period when slums would have ceased to exist or restrictions placed upon owners of property could be completely lifted must, obviously, be indefinite and therefore the indefiniteness cannot be a ground for invalidity-a ground upon which the restriction could be held to be unreasonable. Again, there is an appeal provided from the orders of the competent authority to the Chief Administrator. If learned counsel is right in his submission that the power of the "competent authority" is unguided and that he had an unfettered and arbitrary authority to exercise his discretion "at his sweet will and pleasure" the existence of a provision for appeals might not impart validity to such legislation. The reason for this is that the appellate power would be subject to the same vice as the power of the original authority and the imposition of one sweet will and pleasure" over another of a lower authority, would not prevent discrimination or render the restriction reasonable. But if, as we have held earlier, the Act by its preamble and by its provisions do afford a guidance to the "competent authority" by pointing out the manner in which the discretion vested in him should be exercised, the provision as to an appeal assumes a different significance. In such cases, if the "competent authority" oversteps the limits of his powers or ignores the policy behind the Act and acts contrary to its declared intention, the appellate authority could be invoked to step in and correct the error. It would, therefore, be a provision for doubly safeguarding that the policy of the Act is carried out and not ignored in each and every case that comes up before "the competent authority".30. The procedure laid down by the Act for the hearing by the "competent authority" and the provision for enquiry, renders the "competent authority" a quasi-judicial functionary bound to follow fixed rules of procedure and its orders passed after such an enquiry are to be subject to appeals to the Administrator. We consider these safeguards very relevant for judging about the reasonableness of the restriction. In considering these matters one has to take into account the fact - a fact of which judicial notice has to be taken- that there has been an unprecedented influx of population into the capital, and in such a short interval, that there has not been time for natural processes of expansion of the city to adjust itself to the increased needs Remedies which in normal times might be considered an unreasonable restriction on the right to hold property would not bear that aspect or be so considered when viewed in a situation of emergency brought about by exceptional and unprecedented circumstances. Just as pulling down a building to prevent the spread of flames would be reasonable in the event of a fire, the reasonableness of the restrictions imposed by the impugned legislation has to be judged in the light of actual facts and not on a priori reasoning based on the dicta in decisions rendered in situations bearing not even the remotest resemblance to that which presented itself to Parliament when the legislation now impugned was enacted.31. Before concluding it is necessary to advert to a few points which were also urged by learned counsel for the petitioner. First it was said, that the impugned S. 19 of the Act imposed a double restriction, a restriction super-imposed on a restriction already existing by virtue of the provisions of the Rent Control Act, and that this rendered it unreasonable. If by this submission learned counsel meant that different results as to constitutional validity flowed from whether the impugned section was part of the provisions of the Rent Control Act, or was a section in an independent enactment, the argument is clearly untenable. If, however, that was not meant, but that in the context of the restrictions already imposed by the Rent Control Act S. 19 of the Act was really unnecessary and therefore an unreasonable restraint on the freedom of the landlord, what we have said earlier ought to suffice to repel the argument.32. Learned counsel next drew our attention to S. 38 of the Rent Control Act which reads:"The provisions of this Act and of the rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law."33. If this section stood alone, the argument of learned counsel that by reason of the width and sweep of its language, even a special legislation, such as the Act was comprehended within the non obstante provision would have required serious consideration, but that has been rendered unnecessary, because even apart from S. 19 of the Act which opens with the words: "Notwithstanding anything contained in any other law for the time being in force", S. 39 of the Act also contains a non obstante clause on the same lines as S. 38 of the Rent Control Act. The result therefore would be that the provisions of the special enactment, as the Act is, will in respect of the buildings in areas declared slum areas operate in addition to the Rent Control Act. The argument therefore that the Act is inapplicable to buildings covered by the Rent Control Act is without substance, particularly when it is seen that it is only when a decree for eviction is obtained that S. 19 of the Act comes into play.34. We therefore consider that none of the points urged in support of the petitions has any substance. | 0[ds]If the statute itself or the rule made under it applies unequally to persons or things similarly situated, it would be an instance of a direct violation of the constitutional guarantee and the provision of the statute or the rule in question would have to be struck down.2. The enactment or the rule might not in terms enact a discriminatory rule of law but might enable an unequal or discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the legislature vests a discretion in an authority, be it the Government or an administrative official acting either as an executive officer or even in a quasi-judicial capacity by a legislation which does not lay down any policy or disclose any tangible or intelligible purpose, thus clothing the authority with unguided and arbitrary powers enabling it to discriminate.It is manifest that the above rule would not apply to cases where the legislature lays down the policy and indicates the rule or the line of action which should serve as a guidance to the authority. Where such guidance is expressed in the statutory provision conferring the power, no question of violation of Art. 14 could arise, unless it be that the rules themselves or the policy indicated lay down different rules to be applied to persons or things similarly situated. Even where such is not the case, there might be a transgression by the authority of the limits laid down or an abuse of power, but the actual order would be set aside in appropriate proceedings not so much on the ground of a violation of Art. 14, but as really being beyond its power.It is not, however, essential for the legislation to comply with the rule as to equal protection, that the rules for the guidance of the designated authority, which is to exercise the power or which is vested with the discretion, should be laid down in express terms in the statutory provision itself.In the light of what we have stated above we have now to consider the point urged by the learned counsel for the petitioner that the Act has vested in the competent authority the power to withhold eviction in pursuance of orders or decrees of courts without affording any guidance or laying down any principles for his guidance on the basis of which he could exercise his discretion. In other words, that the Act lays no fetters and has vested in him an arbitrary and unguided power to pick and choose the decree-holders to whom he would permit execution and those to whom he would refuse such relief. On the other hand, the learned Attorney-General submitted that the discretion vested in the competent authority was not unguided and that though S. 19 of the Act did not in terms lay down any rules for his guidance, the same could be gathered from the policy and purpose of the Act as set out in the preamble and in the operative provisions of the Act itself.We consider that there is considerable force in this submission of the learned Attorney-General. The preamble describes the Act as one enacted for two purposes: (1) the improvement and clearance of slum areas in certain Union Territories, and (2) for the protection of tenants in such areas from eviction. These twin objects are sought to be carried out by Chapters II to VI of the enactment. Chapter II which consists of one section-S. 3-provides a definition of what are "slum areas" and their declaration as such. The tests for determining whether the area could be declared a "slum area" or not briefly are whether the buildings in the area are (a) unfit for human habitation, or (b) are by reason of dilapidation, overcrowding, etc., detrimental to safety, health or morals: It is in areas so declared as "slum areas" that the rest of the enactment is to operate. The provisions, however, make it clear that in order that an area may be declared a "slum area" every building in that area need not be unfit for human habitation or that human habitation in every building in such area should be detrimental to the safety, health or morals of theview of the foregoing we consider that there is enough guidance to the competent authority in the use of his discretion under S. 19(1) of the Act and we, therefore, reject the contention that S. 19 is obnoxious to the equal protection of laws guaranteed by Art. 14 of the Constitution. We need only add that it was not, and could not be, disputed that the guidance which we have held could be derived from the enactment, and that it bears a reasonable and rational relationship to the object to be attained by the Act and, in fact, would fulfil the purpose which the law seeks to achieve, viz., the orderly elimination of slums, with interim protection for the slum dwellers until they were moved into better dwellings. We are further of the opinion that the order of the competent authority in the present case is not open to challenge either, because it would be seen that the grounds upon which he has rejected the petitioners application for execution is in line with what we have stated to be the policy and purpose of thethe context of modern conditions and the variety and complexity of the situations which present themselves for solution, it is not possible for the Legislature to envisage in detail every possibility and make provision for them. The Legislature, therefore, is forced to leave the authorities created by it an ample discretion, limited, however, by the guidance afforded by the Act. This is the ratio of delegated legislation, and is a process which has come to stay, and which one may be permitted to observe is not without its advantages. So long therefore, as the Legislature indicates, in the operative provision of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate. The second is that if the power or discretion has been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more detailed provisions, could obviously not be a ground for invalidating thecriteria for determining the degree of restriction on the right to hold property which would be considered reasonable, are by no means fixed or static, but must obviously vary from age to age and be related to the adjustments necessary to solve the problems which communities face from time to time. The tests, therefore, evolved by communities living in sheltered or placid times, or laid down in decisions applicable to them can hardly serve as a guide for the solution of the problems of post-partition India with its stresses and strains arising out of movements of populations which have had few parallels in history. If law failed to take account of unusual situations of pressing urgency arising in the country, and of the social urges generated by the patterns of thought-evolution and of social consciousness which we witness in the second half of this century, it would have to be written down as having failed in the very purpose of its existence. Where the legislature fulfils its purpose and enacts laws, which is its wisdom, are considered necessary for the solution of what after all is a very human problem the tests of "reasonableness" have to be viewed in the context of the issues which faced the legislature. In the construction of such laws and particularly in judging of their validity the Courts have necessarily to approach it from the point of view of furthering the social interest which it is the purpose of the legislation to promote, for the Courts are not, in these matters, functioning as it were in vacuo, but as parts of a society which is trying, by enacted law, to solve its problems and achieve social concord and peaceful adjustment and thus furthering the moral and material progress of the community as aargument is clearly untenable. If, however, that was not meant, but that in the context of the restrictions already imposed by the Rent Control Act S. 19 of the Act was really unnecessary and therefore an unreasonable restraint on the freedom of the landlord, what we have said earlier ought to suffice to repel thethis section stood alone, the argument of learned counsel that by reason of the width and sweep of its language, even a special legislation, such as the Act was comprehended within the non obstante provision would have required serious consideration, but that has been rendered unnecessary, because even apart from S. 19 of the Act which opens with the words: "Notwithstanding anything contained in any other law for the time being in force", S. 39 of the Act also contains a non obstante clause on the same lines as S. 38 of the Rent Control Act. The result therefore would be that the provisions of the special enactment, as the Act is, will in respect of the buildings in areas declared slum areas operate in addition to the Rent Control Act. The argument therefore that the Act is inapplicable to buildings covered by the Rent Control Act is without substance, particularly when it is seen that it is only when a decree for eviction is obtained that S. 19 of the Act comes into play.We therefore consider that none of the points urged in support of the petitions has any substance. | 0 | 9,174 | 1,782 | ### Instruction:
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and achieve social concord and peaceful adjustment and thus furthering the moral and material progress of the community as a whole.29. Judged in the light of the above, we consider that the restrictions imposed cannot be said to be unreasonable. As we have already pointed out, the ban imposed on evictions is temporary, though learned counsel is right in saying that its duration is not definite. In the very nature of things the period when slums would have ceased to exist or restrictions placed upon owners of property could be completely lifted must, obviously, be indefinite and therefore the indefiniteness cannot be a ground for invalidity-a ground upon which the restriction could be held to be unreasonable. Again, there is an appeal provided from the orders of the competent authority to the Chief Administrator. If learned counsel is right in his submission that the power of the "competent authority" is unguided and that he had an unfettered and arbitrary authority to exercise his discretion "at his sweet will and pleasure" the existence of a provision for appeals might not impart validity to such legislation. The reason for this is that the appellate power would be subject to the same vice as the power of the original authority and the imposition of one sweet will and pleasure" over another of a lower authority, would not prevent discrimination or render the restriction reasonable. But if, as we have held earlier, the Act by its preamble and by its provisions do afford a guidance to the "competent authority" by pointing out the manner in which the discretion vested in him should be exercised, the provision as to an appeal assumes a different significance. In such cases, if the "competent authority" oversteps the limits of his powers or ignores the policy behind the Act and acts contrary to its declared intention, the appellate authority could be invoked to step in and correct the error. It would, therefore, be a provision for doubly safeguarding that the policy of the Act is carried out and not ignored in each and every case that comes up before "the competent authority".30. The procedure laid down by the Act for the hearing by the "competent authority" and the provision for enquiry, renders the "competent authority" a quasi-judicial functionary bound to follow fixed rules of procedure and its orders passed after such an enquiry are to be subject to appeals to the Administrator. We consider these safeguards very relevant for judging about the reasonableness of the restriction. In considering these matters one has to take into account the fact - a fact of which judicial notice has to be taken- that there has been an unprecedented influx of population into the capital, and in such a short interval, that there has not been time for natural processes of expansion of the city to adjust itself to the increased needs Remedies which in normal times might be considered an unreasonable restriction on the right to hold property would not bear that aspect or be so considered when viewed in a situation of emergency brought about by exceptional and unprecedented circumstances. Just as pulling down a building to prevent the spread of flames would be reasonable in the event of a fire, the reasonableness of the restrictions imposed by the impugned legislation has to be judged in the light of actual facts and not on a priori reasoning based on the dicta in decisions rendered in situations bearing not even the remotest resemblance to that which presented itself to Parliament when the legislation now impugned was enacted.31. Before concluding it is necessary to advert to a few points which were also urged by learned counsel for the petitioner. First it was said, that the impugned S. 19 of the Act imposed a double restriction, a restriction super-imposed on a restriction already existing by virtue of the provisions of the Rent Control Act, and that this rendered it unreasonable. If by this submission learned counsel meant that different results as to constitutional validity flowed from whether the impugned section was part of the provisions of the Rent Control Act, or was a section in an independent enactment, the argument is clearly untenable. If, however, that was not meant, but that in the context of the restrictions already imposed by the Rent Control Act S. 19 of the Act was really unnecessary and therefore an unreasonable restraint on the freedom of the landlord, what we have said earlier ought to suffice to repel the argument.32. Learned counsel next drew our attention to S. 38 of the Rent Control Act which reads:"The provisions of this Act and of the rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law."33. If this section stood alone, the argument of learned counsel that by reason of the width and sweep of its language, even a special legislation, such as the Act was comprehended within the non obstante provision would have required serious consideration, but that has been rendered unnecessary, because even apart from S. 19 of the Act which opens with the words: "Notwithstanding anything contained in any other law for the time being in force", S. 39 of the Act also contains a non obstante clause on the same lines as S. 38 of the Rent Control Act. The result therefore would be that the provisions of the special enactment, as the Act is, will in respect of the buildings in areas declared slum areas operate in addition to the Rent Control Act. The argument therefore that the Act is inapplicable to buildings covered by the Rent Control Act is without substance, particularly when it is seen that it is only when a decree for eviction is obtained that S. 19 of the Act comes into play.34. We therefore consider that none of the points urged in support of the petitions has any substance.
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of the enactment is to operate. The provisions, however, make it clear that in order that an area may be declared a "slum area" every building in that area need not be unfit for human habitation or that human habitation in every building in such area should be detrimental to the safety, health or morals of theview of the foregoing we consider that there is enough guidance to the competent authority in the use of his discretion under S. 19(1) of the Act and we, therefore, reject the contention that S. 19 is obnoxious to the equal protection of laws guaranteed by Art. 14 of the Constitution. We need only add that it was not, and could not be, disputed that the guidance which we have held could be derived from the enactment, and that it bears a reasonable and rational relationship to the object to be attained by the Act and, in fact, would fulfil the purpose which the law seeks to achieve, viz., the orderly elimination of slums, with interim protection for the slum dwellers until they were moved into better dwellings. We are further of the opinion that the order of the competent authority in the present case is not open to challenge either, because it would be seen that the grounds upon which he has rejected the petitioners application for execution is in line with what we have stated to be the policy and purpose of thethe context of modern conditions and the variety and complexity of the situations which present themselves for solution, it is not possible for the Legislature to envisage in detail every possibility and make provision for them. The Legislature, therefore, is forced to leave the authorities created by it an ample discretion, limited, however, by the guidance afforded by the Act. This is the ratio of delegated legislation, and is a process which has come to stay, and which one may be permitted to observe is not without its advantages. So long therefore, as the Legislature indicates, in the operative provision of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate. The second is that if the power or discretion has been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more detailed provisions, could obviously not be a ground for invalidating thecriteria for determining the degree of restriction on the right to hold property which would be considered reasonable, are by no means fixed or static, but must obviously vary from age to age and be related to the adjustments necessary to solve the problems which communities face from time to time. The tests, therefore, evolved by communities living in sheltered or placid times, or laid down in decisions applicable to them can hardly serve as a guide for the solution of the problems of post-partition India with its stresses and strains arising out of movements of populations which have had few parallels in history. If law failed to take account of unusual situations of pressing urgency arising in the country, and of the social urges generated by the patterns of thought-evolution and of social consciousness which we witness in the second half of this century, it would have to be written down as having failed in the very purpose of its existence. Where the legislature fulfils its purpose and enacts laws, which is its wisdom, are considered necessary for the solution of what after all is a very human problem the tests of "reasonableness" have to be viewed in the context of the issues which faced the legislature. In the construction of such laws and particularly in judging of their validity the Courts have necessarily to approach it from the point of view of furthering the social interest which it is the purpose of the legislation to promote, for the Courts are not, in these matters, functioning as it were in vacuo, but as parts of a society which is trying, by enacted law, to solve its problems and achieve social concord and peaceful adjustment and thus furthering the moral and material progress of the community as aargument is clearly untenable. If, however, that was not meant, but that in the context of the restrictions already imposed by the Rent Control Act S. 19 of the Act was really unnecessary and therefore an unreasonable restraint on the freedom of the landlord, what we have said earlier ought to suffice to repel thethis section stood alone, the argument of learned counsel that by reason of the width and sweep of its language, even a special legislation, such as the Act was comprehended within the non obstante provision would have required serious consideration, but that has been rendered unnecessary, because even apart from S. 19 of the Act which opens with the words: "Notwithstanding anything contained in any other law for the time being in force", S. 39 of the Act also contains a non obstante clause on the same lines as S. 38 of the Rent Control Act. The result therefore would be that the provisions of the special enactment, as the Act is, will in respect of the buildings in areas declared slum areas operate in addition to the Rent Control Act. The argument therefore that the Act is inapplicable to buildings covered by the Rent Control Act is without substance, particularly when it is seen that it is only when a decree for eviction is obtained that S. 19 of the Act comes into play.We therefore consider that none of the points urged in support of the petitions has any substance.
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State of Uttar Pradesh Vs. Manbodhan Lal Srivastava | a non-compliance is to invalidate the proceedings ending with the final order of the Government. This aspect of the relevant provisions of Part XIV of the Constitution, has a direct bearing on the question whether Art. 320 is mandatory. The question whether a certain provision in a statute imposing a duty on a public body or authority was mandatory or only directory, arose before their Lordships of the Judicial Committee of the Privy Council in the case of Montreal Street Rly. Co. v. Normandin, 1917 A.C. 170 (B). In that case the question mooted was whether the omission to revise the jury lists as directed by the statute, had the effect of nullifying the verdict given by a jury. Their Lordships held that the irregularities in the due revision of the jury lists, will not ipso facto avoid the verdict of a jury. The Board made the following observations in the course of their judgment :"........ The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th ed., p. 596 and following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."14. The principle laid down in this case was adopted by the Federal Court in the case of Biswanath Khemka v. The King Emperor, 1945 F C R 99 : (A I R 1945 F C 67) (C). In that case, the Federal Court had to consider the effect of non-compliance with the provisions of S. 256 of the Government of India Act, 1935, requiring consultation between public authorities before the conferment of magisterial powers or of enhanced magisterial powers, etc.15. The Court repelled the contention that the provisions of S. 256, aforesaid, were mandatory. It was further held that non-compliance with that section would not render the appointment otherwise regularly and validly made, invalid or inoperative. That decision is particularly important as the words of the section then before their Lordships of the Federal Court, were very emphatic and of a prohibitory character.16. An examination of the terms of Art. 320 shows that the word "shall" appears in almost every paragraph and every clause or sub-clauses of that article. If it were held that the provisions of Art. 320 (3) (c) are mandatory in terms, the other clauses or sub-clauses of that article, will have to be equally held to be mandatory. If they are so held, any appointments made to the public services of the Union or a State, without observing strictly, the terms of these sub-clauses in cl. (3) of Art. 320, would adversely affect the person so appointed to a public service, without any fault on his part and without his having any say in the matter. This result could not have been contemplated by the makers of the Constitution.Hence, the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word "may" has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on "Statutory Construction -Art. 261 at p. 516, is pertinent:"The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequence which would follow from construing it the one way or the other ........."17. We have already indicated that Art. 320 (3) (c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a Court of law, or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution or of this Court under Art. 32. It is not a right which could be recognized and enforced by a writ. On the other hand, Art. 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in a Court of law. Hence, if the provisions of Art. 311, have been complied with in this case - and it has not been contended at any stage that they had not been complied with- he has no remedy against any irregularity that the State Government may have committed. Unless, it can be held, and we are not prepared to hold, that Art. 320 (3) (c) is in the nature of a rider or proviso to Art. 311, it is not possible to construe Art. 320 (3) (c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer.18. | 1[ds]It is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage, and to fill in gaps. Of course, the position is different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice between the parties.In this case, therefore, we have proceeded on the assumption that though the Commission was consulted as to the guilt or otherwise of the respondent and the action proposed to be taken against him after he had submitted his explanation in answer to the first show-cause-notice, there was no consultation with the Commission after the respondent had submitted his more elaborate explanation in answer to the secondthe operative portion of the final order of the Government which adversely affected the respondent, was the order reducing him in rank from the Provincial to the Subordinate grade. That order appears to have satisfies the conditions laid down in Art. 311 of the Constitution. At no stage of the controversy, has it been suggested that so far as the appellant was concerned, the respondent has not a "reasonable opportunity of showing cause against the action proposed to be taken in regard to him"; that is to say, it is now beyond question that the proceedings taken by the appellant including the departmental inquiry against the respondent ending with his reduction in rank, satisfied the mandatory provisions of Chapter I of Part XIV of the Constitution, with particular reference to Art.conclusion would put an end to the respondents case, unless it is held that the provisions of Art. 320 (3) (c) are of a mandatory character and are in the nature of a rider to Art.is, therefore, incumbent upon the Executive Government when it proposes to take any disciplinary action against a public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of theit is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Commission on those matters, binding on the Government. Of course, the Government, when it consults the Commission on matters like these, does it not by way of a mere formality but with a view to getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to bethe opinion of the Commission were binding on the Government, it may have been argued with greater force that non-compliance with the rule for consultation would have been fatal to the validity of the order proposed to be passed against a public servant. In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Art. 320 (3)(c) could have the effect of nullifying the final order passed by the Government.Thirdly Art. 320 or the other articles in chap. 11 of Part XIV of the Constitution, deal with the Constitution of the Commission and appointment and removal of the Chairman or other members of the Commission and their terms of service as also their duties and functions. Chapter II deals with the relation between Government and the Commission but not between the Commission and a publicII containing Art. 320, does not, in terms, confer any rights or privileges on an individual public servant, nor any constitutional guarantee of the nature contained in chap. I of that Part particularly Art.Article 311, therefore, is not, in any way, controlled by the provisions of chap. II of Part XIV, with particular reference to Art. 320.An examination of the terms of Art. 320 shows that the word "shall" appears in almost every paragraph and every clause or sub-clauses of that article. If it were held that the provisions of Art. 320 (3) (c) are mandatory in terms, the other clauses or sub-clauses of that article, will have to be equally held to bethey are so held, any appointments made to the public services of the Union or a State, without observing strictly, the terms of these sub-clauses in cl. (3) of Art. 320, would adversely affect the person so appointed to a public service, without any fault on his part and without his having any say in theresult could not have been contemplated by the makers of the Constitution.Hence, the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would bethe other hand, it is not always correct to say that where the word "may" has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceedinghave already indicated that Art. 320 (3) (c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a Court of law, or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution or of this Court under Art. 32. It is not a right which could be recognized and enforced by athe other hand, Art. 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in a Court of law. Hence, if the provisions of Art. 311, have been complied with in this case - and it has not been contended at any stage that they had not been complied with- he has no remedy against any irregularity that the State Government may haveit can be held, and we are not prepared to hold, that Art. 320 (3) (c) is in the nature of a rider or proviso to Art. 311, it is not possible to construe Art. 320 (3) (c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer. | 1 | 5,054 | 1,180 | ### Instruction:
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a non-compliance is to invalidate the proceedings ending with the final order of the Government. This aspect of the relevant provisions of Part XIV of the Constitution, has a direct bearing on the question whether Art. 320 is mandatory. The question whether a certain provision in a statute imposing a duty on a public body or authority was mandatory or only directory, arose before their Lordships of the Judicial Committee of the Privy Council in the case of Montreal Street Rly. Co. v. Normandin, 1917 A.C. 170 (B). In that case the question mooted was whether the omission to revise the jury lists as directed by the statute, had the effect of nullifying the verdict given by a jury. Their Lordships held that the irregularities in the due revision of the jury lists, will not ipso facto avoid the verdict of a jury. The Board made the following observations in the course of their judgment :"........ The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th ed., p. 596 and following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."14. The principle laid down in this case was adopted by the Federal Court in the case of Biswanath Khemka v. The King Emperor, 1945 F C R 99 : (A I R 1945 F C 67) (C). In that case, the Federal Court had to consider the effect of non-compliance with the provisions of S. 256 of the Government of India Act, 1935, requiring consultation between public authorities before the conferment of magisterial powers or of enhanced magisterial powers, etc.15. The Court repelled the contention that the provisions of S. 256, aforesaid, were mandatory. It was further held that non-compliance with that section would not render the appointment otherwise regularly and validly made, invalid or inoperative. That decision is particularly important as the words of the section then before their Lordships of the Federal Court, were very emphatic and of a prohibitory character.16. An examination of the terms of Art. 320 shows that the word "shall" appears in almost every paragraph and every clause or sub-clauses of that article. If it were held that the provisions of Art. 320 (3) (c) are mandatory in terms, the other clauses or sub-clauses of that article, will have to be equally held to be mandatory. If they are so held, any appointments made to the public services of the Union or a State, without observing strictly, the terms of these sub-clauses in cl. (3) of Art. 320, would adversely affect the person so appointed to a public service, without any fault on his part and without his having any say in the matter. This result could not have been contemplated by the makers of the Constitution.Hence, the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word "may" has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on "Statutory Construction -Art. 261 at p. 516, is pertinent:"The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequence which would follow from construing it the one way or the other ........."17. We have already indicated that Art. 320 (3) (c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a Court of law, or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution or of this Court under Art. 32. It is not a right which could be recognized and enforced by a writ. On the other hand, Art. 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in a Court of law. Hence, if the provisions of Art. 311, have been complied with in this case - and it has not been contended at any stage that they had not been complied with- he has no remedy against any irregularity that the State Government may have committed. Unless, it can be held, and we are not prepared to hold, that Art. 320 (3) (c) is in the nature of a rider or proviso to Art. 311, it is not possible to construe Art. 320 (3) (c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer.18.
