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State Of Jammu Kashmir Vs. Mir Gulam Rasul | from the Judgment of the High Court.3. In the view that, we think, must be taken of this case, it is unnecessary to go into the facts a great deal. At one stage of his career under the appellant, the respondent held a job of some responsibility in what was called the Sindh Valley Hydro Electric Scheme. This Scheme was for generating electric power by dams erected in the Sindh water course and for using the water for irrigation purposes. The work on this Scheme seems to have commenced some time ago. The respondent was connected with the Scheme from 1949 till he was transferred from the work in 1953. It appears that the appellant was dissatisfied with the progress of the work and the manner in which it had been carried out and decided to, establish a Commission of Inquiry (a) to investigate into the reasons for (i) progressive rise in the estimates, (ii) the defective planning and the delay in the execution of the work and (iii) the other irregularities and (b) to fix responsibility upon the persons concerned and make appropriate recommendations. Pending the investigation various officers associated with the planning and execution of the Scheme including the respondent, were placed under suspension on September 8, 1954. Thereafter on October 20, 1954, a commission was set up by the appellant consisting of various persons. The Commission made certain enquiries and eventually submitted its report to the appellant. The appellant then made the order demoting the respondent purporting to act on the basis of the report. It is not necessary to set out the facts any more.4. The respondent, in his application for the writ, questioned the validity of the orders suspending and demoting him on these grounds. He alleged that the Commission did not conduct the enquiry according to the rules of natural justice. He said that he was not even informed of the charges against him nor given a proper hearing and that if he had been given proper opportunity, he would have proved that he had not been at fault at all. He also said that the appointment of the Commission could only have been made under S. 2 of the Public Servants (Inquiries) Act, 1977 (Kashmir era), and must, therefore be deemed to have been so made. He complained that the provisions of this Act were not observed by the Commissioner in making the enquiry. Lastly, he said that the respondent could be reduced in rank only in accordance with the procedure laid down in the Kashmir Civil Service Rules passed by the State Council Order No. 81-C of 1939 and this procedure had not been followed. In the High Court, the question as to whether these Rules had the status of law seems to have been debated at great length. The High Court took the view that they had. We will proceed on the basis that the High Court was right and the allegations made by the respondent in his petition had been sub-stantiated.5. Now, the High Court was moved to exercise its powers under Art. 32(2A) of the Constitution. The order made by it cannot be upheld if it was not justified by that provision. This is not in dispute. That provision is in these terms :Article 32 (2A). "Without prejudice to the powers conferred by clauses (1) and (2), the High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government within those territories, directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by this Part."The High Court can then exercise its powers under Art. 32(2-A) only "for the enforcement of any of the rights conferred by this Part". The Part referred to is Part III and the rights conferred by it are the fundamental rights. Therefore, the High Court can act under Cl. (2A) of Art. 32 only to enforce a fundamental right.6. The only fundamental right, however on the violation of which learned counsel for the respondent could rely in support of the order of the High Court was that conferred by Art. 14, namely, the right to the equal protection of the laws. He said that the respondent was entitled to have the procedure prescribed by the Kashmir Civil Service Rules followed before the order demoting him could be made and as that procedure was not followed, his client had been denied the equal protection of the laws. It seems to us that even if the Rules are a law and the respondent has not been given the benefit of them, all that can be said to have happened is that the appellant has acted in breach of the law. But that does not amount to a violation of the right to the equal protection of the laws. Otherwise, every breach of law by a Government would amount to a denial of the equal protection of the laws. We are not aware of any authority in support of that proposition and none has been cited to us. Nor are we able to find any support for it in principle. It is not the respondents case that other servants of the appellant had been given the benefit of those Rules and such benefit has been designedly denied only to him. It seems to us that the appeal must be allowed on the simple ground that the respondents petition does not show a violation of any fundamental right. The High Court had no power to act under Art. 32 (2A) at all.7. We think it right to point out that Arts. 226 and 311 (2) of the Constitution of India had not been applied to the State of Jammu and Kashmir at any material time. No question of the respondents application being maintainable in view of these articles, therefore, arises. | 1[ds]6. The only fundamental right, however on the violation of which learned counsel for the respondent could rely in support of the order of the High Court was that conferred by Art. 14, namely, the right to the equal protection of the laws. He said that the respondent was entitled to have the procedure prescribed by the Kashmir Civil Service Rules followed before the order demoting him could be made and as that procedure was not followed, his client had been denied the equal protection of the laws. It seems to us that even if the Rules are a law and the respondent has not been given the benefit of them, all that can be said to have happened is that the appellant has acted in breach of the law. But that does not amount to a violation of the right to the equal protection of the laws. Otherwise, every breach of law by a Government would amount to a denial of the equal protection of the laws. We are not aware of any authority in support of that proposition and none has been cited to us. Nor are we able to find any support for it in principle. It is not the respondents case that other servants of the appellant had been given the benefit of those Rules and such benefit has been designedly denied only to him. It seems to us that the appeal must be allowed on the simple ground that the respondents petition does not show a violation of any fundamental right. The High Court had no power to act under Art. 32 (2A) at all.7. We think it right to point out that Arts. 226 and 311 (2) of the Constitution of India had not been applied to the State of Jammu and Kashmir at any material time. No question of the respondents application being maintainable in view of these articles, therefore, arises. | 1 | 1,315 | 350 | ### Instruction:
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from the Judgment of the High Court.3. In the view that, we think, must be taken of this case, it is unnecessary to go into the facts a great deal. At one stage of his career under the appellant, the respondent held a job of some responsibility in what was called the Sindh Valley Hydro Electric Scheme. This Scheme was for generating electric power by dams erected in the Sindh water course and for using the water for irrigation purposes. The work on this Scheme seems to have commenced some time ago. The respondent was connected with the Scheme from 1949 till he was transferred from the work in 1953. It appears that the appellant was dissatisfied with the progress of the work and the manner in which it had been carried out and decided to, establish a Commission of Inquiry (a) to investigate into the reasons for (i) progressive rise in the estimates, (ii) the defective planning and the delay in the execution of the work and (iii) the other irregularities and (b) to fix responsibility upon the persons concerned and make appropriate recommendations. Pending the investigation various officers associated with the planning and execution of the Scheme including the respondent, were placed under suspension on September 8, 1954. Thereafter on October 20, 1954, a commission was set up by the appellant consisting of various persons. The Commission made certain enquiries and eventually submitted its report to the appellant. The appellant then made the order demoting the respondent purporting to act on the basis of the report. It is not necessary to set out the facts any more.4. The respondent, in his application for the writ, questioned the validity of the orders suspending and demoting him on these grounds. He alleged that the Commission did not conduct the enquiry according to the rules of natural justice. He said that he was not even informed of the charges against him nor given a proper hearing and that if he had been given proper opportunity, he would have proved that he had not been at fault at all. He also said that the appointment of the Commission could only have been made under S. 2 of the Public Servants (Inquiries) Act, 1977 (Kashmir era), and must, therefore be deemed to have been so made. He complained that the provisions of this Act were not observed by the Commissioner in making the enquiry. Lastly, he said that the respondent could be reduced in rank only in accordance with the procedure laid down in the Kashmir Civil Service Rules passed by the State Council Order No. 81-C of 1939 and this procedure had not been followed. In the High Court, the question as to whether these Rules had the status of law seems to have been debated at great length. The High Court took the view that they had. We will proceed on the basis that the High Court was right and the allegations made by the respondent in his petition had been sub-stantiated.5. Now, the High Court was moved to exercise its powers under Art. 32(2A) of the Constitution. The order made by it cannot be upheld if it was not justified by that provision. This is not in dispute. That provision is in these terms :Article 32 (2A). "Without prejudice to the powers conferred by clauses (1) and (2), the High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government within those territories, directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by this Part."The High Court can then exercise its powers under Art. 32(2-A) only "for the enforcement of any of the rights conferred by this Part". The Part referred to is Part III and the rights conferred by it are the fundamental rights. Therefore, the High Court can act under Cl. (2A) of Art. 32 only to enforce a fundamental right.6. The only fundamental right, however on the violation of which learned counsel for the respondent could rely in support of the order of the High Court was that conferred by Art. 14, namely, the right to the equal protection of the laws. He said that the respondent was entitled to have the procedure prescribed by the Kashmir Civil Service Rules followed before the order demoting him could be made and as that procedure was not followed, his client had been denied the equal protection of the laws. It seems to us that even if the Rules are a law and the respondent has not been given the benefit of them, all that can be said to have happened is that the appellant has acted in breach of the law. But that does not amount to a violation of the right to the equal protection of the laws. Otherwise, every breach of law by a Government would amount to a denial of the equal protection of the laws. We are not aware of any authority in support of that proposition and none has been cited to us. Nor are we able to find any support for it in principle. It is not the respondents case that other servants of the appellant had been given the benefit of those Rules and such benefit has been designedly denied only to him. It seems to us that the appeal must be allowed on the simple ground that the respondents petition does not show a violation of any fundamental right. The High Court had no power to act under Art. 32 (2A) at all.7. We think it right to point out that Arts. 226 and 311 (2) of the Constitution of India had not been applied to the State of Jammu and Kashmir at any material time. No question of the respondents application being maintainable in view of these articles, therefore, arises.
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6. The only fundamental right, however on the violation of which learned counsel for the respondent could rely in support of the order of the High Court was that conferred by Art. 14, namely, the right to the equal protection of the laws. He said that the respondent was entitled to have the procedure prescribed by the Kashmir Civil Service Rules followed before the order demoting him could be made and as that procedure was not followed, his client had been denied the equal protection of the laws. It seems to us that even if the Rules are a law and the respondent has not been given the benefit of them, all that can be said to have happened is that the appellant has acted in breach of the law. But that does not amount to a violation of the right to the equal protection of the laws. Otherwise, every breach of law by a Government would amount to a denial of the equal protection of the laws. We are not aware of any authority in support of that proposition and none has been cited to us. Nor are we able to find any support for it in principle. It is not the respondents case that other servants of the appellant had been given the benefit of those Rules and such benefit has been designedly denied only to him. It seems to us that the appeal must be allowed on the simple ground that the respondents petition does not show a violation of any fundamental right. The High Court had no power to act under Art. 32 (2A) at all.7. We think it right to point out that Arts. 226 and 311 (2) of the Constitution of India had not been applied to the State of Jammu and Kashmir at any material time. No question of the respondents application being maintainable in view of these articles, therefore, arises.
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S. Chinnaswani Nadar Vs. Home Insurance Company, Madras | of the cases. Each of the cases contained 600 packets. He then took representative packets and weighed them. Every packet weighs half a lb. uniformly. He ripped open some packets to see the contents. They were scented betel-nuts. He submitted his report on the reverse of Exs. A-2 and A-3. Exhibit A-3 bears his original report and Ex. A-2 bears the carbon copy of it. This was dated January 14, 1960. Vincent says further in his deposition that the cases were made of deal wood. They were big ones and had to be handled by collies for examination. It was not necessary for him to measure the dimensions of the cases. Therefore, he did not do it. It is difficult to appreciate the approach and reasoning of the High Court as to how on January 14, 1960 the Inspector of Customs would be a party to the alleged conspiracy of the plaintiff to cheat the Insurance Co. Nobody knew the act of God which was to happen on January 15, 1960 when the cases were lying in boat No. 11 for being loaded in the ship ‘State of Madras’.15. As against this unimpeachable evidence of the plaintiff both documentary and oral the only evidence produced on behalf of the defendant which created the difficulty in the way of the plaintiff’s claim is the wrong mentioning of the sizes in Exs. B-3 and B-4 on the basis of which the total measurement weight mentioned in the bill of lading was wrong. DW 1 Perlyanayagam was a wharf clerk of the shipping company and his duty was to take measurements of bales and cases to be loaded in the ship "State of Madras". At page 221 of Ex. B-3 there is an entry dated January 14, 1960 in respect of S.C. Penang marked goods Ex. B-4. According to him he measured 4 or 5 cases. The cases were of uniform sizes. He noted the measurements of one case only in Ex. B-4 as 25" X 15" X 12". After noting the measurements in the measurement book, Ex. B-3, he handed it over to the office. But it is to be noted that some entries were in pencil made by DW 1 and there were over writings in ink made by DW 2 Aravamudu, the chief clerk in-charge of freight department in K.P.V.S. & Co., Nagapattinam. The entries are said to have been made at the fag end of the day when it was getting dark. According to the evidence of the man of Rashiklal & Co. betel-nuts for internal despatch in the country are generally contained in cases of the sizes of 25" X 15" X 12". It appears to us that DW 1 was careless in performing his duty. On learning that the cases were of betel-nuts, just by estimate, on the basis of his knowledge of the general size of the betel-nuts cases he noted the size of the cases to be 25" X 15" X 12". It would appear from the evidence of DW Aravamudu, the chief clerk in-charge of the freight department of the shipping company at Nagapattinam that DW 1 was clerk in-charge for taking the measurements. DW 2 had nothing to do with it. He merely entered the measurements on the basis of what was claimed to have been done by DW 1. The measurement book, Ex. B-3 contained the pencil entries made by DW 1. The ink entry in Ex. B-4 was made by DW 2. If the goods were not wet and would have been delivered to the consignee in a good condition, in all probability, more freight would have been charged as there was a charge of under freight at Nagapattinam. But DW 2 admits in cross-examination that in a case where the goods are lost or destroyed or become damaged no question of collection of extra charge arises. Exhibit B-4 is at page No. 221 in Ex. B-3. This contains the entry in question showing SC 25-C/c Scented nuts. The measurement of each case noted is 25" X 15" X 12";. On the basis of this measurement in the bill of lading Ex. B-1 the measurement and weight mentioned is 1 ton 14 feet and 7 inches. This is a very technical way of putting the measurement and weight by the shipping company which could not be intelligible to PW 5 or any other man. Nor did PW 5 care to verify as to whether in the bill of lading the measurement and weight mentioned was correct. He was merely asked to pay the total freight of Rs. 142.08 which he paid. As against the weighty and overwhelming evidence both oral and documentary on behalf of the plaintiff we are not prepared to give credence and weight to the evidence of DW 1 and the entry Ex. B-4 made by him in the measurement book, Ex. B-3. In our opinion he did not actually measure the cases and just to show the discharge of his duties at the fag end of the day he made the entry by guess.16. Exhibit A-34 is the Lloyd’s Survey Report dated February 23, 1960. Of course the Surveyor was merely concerned with the condition and the value of the cases as per the invoice. Nothing is found mentioned in his report either way to show the actual number of packages of betel-nuts contained in each case. But in column 12(a) of the survey report the market value of the damaged cases mentioned is 1.85 (Singapore dollars) "per 1/2 lb. packet". In absence of the mentioning of total number of packets contained in one case the survey report by itself neither supports the plaintiff nor goes against him. But relying upon the other pieces of evidence which we have discussed above we hold that the conclusions arrived at by the trial Court were correct and we do not agree with the sweeping and wide observations made and the findings recorded by the High Court against the plaintiff. | 1[ds]8. In our judgment the High Court has unnecessarily embarked upon too many questions which were not very germane and relevant for the decision of the case. On the main question as to the size of each of the 25 cases in whichwere despatched the High Court recorded a finding against the plaintiff. And it appears to us that the High Court thereupon drifted to all other questions also to vehemently criticize theconduct and record findings against him. In our opinion it was not quite necessary to find out in this case how and wherefrom the plaintiff arranged money to purchasefor despatch to Penang. As a matter of fact a consignment ofwas purchased by the plaintiff and it was despatched by the ship;. On thequestion of rates also the finding of the High Court is not quite correct. It was not right in relying upon the evidence of the man of RashiklalCo. for holding that the rate ofin question could not be Rs. 5 per lb. We have carefully examined the relevant pieces of evidence which were placed before us by the learned counsel for the parties and have come to the conclusion that the plaintiff had not exaggerated the rate of the consignment when it claimed that it was worth Rs. 5 lb. The goods were of a superior quality. The plaintiff did not know and had absolutely no inkling of it that the goods would be damaged during the course of transit. No suggestion was ever given even faintly that the goods were damaged as a result of any conspiracy by the plaintiff and not by act of God. If that be so then it is difficult to appreciate the reasoning of the High Court as to why the plaintiff from the very beginning would have made an endeavour to increase the weight and rate of the consignment. The goods weregoods. In ordinary course they were despatched to Penang. The plaintiff paid insurance charges on the value of Rs. 37, 500 and if the goods would not have been wet after they left the Nagapattinam wharf in boat No. 11 no occasion would have arisen to make any claim against the insurance company. Why then the plaintiff would have thought of a plan to make an exaggerated claim. Generally in cases of this kind one finds that a conspiracy is hatched up to made exaggerated claims on the basis of a planned design of causing damage to the goods. The High Court has completely missed this very important aspect of the matter in this case and this has resulted in a very wrong approach to thethat regard there is a direct conflict between theevidence mainly based upon the evidence of PWs 1 and 5, Ex.the application for permission to export, Exs.the shipping bills in triplicate and Ex.the invoice, and theevidence mainly consisting of oral testimony of DWs 1 and 2 and Exs.1. The evidence adduced on behalf of the plaintiff shows that each case is 31" X 19" X 36" containing 600 packets ofof half a lb. each whileevidence shows that the measurement of each was 25" X 15" X 12" and if that be so such a small case indisputably could not contain 300 lbs. ofIt could contain only about 90 lbs. The trial Court accepted theevidence to be correct and rejected that of the defendant. The High Court did just the reverse. On a careful consideration of the matter we have come to the conclusion that the trial Court was right in this regard and the view of the High Court is erroneous and cannot be upheld.10. Exhibitis the invoice signed by the plaintiff which gives the description of the goods and the value. In the application to export dated January 11, 1960 in column (2) is mentioned 25 cases and in column (4) as against "Description and contents of each package" is mentioned "Scented(at 336 lb. each)". The total weight mentioned is 75 cwts. The evidence of the plaintiff is that he gave Ex.along with the goods to his clearing agents Jayaveerapandia NadarCo. whose agent is PW 5, Dharmarajan. His evidence is of great importance and we will, therefore, refer to portions of it. He says that on receipt of the application for export, he prepared the shipping bills Exs.and signed them. He filled up the various columns in the shipping bills and gave the description of the goods, their weight and value as per the invoice. In the shipping bill Ex.and similarly in the other bills also the gross weight of 25 cases is mentioned as 75 cwts. and the net weight mentioned is 66 cwts. and odd. The c.i.f. value mentioned is Rs. 37, 500. Dharmarajan in his testimony says that he opened three cases and checked them as to whether there was any false bottom in any of them. He opened a packet ofto find out whether it was scentedHe weighed 4 or 5 packets and each weighed uniformly half a pound. He calculated the net weight and adding the weight of the cases arrived at the figure of the gross weight. The cases were made of deal wood of big size like cigarette deal wood cases. Each case contained 600 packets. He paid Rs. 40 based on the weight as Port dues. The Customs Collector ordered examination of the goods as per his order on Ex.1 B. Vincent, Inspector of Customs then posted at Nagapattinam checked the goods in presence of Dharmarajan. He opened 3 cases and checked for false bottom, counted the packets in each, weighed 2 or 3 packets; and each weighed half a pound. Then the goods were brought to the wharf. Thereafter they came under the custody of the weighing department of the shipping company and could not be removed by others. PW 1 made the endorsements on the shipping bills. PW 5 then produced them to the Customs Collector who after verifying the report of PW 1 made the order"Pass". The order of the Customs Collector enabled the goods to be exported.11. Declaration by the owner of the goods has to be made under Section 29 of the Sea Customs Act, 1878. Clearance for shipment was done under Section 137 and if there is any false declaration then penalty is provided in Section 167. Under Section 12 of the Foreign Exchange Regulation Act, 1947 declaration of value had to be made for payment of the exported goods. Sections 22 and 23 provided for punishment for false statements. According to the Rules all particulars and declarations had to be given to the Collector. In such a situation it does not stand to reason that the plaintiff as well as Dharmarajan, the man of Jayaveerapandia Nadar and Company for no rhyme or reason would take the risk of giving false declaration. Nobody at that point of time knew that the sea would be rough at about noon on January 15, 1960 and the consignment will get wet by sea water in the boat.12. PW 5 Dharmarajan also says in his evidence that he would have been punished if goods other than those mentioned in the invoice were sought to be exported and his licence as clearing agent would have been cancelled. How and why could Jayaveerapandia NadarCo. take such a risk to give such a false declaration ?12. Evidence of PW 5 further is that on January 14, 1960 he asked PW 4 the tindal to load the goods in his boat. He gave the triplicate shipping bill and a boat note in form like Ex.after filling the details. PW 4 took the boat to the ship on January 15, 1960. He or the plaintiff did not accompany him. PW 4 informed him on January 15, 1960 that the case got wet by sudden sea swelling and gave him thereceipt. The freight as per the bill of lading was paid. Exhibitdated January 15, 1960 is the bill of lading. Since freight was charged on the basis of the technical measurement mentioned in the bill of lading PW 5 could not understand it and verify it. In our opinion the evidence of PW 5 is trustworthy and ought not to be discarded as it had been done by the High Court.Now we come to the evidence of Vincent, PW 1. After stating the practice of checking the consignment under the orders of the Customs Collector and then submission of report to him the witness stated that Ex.is the invoice in this case, Exs.are the shipping bills in triplicate. All these four documents bear the Custom House rubber stamp of January 11, 1960 with the initials of the Customs Collector. Exhibitcontains the order by the Customs Collector to him. It is in rubber stamp and is dated January 12, 1960. The Inspector was asked to verify the seals, open, examine, inspect and check the weight and report. He called for the goods covered byfrom the Customs House agent viz. Jayaveerapandia Nadar and his authorised agent in the Customs House was one Dharmarajan (PW 5). Dharmarajan presented the goods to him. He then inspected the lot of 25 cases. The cases were of uniform sizes. Vincent selected 3 cases at random and caused them to be opened. He emptied the contents to verify whether there was any concealment of contraband goods in it. He then asked the agent to fill the cases back and counted the individual packets in each of the cases. Each of the cases contained 600 packets. He then took representative packets and weighed them. Every packet weighs half a lb. uniformly. He ripped open some packets to see the contents. They were scentedHe submitted his report on the reverse of Exs.3. Exhibitbears his original report and Ex.bears the carbon copy of it. This was dated January 14, 1960. Vincent says further in his deposition that the cases were made of deal wood. They were big ones and had to be handled by collies for examination. It was not necessary for him to measure the dimensions of the cases. Therefore, he did not do it. It is difficult to appreciate the approach and reasoning of the High Court as to how on January 14, 1960 the Inspector of Customs would be a party to the alleged conspiracy of the plaintiff to cheat the Insurance Co. Nobody knew the act of God which was to happen on January 15, 1960 when the cases were lying in boat No. 11 for being loaded in the ship5. As against this unimpeachable evidence of the plaintiff both documentary and oral the only evidence produced on behalf of the defendant which created the difficulty in the way of theclaim is the wrong mentioning of the sizes in Exs.on the basis of which the total measurement weight mentioned in the bill of lading was wrong. DW 1 Perlyanayagam was a wharf clerk of the shipping company and his duty was to take measurements of bales and cases to be loaded in the ship "State of Madras". At page 221 of Ex.there is an entry dated January 14, 1960 in respect of S.C. Penang marked goods Ex.According to him he measured 4 or 5 cases. The cases were of uniform sizes. He noted the measurements of one case only in Ex.as 25" X 15" X 12". After noting the measurements in the measurement book, Ex.he handed it over to the office. But it is to be noted that some entries were in pencil made by DW 1 and there were over writings in ink made by DW 2 Aravamudu, the chief clerkof freight department in K.P.V.S.Co., Nagapattinam. The entries are said to have been made at the fag end of the day when it was getting dark. According to the evidence of the man of Rashiklalts for internal despatch in the country are generally contained in cases of the sizes of 25" X 15" X 12". It appears to us that DW 1 was careless in performing his duty. On learning that the cases were ofjust by estimate, on the basis of his knowledge of the general size of thecases he noted the size of the cases to be 25" X 15" X 12". It would appear from the evidence of DW Aravamudu, the chief clerkof the freight department of the shipping company at Nagapattinam that DW 1 was clerkfor taking the measurements. DW 2 had nothing to do with it. He merely entered the measurements on the basis of what was claimed to have been done by DW 1. The measurement book, Ex.contained the pencil entries made by DW 1. The ink entry in Ex.was made by DW 2. If the goods were not wet and would have been delivered to the consignee in a good condition, in all probability, more freight would have been charged as there was a charge of under freight at Nagapattinam. But DW 2 admits inthat in a case where the goods are lost or destroyed or become damaged no question of collection of extra charge arises. Exhibitis at page No. 221 in Ex.This contains the entry in question showing SCScented nuts. The measurement of each case noted is 25" X 15" Xn the basis ofthis measurement in the bill of lading Ex.the measurement and weight mentioned is 1 ton 14 feet and 7 inches. This is a very technical way of putting the measurement and weight by the shipping company which could not be intelligible to PW 5 or any other man. Nor did PW 5 care to verify as to whether in the bill of lading the measurement and weight mentioned was correct. He was merely asked to pay the total freight of Rs. 142.08 which he paid. As against the weighty and overwhelming evidence both oral and documentary on behalf of the plaintiff we are not prepared to give credence and weight to the evidence of DW 1 and the entry Ex.made by him in the measurement book, Ex.In our opinion he did not actually measure the cases and just to show the discharge of his duties at the fag end of the day he made the entry by guess.34 is theSurvey Report dated February 23, 1960. Of course the Surveyor was merely concerned with the condition and the value of the cases as per the invoice. Nothing is found mentioned in his report either way to show the actual number of packages ofcontained in each case. But in column 12(a) of the survey report the market value of the damaged cases mentioned is 1.85 (Singapore dollars) "per 1/2 lb. packet". In absence of the mentioning of total number of packets contained in one case the survey report by itself neither supports the plaintiff nor goes against him. But relying upon the other pieces of evidence which we have discussed above we hold that the conclusions arrived at by the trial Court were correct and we do not agree with the sweeping and wide observations made and the findings recorded by the High Court against the plaintiff. | 1 | 4,109 | 2,732 | ### Instruction:
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of the cases. Each of the cases contained 600 packets. He then took representative packets and weighed them. Every packet weighs half a lb. uniformly. He ripped open some packets to see the contents. They were scented betel-nuts. He submitted his report on the reverse of Exs. A-2 and A-3. Exhibit A-3 bears his original report and Ex. A-2 bears the carbon copy of it. This was dated January 14, 1960. Vincent says further in his deposition that the cases were made of deal wood. They were big ones and had to be handled by collies for examination. It was not necessary for him to measure the dimensions of the cases. Therefore, he did not do it. It is difficult to appreciate the approach and reasoning of the High Court as to how on January 14, 1960 the Inspector of Customs would be a party to the alleged conspiracy of the plaintiff to cheat the Insurance Co. Nobody knew the act of God which was to happen on January 15, 1960 when the cases were lying in boat No. 11 for being loaded in the ship ‘State of Madras’.15. As against this unimpeachable evidence of the plaintiff both documentary and oral the only evidence produced on behalf of the defendant which created the difficulty in the way of the plaintiff’s claim is the wrong mentioning of the sizes in Exs. B-3 and B-4 on the basis of which the total measurement weight mentioned in the bill of lading was wrong. DW 1 Perlyanayagam was a wharf clerk of the shipping company and his duty was to take measurements of bales and cases to be loaded in the ship "State of Madras". At page 221 of Ex. B-3 there is an entry dated January 14, 1960 in respect of S.C. Penang marked goods Ex. B-4. According to him he measured 4 or 5 cases. The cases were of uniform sizes. He noted the measurements of one case only in Ex. B-4 as 25" X 15" X 12". After noting the measurements in the measurement book, Ex. B-3, he handed it over to the office. But it is to be noted that some entries were in pencil made by DW 1 and there were over writings in ink made by DW 2 Aravamudu, the chief clerk in-charge of freight department in K.P.V.S. & Co., Nagapattinam. The entries are said to have been made at the fag end of the day when it was getting dark. According to the evidence of the man of Rashiklal & Co. betel-nuts for internal despatch in the country are generally contained in cases of the sizes of 25" X 15" X 12". It appears to us that DW 1 was careless in performing his duty. On learning that the cases were of betel-nuts, just by estimate, on the basis of his knowledge of the general size of the betel-nuts cases he noted the size of the cases to be 25" X 15" X 12". It would appear from the evidence of DW Aravamudu, the chief clerk in-charge of the freight department of the shipping company at Nagapattinam that DW 1 was clerk in-charge for taking the measurements. DW 2 had nothing to do with it. He merely entered the measurements on the basis of what was claimed to have been done by DW 1. The measurement book, Ex. B-3 contained the pencil entries made by DW 1. The ink entry in Ex. B-4 was made by DW 2. If the goods were not wet and would have been delivered to the consignee in a good condition, in all probability, more freight would have been charged as there was a charge of under freight at Nagapattinam. But DW 2 admits in cross-examination that in a case where the goods are lost or destroyed or become damaged no question of collection of extra charge arises. Exhibit B-4 is at page No. 221 in Ex. B-3. This contains the entry in question showing SC 25-C/c Scented nuts. The measurement of each case noted is 25" X 15" X 12";. On the basis of this measurement in the bill of lading Ex. B-1 the measurement and weight mentioned is 1 ton 14 feet and 7 inches. This is a very technical way of putting the measurement and weight by the shipping company which could not be intelligible to PW 5 or any other man. Nor did PW 5 care to verify as to whether in the bill of lading the measurement and weight mentioned was correct. He was merely asked to pay the total freight of Rs. 142.08 which he paid. As against the weighty and overwhelming evidence both oral and documentary on behalf of the plaintiff we are not prepared to give credence and weight to the evidence of DW 1 and the entry Ex. B-4 made by him in the measurement book, Ex. B-3. In our opinion he did not actually measure the cases and just to show the discharge of his duties at the fag end of the day he made the entry by guess.16. Exhibit A-34 is the Lloyd’s Survey Report dated February 23, 1960. Of course the Surveyor was merely concerned with the condition and the value of the cases as per the invoice. Nothing is found mentioned in his report either way to show the actual number of packages of betel-nuts contained in each case. But in column 12(a) of the survey report the market value of the damaged cases mentioned is 1.85 (Singapore dollars) "per 1/2 lb. packet". In absence of the mentioning of total number of packets contained in one case the survey report by itself neither supports the plaintiff nor goes against him. But relying upon the other pieces of evidence which we have discussed above we hold that the conclusions arrived at by the trial Court were correct and we do not agree with the sweeping and wide observations made and the findings recorded by the High Court against the plaintiff.
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1
### Explanation:
Dharmarajan (PW 5). Dharmarajan presented the goods to him. He then inspected the lot of 25 cases. The cases were of uniform sizes. Vincent selected 3 cases at random and caused them to be opened. He emptied the contents to verify whether there was any concealment of contraband goods in it. He then asked the agent to fill the cases back and counted the individual packets in each of the cases. Each of the cases contained 600 packets. He then took representative packets and weighed them. Every packet weighs half a lb. uniformly. He ripped open some packets to see the contents. They were scentedHe submitted his report on the reverse of Exs.3. Exhibitbears his original report and Ex.bears the carbon copy of it. This was dated January 14, 1960. Vincent says further in his deposition that the cases were made of deal wood. They were big ones and had to be handled by collies for examination. It was not necessary for him to measure the dimensions of the cases. Therefore, he did not do it. It is difficult to appreciate the approach and reasoning of the High Court as to how on January 14, 1960 the Inspector of Customs would be a party to the alleged conspiracy of the plaintiff to cheat the Insurance Co. Nobody knew the act of God which was to happen on January 15, 1960 when the cases were lying in boat No. 11 for being loaded in the ship5. As against this unimpeachable evidence of the plaintiff both documentary and oral the only evidence produced on behalf of the defendant which created the difficulty in the way of theclaim is the wrong mentioning of the sizes in Exs.on the basis of which the total measurement weight mentioned in the bill of lading was wrong. DW 1 Perlyanayagam was a wharf clerk of the shipping company and his duty was to take measurements of bales and cases to be loaded in the ship "State of Madras". At page 221 of Ex.there is an entry dated January 14, 1960 in respect of S.C. Penang marked goods Ex.According to him he measured 4 or 5 cases. The cases were of uniform sizes. He noted the measurements of one case only in Ex.as 25" X 15" X 12". After noting the measurements in the measurement book, Ex.he handed it over to the office. But it is to be noted that some entries were in pencil made by DW 1 and there were over writings in ink made by DW 2 Aravamudu, the chief clerkof freight department in K.P.V.S.Co., Nagapattinam. The entries are said to have been made at the fag end of the day when it was getting dark. According to the evidence of the man of Rashiklalts for internal despatch in the country are generally contained in cases of the sizes of 25" X 15" X 12". It appears to us that DW 1 was careless in performing his duty. On learning that the cases were ofjust by estimate, on the basis of his knowledge of the general size of thecases he noted the size of the cases to be 25" X 15" X 12". It would appear from the evidence of DW Aravamudu, the chief clerkof the freight department of the shipping company at Nagapattinam that DW 1 was clerkfor taking the measurements. DW 2 had nothing to do with it. He merely entered the measurements on the basis of what was claimed to have been done by DW 1. The measurement book, Ex.contained the pencil entries made by DW 1. The ink entry in Ex.was made by DW 2. If the goods were not wet and would have been delivered to the consignee in a good condition, in all probability, more freight would have been charged as there was a charge of under freight at Nagapattinam. But DW 2 admits inthat in a case where the goods are lost or destroyed or become damaged no question of collection of extra charge arises. Exhibitis at page No. 221 in Ex.This contains the entry in question showing SCScented nuts. The measurement of each case noted is 25" X 15" Xn the basis ofthis measurement in the bill of lading Ex.the measurement and weight mentioned is 1 ton 14 feet and 7 inches. This is a very technical way of putting the measurement and weight by the shipping company which could not be intelligible to PW 5 or any other man. Nor did PW 5 care to verify as to whether in the bill of lading the measurement and weight mentioned was correct. He was merely asked to pay the total freight of Rs. 142.08 which he paid. As against the weighty and overwhelming evidence both oral and documentary on behalf of the plaintiff we are not prepared to give credence and weight to the evidence of DW 1 and the entry Ex.made by him in the measurement book, Ex.In our opinion he did not actually measure the cases and just to show the discharge of his duties at the fag end of the day he made the entry by guess.34 is theSurvey Report dated February 23, 1960. Of course the Surveyor was merely concerned with the condition and the value of the cases as per the invoice. Nothing is found mentioned in his report either way to show the actual number of packages ofcontained in each case. But in column 12(a) of the survey report the market value of the damaged cases mentioned is 1.85 (Singapore dollars) "per 1/2 lb. packet". In absence of the mentioning of total number of packets contained in one case the survey report by itself neither supports the plaintiff nor goes against him. But relying upon the other pieces of evidence which we have discussed above we hold that the conclusions arrived at by the trial Court were correct and we do not agree with the sweeping and wide observations made and the findings recorded by the High Court against the plaintiff.
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Golla Rajanna Etc. Etc Vs. The Divisional Manager And Anr Etc Etc | second petitioner has suffered 35% of the disablement, the third petitioner has suffered 35% of disablement, the 4th and 5th petitioners have suffered 40% of disablement each and 6th petitioner has suffered 35% of the disablement with subsequent loss of earnings and decided the above issue No.1 in favour of the petitioners." 4. Accordingly, the appellants were awarded the compensation based on their wages.5. The Insurance Company challenged the order passed by the Workmens Compensation Commissioner, under Section 30(1) of The Workmens Compensation Act, 1923 (hereinafter referred to as "the Act") mainly on the ground that the injuries had not been proved before the Workmens Compensation Commissioner, and therefore, the appellants were not entitled to the compensation as awarded by the Workmens Compensation Commissioner. The High Court has clearly held that ... "the dispute is in respect of the nature of injuries suffered by the claimants".6. The relevant consideration by the High Court appears at paragraph-9 of the impugned judgment: "9. ... this Court is of the opinion that the accident appears to be true involving the offending lory, but, the injuries said to have suffered by the claimants is not established, in as much as, there is no document on record to substantiate the same, except the wound certificates issued by the Community Health Centre immediately after the accident. However, the said document also appears to be fabricated and fails in as much as, the X-ray stated in each of these certificate is not proved by any one of the petitioners before the Commissioner. Assuming for a moment that the X-ray of the claimant was taken, where it was taken and when it was taken is not forthcoming. Admittedly, the Community Health Centre, are not provided with x-ray machine so as to take the X-ray and assess the nature of injuries suffered by the claimants. In that view of the matter, this Court feel that the entire exercise by the petitioners before the Commissioner is to create a make-believe situation to show that indeed in the said accident said to have taken place on 15.8.2008 (sic) they have suffered serious injuries which was resulted in permanent disability to whole body of each ranging from 35% to 40% resulting in loss of earning capacity to equal percentage. In that view of the matter, this Court feel that the grounds urged by the Insurance Company in these appeals appears to be true and correct which is required to be upheld by this Court." 7. The High Court went further to hold that on the basis of the available evidence, the disability would only be to the extent of 5% of the whole body resulting in 5% of the loss of earning capacity. Paragraph-10 of the impugned judgment deals with the issue, which reads as follows: "10. In that view of the matter, the common judgment and order passed by the Tribunal in these petitions before the Commissioner is required to be modified having regard to the nature of injuries and disability suffered by the claimants due to the accident. Accordingly, this Court holds that all the petitioners before the Tribunal have suffered disability to the extent of 5% to the whole body resulting in 5% loss of earning capacity." 8. Accordingly, the compensation has been reworked. Thus, aggrieved, the appellants are before this Court. 9. Section 30 of the Act provides for appeals to the High Court. To the extent, the provision reads as follows: "30. Appeals.-(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:-(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;[(aa) an order awarding interest or penalty under section 4A;](b) an order refusing to allow redemption of a halfmonthly payment;(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of subsection (2) of section 12; or(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appealand, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:" (Emphasis supplied) 10. The Workmens Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the percentage of disability. It is purely a question of fact. There is no case for the insurance company that the finding is based on no evidence at all or that it is perverse. Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmens Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmens Compensation Commissioner.11. Under the scheme of the Act, the Workmens Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act. | 1[ds]10. The Workmens Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the percentage of disability. It is purely a question of fact. There is no case for the insurance company that the finding is based on no evidence at all or that it is perverse. Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmens Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmens Compensation Commissioner.11. Under the scheme of the Act, the Workmens Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation.Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured tothe evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act. | 1 | 1,298 | 256 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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second petitioner has suffered 35% of the disablement, the third petitioner has suffered 35% of disablement, the 4th and 5th petitioners have suffered 40% of disablement each and 6th petitioner has suffered 35% of the disablement with subsequent loss of earnings and decided the above issue No.1 in favour of the petitioners." 4. Accordingly, the appellants were awarded the compensation based on their wages.5. The Insurance Company challenged the order passed by the Workmens Compensation Commissioner, under Section 30(1) of The Workmens Compensation Act, 1923 (hereinafter referred to as "the Act") mainly on the ground that the injuries had not been proved before the Workmens Compensation Commissioner, and therefore, the appellants were not entitled to the compensation as awarded by the Workmens Compensation Commissioner. The High Court has clearly held that ... "the dispute is in respect of the nature of injuries suffered by the claimants".6. The relevant consideration by the High Court appears at paragraph-9 of the impugned judgment: "9. ... this Court is of the opinion that the accident appears to be true involving the offending lory, but, the injuries said to have suffered by the claimants is not established, in as much as, there is no document on record to substantiate the same, except the wound certificates issued by the Community Health Centre immediately after the accident. However, the said document also appears to be fabricated and fails in as much as, the X-ray stated in each of these certificate is not proved by any one of the petitioners before the Commissioner. Assuming for a moment that the X-ray of the claimant was taken, where it was taken and when it was taken is not forthcoming. Admittedly, the Community Health Centre, are not provided with x-ray machine so as to take the X-ray and assess the nature of injuries suffered by the claimants. In that view of the matter, this Court feel that the entire exercise by the petitioners before the Commissioner is to create a make-believe situation to show that indeed in the said accident said to have taken place on 15.8.2008 (sic) they have suffered serious injuries which was resulted in permanent disability to whole body of each ranging from 35% to 40% resulting in loss of earning capacity to equal percentage. In that view of the matter, this Court feel that the grounds urged by the Insurance Company in these appeals appears to be true and correct which is required to be upheld by this Court." 7. The High Court went further to hold that on the basis of the available evidence, the disability would only be to the extent of 5% of the whole body resulting in 5% of the loss of earning capacity. Paragraph-10 of the impugned judgment deals with the issue, which reads as follows: "10. In that view of the matter, the common judgment and order passed by the Tribunal in these petitions before the Commissioner is required to be modified having regard to the nature of injuries and disability suffered by the claimants due to the accident. Accordingly, this Court holds that all the petitioners before the Tribunal have suffered disability to the extent of 5% to the whole body resulting in 5% loss of earning capacity." 8. Accordingly, the compensation has been reworked. Thus, aggrieved, the appellants are before this Court. 9. Section 30 of the Act provides for appeals to the High Court. To the extent, the provision reads as follows: "30. Appeals.-(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:-(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;[(aa) an order awarding interest or penalty under section 4A;](b) an order refusing to allow redemption of a halfmonthly payment;(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of subsection (2) of section 12; or(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appealand, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:" (Emphasis supplied) 10. The Workmens Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the percentage of disability. It is purely a question of fact. There is no case for the insurance company that the finding is based on no evidence at all or that it is perverse. Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmens Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmens Compensation Commissioner.11. Under the scheme of the Act, the Workmens Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act.
### Response:
1
### Explanation:
10. The Workmens Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the percentage of disability. It is purely a question of fact. There is no case for the insurance company that the finding is based on no evidence at all or that it is perverse. Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmens Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmens Compensation Commissioner.11. Under the scheme of the Act, the Workmens Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation.Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured tothe evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act.
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Purno Agitok Sangma Vs. Pranab Mukherjee | car at State expense. 59. Similar was the view expressed in Jaya Bachchans case (supra) where also this Court observed that what was relevant was whether the office was capable of yielding a profit or pecuniary gain, other then reimbursement of out-of-pocket/actual expenses and not whether the person actually received any monetary gain or did not withdraw the emoluments to which he was entitled. In other words, whether a person holding a post accepted the benefits thereunder was not material, what was material is whether the said office was capable of yielding a profit or pecuniary gain. 60. In the instant case, the office of Chairman of the Institute did not provide for any of the amenities indicated hereinabove and, in fact, the said office was also not capable of yielding profit or pecuniary gain. 61. In regard to the office of the Leader of the House, it is quite clear that the Respondent had tendered his resignation from membership of the House before he filed his nomination papers for the Presidential election. The controversy that the Respondent had resigned from the membership of the Indian National Congress and its Central Working Committee allegedly on 25th June, 2012, was set at rest by the affidavit filed by Shri Pradeep Gupta, who is the Private Secretary to the President of India. In the said affidavit, Shri Gupta indicated that through inadvertence he had supplied the date of the Congress Working Committee meeting held on 25th June, 2012, to bid farewell to Shri Mukherjee on his nomination for the Presidential Election being accepted. In any event, the disqualification contemplated on account of holding the post of Leader of the House was with regard to the provisions of Article 102(1)(a) of the Constitution, besides being the position of the leader of the party in the House which did not entail the holding of an office of profit under the Government. In any event, since the Respondent tendered his resignation from the said post prior to filing of his nomination papers, which was duly acted upon by the Speaker of the House, the challenge thrown by the Petitioner to the Respondents election as President of India on the said ground loses its relevance. In any event, the provisions of the Parliament (Prevention of Disqualification) Act, 1959, as amended in 2006, excluded the post of Chairman of the Institute as a disqualification from being a Member of Parliament. 62. The Constitutional Scheme, as mentioned in the Explanation to Clause (2) of Article 58 of the Constitution, makes it quite clear that for the purposes of said Article, a person would not be deemed to hold any office of profit, inter alia, by reason only that he is a Minister either for the Union or for any State. Article 102 of the Constitution contains similar provisions wherein in the Explanation to clause (1) it has been similarly indicated that for the purposes of the said clause, a person would not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister, either for the Union, or for such State. The argument that the aforesaid provisions of Article 102, as well as Article 58 of the Constitution, could not save a person elected to the office of President from disqualification, if he held an office of profit, loses much of its steam in view of the fact that as would appear from the materials on record, the Respondent was not holding any office of profit either under the Government or otherwise at the time of filing his nomination papers for the Presidential election. 63. The various decisions cited on behalf of the parties in support of their respective submissions, clearly indicate that in order to be an office of profit, the office must carry various pecuniary benefits or must be capable of yielding pecuniary benefits such as providing for official accommodation or even a chauffeur driven car, which is not so in respect of the post of Chairman of the Indian Statistical Institute, Calcutta, which was, in fact, the focus and raison detere of Mr. Jethmalanis submissions. 64. We are also not inclined to accept Mr. Jethmalanis submissions that once a person is appointed as Chairman of the Indian Statistical Institute, Calcutta, the Rules and Bye-laws of the Society did not permit him to resign from the post and that he had to continue in the post against his wishes. There is no contractual obligation that once appointed, the Chairman would have to continue in such post for the full term of office. There is no such compulsion under the Rules and Bye-laws of the Society either. In any event, since the holder of the post of Chairman of the Institute has been excluded from disqualification for contesting the Presidential election, by the 2006 amendment to Section 3 of the Parliament (Prevention of Disqualification) Act, 1959, the submissions of Mr. Jethmalani in this regard is of little or no substance. 65. We are not convinced that in the facts and circumstances of the case, the Election Petition deserves a full and regular hearing as contemplated under Rule 20 of Order XXXIX of the Supreme Court Rules, 1966. Consequently, Mr. Jethmalanis submissions regarding the applicability of Section 141 of the Code of Civil Procedure for trial of the Election Petition is of no avail. We are also not convinced that Section 141 of the Code is required to be incorporated into a proceeding taken under Order XXXIX of the Supreme Court Rules read with Part II of the Presidential and Vice-Presidential Elections Act, 1952, which includes Sections 14 to 20 of the aforesaid Act and Article 71 of the Constitution of India. 66. It may not be inappropriate at this stage to mention that this Court has repeatedly cautioned that the election of a candidate who has won in an election should not be lightly interfered with unless circumstances so warrant. 67. | 0[ds]There is some doubt as to whether the Office of the Chairman of the Indian Statistical Institute is an office of profit or not, even though the same has been excluded from the ambit of Article 102 of the Constitution by the provisions of the Parliament (Prevention of Disqualification) Act, 1959, as amended in 2006. Having been included in the Table of posts saved from disqualification from membership of Parliament, it must be accepted to be an office of profit. However, as argued by Mr. Salve, categorising the office as an ?office of profit? did not really make it one, since it did not provide any profit and was purely honorary in nature. There was neither any salary nor honorarium or any other benefit attached to the holder of the said post. It was not such a post which, in fact, was capable of yielding any profit, which could make it, in fact, an office of profitprofit. Thevarious decisions cited on behalf of the parties in support of their respective submissions, clearly indicate that in order to be an office of profit, the office must carry various pecuniary benefits or must be capable of yielding pecuniary benefits such as providing for official accommodation or even a chauffeur driven car, which is not so in respect of the post of Chairman of the Indian Statistical Institute, Calcutta, which was, in fact, the focus and raison detere of Mr. Jethmalanis submissions58. Thevarious decisions cited on behalf of the parties in support of their respective submissions, clearly indicate that in order to be an office of profit, the office must carry various pecuniary benefits or must be capable of yielding pecuniary benefits such as providing for official accommodation or even a chauffeur driven car, which is not so in respect of the post of Chairman of the Indian Statistical Institute, Calcutta, which was, in fact, the focus and raison detere of Mr. Jethmalanis submissionsWe are also not inclined to accept Mr. Jethmalanis submissions that once a person is appointed as Chairman of the Indian Statistical Institute, Calcutta, the Rules and Bye-laws of the Society did not permit him to resign from the post and that he had to continue in the post against his wishes. There is no contractual obligation that once appointed, the Chairman would have to continue in such post for the full term of office. There is no such compulsion under the Rules and Bye-laws of the Society either. In any event, since the holder of the post of Chairman of the Institute has been excluded from disqualification for contesting the Presidential election, by the 2006 amendment to Section 3 of the Parliament (Prevention of Disqualification) Act, 1959, the submissions of Mr. Jethmalani in this regard is of little or no substanceWe are not convinced that in the facts and circumstances of the case, the Election Petition deserves a full and regular hearing as contemplated under Rule 20 of Order XXXIX of the Supreme Court Rules, 1966. Consequently, Mr. Jethmalanis submissions regarding the applicability of Section 141 of the Code of Civil Procedure for trial of the Election Petition is of no avail. We are also not convinced that Section 141 of the Code is required to be incorporated into a proceeding taken under Order XXXIX of the Supreme Court Rules read with Part II of the Presidential and Vice-Presidential Elections Act, 1952, which includes Sections 14 to 20 of the aforesaid Act and Article 71 of the Constitution of India | 0 | 10,226 | 640 | ### 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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car at State expense. 59. Similar was the view expressed in Jaya Bachchans case (supra) where also this Court observed that what was relevant was whether the office was capable of yielding a profit or pecuniary gain, other then reimbursement of out-of-pocket/actual expenses and not whether the person actually received any monetary gain or did not withdraw the emoluments to which he was entitled. In other words, whether a person holding a post accepted the benefits thereunder was not material, what was material is whether the said office was capable of yielding a profit or pecuniary gain. 60. In the instant case, the office of Chairman of the Institute did not provide for any of the amenities indicated hereinabove and, in fact, the said office was also not capable of yielding profit or pecuniary gain. 61. In regard to the office of the Leader of the House, it is quite clear that the Respondent had tendered his resignation from membership of the House before he filed his nomination papers for the Presidential election. The controversy that the Respondent had resigned from the membership of the Indian National Congress and its Central Working Committee allegedly on 25th June, 2012, was set at rest by the affidavit filed by Shri Pradeep Gupta, who is the Private Secretary to the President of India. In the said affidavit, Shri Gupta indicated that through inadvertence he had supplied the date of the Congress Working Committee meeting held on 25th June, 2012, to bid farewell to Shri Mukherjee on his nomination for the Presidential Election being accepted. In any event, the disqualification contemplated on account of holding the post of Leader of the House was with regard to the provisions of Article 102(1)(a) of the Constitution, besides being the position of the leader of the party in the House which did not entail the holding of an office of profit under the Government. In any event, since the Respondent tendered his resignation from the said post prior to filing of his nomination papers, which was duly acted upon by the Speaker of the House, the challenge thrown by the Petitioner to the Respondents election as President of India on the said ground loses its relevance. In any event, the provisions of the Parliament (Prevention of Disqualification) Act, 1959, as amended in 2006, excluded the post of Chairman of the Institute as a disqualification from being a Member of Parliament. 62. The Constitutional Scheme, as mentioned in the Explanation to Clause (2) of Article 58 of the Constitution, makes it quite clear that for the purposes of said Article, a person would not be deemed to hold any office of profit, inter alia, by reason only that he is a Minister either for the Union or for any State. Article 102 of the Constitution contains similar provisions wherein in the Explanation to clause (1) it has been similarly indicated that for the purposes of the said clause, a person would not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister, either for the Union, or for such State. The argument that the aforesaid provisions of Article 102, as well as Article 58 of the Constitution, could not save a person elected to the office of President from disqualification, if he held an office of profit, loses much of its steam in view of the fact that as would appear from the materials on record, the Respondent was not holding any office of profit either under the Government or otherwise at the time of filing his nomination papers for the Presidential election. 63. The various decisions cited on behalf of the parties in support of their respective submissions, clearly indicate that in order to be an office of profit, the office must carry various pecuniary benefits or must be capable of yielding pecuniary benefits such as providing for official accommodation or even a chauffeur driven car, which is not so in respect of the post of Chairman of the Indian Statistical Institute, Calcutta, which was, in fact, the focus and raison detere of Mr. Jethmalanis submissions. 64. We are also not inclined to accept Mr. Jethmalanis submissions that once a person is appointed as Chairman of the Indian Statistical Institute, Calcutta, the Rules and Bye-laws of the Society did not permit him to resign from the post and that he had to continue in the post against his wishes. There is no contractual obligation that once appointed, the Chairman would have to continue in such post for the full term of office. There is no such compulsion under the Rules and Bye-laws of the Society either. In any event, since the holder of the post of Chairman of the Institute has been excluded from disqualification for contesting the Presidential election, by the 2006 amendment to Section 3 of the Parliament (Prevention of Disqualification) Act, 1959, the submissions of Mr. Jethmalani in this regard is of little or no substance. 65. We are not convinced that in the facts and circumstances of the case, the Election Petition deserves a full and regular hearing as contemplated under Rule 20 of Order XXXIX of the Supreme Court Rules, 1966. Consequently, Mr. Jethmalanis submissions regarding the applicability of Section 141 of the Code of Civil Procedure for trial of the Election Petition is of no avail. We are also not convinced that Section 141 of the Code is required to be incorporated into a proceeding taken under Order XXXIX of the Supreme Court Rules read with Part II of the Presidential and Vice-Presidential Elections Act, 1952, which includes Sections 14 to 20 of the aforesaid Act and Article 71 of the Constitution of India. 66. It may not be inappropriate at this stage to mention that this Court has repeatedly cautioned that the election of a candidate who has won in an election should not be lightly interfered with unless circumstances so warrant. 67.