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evidence to be adduced in order to enable it to do justice between the parties.In this case, therefore, we have proceeded on the assumption that though the Commission was consulted as to the guilt or otherwise of the respondent and the action proposed to be taken against him after he had submitted his explanation in answer to the first show-cause-notice, there was no consultation with the Commission after the respondent had submitted his more elaborate explanation in answer to the secondthe operative portion of the final order of the Government which adversely affected the respondent, was the order reducing him in rank from the Provincial to the Subordinate grade. That order appears to have satisfies the conditions laid down in Art. 311 of the Constitution. At no stage of the controversy, has it been suggested that so far as the appellant was concerned, the respondent has not a "reasonable opportunity of showing cause against the action proposed to be taken in regard to him"; that is to say, it is now beyond question that the proceedings taken by the appellant including the departmental inquiry against the respondent ending with his reduction in rank, satisfied the mandatory provisions of Chapter I of Part XIV of the Constitution, with particular reference to Art.conclusion would put an end to the respondents case, unless it is held that the provisions of Art. 320 (3) (c) are of a mandatory character and are in the nature of a rider to Art.is, therefore, incumbent upon the Executive Government when it proposes to take any disciplinary action against a public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of theit is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Commission on those matters, binding on the Government. Of course, the Government, when it consults the Commission on matters like these, does it not by way of a mere formality but with a view to getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to bethe opinion of the Commission were binding on the Government, it may have been argued with greater force that non-compliance with the rule for consultation would have been fatal to the validity of the order proposed to be passed against a public servant. In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Art. 320 (3)(c) could have the effect of nullifying the final order passed by the Government.Thirdly Art. 320 or the other articles in chap. 11 of Part XIV of the Constitution, deal with the Constitution of the Commission and appointment and removal of the Chairman or other members of the Commission and their terms of service as also their duties and functions. Chapter II deals with the relation between Government and the Commission but not between the Commission and a publicII containing Art. 320, does not, in terms, confer any rights or privileges on an individual public servant, nor any constitutional guarantee of the nature contained in chap. I of that Part particularly Art.Article 311, therefore, is not, in any way, controlled by the provisions of chap. II of Part XIV, with particular reference to Art. 320.An examination of the terms of Art. 320 shows that the word "shall" appears in almost every paragraph and every clause or sub-clauses of that article. If it were held that the provisions of Art. 320 (3) (c) are mandatory in terms, the other clauses or sub-clauses of that article, will have to be equally held to bethey are so held, any appointments made to the public services of the Union or a State, without observing strictly, the terms of these sub-clauses in cl. (3) of Art. 320, would adversely affect the person so appointed to a public service, without any fault on his part and without his having any say in theresult could not have been contemplated by the makers of the Constitution.Hence, the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would bethe other hand, it is not always correct to say that where the word "may" has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceedinghave already indicated that Art. 320 (3) (c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a Court of law, or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution or of this Court under Art. 32. It is not a right which could be recognized and enforced by athe other hand, Art. 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in a Court of law. Hence, if the provisions of Art. 311, have been complied with in this case - and it has not been contended at any stage that they had not been complied with- he has no remedy against any irregularity that the State Government may haveit can be held, and we are not prepared to hold, that Art. 320 (3) (c) is in the nature of a rider or proviso to Art. 311, it is not possible to construe Art. 320 (3) (c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer.
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HIGH COURT OF TRIPURA THROUGH THE REGISTRAR GENERAL Vs. TIRTHA SARATHI MUKHERJEE | in rare or exceptional cases on the commission of material error. It may not be correct to characterize the case as a rare or exceptional case when the first respondent approaches the Court with a delay of nearly 5 years allowing subsequent events to overtake him and the Court. We feel that this aspect was not fully appreciated by the High Court. The review, it must be noted is not a re-hearing of the main matter. A review would lie only on detection without much debate of an error apparent. Was this such a case? It is here that we must notice the argument of the appellant relating to question in Part III of the examination alone, engaging the attention of the Court for the reason that the first respondent pressed this aspect alone before the High court. The judgment of the High Court in the writ petition appears to bear out this submission of the appellant. The issue relating to the anomaly in the evaluation of the Paper III has been discussed thread bare in the judgment. The view of the High Court has not been disturbed by this Court. Despite this the High Court in the impugned judgment has proceeded to take up the plea relating to questions in Part-I and Part-II and proceeded to consider the review petition and granted relief that too after the passage of nearly 5 years. This suffices to allow the present appeal. Despite all this we would also make a few observations on the merits of the matter. 23. The first respondent has fallen short of 5 marks. In the impugned judgment in paragraph 25, the Division Bench picks up four questions. The Court has premised its interference on the basis of the aforesaid answers given to the 4 questions by the first respondent. If we take Question 3(xiii), the question was as follows: Question no.-3(xiii) of paper-II Adjournment under order xvii Rule 1 C.P.C. cannot be granted under any circumstances for more than 3 times to a party during trial of the suit (Mark -1) . 24. The first respondents answer is that it is incorrect but he has been given no marks as apparently cross sign is given as he has given wrong answer. Order XVII Rule 1 reads as follows: 1. Court may grant time and adjourn hearing – (1) The Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the suits. 25. The case of the first respondent is based on the judgment of this Court in Salem Advocates Bar Association Case 2005 (6) SCC 344. According to him even though under Order XVII Rule 1 under no circumstances can adjournment be granted to a party during trial for more than three times, this Court in the aforesaid judgment has taken the view that beyond 3 times adjournment can be granted. It is clear that going by the provisions of Order XVII Rule 1, the answer given by the first respondent is wrong. It is on the basis of interpretation placed by the Court that adjournment can be in excess of 3 times. If the examining body has proceeded to evaluate the answers on the basis of actual provision of Order XVII Rule 1, it is not a matter where particularly there is no right to revaluation, we are persuaded to interfere. We would defer to the view which the examining body would have taken. 26. The next question is Question No.2 (xviii) which reads as follows: Q.No. – 2(xviii) in paper no. – (II) The Plaintiff can file an application under section 5 of Limitation Act seeking extension of the period of limitation prescribed (Mark – 1) . The choices given are as follows: (a) for filing a suit, (b) for filing an appeal, (c) for filing an application under Order XXI CPC (d) for all the above.27. The complaint of the first respondent is that he ticked Answer No.B but he is given cross sign which means his answer is wrong whereas he would contend that all the other answers namely A,C and D were incorrect and it is only B which could possibly be correct. 28. We will proceed on the basis that there is merit in the contention of first respondent. The next question is Question No.3 (xv) in Paper No.2. The question was Appellate Court cannot allow a party to produce additional evidence. But for the answer given `incorrect. Respondent was given the cross sign and no marks given. Here also we proceed on the basis that first respondent may have legitimate grievance. Finally, there is Question No.1 (xiv) in Paper No.2 which reads as follows: Q.No. – 1(xiv) in paper no. – (II) Plaintiff sues the defendants for recovery of Rs. 1,00,000/- in order to prove the case, the plaintiff proved the entries in his books of account showing the defendant to be indebted to him to the said amount (Mark – 3) . 29. The answer of the petitioner appears to be as follows: In civil case, the case is proved by preponderance of probabilities. But in the above case, neither written of nor money receipt was proved. So, entries in the Books of account is not sufficient. 30. It is to be noted that it is not an objective type question, the maximum marks are 3. This is not a case even if we proceed on the basis that the answer is correct, marks is to be awarded as such. We noticed that for 5 questions, the respondent No. 1 has been given 1 mark, even though, the maximum is 3 marks. It would appear that awarding full marks is based, not merely, on the correctness of the answer. | 1[ds]12. Noticing cleavage of judicial opinion, the matter has been referred to a larger Bench. In the light of these developments we do not think that the appellant is entitled to relief on the basis that the Review Petition was filed after the dismissal of the Special Leave Petition18. We have noticed the decisions of this Court. Undoubtedly, a three Judge Bench has laid down that there is no legal right to claim or ask for revaluation in the absence of any provision for revaluation. Undoubtedly, there is no provision. In fact, the High Court in the impugned judgment has also proceeded on the said basis.It is true that the right to seek a writ of mandamus is based on the existence of a legal right and the corresponding duty with the answering respondent to carry out the public duty. Thus, as of right, it is clear that the first respondent could not maintain either writ petition or the review petition demanding holding of revaluationA grave injustice may be occasioned to a writ applicant in certain circumstances. The case may arise where even though there is no provision for revaluation it turns out that despite giving the correct answer no marks are awarded. No doubt this must be confined to a case where there is no dispute about the correctness of the answer. Further, if there is any doubt, the doubt should be resolved in favour of the examining body rather than in favour of the candidate. The wide power under Article 226 may continue to be available even though there is no provision for revaluation in a situation where a candidate despite having giving correct answer and about which there cannot be even slightest manner of doubt, he is treated as having given the wrong answer and consequently the candidate is found disentitled to any marksIt is one thing to say that the absence of provision for revaluation will not enable the candidate to claim the right of evaluation as a matter of right and another to say that in no circumstances whatsoever where there is no provision for revaluation will the writ court exercise its undoubted constitutional powers? We reiterate that the situation can only be rare and exceptional22. In this case we have already noted that the writ petition was filed challenging the results and seeking revaluation. The writ petition came to be dismissed in the year 2012 by the High Court. The Special Leave Petition was dismissed in the year 2013. The review petition is filed after nearly 5 years. In the interregnum, there were supervening development in the form of fresh selection. While it may be true that the delay in filing the review petition may have been condoned, it does not mean that the Court where it exercises its discretionary jurisdiction under Article 226 is to become oblivious to the subsequent development and the impact of passage of time. Even in the judgment of this Court in U.P.P.S.C. through its Chairman & Anr. Vs. Rahul Singh & Anr. reported in 2018 (2) SCC 357 which according to the first respondent forms the basis of the High Courts interference though does not expressly stated so, what the Court has laid down is that the Court may permit revaluation inter alia only if it is demonstrated very clearly without any inferential process of reasoning or by a process of rationalization and only in rare or exceptional cases on the commission of material error. It may not be correct to characterize the case as a rare or exceptional case when the first respondent approaches the Court with a delay of nearly 5 years allowing subsequent events to overtake him and the Court. We feel that this aspect was not fully appreciated by the High Court. The review, it must be noted is not a re-hearing of the main matter. A review would lie only on detection without much debate of an error apparent. Was this such a case? It is here that we must notice the argument of the appellant relating to question in Part III of the examination alone, engaging the attention of the Court for the reason that the first respondent pressed this aspect alone before the High court. The judgment of the High Court in the writ petition appears to bear out this submission of the appellant. The issue relating to the anomaly in the evaluation of the Paper III has been discussed thread bare in the judgment. The view of the High Court has not been disturbed by this Court. Despite this the High Court in the impugned judgment has proceeded to take up the plea relating to questions in Part-I and Part-II and proceeded to consider the review petition and granted relief that too after the passage of nearly 5 years. This suffices to allow the present appealDespite all this we would also make a few observations on the merits of the matter27. The complaint of the first respondent is that he ticked Answer No.B but he is given cross sign which means his answer is wrong whereas he would contend that all the other answers namely A,C and D were incorrect and it is only B which could possibly be correct30. It is to be noted that it is not an objective type question, the maximum marks are 3. This is not a case even if we proceed on the basis that the answer is correct, marks is to be awarded as such. We noticed that for 5 questions, the respondent No. 1 has been given 1 mark, even though, the maximum is 3 marks. 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in rare or exceptional cases on the commission of material error. It may not be correct to characterize the case as a rare or exceptional case when the first respondent approaches the Court with a delay of nearly 5 years allowing subsequent events to overtake him and the Court. We feel that this aspect was not fully appreciated by the High Court. The review, it must be noted is not a re-hearing of the main matter. A review would lie only on detection without much debate of an error apparent. Was this such a case? It is here that we must notice the argument of the appellant relating to question in Part III of the examination alone, engaging the attention of the Court for the reason that the first respondent pressed this aspect alone before the High court. The judgment of the High Court in the writ petition appears to bear out this submission of the appellant. The issue relating to the anomaly in the evaluation of the Paper III has been discussed thread bare in the judgment. The view of the High Court has not been disturbed by this Court. Despite this the High Court in the impugned judgment has proceeded to take up the plea relating to questions in Part-I and Part-II and proceeded to consider the review petition and granted relief that too after the passage of nearly 5 years. This suffices to allow the present appeal. Despite all this we would also make a few observations on the merits of the matter. 23. The first respondent has fallen short of 5 marks. In the impugned judgment in paragraph 25, the Division Bench picks up four questions. The Court has premised its interference on the basis of the aforesaid answers given to the 4 questions by the first respondent. If we take Question 3(xiii), the question was as follows: Question no.-3(xiii) of paper-II Adjournment under order xvii Rule 1 C.P.C. cannot be granted under any circumstances for more than 3 times to a party during trial of the suit (Mark -1) . 24. The first respondents answer is that it is incorrect but he has been given no marks as apparently cross sign is given as he has given wrong answer. Order XVII Rule 1 reads as follows: 1. Court may grant time and adjourn hearing – (1) The Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the suits. 25. The case of the first respondent is based on the judgment of this Court in Salem Advocates Bar Association Case 2005 (6) SCC 344. According to him even though under Order XVII Rule 1 under no circumstances can adjournment be granted to a party during trial for more than three times, this Court in the aforesaid judgment has taken the view that beyond 3 times adjournment can be granted. It is clear that going by the provisions of Order XVII Rule 1, the answer given by the first respondent is wrong. It is on the basis of interpretation placed by the Court that adjournment can be in excess of 3 times. If the examining body has proceeded to evaluate the answers on the basis of actual provision of Order XVII Rule 1, it is not a matter where particularly there is no right to revaluation, we are persuaded to interfere. We would defer to the view which the examining body would have taken. 26. The next question is Question No.2 (xviii) which reads as follows: Q.No. – 2(xviii) in paper no. – (II) The Plaintiff can file an application under section 5 of Limitation Act seeking extension of the period of limitation prescribed (Mark – 1) . The choices given are as follows: (a) for filing a suit, (b) for filing an appeal, (c) for filing an application under Order XXI CPC (d) for all the above.27. The complaint of the first respondent is that he ticked Answer No.B but he is given cross sign which means his answer is wrong whereas he would contend that all the other answers namely A,C and D were incorrect and it is only B which could possibly be correct. 28. We will proceed on the basis that there is merit in the contention of first respondent. The next question is Question No.3 (xv) in Paper No.2. The question was Appellate Court cannot allow a party to produce additional evidence. But for the answer given `incorrect. Respondent was given the cross sign and no marks given. Here also we proceed on the basis that first respondent may have legitimate grievance. Finally, there is Question No.1 (xiv) in Paper No.2 which reads as follows: Q.No. – 1(xiv) in paper no. – (II) Plaintiff sues the defendants for recovery of Rs. 1,00,000/- in order to prove the case, the plaintiff proved the entries in his books of account showing the defendant to be indebted to him to the said amount (Mark – 3) . 29. The answer of the petitioner appears to be as follows: In civil case, the case is proved by preponderance of probabilities. But in the above case, neither written of nor money receipt was proved. So, entries in the Books of account is not sufficient. 30. It is to be noted that it is not an objective type question, the maximum marks are 3. This is not a case even if we proceed on the basis that the answer is correct, marks is to be awarded as such. We noticed that for 5 questions, the respondent No. 1 has been given 1 mark, even though, the maximum is 3 marks. It would appear that awarding full marks is based, not merely, on the correctness of the answer.
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12. Noticing cleavage of judicial opinion, the matter has been referred to a larger Bench. In the light of these developments we do not think that the appellant is entitled to relief on the basis that the Review Petition was filed after the dismissal of the Special Leave Petition18. We have noticed the decisions of this Court. Undoubtedly, a three Judge Bench has laid down that there is no legal right to claim or ask for revaluation in the absence of any provision for revaluation. Undoubtedly, there is no provision. In fact, the High Court in the impugned judgment has also proceeded on the said basis.It is true that the right to seek a writ of mandamus is based on the existence of a legal right and the corresponding duty with the answering respondent to carry out the public duty. Thus, as of right, it is clear that the first respondent could not maintain either writ petition or the review petition demanding holding of revaluationA grave injustice may be occasioned to a writ applicant in certain circumstances. The case may arise where even though there is no provision for revaluation it turns out that despite giving the correct answer no marks are awarded. No doubt this must be confined to a case where there is no dispute about the correctness of the answer. Further, if there is any doubt, the doubt should be resolved in favour of the examining body rather than in favour of the candidate. The wide power under Article 226 may continue to be available even though there is no provision for revaluation in a situation where a candidate despite having giving correct answer and about which there cannot be even slightest manner of doubt, he is treated as having given the wrong answer and consequently the candidate is found disentitled to any marksIt is one thing to say that the absence of provision for revaluation will not enable the candidate to claim the right of evaluation as a matter of right and another to say that in no circumstances whatsoever where there is no provision for revaluation will the writ court exercise its undoubted constitutional powers? We reiterate that the situation can only be rare and exceptional22. In this case we have already noted that the writ petition was filed challenging the results and seeking revaluation. The writ petition came to be dismissed in the year 2012 by the High Court. The Special Leave Petition was dismissed in the year 2013. The review petition is filed after nearly 5 years. In the interregnum, there were supervening development in the form of fresh selection. While it may be true that the delay in filing the review petition may have been condoned, it does not mean that the Court where it exercises its discretionary jurisdiction under Article 226 is to become oblivious to the subsequent development and the impact of passage of time. Even in the judgment of this Court in U.P.P.S.C. through its Chairman & Anr. Vs. Rahul Singh & Anr. reported in 2018 (2) SCC 357 which according to the first respondent forms the basis of the High Courts interference though does not expressly stated so, what the Court has laid down is that the Court may permit revaluation inter alia only if it is demonstrated very clearly without any inferential process of reasoning or by a process of rationalization and only in rare or exceptional cases on the commission of material error. It may not be correct to characterize the case as a rare or exceptional case when the first respondent approaches the Court with a delay of nearly 5 years allowing subsequent events to overtake him and the Court. We feel that this aspect was not fully appreciated by the High Court. The review, it must be noted is not a re-hearing of the main matter. A review would lie only on detection without much debate of an error apparent. Was this such a case? It is here that we must notice the argument of the appellant relating to question in Part III of the examination alone, engaging the attention of the Court for the reason that the first respondent pressed this aspect alone before the High court. The judgment of the High Court in the writ petition appears to bear out this submission of the appellant. The issue relating to the anomaly in the evaluation of the Paper III has been discussed thread bare in the judgment. The view of the High Court has not been disturbed by this Court. Despite this the High Court in the impugned judgment has proceeded to take up the plea relating to questions in Part-I and Part-II and proceeded to consider the review petition and granted relief that too after the passage of nearly 5 years. This suffices to allow the present appealDespite all this we would also make a few observations on the merits of the matter27. The complaint of the first respondent is that he ticked Answer No.B but he is given cross sign which means his answer is wrong whereas he would contend that all the other answers namely A,C and D were incorrect and it is only B which could possibly be correct30. It is to be noted that it is not an objective type question, the maximum marks are 3. This is not a case even if we proceed on the basis that the answer is correct, marks is to be awarded as such. We noticed that for 5 questions, the respondent No. 1 has been given 1 mark, even though, the maximum is 3 marks. It would appear that awarding full marks is based, not merely, on the correctness of the answer.