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There is some doubt as to whether the Office of the Chairman of the Indian Statistical Institute is an office of profit or not, even though the same has been excluded from the ambit of Article 102 of the Constitution by the provisions of the Parliament (Prevention of Disqualification) Act, 1959, as amended in 2006. Having been included in the Table of posts saved from disqualification from membership of Parliament, it must be accepted to be an office of profit. However, as argued by Mr. Salve, categorising the office as an ?office of profit? did not really make it one, since it did not provide any profit and was purely honorary in nature. There was neither any salary nor honorarium or any other benefit attached to the holder of the said post. It was not such a post which, in fact, was capable of yielding any profit, which could make it, in fact, an office of profitprofit. Thevarious decisions cited on behalf of the parties in support of their respective submissions, clearly indicate that in order to be an office of profit, the office must carry various pecuniary benefits or must be capable of yielding pecuniary benefits such as providing for official accommodation or even a chauffeur driven car, which is not so in respect of the post of Chairman of the Indian Statistical Institute, Calcutta, which was, in fact, the focus and raison detere of Mr. Jethmalanis submissions58. Thevarious decisions cited on behalf of the parties in support of their respective submissions, clearly indicate that in order to be an office of profit, the office must carry various pecuniary benefits or must be capable of yielding pecuniary benefits such as providing for official accommodation or even a chauffeur driven car, which is not so in respect of the post of Chairman of the Indian Statistical Institute, Calcutta, which was, in fact, the focus and raison detere of Mr. Jethmalanis submissionsWe are also not inclined to accept Mr. Jethmalanis submissions that once a person is appointed as Chairman of the Indian Statistical Institute, Calcutta, the Rules and Bye-laws of the Society did not permit him to resign from the post and that he had to continue in the post against his wishes. There is no contractual obligation that once appointed, the Chairman would have to continue in such post for the full term of office. There is no such compulsion under the Rules and Bye-laws of the Society either. In any event, since the holder of the post of Chairman of the Institute has been excluded from disqualification for contesting the Presidential election, by the 2006 amendment to Section 3 of the Parliament (Prevention of Disqualification) Act, 1959, the submissions of Mr. Jethmalani in this regard is of little or no substanceWe are not convinced that in the facts and circumstances of the case, the Election Petition deserves a full and regular hearing as contemplated under Rule 20 of Order XXXIX of the Supreme Court Rules, 1966. Consequently, Mr. Jethmalanis submissions regarding the applicability of Section 141 of the Code of Civil Procedure for trial of the Election Petition is of no avail. We are also not convinced that Section 141 of the Code is required to be incorporated into a proceeding taken under Order XXXIX of the Supreme Court Rules read with Part II of the Presidential and Vice-Presidential Elections Act, 1952, which includes Sections 14 to 20 of the aforesaid Act and Article 71 of the Constitution of India
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The Commissioner Of Income-Tax,Madhya Pradesh And Bhopal Vs. Messrs. Vyas & Dotiwala | the financiers and also managers under the Deputy Commissioner to carry out the scheme and that the assessees only helped to work the scheme. The Tribunal held that the profits that may have resulted from such working were not therefore theirs nor represented their income and the assessees could not be assessed to income-tax thereon. In this view of the matter the Tribunal set aside the orders of assessment.4. Thereafter, on the application of the revenue authorities the Tribunal referred the following question to the High Court under S. 66 (1) of the Act :Whether on the facts of this case any income accrued to Messrs. Vyas and Dhotiwala as the result of their associating themselves as financiers in the scheme for the distribution of standard cloth; and, if so, whether such income was assessable in their hands.5. On that reference the High Court held that under the charging Section in the Indian Income-tax Act, 1922, namely, Section 4, it was necessary for the revenue authorities to prove that the assessees received or should be deemed to have received income or profit from the scheme during the relevant period. It held that the assessees had not actually received any such income and further that the expression "deemed to be received" in that Section only meant deemed by the provision of the Act to be received, and no such provisions of the Act had been relied upon an behalf of the revenue authorities. In this view of the matter the High Court answered the question framed, in the negative.6. The learned Solicitor-General contends that the High Court failed to appreciate the real question. He says that the question was not whether income was received or deemed to be received but whether income had accrued and the point for decision was, as appeared from the judgment of the Tribunal, whether the profits formed the income of the assessees. We agree with this criticism of the judgment of the High Court.7. On the point that arises from the question framed, we think that the Tribunal went wrong. It is not disputed that the assessees worked the scheme and such working produced the profits as found in the assessment orders. The Tribunal thought that since the scheme was completely under the control of the Deputy Commissioner, the assessees could not be said to have carried on business by working the scheme.We are unable to see that the fact of the control of the Deputy Commissioner can prevent the working of the scheme by the assessees from being a business carried on by them. In our view, it only comes to this that the assessees had agreed to do business in a certain manner. The fact that the Deputy Commissioner guaranteed the payment by the Tehsildars of the price due from them, to the assessees would indicate that the assessees were treated as the owners of the business.It would indicate that if there had been no such guarantee, the loss due to the failure of the Tehsildars to pay their dues would have to be borne by the assessees. Again the claim, may be in the alternative, by the assessees for exemption under S. 4 (3) (i-a) would not arise unless the assessees were carrying on a business.Lastly, paragraph 14 of the scheme which we have earlier set out, clearly contemplates profits resulting from the scheme.The provision that the profits would be devoted to charity to be decided by the Deputy Commissioner, would indicate that without it the profits would have been utilisable by the assessees. The profits belonged to the assessees and hence the necessity for this agreement so that the assessees might be made to spend them on charity. If, as the Tribunal thought, the profits were of the Government, there was no necessity for the Government providing for the profits being expended on charity, for the Government if minded to do so, could have done it without such a provision. The fact remains that the working of the scheme produced profits and apart from paragraph 14 such profits undoubtedly belonged to the assessees.If they chose to agree by paragraph 14 to devote the profits to charity, that was their business; the profits made by them would not change their character and cease to be the assessees income because they agreed to devote their income to charity.We might also say that there is nothing in the scheme which shows that the assessees had undertaken not to make any profits on the distribution work under the scheme; they had only agreed to finance the scheme without receiving any interest or profit.Furthermore, since the assessees actually made the profits, they are liable to pay tax thereon whether they agreed not to make any profits or not.We wish also to point out that it is not the assessees case that they have been made to pay out the profits for any charity. For these reasons we think that the profits were the profits of the assessees and they are liable to pay tax on them.8. With regard to the assessees claim for exemption under S. 4 (3) (i-a), they are clearly not entitled to any. That claim of the assessees has not been accepted by any of the Courts below. Section 4 (3) (i-a) applies to income derived from business carried on behalf of a religious and charitable institution when the income is applied solely to the purpose of the institution and the business is carried on in the manner provided. It is enough to say that the scheme considered as a business, was not carried on on behalf of any religious or charitable institution. Once it is held that the assessees made the profits, how they use it would not matter.9. In the result, we would answer both parts of the question framed, in the affirmative. We hold that the profits were the income which accrued to the assessees and such income is assessable to income-tax and is not exempt from taxation under S. 4(3)(i-a), | 1[ds]6. The learneds that the High Court failed to appreciate the real question. He says that the question was not whether income was received or deemed to be received but whether income had accrued and the point for decision was, as appeared from the judgment of the Tribunal, whether the profits formed the income of the assessees.We agree with this criticism of the judgment of the High Court.7. On the point that arises from the question framed, we think that the Tribunal went wrong. It is not disputed that the assessees worked the scheme and such working produced the profits as found in the assessment orders. The Tribunal thought that since the scheme was completely under the control of the Deputy Commissioner, the assessees could not be said to have carried on business by working the scheme.We are unable to see that the fact of the control of the Deputy Commissioner can prevent the working of the scheme by the assessees from being a business carried on by them. In our view, it only comes to this that the assessees had agreed to do business in a certain manner. The fact that the Deputy Commissioner guaranteed the payment by the Tehsildars of the price due from them, to the assessees would indicate that the assessees were treated as the owners of the business.It would indicate that if there had been no such guarantee, the loss due to the failure of the Tehsildars to pay their dues would have to be borne by the assessees. Again the claim, may be in the alternative, by the assessees for exemption under S. 4 (3)would not arise unless the assessees were carrying on a business.Lastly, paragraph 14 of the scheme which we have earlier set out, clearly contemplates profits resulting from the scheme.The provision that the profits would be devoted to charity to be decided by the Deputy Commissioner, would indicate that without it the profits would have been utilisable by the assessees. The profits belonged to the assessees and hence the necessity for this agreement so that the assessees might be made to spend them on charity. If, as the Tribunal thought, the profits were of the Government, there was no necessity for the Government providing for the profits being expended on charity, for the Government if minded to do so, could have done it without such a provision. The fact remains that the working of the scheme produced profits and apart from paragraph 14 such profits undoubtedly belonged to the assessees.If they chose to agree by paragraph 14 to devote the profits to charity, that was their business; the profits made by them would not change their character and cease to be the assessees income because they agreed to devote their income to charity.We might also say that there is nothing in the scheme which shows that the assessees had undertaken not to make any profits on the distribution work under the scheme; they had only agreed to finance the scheme without receiving any interest or profit.Furthermore, since the assessees actually made the profits, they are liable to pay tax thereon whether they agreed not to make any profits or not.We wish also to point out that it is not the assessees case that they have been made to pay out the profits for any charity. For these reasons we think that the profits were the profits of the assessees and they are liable to pay tax on them.8. With regard to the assessees claim for exemption under S. 4 (3)they are clearly not entitled to any. That claim of the assessees has not been accepted by any of the Courts below. Section 4 (3)applies to income derived from business carried on behalf of a religious and charitable institution when the income is applied solely to the purpose of the institution and the business is carried on in the manner provided. It is enough to say that the scheme considered as a business, was not carried on on behalf of any religious or charitable institution. Once it is held that the assessees made the profits, how they use it would not matter.9. In the result, we would answer both parts of the question framed, in the affirmative. We hold that the profits were the income which accrued to the assessees and such income is assessable toand is not exempt from taxation under S. | 1 | 1,990 | 790 | ### 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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the financiers and also managers under the Deputy Commissioner to carry out the scheme and that the assessees only helped to work the scheme. The Tribunal held that the profits that may have resulted from such working were not therefore theirs nor represented their income and the assessees could not be assessed to income-tax thereon. In this view of the matter the Tribunal set aside the orders of assessment.4. Thereafter, on the application of the revenue authorities the Tribunal referred the following question to the High Court under S. 66 (1) of the Act :Whether on the facts of this case any income accrued to Messrs. Vyas and Dhotiwala as the result of their associating themselves as financiers in the scheme for the distribution of standard cloth; and, if so, whether such income was assessable in their hands.5. On that reference the High Court held that under the charging Section in the Indian Income-tax Act, 1922, namely, Section 4, it was necessary for the revenue authorities to prove that the assessees received or should be deemed to have received income or profit from the scheme during the relevant period. It held that the assessees had not actually received any such income and further that the expression "deemed to be received" in that Section only meant deemed by the provision of the Act to be received, and no such provisions of the Act had been relied upon an behalf of the revenue authorities. In this view of the matter the High Court answered the question framed, in the negative.6. The learned Solicitor-General contends that the High Court failed to appreciate the real question. He says that the question was not whether income was received or deemed to be received but whether income had accrued and the point for decision was, as appeared from the judgment of the Tribunal, whether the profits formed the income of the assessees. We agree with this criticism of the judgment of the High Court.7. On the point that arises from the question framed, we think that the Tribunal went wrong. It is not disputed that the assessees worked the scheme and such working produced the profits as found in the assessment orders. The Tribunal thought that since the scheme was completely under the control of the Deputy Commissioner, the assessees could not be said to have carried on business by working the scheme.We are unable to see that the fact of the control of the Deputy Commissioner can prevent the working of the scheme by the assessees from being a business carried on by them. In our view, it only comes to this that the assessees had agreed to do business in a certain manner. The fact that the Deputy Commissioner guaranteed the payment by the Tehsildars of the price due from them, to the assessees would indicate that the assessees were treated as the owners of the business.It would indicate that if there had been no such guarantee, the loss due to the failure of the Tehsildars to pay their dues would have to be borne by the assessees. Again the claim, may be in the alternative, by the assessees for exemption under S. 4 (3) (i-a) would not arise unless the assessees were carrying on a business.Lastly, paragraph 14 of the scheme which we have earlier set out, clearly contemplates profits resulting from the scheme.The provision that the profits would be devoted to charity to be decided by the Deputy Commissioner, would indicate that without it the profits would have been utilisable by the assessees. The profits belonged to the assessees and hence the necessity for this agreement so that the assessees might be made to spend them on charity. If, as the Tribunal thought, the profits were of the Government, there was no necessity for the Government providing for the profits being expended on charity, for the Government if minded to do so, could have done it without such a provision. The fact remains that the working of the scheme produced profits and apart from paragraph 14 such profits undoubtedly belonged to the assessees.If they chose to agree by paragraph 14 to devote the profits to charity, that was their business; the profits made by them would not change their character and cease to be the assessees income because they agreed to devote their income to charity.We might also say that there is nothing in the scheme which shows that the assessees had undertaken not to make any profits on the distribution work under the scheme; they had only agreed to finance the scheme without receiving any interest or profit.Furthermore, since the assessees actually made the profits, they are liable to pay tax thereon whether they agreed not to make any profits or not.We wish also to point out that it is not the assessees case that they have been made to pay out the profits for any charity. For these reasons we think that the profits were the profits of the assessees and they are liable to pay tax on them.8. With regard to the assessees claim for exemption under S. 4 (3) (i-a), they are clearly not entitled to any. That claim of the assessees has not been accepted by any of the Courts below. Section 4 (3) (i-a) applies to income derived from business carried on behalf of a religious and charitable institution when the income is applied solely to the purpose of the institution and the business is carried on in the manner provided. It is enough to say that the scheme considered as a business, was not carried on on behalf of any religious or charitable institution. Once it is held that the assessees made the profits, how they use it would not matter.9. In the result, we would answer both parts of the question framed, in the affirmative. We hold that the profits were the income which accrued to the assessees and such income is assessable to income-tax and is not exempt from taxation under S. 4(3)(i-a),
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6. The learneds that the High Court failed to appreciate the real question. He says that the question was not whether income was received or deemed to be received but whether income had accrued and the point for decision was, as appeared from the judgment of the Tribunal, whether the profits formed the income of the assessees.We agree with this criticism of the judgment of the High Court.7. On the point that arises from the question framed, we think that the Tribunal went wrong. It is not disputed that the assessees worked the scheme and such working produced the profits as found in the assessment orders. The Tribunal thought that since the scheme was completely under the control of the Deputy Commissioner, the assessees could not be said to have carried on business by working the scheme.We are unable to see that the fact of the control of the Deputy Commissioner can prevent the working of the scheme by the assessees from being a business carried on by them. In our view, it only comes to this that the assessees had agreed to do business in a certain manner. The fact that the Deputy Commissioner guaranteed the payment by the Tehsildars of the price due from them, to the assessees would indicate that the assessees were treated as the owners of the business.It would indicate that if there had been no such guarantee, the loss due to the failure of the Tehsildars to pay their dues would have to be borne by the assessees. Again the claim, may be in the alternative, by the assessees for exemption under S. 4 (3)would not arise unless the assessees were carrying on a business.Lastly, paragraph 14 of the scheme which we have earlier set out, clearly contemplates profits resulting from the scheme.The provision that the profits would be devoted to charity to be decided by the Deputy Commissioner, would indicate that without it the profits would have been utilisable by the assessees. The profits belonged to the assessees and hence the necessity for this agreement so that the assessees might be made to spend them on charity. If, as the Tribunal thought, the profits were of the Government, there was no necessity for the Government providing for the profits being expended on charity, for the Government if minded to do so, could have done it without such a provision. The fact remains that the working of the scheme produced profits and apart from paragraph 14 such profits undoubtedly belonged to the assessees.If they chose to agree by paragraph 14 to devote the profits to charity, that was their business; the profits made by them would not change their character and cease to be the assessees income because they agreed to devote their income to charity.We might also say that there is nothing in the scheme which shows that the assessees had undertaken not to make any profits on the distribution work under the scheme; they had only agreed to finance the scheme without receiving any interest or profit.Furthermore, since the assessees actually made the profits, they are liable to pay tax thereon whether they agreed not to make any profits or not.We wish also to point out that it is not the assessees case that they have been made to pay out the profits for any charity. For these reasons we think that the profits were the profits of the assessees and they are liable to pay tax on them.8. With regard to the assessees claim for exemption under S. 4 (3)they are clearly not entitled to any. That claim of the assessees has not been accepted by any of the Courts below. Section 4 (3)applies to income derived from business carried on behalf of a religious and charitable institution when the income is applied solely to the purpose of the institution and the business is carried on in the manner provided. It is enough to say that the scheme considered as a business, was not carried on on behalf of any religious or charitable institution. Once it is held that the assessees made the profits, how they use it would not matter.9. In the result, we would answer both parts of the question framed, in the affirmative. We hold that the profits were the income which accrued to the assessees and such income is assessable toand is not exempt from taxation under S.
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M/S Ravindra Kumar Gupta & Co Vs. Union Of India | justified in interfering with the award. The common phraseology error apparent on the face of the record does not itself, however, mean and imply closer scrutiny of the merits of documents and materials on record. The Court as a matter of fact cannot substitute its evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. If the view of the arbitrator is a possible view the award or the reasoning contained therein cannot be examined.......... 15. This view has been reiterated by this Court in the case of Oil & Natural Gas Corporation Ltd. vs. SAW Pipes Ltd. as follows: In the light of the aforesaid decisions, in our view, there is much force in the contention raised by the learned counsel for the appellant. However, the learned senior counsel Mr. Dave submitted that even if the award passed by the arbitral tribunal is erroneous, it is settled law that when two views are possible with regard to interpretation of statutory provisions and or facts, the Court would refuse to interfere with such award. It is true that if the arbitral tribunal has committed mere error of fact law in reaching its conclusion on the disputed question submitted to it for adjudication then the Court would have no jurisdiction to interfere with the award. But, this would depend upon reference made to the arbitrator : (a) if there is a general reference for deciding the contractual dispute between the parties and if the award is based on erroneous legal proposition, the Court could interfere; (b) It is also settled law that in a case of reasoned award, the Court can set aside the same if it is, on the face of it, erroneous on the provision of law or its application; (c) If a specific question of law is submitted to the arbitrator, erroneous decision in point of law does not make the award bad, so as to permit of its being set aside, unless the Court is satisfied that the arbitrator had proceeded illegally. 16. In the M/s. Kwality Manufacturing Corporation vs. Central Warehousing Corporation it was held: At the outset, it should be noted that the scope of interference by courts in regard to arbitral awards is limited. A court considering an application under Section 30 or 33 of the Act, does not sit in appeal over the findings and decision of the arbitrator. Nor can it re-assess or re-appreciate evidence or examine the sufficiency or otherwise of the evidence. The award of the arbitrator is final and the only grounds on which it can be challenged are those mentioned in Sections 30 and 33 of the Act. Therefore, on the contentions urged, the only question that arose for consideration before the High court was, whether there was any error apparent on the face of the award and whether the arbitrator misconducted himself or the proceedings. 17. Again it is reiterated in the judgment of Madhya Pradesh Housing Board vs. Progressive Writers and Publishers (2009) 5 SCC as follows: The finding arrived at by the arbitrator in this regard is not even challenged by the Board in the proceedings initiated by it under Section 30 of the Act. It is fairly well settled and needs no restatement that the award of the arbitrator is ordinarily final and the courts hearing applications under Section 30 of the Act do not exercise any appellate jurisdiction. Reappraisal of evidence by the court is impermissible. 18. In this case, the Supreme Court notice the earlier judgment in the case of Ispat Engineering & Foundry Works, B.S. City, Bokaro vs. Steel Authority of India, B.S. City, Bokaro [(2001) 6 SCC 347] wherein it was held as follows: 4. Needless to record that there exists a long catena of cases through which the law seems to be rather well settled that the reappraisal of evidence by the court is not permissible. This Court in one of its latest decisions [Arosan Enterprises Ltd. v. Union of India (1999) 9 SCC 449 ] upon consideration of decisions in Champsey Bhara & Co. v. Jivraj Balloo Spg. & Wvg. Co. Ltd. [Air 1923 PC 66], Union of India v. Bungo Steel Furniture (P) Ltd. [1967 1 SCR 324 ], N. Chellappan v. Secy., Kerala SEB [(1975) 1 SCC 289] , Sudarshan Trading Co. v. Govt. of Kerala [(1989) 2 SCC 38] , State of Rajasthan v. Puri Construction Co. Ltd. [(1994) 6 SCC 485] as also in Olympus Superstructures (P) Ltd. v. Meena Vijay Khetan [(1999) 5 SCC 651] has stated that reappraisal of evidence by the court is not permissible and as a matter of fact, exercise of power to reappraise the evidence is unknown to a proceeding under Section 30 of the Arbitration Act, 1940. This court in Arosan Enterprises categorically stated that in the event of there being no reason in the award, question of interference of the court would not arise at all. In the event, however, there are reasons, interference would still be not available unless of course, there exist a total perversity in the award or the judgment is based on a wrong proposition of law. This Court went on to record that in the event, however, two views are possible on a question of law, the court would not be justified in interfering with the award of the arbitrator if the view taken recourse to is a possible view. The observations of Lord Dunedin in Champsey Bhara stand accepted and adopted by this Court in Bungo Steel Furniture to the effect that the court had no jurisdiction to investigate into the merits of the case or to examine the documentary and oral evidence in the record for the purposes of finding out whether or not the arbitrator has committed an error of law. The court as a matter of fact, cannot substitute its own evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. | 1[ds]11. We are of the considered opinion that the High Court committed a serious error in re-appreciating the evidence led by the parties before the arbitrator. This evidence was duly scrutinized and evaluated by the arbitrator. With regard to claim No.5, the arbitrator has given elaborate reasons. Therefore, finding recorded by the arbitrator cannot said to be either perverse or based on no evidence. A firm finding has been recorded that under claim No.5 there was default and delay on the part of Union of India with respect to:(i) The payment of RARs final bill(ii) Delay in appointing agency for ATT(iii) Delay in giving decision(iv) Increase in height of Tent plinth (given late)12. This conclusion has been erroneously substituted by the High Court with its own opinion on appreciation of the evidence. Such a course was not permissible to the High Court while examining objections to the award under Section 30 of the Arbitration Act, 194013. The law with regard to scope and ambit of the jurisdiction of the courts to interfere with an arbitration award has been settled in a catena of judgments of this Court. We may make a reference here only to some of the judgments. In the case of State of Rajasthan vs. Puri Construction Company Limited. and Anothers. (1994) 6 SCC 485 , this Court observed as follows:The arbitrator is the final arbiter for the dispute between the parties and it is not open to challenge the award on the ground that the arbitrator has drawn his own conclusion or has failed to appreciate the facts. In Sudarsan Trading Co. v. Govt. of Keralait has been held by this Court that there is a distinction between disputes as to the jurisdiction of the arbitrator and the disputes as to in what way that jurisdiction should be exercised. There may be a conflict as to the power of the arbitrator to grant a particular remedy. One has to determine the distinction between an error within the jurisdiction and an error in excess of the jurisdiction. Court cannot substitute its own evaluation of the conclusion of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. Whether a particular amount was liable to be paid is a decision within the competency of the arbitrator. By purporting to construe the contract the court cannot take upon itself the burden of saying that this was contrary to the contract and as such beyond jurisdiction. If on a view taken of a contract, the decision of the arbitrator on certain amounts awarded is a possible view though perhaps not the only correct view, the award cannot be examined by the court. Where the reasons have been given by the arbitrator in making the award the court cannot examine the reasonableness of the reasons. If the parties have selected their own forum, the deciding forum must be conceded the power of appraisement of evidence. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself the task of being a judge on the evidence before the arbitratorIn the case of Municipal Corpn. Of Delhi v. Jagan Nath Ashok Kumar 1987(4) SCC 497, it has been held by this Court that appraisement of evidence by the arbitrator is ordinarily never a matter which the court questions and considers. It may be possible that on the same evidence the court may arrive at a different conclusion than the one arrived at by the arbitrator but that by itself is no ground for setting aside the award. It has also been held in the said decision that it is difficult to give an exact definition of the word `reasonable. Reason varies in its conclusions according to the idiosyncrasies of the individual and the time and circumstances in which thinks. In cases not covered by authority, the verdict of a jury or the decision of a judge sitting as a jury usually determines what is `reasonable in each particular case. The word reasonable has in law prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably knows or ought to know. An arbitrator acting as a judge has to exercise a discretion informed by tradition, methodized by analogy disciplined by system and subordinated to the primordial necessity or order in the social life. Therefore, where reasons germane and relevant for the arbitrator to hold in the manner he did, have been indicated, it cannot be said that the reasons are unreasonable14. In the case of Arosan Enterprises Ltd. vs. Union of India, (1999) 9 SCC 449 , this Court upon analysis of numerous earlier decisions, held as follows:Be it noted that by reasons of a long catena of cases, it is now a well-settled principle of law that re-appraisal of evidence by the court is not permissible and as a matter of fact exercise of power by the court to reappraise the evidence is unknown to proceedings under section 30 of the Arbitration Act. In the event of there being no reasons in the award, question of interference of the court would not arise at all. In the event, however, there are reasons, the interference would still be not available within the jurisdiction of the Court unless of course, there exist a total perversity in the award or the judgment is based on a wrong proposition of law. In the event however two views are possible on a question of law as well, the court would not be justified in interfering with the awardThe common phraseology error apparent on the face of the record does not itself, however, mean and imply closer scrutiny of the merits of documents and materials on record. The Court as a matter of fact cannot substitute its evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. If the view of the arbitrator is a possible view the award or the reasoning contained therein cannot be examined15. This view has been reiterated by this Court in the case of Oil & Natural Gas Corporation Ltd. vs. SAW Pipes Ltd. as follows:In the light of the aforesaid decisions, in our view, there is much force in the contention raised by the learned counsel for the appellant. However, the learned senior counsel Mr. Dave submitted that even if the award passed by the arbitral tribunal is erroneous, it is settled law that when two views are possible with regard to interpretation of statutory provisions and or facts, the Court would refuse to interfere with such awardIt is true that if the arbitral tribunal has committed mere error of fact law in reaching its conclusion on the disputed question submitted to it for adjudication then the Court would have no jurisdiction to interfere with the award. But, this would depend upon reference made to the arbitrator : (a) if there is a general reference for deciding the contractual dispute between the parties and if the award is based on erroneous legal proposition, the Court could interfere; (b) It is also settled law that in a case of reasoned award, the Court can set aside the same if it is, on the face of it, erroneous on the provision of law or its application; (c) If a specific question of law is submitted to the arbitrator, erroneous decision in point of law does not make the award bad, so as to permit of its being set aside, unless the Court is satisfied that the arbitrator had proceeded illegally16. In the M/s. Kwality Manufacturing Corporation vs. Central Warehousing Corporation it was held:At the outset, it should be noted that the scope of interference by courts in regard to arbitral awards is limited. A court considering an application under Section 30 or 33 of the Act, does not sit in appeal over the findings and decision of the arbitrator. Nor can it re-assess or re-appreciate evidence or examine the sufficiency or otherwise of the evidence. The award of the arbitrator is final and the only grounds on which it can be challenged are those mentioned in Sections 30 and 33 of the Act. Therefore, on the contentions urged, the only question that arose for consideration before the High court was, whether there was any error apparent on the face of the award and whether the arbitrator misconducted himself or the proceedings17. Again it is reiterated in the judgment of Madhya Pradesh Housing Board vs. Progressive Writers and Publishers (2009) 5 SCC as follows:The finding arrived at by the arbitrator in this regard is not even challenged by the Board in the proceedings initiated by it under Section 30 of the Act. It is fairly well settled and needs no restatement that the award of the arbitrator is ordinarily final and the courts hearing applications under Section 30 of the Act do not exercise any appellate jurisdiction. Reappraisal of evidence by the court is impermissible18. In this case, the Supreme Court notice the earlier judgment in the case of Ispat Engineering & Foundry Works, B.S. City, Bokaro vs. Steel Authority of India, B.S. City, Bokaro [(2001) 6 SCC 347] wherein it was held as follows:4. Needless to record that there exists a long catena of cases through which the law seems to be rather well settled that the reappraisal of evidence by the court is not permissible. This Court in one of its latest decisions [Arosan Enterprises Ltd. v. Union of India (1999) 9 SCC 449 ] upon consideration of decisions in Champsey Bhara & Co. v. Jivraj Balloo Spg. & Wvg. Co. Ltd. [Air 1923 PC 66], Union of India v. Bungo Steel Furniture (P) Ltd. [1967 1 SCR 324 ], N. Chellappan v. Secy., Kerala SEB [(1975) 1 SCC 289] , Sudarshan Trading Co. v. Govt. of Kerala [(1989) 2 SCC 38] , State of Rajasthan v. Puri Construction Co. Ltd. [(1994) 6 SCC 485] as also in Olympus Superstructures (P) Ltd. v. Meena Vijay Khetan [(1999) 5 SCC 651] has stated that reappraisal of evidence by the court is not permissible and as a matter of fact, exercise of power to reappraise the evidence is unknown to a proceeding under Section 30 of the Arbitration Act, 1940. This court in Arosan Enterprises categorically stated that in the event of there being no reason in the award, question of interference of the court would not arise at all. In the event, however, there are reasons, interference would still be not available unless of course, there exist a total perversity in the award or the judgment is based on a wrong proposition of law. This Court went on to record that in the event, however, two views are possible on a question of law, the court would not be justified in interfering with the award of the arbitrator if the view taken recourse to is a possible view. The observations of Lord Dunedin in Champsey Bhara stand accepted and adopted by this Court in Bungo Steel Furniture to the effect that the court had no jurisdiction to investigate into the merits of the case or to examine the documentary and oral evidence in the record for the purposes of finding out whether or not the arbitrator has committed an error of law. The court as a matter of fact, cannot substitute its own evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties | 1 | 3,161 | 2,142 | ### 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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justified in interfering with the award. The common phraseology error apparent on the face of the record does not itself, however, mean and imply closer scrutiny of the merits of documents and materials on record. The Court as a matter of fact cannot substitute its evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. If the view of the arbitrator is a possible view the award or the reasoning contained therein cannot be examined.......... 15. This view has been reiterated by this Court in the case of Oil & Natural Gas Corporation Ltd. vs. SAW Pipes Ltd. as follows: In the light of the aforesaid decisions, in our view, there is much force in the contention raised by the learned counsel for the appellant. However, the learned senior counsel Mr. Dave submitted that even if the award passed by the arbitral tribunal is erroneous, it is settled law that when two views are possible with regard to interpretation of statutory provisions and or facts, the Court would refuse to interfere with such award. It is true that if the arbitral tribunal has committed mere error of fact law in reaching its conclusion on the disputed question submitted to it for adjudication then the Court would have no jurisdiction to interfere with the award. But, this would depend upon reference made to the arbitrator : (a) if there is a general reference for deciding the contractual dispute between the parties and if the award is based on erroneous legal proposition, the Court could interfere; (b) It is also settled law that in a case of reasoned award, the Court can set aside the same if it is, on the face of it, erroneous on the provision of law or its application; (c) If a specific question of law is submitted to the arbitrator, erroneous decision in point of law does not make the award bad, so as to permit of its being set aside, unless the Court is satisfied that the arbitrator had proceeded illegally. 16. In the M/s. Kwality Manufacturing Corporation vs. Central Warehousing Corporation it was held: At the outset, it should be noted that the scope of interference by courts in regard to arbitral awards is limited. A court considering an application under Section 30 or 33 of the Act, does not sit in appeal over the findings and decision of the arbitrator. Nor can it re-assess or re-appreciate evidence or examine the sufficiency or otherwise of the evidence. The award of the arbitrator is final and the only grounds on which it can be challenged are those mentioned in Sections 30 and 33 of the Act. Therefore, on the contentions urged, the only question that arose for consideration before the High court was, whether there was any error apparent on the face of the award and whether the arbitrator misconducted himself or the proceedings. 17. Again it is reiterated in the judgment of Madhya Pradesh Housing Board vs. Progressive Writers and Publishers (2009) 5 SCC as follows: The finding arrived at by the arbitrator in this regard is not even challenged by the Board in the proceedings initiated by it under Section 30 of the Act. It is fairly well settled and needs no restatement that the award of the arbitrator is ordinarily final and the courts hearing applications under Section 30 of the Act do not exercise any appellate jurisdiction. Reappraisal of evidence by the court is impermissible. 18. In this case, the Supreme Court notice the earlier judgment in the case of Ispat Engineering & Foundry Works, B.S. City, Bokaro vs. Steel Authority of India, B.S. City, Bokaro [(2001) 6 SCC 347] wherein it was held as follows: 4. Needless to record that there exists a long catena of cases through which the law seems to be rather well settled that the reappraisal of evidence by the court is not permissible. This Court in one of its latest decisions [Arosan Enterprises Ltd. v. Union of India (1999) 9 SCC 449 ] upon consideration of decisions in Champsey Bhara & Co. v. Jivraj Balloo Spg. & Wvg. Co. Ltd. [Air 1923 PC 66], Union of India v. Bungo Steel Furniture (P) Ltd. [1967 1 SCR 324 ], N. Chellappan v. Secy., Kerala SEB [(1975) 1 SCC 289] , Sudarshan Trading Co. v. Govt. of Kerala [(1989) 2 SCC 38] , State of Rajasthan v. Puri Construction Co. Ltd. [(1994) 6 SCC 485] as also in Olympus Superstructures (P) Ltd. v. Meena Vijay Khetan [(1999) 5 SCC 651] has stated that reappraisal of evidence by the court is not permissible and as a matter of fact, exercise of power to reappraise the evidence is unknown to a proceeding under Section 30 of the Arbitration Act, 1940. This court in Arosan Enterprises categorically stated that in the event of there being no reason in the award, question of interference of the court would not arise at all. In the event, however, there are reasons, interference would still be not available unless of course, there exist a total perversity in the award or the judgment is based on a wrong proposition of law. This Court went on to record that in the event, however, two views are possible on a question of law, the court would not be justified in interfering with the award of the arbitrator if the view taken recourse to is a possible view. The observations of Lord Dunedin in Champsey Bhara stand accepted and adopted by this Court in Bungo Steel Furniture to the effect that the court had no jurisdiction to investigate into the merits of the case or to examine the documentary and oral evidence in the record for the purposes of finding out whether or not the arbitrator has committed an error of law. The court as a matter of fact, cannot substitute its own evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties.
### Response:
1
### Explanation:
question of law as well, the court would not be justified in interfering with the awardThe common phraseology error apparent on the face of the record does not itself, however, mean and imply closer scrutiny of the merits of documents and materials on record. The Court as a matter of fact cannot substitute its evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. If the view of the arbitrator is a possible view the award or the reasoning contained therein cannot be examined15. This view has been reiterated by this Court in the case of Oil & Natural Gas Corporation Ltd. vs. SAW Pipes Ltd. as follows:In the light of the aforesaid decisions, in our view, there is much force in the contention raised by the learned counsel for the appellant. However, the learned senior counsel Mr. Dave submitted that even if the award passed by the arbitral tribunal is erroneous, it is settled law that when two views are possible with regard to interpretation of statutory provisions and or facts, the Court would refuse to interfere with such awardIt is true that if the arbitral tribunal has committed mere error of fact law in reaching its conclusion on the disputed question submitted to it for adjudication then the Court would have no jurisdiction to interfere with the award. But, this would depend upon reference made to the arbitrator : (a) if there is a general reference for deciding the contractual dispute between the parties and if the award is based on erroneous legal proposition, the Court could interfere; (b) It is also settled law that in a case of reasoned award, the Court can set aside the same if it is, on the face of it, erroneous on the provision of law or its application; (c) If a specific question of law is submitted to the arbitrator, erroneous decision in point of law does not make the award bad, so as to permit of its being set aside, unless the Court is satisfied that the arbitrator had proceeded illegally16. In the M/s. Kwality Manufacturing Corporation vs. Central Warehousing Corporation it was held:At the outset, it should be noted that the scope of interference by courts in regard to arbitral awards is limited. A court considering an application under Section 30 or 33 of the Act, does not sit in appeal over the findings and decision of the arbitrator. Nor can it re-assess or re-appreciate evidence or examine the sufficiency or otherwise of the evidence. The award of the arbitrator is final and the only grounds on which it can be challenged are those mentioned in Sections 30 and 33 of the Act. Therefore, on the contentions urged, the only question that arose for consideration before the High court was, whether there was any error apparent on the face of the award and whether the arbitrator misconducted himself or the proceedings17. Again it is reiterated in the judgment of Madhya Pradesh Housing Board vs. Progressive Writers and Publishers (2009) 5 SCC as follows:The finding arrived at by the arbitrator in this regard is not even challenged by the Board in the proceedings initiated by it under Section 30 of the Act. It is fairly well settled and needs no restatement that the award of the arbitrator is ordinarily final and the courts hearing applications under Section 30 of the Act do not exercise any appellate jurisdiction. Reappraisal of evidence by the court is impermissible18. In this case, the Supreme Court notice the earlier judgment in the case of Ispat Engineering & Foundry Works, B.S. City, Bokaro vs. Steel Authority of India, B.S. City, Bokaro [(2001) 6 SCC 347] wherein it was held as follows:4. Needless to record that there exists a long catena of cases through which the law seems to be rather well settled that the reappraisal of evidence by the court is not permissible. This Court in one of its latest decisions [Arosan Enterprises Ltd. v. Union of India (1999) 9 SCC 449 ] upon consideration of decisions in Champsey Bhara & Co. v. Jivraj Balloo Spg. & Wvg. Co. Ltd. [Air 1923 PC 66], Union of India v. Bungo Steel Furniture (P) Ltd. [1967 1 SCR 324 ], N. Chellappan v. Secy., Kerala SEB [(1975) 1 SCC 289] , Sudarshan Trading Co. v. Govt. of Kerala [(1989) 2 SCC 38] , State of Rajasthan v. Puri Construction Co. Ltd. [(1994) 6 SCC 485] as also in Olympus Superstructures (P) Ltd. v. Meena Vijay Khetan [(1999) 5 SCC 651] has stated that reappraisal of evidence by the court is not permissible and as a matter of fact, exercise of power to reappraise the evidence is unknown to a proceeding under Section 30 of the Arbitration Act, 1940. This court in Arosan Enterprises categorically stated that in the event of there being no reason in the award, question of interference of the court would not arise at all. In the event, however, there are reasons, interference would still be not available unless of course, there exist a total perversity in the award or the judgment is based on a wrong proposition of law. This Court went on to record that in the event, however, two views are possible on a question of law, the court would not be justified in interfering with the award of the arbitrator if the view taken recourse to is a possible view. The observations of Lord Dunedin in Champsey Bhara stand accepted and adopted by this Court in Bungo Steel Furniture to the effect that the court had no jurisdiction to investigate into the merits of the case or to examine the documentary and oral evidence in the record for the purposes of finding out whether or not the arbitrator has committed an error of law. The court as a matter of fact, cannot substitute its own evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties
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M/S. Indra Photographic Co. Ltd Vs. Mr. H.D. Shourie | Third Schedule and the Sixth Schedule of these rules :Provided further that such declaration shall not be necessary in the case of packages of these commodities which are not specified in the Third Schedule but are packed in qualities of 50g, 100g, 200g, 500g, 1kg., 2kg., 5kg., or in multiple of 5 kg. Or in 50 ml., 100 ml., 200 ml., 500 ml., 1 liter, 2 litres, 5 litres and in multiple of 5 litres.(f) the sale price of the package;(g) where sizes of commodity contained in the packaged are relevant, the dimensions of the commodity contained in the package and if the dimensions of the different pieces are different, the dimensions of each such different piece;(h) such other matters as are specified in these rules :Provided that -(a) no declaration as to the month and year in which the commodity is manufactured or pre-packed shall be required to be made on -(i) any bottle containing liquid milk, liquid beverages containing milk as an ingredient, soft drink, ready-to-serve fruit beverages, or the like, which is returnable by the consumer for being re-filled;(ii) any package containing bread and any uncanned package of (a) vegetables, (b) fruits, (c) ice cream, (d) butter, (e) cheese, (f) fish, (g) meat or (h) any other like commodity; (iia) liquid milk in pouches; (iii) any package containing metallic product;(iv) any cylinder containing liquefied petroleum gas or any other gas; (v) any package containing chemical fertilizer;(B) wherein any packaging material bearing thereon the month in which any commodity was expected to have been pre-packed is not exhausted during that month, such packaging material may be used for pre-packing the concerned commodity produced or manufactured during the next succeeding month and not thereafter, but the Central Government may, it is satisfied that such packaging material could not be exhausted during the period aforesaid by reason of any circumstances beyond the control of the manufacturer or packer, as the case may be, extend the time during which such packaging material may be used, and, where any such packaging material is exhausted before the expiry of the month indicated thereon, the packaging material intended to be used during the next succeeding month may be used for pre-packing the concerned commodity;(c) no declaration as to the sale price shall be required to be made on - (i) any uncanned package of (a) vegetables, (b) fruits, (c) ice-cream (d) cheese, (e) butter, (f) fish, (g) meat or (h) any other like commodity; (ii) any bottle containing liquid milk, liquid beverages containing milk as an ingredient, soft drink, ready-to-serve fruit beverages, or the like, which is returnable by the consumer for being re-filled; (iii) any bottle containing alcoholic beverages, or spirituous liquor; (iv) any package containing animal feed exceeding 15 kg or 15.1; (v) any package containing a commodity for which controlled price has been fixed by or under any law for the time being in force.Explanation I. The month and the year in which the commodity is pre-packed may be expressed either in words, or by numerals indicating the month and the year, or by both.Explanation II. Liquid milk does not include condensed milk.(2) Every dealer or other person who makes a retail sale of any commodity in packaged form shall, where local taxes have to be added to the price indicated on such package by the manufacturer or the packer, display prominently at a conspicuous place of the premises in which he carries on his retail sale, the rates at which local taxes are leviable in respect of the commodities sold in packaged form." 6. It is contended that sub-rule(2) of Rule 6 alone was applicable in the case because the goods in the form of Kodak films were being sold by the distributor and not by the manufacturer. it is further contended that sub-rule(1) of Rule 6 is applicable to the manufacturers alone. We are not satisfied with such submission. Accepting such a plea would result in frustrating the provisions of the 1986 Act and thereby encourage the retailers or distributors of foreign made goods to charge prices according to their convenience without letting the consumer know the actual price of the commodity. A perusal of Rule 6(1) of the Rules clearly shows that the stress of the sub-rule is upon the package and not upon the person manufacturing or selling the package. The provisions of sub-rule (2) apparently appear to be in addition to the obligations cast upon the manufacturer and the dealer under sub-rule (1) of Rule 6 of the Rules. We are also no impressed with the argument of the learned counsel for the appellant that before is amendment on 8.8.1986, Sub-rule (2) as it then stood cast such an obligation to display the price but not thereafter. By amendment provisions of sub-rules (2) and (3) appears to have been incorporated in sub-rule (2) only by deleting sub-rule (3). The superfluous and additional words existing in sub-rule (2) before its amendment were rightly deleted in view of the specific provisions of Chapter II comprising rule 3, 4, 5 and 6 as noted herein earlier. The declares are, therefore, obliged to comply with the provisions of sub-rule (1) of Rule 6 of the Rules notwithstanding the confusion if any conceived by them under Rule 6(2) before its amendment.7. During the course of the argument the learned counsel appearing for the respondent has shown as some packages of the Kodak films wherein the maximum retail price inclusive of all taxes has already been displayed. It is worth noticing that on those packages a specific mention is made of "not for resale outside India." It appears that the product of Kodak films, a multi-national company are being manufactured and distributed in India, thus neither the manufacturer nor the distributor or retailer can escape the liability of complying with the provisions of Rule 6 of the Rules.8. After examining the matter from various aspects, we do not find any infirmity or illegality in the order of the National Commission requiring interference. | 0[ds]We are also no impressed with the argument of the learned counsel for the appellant that before is amendment on 8.8.1986, Sub-rule (2) as it then stood cast such an obligation to display the price but not thereafter. By amendment provisions of sub-rules (2) and (3) appears to have been incorporated in sub-rule (2) only by deleting sub-rule (3). The superfluous and additional words existing in sub-rule (2) before its amendment were rightly deleted in view of the specific provisions of Chapter II comprising rule 3, 4, 5 and 6 as noted herein earlier. The declares are, therefore, obliged to comply with the provisions of sub-rule (1) of Rule 6 of the Rules notwithstanding the confusion if any conceived by them under Rule 6(2) before its amendment.7. During the course of the argument the learned counsel appearing for the respondent has shown as some packages of the Kodak films wherein the maximum retail price inclusive of all taxes has already been displayed. It is worth noticing that on those packages a specific mention is made of "not for resale outside India." It appears that the product of Kodak films, a multi-national company are being manufactured and distributed in India, thus neither the manufacturer nor the distributor or retailer can escape the liability of complying with the provisions of Rule 6 of the Rules.8. After examining the matter from various aspects, we do not find any infirmity or illegality in the order of the National Commission requiring interference. | 0 | 2,831 | 286 | ### 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:
Third Schedule and the Sixth Schedule of these rules :Provided further that such declaration shall not be necessary in the case of packages of these commodities which are not specified in the Third Schedule but are packed in qualities of 50g, 100g, 200g, 500g, 1kg., 2kg., 5kg., or in multiple of 5 kg. Or in 50 ml., 100 ml., 200 ml., 500 ml., 1 liter, 2 litres, 5 litres and in multiple of 5 litres.(f) the sale price of the package;(g) where sizes of commodity contained in the packaged are relevant, the dimensions of the commodity contained in the package and if the dimensions of the different pieces are different, the dimensions of each such different piece;(h) such other matters as are specified in these rules :Provided that -(a) no declaration as to the month and year in which the commodity is manufactured or pre-packed shall be required to be made on -(i) any bottle containing liquid milk, liquid beverages containing milk as an ingredient, soft drink, ready-to-serve fruit beverages, or the like, which is returnable by the consumer for being re-filled;(ii) any package containing bread and any uncanned package of (a) vegetables, (b) fruits, (c) ice cream, (d) butter, (e) cheese, (f) fish, (g) meat or (h) any other like commodity; (iia) liquid milk in pouches; (iii) any package containing metallic product;(iv) any cylinder containing liquefied petroleum gas or any other gas; (v) any package containing chemical fertilizer;(B) wherein any packaging material bearing thereon the month in which any commodity was expected to have been pre-packed is not exhausted during that month, such packaging material may be used for pre-packing the concerned commodity produced or manufactured during the next succeeding month and not thereafter, but the Central Government may, it is satisfied that such packaging material could not be exhausted during the period aforesaid by reason of any circumstances beyond the control of the manufacturer or packer, as the case may be, extend the time during which such packaging material may be used, and, where any such packaging material is exhausted before the expiry of the month indicated thereon, the packaging material intended to be used during the next succeeding month may be used for pre-packing the concerned commodity;(c) no declaration as to the sale price shall be required to be made on - (i) any uncanned package of (a) vegetables, (b) fruits, (c) ice-cream (d) cheese, (e) butter, (f) fish, (g) meat or (h) any other like commodity; (ii) any bottle containing liquid milk, liquid beverages containing milk as an ingredient, soft drink, ready-to-serve fruit beverages, or the like, which is returnable by the consumer for being re-filled; (iii) any bottle containing alcoholic beverages, or spirituous liquor; (iv) any package containing animal feed exceeding 15 kg or 15.1; (v) any package containing a commodity for which controlled price has been fixed by or under any law for the time being in force.Explanation I. The month and the year in which the commodity is pre-packed may be expressed either in words, or by numerals indicating the month and the year, or by both.Explanation II. Liquid milk does not include condensed milk.(2) Every dealer or other person who makes a retail sale of any commodity in packaged form shall, where local taxes have to be added to the price indicated on such package by the manufacturer or the packer, display prominently at a conspicuous place of the premises in which he carries on his retail sale, the rates at which local taxes are leviable in respect of the commodities sold in packaged form." 6. It is contended that sub-rule(2) of Rule 6 alone was applicable in the case because the goods in the form of Kodak films were being sold by the distributor and not by the manufacturer. it is further contended that sub-rule(1) of Rule 6 is applicable to the manufacturers alone. We are not satisfied with such submission. Accepting such a plea would result in frustrating the provisions of the 1986 Act and thereby encourage the retailers or distributors of foreign made goods to charge prices according to their convenience without letting the consumer know the actual price of the commodity. A perusal of Rule 6(1) of the Rules clearly shows that the stress of the sub-rule is upon the package and not upon the person manufacturing or selling the package. The provisions of sub-rule (2) apparently appear to be in addition to the obligations cast upon the manufacturer and the dealer under sub-rule (1) of Rule 6 of the Rules. We are also no impressed with the argument of the learned counsel for the appellant that before is amendment on 8.8.1986, Sub-rule (2) as it then stood cast such an obligation to display the price but not thereafter. By amendment provisions of sub-rules (2) and (3) appears to have been incorporated in sub-rule (2) only by deleting sub-rule (3). The superfluous and additional words existing in sub-rule (2) before its amendment were rightly deleted in view of the specific provisions of Chapter II comprising rule 3, 4, 5 and 6 as noted herein earlier. The declares are, therefore, obliged to comply with the provisions of sub-rule (1) of Rule 6 of the Rules notwithstanding the confusion if any conceived by them under Rule 6(2) before its amendment.7. During the course of the argument the learned counsel appearing for the respondent has shown as some packages of the Kodak films wherein the maximum retail price inclusive of all taxes has already been displayed. It is worth noticing that on those packages a specific mention is made of "not for resale outside India." It appears that the product of Kodak films, a multi-national company are being manufactured and distributed in India, thus neither the manufacturer nor the distributor or retailer can escape the liability of complying with the provisions of Rule 6 of the Rules.8. After examining the matter from various aspects, we do not find any infirmity or illegality in the order of the National Commission requiring interference.
### Response:
0
### Explanation:
We are also no impressed with the argument of the learned counsel for the appellant that before is amendment on 8.8.1986, Sub-rule (2) as it then stood cast such an obligation to display the price but not thereafter. By amendment provisions of sub-rules (2) and (3) appears to have been incorporated in sub-rule (2) only by deleting sub-rule (3). The superfluous and additional words existing in sub-rule (2) before its amendment were rightly deleted in view of the specific provisions of Chapter II comprising rule 3, 4, 5 and 6 as noted herein earlier. The declares are, therefore, obliged to comply with the provisions of sub-rule (1) of Rule 6 of the Rules notwithstanding the confusion if any conceived by them under Rule 6(2) before its amendment.7. During the course of the argument the learned counsel appearing for the respondent has shown as some packages of the Kodak films wherein the maximum retail price inclusive of all taxes has already been displayed. It is worth noticing that on those packages a specific mention is made of "not for resale outside India." It appears that the product of Kodak films, a multi-national company are being manufactured and distributed in India, thus neither the manufacturer nor the distributor or retailer can escape the liability of complying with the provisions of Rule 6 of the Rules.8. After examining the matter from various aspects, we do not find any infirmity or illegality in the order of the National Commission requiring interference.
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Sitaram Laxman Dhoom Vs. The State of Maharashtra | that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases 30. It would be contextually relevant to consider the aspect of the failure of the accused no.2 to offer any explanation as to the circumstances of the transaction which resulted in the death of the deceased Pushpa. An inference was drawn against the accused no.2 that the learned Additional Sessions Judge as Shevantabai (PW-2) deposed that the accused no.2 did not disclose the whereabouts of the deceased Pushpa when being inquired about. This warrants a correct understanding of the nature of the burden under section 106 of the Evidence Act, 1872. 31. The burden to establish the guilt of the accused primarily rests upon the prosecution. Section 106 of the Evidence Act does not relieve the prosecution of its general or primary burden of establishing the guilt of the accused beyond reasonable doubt. In the case of Sawal Das Vs. State of Bihar (1974) 4 SCC 193 , the Supreme Court enunciated the law in clear and explicit terms, as under :- 10 Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. 32. Section 106 of the Evidence Act comes into play where the prosecution succeeds in discharging its primary burden and adduces evidence which indicates that the facts, thereby proved, rest within the special knowledge of the accused. The application of the principle contained in section 106 of the Evidence Act was expounded by the Supreme Court in the case of State of Rajasthan Vs. Kashi Ram (2006) 12 SCC 254 , in the following words :- 23………………..The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218. 33. In view of the aforesaid exposition of the legal position, two postulates emerge. One, if the deceased is last seen alive with the accused, in proximity of the time, at which the deceased is found dead, the accused must offer an explanation as to how and under what circumstances he parted company with the deceased. Two, the failure of the accused to offer reasonable explanation in discharge of the said burden provides an additional link in the chain of circumstances proved against the accused. 34. Reverting to the facts of the case, frstly, it is pertinent to note that the very fact as to whether the accused no.2 was also last seen in the company of the deceased is in the corridor of uncertainty. As indicated above, the evidence of Shevantabai (PW-2), on this aspect, stands contradicted by the stand of Hemanti (PW-6) and there is no other material which lends support to the claim of Shevantabai (PW-2). Secondly, the fact that accused no.2 is not an ordinary resident of the house of the deceased can also not be lost sight of. Thirdly, the contemporaneous conduct of accused No.2 also becomes relevant. There is evidence to indicate that in contradistinction to the steadfast refusal of the deceased Somnath to join the search party, the accused no.2 had joined the family members and relatives of the deceased in the search of the deceased. Fourthly, in totality of the circumstances, in absence of any other evidence, which incriminates the accused No.2, it would be rather hazardous to base the conviction on the sole circumstance of last seen. 35. The upshot of the aforesaid consideration is that the prosecution has not succeeded in establishing the circumstances arrayed against the accused fully. In view of the failure of the prosecution to establish the discoveries to the hilt, the chain of circumstances gets snapped. At best, the prosecution can be said to have established the circumstance of last seen. It may, again at best, lead to a suspicion. However, it is trite law that suspicion, howsoever strong, cannot take the place of legal proof. It is, thus, said that there is a long mental distance between may be true and must be true, which separates the surmises and conjectures from conclusions based on surer evidentiary foundation. | 1[ds]7. To start with, the nature of the death, which deceased met. Dr.Sanjay Chaudhari (PW-5), who conducted the postmortem examination, opined that the cause of death of the deceased was cardio-respiratory arrest due to asphyxia due to strangulation. The right upper limb was amputated from the head of humerus and was missing. The both lower limbs were amputated. There was a ligature mark completely encircled, horizontally and below thyroid cartilage. Dr.Chaudhari (PW-5) further opined that the amputation of the right upper limb and lower limbs was done after the death of the deceased. In his opinion, those amputation were possible by axe (Article-A) and sickle (Article-B).8. The aforesaid injuries, found on the person of the deceased, lead to no other inference than that of homicidal death. It appears that the deceased was initially done to death by strangulation and, thereafter, her right upper limb and lower limbs were amputated and the body of the deceased, sans the amputated parts, was thrown in the dam.10. Shevantabi Chaudhari (PW-2), the mother of the deceased informed the Court that the deceased Pushpa was her second daughter. Her marriage was settled. However, she declined to marry. There were quarrels between the deceased and her father Somnath, over the said count. Shevantabai (PW-2) wants the Court to believe that on 27th April, 2014 at about 9.00 pm. her deceased husband Somanth, son-in-law Sitaram (accused no.2) and deceased Pushpa had gone to Kakudda forest for collecting the frewood. Her deceased husband and accused no.2 returned home at about 10.00 pm. She inquired with the accused as to where the deceased Pushpa was. They informed her that the deceased would return later. The deceased did not return. They did search for her but could not trace her. After a couple of days, Chiman Gavande informed them that dead body of a lady was found in the water canal of Moka pada. She claimed to have visited the hospital and identifed the dead body to be that of the deceased.11. The prosecution examined Hemanti Chaudhari (PW-6), the younger sister of the deceased, to lend support to the version of Shevantabai (PW-2), Hemanti Choudhari (PW-6) did corroborate the version of Shevantabai (PW-2) to the extent that the deceased Pushpa had shown disinclination to marry and, therefore, there were quarrels between her deceased father Somnath and Pushpa. Her father used to beat the deceased on the said count. Hemanti (PW.6), however, refused to subscribe to the prosecution case on the crucial aspect of accused No.2 having accompanied her deceased father Somnath and sister Pushpa to the forest. She made an endeavour to assert that at that time accused No.2 was present at his home at Milanpada.12. The learned APP made an effort to take her to task. During the course of the cross examination, Hemanti (PW-6) conceded that during the period 27th April, 2014 to 1st May, 2014 she, her mother Shevantabai and her relatives did inquire with deceased Somnath about Pushpa. Her father answered that she would return later. Hemanti (PW-6) further affrmed that accused no. 2 had gone in search of the deceased. However, her father made no effort to search the deceased. She conceded that her father committed suicide as he blamed himself for the death of the deceased.13. The aforesaid evidence of Shevantabai (PW-2) and Hemanti (PW-6) constitutes the core of the evidence on the strength of which the circumstance of last seen is sought to be established by the prosecution. We will appraise the potency of the said circumstance, a little later.14. Bhaskar Choudhary (PW-3), the public witness to the scene of offence panchanama (Exh-22) and the discovery allegedly made by the accused no. 2 leading to the recovery of the weapons of offence and clothes which the deceased Somnath and accused no.2 wore at the time of occurrence, informed the Court that on 6th May, 2014 at Surgana police station, accused No. 2 made a disclosure statement before him that he would show the scene of offence. The accused led the police party to Kakuldara Hill and pointed out the spot. There were blood stains on the stones and the earth. According to Bhaskar Choudhary (PW-3) the panchanama of the scene of offence (Exh-22) was drawn at the said spot.15. Bhaskar Choudhary (PW-3) further informed the Court that the accused made disclosure statement to the effect that he would show the place where the weapons of offence, namely, the axe and the clothes which he and deceased Somnath wore at the time of occurrence, were concealed i.e. behind the house of the deceased Somnath at Milanpada feld, and produce the same. Accused No. 2, thereafter, led the police party to the said place and took out an axe (Article-A) and a sickle (Article-B) from the bushes. There were blood stains on the handle of the axe (Article-A). Accused No. 2 had also taken out a bag containing the clothes (Articles C to F). Those weapons of offence and articles were seized under panchanama (Exh-23). This version of Bhaskar Choudhary (PW-3) was sought to be corroborated by Suresh Olambe (PW-4), but not in full measure.16. The testimony of Bhaskar Choudhary (PW-3) and Suresh Olambe (PW-4) was sought to be further corroborated by Suresh Pardhi (PW-7), the investigating offcer, who effected the recovery. For Suresh Pardhi (PW-7), accused no.2 made only one discovery leading to the recovery of the weapons of offence i.e. axe (Article-A) and sickle (Article-B) and the clothes (Articles C to F) which were stained with blood.18. As regards the motive for the crime, even if we construe the testimony of Shevantabai (PW-2) rather generously, we fnd that her testimony is of little assistance in establishing the fact that accused no.2 shared the same motive which deceased Somnath had. The tenor of the testimony of Shevantabai (PW-2) is that her deceased husband Somnath was enraged as deceased Pushpa declined to solemnize marriage. Thus, there were quarrels between deceased Somnath and Pushpa on the said score. Shevantabai (PW-2) did not profess to inform the Court that accused no.2 also had a grudge against the deceased Pushpa, for her refusal to marry. In the absence of cogent evidence on this count, we are of the view that it would be impermissible to impute clear and strong motive to accused no.2.19. We have carefully perused the depositions of Mr. Bhaskar Chaudhari (PW-3) and Suresh Olambe (PW-4), the public witnesses to the scene of offence panchanama (Exh.22) and memorandum of disclosure statement (Exh.25). We fnd that that there is a signifcant incongruity in the evidence of Bhaskar Chaudhari (PW-3) and Suresh Olambe (PW-4). The claim of Bhaskar Chaudhari (Pw-3) that the accused had made disclosure statement to point out the scene of offence i.e., the place where the deceased was done to death, is not at all borne out by either scene of offence panchanama (Exh.22) or the memorandum of disclosure statement (Exh.25). The scene of offence panchanama (Exh.22) proceeds on the premise that the police party and the accused visited the place where the deceased was killed. It nowhere records that a disclosure statement made by accused no.2 preceded the said visit to the spot or it was pointed out by accused no.2. On the contrary, it records that after reaching the spot, the accused no.2 pointed out the places where the blood stains were found. By no stretch of imagination, the place of offence can be said to have been thus discovered pursuant to the statement made by the accused no.2. Memorandum of disclosure statement (Exh.25), on the other hand, records that the accused made the disclosure statement only to point out the place where the weapons of the offence and the clothes were concealed. Moreover, interestingly, the memorandum of disclosure statement (Exh.25) under section 27 of the Evidence Act and the consequent recovery of the weapons of offence and the clothes was effected before the visit to the scene of offence and drawing of the scene of offence panchanama thereat, on the same date, i.e. 6th May 2014.20. To add to this, Mr.Suresh Olambe (PW-4), the panch witness who was examined in proof of the discovery did not support the prosecution earnestly. Mr. Suresh Olambe (PW-4) went on to concede that he had neither read the contents of disclosure statement nor the seizure memo. Evidently, the circumstances of the accused pointing out the scene of offence and discovery leading to the recovery of weapons of offence and the clothes are fraught with infrmities.22. We are mindful of the fact that it is for the accused to offer an explanation as to his knowledge about the concealment. However, in the facts of the case, in the backdrop of the aforesaid extremely unsatisfactory nature of the discovery, we are afraid to hold that the circumstance of recovery of the weapons of offence and the clothes, at the instance of accused no.2, can be said to have been fully and conclusively established.23. The thrust of the submission on behalf of the prosecution was that on 27th April 2014, the deceased Somnath and accused no.2 had taken the deceased Pushpa to the forest on the pretext of collecting frewood at about 9:00 p.m. Only Somnath and accused No.2 returned. The deceased Pushpa did not return.24. The testimony of Shevantabai (PW-2) was banked upon to sustain the circumstance of the deceased having been last seen in the company of the deceased Somnath and accused no.2. Indeed, Shevantabai (PW-2) stood her ground during the course of cross-examination and declined to cave in to the suggestion that it was the deceased Somnath alone who had taken the deceased Pushpa to the forest. In contrast, Hemanti Somnath Chaudhari (PW-6), the sister of the deceased went on to assert that on 27th April 2014, accused no.2-Sitaram was at his home at Melanpada and had not came to their house.25. The situation which thus emerges is that there is an inconsistency as regards the accused no.2 also having accompanied the deceased Somnath and deceased Pushpa to the forest. Both were the ordinary residents of the house of the deceased Pushpa and had the opportunity to notice the events which unfolded. In the absence of further corroboration to the claim of Shevantabai (PW-2) from any other source, a reasonable doubt arises as to whether the accused no.2 had also accompanied the deceased Somnath and Pushpa.26. Even if we proceed on the premise that the accused no.2 did accompany the deceased Somnath and Pushpa to forest, the question of application of the principle of last seen and the consequences which emanate therefrom warrants consideration. It is trite law that the principle of last seen comes into play where the interval between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the perpetrator of the offence is ruled out. An interval of considerable period between two events, namely the deceased being seen alive in the company of the accused and the death of the deceased, gives rise to the possibility of persons other than the accused playing a role.27. A proftable reference, especially with regard to the time gap between the two events, can be made to a judgment of the Supreme Court in the case of State Of Goa vs. Sanjay Thakran And Anr. (2007) 3 SCC 755 wherein, after adverting to the previous pronouncements, the legal position was expounded in the following words :-34 From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for fnding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of ) a considerable long duration. There can be no fxed or straightjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.29. A useful reference can also be made to the judgment of the Supreme Court in the case of Ganpat Singh Vs. State of Madhya Pradesh(2017) 16 SCC 353 on which reliance was placed by the learned counsel for the appellant. The Supreme Court expounded the formulation of law on the aspect of last seen in the following words :10 Evidence that the accused was last seen in the company of the deceased assumes signifcance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law is as follows :The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be diffcult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases30. It would be contextually relevant to consider the aspect of the failure of the accused no.2 to offer any explanation as to the circumstances of the transaction which resulted in the death of the deceased Pushpa. An inference was drawn against the accused no.2 that the learned Additional Sessions Judge as Shevantabai (PW-2) deposed that the accused no.2 did not disclose the whereabouts of the deceased Pushpa when being inquired about. This warrants a correct understanding of the nature of the burden under section 106 of the Evidence Act, 1872.31. The burden to establish the guilt of the accused primarily rests upon the prosecution. Section 106 of the Evidence Act does not relieve the prosecution of its general or primary burden of establishing the guilt of the accused beyond reasonable doubt. In the case of Sawal Das Vs. State of Bihar(1974) 4 SCC 193 , the Supreme Court enunciated the law in clear and explicit terms, as under :-10 Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused.The application of the principle contained in section 106 of the Evidence Act was expounded by the Supreme Court in the case of State of Rajasthan Vs. Kashi Ram(2006) 12 SCC 254 , in the following words :-23………………..The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218.33. In view of the aforesaid exposition of the legal position, two postulates emerge. One, if the deceased is last seen alive with the accused, in proximity of the time, at which the deceased is found dead, the accused must offer an explanation as to how and under what circumstances he parted company with the deceased. Two, the failure of the accused to offer reasonable explanation in discharge of the said burden provides an additional link in the chain of circumstances proved against the accused.34. Reverting to the facts of the case, frstly, it is pertinent to note that the very fact as to whether the accused no.2 was also last seen in the company of the deceased is in the corridor of uncertainty. As indicated above, the evidence of Shevantabai (PW-2), on this aspect, stands contradicted by the stand of Hemanti (PW-6) and there is no other material which lends support to the claim of Shevantabai (PW-2). Secondly, the fact that accused no.2 is not an ordinary resident of the house of the deceased can also not be lost sight of. Thirdly, the contemporaneous conduct of accused No.2 also becomes relevant. There is evidence to indicate that in contradistinction to the steadfast refusal of the deceased Somnath to join the search party, the accused no.2 had joined the family members and relatives of the deceased in the search of the deceased. Fourthly, in totality of the circumstances, in absence of any other evidence, which incriminates the accused No.2, it would be rather hazardous to base the conviction on the sole circumstance of last seen.35. The upshot of the aforesaid consideration is that the prosecution has not succeeded in establishing the circumstances arrayed against the accused fully. In view of the failure of the prosecution to establish the discoveries to the hilt, the chain of circumstances gets snapped. At best, the prosecution can be said to have established the circumstance of last seen. It may, again at best, lead to a suspicion. However, it is trite law that suspicion, howsoever strong, cannot take the place of legal proof. It is, thus, said that there is a long mental distance between may be true and must be true, which separates the surmises and conjectures from conclusions based on surer evidentiary foundation. | 1 | 6,209 | 3,872 | ### 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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that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases 30. It would be contextually relevant to consider the aspect of the failure of the accused no.2 to offer any explanation as to the circumstances of the transaction which resulted in the death of the deceased Pushpa. An inference was drawn against the accused no.2 that the learned Additional Sessions Judge as Shevantabai (PW-2) deposed that the accused no.2 did not disclose the whereabouts of the deceased Pushpa when being inquired about. This warrants a correct understanding of the nature of the burden under section 106 of the Evidence Act, 1872. 31. The burden to establish the guilt of the accused primarily rests upon the prosecution. Section 106 of the Evidence Act does not relieve the prosecution of its general or primary burden of establishing the guilt of the accused beyond reasonable doubt. In the case of Sawal Das Vs. State of Bihar (1974) 4 SCC 193 , the Supreme Court enunciated the law in clear and explicit terms, as under :- 10 Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. 32. Section 106 of the Evidence Act comes into play where the prosecution succeeds in discharging its primary burden and adduces evidence which indicates that the facts, thereby proved, rest within the special knowledge of the accused. The application of the principle contained in section 106 of the Evidence Act was expounded by the Supreme Court in the case of State of Rajasthan Vs. Kashi Ram (2006) 12 SCC 254 , in the following words :- 23………………..The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218. 33. In view of the aforesaid exposition of the legal position, two postulates emerge. One, if the deceased is last seen alive with the accused, in proximity of the time, at which the deceased is found dead, the accused must offer an explanation as to how and under what circumstances he parted company with the deceased. Two, the failure of the accused to offer reasonable explanation in discharge of the said burden provides an additional link in the chain of circumstances proved against the accused. 34. Reverting to the facts of the case, frstly, it is pertinent to note that the very fact as to whether the accused no.2 was also last seen in the company of the deceased is in the corridor of uncertainty. As indicated above, the evidence of Shevantabai (PW-2), on this aspect, stands contradicted by the stand of Hemanti (PW-6) and there is no other material which lends support to the claim of Shevantabai (PW-2). Secondly, the fact that accused no.2 is not an ordinary resident of the house of the deceased can also not be lost sight of. Thirdly, the contemporaneous conduct of accused No.2 also becomes relevant. There is evidence to indicate that in contradistinction to the steadfast refusal of the deceased Somnath to join the search party, the accused no.2 had joined the family members and relatives of the deceased in the search of the deceased. Fourthly, in totality of the circumstances, in absence of any other evidence, which incriminates the accused No.2, it would be rather hazardous to base the conviction on the sole circumstance of last seen. 35. The upshot of the aforesaid consideration is that the prosecution has not succeeded in establishing the circumstances arrayed against the accused fully. In view of the failure of the prosecution to establish the discoveries to the hilt, the chain of circumstances gets snapped. At best, the prosecution can be said to have established the circumstance of last seen. It may, again at best, lead to a suspicion. However, it is trite law that suspicion, howsoever strong, cannot take the place of legal proof. It is, thus, said that there is a long mental distance between may be true and must be true, which separates the surmises and conjectures from conclusions based on surer evidentiary foundation.