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Forbes & Company Limited & Another Vs. The Official Liquidator of The Hon'Ble Bombay High Court & Another | to be considered on an application for a stay. These must, of course, depend on the circumstances of each case; but where, as here, there is a strong probability, if not more, that the assets of the company will suffice to pay all the creditors and the expenses of the liquidation, and so leave a surplus for the members of the company, there are plainly three categories to consider. First, there are the creditors. Their rights are finite, in that they cannot claim more than 100p in the pound. .......................Third, there are the members of the company. No question of satisfying them by immediate payment of all that they are entitled to can very well arise; for unlike the creditors, with their ascertained or ascertainable debts, the rights of the members cannot be quantified until the liquidation is complete. Accordingly, in normal circumstances I think that no stay should be granted unless each member either consents to it, or is otherwise bound not to object to it, or else there is secured to him the right to receive all that he would have received had the winding up proceeded to its conclusion. Each member has a right of a proprietary nature to share in the surplus assets, and each should be protected against the destruction of that right without good causeThe decision of Megarry, J. in Re Calgary is a clear authority for a proposition that in normal circumstances, no stay should be granted of winding up unless each member, (1) either consents to it; (2) or is otherwise bound not to object to it, (3) or else there is secured to him the right to receive all that he would have received had the winding up proceeded to its conclusion. The expression in normal circumstances in this formulation also recognises that in an appropriate case and for a good cause, the court may still order a stay of winding up even if none of the three criteria are met. But that still requires a sufficient cause to be made out to the satisfaction of the court to make an exception to the normal rule. At the very minimum, this would indicate that non-existence of any of these conditions is an important criterion that would contribute to the exercise of the discretion by the court on an application for stay of winding up.26 The formulation of Megarry, J. in Re Calgary (supra) was accepted in a judgment of this Court delivered by Mrs.Justice Sujata Manohar (as the learned Judge then was) in VasantInvestment Corporation Ltd. vs. Official Liquidator, Colaba Land and Mill Co.Ltd. (1981) Volume 51 Company Cases 20). However, in VasantInvestment Corporation Ltd., the learned Single Judge held that in the case of a scheme or arrangement which is proposed under Section 391 of the Companies Act, 1956 (as was the case there), the case would fall under the second category contemplated in Re Calgary where the members become bound by the scheme. Hence, it was not necessary to obtain from each member his express consent to the scheme of reconstruction on a stay of winding up. In this regard, it would be necessary to advert to the provisions of Section 391(2) where the scheme of compromise or arrangement, upon being sanctioned by the court, binds all the creditors and members including those who would dissent.27 That brings us to the last aspect of the present appeal. In the present case, all the shareholders of the erstwhile company in liquidation did not join in the application for stay of winding up nor have they consented to it. Learned Senior Counsel appearing on behalf of the Appellants had, in fact, during the course of hearing submitted that the Appellants were unaware of and had no material available to them at present of how the other shareholders would respond when a meeting is called. In a situation such as the present, where all the shareholders have not been joined in the application for the stay of an order of winding up, it would be more appropriate if the company court were to be moved by way of an application for reconstruction under Section 391 to take the company out of winding up. In such a case, the members of the company have an opportunity to consider and vote on a proposal and the company court has the benefit of the commercial wisdom of the members (3/4th of them in value) and would still consider the aspects of commercial morality and public interest in order to bind the dissenting minority while sanctioning the scheme. The Appellants have clearly shied away from doing that. Without mustering a 3/4th majority, the Appellants want the court to stay winding up so as to interfere with the proprietary interest of a substantial percentage of members (48%) without placing any material before the court in regard to the exercise of preference by that substantial body of shareholders. This, in our view, would clearly be impermissible.28 Before we conclude, we may note that RMSS a registered union of the objecting workers has sought to allege that RMMS as a representative union is alone entitled to represent the textile mill workers. We make it clear that for the purposes of these proceedings, the legality and the validity of the MOU which was entered into by RMSS with the Appellants has not been an issue which falls for consideration. Insofar as the locus of the workmen represented by Mr.Singhvi is concerned, we have no doubt in coming to the conclusion that they have a substantial standing in these proceedings. When the court has to consider whether a permanent stay should be granted in regard to the order of winding up, every creditor, and workmen in this case being preferential creditors, is entitled to be heard.29 For these reasons, we have come to the conclusion that the learned Single Judge was not in error in refusing to stay the winding up of Svadeshi Mills. There is no merit in the Appeal. | 0[ds]The judgment of the court also considered the rights of members upon liquidation and their effect while considering an application for stay of winding up. The observations in that regard were as follows:That brings me to the third point, that of the persons whose interests have to be considered on an application for a stay. These must, of course, depend on the circumstances of each case; but where, as here, there is a strong probability, if not more, that the assets of the company will suffice to pay all the creditors and the expenses of the liquidation, and so leave a surplus for the members of the company, there are plainly three categories to consider. First, there are the creditors. Their rights are finite, in that they cannot claim more than 100p in the pound.there are the members of the company. No question of satisfying them by immediate payment of all that they are entitled to can very well arise; for unlike the creditors, with their ascertained or ascertainable debts, the rights of the members cannot be quantified until the liquidation is complete. Accordingly, in normal circumstances I think that no stay should be granted unless each member either consents to it, or is otherwise bound not to object to it, or else there is secured to him the right to receive all that he would have received had the winding up proceeded to its conclusion. Each member has a right of a proprietary nature to share in the surplus assets, and each should be protected against the destruction of that right without good causeThe decision of Megarry, J. in Re Calgary is a clear authority for a proposition that in normal circumstances, no stay should be granted of winding up unless each member, (1) either consents to it; (2) or is otherwise bound not to object to it, (3) or else there is secured to him the right to receive all that he would have received had the winding up proceeded to its conclusion. The expression in normal circumstances in this formulation also recognises that in an appropriate case and for a good cause, the court may still order a stay of winding up even if none of the three criteria are met. But that still requires a sufficient cause to be made out to the satisfaction of the court to make an exception to the normal rule. At the very minimum, this would indicate thatof any of these conditions is an important criterion that would contribute to the exercise of the discretion by the court on an application for stay of winding up.26 The formulation of Megarry, J. in Re Calgary (supra) was accepted in a judgment of this Court delivered by Mrs.Justice Sujata Manohar (as the learned Judge then was) in VasantInvestment Corporation Ltd. vs. Official Liquidator, Colaba Land and Mill Co.Ltd. (1981) Volume 51 Company Cases 20). However, in VasantInvestment Corporation Ltd., the learned Single Judge held that in the case of a scheme or arrangement which is proposed under Section 391 of the Companies Act, 1956 (as was the case there), the case would fall under the second category contemplated in Re Calgary where the members become bound by the scheme. Hence, it was not necessary to obtain from each member his express consent to the scheme of reconstruction on a stay of winding up. In this regard, it would be necessary to advert to the provisions of Section 391(2) where the scheme of compromise or arrangement, upon being sanctioned by the court, binds all the creditors and members including those who would dissent.27 That brings us to the last aspect of the present appeal. In the present case, all the shareholders of the erstwhile company in liquidation did not join in the application for stay of winding up nor have they consented to it. Learned Senior Counsel appearing on behalf of the Appellants had, in fact, during the course of hearing submitted that the Appellants were unaware of and had no material available to them at present of how the other shareholders would respond when a meeting is called. In a situation such as the present, where all the shareholders have not been joined in the application for the stay of an order of winding up, it would be more appropriate if the company court were to be moved by way of an application for reconstruction under Section 391 to take the company out of winding up. In such a case, the members of the company have an opportunity to consider and vote on a proposal and the company court has the benefit of the commercial wisdom of the members (3/4th of them in value) and would still consider the aspects of commercial morality and public interest in order to bind the dissenting minority while sanctioning the scheme. The Appellants have clearly shied away from doing that. Without mustering a 3/4th majority, the Appellants want the court to stay winding up so as to interfere with the proprietary interest of a substantial percentage of members (48%) without placing any material before the court in regard to the exercise of preference by that substantial body of shareholders. This, in our view, would clearly be impermissible.28 Before we conclude, we may note that RMSS a registered union of the objecting workers has sought to allege that RMMS as a representative union is alone entitled to represent the textile mill workers. We make it clear that for the purposes of these proceedings, the legality and the validity of the MOU which was entered into by RMSS with the Appellants has not been an issue which falls for consideration. Insofar as the locus of the workmen represented by Mr.Singhvi is concerned, we have no doubt in coming to the conclusion that they have a substantial standing in these proceedings. When the court has to consider whether a permanent stay should be granted in regard to the order of winding up, every creditor, and workmen in this case being preferential creditors, is entitled to be heard.29 For these reasons, we have come to the conclusion that the learned Single Judge was not in error in refusing to stay the winding up of Svadeshi Mills. There is no merit in theApplying the test which has been enunciated by the Supreme Court in Meghal Homes (supra), we are of the view that the exercise of the discretion by the learned Single Judge was correct and proper. The object and purpose of the Company application is not to revive the business of the Company. The whole purpose is to dispose of the assets by embarking upon real estate construction and development. The company application before the learned Single Judge has proceeded on the basis that what the Appellants would do is to diversify the business of the company into real estate by amending the objects clause of the Memorandum of Association of the company. Admittedly, the company had not carried on any real estate business in the past. Though a faint attempt was made during the course of the hearing, relying upon Clauses 4, 12, 16 and 26 of the Memorandum of Association to show that the objects clause permitted carrying on of real estate business, it is evident from the averments in the company application that the Appellants themselves proceeded on the basis that an amendment of the objects would be required in order to enable the company to enter upon real estate construction. Whether such an amendment would or would not be granted is something which may depend upon the decision of the competent authority in future but it is evident that presently, the carrying on of real estate construction would bethe objects of the company. Besides, under Section 17 of the Companies Act, 1956, an amendment of the objects requires a special resolution which in view of the provision of Section 189 requires 3/4th majority of members present and voting. No circumstances have been placed before the Court to indicate as to whether the Appellants have the support of the requisite majority for a special resolution under Section 189. | 0 | 9,536 | 1,479 | ### Instruction:
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to be considered on an application for a stay. These must, of course, depend on the circumstances of each case; but where, as here, there is a strong probability, if not more, that the assets of the company will suffice to pay all the creditors and the expenses of the liquidation, and so leave a surplus for the members of the company, there are plainly three categories to consider. First, there are the creditors. Their rights are finite, in that they cannot claim more than 100p in the pound. .......................Third, there are the members of the company. No question of satisfying them by immediate payment of all that they are entitled to can very well arise; for unlike the creditors, with their ascertained or ascertainable debts, the rights of the members cannot be quantified until the liquidation is complete. Accordingly, in normal circumstances I think that no stay should be granted unless each member either consents to it, or is otherwise bound not to object to it, or else there is secured to him the right to receive all that he would have received had the winding up proceeded to its conclusion. Each member has a right of a proprietary nature to share in the surplus assets, and each should be protected against the destruction of that right without good causeThe decision of Megarry, J. in Re Calgary is a clear authority for a proposition that in normal circumstances, no stay should be granted of winding up unless each member, (1) either consents to it; (2) or is otherwise bound not to object to it, (3) or else there is secured to him the right to receive all that he would have received had the winding up proceeded to its conclusion. The expression in normal circumstances in this formulation also recognises that in an appropriate case and for a good cause, the court may still order a stay of winding up even if none of the three criteria are met. But that still requires a sufficient cause to be made out to the satisfaction of the court to make an exception to the normal rule. At the very minimum, this would indicate that non-existence of any of these conditions is an important criterion that would contribute to the exercise of the discretion by the court on an application for stay of winding up.26 The formulation of Megarry, J. in Re Calgary (supra) was accepted in a judgment of this Court delivered by Mrs.Justice Sujata Manohar (as the learned Judge then was) in VasantInvestment Corporation Ltd. vs. Official Liquidator, Colaba Land and Mill Co.Ltd. (1981) Volume 51 Company Cases 20). However, in VasantInvestment Corporation Ltd., the learned Single Judge held that in the case of a scheme or arrangement which is proposed under Section 391 of the Companies Act, 1956 (as was the case there), the case would fall under the second category contemplated in Re Calgary where the members become bound by the scheme. Hence, it was not necessary to obtain from each member his express consent to the scheme of reconstruction on a stay of winding up. In this regard, it would be necessary to advert to the provisions of Section 391(2) where the scheme of compromise or arrangement, upon being sanctioned by the court, binds all the creditors and members including those who would dissent.27 That brings us to the last aspect of the present appeal. In the present case, all the shareholders of the erstwhile company in liquidation did not join in the application for stay of winding up nor have they consented to it. Learned Senior Counsel appearing on behalf of the Appellants had, in fact, during the course of hearing submitted that the Appellants were unaware of and had no material available to them at present of how the other shareholders would respond when a meeting is called. In a situation such as the present, where all the shareholders have not been joined in the application for the stay of an order of winding up, it would be more appropriate if the company court were to be moved by way of an application for reconstruction under Section 391 to take the company out of winding up. In such a case, the members of the company have an opportunity to consider and vote on a proposal and the company court has the benefit of the commercial wisdom of the members (3/4th of them in value) and would still consider the aspects of commercial morality and public interest in order to bind the dissenting minority while sanctioning the scheme. The Appellants have clearly shied away from doing that. Without mustering a 3/4th majority, the Appellants want the court to stay winding up so as to interfere with the proprietary interest of a substantial percentage of members (48%) without placing any material before the court in regard to the exercise of preference by that substantial body of shareholders. This, in our view, would clearly be impermissible.28 Before we conclude, we may note that RMSS a registered union of the objecting workers has sought to allege that RMMS as a representative union is alone entitled to represent the textile mill workers. We make it clear that for the purposes of these proceedings, the legality and the validity of the MOU which was entered into by RMSS with the Appellants has not been an issue which falls for consideration. Insofar as the locus of the workmen represented by Mr.Singhvi is concerned, we have no doubt in coming to the conclusion that they have a substantial standing in these proceedings. When the court has to consider whether a permanent stay should be granted in regard to the order of winding up, every creditor, and workmen in this case being preferential creditors, is entitled to be heard.29 For these reasons, we have come to the conclusion that the learned Single Judge was not in error in refusing to stay the winding up of Svadeshi Mills. There is no merit in the Appeal.
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and for a good cause, the court may still order a stay of winding up even if none of the three criteria are met. But that still requires a sufficient cause to be made out to the satisfaction of the court to make an exception to the normal rule. At the very minimum, this would indicate thatof any of these conditions is an important criterion that would contribute to the exercise of the discretion by the court on an application for stay of winding up.26 The formulation of Megarry, J. in Re Calgary (supra) was accepted in a judgment of this Court delivered by Mrs.Justice Sujata Manohar (as the learned Judge then was) in VasantInvestment Corporation Ltd. vs. Official Liquidator, Colaba Land and Mill Co.Ltd. (1981) Volume 51 Company Cases 20). However, in VasantInvestment Corporation Ltd., the learned Single Judge held that in the case of a scheme or arrangement which is proposed under Section 391 of the Companies Act, 1956 (as was the case there), the case would fall under the second category contemplated in Re Calgary where the members become bound by the scheme. Hence, it was not necessary to obtain from each member his express consent to the scheme of reconstruction on a stay of winding up. In this regard, it would be necessary to advert to the provisions of Section 391(2) where the scheme of compromise or arrangement, upon being sanctioned by the court, binds all the creditors and members including those who would dissent.27 That brings us to the last aspect of the present appeal. In the present case, all the shareholders of the erstwhile company in liquidation did not join in the application for stay of winding up nor have they consented to it. Learned Senior Counsel appearing on behalf of the Appellants had, in fact, during the course of hearing submitted that the Appellants were unaware of and had no material available to them at present of how the other shareholders would respond when a meeting is called. In a situation such as the present, where all the shareholders have not been joined in the application for the stay of an order of winding up, it would be more appropriate if the company court were to be moved by way of an application for reconstruction under Section 391 to take the company out of winding up. In such a case, the members of the company have an opportunity to consider and vote on a proposal and the company court has the benefit of the commercial wisdom of the members (3/4th of them in value) and would still consider the aspects of commercial morality and public interest in order to bind the dissenting minority while sanctioning the scheme. The Appellants have clearly shied away from doing that. Without mustering a 3/4th majority, the Appellants want the court to stay winding up so as to interfere with the proprietary interest of a substantial percentage of members (48%) without placing any material before the court in regard to the exercise of preference by that substantial body of shareholders. This, in our view, would clearly be impermissible.28 Before we conclude, we may note that RMSS a registered union of the objecting workers has sought to allege that RMMS as a representative union is alone entitled to represent the textile mill workers. We make it clear that for the purposes of these proceedings, the legality and the validity of the MOU which was entered into by RMSS with the Appellants has not been an issue which falls for consideration. Insofar as the locus of the workmen represented by Mr.Singhvi is concerned, we have no doubt in coming to the conclusion that they have a substantial standing in these proceedings. When the court has to consider whether a permanent stay should be granted in regard to the order of winding up, every creditor, and workmen in this case being preferential creditors, is entitled to be heard.29 For these reasons, we have come to the conclusion that the learned Single Judge was not in error in refusing to stay the winding up of Svadeshi Mills. There is no merit in theApplying the test which has been enunciated by the Supreme Court in Meghal Homes (supra), we are of the view that the exercise of the discretion by the learned Single Judge was correct and proper. The object and purpose of the Company application is not to revive the business of the Company. The whole purpose is to dispose of the assets by embarking upon real estate construction and development. The company application before the learned Single Judge has proceeded on the basis that what the Appellants would do is to diversify the business of the company into real estate by amending the objects clause of the Memorandum of Association of the company. Admittedly, the company had not carried on any real estate business in the past. Though a faint attempt was made during the course of the hearing, relying upon Clauses 4, 12, 16 and 26 of the Memorandum of Association to show that the objects clause permitted carrying on of real estate business, it is evident from the averments in the company application that the Appellants themselves proceeded on the basis that an amendment of the objects would be required in order to enable the company to enter upon real estate construction. Whether such an amendment would or would not be granted is something which may depend upon the decision of the competent authority in future but it is evident that presently, the carrying on of real estate construction would bethe objects of the company. Besides, under Section 17 of the Companies Act, 1956, an amendment of the objects requires a special resolution which in view of the provision of Section 189 requires 3/4th majority of members present and voting. No circumstances have been placed before the Court to indicate as to whether the Appellants have the support of the requisite majority for a special resolution under Section 189.