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when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be diffcult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases30. It would be contextually relevant to consider the aspect of the failure of the accused no.2 to offer any explanation as to the circumstances of the transaction which resulted in the death of the deceased Pushpa. An inference was drawn against the accused no.2 that the learned Additional Sessions Judge as Shevantabai (PW-2) deposed that the accused no.2 did not disclose the whereabouts of the deceased Pushpa when being inquired about. This warrants a correct understanding of the nature of the burden under section 106 of the Evidence Act, 1872.31. The burden to establish the guilt of the accused primarily rests upon the prosecution. Section 106 of the Evidence Act does not relieve the prosecution of its general or primary burden of establishing the guilt of the accused beyond reasonable doubt. In the case of Sawal Das Vs. State of Bihar(1974) 4 SCC 193 , the Supreme Court enunciated the law in clear and explicit terms, as under :-10 Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused.The application of the principle contained in section 106 of the Evidence Act was expounded by the Supreme Court in the case of State of Rajasthan Vs. Kashi Ram(2006) 12 SCC 254 , in the following words :-23………………..The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218.33. In view of the aforesaid exposition of the legal position, two postulates emerge. One, if the deceased is last seen alive with the accused, in proximity of the time, at which the deceased is found dead, the accused must offer an explanation as to how and under what circumstances he parted company with the deceased. Two, the failure of the accused to offer reasonable explanation in discharge of the said burden provides an additional link in the chain of circumstances proved against the accused.34. Reverting to the facts of the case, frstly, it is pertinent to note that the very fact as to whether the accused no.2 was also last seen in the company of the deceased is in the corridor of uncertainty. As indicated above, the evidence of Shevantabai (PW-2), on this aspect, stands contradicted by the stand of Hemanti (PW-6) and there is no other material which lends support to the claim of Shevantabai (PW-2). Secondly, the fact that accused no.2 is not an ordinary resident of the house of the deceased can also not be lost sight of. Thirdly, the contemporaneous conduct of accused No.2 also becomes relevant. There is evidence to indicate that in contradistinction to the steadfast refusal of the deceased Somnath to join the search party, the accused no.2 had joined the family members and relatives of the deceased in the search of the deceased. Fourthly, in totality of the circumstances, in absence of any other evidence, which incriminates the accused No.2, it would be rather hazardous to base the conviction on the sole circumstance of last seen.35. The upshot of the aforesaid consideration is that the prosecution has not succeeded in establishing the circumstances arrayed against the accused fully. In view of the failure of the prosecution to establish the discoveries to the hilt, the chain of circumstances gets snapped. At best, the prosecution can be said to have established the circumstance of last seen. It may, again at best, lead to a suspicion. However, it is trite law that suspicion, howsoever strong, cannot take the place of legal proof. It is, thus, said that there is a long mental distance between may be true and must be true, which separates the surmises and conjectures from conclusions based on surer evidentiary foundation.
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Devilal Modi, Proprietor, M/S. Daluram Pannalal Modi Vs. Sales Tax Officer, Ratlam And Others | Court in Amalgamated Coalfields Ltd. and Ors. v. The Janapada Sabha Chhindwara 1962-1 SCR 1 : (AIR 1961 SC 964 ). At the time when the appeal of the Amalgamated Coalfields Ltd. was argued before this Court, some new point of law were sought to be raised, but this Court did not allow them to be raised on the ground that they should have been raised at an earlier stage. When a similar order was passed against the said Company for a subsequent year, the said additional points were raised by it in its petition before the High Court. The High Court held that it was not open to the Company to raise those points on the ground of constructive res judicata; and that brought the Company to this Court in appeal by special leave. This Court held, that the High Court was in error in holding that the principle of constructive res judicata precluded the Company from raising the said points. Accordingly, the merits of the said points were considered and in fact, the said points were upheld. In dealing with the question of constructive res judicata, this Court observed that constructive res judicata was an artificial form of res judicata enacted by S. 11 of the Code of Civil Procedure and it should not be generally applied to writ petition filed under Art. 32 or Art. 226.10. It was in that connection that this Court also pointed out that the appeal before the Court was in relation to an assessment levied for a different year, and that made the doctrine of res judicata itself inapplicable. Mr. Trivedi contends that in dealing with writ petitions, no distinction should be made between cases where the impugned order of assessment is in respect of the same year or for different years, and in support of this contention, he relied on the general observations made by this Court in the Amalgamated Coalfields Ltd. (1963) Supp (1) SCR 172 : (AIR 1964 SC 1013 ) (supra). In our opinion, the said general observations must be read in the light of the important fact that the order which was challenged in the second writ petition was in relation to a different period and not for the same period as was covered by the earlier petition.11. As we have already mentioned, though the Courts dealing with the questions of the infringement of fundamental rights must consistently endeavour to sustain the said rights and should strike down their unconstitutional invasion, it would not be right to ignore the principle of res judicata altogether in dealing with writ petitions filed by citizens alleging the contravention of their fundamental rights. Considerations of public policy cannot be ignored in such cases, and the basic doctrine that judgments pronounced by this Court are binding and must be regarded as final between the parties in respect of matters covered by them must receive due consideration.12. The result of the decision of this Court in the earlier appeal brought by the appellant before it is clear and unambiguous, and that is that the appellant had failed to challenge the validity of the impugned order which had been passed by the Assistant Commissioner against him. In other words, the effect of the earlier decision of this Court is that the appellant is liable to pay the tax and penalty imposed on him by the impugned order. It would, we think, be unreasonable to suggest that after this judgment was pronounced by this Court, it should still be open to the appellant to file a subsequent writ petition before the Madhya Pradesh High Court and urge that the said impugned order was invalid for some additional grounds. In case the Madhya Pradesh High Court had upheld these contentions and had given effect to its decision, its order would have been plainly inconsistent with the earlier decision of this Court, and that would be inconsistent with the finality which must attach to the decisions of this Court as between the parties before it in respect of the subject-matter directly covered by the said decision. Considerations of public policy and the principle of the finality of judgments are important constituents of the rule of law and they cannot be allowed to be violated just because a citizen contends that his fundamental rights have been contravened by an impugned order and wants liberty to agitate the question about its validity by filing one writ petition after another.13. The present proceedings illustrate how a citizen who has been ordered to pay a tax can postpone the payment of the tax by prolonging legal proceedings interminably. We have already seen that in the present case the appellants sought to raise additional points when he brought his appeal before this Court by special leave; that is to say, he did not take all the points in the Writ Petition and thought of taking new points in appeal. When leave was refused to him by this Court to take those points in appeal, he filed a new petition in the High Court and took those points, and finding that the High Court held decided against him on the merits of those points, he has come to this Court; but that is not all. At the hearing of this appeal, he had filed another petition asking for leave from this Court to take some more additional points and that shows that if constructive res judicata is not applied to such proceedings a party can file as many writ petitions as he likes and take one or two points every time. That clearly is opposed to considerations of public policy on which res judicata is based and would mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by this Court would also be materially affected. We are, therefore, satisfied that the second writ petition filed by the appellant in the present case is barred by constructive res judicata.14. | 0[ds]7. There can be no doubt that the fundamental rights guaranteed to the citizens are a significant feature of our Constitution and the High Courts under Art. 226 are bound to protect these fundamental rights. There can also be no doubt that if a case is made out for the exercise of its jurisdiction under Art. 226 in support of a citizens fundamental rights, the High Court will not hesitate to exercise that jurisdiction. But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by Courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no" one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fairplay and justice, vide Daryao v. State of U. P. 1962-1 SCR 574 : (AIR-1961 SC 1457) :8. It may be conceded in favour of Mr. Trivedi that the rule of constructive res judicata which is pleaded against him in the present appeal is in a sense a somewhat technical or artificial rule prescribed by theCode of Civil Procedure. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have justour opinion, the said general observations must be read in the light of the important fact that the order which was challenged in the second writ petition was in relation to a different period and not for the same period as was covered by the earlier petition.As we have already mentioned, though the Courts dealing with the questions of the infringement of fundamental rights must consistently endeavour to sustain the said rights and should strike down their unconstitutional invasion, it would not be right to ignore the principle of res judicata altogether in dealing with writ petitions filed by citizens alleging the contravention of their fundamental rights. Considerations of public policy cannot be ignored in such cases, and the basic doctrine that judgments pronounced by this Court are binding and must be regarded as final between the parties in respect of matters covered by them must receive due consideration.The result of the decision of this Court in the earlier appeal brought by the appellant before it is clear and unambiguous, and that is that the appellant had failed to challenge the validity of the impugned order which had been passed by the Assistant Commissioner against him. In other words, the effect of the earlier decision of this Court is that the appellant is liable to pay the tax and penalty imposed on him by the impugned order. It would, we think, be unreasonable to suggest that after this judgment was pronounced by this Court, it should still be open to the appellant to file a subsequent writ petition before the Madhya Pradesh High Court and urge that the said impugned order was invalid for some additional grounds. In case the Madhya Pradesh High Court had upheld these contentions and had given effect to its decision, its order would have been plainly inconsistent with the earlier decision of this Court, and that would be inconsistent with the finality which must attach to the decisions of this Court as between the parties before it in respect of the subject-matter directly covered by the said decision. Considerations of public policy and the principle of the finality of judgments are important constituents of the rule of law and they cannot be allowed to be violated just because a citizen contends that his fundamental rights have been contravened by an impugned order and wants liberty to agitate the question about its validity by filing one writ petition after another.The present proceedings illustrate how a citizen who has been ordered to pay a tax can postpone the payment of the tax by prolonging legal proceedings interminably. We have already seen that in the present case the appellants sought to raise additional points when he brought his appeal before this Court by special leave; that is to say, he did not take all the points in the Writ Petition and thought of taking new points in appeal. When leave was refused to him by this Court to take those points in appeal, he filed a new petition in the High Court and took those points, and finding that the High Court held decided against him on the merits of those points, he has come to this Court; but that is not all. At the hearing of this appeal, he had filed another petition asking for leave from this Court to take some more additional points and that shows that if constructive res judicata is not applied to such proceedings a party can file as many writ petitions as he likes and take one or two points every time. That clearly is opposed to considerations of public policy on which res judicata is based and would mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by this Court would also be materially affected. We are, therefore, satisfied that the second writ petition filed by the appellant in the present case is barred by constructive res judicata. | 0 | 2,914 | 1,088 | ### Instruction:
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Court in Amalgamated Coalfields Ltd. and Ors. v. The Janapada Sabha Chhindwara 1962-1 SCR 1 : (AIR 1961 SC 964 ). At the time when the appeal of the Amalgamated Coalfields Ltd. was argued before this Court, some new point of law were sought to be raised, but this Court did not allow them to be raised on the ground that they should have been raised at an earlier stage. When a similar order was passed against the said Company for a subsequent year, the said additional points were raised by it in its petition before the High Court. The High Court held that it was not open to the Company to raise those points on the ground of constructive res judicata; and that brought the Company to this Court in appeal by special leave. This Court held, that the High Court was in error in holding that the principle of constructive res judicata precluded the Company from raising the said points. Accordingly, the merits of the said points were considered and in fact, the said points were upheld. In dealing with the question of constructive res judicata, this Court observed that constructive res judicata was an artificial form of res judicata enacted by S. 11 of the Code of Civil Procedure and it should not be generally applied to writ petition filed under Art. 32 or Art. 226.10. It was in that connection that this Court also pointed out that the appeal before the Court was in relation to an assessment levied for a different year, and that made the doctrine of res judicata itself inapplicable. Mr. Trivedi contends that in dealing with writ petitions, no distinction should be made between cases where the impugned order of assessment is in respect of the same year or for different years, and in support of this contention, he relied on the general observations made by this Court in the Amalgamated Coalfields Ltd. (1963) Supp (1) SCR 172 : (AIR 1964 SC 1013 ) (supra). In our opinion, the said general observations must be read in the light of the important fact that the order which was challenged in the second writ petition was in relation to a different period and not for the same period as was covered by the earlier petition.11. As we have already mentioned, though the Courts dealing with the questions of the infringement of fundamental rights must consistently endeavour to sustain the said rights and should strike down their unconstitutional invasion, it would not be right to ignore the principle of res judicata altogether in dealing with writ petitions filed by citizens alleging the contravention of their fundamental rights. Considerations of public policy cannot be ignored in such cases, and the basic doctrine that judgments pronounced by this Court are binding and must be regarded as final between the parties in respect of matters covered by them must receive due consideration.12. The result of the decision of this Court in the earlier appeal brought by the appellant before it is clear and unambiguous, and that is that the appellant had failed to challenge the validity of the impugned order which had been passed by the Assistant Commissioner against him. In other words, the effect of the earlier decision of this Court is that the appellant is liable to pay the tax and penalty imposed on him by the impugned order. It would, we think, be unreasonable to suggest that after this judgment was pronounced by this Court, it should still be open to the appellant to file a subsequent writ petition before the Madhya Pradesh High Court and urge that the said impugned order was invalid for some additional grounds. In case the Madhya Pradesh High Court had upheld these contentions and had given effect to its decision, its order would have been plainly inconsistent with the earlier decision of this Court, and that would be inconsistent with the finality which must attach to the decisions of this Court as between the parties before it in respect of the subject-matter directly covered by the said decision. Considerations of public policy and the principle of the finality of judgments are important constituents of the rule of law and they cannot be allowed to be violated just because a citizen contends that his fundamental rights have been contravened by an impugned order and wants liberty to agitate the question about its validity by filing one writ petition after another.13. The present proceedings illustrate how a citizen who has been ordered to pay a tax can postpone the payment of the tax by prolonging legal proceedings interminably. We have already seen that in the present case the appellants sought to raise additional points when he brought his appeal before this Court by special leave; that is to say, he did not take all the points in the Writ Petition and thought of taking new points in appeal. When leave was refused to him by this Court to take those points in appeal, he filed a new petition in the High Court and took those points, and finding that the High Court held decided against him on the merits of those points, he has come to this Court; but that is not all. At the hearing of this appeal, he had filed another petition asking for leave from this Court to take some more additional points and that shows that if constructive res judicata is not applied to such proceedings a party can file as many writ petitions as he likes and take one or two points every time. That clearly is opposed to considerations of public policy on which res judicata is based and would mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by this Court would also be materially affected. We are, therefore, satisfied that the second writ petition filed by the appellant in the present case is barred by constructive res judicata.14.
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under Art. 226 are bound to protect these fundamental rights. There can also be no doubt that if a case is made out for the exercise of its jurisdiction under Art. 226 in support of a citizens fundamental rights, the High Court will not hesitate to exercise that jurisdiction. But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by Courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no" one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fairplay and justice, vide Daryao v. State of U. P. 1962-1 SCR 574 : (AIR-1961 SC 1457) :8. It may be conceded in favour of Mr. Trivedi that the rule of constructive res judicata which is pleaded against him in the present appeal is in a sense a somewhat technical or artificial rule prescribed by theCode of Civil Procedure. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have justour opinion, the said general observations must be read in the light of the important fact that the order which was challenged in the second writ petition was in relation to a different period and not for the same period as was covered by the earlier petition.As we have already mentioned, though the Courts dealing with the questions of the infringement of fundamental rights must consistently endeavour to sustain the said rights and should strike down their unconstitutional invasion, it would not be right to ignore the principle of res judicata altogether in dealing with writ petitions filed by citizens alleging the contravention of their fundamental rights. Considerations of public policy cannot be ignored in such cases, and the basic doctrine that judgments pronounced by this Court are binding and must be regarded as final between the parties in respect of matters covered by them must receive due consideration.The result of the decision of this Court in the earlier appeal brought by the appellant before it is clear and unambiguous, and that is that the appellant had failed to challenge the validity of the impugned order which had been passed by the Assistant Commissioner against him. In other words, the effect of the earlier decision of this Court is that the appellant is liable to pay the tax and penalty imposed on him by the impugned order. It would, we think, be unreasonable to suggest that after this judgment was pronounced by this Court, it should still be open to the appellant to file a subsequent writ petition before the Madhya Pradesh High Court and urge that the said impugned order was invalid for some additional grounds. In case the Madhya Pradesh High Court had upheld these contentions and had given effect to its decision, its order would have been plainly inconsistent with the earlier decision of this Court, and that would be inconsistent with the finality which must attach to the decisions of this Court as between the parties before it in respect of the subject-matter directly covered by the said decision. Considerations of public policy and the principle of the finality of judgments are important constituents of the rule of law and they cannot be allowed to be violated just because a citizen contends that his fundamental rights have been contravened by an impugned order and wants liberty to agitate the question about its validity by filing one writ petition after another.The present proceedings illustrate how a citizen who has been ordered to pay a tax can postpone the payment of the tax by prolonging legal proceedings interminably. We have already seen that in the present case the appellants sought to raise additional points when he brought his appeal before this Court by special leave; that is to say, he did not take all the points in the Writ Petition and thought of taking new points in appeal. When leave was refused to him by this Court to take those points in appeal, he filed a new petition in the High Court and took those points, and finding that the High Court held decided against him on the merits of those points, he has come to this Court; but that is not all. At the hearing of this appeal, he had filed another petition asking for leave from this Court to take some more additional points and that shows that if constructive res judicata is not applied to such proceedings a party can file as many writ petitions as he likes and take one or two points every time. That clearly is opposed to considerations of public policy on which res judicata is based and would mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by this Court would also be materially affected. We are, therefore, satisfied that the second writ petition filed by the appellant in the present case is barred by constructive res judicata.
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State of M.P. Vs. Mahalaxmi Fabric Mills Limited and Ors | of Rs. 5.30 per tonne to Rs. 70 per tonne w.e.f. 1.3.1991. These rates have not been made applicable to the States of Assam and West Bengal because these States are levying/ collecting cesses on coal as their Cess Acts have not been struck down by the Courts so far. Placing reliance on these averments, of the concerned authorities it was vehemently contended by Mr. Sorabajee and Mr. Ramaswamy that the impugned Notification is issued not for the purpose of development of mineral as contemplated by Section 9(3) but entirely for a collect oral purpose of compensating the State Governments for the loss of cess revenues and for swelling their coffers. It is not possible to agree with this contention. The aforesaid averments clearly indicate that from 1981 rates of royalty were not increased further and there was a demand from all States to make suitable increase in rates of royalty to be commensurate with the rising prices of coal. That is why the first study group was appointed in 1984 and that was followed by second study group of 1991. Naturally the second study group came to the conclusion that the cesses imposed were struck down by this Court and, therefore, there was a need for properly enhancing royalty rates. As Section 9(3) is the only Section remaining in field which could permit such an exercise and it was only the Central Government which could do so, accordingly the impugned Notification has been issued. It tried to enhance the rates of royalty which earlier the States unauthorisedly tried to bring about. If the original writ petitioners contentions are accepted, it could even be contended that neither the Central Government under Section 9(3) nor the State Governments could increase the rates of royalty and 1981 rates which have become illusory with the passage of time continue to hold the field ad infinitum. It has to be kept in view that a fresh exercise of delegated legislative function in the facts and circumstances did justify such enhancement at least after 10 years of the earlier revision in 1981. The motive underlying the said enhancement to compensate the States for loss of revenue which they have suffered cannot be said to be totally irrelevant or having any vitiating effect on the exercise of power under Section 9(3) which is otherwise required to be resorted to in the facts and circumstances of the case. The motive of legislature or for that matter of the delegate in exercising delegated legislative function for enacting a provision within its competence cannot be considered to be in any way having any relevant nexus to the efficacy of the product of such an exercise. As we have already discussed earlier, the mineral belongs to the States, and so, if the Central Government has taken into consideration the fact that the States revenues are required to be re-compensated on account of the loss suffered by them in their abortive efforts to escalate the royalty, it cannot be considered to be an irrelevant consideration. It clearly appeared that after 10 years from 1981 during which the royalty rates remained static there was a crying need of the day for the Central Government to exercise its power under Section 9(3) and to revise upward the royalty rates in conformity with the rising prices of the minerals around as mentioned in the counter and for which there was a strong representation by the various States Governments to the Central Government. With respect we are not in a position to endorse the view of the High Court that the impugned Notification was a colourable devise and was issued for extraneous. Equally, we are not in a position to agree with the contention of Shri Ramaswamy that the said Notification was issued for an alien purpose. The third point for our consideration is, therefore, answered in the negative. Point No. 4 27. So far as this point is concerned, it is true that even the exercise of delegated power can be challenged on the ground that that it is highly arbitrary, irrational and confiscatory in nature and would not stand the test of Articles 14 and 19(1)(g). Learned counsel for the writ petitioners submitted that as compared to the rates of royalty fixed in 1981, the present rates have gone up by 200 to 400 per cent and, therefore, they have become confiscatory in nature. It is not possible to agree with the contention as the writ petitioners have laid no evidence to show as to how this escalation of rates for different types of coal extracted by the lessee of mines had adversely affected their business or that they are thrown out of business because of such heavy burden of escalated royalty. It is not the case of any of writ petitioners that their mining operations had to be closed down because of such high rates of royalty as enhanced by the impugned Notification. Also there is nothing on record to show whether the burden of this enhanced rates of royalty is borne only by the lessee of the mines who have extracted the minerals and has not been passed on to the customers by adding it to the price of coal. As all these are questions of facts there should be clear pleading and proof. There is no such material on the record from which on the basis of such arguments any decision can be rendered. Only on this short ground, we must hold that the original writ petitioners have failed to show how the enhanced rates of royalty as per the impugned Notification have become unreasonable or confiscatory in nature. Point No. 4 is, therefore, answered in the negative. 28. As all the points raised by the writ petitioners are answered against them, the inevitable result is that the orders passed by the High Court in their favour by partly allowing the writ petitions will have to be quashed and set aside and their writ petitions will have to stand dismissed. | 1[ds]12. It becomes obvious that Parliament while enacting Section 9 has already laid down the rates of royalty to be charged on the removal and consumption of mineral by any lessee of mining lease, his agent or manager or Sub-lessee, from the leased area. The rates of royalty are scheduled in the Act. So far as coal is concerned it is by Entry 11 of the Second Schedule. Separate rates of royalty are prescribed for different types of coal. However, the Parliament felt that these rates of royalty may be required to be enhanced or reduced from time to time due to fall of money value with the passage of time or vice versa. For that very purpose the Central Government as per section 9(3) is permitted by Parliament to amend the second Schedule by Notification to be published in official Gazette from time to time subject to the proviso that the Central Government shall not enhance mineral and mines royalty for more than once during the period of three years. The power conferred upon the Central Government under Section 9(3) is by way of delegated legislative power.13. In our considered opinion there is no substance in either of the twin contentions for challenging vires of Section 9(3). So far as competence to enact Section 9 is concerned, the question is no longer res Integra. It is covered by the Constitution Bench decision of this Court in the case India Cement Ltd. and Ors. v. State of Tamil Nadu and Ors. [1991]188ITR690(SC) . In that decision the Constitution bench speaking through Sabyasachi Mukherji J., as he then was, expressly rules that royalty is a tax and for imposing such royalty the State legislature will have no power under Entry 50 of the Second list. Mr. Sanghi contended that strictly royalty cannot be said to be a tax and to that extent the decision of the Constitution bench may appear to be erroneous. It is not possible to agree with this contention. In paragraph 34 of the report the Constitution Bench has made the following pertinent observations :34. In the aforesaid view of the matter, we are of the opinion that royalty is a tax, and as such a cess on royalty being a tax on royalty, is beyond the competence of the State legislature because Section 9 of the Central Act covers the field and the State legislature is denuded of its competence under Entry 23 of List II. In any event, we are of the opinion that cess on royalty cannot be sustained under. Entry 49 of List II as being a tax on land. Royalty on mineral rights is not a tax on land but a payment for the user of land.14. It is true that in paragraph 13 of the report the Constitution Bench noted the Judgments of Rajasthan, Punjab and Gujarat High Courts which had taken the view that royalty was not a tax and it is equally true that it is not expressly mentioned in the judgment of the Constitution Bench that these judgments were erroneous or were required to be over ruled. However on a conjoint reading of paras 31 and 34 of the report, it becomes obvious that the view that royalty is not a tax as expressed by these High Courts did not find favour with the Constitution Bench of this Court which took a contrary view. Therefore, these judgments necessarily stood over ruled, on this aspect. It is true that in the last line of paragraph 34 it is mentioned that royalty on mineral rights is not a tax on land but a payment for use of land but these observations are in connection with Entry 49 List II which deals with a tax on land. But so far as nature of royalty is concerned it is clearly rules to be a tax by the Constitution Bench, and that is the reason why the Constitution Bench reached the conclusion that any cess on the royalty would be a tax. It would be beyond legislative competence of the State legislature as Entry 50 in List II would be of on avail once the Parliament has occupied the field by enacting the Act, especially Section 9 thereof. The view of the Constitution Bench that royalty is a tax as found in paragraph 34 of the report can also be supported from other paragraphs of the report. In paragraph 23 of the report while agreeing with Mr. Nariman that royalty which is indirectly connected with land cannot be said to be a tax directly no land as a unit, it has been observed that no tax can be levied or leviable if no mining activities are carried on. Hence it is manifest that is not related to land as a unit which is the only method of valuation of land under Entry 49 of List II but is relatable to minerals extracted. Royalty is payable on a proportion of the minerals extracted. These observations in paragraph 23 clearly indicates that in view of the Constitution Bench, royalty was a tax which had a nexus with mining activities meaning thereby it was a tax on mineral rights. Similarly in para 27 of the report, the Constitution Bench noted with approval of the decision of the Division Bench of the High Court of Mysore in Laxminarayana Mining Co., Bangalore v. Taluk Dev. Board AIR (1972) Mys 299. In that case the Court was concerned with the Mysore Village Panchayats and Local Boards Act, 1959. Under the said Act the Board had sought to levy tax on mining activities carried on by the persons holding mineral concessions. The Mysore Court had observed that once the Parliament made a declaration by law that it is expedient in the public interest to make regulation of mines and minerals development under the control of the Union to the extent to which such regulation and development is undertaken by the law made by the Parliament, the power of the State legislature under entries 23 and 50 of List II got denuded. It would, therefore, be not said that even after passing of the Central Act, the State legislature by enacting Section 143 of the Act could confer power on the Taluk Board to levy tax on the mining activities carried on by the persons holding mineral concessions. The Constitution Bench then noted that at page 306 of the report of Mysore case it was held that royalty fixed under Section 9 of the Mines and Minerals Act was really a tax. It must be kept in view that this decision of the Mysore High Court was noticed by the Constitution Bench and was not dissented from. On the other hand it got approved by it. It must, therefore, be held that royalty imposed has to be treated as tax as ruled by the Constitution Bench of this Court in India Cement Case (supra). It is no doubt true that in the later decision of this Court in Orissa Cement Ltd. and Ors. etc. etc. v. State of Orissa and Ors. etc. etc. [1991]2SCR105 , a three-Judge Bench of this Court did not go into the question whether there was any typographical error in the judgment of the Constitution Bench as found in para 34 of its report when it held that royalty is a tax. But in view of what we have discussed above it becomes absolutely clear that there was no typographical error but on the contrary the said conclusion logically flew from the earlier paragraphs of the Judgment referred to by us hereinabove.15. Once the conclusion is reached that royalty is a tax, the next question arises whether Entry 50 of the State list can at all be resorted to for imposing such a tax by the State legislature.15. Once the conclusion is reached that royalty is a tax, the next question arises whether Entry 50 of the State list can at all be resorted to for imposing such a tax by the State legislature.Even that question is fully covered against the writ petitioners by the very same Constitution Bench Judgment of India Cement and Ors.In para 24 of the report it has been observed while repelling the contention of Mr. Krishnamurthy Iyer for the State of Timal Nadu that Entry 50 in List II of the Seventh Schedule can be of any avail, the Constitution Bench noted that Entry 23 of List II deals with regulation of mines and minerals development subject to provision of List I with respect to regulation and development under the control of the Union and Entry 54 in List I deals with regulation of mines and minerals under the control of Union declared by the Parliament by law to be expedient in public interest. Thereafter it was observed that even if minerals are part of the State list they are treated separately and, therefore, the principle that the specific excludes the general must be applied. In this connection reference was made to the case of H.R.S. Murthy v. Collector of Chittor [1964]6SCR666 , where it was held that cess on minerals would be covered by Entry 49 of List II. The Constitution Bench with regard to H.R.S. Murthys case observed in Paragraphs 29 and 30 of India Cement Ltd. case that attention of the Court was not invited to provisions of Mines and Minerals (DevelopmentRegulation) Act, 1957 and Section 9(3) thereof. Section 9(3) of the Act in terms States that royalties payable under the IInd Schedule of the Act shall not be enhanced more than once during the period of four years. It is, therefore, a clear bar on the State legislature taxing royalty so as to in fact amend IInd Schedule of the Central Act. As seen earlier in paragraph 32 of the report in India Cement case, it has been clearly mentioned that in view of the express provisions of MinesMinerals Act. 1957, Entry 50 cannot be of any assistance to sustain such legislation by the State. Oza J. in his concurring judgment has highlighted one additional dimension of the matter in para 40 of the report. It has been observed by Oza., that it is no doubt true that mineral is extracted from the land and is available but it could only be extracted if there are three things :(1) land from which mineral would be extracted. (2) capital for providing machinery, instruments and other requirements, and (3) labour. It is, therefore, clear that unit of charge of royalty is not only land but land + labour + capital. It is also clear that if royalty is a tax or an imposition or a levy, it is not on land alone but it is a levy or a tax on mineral, including land, labour and capital employed in extraction of the mineral. It is therefore clear that royalty if imposed by the Parliament could only be a tax not only on land but also on these three things stated above.16. In view of the decision of Constitution Bench it is no longer open to the writ petitioners to submit that Entry 50 of List II can still be available to State legislature. It is easy to visualise that once the Parliament has occupied the field in connection with regulation of mines and minerals development in the country and when the Parliament declares that it is expedient in the public interest so to do, Entry 23 of the State list regarding regulation of mines and minerals development would be of no avail to the State legislature as Entry 23 List II is subject to the provision of List I, nor will Entry 50 of the State list can be of any assistance to the State authorities. In short, both, the entries will be out of way in enacting appropriate legislation imposing the rates of royalty to be