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Municipal Corporation Of The City Of Jabalpur Vs. State Of Madhya Pradesh | 71 of the Jabalpur Corporation Act, were never in dispute and indeed formed the very basis of the appellants petition to the High Court. If any particular property had vested in the Municipal Committee subject to its being divested in particular contingencies, that the property in the hands of the Corporation would be held subject to the same obligations or disabilities could also not be in controversy. Nor could it be contested that the making of a public road is "a public purpose" for which land may be resumed by the State under S. 81. What we desire to point out is that it the State of Madhya Pradesh was or must be deemed to have been the transferor of the property under the communication dated April 5, 1930, the validity of the notification under S. 81 could not be challenged.8. As we have pointed out earlier, the learned Judges proceeded, however, on the assumption that it was not the Government of C. P. and Berar but the Central Government that was the transferor of the land in question. There was, however, no basis upon which the learned Judges could have rested this assumption. In the first place, in the Writ Petition by which the appellant-Corporation challenged the validity of the notification it did not deny the fact that it was the Government of C. P. and Berar that had effected the transfer, and, in fact, the allegations in the petition proceeded on the basis that it was the State Government that had done so but the contention raised was that on a proper construction of S. 81 it applied only to transfers made after the Jubbulpore Corporation Act, 1948 came into force-an untenable contention which has not been persisted in.9. The question as to who a transferor is obviously a question of fact or at best a mixed question of law and fact and when a party in a Writ Petition does not allege any such fact, it stands to reason that he ought not to be permitted to travel beyond the facts stated, at the stage of the arguments. To confine a party to his pleadings, particularly to his allegations as regards facts is dictated not merely by the need for orderliness in these proceedings but for avoiding surprise to the other party and consequent injustice resulting therefrom. Save in exceptional cases, parties should be held strictly to their pleadings and if owing to discovery of new matter of grounds, there is need to add to or to modify the allegations either in the petition or in the counter-affidavit, the Court should insist on formal amendments being effected, for this would enable each party to state its case with precision and definiteness and the other side would have a proper opportunity to know this case and meet it with appropriate defences. This salutary rule was not adhered to in this case, and the departure from the pleadings which the appellant was permitted to adopt during the course of its arguments before the High Court has led to injustice because thereby the Counsel for the State who was apparently not prepared to meet an argument not raised in the petition, made submissions at the spur of the moment which were not justified by the true state of affairs. In our opinion, on the allegations made in the petition by the appellant-Corporation it ought not to have been permitted to put forward a case that the State Government was not the transferor of the property and the learned Judges of the High Court should have proceeded on the basis of the pleadings in the case.10. Apart from this question of pleadings, we consider that there is no merit in the contention even otherwise. We have already set out the terms by which the transfer of the land was communicated to the Municipal Committee. The preamble recites that what is being communicated is the order of the Government of the Central Provinces. The words of conveyance are in the second paragraph and they read:"Under S. 38 (1) (f) of the Central Provinces Municipalities Act, 1922 Government is pleased to transfer to the Municipal Committee......" (italics (here into ) ours).The expression " Government" here obviously, in the context, means the Government of the Central Provinces. Paragraph 2 which specifies what should happened if the condition on which the land has been granted should be broken, states:"The land shall be liable to be divested under S. 38 (2) and resumed by Government.""Government" here again obviously is the Government of the Central Provinces-a construction reinforced if one looked at the sub-section referred to. Further, in Condition 3 which speaks of what was to happen if the land was resumed by Government for any Government purpose the reference to "Government" again is to the "State Government".On the terms of the document therefore it was the Government of the Central Provinces that made the grant-the predecessor of the State Government. We find therefore, that there is no factual foundation for the submission which was apparently made before the High Court that the transfer in the present case was by the Central Government. No doubt, the communication refers to the fact that previous to making the grant the Government of C. P. and Berar had obtained the approval of the Central Government, but that was merely a matter of administrative arrangement between the Central and Local Governments which is totally irrelevant for determining the identity of the Government which made the grant. Besides, the Corporation having accepted the grant from the State Government was obviously estopped from contending that the land of which it continued in possession under that grant was not one by the State Government or that the State Government had not the authority to make the grant. If such contention is both not open to the Corporation and not tenable on the merits, it would follow that the impugned notification was fully justified by the provisions under S. 81 of the Jabalpur Corporation Act. | 0[ds]7. There could not be any dispute that if the authority that had transferred the property covered by the impugned notification, to the Municipal Committee of Jabalpur was the Government of Central Provinces and Berar, the right of the successor Government, viz., the State Government of Madhya Pradesh to take over the land from the Corporation for the purpose of forming a public road would manifestly be within their power under S. 81. That the Corporation of Jabalpur was the successor-in-title to the Municipal Committee of Jabalpur and that the property which was vested in the Municipal Committee of Jabalpur was transferred to and became vested in the appellant-Corporation under S. 71 of the Jabalpur Corporation Act, were never in dispute and indeed formed the very basis of the appellants petition to the High Court. If any particular property had vested in the Municipal Committee subject to its being divested in particular contingencies, that the property in the hands of the Corporation would be held subject to the same obligations or disabilities could also not be in controversy. Nor could it be contested that the making of a public road is "a public purpose" for which land may be resumed by the State under S. 81. What we desire to point out is that it the State of Madhya Pradesh was or must be deemed to have been the transferor of the property under the communication dated April 5, 1930, the validity of the notification under S. 81 could not be challenged.8. As we have pointed out earlier, the learned Judges proceeded, however, on the assumption that it was not the Government of C. P. and Berar but the Central Government that was the transferor of the land in question. There was, however, no basis upon which the learned Judges could have rested this assumption. In the first place, in the Writ Petition by which the appellant-Corporation challenged the validity of the notification it did not deny the fact that it was the Government of C. P. and Berar that had effected the transfer, and, in fact, the allegations in the petition proceeded on the basis that it was the State Government that had done so but the contention raised was that on a proper construction of S. 81 it applied only to transfers made after the Jubbulpore Corporation Act, 1948 came into force-an untenable contention which has not been persisted in.The question as to who a transferor is obviously a question of fact or at best a mixed question of law and fact and when a party in a Writ Petition does not allege any such fact, it stands to reason that he ought not to be permitted to travel beyond the facts stated, at the stage of the arguments. To confine a party to his pleadings, particularly to his allegations as regards facts is dictated not merely by the need for orderliness in these proceedings but for avoiding surprise to the other party and consequent injustice resulting therefrom. Save in exceptional cases, parties should be held strictly to their pleadings and if owing to discovery of new matter of grounds, there is need to add to or to modify the allegations either in the petition or in the counter-affidavit, the Court should insist on formal amendments being effected, for this would enable each party to state its case with precision and definiteness and the other side would have a proper opportunity to know this case and meet it with appropriate defences. This salutary rule was not adhered to in this case, and the departure from the pleadings which the appellant was permitted to adopt during the course of its arguments before the High Court has led to injustice because thereby the Counsel for the State who was apparently not prepared to meet an argument not raised in the petition, made submissions at the spur of the moment which were not justified by the true state of affairs. In our opinion, on the allegations made in the petition by the appellant-Corporation it ought not to have been permitted to put forward a case that the State Government was not the transferor of the property and the learned Judges of the High Court should have proceeded on the basis of the pleadings in the case.Apart from this question of pleadings, we consider that there is no merit in the contention even otherwise. We have already set out the terms by which the transfer of the land was communicated to the Municipal Committee. The preamble recites that what is being communicated is the order of the Government of the Centralthe terms of the document therefore it was the Government of the Central Provinces that made the grant-the predecessor of the State Government. We find therefore, that there is no factual foundation for the submission which was apparently made before the High Court that the transfer in the present case was by the Central Government. No doubt, the communication refers to the fact that previous to making the grant the Government of C. P. and Berar had obtained the approval of the Central Government, but that was merely a matter of administrative arrangement between the Central and Local Governments which is totally irrelevant for determining the identity of the Government which made the grant. Besides, the Corporation having accepted the grant from the State Government was obviously estopped from contending that the land of which it continued in possession under that grant was not one by the State Government or that the State Government had not the authority to make the grant. If such contention is both not open to the Corporation and not tenable on the merits, it would follow that the impugned notification was fully justified by the provisions under S. 81 of the Jabalpur Corporation Act. | 0 | 2,801 | 1,026 | ### Instruction:
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71 of the Jabalpur Corporation Act, were never in dispute and indeed formed the very basis of the appellants petition to the High Court. If any particular property had vested in the Municipal Committee subject to its being divested in particular contingencies, that the property in the hands of the Corporation would be held subject to the same obligations or disabilities could also not be in controversy. Nor could it be contested that the making of a public road is "a public purpose" for which land may be resumed by the State under S. 81. What we desire to point out is that it the State of Madhya Pradesh was or must be deemed to have been the transferor of the property under the communication dated April 5, 1930, the validity of the notification under S. 81 could not be challenged.8. As we have pointed out earlier, the learned Judges proceeded, however, on the assumption that it was not the Government of C. P. and Berar but the Central Government that was the transferor of the land in question. There was, however, no basis upon which the learned Judges could have rested this assumption. In the first place, in the Writ Petition by which the appellant-Corporation challenged the validity of the notification it did not deny the fact that it was the Government of C. P. and Berar that had effected the transfer, and, in fact, the allegations in the petition proceeded on the basis that it was the State Government that had done so but the contention raised was that on a proper construction of S. 81 it applied only to transfers made after the Jubbulpore Corporation Act, 1948 came into force-an untenable contention which has not been persisted in.9. The question as to who a transferor is obviously a question of fact or at best a mixed question of law and fact and when a party in a Writ Petition does not allege any such fact, it stands to reason that he ought not to be permitted to travel beyond the facts stated, at the stage of the arguments. To confine a party to his pleadings, particularly to his allegations as regards facts is dictated not merely by the need for orderliness in these proceedings but for avoiding surprise to the other party and consequent injustice resulting therefrom. Save in exceptional cases, parties should be held strictly to their pleadings and if owing to discovery of new matter of grounds, there is need to add to or to modify the allegations either in the petition or in the counter-affidavit, the Court should insist on formal amendments being effected, for this would enable each party to state its case with precision and definiteness and the other side would have a proper opportunity to know this case and meet it with appropriate defences. This salutary rule was not adhered to in this case, and the departure from the pleadings which the appellant was permitted to adopt during the course of its arguments before the High Court has led to injustice because thereby the Counsel for the State who was apparently not prepared to meet an argument not raised in the petition, made submissions at the spur of the moment which were not justified by the true state of affairs. In our opinion, on the allegations made in the petition by the appellant-Corporation it ought not to have been permitted to put forward a case that the State Government was not the transferor of the property and the learned Judges of the High Court should have proceeded on the basis of the pleadings in the case.10. Apart from this question of pleadings, we consider that there is no merit in the contention even otherwise. We have already set out the terms by which the transfer of the land was communicated to the Municipal Committee. The preamble recites that what is being communicated is the order of the Government of the Central Provinces. The words of conveyance are in the second paragraph and they read:"Under S. 38 (1) (f) of the Central Provinces Municipalities Act, 1922 Government is pleased to transfer to the Municipal Committee......" (italics (here into ) ours).The expression " Government" here obviously, in the context, means the Government of the Central Provinces. Paragraph 2 which specifies what should happened if the condition on which the land has been granted should be broken, states:"The land shall be liable to be divested under S. 38 (2) and resumed by Government.""Government" here again obviously is the Government of the Central Provinces-a construction reinforced if one looked at the sub-section referred to. Further, in Condition 3 which speaks of what was to happen if the land was resumed by Government for any Government purpose the reference to "Government" again is to the "State Government".On the terms of the document therefore it was the Government of the Central Provinces that made the grant-the predecessor of the State Government. We find therefore, that there is no factual foundation for the submission which was apparently made before the High Court that the transfer in the present case was by the Central Government. No doubt, the communication refers to the fact that previous to making the grant the Government of C. P. and Berar had obtained the approval of the Central Government, but that was merely a matter of administrative arrangement between the Central and Local Governments which is totally irrelevant for determining the identity of the Government which made the grant. Besides, the Corporation having accepted the grant from the State Government was obviously estopped from contending that the land of which it continued in possession under that grant was not one by the State Government or that the State Government had not the authority to make the grant. If such contention is both not open to the Corporation and not tenable on the merits, it would follow that the impugned notification was fully justified by the provisions under S. 81 of the Jabalpur Corporation Act.
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7. There could not be any dispute that if the authority that had transferred the property covered by the impugned notification, to the Municipal Committee of Jabalpur was the Government of Central Provinces and Berar, the right of the successor Government, viz., the State Government of Madhya Pradesh to take over the land from the Corporation for the purpose of forming a public road would manifestly be within their power under S. 81. That the Corporation of Jabalpur was the successor-in-title to the Municipal Committee of Jabalpur and that the property which was vested in the Municipal Committee of Jabalpur was transferred to and became vested in the appellant-Corporation under S. 71 of the Jabalpur Corporation Act, were never in dispute and indeed formed the very basis of the appellants petition to the High Court. If any particular property had vested in the Municipal Committee subject to its being divested in particular contingencies, that the property in the hands of the Corporation would be held subject to the same obligations or disabilities could also not be in controversy. Nor could it be contested that the making of a public road is "a public purpose" for which land may be resumed by the State under S. 81. What we desire to point out is that it the State of Madhya Pradesh was or must be deemed to have been the transferor of the property under the communication dated April 5, 1930, the validity of the notification under S. 81 could not be challenged.8. As we have pointed out earlier, the learned Judges proceeded, however, on the assumption that it was not the Government of C. P. and Berar but the Central Government that was the transferor of the land in question. There was, however, no basis upon which the learned Judges could have rested this assumption. In the first place, in the Writ Petition by which the appellant-Corporation challenged the validity of the notification it did not deny the fact that it was the Government of C. P. and Berar that had effected the transfer, and, in fact, the allegations in the petition proceeded on the basis that it was the State Government that had done so but the contention raised was that on a proper construction of S. 81 it applied only to transfers made after the Jubbulpore Corporation Act, 1948 came into force-an untenable contention which has not been persisted in.The question as to who a transferor is obviously a question of fact or at best a mixed question of law and fact and when a party in a Writ Petition does not allege any such fact, it stands to reason that he ought not to be permitted to travel beyond the facts stated, at the stage of the arguments. To confine a party to his pleadings, particularly to his allegations as regards facts is dictated not merely by the need for orderliness in these proceedings but for avoiding surprise to the other party and consequent injustice resulting therefrom. Save in exceptional cases, parties should be held strictly to their pleadings and if owing to discovery of new matter of grounds, there is need to add to or to modify the allegations either in the petition or in the counter-affidavit, the Court should insist on formal amendments being effected, for this would enable each party to state its case with precision and definiteness and the other side would have a proper opportunity to know this case and meet it with appropriate defences. This salutary rule was not adhered to in this case, and the departure from the pleadings which the appellant was permitted to adopt during the course of its arguments before the High Court has led to injustice because thereby the Counsel for the State who was apparently not prepared to meet an argument not raised in the petition, made submissions at the spur of the moment which were not justified by the true state of affairs. In our opinion, on the allegations made in the petition by the appellant-Corporation it ought not to have been permitted to put forward a case that the State Government was not the transferor of the property and the learned Judges of the High Court should have proceeded on the basis of the pleadings in the case.Apart from this question of pleadings, we consider that there is no merit in the contention even otherwise. We have already set out the terms by which the transfer of the land was communicated to the Municipal Committee. The preamble recites that what is being communicated is the order of the Government of the Centralthe terms of the document therefore it was the Government of the Central Provinces that made the grant-the predecessor of the State Government. We find therefore, that there is no factual foundation for the submission which was apparently made before the High Court that the transfer in the present case was by the Central Government. No doubt, the communication refers to the fact that previous to making the grant the Government of C. P. and Berar had obtained the approval of the Central Government, but that was merely a matter of administrative arrangement between the Central and Local Governments which is totally irrelevant for determining the identity of the Government which made the grant. Besides, the Corporation having accepted the grant from the State Government was obviously estopped from contending that the land of which it continued in possession under that grant was not one by the State Government or that the State Government had not the authority to make the grant. If such contention is both not open to the Corporation and not tenable on the merits, it would follow that the impugned notification was fully justified by the provisions under S. 81 of the Jabalpur Corporation Act.
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Bharatpur Motor Workers Cooperative Society Lid. Etc Vs. State Of Uttar Pradesh And Another | statement in the judgment under appeal to the contrary, there is no merit in this argument. The High Court has stated :"It is not disputed that this Rule (Rule 4) was complied with. The notices were put up on the notice board of the State Transport Authorities of Uttar Pradesh and also of Rajasthan."There is thus no non-compliance with rules regarding publication of the scheme.6. As mentioned by the High Court, the bus operators who claim to be aggrieved by the non-publication in the Rajasthan Official Gazette were otherwise very probably aware of the details of the scheme since they were plying their buses between the two termini located in Rajasthan and Uttar Pradesh. Even so, let us examine whether there has been any contravention of the vital formality in Section 68 C regarding publication in the Official Gazette. The point was taken in the High Court, but was disposed of in the following manner :"As regards the question of adequacy or otherwise of notice to the respondents, Sections 68-C and 68-D provide for publication in the official gazette of the State. This provision was complied with and the notifications were published in the official gazette of the State of Uttar Pradesh."A close look at the fasciculus of sections dealing with State Transport Undertakings and Schemes framed by them makes it plain that publication of particulars of a scheme has a purpose. Counsel for the appellants urged that this purpose would be baulked if in the case of an inter-State route the schemes were published only in the Official Gazette of one State. Apparently, Section 68-C has been rather simplistically drawn, unmindful of its sweep in relation to inter-State routes. There is no doubt that if local bodies, police authorities, passengers associations, private operators and even potential operators were to make effective representations regarding the four-fold requirements of efficiency, adequacy, economy and co-ordination in regard to the undertakings proposed scheme, they must know the pertinent details. We assume that these particulars come to the cognizance of persons once they appear in the Official Gazette and it is fair that such publication is made in every State covered by the inter-State route. In short the wholesome intendment of Sections 68-C and 68-D would be fulfilled if schemes relating to inter-State routes are published in all the States concerned. In the present case, Rule 4 goes a long way in achieving this object and it has been complied with. The question is whether the failure to publish in the Official Gazette of Rajasthan, is a fatal flaw.7. There is no doubt, as has been pointed out by the High Court, that the operators who are contesting the scheme before us could not have been in ignorance of the anatomy of the scheme impugned. Even so, let us examine the legal merit of the plea on the assumption that non publication in the Official Gazette is lethal in legal consequence. Section 68-C, in the ordinary course, relates to intra-State schemes, but may also cover inter-State routes. An undertaking of one State or the other may make a proposal for nationalization extending beyond its frontiers. There are certain safeguards built into Section 68-D such as the previous approval of the Central Government having to be obtained. Be that as it may, construed strictly, Section 68-C insists on publication of the particulars relating to a scheme -intra-State or inter-State - in the Official Gazette. Thebase Stateor the undertaking which launches the proposed nationalization alone falls with in the ambit of the provision. It is clear from a perusal of Section 68-C that it speaks of the State Government, the Official Gazette and the State Transport Undertaking, even though it is quite clear that inter-State schemes also come within the compass of the provision. Whatever the reason - it is not for us to ask why - the section, as it reads, merely requires publication in the concerned Official Gazette of the State whose undertaking initiates the project for nationalization. The fact that for statutory construction the singular includes the plural, does not compel us to read the plural wherever the singular is mentioned. We are satisfied that the expression in the Official Gazette and the publication required therein, does not undergo a change in its semantics when the route concerned is an inter-State as against an, intra-State one.In the present case it was the U. P. Undertaking which proposed the scheme for nationalization and the U. P. Gazette has carried the publication. The law asks for no more. The legal objection has therefore to be overruled.8. It has been stated at the bar that it may be desirable for State Transport Undertakings when they propose schemes for nationalization of inter-State routes to get them published in the Official gazettes of all the States through which the route runs. It is for the legislature to make the necessary a mendatory provision in this behalf. However, for reasons already set out, we cannot invalidate the scheme on the score of its non publication in the Rajasthan Gazette.9. A point was raised that the authorities in the State of Uttar Pradesh could not validly cancel permits held by bus operators of Rajasthan. This argument has engaged the attention of the Division Bench of the High Court and has been rejected, for reasons stated, which meets with our concurrence.10. It is surprising that a nationalisation scheme, calculated to provide efficient and co-ordinated transport services to the common people of backward areas has got bogged down on some ground or other for over a decade. It is a notorious fact that means of public transport in the country are grossly inadequate and energetic measures to overcome this handicap have to be undertaken if the nation is to progress. But statutory hurdles and legal roadblocks laid by private operators holding up beneficent schemes conceived in public interest for twelve or thirteen years cannot redound to the credit of our administrative and legal systems. "Something is rotten in the State of Denmark." | 0[ds]4. The facts pertaining to the questions we propose to deal with lend themselves to a brief statement. The Undertaking contemplated framing of a scheme excluding private operators from the route Agra (in U. P.) to Bharatpur(in Rajasthan). Admittedly, the scheme, which was published in the Official Gazette of the State of U.P. on December 9, 1961 was not published in the Gazette of Rajasthan. Section 68-C enables State Transport Undertakings to prepare schemes totally or partially excluding private operators from bus routes. The Act also provides for hearing, under Section 68-D, of the view points of categories of concerned entities enumerated m the section. Of course no worthwhile objections or constructive suggestions can be made regarding a scheme unless there is knowledge about the particulars of the scheme. For this reason Section 68-C provides for the proposed scheme and cognate particulars to be published in the Official Gazette and also in such other manner as the State Government may direct. Rules have been framed and our attention has been drawn to Rule 4 which provides that scheme framed under Section 68-C of the Act shall be published in Form I appended to the Rules. The Transport Commissioner is obligated to get a copy of the scheme pasted on the notice board of the office at the State Transport Authority and another at the office of the Regional Transport Authority concerned.There is no doubt, as has been pointed out by the High Court, that the operators who are contesting the scheme before us could not have been in ignorance of the anatomy of the scheme impugned. Even so, let us examine the legal merit of the plea on the assumption that non publication in the Official Gazette is lethal in legal consequence. Section 68-C, in the ordinary course, relates to intra-State schemes, but may also cover inter-State routes. An undertaking of one State or the other may make a proposal for nationalization extending beyond its frontiers. There are certain safeguards built into Section 68-D such as the previous approval of the Central Government having to be obtained. Be that as it may, construed strictly, Section 68-C insists on publication of the particulars relating to a scheme -intra-State or inter-State - in the Official Gazette. Thebase Stateor the undertaking which launches the proposed nationalization alone falls with in the ambit of the provision. It is clear from a perusal of Section 68-C that it speaks of the State Government, the Official Gazette and the State Transport Undertaking, even though it is quite clear that inter-State schemes also come within the compass of the provision. Whatever the reason - it is not for us to ask why - the section, as it reads, merely requires publication in the concerned Official Gazette of the State whose undertaking initiates the project for nationalization. The fact that for statutory construction the singular includes the plural, does not compel us to read the plural wherever the singular is mentioned. We are satisfied that the expression in the Official Gazette and the publication required therein, does not undergo a change in its semantics when the route concerned is an inter-State as against an, intra-State one.In the present case it was the U. P. Undertaking which proposed the scheme for nationalization and the U. P. Gazette has carried the publication. The law asks for no more. The legal objection has therefore to be overruled.8. It has been stated at the bar that it may be desirable for State Transport Undertakings when they propose schemes for nationalization of inter-State routes to get them published in the Official gazettes of all the States through which the route runs. It is for the legislature to make the necessary a mendatory provision in this behalf. However, for reasons already set out, we cannot invalidate the scheme on the score of its non publication in the Rajasthan Gazette.9. A point was raised that the authorities in the State of Uttar Pradesh could not validly cancel permits held by bus operators of Rajasthan. This argument has engaged the attention of the Division Bench of the High Court and has been rejected, for reasons stated, which meets with our concurrence.10. It is surprising that a nationalisation scheme, calculated to provide efficient and co-ordinated transport services to the common people of backward areas has got bogged down on some ground or other for over a decade. It is a notorious fact that means of public transport in the country are grossly inadequate and energetic measures to overcome this handicap have to be undertaken if the nation is to progress. But statutory hurdles and legal roadblocks laid by private operators holding up beneficent schemes conceived in public interest for twelve or thirteen years cannot redound to the credit of our administrative and legal systems. "Something is rotten in the State of Denmark." | 0 | 1,894 | 875 | ### 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:
statement in the judgment under appeal to the contrary, there is no merit in this argument. The High Court has stated :"It is not disputed that this Rule (Rule 4) was complied with. The notices were put up on the notice board of the State Transport Authorities of Uttar Pradesh and also of Rajasthan."There is thus no non-compliance with rules regarding publication of the scheme.6. As mentioned by the High Court, the bus operators who claim to be aggrieved by the non-publication in the Rajasthan Official Gazette were otherwise very probably aware of the details of the scheme since they were plying their buses between the two termini located in Rajasthan and Uttar Pradesh. Even so, let us examine whether there has been any contravention of the vital formality in Section 68 C regarding publication in the Official Gazette. The point was taken in the High Court, but was disposed of in the following manner :"As regards the question of adequacy or otherwise of notice to the respondents, Sections 68-C and 68-D provide for publication in the official gazette of the State. This provision was complied with and the notifications were published in the official gazette of the State of Uttar Pradesh."A close look at the fasciculus of sections dealing with State Transport Undertakings and Schemes framed by them makes it plain that publication of particulars of a scheme has a purpose. Counsel for the appellants urged that this purpose would be baulked if in the case of an inter-State route the schemes were published only in the Official Gazette of one State. Apparently, Section 68-C has been rather simplistically drawn, unmindful of its sweep in relation to inter-State routes. There is no doubt that if local bodies, police authorities, passengers associations, private operators and even potential operators were to make effective representations regarding the four-fold requirements of efficiency, adequacy, economy and co-ordination in regard to the undertakings proposed scheme, they must know the pertinent details. We assume that these particulars come to the cognizance of persons once they appear in the Official Gazette and it is fair that such publication is made in every State covered by the inter-State route. In short the wholesome intendment of Sections 68-C and 68-D would be fulfilled if schemes relating to inter-State routes are published in all the States concerned. In the present case, Rule 4 goes a long way in achieving this object and it has been complied with. The question is whether the failure to publish in the Official Gazette of Rajasthan, is a fatal flaw.7. There is no doubt, as has been pointed out by the High Court, that the operators who are contesting the scheme before us could not have been in ignorance of the anatomy of the scheme impugned. Even so, let us examine the legal merit of the plea on the assumption that non publication in the Official Gazette is lethal in legal consequence. Section 68-C, in the ordinary course, relates to intra-State schemes, but may also cover inter-State routes. An undertaking of one State or the other may make a proposal for nationalization extending beyond its frontiers. There are certain safeguards built into Section 68-D such as the previous approval of the Central Government having to be obtained. Be that as it may, construed strictly, Section 68-C insists on publication of the particulars relating to a scheme -intra-State or inter-State - in the Official Gazette. Thebase Stateor the undertaking which launches the proposed nationalization alone falls with in the ambit of the provision. It is clear from a perusal of Section 68-C that it speaks of the State Government, the Official Gazette and the State Transport Undertaking, even though it is quite clear that inter-State schemes also come within the compass of the provision. Whatever the reason - it is not for us to ask why - the section, as it reads, merely requires publication in the concerned Official Gazette of the State whose undertaking initiates the project for nationalization. The fact that for statutory construction the singular includes the plural, does not compel us to read the plural wherever the singular is mentioned. We are satisfied that the expression in the Official Gazette and the publication required therein, does not undergo a change in its semantics when the route concerned is an inter-State as against an, intra-State one.In the present case it was the U. P. Undertaking which proposed the scheme for nationalization and the U. P. Gazette has carried the publication. The law asks for no more. The legal objection has therefore to be overruled.8. It has been stated at the bar that it may be desirable for State Transport Undertakings when they propose schemes for nationalization of inter-State routes to get them published in the Official gazettes of all the States through which the route runs. It is for the legislature to make the necessary a mendatory provision in this behalf. However, for reasons already set out, we cannot invalidate the scheme on the score of its non publication in the Rajasthan Gazette.9. A point was raised that the authorities in the State of Uttar Pradesh could not validly cancel permits held by bus operators of Rajasthan. This argument has engaged the attention of the Division Bench of the High Court and has been rejected, for reasons stated, which meets with our concurrence.10. It is surprising that a nationalisation scheme, calculated to provide efficient and co-ordinated transport services to the common people of backward areas has got bogged down on some ground or other for over a decade. It is a notorious fact that means of public transport in the country are grossly inadequate and energetic measures to overcome this handicap have to be undertaken if the nation is to progress. But statutory hurdles and legal roadblocks laid by private operators holding up beneficent schemes conceived in public interest for twelve or thirteen years cannot redound to the credit of our administrative and legal systems. "Something is rotten in the State of Denmark."
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0
### Explanation:
4. The facts pertaining to the questions we propose to deal with lend themselves to a brief statement. The Undertaking contemplated framing of a scheme excluding private operators from the route Agra (in U. P.) to Bharatpur(in Rajasthan). Admittedly, the scheme, which was published in the Official Gazette of the State of U.P. on December 9, 1961 was not published in the Gazette of Rajasthan. Section 68-C enables State Transport Undertakings to prepare schemes totally or partially excluding private operators from bus routes. The Act also provides for hearing, under Section 68-D, of the view points of categories of concerned entities enumerated m the section. Of course no worthwhile objections or constructive suggestions can be made regarding a scheme unless there is knowledge about the particulars of the scheme. For this reason Section 68-C provides for the proposed scheme and cognate particulars to be published in the Official Gazette and also in such other manner as the State Government may direct. Rules have been framed and our attention has been drawn to Rule 4 which provides that scheme framed under Section 68-C of the Act shall be published in Form I appended to the Rules. The Transport Commissioner is obligated to get a copy of the scheme pasted on the notice board of the office at the State Transport Authority and another at the office of the Regional Transport Authority concerned.There is no doubt, as has been pointed out by the High Court, that the operators who are contesting the scheme before us could not have been in ignorance of the anatomy of the scheme impugned. Even so, let us examine the legal merit of the plea on the assumption that non publication in the Official Gazette is lethal in legal consequence. Section 68-C, in the ordinary course, relates to intra-State schemes, but may also cover inter-State routes. An undertaking of one State or the other may make a proposal for nationalization extending beyond its frontiers. There are certain safeguards built into Section 68-D such as the previous approval of the Central Government having to be obtained. Be that as it may, construed strictly, Section 68-C insists on publication of the particulars relating to a scheme -intra-State or inter-State - in the Official Gazette. Thebase Stateor the undertaking which launches the proposed nationalization alone falls with in the ambit of the provision. It is clear from a perusal of Section 68-C that it speaks of the State Government, the Official Gazette and the State Transport Undertaking, even though it is quite clear that inter-State schemes also come within the compass of the provision. Whatever the reason - it is not for us to ask why - the section, as it reads, merely requires publication in the concerned Official Gazette of the State whose undertaking initiates the project for nationalization. The fact that for statutory construction the singular includes the plural, does not compel us to read the plural wherever the singular is mentioned. We are satisfied that the expression in the Official Gazette and the publication required therein, does not undergo a change in its semantics when the route concerned is an inter-State as against an, intra-State one.In the present case it was the U. P. Undertaking which proposed the scheme for nationalization and the U. P. Gazette has carried the publication. The law asks for no more. The legal objection has therefore to be overruled.8. It has been stated at the bar that it may be desirable for State Transport Undertakings when they propose schemes for nationalization of inter-State routes to get them published in the Official gazettes of all the States through which the route runs. It is for the legislature to make the necessary a mendatory provision in this behalf. However, for reasons already set out, we cannot invalidate the scheme on the score of its non publication in the Rajasthan Gazette.9. A point was raised that the authorities in the State of Uttar Pradesh could not validly cancel permits held by bus operators of Rajasthan. This argument has engaged the attention of the Division Bench of the High Court and has been rejected, for reasons stated, which meets with our concurrence.10. It is surprising that a nationalisation scheme, calculated to provide efficient and co-ordinated transport services to the common people of backward areas has got bogged down on some ground or other for over a decade. It is a notorious fact that means of public transport in the country are grossly inadequate and energetic measures to overcome this handicap have to be undertaken if the nation is to progress. But statutory hurdles and legal roadblocks laid by private operators holding up beneficent schemes conceived in public interest for twelve or thirteen years cannot redound to the credit of our administrative and legal systems. "Something is rotten in the State of Denmark."
|
Union of India & Others Vs. Bengal Shrachi Housing Development Limited & Another | ELECTRICITY; WATER 7.1. It is agreed by and between the Parties that the Lessor shall be liable to pay property taxes and other outgoings in respect of the Premises, whatsoever payable and as levied from time to time promptly and timely, including any revisions thereto, directly to the authorities concerned and no claim for contribution towards such taxes, cesses, levies and increases shall be made by the Lessor or be entertained by the Lessee. xxx xxx xxx 9. COVENANTS OF THE LESSEE The Lessee, for itself, its successors and permitted assigns and to the intent that its obligations may continue through the term hereby created, but not exceeding the Initial Term, covenants with the Lessor as follows: xxx xxx xxx (d) To pay all taxes necessary for carrying on its business within the Premises, other than municipal taxes and other related property taxes.?32. An arbitration award construed the aforesaid clauses stating that service tax would have to be paid by the lessor. This, according to the Division Bench, was not a possible construction inasmuch as the Division Bench bifurcated taxes that were payable by the lessor and the lessee. Clause 7 being confined to property taxes and clause 9 referring to taxes other than property taxes, the judgment of the Division Bench stated:?………Thus, Clause 7.1 is clearly confined to property taxes or other outgoings in respect of the premises. It has to be a tax on the premises or the property. Such a tax may be of any nature whatsoever and thus even a new tax on the premises would be covered by this clause and absolves the lessee of the liability in this behalf, this clause nowhere envisaging an indirect tax of the nature of a service tax. The aforesaid view is further reinforced by Clause 9 (d) which in fact puts the responsibility on the lessee to pay all taxes necessary for carrying on its business within the premises other than the municipal taxes and related property taxes. Thus, any tax on the business activity is on the lessee and the only exclusion made is of municipal tax and related property taxes for which there is a specific Clause 7.1. It is not as if there is a singular clause relating to taxes in the agreement being the Lease Deed which puts the burden on the lessor alone. The nature of taxes if bifurcated into two categories; one borne by the lessor and the other to be borne by the lessee. The aforesaid becomes important in the context of the nature of service tax which is a tax on the commercial activity and to that extent would, thus, fall within the parameters of Clause 9 (d) and not Clause 7.1. We thus have not the slightest of doubt that these are not clauses which can brook of any two interpretations, but there can by only one interpretation on a plain reading of the clauses. The language of a clause cannot be twisted to come to a conclusion as is sought to be done by the learned Arbitrator. It appears that Clause 9 (d) seems to have been completely lost by the learned Arbitrator. ……….?33. In this view of the matter, the arbitration award was set aside. This judgment again turned on the language of the particular clauses in the lease deed and would have no application to the facts of the present case. 34. At the fag end of the argument, however, Shri Gupta referred us to a sanction letter dated 27th April, 2012 and a letter dated 30th April, 2012. The sanction letter of 27th April, 2012 issued by the Government of India conveying sanction for hiring of the lease premises in the present case to the Director General, Indian Coast Guard, specifically states:?…… The registration charges, stamp duty, service taxes, etc. (if applicable) is the liability of the lessee……?35. The letter dated 30th April, 2012, written by the Deputy Inspector General, Chief Staff Officer, to the Respondent, in turn, in paragraph 3(c) reiterated the same position as that of the sanction letter. The learned single Judge in dealing with the letter dated 30th April, 2012 has held:?12. Turning to the facts of the present case, it appears that clause 6 extracted supra delineated the respective obligations of the lessor and the lessees. The parties agreed that the rates and taxes primarily leviable upon the occupier would be paid by the Government. That the respondents were not oblivious of their obligation to bear service charge is reflected from the letter dated April 30, 2012. Although the said deed does not specifically refer to service tax, the letter dated April 30, 2012 expressly provides that Government of India had sanctioned the terms and conditions of hiring including, inter alia, the liability of the ?lessee in respect of registration charges, stamp duty, service tax etc., (if applicable)?. The words ?if applicable? in brackets follows ?etc.? and not ?service tax?. Therefore, it is not a case that if obligation to make payment of service tax arises, the respondents would have discretion to foist the responsibility on the lessor (the first petitioner). Liability to bear service tax being that of the person receiving service, there can be no escape from the conclusion that the respondents are liable to bear service tax.?36. This being the case, though in law and under clause 6 of the lease deed the Appellant is not required to pay service tax, we are loathe to upset the finding of the learned single Judge based upon a letter by the Appellant to the Respondent in which the Appellant has expressly stated that it was liable to pay service charges. Having thus clarified the legal position, given the sanction letter of 27th April, 2012 and the letter dated 30th April, 2012, in which it was made clear that the Union of India alone will bear the service charges, we refuse to exercise our discretion under Article 136 of the Constitution of India in favour of the Union of India. | 0[ds]12. A reading of the Act and the Rules, therefore, makes it clear that ?assessee?, as defined, means the person liable to pay service tax under the Act. In the present case, we are concerned with the taxable service of renting of immovable property. It is clear that under Section 66B, the levy of service tax at the rate of 12% is on the value of the service of renting of immovable property that is provided or agreed to be provided by one person to another and collected in such manner as may be prescribed. Section 68 whose marginal note reads?payment of service tax?, makes it clear that it is the person providing the taxable service to another, who is to pay service tax at the rate specified in Section 66B, in such manner and within such period as may be prescribed, unless otherwise specified by the Central Government. Therefore, the person liable for paying service tax is to be determined on a reading of the Rules.When we come to the Rules, it is clear that under Rule 2(1)(d), the person liable for paying service tax, where the service of renting immovable property is agreed to be provided by the Government, is the provider of such service. Even in a converse situation, which is the situation in the facts of the present case, it is the provider of the service alone, who is liable for paying service tax.It is thus clear, on a conspectus of the authorities of this Court, that service tax is an indirect tax, meaning thereby that the said tax can be passed on by the service provider to the recipient of the service. Being a tax on service, it is not a direct tax on the service provider but is a value added tax in the nature of a consumption tax on the activity which is by way of service. It is settled by various judgments of this Court that, in order to have conceptual clarity, the taxable event and the taxable person are distinct concepts.It is thus clear that the judgments of this Court which referred to service tax being an indirect tax have reference only to service tax being an indirect tax in economic theory and not constitutional law. The fact that service tax may not, in given circumstances, be passed on by the service provider to the recipient of the service would not, therefore, make such tax any the less a service tax. It is important to bear this in mind, as the main prop of Shri Jaideep Gupta?s argument is that service tax being an indirect tax which must be passed on by virtue of the judgments of this Court, would make the recipient of the service the person on whom the tax is primarilyreading of these two judgments would, therefore, show that, on facts, it was held that since payment of service tax was not contemplated by the parties and it was agreed that the lessor shall continue to pay taxes, it was evident that the parties contemplated only existing taxes and not taxes which may arise in the future. This being the overwhelming circumstance in that case, any observations made on law have to be read in light of the facts of thatjudgment again turned on the language of the particular clauses in the lease deed and would have no application to the facts of the present case.This being the case, though in law and under clause 6 of the lease deed the Appellant is not required to pay service tax, we are loathe to upset the finding of the learned single Judge based upon a letter by the Appellant to the Respondent in which the Appellant has expressly stated that it was liable to pay service charges. Having thus clarified the legal position, given the sanction letter of 27th April, 2012 and the letter dated 30th April, 2012, in which it was made clear that the Union of India alone will bear the service charges, we refuse to exercise our discretion under Article 136 of the Constitution of India in favour of the Union of India. | 0 | 8,067 | 761 | ### 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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ELECTRICITY; WATER 7.1. It is agreed by and between the Parties that the Lessor shall be liable to pay property taxes and other outgoings in respect of the Premises, whatsoever payable and as levied from time to time promptly and timely, including any revisions thereto, directly to the authorities concerned and no claim for contribution towards such taxes, cesses, levies and increases shall be made by the Lessor or be entertained by the Lessee. xxx xxx xxx 9. COVENANTS OF THE LESSEE The Lessee, for itself, its successors and permitted assigns and to the intent that its obligations may continue through the term hereby created, but not exceeding the Initial Term, covenants with the Lessor as follows: xxx xxx xxx (d) To pay all taxes necessary for carrying on its business within the Premises, other than municipal taxes and other related property taxes.?32. An arbitration award construed the aforesaid clauses stating that service tax would have to be paid by the lessor. This, according to the Division Bench, was not a possible construction inasmuch as the Division Bench bifurcated taxes that were payable by the lessor and the lessee. Clause 7 being confined to property taxes and clause 9 referring to taxes other than property taxes, the judgment of the Division Bench stated:?………Thus, Clause 7.1 is clearly confined to property taxes or other outgoings in respect of the premises. It has to be a tax on the premises or the property. Such a tax may be of any nature whatsoever and thus even a new tax on the premises would be covered by this clause and absolves the lessee of the liability in this behalf, this clause nowhere envisaging an indirect tax of the nature of a service tax. The aforesaid view is further reinforced by Clause 9 (d) which in fact puts the responsibility on the lessee to pay all taxes necessary for carrying on its business within the premises other than the municipal taxes and related property taxes. Thus, any tax on the business activity is on the lessee and the only exclusion made is of municipal tax and related property taxes for which there is a specific Clause 7.1. It is not as if there is a singular clause relating to taxes in the agreement being the Lease Deed which puts the burden on the lessor alone. The nature of taxes if bifurcated into two categories; one borne by the lessor and the other to be borne by the lessee. The aforesaid becomes important in the context of the nature of service tax which is a tax on the commercial activity and to that extent would, thus, fall within the parameters of Clause 9 (d) and not Clause 7.1. We thus have not the slightest of doubt that these are not clauses which can brook of any two interpretations, but there can by only one interpretation on a plain reading of the clauses. The language of a clause cannot be twisted to come to a conclusion as is sought to be done by the learned Arbitrator. It appears that Clause 9 (d) seems to have been completely lost by the learned Arbitrator. ……….?33. In this view of the matter, the arbitration award was set aside. This judgment again turned on the language of the particular clauses in the lease deed and would have no application to the facts of the present case. 34. At the fag end of the argument, however, Shri Gupta referred us to a sanction letter dated 27th April, 2012 and a letter dated 30th April, 2012. The sanction letter of 27th April, 2012 issued by the Government of India conveying sanction for hiring of the lease premises in the present case to the Director General, Indian Coast Guard, specifically states:?…… The registration charges, stamp duty, service taxes, etc. (if applicable) is the liability of the lessee……?35. The letter dated 30th April, 2012, written by the Deputy Inspector General, Chief Staff Officer, to the Respondent, in turn, in paragraph 3(c) reiterated the same position as that of the sanction letter. The learned single Judge in dealing with the letter dated 30th April, 2012 has held:?12. Turning to the facts of the present case, it appears that clause 6 extracted supra delineated the respective obligations of the lessor and the lessees. The parties agreed that the rates and taxes primarily leviable upon the occupier would be paid by the Government. That the respondents were not oblivious of their obligation to bear service charge is reflected from the letter dated April 30, 2012. Although the said deed does not specifically refer to service tax, the letter dated April 30, 2012 expressly provides that Government of India had sanctioned the terms and conditions of hiring including, inter alia, the liability of the ?lessee in respect of registration charges, stamp duty, service tax etc., (if applicable)?. The words ?if applicable? in brackets follows ?etc.? and not ?service tax?. Therefore, it is not a case that if obligation to make payment of service tax arises, the respondents would have discretion to foist the responsibility on the lessor (the first petitioner). Liability to bear service tax being that of the person receiving service, there can be no escape from the conclusion that the respondents are liable to bear service tax.?36. This being the case, though in law and under clause 6 of the lease deed the Appellant is not required to pay service tax, we are loathe to upset the finding of the learned single Judge based upon a letter by the Appellant to the Respondent in which the Appellant has expressly stated that it was liable to pay service charges. Having thus clarified the legal position, given the sanction letter of 27th April, 2012 and the letter dated 30th April, 2012, in which it was made clear that the Union of India alone will bear the service charges, we refuse to exercise our discretion under Article 136 of the Constitution of India in favour of the Union of India.
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12. A reading of the Act and the Rules, therefore, makes it clear that ?assessee?, as defined, means the person liable to pay service tax under the Act. In the present case, we are concerned with the taxable service of renting of immovable property. It is clear that under Section 66B, the levy of service tax at the rate of 12% is on the value of the service of renting of immovable property that is provided or agreed to be provided by one person to another and collected in such manner as may be prescribed. Section 68 whose marginal note reads?payment of service tax?, makes it clear that it is the person providing the taxable service to another, who is to pay service tax at the rate specified in Section 66B, in such manner and within such period as may be prescribed, unless otherwise specified by the Central Government. Therefore, the person liable for paying service tax is to be determined on a reading of the Rules.When we come to the Rules, it is clear that under Rule 2(1)(d), the person liable for paying service tax, where the service of renting immovable property is agreed to be provided by the Government, is the provider of such service. Even in a converse situation, which is the situation in the facts of the present case, it is the provider of the service alone, who is liable for paying service tax.It is thus clear, on a conspectus of the authorities of this Court, that service tax is an indirect tax, meaning thereby that the said tax can be passed on by the service provider to the recipient of the service. Being a tax on service, it is not a direct tax on the service provider but is a value added tax in the nature of a consumption tax on the activity which is by way of service. It is settled by various judgments of this Court that, in order to have conceptual clarity, the taxable event and the taxable person are distinct concepts.It is thus clear that the judgments of this Court which referred to service tax being an indirect tax have reference only to service tax being an indirect tax in economic theory and not constitutional law. The fact that service tax may not, in given circumstances, be passed on by the service provider to the recipient of the service would not, therefore, make such tax any the less a service tax. It is important to bear this in mind, as the main prop of Shri Jaideep Gupta?s argument is that service tax being an indirect tax which must be passed on by virtue of the judgments of this Court, would make the recipient of the service the person on whom the tax is primarilyreading of these two judgments would, therefore, show that, on facts, it was held that since payment of service tax was not contemplated by the parties and it was agreed that the lessor shall continue to pay taxes, it was evident that the parties contemplated only existing taxes and not taxes which may arise in the future. This being the overwhelming circumstance in that case, any observations made on law have to be read in light of the facts of thatjudgment again turned on the language of the particular clauses in the lease deed and would have no application to the facts of the present case.This being the case, though in law and under clause 6 of the lease deed the Appellant is not required to pay service tax, we are loathe to upset the finding of the learned single Judge based upon a letter by the Appellant to the Respondent in which the Appellant has expressly stated that it was liable to pay service charges. Having thus clarified the legal position, given the sanction letter of 27th April, 2012 and the letter dated 30th April, 2012, in which it was made clear that the Union of India alone will bear the service charges, we refuse to exercise our discretion under Article 136 of the Constitution of India in favour of the Union of India.