paid by those who extract minerals in the country. Once these Entries are out of picture, it is Entry 54 in the Union list which will operate and the imposition of tax on minerals extracted would be squarely got covered by Entry 54 of the Union list. To recapitulate, as the entire Act has been upheld by this Court in its earlier decisions to which we have made reference in the light of Entry 54 of the Union list, Section 9 being part and parcel thereof cannot be out of the sweep of Entry 54. However, even assuming that there should be a specific taxing entry regarding taxing of royalty on mineral rights which can sustain such legislation under the said entry, being a topic of legislative power, we find that there is no such specific entry in Union list nor in State . list or concurrent list which can be of any assistance in this connection. Entry 50 in the State list is out of picture as we have seen earlier. In these circumstances the State legislature cannot rely on any entry in the State list or concurrent list for imposing such a tax once a valid legislation by Parliament under Entry 54 of the Union list is holding the field. In the alternative imposition of such hybrid tax on mines + capital + Labour would be covered by residuary Entry 97 of the Union list which empowers the parliament to enact laws on topics not covered by other specific entries in List II or List III. This conclusion squarely flows from the observations made by Oza J., in his concurring judgment in India Cement case. It must, therefore, be held that Section 9 of the Act is within the legislative competence of the parliament both under Entry 54 of the Union list as well as Entry 97 thereof. The first ground of attack on Section 9 by Shri Sanghi is thus devoid of substance and is, therefore, rejected.It must be kept in view that Parliament itself has laid down the rates of royalty in the IInd Schedule of the Act. However, the Parliament felt that with passage of time these rates of royalty may be to be suitably modified. This is obvious as the Act was enacted years back in 1957. The purchasing power of rupee went on falling year after year and decade after decade. Therefore, instead of Parliament itself every time being required to increase the rates, it is left to the Central Government to do so but it imposed certain fetters on the power of the Central Government. Firstly. the proviso of Section 9(3) clearly lays down that such enhancement should not be made before the end of four years and now after amendment before the end of three years. This itself indicates a guideline laid down by the Parliament that the rate of inflation and fall of money value of the rupee should be considered once in three years and that the royalty should be enhanced only once in three years. The second guideline in Section 9(3) is pertaining to the very topic of delegation of such legislative power. The Central Government has to keep in view the original rates mentioned in IInd Schedule in connection with different types of minerals and to suggest suitable enhancement once in three years depending upon the requirements of the States concerned for whom the royalty is meant. It is to be paid by holder of mining lease who extracts minerals. If a person is merely in occupation of land which contains mines and minerals, he is not liable to pay any royalty but it is only when he holds a mining lease and by virtue of that extracts one or more minerals then only he is called upon to pay royalty to the State Government as the lease is in respect of the land in which minerals vest in the State Government. This exercise is to be carried out keeping in view the very object and purpose of the Act, namely, regulation of mines and development of minerals which are the catch words of Entry 54 of List II under which the Act is enacted. Therefore, fixation of royalty should have a direct nexus with the minerals through out the country on uniform pattern so that activity of winning the minerals for the benefit of the lessee of such mining leases in the first instance and ultimately for the economy as a whole should not get in any way frustrated. There are sufficient guidelines from the Act to enable the Central Government to exercise its delegated legislative function in a just and proper manner keeping in view the uniform development of minerals through out the country. In this connection it is also necessary to keep in view Section 28 Sub-section (1) which provides that every rule or notification made by the Central Government be placed before each House of Parliament for a total period of 30 days in one session or two more successive session and if both Houses agree in making any modification in the rule or notification or both Houses agree that the rule or Notification should not be made, the rule or Notification shall thereafter have effect only in such modified form or be of no effect, as the case may be. When such a safety valve is provided it cannot be said that the exercise of delegated legislative power by Central Government in the first instance under section 9(3) would suffer from any excessive delegation of legislative power or effacement of legislative power of the Parliament.18. In our view the High Court correctly held that Section 9(3) does not suffer from any excessive delegation of legislative power.efore parting with this discussion we may deal with one more submission of Shri Sanghi, He submitted that earlier the legislation had itself provided in Section 9(3) a ceiling for enhancement of rates of royalty and to that extent there was a safety valve or guideline by Parliament. But after amendment this ceiling is given a goby and hence the Section has become arbitrary. It is not possible to agree with this contention for the obvious reason that whatever enhanced rate of royalty is fixed by Notification by the Central Government under Section 9(3), it has got to filtered through the process of Section 28(1) and if the Parliament finds the proposed hike to be uncalled for it may veto it out. There are sufficient guidelines as to for what purpose the royalty can be enhanced as discussed hereinabove, once in three years. In this connection we may profitably refer to the decision of this Court in the Case N.K. PapiahSons v. The Excise Commissioner and Anr [1975]3SCR607 . In that case this Court was concerned with the question of constitutional validity of Section 22 of Karnataka Excise Act. Section 22 conferred power on the Government to fix rates of excise duty. There was no guideline in Section 22 about upper limit of the duty which could be fixed. Repelling the contention that this had resulted in excessive delegated power, Mathew J. speaking for this Court held that power conferred on the Government by Section 22 was valid. From the mere fact that it is not certain whether the preamble of the Act gives any guidance for fixing the rate of excise duty, it cannot be said that the legislature has no control over the delegate; that requirement of laying of rules before the legislature is control over delegated legislation. The legislature may also retain its control over its delegate by exercising its power of repeal.19. In the case of Delhi Cloth and General Mills Co. Ltd., Arvind Mills Ltd. etc. etc. v. Union of India and Ors. etc. etc., [1983]3SCR438 , another Bench of this Court speaking through Desai J. held that the provision of Sections 58A and 642 of the Companies Act requiring every rule enacted in exercise of the power conferred by it must be placed before each House of Parliament for a period of 30 days and both Houses have power to suggest modification in the proposed rules to check any transgression of permissible limits of delegated legislation by the delegate, made the challenge on the ground of excessive delegation unsustainable. In view of this settled legal position in cannot be held that Section 9(3) suffers from any excessive delegation of legislative power. There is full control of parliament under Section 28 for checking such exercise of the delegate and for correcting the same, if found necessary. The second ground canvassed by Shri Sanghi for challenging the vires of Section 9(3) is also without any substance and stands rejected. Therefore, point No. 1 is answered in the negative.21. Having given our anxious consideration we find there is no substance in this contention. The reasons are obvious. The legislature has entrusted the Central Government with the power to enhance the rates of royalty from time to time. It is of course true that traditionally speaking royalty is an amount which is paid under contract of lease by the lessee to the lessor, namely, the State Governments concerned and it is commensurate with the quantity of minerals extracted. But we cannot lose sight of the fact that since 1981 such enhancement of royalty has not been done by the Central Government. Rates of royalty fixed before a decade, with the passage of time and fall in money value and increase in inflation would naturally become illusory. Therefore, the States would legitimately claim for increasing the rates of royalty. They unsuccessfully tried to do so themselves by imposing cesses on royalty. In these circumstances, it was perfectly open to the Central Government to exercise its power under Section 9(3) and enhance the rates of royalty so that loss to the States exchequer of the amounts which otherwise would have been available to the States could be compensated. It is not that the States were otherwise not entitled to the royalty amounts; but because of the operation of Section 9, the power of the States to enhance the royalty get vested in the Central Government. But once the rates are enhanced by the Central Government, the enhanced royalty was to be received by the State and same is to be recovered from concerned lessee of minerals. In fact Mr. Sanghi was right when he contended that there is no question of the royalty amounts being distributed by the Central to the States as per Articles 268 and 269 of the Constitution. That once royalty amounts are fixed by the Central Government under Section 9(3), the States automatically become entitled to receive the same from lessees of minerals who are allowed to extract them on payment of such amounts of royalty to the State which is the owner-lesser of these minerals. Enhancement of rates or royalty cannot be said to have no nexus with the development of minerals as contended by learned counsel for the writ petitioners, only because the enhanced rates of royalty are to go to swell the exchequers of concerned States.As pointed out in India Cement case, the Central Act bars an enhancement of the royalty directly or indirectly, except by the Union and in the manner specified by the 1957 Act.22. It becomes, therefore, clear that enhancing uniformly rates of royalty for the entire country even though minerals might be extracted from different States territory is necessary for having uniform pattern of price of minerals and that has a direct linkage with the development of minerals. It is also to be kept in view that regulating the rates of royally on extraction of minerals has also on important role to play in opening up new mining areas for winning minerals.It is obvious that rules framed under Section 18(2) have a direct nexus with the development of minerals. In this connection we may refer to Minerals Conservation and Development Rules, 1988 framed under Section 18 Sub-section (2) of the Act. It is true that these rules do not apply to coal but as laid down by Section 18(1) read with Section 30A even for mining leases for coal such rules in appropriate cases may be made applicable. Rule 45 of these rules deals with monthly, quarterly and annual returns by owners of every mine. When we refer to prescribed return from the owner of the mine we find from Form I-9 that Form I-1 will govern the monthly return for other mines and various information sought for iron ore in part I of the form. Item No. 4 in that part deals with rent and royalty paid. Thus royalty amount has to be mentioned in the form. It becomes, thus, clear that fixation of royalty rates is in the realm of development of minerals as envisaged by Section 18 of the Act. It is, therefore, not possible to agree with the learned counsel for the writ petitioners fixation of rates of royalty has nothing to do with the development of minerals.23. That takes us to the contention that even if it were so the impugned Notification is ultra vires Section 9(3) as it has nothing to do with the development of minerals. As we have already seen earlier, to have a uniform pattern of rates of royalty to be charged for extracting different qualities and quantities of minerals from different parts of the country is a very vital aspect of the development of minerals. It is true that one of the main objects of the Notification was for recompensating the loss suffered by States; but the facts remains that they suffered loss since the last hike in royalty was done in 1981 by the Central Government. It cannot be said that even as purchasing power of rupee had fallen and inflation had risen including the prices of coal in national and international market, there was no felt need for raising the rates of royalty to be charged for extraction of minerals like coal from the lease holders when the mineral belonged to the State. If the amount of royalty is so enhanced, it has to go to the coffers of the State concerned which is the owner of the mineral. This is a logical corollary of enhanced rates of royalty. It cannot be said to be an irrelevant consideration as tried to be suggested by the learned counsel for the petitioners. On the contrary, it was a relevant consideration because the States have to monitor the working of the mines and the income generating from extraction of minerals within their respective territories. If the Central Government exercised its power under Section 9(3) of the Act though belatedly in 1991 for bringing out this result, it cannot be said that it has done what is ultra vires or beyond the scope of Section 9(3) of the Act. In this connection we may keep in view the basic fact that mineral as found in the bowels of the earth or attached to earth surface by itself cannot develop. For developing it, it has to be brought on the surface and separated from the crust of the mother earth and that can be done by mining operation for winning these minerals. In this connection it is profitable to took at Section 3 of the Act. It defines minerals to include all minerals except mineral oils including natural gas and petroleum. Mining lease is defined to mean a lease granted for the purpose of undertaking mining operations and includes a Sub-lease granted for such purpose. Mining operation means any operations undertaken for the purpose of winning any mineral. It is obvious that development of mineral as envisaged by Section 18 of the Act and even by Entry 50 of List II of the Seventh Schedule of the Constitution, necessarily would mean extraction of mineral out of the bowels of earth or from crust of earth by mining operations. Therefore, the term development of minerals has a direct linkage with mining operation.24. It must therefor, be held that regulation of mines and development of minerals are interconnected concepts. Consequently, it is not possible to agree with the contention of the learned counsel for the writ petitioners that imposition of royalty has nothing to do with the development of minerals or that enhancing the rates of the royalty by the impugned Notification is extraneous to the purpose of developing mines but is solely for swelling the coffers of the States. Once that conclusion is reached, there would survive no question of Notification being issued partly for legitimate purpose of enhancing royalty rates after a decade from 1981 and partly for an irrelevant purpose of swelling the State exchequer. In fact the entire purpose of this exercise is for a legitimate relevant purpose for developing the minerals and enabling the State which are the owners thereof to properly manage the mining lease so that minerals can develop on a uniform pattern through out the country. In that view of the matter the submission made by Shri Ramaswamy relying on case S. Pratap Singh v. The State of Punjab (1966)ILLJ458SC that alien purpose cannot be mixed with statutory purpose is of no avail to him. The argument of Shri Sanghi relying upon the decision of this Court in case State of Haryana and Anr., Amrit Singh and Ors. v. Chanan Mal and Ors. State of Haryana and Ors., [1976]3SCR688 in para 23 at page 350 that declaration, under Section has a limited coverage also cannot be of any assistance to him for the simple reason that whatever may be covered by Section 2 declaration, it has definitely covered the imposition of royalty by the Parliament as held in the Constitution Bench decision of this Court in India Cement case (supra). As a result of this discussion it must be held that the impugned Notification cannot be said to be ultra vires of Section 9(2) of the Act. The second point is, therefore, answered in the negative.It has to be kept in view that it is an exercise of delegated legislative function entrusted to the Central Government by Parliament under Section 9(3). The concept of colourable legislation has a well defined connotation so far as parent legislation is concerned. If the legislation trespasses on a field not reserved for it under the relevant entry of the Seventh Schedule it can be said to be a colourable legislation meaning thereby it purports to get covered by an entry which does not give legislative competence to the legislature concerned to enact such a law.Adverting to the concept of colourable legislation a Constitution Bench of this Court in case of Federation of HotelRestaurant v. Union of India and Ors. , made the following pertinent observations :The constitutionality of the law becomes essentially a question of power which in a federal constitution, unlike a legally omnipotent legislature liked the British Parliament, turns upon the construction of the critics in the legislative lists. If a legislature with limited or qualified jurisdiction transgressed powers, such transgression may be open direct and overt or disguised indirect and covert. The latter kind of trespass is figuratively referred to as colourable legislation, connoting that although apparently the legislature purports to act within the limits of its own powers yet, in substance and in reality, it encroaches upon a field prohibited to it, requiring an examination, with some strictness, the substance of the legislation for the purpose of determining what is that the legislature was really doing. Wherever legislative powers are distributed between the Union and the States situations may arise where the two legislative fields might apparently overlap. It is the duty of the Courts, however, difficult it may be, to ascertain to what degree and to what extent, the authority to deal with matters falling within these classes of subjects exists in each legislature and to define in the particular case before them, the limits of the respective powers.26. It is obvious that this aspect of calculable legislation would not strictly apply while judging the legality of the exercise of the delegated legislative function. In fact it could not he contended by learned counsel for the writ petitioners that the Central Government had no power to act under Section 9(3). Therefore, in the strict sense, there is no question of the said Notification being a piece of colourable legislation touching upon the power of some other authority functioning under any other provision of delegated legislation. However, it has also to be observed that even in cases of delegated legislation, there are well defined limitations beyond which if such an exercise projects itself, it would become ultra vires the provision permitting such an exercise.It was submitted by the writ petitioners that though purporting to act under Section 9(3) of the Act and by which an effort was made by the Central Government to raise the rates of royalty, in substance they wanted only to augment the coffers of the State Government and nothing more and in that manner it was a colourable exercise of power on the part of the Central Government. While discussing Point No. 2, we have already repelled this contention. For the reasons recorded therein even this contention has to be rejected.Placing reliance on these averments, of the concerned authorities it was vehemently contended by Mr. Sorabajee and Mr. Ramaswamy that the impugned Notification is issued not for the purpose of development of mineral as contemplated by Section 9(3) but entirely for a collect oral purpose of compensating the State Governments for the loss of cess revenues and for swelling their coffers. It is not possible to agree with this contention. The aforesaid averments clearly indicate that from 1981 rates of royalty were not increased further and there was a demand from all States to make suitable increase in rates of royalty to be commensurate with the rising prices of coal. That is why the first study group was appointed in 1984 and that was followed by second study group of 1991. Naturally the second study group came to the conclusion that the cesses imposed were struck down by this Court and, therefore, there was a need for properly enhancing royalty rates. As Section 9(3) is the only Section remaining in field which could permit such an exercise and it was only the Central Government which could do so, accordingly the impugned Notification has been issued. It tried to enhance the rates of royalty which earlier the States unauthorisedly tried to bring about. If the original writ petitioners contentions are accepted, it could even be contended that neither the Central Government under Section 9(3) nor the State Governments could increase the rates of royalty and 1981 rates which have become illusory with the passage of time continue to hold the field ad infinitum. It has to be kept in view that a fresh exercise of delegated legislative function in the facts and circumstances did justify such enhancement at least after 10 years of the earlier revision in 1981. The motive underlying the said enhancement to compensate the States for loss of revenue which they have suffered cannot be said to be totally irrelevant or having any vitiating effect on the exercise of power under Section 9(3) which is otherwise required to be resorted to in the facts and circumstances of the case. The motive of legislature or for that matter of the delegate in exercising delegated legislative function for enacting a provision within its competence cannot be considered to be in any way having any relevant nexus to the efficacy of the product of such an exercise. As we have already discussed earlier, the mineral belongs to the States, and so, if the Central Government has taken into consideration the fact that the States revenues are required to be re-compensated on account of the loss suffered by them in their abortive efforts to escalate the royalty, it cannot be considered to be an irrelevant consideration. It clearly appeared that after 10 years from 1981 during which the royalty rates remained static there was a crying need of the day for the Central Government to exercise its power under Section 9(3) and to revise upward the royalty rates in conformity with the rising prices of the minerals around as mentioned in the counter and for which there was a strong representation by the various States Governments to the Central Government. With respect we are not in a position to endorse the view of the High Court that the impugned Notification was a colourable devise and was issued for extraneous. Equally, we are not in a position to agree with the contention of Shri Ramaswamy that the said Notification was issued for an alien purpose. The third point for our consideration is, therefore, answered in the negative.27. So far as this point is concerned, it is true that even the exercise of delegated power can be challenged on the ground that that it is highly arbitrary, irrational and confiscatory in nature and would not stand the test of Articles 14 and 19(1)(g). Learned counsel for the writ petitioners submitted that as compared to the rates of royalty fixed in 1981, the present rates have gone up by 200 to 400 per cent and, therefore, they have become confiscatory in nature. It is not possible to agree with the contention as the writ petitioners have laid no evidence to show as to how this escalation of rates for different types of coal extracted by the lessee of mines had adversely affected their business or that they are thrown out of business because of such heavy burden of escalated royalty. It is not the case of any of writ petitioners that their mining operations had to be closed down because of such high rates of royalty as enhanced by the impugned Notification. Also there is nothing on record to show whether the burden of this enhanced rates of royalty is borne only by the lessee of the mines who have extracted the minerals and has not been passed on to the customers by adding it to the price of coal. As all these are questions of facts there should be clear pleading and proof. There is no such material on the record from which on the basis of such arguments any decision can be rendered. Only on this short ground, we must hold that the original writ petitioners have failed to show how the enhanced rates of royalty as per the impugned Notification have become unreasonable or confiscatory in nature. Point No. 4 is, therefore, answered in the negative.28. As all the points raised by the writ petitioners are answered against them, the inevitable result is that the orders passed by the High Court in their favour by partly allowing the writ petitions will have to be quashed and set aside and their writ petitions will have to stand dismissedThat counter is found at page 52 in SLP (C) No. 8190/94. A combined counter was filed on behalf of the respondent Nos. 1, 3 and 4 in Misc. Petition No. 2907 of 1992 before the High Court in the case of M/s. Saurushtra CementChemicals India Ltd. and Another and it was relief upon by the concerned authorities in all the other cases. In the said counter at paragraph Q it has been averred that the State Government tried various methods for increasing their revenue from time to time as stated in the petition. The State Government enacted various Laws imposing Minerals Area Development and other cesses. These have been struck down by the Honble Supreme Court and the State Governments, therefore, were left with practical difficulties in making necessary financial arrangement. The matter was examined in details on the representation made by the various State Governments and after considering all aspect of the matter, a reasonable increase in the royalty was found justified and, therefore, the Central Government has issued the said Notification. That after revision of rates of royalty on coal in February, 1981 the next revision was due in February, 1985. Study group was appointed in 1984 to consider all aspects in depth regarding revision of rates of royalty on coal. The study group met representatives of the State Government and ascertained their views. It also issued a questionnaire to the State Governments, calling for data relating to production of coal, rates of royalty, cesses, if any levied by them and other relevant information. The study group found that most of the coal producing States were levying cesses and taxes on coal the incidence of which was much higher than that or royalty. Some of these taxes cesses were being levied as a percentage of the pit-head value of coal by the State Governments. All the State Governments represented to the Study group that the rates of royalty on coal should bear a close correlation with the prices of coal. The coal producing States, particularly West Bengal and Bihar pressed for fixation of royalty on ad valorem basis instead of the existing specific rates. The study group expressed its view that any levy of royalty on ad valorem basis, without a commitment from the State Governments to refrain from levying cesses, would not be equitable as it would have a cascading effect on the prices of coal paid by the consumers. Thereafter the counter referred to the striking down of cesses imposed by various State legislatures by this Court and then at paragraph T it is stated that Governments whose cess acts were declared unconstitutional and collection of cesses was stopped were suffering substantial losses of revenues, they approached the Central Government to revise the rates of royalty on coal immediately to help to get out of the financial crisis. It is further averred in the counter that in order to examine the requests of State Governments to increase the rates of royalty Department of Coal appointed yet another study group on 6th February, 1991 to examine the report of the earlier study group and recommend appropriate increase in royalty in the wake of the Supreme Courts Judgment in India Cements case and subsequent judgments of the High Courts. The study group discussed the issues with the representatives of the coal producing State Governments and considered their views. Then follows paragraph U which states that after considering the report of the second study group the rates of royalty on coal have been revised from an average of Rs. 5.30 per tonne to Rs. 70 per tonne w.e.f. 1.3.1991. These rates have not been made applicable to the States of Assam and West Bengal because these States are levying/ collecting cesses on coal as their Cess Acts have not been struck down by the Courts so far. | 1 | 13,811 | 7,668 | ### Instruction:
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of Rs. 5.30 per tonne to Rs. 70 per tonne w.e.f. 1.3.1991. These rates have not been made applicable to the States of Assam and West Bengal because these States are levying/ collecting cesses on coal as their Cess Acts have not been struck down by the Courts so far. Placing reliance on these averments, of the concerned authorities it was vehemently contended by Mr. Sorabajee and Mr. Ramaswamy that the impugned Notification is issued not for the purpose of development of mineral as contemplated by Section 9(3) but entirely for a collect oral purpose of compensating the State Governments for the loss of cess revenues and for swelling their coffers. It is not possible to agree with this contention. The aforesaid averments clearly indicate that from 1981 rates of royalty were not increased further and there was a demand from all States to make suitable increase in rates of royalty to be commensurate with the rising prices of coal. That is why the first study group was appointed in 1984 and that was followed by second study group of 1991. Naturally the second study group came to the conclusion that the cesses imposed were struck down by this Court and, therefore, there was a need for properly enhancing royalty rates. As Section 9(3) is the only Section remaining in field which could permit such an exercise and it was only the Central Government which could do so, accordingly the impugned Notification has been issued. It tried to enhance the rates of royalty which earlier the States unauthorisedly tried to bring about. If the original writ petitioners contentions are accepted, it could even be contended that neither the Central Government under Section 9(3) nor the State Governments could increase the rates of royalty and 1981 rates which have become illusory with the passage of time continue to hold the field ad infinitum. It has to be kept in view that a fresh exercise of delegated legislative function in the facts and circumstances did justify such enhancement at least after 10 years of the earlier revision in 1981. The motive underlying the said enhancement to compensate the States for loss of revenue which they have suffered cannot be said to be totally irrelevant or having any vitiating effect on the exercise of power under Section 9(3) which is otherwise required to be resorted to in the facts and circumstances of the case. The motive of legislature or for that matter of the delegate in exercising delegated legislative function for enacting a provision within its competence cannot be considered to be in any way having any relevant nexus to the efficacy of the product of such an exercise. As we have already discussed earlier, the mineral belongs to the States, and so, if the Central Government has taken into consideration the fact that the States revenues are required to be re-compensated on account of the loss suffered by them in their abortive efforts to escalate the royalty, it cannot be considered to be an irrelevant consideration. It clearly appeared that after 10 years from 1981 during which the royalty rates remained static there was a crying need of the day for the Central Government to exercise its power under Section 9(3) and to revise upward the royalty rates in conformity with the rising prices of the minerals around as mentioned in the counter and for which there was a strong representation by the various States Governments to the Central Government. With respect we are not in a position to endorse the view of the High Court that the impugned Notification was a colourable devise and was issued for extraneous. Equally, we are not in a position to agree with the contention of Shri Ramaswamy that the said Notification was issued for an alien purpose. The third point for our consideration is, therefore, answered in the negative. Point No. 4 27. So far as this point is concerned, it is true that even the exercise of delegated power can be challenged on the ground that that it is highly arbitrary, irrational and confiscatory in nature and would not stand the test of Articles 14 and 19(1)(g). Learned counsel for the writ petitioners submitted that as compared to the rates of royalty fixed in 1981, the present rates have gone up by 200 to 400 per cent and, therefore, they have become confiscatory in nature. It is not possible to agree with the contention as the writ petitioners have laid no evidence to show as to how this escalation of rates for different types of coal extracted by the lessee of mines had adversely affected their business or that they are thrown out of business because of such heavy burden of escalated royalty. It is not the case of any of writ petitioners that their mining operations had to be closed down because of such high rates of royalty as enhanced by the impugned Notification. Also there is nothing on record to show whether the burden of this enhanced rates of royalty is borne only by the lessee of the mines who have extracted the minerals and has not been passed on to the customers by adding it to the price of coal. As all these are questions of facts there should be clear pleading and proof. There is no such material on the record from which on the basis of such arguments any decision can be rendered. Only on this short ground, we must hold that the original writ petitioners have failed to show how the enhanced rates of royalty as per the impugned Notification have become unreasonable or confiscatory in nature. Point No. 4 is, therefore, answered in the negative. 28. As all the points raised by the writ petitioners are answered against them, the inevitable result is that the orders passed by the High Court in their favour by partly allowing the writ petitions will have to be quashed and set aside and their writ petitions will have to stand dismissed.
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third point for our consideration is, therefore, answered in the negative.27. So far as this point is concerned, it is true that even the exercise of delegated power can be challenged on the ground that that it is highly arbitrary, irrational and confiscatory in nature and would not stand the test of Articles 14 and 19(1)(g). Learned counsel for the writ petitioners submitted that as compared to the rates of royalty fixed in 1981, the present rates have gone up by 200 to 400 per cent and, therefore, they have become confiscatory in nature. It is not possible to agree with the contention as the writ petitioners have laid no evidence to show as to how this escalation of rates for different types of coal extracted by the lessee of mines had adversely affected their business or that they are thrown out of business because of such heavy burden of escalated royalty. It is not the case of any of writ petitioners that their mining operations had to be closed down because of such high rates of royalty as enhanced by the impugned Notification. Also there is nothing on record to show whether the burden of this enhanced rates of royalty is borne only by the lessee of the mines who have extracted the minerals and has not been passed on to the customers by adding it to the price of coal. As all these are questions of facts there should be clear pleading and proof. There is no such material on the record from which on the basis of such arguments any decision can be rendered. Only on this short ground, we must hold that the original writ petitioners have failed to show how the enhanced rates of royalty as per the impugned Notification have become unreasonable or confiscatory in nature. Point No. 4 is, therefore, answered in the negative.28. As all the points raised by the writ petitioners are answered against them, the inevitable result is that the orders passed by the High Court in their favour by partly allowing the writ petitions will have to be quashed and set aside and their writ petitions will have to stand dismissedThat counter is found at page 52 in SLP (C) No. 8190/94. A combined counter was filed on behalf of the respondent Nos. 1, 3 and 4 in Misc. Petition No. 2907 of 1992 before the High Court in the case of M/s. Saurushtra CementChemicals India Ltd. and Another and it was relief upon by the concerned authorities in all the other cases. In the said counter at paragraph Q it has been averred that the State Government tried various methods for increasing their revenue from time to time as stated in the petition. The State Government enacted various Laws imposing Minerals Area Development and other cesses. These have been struck down by the Honble Supreme Court and the State Governments, therefore, were left with practical difficulties in making necessary financial arrangement. The matter was examined in details on the representation made by the various State Governments and after considering all aspect of the matter, a reasonable increase in the royalty was found justified and, therefore, the Central Government has issued the said Notification. That after revision of rates of royalty on coal in February, 1981 the next revision was due in February, 1985. Study group was appointed in 1984 to consider all aspects in depth regarding revision of rates of royalty on coal. The study group met representatives of the State Government and ascertained their views. It also issued a questionnaire to the State Governments, calling for data relating to production of coal, rates of royalty, cesses, if any levied by them and other relevant information. The study group found that most of the coal producing States were levying cesses and taxes on coal the incidence of which was much higher than that or royalty. Some of these taxes cesses were being levied as a percentage of the pit-head value of coal by the State Governments. All the State Governments represented to the Study group that the rates of royalty on coal should bear a close correlation with the prices of coal. The coal producing States, particularly West Bengal and Bihar pressed for fixation of royalty on ad valorem basis instead of the existing specific rates. The study group expressed its view that any levy of royalty on ad valorem basis, without a commitment from the State Governments to refrain from levying cesses, would not be equitable as it would have a cascading effect on the prices of coal paid by the consumers. Thereafter the counter referred to the striking down of cesses imposed by various State legislatures by this Court and then at paragraph T it is stated that Governments whose cess acts were declared unconstitutional and collection of cesses was stopped were suffering substantial losses of revenues, they approached the Central Government to revise the rates of royalty on coal immediately to help to get out of the financial crisis. It is further averred in the counter that in order to examine the requests of State Governments to increase the rates of royalty Department of Coal appointed yet another study group on 6th February, 1991 to examine the report of the earlier study group and recommend appropriate increase in royalty in the wake of the Supreme Courts Judgment in India Cements case and subsequent judgments of the High Courts. The study group discussed the issues with the representatives of the coal producing State Governments and considered their views. Then follows paragraph U which states that after considering the report of the second study group the rates of royalty on coal have been revised from an average of Rs. 5.30 per tonne to Rs. 70 per tonne w.e.f. 1.3.1991. These rates have not been made applicable to the States of Assam and West Bengal because these States are levying/ collecting cesses on coal as their Cess Acts have not been struck down by the Courts so far.