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Century Textiles & Industries Limited Vs. Oriental Fire & General Insurance Company Limited & Others | policy and the said clause cannot be read in isolation. It is clear that if any damage is caused to the machinery by virtue of any overt act by the workmen during the strike, the insurance company is bound to indemnify the losses but not for any loss which is caused to the machinery in case of cessation of work. The learned counsel for the appellant submits that, in other words, in no case the insured can get any amount in case of strike even though insurance company accepts the premium in this behalf. So far as this argument is concerned, the simple answer to this is that in a case where by any overt act of a striker, by which the machinery is made non-operational, by resorting to any violence or damaging the machinery by physical act, in that case naturally the insurance company is bound to indemnify the insured.On a closure scrutiny of Clause 3 read with Condition No.5 (i) (b), in our view, in case where a workman who has resorted to strike by which the machinery is damaged by some positive act on the part of workmen, such loss sustained by the insured is required to be indemnified by the insurance company. In a case where by passive act of the workers if the machinery is ultimately damaged on account of the fact that the same was not being attended to by the workers, such risk in the policies, in our view, is not covered in view of the special conditions attached with the policy. In our view, what is covered by the policy is only damage to the machinery by which the insured has sustained loss. In the instant case the loss or damage that was sustained by the plaintiff was occasioned by a cessation of work or by a retardation, interruption or cessation of the process of operation. A loss caused by the cessation of work is expressly excluded from the insured perils in the first four policies as well as in the policy providing for consequential loss. It is submitted that even a passive act of the workmen is sufficient to hold that because of something which has been done by the workmen in furtherance of the strike that such damage has been caused to the machinery of the Company. Mr. Bharucha, the learned counsel for the respondents has argued that if any extra premium is paid by the insured for covering the risk when there is a damage to the machinery on account of cessation of work by the workmen, then in such eventuality even the insurance company is required to indemnify the insured.16. Considering the recitals in the insurance policy including the special conditions, we are not in a position to accept the view taken by the Division Bench of the Kerala High Court. At the cost of repetition, we may say that in a given case if there is any positive act on the part of the workmen by damaging the machinery in furtherance of the strike, such loss sustained by the company is required to the indemnified by the insurance company as per the policy. In a case where physical act or violence or overt act is directly attributed to the damage or loss to the machinery due to the act of the striking workmen, such risk can be said to have been covered under the policy. We are, therefore not in a position to accept the view of the Kerala High Court that in no case such risk can be said to have been covered even though insurance company accept the premium towards riot and strike policy.17. So far as the decision of the learned single Judge in the case of the NRC Ltd. (supra) is concerned, as per the evidence available in that case it was found that the workmen resorted to violence and the said act was directly attributed to the loss sustained by the company and the machinery was damaged because of violence carried out by the striking workers. That is not the factual aspect in the present case. In the instant case, the evidence on record clearly establish that admittedly the striking workmen had not resorted to any violence but it was a peaceful strike. This aspect has not been disputed by the learned counsel for the appellant. The main argument of the learned counsel for the appellant is that even if the workmen resorted to peaceful demonstration but by not attending the machineries if there is any loss caused to the insured as the machinery has ultimately become non-functional, such loss is also covered under the riot and fire policy. It is also required to be noted that the special conditions are part and parcel of riot and strike policy and this riot and strike policy contains such special clause prescribed in the policy. The special conditions have been attached in the riot and strike endorsement and the same is to be read in connection with the riot and strike endorsement in the policy. In view of what is stated above, we are unable to accept the said submission canvassed by the learned counsel for the appellant.18. In our view, unless both the eventualities are present i.e. strike of the workmen and when there is an overt act on the part of the workmen during such strike which has a direct bearing to the loss suffered by the company, in such an eventuality the insurance company is required to indemnify such loss as per the riot and strike policy. In fact, as per the evidence on record, it is clear that the workmen had not resorted to any violent act or not resorted to any violence and tried to damage the machinery by way of violent act. In view of the same, we agree with the ultimate decision by the learned single Judge to the effect that no relief can be granted to the plaintiff as claimed by the plaintiff in the suit. | 0[ds]As pointed out earlier, riot and strike endorsement has been subsequently added in the original insurance policies. The insurance company has taken the risk of indemnifying the insured in case of damage sustained by the Company in case of riot and strike. However, such riot and strike policy is subject to special conditions attached with the riot and strike endorsement. As per condition No.3, if there is any wilful act of any striker or locked out worker done in furtherance of a strike or in resistance to a lock out and if any loss or damage to the property occurred which may be attributed directly by such wilful act of a striker, then the insurance company is bound to indemnify such loss. It is, however, required to be noted that clause (3) is subject to special conditions attached with the aforesaid endorsement on the policy i.e. Riot and strike endorsement in the policy. So far as special conditions are concerned, condition No.5(b) clearly provides that the insurance does not cover any damage or loss resulting from total or partial cessation of work or the retarding or interruption or cessation of any process orclause (b) cannot be made applicable in the present case to deny the claim of the plaintiff as, according to him, in every case of strike there is always a cessation of work and when insurance company has taken extra premium in connection with any loss caused by way of any wilful act of a striker, the insurance company cannot deny the just claim of the plaintiff by resorting to clause 5 (b) of the policy. It is further submitted that such clause is to be interpreted in case where there is a loss or damage due to cessation of work which cessation of work can be attributed to any other eventuality like natural calamity, flood or in a given case there should beof the machinery or power failure or lack of raw material etc. If any damage is caused to the machinery, the insurance company is bound to indemnify such loss in view of the fact that the Company has taken riot and strike policy. If the machine is damaged on the ground that the workers have not attended the same by virtue of cessation of work, in such eventuality the insurance company is bound to indemnify such loss. It is submitted by the learned counsel for the appellant that in the instant case the workmen abstained from attending the machines and these machines were highly sophisticated one which requires total monitoring from time to time and when the machines were allowed to run in the manner in which they were allowed to run ultimately resulted damage to such machineries for which Surveyors report is also very clear.In order to substantiate his say the learned counsel has relied upon the judgment of the Kerala High Court in the case of Sujir Ganesh Nayak (supra). The Division Bench of the Kerala High Court has considered similar type of policy and similar type of clauses in the insurance policy. In the aforesaid case, the learned single Judge rejected the claim of the plaintiff therein on the ground that as per the special conditions similar to our case, the loss cannot be stated to have been covered by the insurance policies. The single Judge accordingly dismissed the suit filed by the insured. The Division Bench while reversing the judgment of the single Judge held as under:"From a reading of the special conditions it is clear that what the contracting parties intended was that if any loss is caused due to cessation of work or interruption of work and for that reasons loss is caused, that will not be covered by the policy. If the cessation or interruption of work can be directly attributed to the strike by the workers, that will not exclude the liability of the insurance company. If such an interpretation is accepted, under no circumstances, the loss if any sustained by the insured due to riot and strike can be said to be under the cover of the insurance policy. Ordinarily, the strike by the workers will cause cessation or interruption of work. If the loss sustained due to such cessation or interruption of work is not covered by the policy, the special conditions will have an overriding effect on the riot and strike endorsement. Therefore, in our view, the special conditions stated in clause 5 (i) (b) is not applicable to the facts of the case. Here the loss sustained by the appellant is directly attributable to the strike by the workers. If the cessation or interruption of work was caused by any break down of machinery or other reason, such loss would not be covered under the policy.We have considered both these judgments. Though the argument of the learned counsel for the appellant at the first blush looks attractive but, in our view, on closure scrutiny of the policies in question, along with the special conditions attached thereto, it is not possible for us to accept the view canvassed by the learned counsel for the appellant. It is indeed true that the machineries in question were damaged because of the fact that the same were not properly attended to by the striking workers and it was allowed to continue in the running position, without taking care of either switching off the running machines or by not allowing the same to be functional by properly putting the raw material etc. In this behalf we accept the evidence of the plaintiff that the machineries have become useless because of not being properly attended to by the striking workmen and the same were allowed to remain in running condition as it is. It is also true that by not attending the machineries by the striking workers, one can say that it is a wilful act of a striker in furtherance of a strike or in resistance to a lock out, as the case may be. We agree with the learned counsel for the appellant that it may not be necessary that the wilful act may be treated as any overt act in such manner that it can have a direct impact to the damage caused to the machinery in question. However, as pointed out earlier, the special conditions which form part and parcel of the riot and strike endorsement and more particularly condition 5(i)(b) which clearly provides that the insurance policy does not cover loss or damage resulting from total or partial cessation of work or the retarding or interruption or cessation of any process or operation.Once these special conditions are attached with the riot and strike policy, clause 3 has to be read along with condition No.5 attached with the policy. These special conditions are accordingly part and parcel of the insurance policy itself. Reading the said clause 5(i)(b), it is clear that if any loss or damage is sustained by the insured in view of total or partial cessation of work or the retarding or interruption or cessation of any process or operation, such loss is not insured by the insurance company. We cannot give such a restrictive meaning to clause (b) that cessation of work should only be considered in case of other natural calamities and not in the case where such cessation of work is due to any act of the striker. Once these special conditions are attached to the policy which cover the risk in case of riot and strike, naturally condition 5(i)(b) is said to be part and parcel of riot and strike endorsement which is added in the policy later on. Clause 3 in the policy is required to be read with special conditions attached with the policy and the said clause cannot be read in isolation. It is clear that if any damage is caused to the machinery by virtue of any overt act by the workmen during the strike, the insurance company is bound to indemnify the losses but not for any loss which is caused to the machinery in case of cessation of work. The learned counsel for the appellant submits that, in other words, in no case the insured can get any amount in case of strike even though insurance company accepts the premium in this behalf. So far as this argument is concerned, the simple answer to this is that in a case where by any overt act of a striker, by which the machinery is madeby resorting to any violence or damaging the machinery by physical act, in that case naturally the insurance company is bound to indemnify the insured.On a closure scrutiny of Clause 3 read with Condition No.5 (i) (b), in our view, in case where a workman who has resorted to strike by which the machinery is damaged by some positive act on the part of workmen, such loss sustained by the insured is required to be indemnified by the insurance company. In a case where by passive act of the workers if the machinery is ultimately damaged on account of the fact that the same was not being attended to by the workers, such risk in the policies, in our view, is not covered in view of the special conditions attached with the policy. In our view, what is covered by the policy is only damage to the machinery by which the insured has sustained loss. In the instant case the loss or damage that was sustained by the plaintiff was occasioned by a cessation of work or by a retardation, interruption or cessation of the process of operation. A loss caused by the cessation of work is expressly excluded from the insured perils in the first four policies as well as in the policy providing for consequential loss. It is submitted that even a passive act of the workmen is sufficient to hold that because of something which has been done by the workmen in furtherance of the strike that such damage has been caused to the machinery of the Company. Mr. Bharucha, the learned counsel for the respondents has argued that if any extra premium is paid by the insured for covering the risk when there is a damage to the machinery on account of cessation of work by the workmen, then in such eventuality even the insurance company is required to indemnify the insured.16. Considering the recitals in the insurance policy including the special conditions, we are not in a position to accept the view taken by the Division Bench of the Kerala High Court. At the cost of repetition, we may say that in a given case if there is any positive act on the part of the workmen by damaging the machinery in furtherance of the strike, such loss sustained by the company is required to the indemnified by the insurance company as per the policy. In a case where physical act or violence or overt act is directly attributed to the damage or loss to the machinery due to the act of the striking workmen, such risk can be said to have been covered under the policy. We are, therefore not in a position to accept the view of the Kerala High Court that in no case such risk can be said to have been covered even though insurance company accept the premium towards riot and strike policy.17. So far as the decision of the learned single Judge in the case of the NRC Ltd. (supra) is concerned, as per the evidence available in that case it was found that the workmen resorted to violence and the said act was directly attributed to the loss sustained by the company and the machinery was damaged because of violence carried out by the striking workers. That is not the factual aspect in the present case. In the instant case, the evidence on record clearly establish that admittedly the striking workmen had not resorted to any violence but it was a peaceful strike. This aspect has not been disputed by the learned counsel for the appellant. The main argument of the learned counsel for the appellant is that even if the workmen resorted to peaceful demonstration but by not attending the machineries if there is any loss caused to the insured as the machinery has ultimately becomesuch loss is also covered under the riot and fire policy. It is also required to be noted that the special conditions are part and parcel of riot and strike policy and this riot and strike policy contains such special clause prescribed in the policy. The special conditions have been attached in the riot and strike endorsement and the same is to be read in connection with the riot and strike endorsement in the policy. In view of what is stated above, we are unable to accept the said submission canvassed by the learned counsel for the appellant.18. In our view, unless both the eventualities are present i.e. strike of the workmen and when there is an overt act on the part of the workmen during such strike which has a direct bearing to the loss suffered by the company, in such an eventuality the insurance company is required to indemnify such loss as per the riot and strike policy. In fact, as per the evidence on record, it is clear that the workmen had not resorted to any violent act or not resorted to any violence and tried to damage the machinery by way of violent act. In view of the same, we agree with the ultimate decision by the learned single Judge to the effect that no relief can be granted to the plaintiff as claimed by the plaintiff in the suit. | 0 | 5,476 | 2,459 | ### 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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policy and the said clause cannot be read in isolation. It is clear that if any damage is caused to the machinery by virtue of any overt act by the workmen during the strike, the insurance company is bound to indemnify the losses but not for any loss which is caused to the machinery in case of cessation of work. The learned counsel for the appellant submits that, in other words, in no case the insured can get any amount in case of strike even though insurance company accepts the premium in this behalf. So far as this argument is concerned, the simple answer to this is that in a case where by any overt act of a striker, by which the machinery is made non-operational, by resorting to any violence or damaging the machinery by physical act, in that case naturally the insurance company is bound to indemnify the insured.On a closure scrutiny of Clause 3 read with Condition No.5 (i) (b), in our view, in case where a workman who has resorted to strike by which the machinery is damaged by some positive act on the part of workmen, such loss sustained by the insured is required to be indemnified by the insurance company. In a case where by passive act of the workers if the machinery is ultimately damaged on account of the fact that the same was not being attended to by the workers, such risk in the policies, in our view, is not covered in view of the special conditions attached with the policy. In our view, what is covered by the policy is only damage to the machinery by which the insured has sustained loss. In the instant case the loss or damage that was sustained by the plaintiff was occasioned by a cessation of work or by a retardation, interruption or cessation of the process of operation. A loss caused by the cessation of work is expressly excluded from the insured perils in the first four policies as well as in the policy providing for consequential loss. It is submitted that even a passive act of the workmen is sufficient to hold that because of something which has been done by the workmen in furtherance of the strike that such damage has been caused to the machinery of the Company. Mr. Bharucha, the learned counsel for the respondents has argued that if any extra premium is paid by the insured for covering the risk when there is a damage to the machinery on account of cessation of work by the workmen, then in such eventuality even the insurance company is required to indemnify the insured.16. Considering the recitals in the insurance policy including the special conditions, we are not in a position to accept the view taken by the Division Bench of the Kerala High Court. At the cost of repetition, we may say that in a given case if there is any positive act on the part of the workmen by damaging the machinery in furtherance of the strike, such loss sustained by the company is required to the indemnified by the insurance company as per the policy. In a case where physical act or violence or overt act is directly attributed to the damage or loss to the machinery due to the act of the striking workmen, such risk can be said to have been covered under the policy. We are, therefore not in a position to accept the view of the Kerala High Court that in no case such risk can be said to have been covered even though insurance company accept the premium towards riot and strike policy.17. So far as the decision of the learned single Judge in the case of the NRC Ltd. (supra) is concerned, as per the evidence available in that case it was found that the workmen resorted to violence and the said act was directly attributed to the loss sustained by the company and the machinery was damaged because of violence carried out by the striking workers. That is not the factual aspect in the present case. In the instant case, the evidence on record clearly establish that admittedly the striking workmen had not resorted to any violence but it was a peaceful strike. This aspect has not been disputed by the learned counsel for the appellant. The main argument of the learned counsel for the appellant is that even if the workmen resorted to peaceful demonstration but by not attending the machineries if there is any loss caused to the insured as the machinery has ultimately become non-functional, such loss is also covered under the riot and fire policy. It is also required to be noted that the special conditions are part and parcel of riot and strike policy and this riot and strike policy contains such special clause prescribed in the policy. The special conditions have been attached in the riot and strike endorsement and the same is to be read in connection with the riot and strike endorsement in the policy. In view of what is stated above, we are unable to accept the said submission canvassed by the learned counsel for the appellant.18. In our view, unless both the eventualities are present i.e. strike of the workmen and when there is an overt act on the part of the workmen during such strike which has a direct bearing to the loss suffered by the company, in such an eventuality the insurance company is required to indemnify such loss as per the riot and strike policy. In fact, as per the evidence on record, it is clear that the workmen had not resorted to any violent act or not resorted to any violence and tried to damage the machinery by way of violent act. In view of the same, we agree with the ultimate decision by the learned single Judge to the effect that no relief can be granted to the plaintiff as claimed by the plaintiff in the suit.
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conditions attached with the policy and the said clause cannot be read in isolation. It is clear that if any damage is caused to the machinery by virtue of any overt act by the workmen during the strike, the insurance company is bound to indemnify the losses but not for any loss which is caused to the machinery in case of cessation of work. The learned counsel for the appellant submits that, in other words, in no case the insured can get any amount in case of strike even though insurance company accepts the premium in this behalf. So far as this argument is concerned, the simple answer to this is that in a case where by any overt act of a striker, by which the machinery is madeby resorting to any violence or damaging the machinery by physical act, in that case naturally the insurance company is bound to indemnify the insured.On a closure scrutiny of Clause 3 read with Condition No.5 (i) (b), in our view, in case where a workman who has resorted to strike by which the machinery is damaged by some positive act on the part of workmen, such loss sustained by the insured is required to be indemnified by the insurance company. In a case where by passive act of the workers if the machinery is ultimately damaged on account of the fact that the same was not being attended to by the workers, such risk in the policies, in our view, is not covered in view of the special conditions attached with the policy. In our view, what is covered by the policy is only damage to the machinery by which the insured has sustained loss. In the instant case the loss or damage that was sustained by the plaintiff was occasioned by a cessation of work or by a retardation, interruption or cessation of the process of operation. A loss caused by the cessation of work is expressly excluded from the insured perils in the first four policies as well as in the policy providing for consequential loss. It is submitted that even a passive act of the workmen is sufficient to hold that because of something which has been done by the workmen in furtherance of the strike that such damage has been caused to the machinery of the Company. Mr. Bharucha, the learned counsel for the respondents has argued that if any extra premium is paid by the insured for covering the risk when there is a damage to the machinery on account of cessation of work by the workmen, then in such eventuality even the insurance company is required to indemnify the insured.16. Considering the recitals in the insurance policy including the special conditions, we are not in a position to accept the view taken by the Division Bench of the Kerala High Court. At the cost of repetition, we may say that in a given case if there is any positive act on the part of the workmen by damaging the machinery in furtherance of the strike, such loss sustained by the company is required to the indemnified by the insurance company as per the policy. In a case where physical act or violence or overt act is directly attributed to the damage or loss to the machinery due to the act of the striking workmen, such risk can be said to have been covered under the policy. We are, therefore not in a position to accept the view of the Kerala High Court that in no case such risk can be said to have been covered even though insurance company accept the premium towards riot and strike policy.17. So far as the decision of the learned single Judge in the case of the NRC Ltd. (supra) is concerned, as per the evidence available in that case it was found that the workmen resorted to violence and the said act was directly attributed to the loss sustained by the company and the machinery was damaged because of violence carried out by the striking workers. That is not the factual aspect in the present case. In the instant case, the evidence on record clearly establish that admittedly the striking workmen had not resorted to any violence but it was a peaceful strike. This aspect has not been disputed by the learned counsel for the appellant. The main argument of the learned counsel for the appellant is that even if the workmen resorted to peaceful demonstration but by not attending the machineries if there is any loss caused to the insured as the machinery has ultimately becomesuch loss is also covered under the riot and fire policy. It is also required to be noted that the special conditions are part and parcel of riot and strike policy and this riot and strike policy contains such special clause prescribed in the policy. The special conditions have been attached in the riot and strike endorsement and the same is to be read in connection with the riot and strike endorsement in the policy. In view of what is stated above, we are unable to accept the said submission canvassed by the learned counsel for the appellant.18. In our view, unless both the eventualities are present i.e. strike of the workmen and when there is an overt act on the part of the workmen during such strike which has a direct bearing to the loss suffered by the company, in such an eventuality the insurance company is required to indemnify such loss as per the riot and strike policy. In fact, as per the evidence on record, it is clear that the workmen had not resorted to any violent act or not resorted to any violence and tried to damage the machinery by way of violent act. In view of the same, we agree with the ultimate decision by the learned single Judge to the effect that no relief can be granted to the plaintiff as claimed by the plaintiff in the suit.