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Raja Rameshwar Rao And Another Vs. Raja Govind Rao | of the authorities referred to above is that the jagir tenures in this State consisted of usufructuary rights in lands which were terminable on the death of each grantee, were inalienable during his life, the heirs of the deceased holder got the estate as fresh grantees and the right to confer the estate was vested in the Ruler and exercisable in his absolute discretion. Nevertheless, the Jagirdars had during their lives valuable rights of managing their estates, enjoying the usufructs and other important privileges which conferred considerable monetary benefits on them."This view of Ansari, J., as to then ature of jagirdari tenure was accepted by the other learned Judges composing the Bench. Therefore the mere fact that sanads granted to the successors of Raja Govind Narayan have not been produced in this case or even the fact that no such sanads were granted to them would make no difference to the nature of the jagirdari tenure in Hyderabad. It is only in 1918 for the first time that we know that this village along with other villages was conferred in perpetuity on the respondent. There is nothing to show that before that the respondents ancestors had permanent hereditary rights in the jagir. The initial presumption therefore that jagirs are only for the lifetime of the grantee must prevail in the present case till we come to the sanad of 1918. Therefore upto that time it must be held that the jagirs were held by various ancestors of the respondent only for their lives.In such a case where a grant is continued in a family from generation to generation and each grantee holds it for his life the limitation against any one grantee starts to run from the date his title arose.This was recognized by the Privy Council in Jagdish Narayan v. Saeed Ahmed Khan, AIR 1946 PC 59 where it was observed that where each grantee holds an estate for his lifetime the limitation would start to run against an heir from the date when his title accrued on the death of the previous heir.From the very fact that the grant of a jagir is only for the lifetime of the grantee and that his son when he gets the jagir gets a fresh grant, it follows that it was not open to a jagirdar to make an alienation which would ensure beyond his lifetime and thus a jagirdar could not grant a permanent lease, unless he was specifically entitled to do so, under the sanad or the law of the State. Similarly in such cases limitation would only run against an heir from the date when his title accrued on the death of the previous heir. Consequently the appellants cannot take advantage of what happened in 1875 in the time of Raja Ramarao as the starting point of adverse possession against the respondent. So far as the respondent is concerned, he apparently succeeded to the jagir in 1910 and in his case limitation would start from 1910. The present suit was brought in 1920 and therefore so far as the respondent is concerned, there is no question of perfecting even the limited title by adverse possession as against him.12. Learned counsel for the appellant drew our attention in this connection to the case of Daivasikhamani, AIR 1936 PC 183 where the Privy Council held that the suits were barred under Art. 144 of the Limitation Act. That was however a case where a permanent kowl of temple lands was granted by a manager. It was held in view of certain facts proved in that case that the lessee had acquired permanent rights by adverse possession, even though the manager of a temple has no authority, except in certain circumstances, to grant a permanent lease. That case is in our opinion clearly distinguishable from the facts of the present case. It is true that the manager of a temple has generally speaking no authority except in certain circumstances to grant a permanent lease of temple property; therefore a permanent lease granted by the manager of a temple may be voidable but is not void ab initio and so unless it is avoided by the succeeding manager, it may not be rendered inoperative. Further the temple in that case was the owner of the property and there was no question of any succession from father to son. In the case of a jagir on the other hand, the holder for the time being is not the owner of the property; his son when he succeeds holds the property as a fresh grantee and not on the basis of hereditary succession. A jagirdar has no right to make a permanent alienation of any part of the jagir granted to him; if he makes a permanent alienation even by way of permanent lease the same may be good in his lifetime, but it is void and inoperative after his death; the succeeding jagirdar need not avoid it: he can just ignore it as void. Therefore, while it may be possible in the case of a permanent lease granted by a manger of a temple which is the owner of the property to prescribe for a limited permanent interest by adverse possession it would be impossible to do so in the case of a jagir for the limitation in such a case would start to run against the heir from the date when his title accrues on the death of the previous heir and no advantage can be taken of any running of time against the previous holder of the jagir. Besides in the case of such temple grants, long lapse of time may sometimes give rise to the inference that the alienation was in such circumstances as would justify a permanent lease. No such inference is however possible in the case of permanent leases granted by jagirdars. In this view therefore the case of the appellants that they have prescribed for the limited interest of a permanent lessee against the respondent must fail. | 0[ds]It is now no longer is dispute that the village was granted in jagir to the ancestors of the respondent. It is also not in dispute that in 1817 Raja Govind Narayan granted a kowl in favour of the appellants ancestor. Under the terms of that kowl the village was granted on Tahud (lease) for the fixed sum of Rs. 1,027/10/- per year to the appellants ancestor.No term is mentioned in the kowl as to its duration; but after reciting that the village had been granted on Tahud for a certain fixed amount annually, the kowl goes on to say that the grantee should with entire confidence rehabilitate old and new ryots and pay the amount of Tahud annually as per fixed instalments in every crop season. As one reads the kowl, on its plain terms it cannot be read to confer on the appellants ancestor a permanent lease on a fixed sum which was not liable to be varied atcannot accept this contention and the fact that the appellants and their ancestors have continued in possession for over 100 years on the same rent would not make the kowl of 1817 a permanent lease in the face of its plain terms.The courts below were therefore right in the view that the kowl does not show a grant of a permanent lease on a fixed annual payment to thea fair reading of the vajab-ul-arz there can be little doubt that the ancestor of the appellants was praying that he should be granted a bilmakta sanand of lands held by him from the Government. To this vajab-ul-arz was appended a list of villages which apparently the ancestor of the appellants held. This list contained 88 villages. There is no difficulty about 85 of these villages which were apparently held by the ancestor of the appellants from the Government; but about three villages there was a special mention in thespeaking these three villages which stood part should not have been included in the list of villages for which bilmakta sanad was prayed for. Anyhow the order of the Government on this vajab-ul-arz was that a sanad with seal of Niabat Diwani be granted. The actual sanand which was granted by virtue of this order has not been strictly proved, though a copy of it appears in a judgment copy of which has been filed. We do not therefore propose to refer to this copy. If appears however that in 1880 a bilmakta sanad was again granted by the Nizam himself to the ancestor of the appellants on the death of the previous holder. The amount of bilmakta (i.e. fixed annual payment) was fixed at Rs. 1,05,412/-. This amount is made up of the revenue of 85 villages out of the 88 villages which were included in the list along with the vajab-ul-arz. The remaining three villages which we have mentioned above, were also shown in the schedule to this sanand under the heading "Deduct 3 villages of separate Jagir." The three villages under this heading are Timmapet, Korotkal and Palmur. It is the meaning of these words under the heading of which these villages appear which required interpretation in the presentare of opinion that this contention of the respondent is correct and the courts below were right in accepting the respondents contention in this behalf. The very fact that the revenue of these villages is not included in the bilmakta amount of Rs. 1,05,412/- shows that they could not be part of the bilmakta grant by the Nizam. We cannot accept the argument on behalf of the appellants that the revenue of these villages was not included because the ancestor of the appellants had to pay the amount of this revenue in the case of Timmapet and Korotkal to the jagirdars and the revenue of Palmur was given to him free in seri. The very fact that these three villages appear under the heading "deduct three villages of separate jagir" along with the fact that their revenue is not included in the bilmakta grant of Rs. 1,05,412/- shows that they were not apart of the bilmakta sanad. It is true that they have been mentioned in the schedule and strictly speaking they should not have been so mentioned there; but the reason for that in our opinion is that the appellants ancestor had included them in his list and they seem to have been put down in the schedule to the sanad from that list. But the way in which they were put in the schedule to the sanand shows that they were not part of the sanad granted by the Nizam. Our attention was also drawn to the Avarja said to have been prepared in 1836 in which also these three villages are included. But Avarja is merely a paper in which a note of the sanads issued each day is mentioned. The fact therefore that these three villages were mentioned in the Avarja can be easily explained by the fact that they were mentioned in the sanands which were prepared from the list of villages supplied by the appellants ancestor along with his vajab-ul-arz. The presence of these three villages in the Avarja would not establish that the villages were granted as bilmakta by the Nizam to the appellants ancestor, unless the sanands granted by the Nizam establish it. We have already examined the sanad of 1880 which is on the record and have no difficulty in agreeing with the courts below that the bilmakta sanad excluded these villages and was only confined to the remaining villages for which the appellants ancestor paid Rs. 1,05,412/- to the Nizam as the fixed annual amount.That is undoubtedly so; but even where an absolute Ruler takes away some land from a jagirdar and gives it to another person, it seems to us clear that he would inform the jagirdar that he had taken away in whole or in part what he had granted to him and would also make it clear by proper words in the sanad granted to the other person that he was giving him the land taken away from the jagirdar. In any case where the land was granted earlier to the jagirdar there must be a clear indication in the sanad to another person that what had been granted to the jagirdar had been taken away and was being granted to this other person. As we read the sanad of 1880 we find no clear indication in it that the village of Timmapet which was granted along with other villages as jagir to the respondents ancestor was being taken away - at any rate in part - and that in future the respondents ancestor would only be entitled to a fixed sum from the appellants ancestor with respect to this village and no more. On the other hand, in the recital of the sanad unfortunately there is nothing clear for the words "etc". appear therein in more than one place as to the land granted. We have therefore to turn to the schedule for whatever help we can get from it. The schedule shows that these three villages were under the heading "deduct three villages of separate jagir." From that the only inference can be that these three villages were not being included in the "bilmakta sanad. In any case we cannot infer from that the Nizam was intending to take away a part of the rights of the respondents ancestor in village Timmapet and confer them on the appellants ancestor. Further there is nothing to show that the respondents ancestors were ever informed that the Nizam had taken away part of their rights in village Timmapet. If anything as late as 1918 village Timmapet along with others was conferred perpetually in favour of the respondent as zat jagir subject to the payment of 2 per centum of haq malkana. At that time the appellants ancestor had raised some dispute about his right as bilmakatadar of Timmapet but that was left undecided. On a review therefore of the evidence in this case the conclusion is inescapable that the appellants ancestor was never granted bilmakta sanad by the Nizam which included the village of Timmapet. Their rights in this village therefore depend entirely on the kowl of 1817, which, as we have already pointed out, did not confer a permanent lease. The case of the appellants therefore based on their title on the sanads granted to them by the Nizam mustit must be held that adverse possession of this limited kind was asserted to the knowledge of the respondents ancestor and in consequence twelve years after 1875 the adverse title would be perfected and Art. 144 would bar the present suit forpresent however is a case where the original kowl was granted by a jagirdar and the question arises whether in the case of a jagir there can be adverse possession of a limited interest in the nature of a permanentthe present case also the indication is that the jagir that was granted to Raja Harinarayan in 1787 was for life, for we find that on the death of Raja Harinarayan a fresh sanad was granted to his son Raja Govind Narayan in 1811. Similar conclusion can be drawn from the fact that as late as 1880 a bilmakta sanad was granted to Raja Rameshwar Rao, an ancestor of the appellants on the death of his father in spite of certain sanads in favour of previous holders of bilmakta. But the appellants contend that after 1811 no fresh sanads were granted to the descendants of Raja Govind Narayan and therefore it must be held that the jagir became hereditary and was not merely for the lifetime of the grantee after Raja Govind Narayans death. There is no doubt that there are no sanads on the record which might have been granted to the descendants of Raja Govind Narayan: but there is equally no evidence on behalf of the appellants that no such sanads were in fact granted to the descendants of Raja Govind Narayan, due to change in Statethe first place this passage does not show when the system of attachment of jagir and re-issue of another sanad came to an end. In the second place, even this passage shows that jagirs were tenable only for life unless there was something in the terms of jagir grant to show that it was perpetual. The jagir grant of Raja Govind Narayan is on the record and there is nothing in it to show that it was granted perpetually. Therefore, it must be held to be a grant for lifetime only; at any rate it is clear that the system of granting sanads on each succession was certainly in force when Raja Govind Narayan succeeded, for he was granted a fresh sanad. In his case it must therefore be held that the jagir was granted to him only forTherefore the mere fact that sanads granted to the successors of Raja Govind Narayan have not been produced in this case or even the fact that no such sanads were granted to them would make no difference to the nature of the jagirdari tenure in Hyderabad. It is only in 1918 for the first time that we know that this village along with other villages was conferred in perpetuity on the respondent. There is nothing to show that before that the respondents ancestors had permanent hereditary rights in the jagir. The initial presumption therefore that jagirs are only for the lifetime of the grantee must prevail in the present case till we come to the sanad of 1918. Therefore upto that time it must be held that the jagirs were held by various ancestors of the respondent only for their lives.In such a case where a grant is continued in a family from generation to generation and each grantee holds it for his life the limitation against any one grantee starts to run from the date his titlethe appellants cannot take advantage of what happened in 1875 in the time of Raja Ramarao as the starting point of adverse possession against the respondent. So far as the respondent is concerned, he apparently succeeded to the jagir in 1910 and in his case limitation would start from 1910. The present suit was brought in 1920 and therefore so far as the respondent is concerned, there is no question of perfecting even the limited title by adverse possession as againstcase is in our opinion clearly distinguishable from the facts of the present case. It is true that the manager of a temple has generally speaking no authority except in certain circumstances to grant a permanent lease of temple property; therefore a permanent lease granted by the manager of a temple may be voidable but is not void ab initio and so unless it is avoided by the succeeding manager, it may not be rendered inoperative. Further the temple in that case was the owner of the property and there was no question of any succession from father to son. In the case of a jagir on the other hand, the holder for the time being is not the owner of the property; his son when he succeeds holds the property as a fresh grantee and not on the basis of hereditary succession. A jagirdar has no right to make a permanent alienation of any part of the jagir granted to him; if he makes a permanent alienation even by way of permanent lease the same may be good in his lifetime, but it is void and inoperative after his death; the succeeding jagirdar need not avoid it: he can just ignore it as void. Therefore, while it may be possible in the case of a permanent lease granted by a manger of a temple which is the owner of the property to prescribe for a limited permanent interest by adverse possession it would be impossible to do so in the case of a jagir for the limitation in such a case would start to run against the heir from the date when his title accrues on the death of the previous heir and no advantage can be taken of any running of time against the previous holder of the jagir. Besides in the case of such temple grants, long lapse of time may sometimes give rise to the inference that the alienation was in such circumstances as would justify a permanent lease. No such inference is however possible in the case of permanent leases granted by jagirdars. In this view therefore the case of the appellants that they have prescribed for the limited interest of a permanent lessee against the respondent must fail. | 0 | 5,624 | 2,571 | ### Instruction:
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of the authorities referred to above is that the jagir tenures in this State consisted of usufructuary rights in lands which were terminable on the death of each grantee, were inalienable during his life, the heirs of the deceased holder got the estate as fresh grantees and the right to confer the estate was vested in the Ruler and exercisable in his absolute discretion. Nevertheless, the Jagirdars had during their lives valuable rights of managing their estates, enjoying the usufructs and other important privileges which conferred considerable monetary benefits on them."This view of Ansari, J., as to then ature of jagirdari tenure was accepted by the other learned Judges composing the Bench. Therefore the mere fact that sanads granted to the successors of Raja Govind Narayan have not been produced in this case or even the fact that no such sanads were granted to them would make no difference to the nature of the jagirdari tenure in Hyderabad. It is only in 1918 for the first time that we know that this village along with other villages was conferred in perpetuity on the respondent. There is nothing to show that before that the respondents ancestors had permanent hereditary rights in the jagir. The initial presumption therefore that jagirs are only for the lifetime of the grantee must prevail in the present case till we come to the sanad of 1918. Therefore upto that time it must be held that the jagirs were held by various ancestors of the respondent only for their lives.In such a case where a grant is continued in a family from generation to generation and each grantee holds it for his life the limitation against any one grantee starts to run from the date his title arose.This was recognized by the Privy Council in Jagdish Narayan v. Saeed Ahmed Khan, AIR 1946 PC 59 where it was observed that where each grantee holds an estate for his lifetime the limitation would start to run against an heir from the date when his title accrued on the death of the previous heir.From the very fact that the grant of a jagir is only for the lifetime of the grantee and that his son when he gets the jagir gets a fresh grant, it follows that it was not open to a jagirdar to make an alienation which would ensure beyond his lifetime and thus a jagirdar could not grant a permanent lease, unless he was specifically entitled to do so, under the sanad or the law of the State. Similarly in such cases limitation would only run against an heir from the date when his title accrued on the death of the previous heir. Consequently the appellants cannot take advantage of what happened in 1875 in the time of Raja Ramarao as the starting point of adverse possession against the respondent. So far as the respondent is concerned, he apparently succeeded to the jagir in 1910 and in his case limitation would start from 1910. The present suit was brought in 1920 and therefore so far as the respondent is concerned, there is no question of perfecting even the limited title by adverse possession as against him.12. Learned counsel for the appellant drew our attention in this connection to the case of Daivasikhamani, AIR 1936 PC 183 where the Privy Council held that the suits were barred under Art. 144 of the Limitation Act. That was however a case where a permanent kowl of temple lands was granted by a manager. It was held in view of certain facts proved in that case that the lessee had acquired permanent rights by adverse possession, even though the manager of a temple has no authority, except in certain circumstances, to grant a permanent lease. That case is in our opinion clearly distinguishable from the facts of the present case. It is true that the manager of a temple has generally speaking no authority except in certain circumstances to grant a permanent lease of temple property; therefore a permanent lease granted by the manager of a temple may be voidable but is not void ab initio and so unless it is avoided by the succeeding manager, it may not be rendered inoperative. Further the temple in that case was the owner of the property and there was no question of any succession from father to son. In the case of a jagir on the other hand, the holder for the time being is not the owner of the property; his son when he succeeds holds the property as a fresh grantee and not on the basis of hereditary succession. A jagirdar has no right to make a permanent alienation of any part of the jagir granted to him; if he makes a permanent alienation even by way of permanent lease the same may be good in his lifetime, but it is void and inoperative after his death; the succeeding jagirdar need not avoid it: he can just ignore it as void. Therefore, while it may be possible in the case of a permanent lease granted by a manger of a temple which is the owner of the property to prescribe for a limited permanent interest by adverse possession it would be impossible to do so in the case of a jagir for the limitation in such a case would start to run against the heir from the date when his title accrues on the death of the previous heir and no advantage can be taken of any running of time against the previous holder of the jagir. Besides in the case of such temple grants, long lapse of time may sometimes give rise to the inference that the alienation was in such circumstances as would justify a permanent lease. No such inference is however possible in the case of permanent leases granted by jagirdars. In this view therefore the case of the appellants that they have prescribed for the limited interest of a permanent lessee against the respondent must fail.
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bar the present suit forpresent however is a case where the original kowl was granted by a jagirdar and the question arises whether in the case of a jagir there can be adverse possession of a limited interest in the nature of a permanentthe present case also the indication is that the jagir that was granted to Raja Harinarayan in 1787 was for life, for we find that on the death of Raja Harinarayan a fresh sanad was granted to his son Raja Govind Narayan in 1811. Similar conclusion can be drawn from the fact that as late as 1880 a bilmakta sanad was granted to Raja Rameshwar Rao, an ancestor of the appellants on the death of his father in spite of certain sanads in favour of previous holders of bilmakta. But the appellants contend that after 1811 no fresh sanads were granted to the descendants of Raja Govind Narayan and therefore it must be held that the jagir became hereditary and was not merely for the lifetime of the grantee after Raja Govind Narayans death. There is no doubt that there are no sanads on the record which might have been granted to the descendants of Raja Govind Narayan: but there is equally no evidence on behalf of the appellants that no such sanads were in fact granted to the descendants of Raja Govind Narayan, due to change in Statethe first place this passage does not show when the system of attachment of jagir and re-issue of another sanad came to an end. In the second place, even this passage shows that jagirs were tenable only for life unless there was something in the terms of jagir grant to show that it was perpetual. The jagir grant of Raja Govind Narayan is on the record and there is nothing in it to show that it was granted perpetually. Therefore, it must be held to be a grant for lifetime only; at any rate it is clear that the system of granting sanads on each succession was certainly in force when Raja Govind Narayan succeeded, for he was granted a fresh sanad. In his case it must therefore be held that the jagir was granted to him only forTherefore the mere fact that sanads granted to the successors of Raja Govind Narayan have not been produced in this case or even the fact that no such sanads were granted to them would make no difference to the nature of the jagirdari tenure in Hyderabad. It is only in 1918 for the first time that we know that this village along with other villages was conferred in perpetuity on the respondent. There is nothing to show that before that the respondents ancestors had permanent hereditary rights in the jagir. The initial presumption therefore that jagirs are only for the lifetime of the grantee must prevail in the present case till we come to the sanad of 1918. Therefore upto that time it must be held that the jagirs were held by various ancestors of the respondent only for their lives.In such a case where a grant is continued in a family from generation to generation and each grantee holds it for his life the limitation against any one grantee starts to run from the date his titlethe appellants cannot take advantage of what happened in 1875 in the time of Raja Ramarao as the starting point of adverse possession against the respondent. So far as the respondent is concerned, he apparently succeeded to the jagir in 1910 and in his case limitation would start from 1910. The present suit was brought in 1920 and therefore so far as the respondent is concerned, there is no question of perfecting even the limited title by adverse possession as againstcase is in our opinion clearly distinguishable from the facts of the present case. It is true that the manager of a temple has generally speaking no authority except in certain circumstances to grant a permanent lease of temple property; therefore a permanent lease granted by the manager of a temple may be voidable but is not void ab initio and so unless it is avoided by the succeeding manager, it may not be rendered inoperative. Further the temple in that case was the owner of the property and there was no question of any succession from father to son. In the case of a jagir on the other hand, the holder for the time being is not the owner of the property; his son when he succeeds holds the property as a fresh grantee and not on the basis of hereditary succession. A jagirdar has no right to make a permanent alienation of any part of the jagir granted to him; if he makes a permanent alienation even by way of permanent lease the same may be good in his lifetime, but it is void and inoperative after his death; the succeeding jagirdar need not avoid it: he can just ignore it as void. Therefore, while it may be possible in the case of a permanent lease granted by a manger of a temple which is the owner of the property to prescribe for a limited permanent interest by adverse possession it would be impossible to do so in the case of a jagir for the limitation in such a case would start to run against the heir from the date when his title accrues on the death of the previous heir and no advantage can be taken of any running of time against the previous holder of the jagir. Besides in the case of such temple grants, long lapse of time may sometimes give rise to the inference that the alienation was in such circumstances as would justify a permanent lease. No such inference is however possible in the case of permanent leases granted by jagirdars. In this view therefore the case of the appellants that they have prescribed for the limited interest of a permanent lessee against the respondent must fail.