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Smt. Yallwwa & Others Vs. National Insurance Co. Ltd. & Another | Tribunal and the High Court cannot be sustained so far as they relate to the liability of the insurer arising under Sections 92-A and 92-B of the Act." 22. The decision of this Court in United India Insurance Co. Ltd. v. Lehru and Others [(2003) 3 SCC 338] is not of much assistance in this case. The question which arose for consideration therein was as to whether in a case where the licence of the driver of the motor vehicle involved in the accident was fake, the court can direct the insurance company to pay the amount of the compensation and recover the same from the owner, as the insurance company is liable to satisfied the award. 23. Lehru (supra) has been taken into consideration in a subsequent decision of this Court in National Insurance Company Ltd. v. Swaran Singh and Others (2004) 3 SCC 297 ], which has in turn been considered in National Insurance Co. Ltd. v. Laxmi Narain Dhut [2007 (4) SCALE 36 ] and The Oriental Insurance Company Ltd. v. Meena Variyal & Ors. [2007 (5) SCALE 269 ].24. The recent decisions of this Court are authorities for the proposition that the insurance company would not be liable in cases where passengers of a vehicles are not third parties.25. In Sadhana Lodh (supra), this Court was concerned with a case where an application was filed under Articles 226 and 227 of the Constitution of India, despite the fact that an appeal was maintainable against the award and in that view of the matter, the court opined that when an insurer has a right to prefer an appeal on limited grounds available under Section 149 of the Act, the grounds of challenge cannot be enlarged by filing a petition under Articles 226 and 227 of the Constitution of India. It was observed therein: "7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision." 26. The said decision has also no application to the facts of the present case. So far as the decision of the Bombay High Court in Bapu Onkar Chaudhari (supra) is concerned, the High Court proceeded on the basis that in terms of the rules framed by the State of Maharashtra under the Motor Vehicles Act, an order passed under Section 140 would not come within the purview of the term award.27. In Bapu Onkar Chaudhari (supra), the Bombay High Court appears to have placed strong reliance on Kaushnuma Begum and Others v. New India Assurance Co. Ltd. and Others [2001 ACJ 428 : (2001) 2 SCC 9 ]. In Kaushnuma Begum (supra), this Court was concerned with the question as to whether the amount of compensation to be paid under Section 140 of the Act can be deducted from the final amount awarded by the Tribunal and while doing so, opined: "20. "No fault liability" envisaged in Section 140 of the MV Act is distinguishable from the rule of strict liability. In the former, the compensation amount is fixed and is payable even if any one of the exceptions to the rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the MV Act permit that compensation paid under "no fault liability" can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the MV Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them." 28. In Bapu Onkar Chaudhary (supra), the High Court of Bombay observed: "19. A different phraseology is used in rules 273 and 281. The Claims Tribunal in passing orders, is required to record concisely in a judgment the findings of each of the issues framed and the reasons for such findings and make an award specifying the amount of compensation to be paid by the insurers and the owners of the vehicle, who may be found vicariously responsible for causing the accident and also the person or persons to whom compensation shall be paid." 29. The Bombay High Court posed unto itself a wrong question and, thus, misdirected itself in arriving at the said decision. Its endeavour to draw sustenance of its finding from the proposition that an order passed under Section 140 of the Act is not an award having regard to Rule 281 of the Maharashtra Motor Vehicles Rules, 1989 suffers from a manifest error as the Rule lays down the procedure for filing of an appeal and, thus, by reason thereof substantive right of appeal vested in a person under a legislative Act cannot be taken away.30. In our considered opinion, the said decision does not state the law correctly. In our opinion, an order of the Tribunal awarding compensation under Section 140 of the Act is appealable under Section 173 as it amounts to an award under Section 173. | 0[ds]Although in a given situation having regard to the liability of the owner of the vehicle, a claim Tribunal need not go into the question as to whether the owner of the vehicle in question was at fault or not, but determination of the liability of the insurance company, in our opinion, stands on a different footing. When a statutory liability has been imposed upon the owner, in our opinion, the same cannot extend the liability of an insurer to indemnify the owner, although in terms of the insurance policy or under the Act, it would not be liable therefor.17. In a given case, the statutory liability of an insurance company, therefore, either may be nil or a sum lower than the amount specified under Section 140 of the Act. Thus, when a separate application is filed in terms of Section 140 of the Act, in terms of Section 168 thereof, an insurer has to be given a notice in which event, it goes without saying, it would be open to the insurance company to plead and prove that it is not liable at all.18. Furthermore, it is not in dispute that there can be more than one award particularly when a sum paid may have to be adjusted from the final award. Keeping in view the provisions of Section 168 of the Act, there cannot be any doubt whatsoever that an award for enforcing the right under Section 140 of the Act is also required to be passed under Section 168 only after the parties concerned have filed their pleadings and have been given a reasonable opportunity of being heard. A Claims Tribunal, thus, must be satisfied that the conditions precedent specified in Section 140 of the Act have been substantiated, which is the basis for making an award.19. Furthermore, evidently, the amount directed to be paid even in terms of Chapter X of the Act must as of necessity, in the event ofof directions has to be recovered in terms of Section 174 of the Act. There is no other provision in the Act which takes care of such a situation. We, therefore, are of the opinion that even when objections are raised by the insurance company in regard to its liability, the Tribunal is required to render a decision upon the issue, which would attain finality and, thus, the same would be an award within the meaning of Section 173 of the Act.The decision of this Court in United India Insurance Co. Ltd. v. Lehru and Others [(2003) 3 SCC 338] is not of much assistance in this case. The question which arose for consideration therein was as to whether in a case where the licence of the driver of the motor vehicle involved in the accident was fake, the court can direct the insurance company to pay the amount of the compensation and recover the same from the owner, as the insurance company is liable to satisfied the award.Lehru (supra) has been taken into consideration in a subsequent decision of this Court in National Insurance Company Ltd. v. Swaran Singh and Others (2004) 3 SCC 297 ], which has in turn been considered in National Insurance Co. Ltd. v. Laxmi Narain Dhut [2007 (4) SCALE 36 ] and The Oriental Insurance Company Ltd. v. Meena Variyal & Ors. [2007 (5) SCALE 269 ].24. The recent decisions of this Court are authorities for the proposition that the insurance company would not be liable in cases where passengers of a vehicles are not third parties.25. In Sadhana Lodh (supra), this Court was concerned with a case where an application was filed under Articles 226 and 227 of the Constitution of India, despite the fact that an appeal was maintainable against the award and in that view of the matter, the court opined that when an insurer has a right to prefer an appeal on limited grounds available under Section 149 of the Act, the grounds of challenge cannot be enlarged by filing a petition under Articles 226 and 227 of the Constitution of India. It was observedThe supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.The said decision has also no application to the facts of the present case. So far as the decision of the Bombay High Court in Bapu Onkar Chaudhari (supra) is concerned, the High Court proceeded on the basis that in terms of the rules framed by the State of Maharashtra under the Motor Vehicles Act, an order passed under Section 140 would not come within the purview of the term award.27. In Bapu Onkar Chaudhari (supra), the Bombay High Court appears to have placed strong reliance on Kaushnuma Begum and Others v. New India Assurance Co. Ltd. and Others [2001 ACJ 428 : (2001) 2 SCC 9 ]. In Kaushnuma Begum (supra), this Court was concerned with the question as to whether the amount of compensation to be paid under Section 140 of the Act can be deducted from the final amount awarded by the Tribunal and while doing so,"No fault liability" envisaged in Section 140 of the MV Act is distinguishable from the rule of strict liability. In the former, the compensation amount is fixed and is payable even if any one of the exceptions to the rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the MV Act permit that compensation paid under "no fault liability" can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the MV Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them.In Bapu Onkar Chaudhary (supra), the High Court of BombayA different phraseology is used in rules 273 and 281. The Claims Tribunal in passing orders, is required to record concisely in a judgment the findings of each of the issues framed and the reasons for such findings and make an award specifying the amount of compensation to be paid by the insurers and the owners of the vehicle, who may be found vicariously responsible for causing the accident and also the person or persons to whom compensation shall be paid.The Bombay High Court posed unto itself a wrong question and, thus, misdirected itself in arriving at the said decision. Its endeavour to draw sustenance of its finding from the proposition that an order passed under Section 140 of the Act is not an award having regard to Rule 281 of the Maharashtra Motor Vehicles Rules, 1989 suffers from a manifest error as the Rule lays down the procedure for filing of an appeal and, thus, by reason thereof substantive right of appeal vested in a person under a legislative Act cannot be taken away.30. In our considered opinion, the said decision does not state the law correctly. In our opinion, an order of the Tribunal awarding compensation under Section 140 of the Act is appealable under Section 173 as it amounts to an award under Section | 0 | 4,584 | 1,491 | ### 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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Tribunal and the High Court cannot be sustained so far as they relate to the liability of the insurer arising under Sections 92-A and 92-B of the Act." 22. The decision of this Court in United India Insurance Co. Ltd. v. Lehru and Others [(2003) 3 SCC 338] is not of much assistance in this case. The question which arose for consideration therein was as to whether in a case where the licence of the driver of the motor vehicle involved in the accident was fake, the court can direct the insurance company to pay the amount of the compensation and recover the same from the owner, as the insurance company is liable to satisfied the award. 23. Lehru (supra) has been taken into consideration in a subsequent decision of this Court in National Insurance Company Ltd. v. Swaran Singh and Others (2004) 3 SCC 297 ], which has in turn been considered in National Insurance Co. Ltd. v. Laxmi Narain Dhut [2007 (4) SCALE 36 ] and The Oriental Insurance Company Ltd. v. Meena Variyal & Ors. [2007 (5) SCALE 269 ].24. The recent decisions of this Court are authorities for the proposition that the insurance company would not be liable in cases where passengers of a vehicles are not third parties.25. In Sadhana Lodh (supra), this Court was concerned with a case where an application was filed under Articles 226 and 227 of the Constitution of India, despite the fact that an appeal was maintainable against the award and in that view of the matter, the court opined that when an insurer has a right to prefer an appeal on limited grounds available under Section 149 of the Act, the grounds of challenge cannot be enlarged by filing a petition under Articles 226 and 227 of the Constitution of India. It was observed therein: "7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision." 26. The said decision has also no application to the facts of the present case. So far as the decision of the Bombay High Court in Bapu Onkar Chaudhari (supra) is concerned, the High Court proceeded on the basis that in terms of the rules framed by the State of Maharashtra under the Motor Vehicles Act, an order passed under Section 140 would not come within the purview of the term award.27. In Bapu Onkar Chaudhari (supra), the Bombay High Court appears to have placed strong reliance on Kaushnuma Begum and Others v. New India Assurance Co. Ltd. and Others [2001 ACJ 428 : (2001) 2 SCC 9 ]. In Kaushnuma Begum (supra), this Court was concerned with the question as to whether the amount of compensation to be paid under Section 140 of the Act can be deducted from the final amount awarded by the Tribunal and while doing so, opined: "20. "No fault liability" envisaged in Section 140 of the MV Act is distinguishable from the rule of strict liability. In the former, the compensation amount is fixed and is payable even if any one of the exceptions to the rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the MV Act permit that compensation paid under "no fault liability" can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the MV Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them." 28. In Bapu Onkar Chaudhary (supra), the High Court of Bombay observed: "19. A different phraseology is used in rules 273 and 281. The Claims Tribunal in passing orders, is required to record concisely in a judgment the findings of each of the issues framed and the reasons for such findings and make an award specifying the amount of compensation to be paid by the insurers and the owners of the vehicle, who may be found vicariously responsible for causing the accident and also the person or persons to whom compensation shall be paid." 29. The Bombay High Court posed unto itself a wrong question and, thus, misdirected itself in arriving at the said decision. Its endeavour to draw sustenance of its finding from the proposition that an order passed under Section 140 of the Act is not an award having regard to Rule 281 of the Maharashtra Motor Vehicles Rules, 1989 suffers from a manifest error as the Rule lays down the procedure for filing of an appeal and, thus, by reason thereof substantive right of appeal vested in a person under a legislative Act cannot be taken away.30. In our considered opinion, the said decision does not state the law correctly. In our opinion, an order of the Tribunal awarding compensation under Section 140 of the Act is appealable under Section 173 as it amounts to an award under Section 173.
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opinion that even when objections are raised by the insurance company in regard to its liability, the Tribunal is required to render a decision upon the issue, which would attain finality and, thus, the same would be an award within the meaning of Section 173 of the Act.The decision of this Court in United India Insurance Co. Ltd. v. Lehru and Others [(2003) 3 SCC 338] is not of much assistance in this case. The question which arose for consideration therein was as to whether in a case where the licence of the driver of the motor vehicle involved in the accident was fake, the court can direct the insurance company to pay the amount of the compensation and recover the same from the owner, as the insurance company is liable to satisfied the award.Lehru (supra) has been taken into consideration in a subsequent decision of this Court in National Insurance Company Ltd. v. Swaran Singh and Others (2004) 3 SCC 297 ], which has in turn been considered in National Insurance Co. Ltd. v. Laxmi Narain Dhut [2007 (4) SCALE 36 ] and The Oriental Insurance Company Ltd. v. Meena Variyal & Ors. [2007 (5) SCALE 269 ].24. The recent decisions of this Court are authorities for the proposition that the insurance company would not be liable in cases where passengers of a vehicles are not third parties.25. In Sadhana Lodh (supra), this Court was concerned with a case where an application was filed under Articles 226 and 227 of the Constitution of India, despite the fact that an appeal was maintainable against the award and in that view of the matter, the court opined that when an insurer has a right to prefer an appeal on limited grounds available under Section 149 of the Act, the grounds of challenge cannot be enlarged by filing a petition under Articles 226 and 227 of the Constitution of India. It was observedThe supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.The said decision has also no application to the facts of the present case. So far as the decision of the Bombay High Court in Bapu Onkar Chaudhari (supra) is concerned, the High Court proceeded on the basis that in terms of the rules framed by the State of Maharashtra under the Motor Vehicles Act, an order passed under Section 140 would not come within the purview of the term award.27. In Bapu Onkar Chaudhari (supra), the Bombay High Court appears to have placed strong reliance on Kaushnuma Begum and Others v. New India Assurance Co. Ltd. and Others [2001 ACJ 428 : (2001) 2 SCC 9 ]. In Kaushnuma Begum (supra), this Court was concerned with the question as to whether the amount of compensation to be paid under Section 140 of the Act can be deducted from the final amount awarded by the Tribunal and while doing so,"No fault liability" envisaged in Section 140 of the MV Act is distinguishable from the rule of strict liability. In the former, the compensation amount is fixed and is payable even if any one of the exceptions to the rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the MV Act permit that compensation paid under "no fault liability" can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the MV Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them.In Bapu Onkar Chaudhary (supra), the High Court of BombayA different phraseology is used in rules 273 and 281. The Claims Tribunal in passing orders, is required to record concisely in a judgment the findings of each of the issues framed and the reasons for such findings and make an award specifying the amount of compensation to be paid by the insurers and the owners of the vehicle, who may be found vicariously responsible for causing the accident and also the person or persons to whom compensation shall be paid.The Bombay High Court posed unto itself a wrong question and, thus, misdirected itself in arriving at the said decision. Its endeavour to draw sustenance of its finding from the proposition that an order passed under Section 140 of the Act is not an award having regard to Rule 281 of the Maharashtra Motor Vehicles Rules, 1989 suffers from a manifest error as the Rule lays down the procedure for filing of an appeal and, thus, by reason thereof substantive right of appeal vested in a person under a legislative Act cannot be taken away.30. In our considered opinion, the said decision does not state the law correctly. In our opinion, an order of the Tribunal awarding compensation under Section 140 of the Act is appealable under Section 173 as it amounts to an award under Section
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Babu Rajirao Shinde Vs. State of Maharashtra | HEGDE, J. 1. The appellant was tried and convicted before the Extra Additional Sessions Judge, Osmanabad for an offence under Section 302, I.P.C. He sentenced to suffer imprisonment for life. The charge against him was that on the morning of May 14, 1968 he attacked and killed one Barmaji. The said Barmaji and the appellant have married sisters. It is said that the appellant was married about a year and half before the occurrence but his wife did not go and live with him. The prosecution case is that the appellant suspected that the deceased was responsible for that situation. Hence he murdered him. 2. The prosecution case mainly rests on the dying declaration said to have been made by the deceased at the hospital. 3. The main question for decision in the case was whether the dying declaration put forward is reliable. It was contended on behalf of the accused that the injuries sustained by the deceased were such that it was impossible for him to make a dying declaration. In support of this contention reliance was placed on the evidence of Dr. Deshpande who conducted the post-mirtem examination. Dr. Deshpandes evidence does lend some support for the contention of the appellant. The question whether the deceased could have made a dying declaration or not was an important question for decision. The Trial Court accepted the prosecution evidence that the deceased was in a position to give the dying declaration and in fact he gave the dying declaration produced into court. That finding was challenged before the High Court. But the High Court summarily dismissed the appeal. This is unfortunate. There are arguable questions in this case and it was wrong on the part of the High Court to have denied the appellant the opportunity to have his case considered by the first appellate court. The right to have at least one appeal particular in serious cases is a substantial right and the same should not be denied except on substantial grounds. In our opinion this was a fit case for entertaining the appeal and disposing of the same after a regular hearing. | 1[ds]It was contended on behalf of the accused that the injuries sustained by the deceased were such that it was impossible for him to make a dying declaration. In support of this contention reliance was placed on the evidence of Dr. Deshpande who conducted them examination. Dr. Deshpandes evidence does lend some support for the contention of the appellant. The question whether the deceased could have made a dying declaration or not was an important question for decision. The Trial Court accepted the prosecution evidence that the deceased was in a position to give the dying declaration and in fact he gave the dying declaration produced into court. That finding was challenged before the High Court. But the High Court summarily dismissed the appeal. This is unfortunate. There are arguable questions in this case and it was wrong on the part of the High Court to have denied the appellant the opportunity to have his case considered by the first appellate court. The right to have at least one appeal particular in serious cases is a substantial right and the same should not be denied except on substantial grounds. In our opinion this was a fit case for entertaining the appeal and disposing of the same after a regular hearing. | 1 | 382 | 225 | ### 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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HEGDE, J. 1. The appellant was tried and convicted before the Extra Additional Sessions Judge, Osmanabad for an offence under Section 302, I.P.C. He sentenced to suffer imprisonment for life. The charge against him was that on the morning of May 14, 1968 he attacked and killed one Barmaji. The said Barmaji and the appellant have married sisters. It is said that the appellant was married about a year and half before the occurrence but his wife did not go and live with him. The prosecution case is that the appellant suspected that the deceased was responsible for that situation. Hence he murdered him. 2. The prosecution case mainly rests on the dying declaration said to have been made by the deceased at the hospital. 3. The main question for decision in the case was whether the dying declaration put forward is reliable. It was contended on behalf of the accused that the injuries sustained by the deceased were such that it was impossible for him to make a dying declaration. In support of this contention reliance was placed on the evidence of Dr. Deshpande who conducted the post-mirtem examination. Dr. Deshpandes evidence does lend some support for the contention of the appellant. The question whether the deceased could have made a dying declaration or not was an important question for decision. The Trial Court accepted the prosecution evidence that the deceased was in a position to give the dying declaration and in fact he gave the dying declaration produced into court. That finding was challenged before the High Court. But the High Court summarily dismissed the appeal. This is unfortunate. There are arguable questions in this case and it was wrong on the part of the High Court to have denied the appellant the opportunity to have his case considered by the first appellate court. The right to have at least one appeal particular in serious cases is a substantial right and the same should not be denied except on substantial grounds. In our opinion this was a fit case for entertaining the appeal and disposing of the same after a regular hearing.
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It was contended on behalf of the accused that the injuries sustained by the deceased were such that it was impossible for him to make a dying declaration. In support of this contention reliance was placed on the evidence of Dr. Deshpande who conducted them examination. Dr. Deshpandes evidence does lend some support for the contention of the appellant. The question whether the deceased could have made a dying declaration or not was an important question for decision. The Trial Court accepted the prosecution evidence that the deceased was in a position to give the dying declaration and in fact he gave the dying declaration produced into court. That finding was challenged before the High Court. But the High Court summarily dismissed the appeal. This is unfortunate. There are arguable questions in this case and it was wrong on the part of the High Court to have denied the appellant the opportunity to have his case considered by the first appellate court. The right to have at least one appeal particular in serious cases is a substantial right and the same should not be denied except on substantial grounds. In our opinion this was a fit case for entertaining the appeal and disposing of the same after a regular hearing.
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Harinarayan G. Bajaj Vs. State of Maharashtra and Ors | 319(1), we proceed to consider the question. 16. This Court has already held that right to cross-examine the witness who are examined before framing of the charge is a very precious right because it is only by cross-examination that the accused can show to the Court that there is no need of a trial against him. It is to be seen that before framing of the charge under Section 246, the Magistrate has to form an opinion about there being ground for presuming that the accused had committed offence triable under the Chapter. If it is held that there is no right of cross-examination under Section 244, then the accused would have no opportunity to show to the Magistrate that the allegations are groundness and that there is no scope for framing a charge against him. In Ajoy Kumar Ghose Vs. State of Jharkhand [Criminal Appeal No.485 of 2009], one of us (V.S. Sirpurkar, J.) held that there is a right to the accused to cross-examine the witnesses examined before framing the charge and that the said right is extremely important. It is observed in para 25: "the right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses who have been offered at the stage of Section 244(1), Cr.P.C." 17. Therefore, the situation is clear that under Section 244, Cr.P.C. the accused has a right to cross-examine the witnesses and in the matter of Section 319, Cr.P.C. when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. Again, the witness would have to be re-heard and then there would be such a right. Merely presenting such witnesses for cross-examination would be of no consequence. This Court has already held so in Shashi Kant Singh Vs. Tarkeshwar Singh & Anr. [2002(5) SCC 738]. 18. Though a feeble attempt was made to argue that in that ruling the Supreme Court had expressed, in short there has to be a de novo trial against him. The provision of de novo trial is mandatory and therefore, it is only a trial which has to be ordered and not the proceedings. The argument is absolutely incorrect because in Shashi Kant Singhs case (cited supra), the Court was dealing with a warrant trial case, not based on a private complaint and, therefore, the Supreme Court used the words de novo trial. The High Court has correctly appreciated this provision. 19. This takes us to the rulings cited which we must consider. In Rakesh Vs. State of Haryana [2001(6) SCC 248], this Court framed the question in paragraph 3 in the following words: "Whether the statement of a prosecution witness without the said witness having been cross-examined constitutes "evidence" within the meaning of Section 319, Cr.P.C." It is in that behalf that the Court expressed:- "....the contention that the term `evidence as used in Section 319 Criminal Procedure Code would mean evidence which is tested by cross-examination cannot be accepted". The Court, however, immediately expressed that the question of discharging the evidence by cross-examination would arise only after the addition of the accused and that there was no question of cross-examining the witnesses prior to adding such person as accused. It was further said that the Section does not contemplate an additional stage of first summoning the person and giving him the opportunity to cross-examine the witness who has deposed against him and thereby testing whether such person to be added as accused or not. Once the Sessions Court records the statement of the witnesses, it would be part of the evidence. Therefore, it was in different factual situation that this Court had made those observations. We do not think that such observations can be taken advantage of. This is apart from the fact that the Court has specifically held that the interpretation of the evidence was only for the purpose of Section 319, Cr.P.C. 20. To the similar effect was the ruling relied upon by the appellant in Ram Gopal & Anr. Vs. State, [1999 Cri.L.J. 1865]. In fact Ram Gopals case is also restricted to the interpretation of the word evidence as is used under Section 319, Cr.P.C. Though there are some other observations in respect of Section 244, Cr.P.C., we do not think that the observations in paragraph 29 are correct. In fact the observations in paragraph 35 therein clarified the ratio of that decision. In that view, that judgment will be of no help. 21. Our attention was also invited to R.S. Nayak Vs. A.R. Antulay [1986 (2) SCC 716 ] paragraphs 45 and 46. We do not think that there is any need on our part to comment on this case, more particularly, to assess the scope of Sections 244 and 245, Cr.P.C. because if Section 319(4), Cr.P.C. is interpreted in the manner that we have interpreted it, there would not be necessity of going into the scope of Section 244, Cr.P.C. as because of that interpretation all the proceedings would be relegated back and start afresh whereby there would be clear scope and right for the newly added accused to hear the evidence of witnesses examined before framing of charge and to cross-examine them. 22. A reference was also made to Michael Machado Vs. Central Bureau of Investigation [2000(3) SCC 262]. However, in our opinion Michael Machados case is not an authority on the true scope of Section 319(4), Cr.P.C. 23. Shri. Naphade also tried to suggest by taking to the old Section 252, Cr.P.C. to suggest that there is no right of cross examination. As we have already clarified, once we interpret the provision of Section 319(4), Cr.P.C. to mean that the proceedings have to go back and have to be commenced afresh and the witnesses have also to be reheard, then the right of cross-examination would be innate and under the circumstances there would be no necessity of specifically commenting upon the scope of Section 244, Cr.P.C. | 1[ds]12. We would also give a meaningful interpretation of the word proceedings which has been deliberately used by the Legislature. The Legislature does not use the word trial which essentially begins after framing of the charge. If the Legislature had intended that the newly joined accused should not get the right of cross-examining the witnesses examined before framing of the charge, it might have used the word trial. The deliberate use of the word proceedings would then include not only the trial but also the inquiry which commences with Section 244, Cr.P.C. and ends with the framing of the charge under Section 246, Cr.P.C. The terminology commence afresh has also its own force. It indicates that the whole inquiry which commences from Section 244, Cr.P.C. must begin afresh. The interpretation that we give to the words proceedings is buttressed by the language of 319(b). Cr.P.C. The plain language takes back the whole proceedings to the stage of taking cognizance. If we accept the contention of the appellant herein, then subclause (b) would be rendered otiose. We have, therefore, no doubt that the language of Section 319. Cr.P.C. itself pushes the proceedings back to the stage of inquiry, once the order under Section 319(1) Cr.P.C. is passed by the Court and a new accused is joined therein.13. There is one more angle and that is the angle of mischief. If the interpretation given by the appellant is to be accepted then a complainant, wherein it is a case of multiple accused, may mischievously join only few of them and after getting the charge framed, make an application under Section 319, Cr.P.C. to join some other accused persons who would then have no right of cross-examination of the witnesses and who would be required to be the mute spectators to the charge being framed against which they could have successfully resisted by cross-examining the witnesses.14. There is one more aspect that before summoning the accused under Section 319(1), Cr.P.C. there is no requirement of allowing such accused person to cross-examine the witnesses. That stage comes only after an accused is summoned under sub-section (1). Therefore, it would be a case where the newly added accused who has not had the advantage of hearing the evidence would be put to prejudice because firstly. he has not heard the evidence and secondly, he cannot even cross-examine those witnesses in the warrant trial based on a private complaint.This Court has already held that right to cross-examine the witness who are examined before framing of the charge is a very precious right because it is only by cross-examination that the accused can show to the Court that there is no need of a trial against him. It is to be seen that before framing of the charge under Section 246, the Magistrate has to form an opinion about there being ground for presuming that the accused had committed offence triable under the Chapter. If it is held that there is no right of cross-examination under Section 244, then the accused would have no opportunity to show to the Magistrate that the allegations are groundness and that there is no scope for framing a charge against him. In Ajoy Kumar Ghose Vs. State of Jharkhand [Criminal Appeal No.485 of 2009], one of us (V.S. Sirpurkar, J.) held that there is a right to the accused to cross-examine the witnesses examined before framing the charge and that the said right is extremely important. It is observed in pararight of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses who have been offered at the stage of Section 244(1), Cr.P.C.Therefore, the situation is clear that under Section 244, Cr.P.C. the accused has a right to cross-examine the witnesses and in the matter of Section 319, Cr.P.C. when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. Again, the witness would have to be re-heard and then there would be such a right. Merely presenting such witnesses for cross-examination would be of no consequence. This Court has already held so in Shashi Kant Singh Vs. Tarkeshwar Singh & Anr. [2002(5) SCC 738]. | 1 | 3,316 | 795 | ### 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:
319(1), we proceed to consider the question. 16. This Court has already held that right to cross-examine the witness who are examined before framing of the charge is a very precious right because it is only by cross-examination that the accused can show to the Court that there is no need of a trial against him. It is to be seen that before framing of the charge under Section 246, the Magistrate has to form an opinion about there being ground for presuming that the accused had committed offence triable under the Chapter. If it is held that there is no right of cross-examination under Section 244, then the accused would have no opportunity to show to the Magistrate that the allegations are groundness and that there is no scope for framing a charge against him. In Ajoy Kumar Ghose Vs. State of Jharkhand [Criminal Appeal No.485 of 2009], one of us (V.S. Sirpurkar, J.) held that there is a right to the accused to cross-examine the witnesses examined before framing the charge and that the said right is extremely important. It is observed in para 25: "the right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses who have been offered at the stage of Section 244(1), Cr.P.C." 17. Therefore, the situation is clear that under Section 244, Cr.P.C. the accused has a right to cross-examine the witnesses and in the matter of Section 319, Cr.P.C. when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. Again, the witness would have to be re-heard and then there would be such a right. Merely presenting such witnesses for cross-examination would be of no consequence. This Court has already held so in Shashi Kant Singh Vs. Tarkeshwar Singh & Anr. [2002(5) SCC 738]. 18. Though a feeble attempt was made to argue that in that ruling the Supreme Court had expressed, in short there has to be a de novo trial against him. The provision of de novo trial is mandatory and therefore, it is only a trial which has to be ordered and not the proceedings. The argument is absolutely incorrect because in Shashi Kant Singhs case (cited supra), the Court was dealing with a warrant trial case, not based on a private complaint and, therefore, the Supreme Court used the words de novo trial. The High Court has correctly appreciated this provision. 19. This takes us to the rulings cited which we must consider. In Rakesh Vs. State of Haryana [2001(6) SCC 248], this Court framed the question in paragraph 3 in the following words: "Whether the statement of a prosecution witness without the said witness having been cross-examined constitutes "evidence" within the meaning of Section 319, Cr.P.C." It is in that behalf that the Court expressed:- "....the contention that the term `evidence as used in Section 319 Criminal Procedure Code would mean evidence which is tested by cross-examination cannot be accepted". The Court, however, immediately expressed that the question of discharging the evidence by cross-examination would arise only after the addition of the accused and that there was no question of cross-examining the witnesses prior to adding such person as accused. It was further said that the Section does not contemplate an additional stage of first summoning the person and giving him the opportunity to cross-examine the witness who has deposed against him and thereby testing whether such person to be added as accused or not. Once the Sessions Court records the statement of the witnesses, it would be part of the evidence. Therefore, it was in different factual situation that this Court had made those observations. We do not think that such observations can be taken advantage of. This is apart from the fact that the Court has specifically held that the interpretation of the evidence was only for the purpose of Section 319, Cr.P.C. 20. To the similar effect was the ruling relied upon by the appellant in Ram Gopal & Anr. Vs. State, [1999 Cri.L.J. 1865]. In fact Ram Gopals case is also restricted to the interpretation of the word evidence as is used under Section 319, Cr.P.C. Though there are some other observations in respect of Section 244, Cr.P.C., we do not think that the observations in paragraph 29 are correct. In fact the observations in paragraph 35 therein clarified the ratio of that decision. In that view, that judgment will be of no help. 21. Our attention was also invited to R.S. Nayak Vs. A.R. Antulay [1986 (2) SCC 716 ] paragraphs 45 and 46. We do not think that there is any need on our part to comment on this case, more particularly, to assess the scope of Sections 244 and 245, Cr.P.C. because if Section 319(4), Cr.P.C. is interpreted in the manner that we have interpreted it, there would not be necessity of going into the scope of Section 244, Cr.P.C. as because of that interpretation all the proceedings would be relegated back and start afresh whereby there would be clear scope and right for the newly added accused to hear the evidence of witnesses examined before framing of charge and to cross-examine them. 22. A reference was also made to Michael Machado Vs. Central Bureau of Investigation [2000(3) SCC 262]. However, in our opinion Michael Machados case is not an authority on the true scope of Section 319(4), Cr.P.C. 23. Shri. Naphade also tried to suggest by taking to the old Section 252, Cr.P.C. to suggest that there is no right of cross examination. As we have already clarified, once we interpret the provision of Section 319(4), Cr.P.C. to mean that the proceedings have to go back and have to be commenced afresh and the witnesses have also to be reheard, then the right of cross-examination would be innate and under the circumstances there would be no necessity of specifically commenting upon the scope of Section 244, Cr.P.C.
### Response:
1
### Explanation:
12. We would also give a meaningful interpretation of the word proceedings which has been deliberately used by the Legislature. The Legislature does not use the word trial which essentially begins after framing of the charge. If the Legislature had intended that the newly joined accused should not get the right of cross-examining the witnesses examined before framing of the charge, it might have used the word trial. The deliberate use of the word proceedings would then include not only the trial but also the inquiry which commences with Section 244, Cr.P.C. and ends with the framing of the charge under Section 246, Cr.P.C. The terminology commence afresh has also its own force. It indicates that the whole inquiry which commences from Section 244, Cr.P.C. must begin afresh. The interpretation that we give to the words proceedings is buttressed by the language of 319(b). Cr.P.C. The plain language takes back the whole proceedings to the stage of taking cognizance. If we accept the contention of the appellant herein, then subclause (b) would be rendered otiose. We have, therefore, no doubt that the language of Section 319. Cr.P.C. itself pushes the proceedings back to the stage of inquiry, once the order under Section 319(1) Cr.P.C. is passed by the Court and a new accused is joined therein.13. There is one more angle and that is the angle of mischief. If the interpretation given by the appellant is to be accepted then a complainant, wherein it is a case of multiple accused, may mischievously join only few of them and after getting the charge framed, make an application under Section 319, Cr.P.C. to join some other accused persons who would then have no right of cross-examination of the witnesses and who would be required to be the mute spectators to the charge being framed against which they could have successfully resisted by cross-examining the witnesses.14. There is one more aspect that before summoning the accused under Section 319(1), Cr.P.C. there is no requirement of allowing such accused person to cross-examine the witnesses. That stage comes only after an accused is summoned under sub-section (1). Therefore, it would be a case where the newly added accused who has not had the advantage of hearing the evidence would be put to prejudice because firstly. he has not heard the evidence and secondly, he cannot even cross-examine those witnesses in the warrant trial based on a private complaint.This Court has already held that right to cross-examine the witness who are examined before framing of the charge is a very precious right because it is only by cross-examination that the accused can show to the Court that there is no need of a trial against him. It is to be seen that before framing of the charge under Section 246, the Magistrate has to form an opinion about there being ground for presuming that the accused had committed offence triable under the Chapter. If it is held that there is no right of cross-examination under Section 244, then the accused would have no opportunity to show to the Magistrate that the allegations are groundness and that there is no scope for framing a charge against him. In Ajoy Kumar Ghose Vs. State of Jharkhand [Criminal Appeal No.485 of 2009], one of us (V.S. Sirpurkar, J.) held that there is a right to the accused to cross-examine the witnesses examined before framing the charge and that the said right is extremely important. It is observed in pararight of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses who have been offered at the stage of Section 244(1), Cr.P.C.Therefore, the situation is clear that under Section 244, Cr.P.C. the accused has a right to cross-examine the witnesses and in the matter of Section 319, Cr.P.C. when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. Again, the witness would have to be re-heard and then there would be such a right. Merely presenting such witnesses for cross-examination would be of no consequence. This Court has already held so in Shashi Kant Singh Vs. Tarkeshwar Singh & Anr. [2002(5) SCC 738].
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Union of India & Others Vs. M/s. Ind- Swift Laboratories Ltd | as it exists all by itself. So far as Section 11AB is concerned, the same becomes relevant and applicable for the purpose of making recovery of the amount due and payable. Therefore, the High Court erroneously held that interest cannot be claimed from the date of wrong availment of CENVAT credit and that it should only be payable from the date when CENVAT credit is wrongly utilized. Besides, the rule of reading down is in itself a rule of harmonious construction in a different name. It is generally utilized to straighten the crudities or ironing out the creases to make a statute workable. This Court has repeatedly laid down that in the garb of reading down a provision it is not open to read words and expressions not found in the provision/statute and thus venture into a kind of judicial legislation. It is also held by this Court that the Rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute. In this connection we may appropriately refer to the decision of this Court in Calcutta Gujarati Education Society and Another v. Calcutta Municipal Corporation and Others reported in (2003) 10 SCC 533 in which reference was made at Para 35 to the following observations of this Court in the case of B.R. Enterprises v. State of U.P. and Others reported in (1999) 9 SCC 700 : - "81. .............. It is also well settled that first attempt should be made by the courts to uphold the charged provision and not to invalidate it merely because one of the possible interpretations leads to such a result, howsoever attractive it may be. Thus, where there are two possible interpretations, one invalidating the law and the other upholding, the latter should be adopted. For this, the courts have been endeavouring, sometimes to give restrictive or expansive meaning keeping in view the nature of legislation, maybe beneficial, penal or fiscal etc. Cumulatively it is to subserve the object of the legislation. Old golden rule is of respecting the wisdom of legislature that they are aware of the law and would never have intended for an invalid legislation. This also keeps courts within their track and checks individual zeal of going wayward. Yet in spite of this, if the impugned legislation cannot be saved the courts shall not hesitate to strike it down.Similarly, for upholding any provision, if it could be saved by reading it down, it should be done, unless plain words are so clear to be in defiance of the Constitution. These interpretations spring out because of concern of the courts to salvage a legislation to achieve its objective and not to let it fall merely because of a possible ingenious interpretation. The words are not static but dynamic. This infuses fertility in the field of interpretation. This equally helps to save an Act but also the cause of attack on the Act.Here the courts have to play a cautious role of weeding out the wild from the crop, of course, without infringing the Constitution. For doing this, the courts have taken help from the preamble, Objects, the scheme of the Act, its historical background, the purpose for enacting such a provision, the mischief, if any which existed, which is sought to be eliminated................................. ......... ..................................................................... ....................................................... This principle of reading down, however, will not be available where the plain and literal meaning from a bare reading of any impugned provisions clearly shows that it confers arbitrary, uncanalised or unbridled power." (emphasis supplied)" 19. A taxing statute must be interpreted in the light of what is clearly expressed. It is not permissible to import provisions in a taxing statute so as to supply any assumed deficiency. In support of the same we may refer to the decision of this Court in Commissioner of Sales Tax, U.P. v. Modi Sugar Mills Ltd. reported in (1961) 2 SCR 189 wherein this Court at Para 10 has observed as follows: - "10......... In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed: it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency." 20. Therefore, the attempt of the High Court to read down the provision by way of substituting the word "OR" by an "AND" so as to give relief to the assessee is found to be erroneous. In that regard the submission of the counsel for the appellant is well-founded that once the said credit is taken the beneficiary is at liberty to utilize the same, immediately thereafter, subject to the Credit rules. 21. An order passed by the Settlement Commission could be interfered with only if the said order is found to be contrary to any provisions of the Act. So far findings of the fact recorded by Commission or question of facts are concerned, the same is not open for examination either by the High Court or by the Supreme Court. In the present case the order of the Settlement Commission clearly indicates that the said order, particularly, with regard to the imposition of simple interest @ 10 per cent per annum was passed in accordance with the provisions of Rule 14 but the High Court wrongly interpreted the said Rule and thereby arrived at an erroneous finding.22. So far as the second issue with respect to interest on Rs. 50 lacs is concerned, the same being a factual issue should not have been gone into by the High Court exercising the writ jurisdiction and the High Court should not have substituted its own opinion against the opinion of the Settlement Commission when the same was not challenged on merits. | 1[ds]11. The facts delineated hereinabove make it crystal clear that the respondent accepted all the allegations raised in the show cause notice and also the duty liability under the said show cause notice dated 08.12.2006. They also deposited the entire duty of Rs. 5,71,47,148/- prior to the issuance of the show cause notice and, therefore, they requested for settlement of the proceedings in terms of Section 32E read with Section 32F of the Act. The said settlement proceedings were conducted in accordance with law and was finalized by the order dated 19.01.2007 on the terms and conditions which have already been extracted hereinbefore.12. A bare perusal of the said order would indicate that the Settlement commission has imposed the liability of payment of simple interest only @ 10 per cent per annum on CENVAT credit wrongly availed, that is, Rs. 5,71,47,148/- from the date the duty became payable. Incidentally, imposition of such simple interest at 10 per cent per annum was the minimum, whereas levy of interest at 36 per cent per annum was the highest in terms of the Section 11 AB of the Act. Besides, the allegations made in the show cause notice were admitted by the respondent which, therefore, establishes that the respondent had taken wrongful CENVAT credit from the year 2001 to 31.03.2006 and the payment has been made only on 22.02.2006 and on five different dates in March, 2006 and on 20.11.2006, which indicates that the respondent had the benefit of availing the large amount of CENVAT credit to which they were otherwise not entitled to.Although, subsequently, an application by way of clarification was filed by the respondent, the said application was, however, not entertained. It was held that the said application is misconceived, particularly, in view of the fact that no such issue was raised before the Commission. Since, however, a Writ Petition was filed by the respondent challenging only the second order of the Settlement Commission and the subsequent letter issued from the office of the appellant, on the basis of which, High Court even proceeded to interfere with the first order passed by the Settlement Commission, we heard the counsel appearing for the parties on the issue decided by the High Court also.We do not feel that any other harmonious construction is required to be given to the aforesaid expression/provision which is clear and unambiguous as it exists all by itself. So far as Section 11AB is concerned, the same becomes relevant and applicable for the purpose of making recovery of the amount due and payable. Therefore, the High Court erroneously held that interest cannot be claimed from the date of wrong availment of CENVAT credit and that it should only be payable from the date when CENVAT credit is wrongly utilized. Besides, the rule of reading down is in itself a rule of harmonious construction in a different name. It is generally utilized to straighten the crudities or ironing out the creases to make a statute workable. This Court has repeatedly laid down that in the garb of reading down a provision it is not open to read words and expressions not found in the provision/statute and thus venture into a kind of judicial legislation. It is also held by this Court that the Rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute.An order passed by the Settlement Commission could be interfered with only if the said order is found to be contrary to any provisions of the Act. So far findings of the fact recorded by Commission or question of facts are concerned, the same is not open for examination either by the High Court or by the Supreme Court. In the present case the order of the Settlement Commission clearly indicates that the said order, particularly, with regard to the imposition of simple interest @ 10 per cent per annum was passed in accordance with the provisions of Rule 14 but the High Court wrongly interpreted the said Rule and thereby arrived at an erroneous finding.22. So far as the second issue with respect to interest on Rs. 50 lacs is concerned, the same being a factual issue should not have been gone into by the High Court exercising the writ jurisdiction and the High Court should not have substituted its own opinion against the opinion of the Settlement Commission when the same was not challenged on merits. | 1 | 4,045 | 806 | ### 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 it exists all by itself. So far as Section 11AB is concerned, the same becomes relevant and applicable for the purpose of making recovery of the amount due and payable. Therefore, the High Court erroneously held that interest cannot be claimed from the date of wrong availment of CENVAT credit and that it should only be payable from the date when CENVAT credit is wrongly utilized. Besides, the rule of reading down is in itself a rule of harmonious construction in a different name. It is generally utilized to straighten the crudities or ironing out the creases to make a statute workable. This Court has repeatedly laid down that in the garb of reading down a provision it is not open to read words and expressions not found in the provision/statute and thus venture into a kind of judicial legislation. It is also held by this Court that the Rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute. In this connection we may appropriately refer to the decision of this Court in Calcutta Gujarati Education Society and Another v. Calcutta Municipal Corporation and Others reported in (2003) 10 SCC 533 in which reference was made at Para 35 to the following observations of this Court in the case of B.R. Enterprises v. State of U.P. and Others reported in (1999) 9 SCC 700 : - "81. .............. It is also well settled that first attempt should be made by the courts to uphold the charged provision and not to invalidate it merely because one of the possible interpretations leads to such a result, howsoever attractive it may be. Thus, where there are two possible interpretations, one invalidating the law and the other upholding, the latter should be adopted. For this, the courts have been endeavouring, sometimes to give restrictive or expansive meaning keeping in view the nature of legislation, maybe beneficial, penal or fiscal etc. Cumulatively it is to subserve the object of the legislation. Old golden rule is of respecting the wisdom of legislature that they are aware of the law and would never have intended for an invalid legislation. This also keeps courts within their track and checks individual zeal of going wayward. Yet in spite of this, if the impugned legislation cannot be saved the courts shall not hesitate to strike it down.Similarly, for upholding any provision, if it could be saved by reading it down, it should be done, unless plain words are so clear to be in defiance of the Constitution. These interpretations spring out because of concern of the courts to salvage a legislation to achieve its objective and not to let it fall merely because of a possible ingenious interpretation. The words are not static but dynamic. This infuses fertility in the field of interpretation. This equally helps to save an Act but also the cause of attack on the Act.Here the courts have to play a cautious role of weeding out the wild from the crop, of course, without infringing the Constitution. For doing this, the courts have taken help from the preamble, Objects, the scheme of the Act, its historical background, the purpose for enacting such a provision, the mischief, if any which existed, which is sought to be eliminated................................. ......... ..................................................................... ....................................................... This principle of reading down, however, will not be available where the plain and literal meaning from a bare reading of any impugned provisions clearly shows that it confers arbitrary, uncanalised or unbridled power." (emphasis supplied)" 19. A taxing statute must be interpreted in the light of what is clearly expressed. It is not permissible to import provisions in a taxing statute so as to supply any assumed deficiency. In support of the same we may refer to the decision of this Court in Commissioner of Sales Tax, U.P. v. Modi Sugar Mills Ltd. reported in (1961) 2 SCR 189 wherein this Court at Para 10 has observed as follows: - "10......... In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed: it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency." 20. Therefore, the attempt of the High Court to read down the provision by way of substituting the word "OR" by an "AND" so as to give relief to the assessee is found to be erroneous. In that regard the submission of the counsel for the appellant is well-founded that once the said credit is taken the beneficiary is at liberty to utilize the same, immediately thereafter, subject to the Credit rules. 21. An order passed by the Settlement Commission could be interfered with only if the said order is found to be contrary to any provisions of the Act. So far findings of the fact recorded by Commission or question of facts are concerned, the same is not open for examination either by the High Court or by the Supreme Court. In the present case the order of the Settlement Commission clearly indicates that the said order, particularly, with regard to the imposition of simple interest @ 10 per cent per annum was passed in accordance with the provisions of Rule 14 but the High Court wrongly interpreted the said Rule and thereby arrived at an erroneous finding.22. So far as the second issue with respect to interest on Rs. 50 lacs is concerned, the same being a factual issue should not have been gone into by the High Court exercising the writ jurisdiction and the High Court should not have substituted its own opinion against the opinion of the Settlement Commission when the same was not challenged on merits.
### Response:
1
### Explanation:
11. The facts delineated hereinabove make it crystal clear that the respondent accepted all the allegations raised in the show cause notice and also the duty liability under the said show cause notice dated 08.12.2006. They also deposited the entire duty of Rs. 5,71,47,148/- prior to the issuance of the show cause notice and, therefore, they requested for settlement of the proceedings in terms of Section 32E read with Section 32F of the Act. The said settlement proceedings were conducted in accordance with law and was finalized by the order dated 19.01.2007 on the terms and conditions which have already been extracted hereinbefore.12. A bare perusal of the said order would indicate that the Settlement commission has imposed the liability of payment of simple interest only @ 10 per cent per annum on CENVAT credit wrongly availed, that is, Rs. 5,71,47,148/- from the date the duty became payable. Incidentally, imposition of such simple interest at 10 per cent per annum was the minimum, whereas levy of interest at 36 per cent per annum was the highest in terms of the Section 11 AB of the Act. Besides, the allegations made in the show cause notice were admitted by the respondent which, therefore, establishes that the respondent had taken wrongful CENVAT credit from the year 2001 to 31.03.2006 and the payment has been made only on 22.02.2006 and on five different dates in March, 2006 and on 20.11.2006, which indicates that the respondent had the benefit of availing the large amount of CENVAT credit to which they were otherwise not entitled to.Although, subsequently, an application by way of clarification was filed by the respondent, the said application was, however, not entertained. It was held that the said application is misconceived, particularly, in view of the fact that no such issue was raised before the Commission. Since, however, a Writ Petition was filed by the respondent challenging only the second order of the Settlement Commission and the subsequent letter issued from the office of the appellant, on the basis of which, High Court even proceeded to interfere with the first order passed by the Settlement Commission, we heard the counsel appearing for the parties on the issue decided by the High Court also.We do not feel that any other harmonious construction is required to be given to the aforesaid expression/provision which is clear and unambiguous as it exists all by itself. So far as Section 11AB is concerned, the same becomes relevant and applicable for the purpose of making recovery of the amount due and payable. Therefore, the High Court erroneously held that interest cannot be claimed from the date of wrong availment of CENVAT credit and that it should only be payable from the date when CENVAT credit is wrongly utilized. Besides, the rule of reading down is in itself a rule of harmonious construction in a different name. It is generally utilized to straighten the crudities or ironing out the creases to make a statute workable. This Court has repeatedly laid down that in the garb of reading down a provision it is not open to read words and expressions not found in the provision/statute and thus venture into a kind of judicial legislation. It is also held by this Court that the Rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute.An order passed by the Settlement Commission could be interfered with only if the said order is found to be contrary to any provisions of the Act. So far findings of the fact recorded by Commission or question of facts are concerned, the same is not open for examination either by the High Court or by the Supreme Court. In the present case the order of the Settlement Commission clearly indicates that the said order, particularly, with regard to the imposition of simple interest @ 10 per cent per annum was passed in accordance with the provisions of Rule 14 but the High Court wrongly interpreted the said Rule and thereby arrived at an erroneous finding.22. So far as the second issue with respect to interest on Rs. 50 lacs is concerned, the same being a factual issue should not have been gone into by the High Court exercising the writ jurisdiction and the High Court should not have substituted its own opinion against the opinion of the Settlement Commission when the same was not challenged on merits.
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Subsets and Splits