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State of Gujarat Vs. Sakarwala Brothers | contended, however, by Mr. Bindra on behalf of the appellant that they are not "forms of sugar" but they are products of sugar and do not fall within entry 47 of Schedule A. We are unable to accept this argument as correct. It is not disputed on behalf of the appellant that the chemical composition of patasa, harda and alchidana is the same as that of sugar, viz., there is more than 90 per cent. of sucrose. Mr. Bindra, however, laid stress on the argument that patasa, harda and alchidana were sweets used on festive occasions. But this circumstance has no relevance on the question of legal classification for the purpose of the Bombay Sales Tax Act. On the other hand, it appears from the judgment of the Tribunal that it is possible to convert these articles into sugar by dissolving them in water and by subjecting the solution to an appropriate process. It is stated by the Tribunal that these articles can be put to the same use to which sugar-candy can be put. It is, therefore, manifest that patasa, harda and alchidana are only different forms of refined sugar with the requisite sucrose contents. It is argued by Mr. Bindra that the phrase "any form of sugar" referred to any variety of sugar and phrase cannot be taken to mean sugar in any form. It is not possible to accept this argument as correct. If the Legislature had intended to refer to "any variety of sugar" there is no reason why it should not have used that expression in item No. 47. It is significant that item No. 14 which relates to tea states as follows :"Tea includes all varieties of the product known commercially as tea and also includes green tea." Item 16 which relates to soap provides that soap means "all varieties of the product known commercially as soap". But in item No. 47 the Legislature has used the words "any form of sugar" and not "any variety of sugar". We are accordingly of opinion that the word "sugar" in item No. 47 is intended to include within its ambit all forms of sugar, that is to say sugar of any shape or texture, colour or density and by whatever name it is called. The qualifying words are that it must contain more than 90 per cent. of sucrose. We hold that the view taken by the High Court is correct and the argument of Mr. Bindra on behalf of the appellant must be overruled. 8. In the course of his argument reference was made by Mr. Bindra to the decision of Henrietta Louise Lutz v. Daniel Magone, Collector, etc. (153 U.S. 105; 38 L.Ed 651), in which it was held that in the interpretation of revenue laws, words are to be taken in their commonly received and popular sense, or according to their commercial designation, if that differs from the ordinary understanding of the word. The question involved in that case was whether the plaintiffs were entitled to free importation of saccharine on the ground that it was an acid used for medicinal, chemical or manufacturing purpose. It was held by the Supreme Court that these words should be received in their ordinary acceptation and to speak of a substance, as an acid, which is admitted to be three hundred times as sweet as sugar, was to confuse all our natural impressions with respect to the relative qualities of acidity and sweetness. This decision has no application to the present case where the facts are manifestly different.Learned counsel also referred to the decision in the Unites States v. One Hundred and Twelve Casks of Sugar, Nathan Goodale ((1834) 8 Peters 276), where it was observed by the Supreme Court that the denomination of merchandise, subject to the payment of duties, is to be understood in a commercial sense, although it may not be scientifically correct. The question which arose in that case was whether the Collector of the District of Mississippi was entitled to seize and forfeit casks of sugar in a state of partial solution in water on the ground that the article was sugar and not syrup. The argument of the claimant was that the article fell under the class of syrup and ad valorem duty of fifteen per cent. is paid only if there is no false designation of the merchandise. The Supreme Court was not able to decide upon the evidence whether the article was liable to be charged to specific duty as sugar but affirmed the decree of the lower court that the property seized should be restored to the claimant on the payment of 15 per cent. of ad valorem duty and that the libel be dismissed. The Supreme Court treated the question as essentially a question of fact and thought fit not to interfere with the finding of the lower court that the contents of the casks were syrup and were liable to the lower rate of duty. On behalf of the respondents, however, reliance was placed on M/s. Tungabhadra Industries Ltd. v. Commercial Tax Officer, Kurnool ([1961] 2 S.C.R. 14; 11 S.T.C. 827), in which the question at issue was whether the appellant was entitled to a deduction in respect of sales of hydrogenated groundnut oil under rules 4 and 5 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. It was decided by this Court that the hydrogenated groundnut oil continued to be "groundnut oil" notwithstanding the processing which was merely for the purpose of rendering the oil more stable. To be groundnut oil two conditions had to be satisfied - it must be from groundnut and it must be "oil". The hydrogenated oil was from groundnut and in its essential nature it remained an oil. It continued to be used for the same purpose as groundnut oil which had not undergone the process. It was further stated the mere fact that hydrogenated oil was semi-solid did not alter its character as an oil. | 1[ds]In our view, the word "form" would connote a visible aspect in which the thing exists or manifests itself. Sugar may manifest itself in the form of "patasa" as a result of certain simple processes being carried out. It may similarly manifest itself in the form of "alchidana" or small lumps of sugar or as "harda". If sugar so manifests itself, it cannot be said that sugar has ceased to be sugar merely because it takes a particular shape or form which appeals to certain class of people on festive occasions. It has been stated by the Tribunal that all these articles could be put to the same use to whichy or "bura" sugar could be put.We have been referred to a case reported in Jethmal Ramswaroop and Others v. The State and Others ([1959] 10 S.T.C. 270.). In that case the High Court of Rajasthan had to consider a notification granting exemptions from sales tax to "sugar including refined sugar, khandsari and palmyra sugar but excluding all preparations thereof such as sweets,, confectionery, etc." In that case the Court held that "misri", "batasa" (same as "patasa"), makhana, ola and toys made from sugar were not merely sugar and were not covered by the exemption. By the very language used in the exemption notification,y is regarded as a preparation of sugar and is excluded from the exemption. The words which we have to construe in the present case are distinct and different from the words which the High Court of Rajasthan had to considerThe learnedl is right when he says that the articles known as "patasa", "harda" and "alchidana" bear a distinct and different name from sugar and are not commercially purchased or sold as sugar. The Legislature, in entry 47, does not use the word sugar simpliciter. It has in terms stated that what is covered is sugar as defined in item No. 8 of the First Schedule to the Central Excises and Salt Act, 1944. When we turn to the definition appearing in the aforesaid item No. 8 that definition is not intended merely to cover sugar as known in common parlance. As stated by us earlier, it is intended to cover all forms of sugar. It is further intended to cover only sugar in any form which contains more than 90 per cent. of sucrose. A definition which refers to the chemical contents of an article cannot be said to be a definition which is intended to cover the article as understood in common parlance. It is with a view to give a meaning different from that which the article bears in common parlance that a special definition has been given, and it is not possible for us to interpret the words used in entry 47 as only covering the term sugar as used in common parlanceOn the facts of the present case, in spite of the fact that sugar assumes the forms of "patasa", "harda" and "alchidana", they could be put to the same use as sugar. In our view the term "sugar" as used in entry 47 is wide enough to cover "patasa", "harda" and "alchidana".Our answer to the first question is in affirmative. For the purpose of this answer, the term "alchidana" is confined to "alchidana" which consists purely of lumps of sugar and do not contain any other edible article such as the seeds of cardamom or groundnut etc6. In view of our answer to question No. (1), Mr. Nanavaty who appears on behalf of the opponents, does not press question No. (2), and that question is accordingly not answeredOn the other hand, it appears from the judgment of the Tribunal that it is possible to convert these articles into sugar by dissolving them in water and by subjecting the solution to an appropriate process. It is stated by the Tribunal that these articles can be put to the same use to whichy can be put. It is, therefore, manifest that patasa, harda and alchidana are only different forms of refined sugar with the requisite sucrose contentsIt is argued by Mr. Bindra that the phrase "any form of sugar" referred to any variety of sugar and phrase cannot be taken to mean sugar in anyform.It is not possible to accept this argument as correct. If the Legislature had intended to refer to "any variety of sugar" there is no reason why it should not have used that expression in item No. 47Item 16 which relates to soap provides that soap means "all varieties of the product known commercially as soap". But in item No. 47 the Legislature has used the words "any form of sugar" and not "any variety of sugar". We are accordingly of opinion that the word "sugar" in item No. 47 is intended to include within its ambit all forms of sugar, that is to say sugar of any shape or texture, colour or density and by whatever name it is called. The qualifying words are that it must contain more than 90 per cent. of sucrose. We hold that the view taken by the High Court is correct and the argument of Mr. Bindra on behalf of the appellant must be overruledIt was decided by this Court that the hydrogenated groundnut oil continued to be "groundnut oil" notwithstanding the processing which was merely for the purpose of rendering the oil more stable. To be groundnut oil two conditions had to be satisfiedit must be from groundnut and it must be "oil". The hydrogenated oil was from groundnut and in its essential nature it remained an oil. It continued to be used for the same purpose as groundnut oil which had not undergone the process. It was further stated the mere fact that hydrogenated oil wasd did not alter its character as an oil.For the reasons already expressed we hold that the decision of the Gujarat High Court dated December 11, 1962, is correct and that this appeal must be dismissed with costs. | 1 | 5,376 | 1,142 | ### Instruction:
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contended, however, by Mr. Bindra on behalf of the appellant that they are not "forms of sugar" but they are products of sugar and do not fall within entry 47 of Schedule A. We are unable to accept this argument as correct. It is not disputed on behalf of the appellant that the chemical composition of patasa, harda and alchidana is the same as that of sugar, viz., there is more than 90 per cent. of sucrose. Mr. Bindra, however, laid stress on the argument that patasa, harda and alchidana were sweets used on festive occasions. But this circumstance has no relevance on the question of legal classification for the purpose of the Bombay Sales Tax Act. On the other hand, it appears from the judgment of the Tribunal that it is possible to convert these articles into sugar by dissolving them in water and by subjecting the solution to an appropriate process. It is stated by the Tribunal that these articles can be put to the same use to which sugar-candy can be put. It is, therefore, manifest that patasa, harda and alchidana are only different forms of refined sugar with the requisite sucrose contents. It is argued by Mr. Bindra that the phrase "any form of sugar" referred to any variety of sugar and phrase cannot be taken to mean sugar in any form. It is not possible to accept this argument as correct. If the Legislature had intended to refer to "any variety of sugar" there is no reason why it should not have used that expression in item No. 47. It is significant that item No. 14 which relates to tea states as follows :"Tea includes all varieties of the product known commercially as tea and also includes green tea." Item 16 which relates to soap provides that soap means "all varieties of the product known commercially as soap". But in item No. 47 the Legislature has used the words "any form of sugar" and not "any variety of sugar". We are accordingly of opinion that the word "sugar" in item No. 47 is intended to include within its ambit all forms of sugar, that is to say sugar of any shape or texture, colour or density and by whatever name it is called. The qualifying words are that it must contain more than 90 per cent. of sucrose. We hold that the view taken by the High Court is correct and the argument of Mr. Bindra on behalf of the appellant must be overruled. 8. In the course of his argument reference was made by Mr. Bindra to the decision of Henrietta Louise Lutz v. Daniel Magone, Collector, etc. (153 U.S. 105; 38 L.Ed 651), in which it was held that in the interpretation of revenue laws, words are to be taken in their commonly received and popular sense, or according to their commercial designation, if that differs from the ordinary understanding of the word. The question involved in that case was whether the plaintiffs were entitled to free importation of saccharine on the ground that it was an acid used for medicinal, chemical or manufacturing purpose. It was held by the Supreme Court that these words should be received in their ordinary acceptation and to speak of a substance, as an acid, which is admitted to be three hundred times as sweet as sugar, was to confuse all our natural impressions with respect to the relative qualities of acidity and sweetness. This decision has no application to the present case where the facts are manifestly different.Learned counsel also referred to the decision in the Unites States v. One Hundred and Twelve Casks of Sugar, Nathan Goodale ((1834) 8 Peters 276), where it was observed by the Supreme Court that the denomination of merchandise, subject to the payment of duties, is to be understood in a commercial sense, although it may not be scientifically correct. The question which arose in that case was whether the Collector of the District of Mississippi was entitled to seize and forfeit casks of sugar in a state of partial solution in water on the ground that the article was sugar and not syrup. The argument of the claimant was that the article fell under the class of syrup and ad valorem duty of fifteen per cent. is paid only if there is no false designation of the merchandise. The Supreme Court was not able to decide upon the evidence whether the article was liable to be charged to specific duty as sugar but affirmed the decree of the lower court that the property seized should be restored to the claimant on the payment of 15 per cent. of ad valorem duty and that the libel be dismissed. The Supreme Court treated the question as essentially a question of fact and thought fit not to interfere with the finding of the lower court that the contents of the casks were syrup and were liable to the lower rate of duty. On behalf of the respondents, however, reliance was placed on M/s. Tungabhadra Industries Ltd. v. Commercial Tax Officer, Kurnool ([1961] 2 S.C.R. 14; 11 S.T.C. 827), in which the question at issue was whether the appellant was entitled to a deduction in respect of sales of hydrogenated groundnut oil under rules 4 and 5 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. It was decided by this Court that the hydrogenated groundnut oil continued to be "groundnut oil" notwithstanding the processing which was merely for the purpose of rendering the oil more stable. To be groundnut oil two conditions had to be satisfied - it must be from groundnut and it must be "oil". The hydrogenated oil was from groundnut and in its essential nature it remained an oil. It continued to be used for the same purpose as groundnut oil which had not undergone the process. It was further stated the mere fact that hydrogenated oil was semi-solid did not alter its character as an oil.
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### Explanation:
In our view, the word "form" would connote a visible aspect in which the thing exists or manifests itself. Sugar may manifest itself in the form of "patasa" as a result of certain simple processes being carried out. It may similarly manifest itself in the form of "alchidana" or small lumps of sugar or as "harda". If sugar so manifests itself, it cannot be said that sugar has ceased to be sugar merely because it takes a particular shape or form which appeals to certain class of people on festive occasions. It has been stated by the Tribunal that all these articles could be put to the same use to whichy or "bura" sugar could be put.We have been referred to a case reported in Jethmal Ramswaroop and Others v. The State and Others ([1959] 10 S.T.C. 270.). In that case the High Court of Rajasthan had to consider a notification granting exemptions from sales tax to "sugar including refined sugar, khandsari and palmyra sugar but excluding all preparations thereof such as sweets,, confectionery, etc." In that case the Court held that "misri", "batasa" (same as "patasa"), makhana, ola and toys made from sugar were not merely sugar and were not covered by the exemption. By the very language used in the exemption notification,y is regarded as a preparation of sugar and is excluded from the exemption. The words which we have to construe in the present case are distinct and different from the words which the High Court of Rajasthan had to considerThe learnedl is right when he says that the articles known as "patasa", "harda" and "alchidana" bear a distinct and different name from sugar and are not commercially purchased or sold as sugar. The Legislature, in entry 47, does not use the word sugar simpliciter. It has in terms stated that what is covered is sugar as defined in item No. 8 of the First Schedule to the Central Excises and Salt Act, 1944. When we turn to the definition appearing in the aforesaid item No. 8 that definition is not intended merely to cover sugar as known in common parlance. As stated by us earlier, it is intended to cover all forms of sugar. It is further intended to cover only sugar in any form which contains more than 90 per cent. of sucrose. A definition which refers to the chemical contents of an article cannot be said to be a definition which is intended to cover the article as understood in common parlance. It is with a view to give a meaning different from that which the article bears in common parlance that a special definition has been given, and it is not possible for us to interpret the words used in entry 47 as only covering the term sugar as used in common parlanceOn the facts of the present case, in spite of the fact that sugar assumes the forms of "patasa", "harda" and "alchidana", they could be put to the same use as sugar. In our view the term "sugar" as used in entry 47 is wide enough to cover "patasa", "harda" and "alchidana".Our answer to the first question is in affirmative. For the purpose of this answer, the term "alchidana" is confined to "alchidana" which consists purely of lumps of sugar and do not contain any other edible article such as the seeds of cardamom or groundnut etc6. In view of our answer to question No. (1), Mr. Nanavaty who appears on behalf of the opponents, does not press question No. (2), and that question is accordingly not answeredOn the other hand, it appears from the judgment of the Tribunal that it is possible to convert these articles into sugar by dissolving them in water and by subjecting the solution to an appropriate process. It is stated by the Tribunal that these articles can be put to the same use to whichy can be put. It is, therefore, manifest that patasa, harda and alchidana are only different forms of refined sugar with the requisite sucrose contentsIt is argued by Mr. Bindra that the phrase "any form of sugar" referred to any variety of sugar and phrase cannot be taken to mean sugar in anyform.It is not possible to accept this argument as correct. If the Legislature had intended to refer to "any variety of sugar" there is no reason why it should not have used that expression in item No. 47Item 16 which relates to soap provides that soap means "all varieties of the product known commercially as soap". But in item No. 47 the Legislature has used the words "any form of sugar" and not "any variety of sugar". We are accordingly of opinion that the word "sugar" in item No. 47 is intended to include within its ambit all forms of sugar, that is to say sugar of any shape or texture, colour or density and by whatever name it is called. The qualifying words are that it must contain more than 90 per cent. of sucrose. We hold that the view taken by the High Court is correct and the argument of Mr. Bindra on behalf of the appellant must be overruledIt was decided by this Court that the hydrogenated groundnut oil continued to be "groundnut oil" notwithstanding the processing which was merely for the purpose of rendering the oil more stable. To be groundnut oil two conditions had to be satisfiedit must be from groundnut and it must be "oil". The hydrogenated oil was from groundnut and in its essential nature it remained an oil. It continued to be used for the same purpose as groundnut oil which had not undergone the process. It was further stated the mere fact that hydrogenated oil wasd did not alter its character as an oil.For the reasons already expressed we hold that the decision of the Gujarat High Court dated December 11, 1962, is correct and that this appeal must be dismissed with costs.
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Devarajan Raman Vs. Bank of India Limited | merely awarded an ad hoc figure of Rs 5,00,000 while the NCLAT has committed a similar error on the ground that an amount of Rs 5,00,000 was found to be reasonable; and (v) The appellant worked as an IRP for three months which is half the period of one hundred and eighty days envisaged for completing the process. 10. In this backdrop, counsel submitted that in terms of the decision of this Court in Alok Kaushik v Bhuvaneshwari Ramanathan (2021) 5 SCC 787 , the adjudicating authority would have jurisdiction under Section 60(5)(c) of IBC. In the present case, the jurisdiction has (it is urged) been improperly exercised in the sense that there has been no application of mind to the basis of the claim and the figures which were accepted by the financial creditor. 11. On the other hand, Mr Vadlamani Seshagiri, counsel appearing on behalf of the respondent, submitted that the appellant accepted the order of the NCLAT dated 19 December 2019 remitting the proceedings back to the NCLT for determining the costs and fee payable to the RP. Moreover, it was sought to be urged that the payment which has been made to the RP is commensurate with the work which was done over a period of three months. 12. Responding to the above submissions, it has been urged on behalf of the appellant that the appellant did not challenge the order of the NCLAT remitting the proceedings back to the NCLT for determination of the costs and fee because it was not necessary for the appellant to do so. Moreover, it has been submitted that the real grievance of the appellant is that the claim has not been assessed or analyzed in terms of what was agreed, when the appellant submitted his bid or in terms of the circular of the Insolvency and Bankruptcy Board of India dated 12 June 2018. 13. At the outset, it must be noted that the jurisdiction of the adjudicating authority to consider the claim of a registered valuer was considered in the judgment of this Court in Alok Kaushik (supra). In that case, the NCLT held that once the CIRP was set aside, it was rendered functus officio. The order of the adjudicating authority was upheld in appeal. In that context, this Court, after adverting to the provisions of the relevant Regulations, observed as follows: 19. Though the CIRP was set aside later, the claim of the appellant as registered valuer related to the period when he was discharging his functions as a registered valuer appointed as an incident of the CIRP. NCLT would have been justified in exercising its jurisdiction under Section 60(5)(c) of the IBC and, in exercise of our jurisdiction under Article 142 of the Constitution, we accordingly order and direct that in a situation such as the present case, the adjudicating authority is sufficiently empowered under Section 60(5)(c) of the IBC to make a determination of the amount which is payable to an expert valuer as an intrinsic part of the CIRP costs. Regulation 34 of the IRP Regulations defines insolvency resolution process cost to include the fees of other professionals appointed by the RP. Whether any work has been done as claimed and if so, the nature of the work done by the valuer is something which need not detain this Court, since it is purely a factual matter to be assessed by the adjudicating authority. 14. Regulation 34 of the the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 provides as follows : 34. Resolution professional costs.—The committee shall fix the expenses to be incurred on or by the resolution professional and the expenses shall constitute insolvency resolution process costs. Explanation.—For the purposes of this regulation, expenses include the fee to be paid to the resolution professional, fee to be paid to insolvency professional entity, if any, and fee to be paid to professionals, if any, and other expenses to be incurred by the resolution professional. 15. The Insolvency and Bankruptcy Board of India has issued a circular on 12 June 2018. The circular, inter alia, requires the insolvency professional to ensure that the fees payable to him during the CIRP are reasonable and the approval of the CoC for the fee or other expenses is obtained, wherever approval is required. 16. In the present case, after the NCLAT set aside the order of the NCLT initiating the CIRP, the proceedings were remitted back for determining the insolvency resolution costs. It is material to note that the appellant had addressed a letter to the respondent on 13 December 2019 prior to the filing of the application to which the respondent responded on 24 January 2020 stating that, upon verification, the costs and fees were found in conformity with both the technical and financial bid, based on which the assignment was awarded. In the application which was filed by the appellant before the NCLT, the appellant annexed a statement of costs, the amount which was reimbursed with the balance dues at Annexure D. The order of the NCLT, however, reveals that none of the submissions of the appellant have been considered. The adjudicating authority merely directed the respondent to pay the expenses incurred and an amount of Rs 5,00,000 plus GST towards the fee of the RP. Neither the basis of the claim nor its reasonableness has been considered by the adjudicating authority. The appellate authority has merely proceeded in an ad hoc manner on the ground that the amount of Rs 5,00,000 as fee, in addition to the expenses, appears to be reasonable. Both the orders suffer from an abdication in the exercise of jurisdiction. In the absence of any reasons either in the order of the NCLT or the appellate authority, it is impossible for the Court to deduce the basis on which the payment of an amount of Rs 5,00,000 together with expenses has been found to be reasonable. Consequently, an order of remand becomes necessary. | 1[ds]13. At the outset, it must be noted that the jurisdiction of the adjudicating authority to consider the claim of a registered valuer was considered in the judgment of this Court in Alok Kaushik (supra). In that case, the NCLT held that once the CIRP was set aside, it was rendered functus officio. The order of the adjudicating authority was upheld in appeal. In that context, this Court, after adverting to the provisions of the relevant Regulations, observed as follows:19. Though the CIRP was set aside later, the claim of the appellant as registered valuer related to the period when he was discharging his functions as a registered valuer appointed as an incident of the CIRP. NCLT would have been justified in exercising its jurisdiction under Section 60(5)(c) of the IBC and, in exercise of our jurisdiction under Article 142 of the Constitution, we accordingly order and direct that in a situation such as the present case, the adjudicating authority is sufficiently empowered under Section 60(5)(c) of the IBC to make a determination of the amount which is payable to an expert valuer as an intrinsic part of the CIRP costs. Regulation 34 of the IRP Regulations defines insolvency resolution process cost to include the fees of other professionals appointed by the RP. Whether any work has been done as claimed and if so, the nature of the work done by the valuer is something which need not detain this Court, since it is purely a factual matter to be assessed by the adjudicating authority.16. In the present case, after the NCLAT set aside the order of the NCLT initiating the CIRP, the proceedings were remitted back for determining the insolvency resolution costs. It is material to note that the appellant had addressed a letter to the respondent on 13 December 2019 prior to the filing of the application to which the respondent responded on 24 January 2020 stating that, upon verification, the costs and fees were found in conformity with both the technical and financial bid, based on which the assignment was awarded. In the application which was filed by the appellant before the NCLT, the appellant annexed a statement of costs, the amount which was reimbursed with the balance dues at Annexure D. The order of the NCLT, however, reveals that none of the submissions of the appellant have been considered. The adjudicating authority merely directed the respondent to pay the expenses incurred and an amount of Rs 5,00,000 plus GST towards the fee of the RP. Neither the basis of the claim nor its reasonableness has been considered by the adjudicating authority. The appellate authority has merely proceeded in an ad hoc manner on the ground that the amount of Rs 5,00,000 as fee, in addition to the expenses, appears to be reasonable. Both the orders suffer from an abdication in the exercise of jurisdiction. In the absence of any reasons either in the order of the NCLT or the appellate authority, it is impossible for the Court to deduce the basis on which the payment of an amount of Rs 5,00,000 together with expenses has been found to be reasonable. Consequently, an order of remand becomes necessary. | 1 | 2,321 | 592 | ### Instruction:
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merely awarded an ad hoc figure of Rs 5,00,000 while the NCLAT has committed a similar error on the ground that an amount of Rs 5,00,000 was found to be reasonable; and (v) The appellant worked as an IRP for three months which is half the period of one hundred and eighty days envisaged for completing the process. 10. In this backdrop, counsel submitted that in terms of the decision of this Court in Alok Kaushik v Bhuvaneshwari Ramanathan (2021) 5 SCC 787 , the adjudicating authority would have jurisdiction under Section 60(5)(c) of IBC. In the present case, the jurisdiction has (it is urged) been improperly exercised in the sense that there has been no application of mind to the basis of the claim and the figures which were accepted by the financial creditor. 11. On the other hand, Mr Vadlamani Seshagiri, counsel appearing on behalf of the respondent, submitted that the appellant accepted the order of the NCLAT dated 19 December 2019 remitting the proceedings back to the NCLT for determining the costs and fee payable to the RP. Moreover, it was sought to be urged that the payment which has been made to the RP is commensurate with the work which was done over a period of three months. 12. Responding to the above submissions, it has been urged on behalf of the appellant that the appellant did not challenge the order of the NCLAT remitting the proceedings back to the NCLT for determination of the costs and fee because it was not necessary for the appellant to do so. Moreover, it has been submitted that the real grievance of the appellant is that the claim has not been assessed or analyzed in terms of what was agreed, when the appellant submitted his bid or in terms of the circular of the Insolvency and Bankruptcy Board of India dated 12 June 2018. 13. At the outset, it must be noted that the jurisdiction of the adjudicating authority to consider the claim of a registered valuer was considered in the judgment of this Court in Alok Kaushik (supra). In that case, the NCLT held that once the CIRP was set aside, it was rendered functus officio. The order of the adjudicating authority was upheld in appeal. In that context, this Court, after adverting to the provisions of the relevant Regulations, observed as follows: 19. Though the CIRP was set aside later, the claim of the appellant as registered valuer related to the period when he was discharging his functions as a registered valuer appointed as an incident of the CIRP. NCLT would have been justified in exercising its jurisdiction under Section 60(5)(c) of the IBC and, in exercise of our jurisdiction under Article 142 of the Constitution, we accordingly order and direct that in a situation such as the present case, the adjudicating authority is sufficiently empowered under Section 60(5)(c) of the IBC to make a determination of the amount which is payable to an expert valuer as an intrinsic part of the CIRP costs. Regulation 34 of the IRP Regulations defines insolvency resolution process cost to include the fees of other professionals appointed by the RP. Whether any work has been done as claimed and if so, the nature of the work done by the valuer is something which need not detain this Court, since it is purely a factual matter to be assessed by the adjudicating authority. 14. Regulation 34 of the the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 provides as follows : 34. Resolution professional costs.—The committee shall fix the expenses to be incurred on or by the resolution professional and the expenses shall constitute insolvency resolution process costs. Explanation.—For the purposes of this regulation, expenses include the fee to be paid to the resolution professional, fee to be paid to insolvency professional entity, if any, and fee to be paid to professionals, if any, and other expenses to be incurred by the resolution professional. 15. The Insolvency and Bankruptcy Board of India has issued a circular on 12 June 2018. The circular, inter alia, requires the insolvency professional to ensure that the fees payable to him during the CIRP are reasonable and the approval of the CoC for the fee or other expenses is obtained, wherever approval is required. 16. In the present case, after the NCLAT set aside the order of the NCLT initiating the CIRP, the proceedings were remitted back for determining the insolvency resolution costs. It is material to note that the appellant had addressed a letter to the respondent on 13 December 2019 prior to the filing of the application to which the respondent responded on 24 January 2020 stating that, upon verification, the costs and fees were found in conformity with both the technical and financial bid, based on which the assignment was awarded. In the application which was filed by the appellant before the NCLT, the appellant annexed a statement of costs, the amount which was reimbursed with the balance dues at Annexure D. The order of the NCLT, however, reveals that none of the submissions of the appellant have been considered. The adjudicating authority merely directed the respondent to pay the expenses incurred and an amount of Rs 5,00,000 plus GST towards the fee of the RP. Neither the basis of the claim nor its reasonableness has been considered by the adjudicating authority. The appellate authority has merely proceeded in an ad hoc manner on the ground that the amount of Rs 5,00,000 as fee, in addition to the expenses, appears to be reasonable. Both the orders suffer from an abdication in the exercise of jurisdiction. In the absence of any reasons either in the order of the NCLT or the appellate authority, it is impossible for the Court to deduce the basis on which the payment of an amount of Rs 5,00,000 together with expenses has been found to be reasonable. Consequently, an order of remand becomes necessary.
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13. At the outset, it must be noted that the jurisdiction of the adjudicating authority to consider the claim of a registered valuer was considered in the judgment of this Court in Alok Kaushik (supra). In that case, the NCLT held that once the CIRP was set aside, it was rendered functus officio. The order of the adjudicating authority was upheld in appeal. In that context, this Court, after adverting to the provisions of the relevant Regulations, observed as follows:19. Though the CIRP was set aside later, the claim of the appellant as registered valuer related to the period when he was discharging his functions as a registered valuer appointed as an incident of the CIRP. NCLT would have been justified in exercising its jurisdiction under Section 60(5)(c) of the IBC and, in exercise of our jurisdiction under Article 142 of the Constitution, we accordingly order and direct that in a situation such as the present case, the adjudicating authority is sufficiently empowered under Section 60(5)(c) of the IBC to make a determination of the amount which is payable to an expert valuer as an intrinsic part of the CIRP costs. Regulation 34 of the IRP Regulations defines insolvency resolution process cost to include the fees of other professionals appointed by the RP. Whether any work has been done as claimed and if so, the nature of the work done by the valuer is something which need not detain this Court, since it is purely a factual matter to be assessed by the adjudicating authority.16. In the present case, after the NCLAT set aside the order of the NCLT initiating the CIRP, the proceedings were remitted back for determining the insolvency resolution costs. It is material to note that the appellant had addressed a letter to the respondent on 13 December 2019 prior to the filing of the application to which the respondent responded on 24 January 2020 stating that, upon verification, the costs and fees were found in conformity with both the technical and financial bid, based on which the assignment was awarded. In the application which was filed by the appellant before the NCLT, the appellant annexed a statement of costs, the amount which was reimbursed with the balance dues at Annexure D. The order of the NCLT, however, reveals that none of the submissions of the appellant have been considered. The adjudicating authority merely directed the respondent to pay the expenses incurred and an amount of Rs 5,00,000 plus GST towards the fee of the RP. Neither the basis of the claim nor its reasonableness has been considered by the adjudicating authority. The appellate authority has merely proceeded in an ad hoc manner on the ground that the amount of Rs 5,00,000 as fee, in addition to the expenses, appears to be reasonable. Both the orders suffer from an abdication in the exercise of jurisdiction. In the absence of any reasons either in the order of the NCLT or the appellate authority, it is impossible for the Court to deduce the basis on which the payment of an amount of Rs 5,00,000 together with expenses has been found to be reasonable. Consequently, an order of remand becomes necessary.
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Hanskumar Kishanchand Vs. The Union Of India(And Connected Appeal) | in Secretary of State for India v. Chelikani Rama Rao, 43 Ind App 192 : (A I R 1916 P C 21) (G). There, the question arose with reference to certain provisions of the Madras Forest act, 1882. That Act provides that claims to lands which are sought to be declared reserved forests by the Government are to be enquired into by the Forest Settlement Officer, and an appeal is provided against his decision to the District Court. The point for decision was whether the decision of the District Court was open to further appeal under the provisions of the Code of Civil Procedure. The contention was that the reference to the District Court under the Act was to it not as a Court but as arbitrator, and that therefore its decision was not open to appeal on the principle laid down in 39 Ind App 197 (P C) (A). In repelling this contention, Lord Shaw observed that under the Land Acquisition Act the proceedings were "from beginning to end ostensibly and actually arbitration proceedings", but that the proceedings under the Forest Act were essentially different in character. "The claim was", he said,"the assertion of a legal right to possession of and property in land; and if the ordinary Courts of the country are seised of a dispute of that character, it would require, in the opinion of the Board; a specific limitation to exclude the ordinary incidents of litigation."14. The principles being thus well-settled, we have to see in the present case whether an appeal to the High Court under S. 19 (1) (f) of the Act comes before it as a Court or as arbitrator. Under S. 19 (1) (b), the reference is admittedly to an arbitrator.He need not even be a Judge of a Court. It is sufficient that he is qualified to be appointed a Judge of the High Court. And under the law, no appeal would have lain to the High Court against the decision of such an arbitrator. Thus, the provision for appeal to the High Court under S. 19 (1) (f) can only be construed as a reference to it as an authority designated and not as a Court. The fact that, in the present case, the reference was to a District Judge would not affect the position. Then again, the decision of the arbitrator appointed under S. 19 (1) (b) is expressly referred to in S. 19 (1) (f) as an award. Now, an appeal is essentially a continuation of the original proceedings, and if the proceedings under S. 19 (1) (b) are arbitration proceedings, it is difficult to see how their character can suffer a change, when they are brought up before an appellate tribunal.The decisions in I L R 37 Bom 506 (B), 17 Cal W N 421 ( P C) (C), I L R 41 Mad 943 : (A I R 1919 Mad 626) (D), and 58 Ind App 259 : (A I R 1931 P C 149) (E), proceed all on the view that an appeal against an award continues to be part of, and a further stage of the original arbitration proceedings.In our view, a proceeding which is at the inception an arbitration proceeding must retain its character as arbitration, even when it is taken up in appeal, where that is provided by the statute.15. The question whether an appeal under S. 19 (1) (f) is of the nature of arbitration proceedings, and whether the decision given therein is an award came up directly for consideration in Kollegal Silk Filatures Ltd. v. Province of Madras, ILR (1948) Mad 490 (A I R 1949 Mad 39) (H) before a Bench of the Madras High Court consisting of Patanjali Sastri and Chandrasekhara Aiyar, JJ, and it was held by them that the word "arbitration" in S. 19 (1) (g) of the Act covered the entire proceedings from their commencement before the arbitrator to their termination in the High Court on appeal where an appeal had been preferred, and the High Court in hearing and deciding the appeal acted essentially as an arbitration tribunal. We agree with this decision that the appeal under S. 19 (1) (f) is an arbitration proceeding.We must, therefore, hold that the decision of the High Court in the appeal under that provision is not a judgment, decree or order either within Ss. 109 and 110, Civil P. C. or Cl. 29 of the Letters patent of the Nagpur High Court, which corresponds to Cl. 39 of the Letters Patent of the Calcutta, Madras and Bombay High Courts, and that, therefore, the present appeals are incompetent.16. Mr. Achhru Ram finally contended that even if no appeal lay under Ss. 109 and 110, Civil P. C. or Cl. 29 of the Letters Patent, it was, nevertheless, within the competence of this Court to grant leave to appeal, and that this was a fit case for the grant of such leave. He argued that the Privy Council had the power to grant leave to appeal against the decision of the Nagpur High Court in the appeal under S. 19 (1) (f), that under S. 3 (a) (ii) of the Federal Court (Enlargement of Jurisdiction) Act I of 1948 that power became vested in the Federal Court, and under Art. 135 it has devolved on this Court, and that in the exercise of that power we should grant leave to appeal against the decision now under challenge.It is sufficient answer to this contention that the Federal Court had power under S. 3 (a) (ii) to grant leave only when the proposed appeal was against a judgment, and that, under the definition in S. 2 (b), meant a judgment, decree or order of a High Court in a civil case; and that on our conclusion that the decision in the appeal under S. 19 (1) (f) is not a judgment, decree or order but an award, no order could have been passed granting special leave under S. 3 (a) (ii). | 0[ds]It may be noted that it was the use of the work "arbitration" in the title to the Act that furnished the ground for the contention that the proceedings before the Commission were of the nature of arbitration. But that description, however, could not alter the true character of the reference under the Act, which was in terms to the Commission as a Court of record. In fact, there was no element of arbitration in the proceedings. It is true that under that Act there could be a reference only by agreement of parties. That, however, could not make any difference in the character of the proceedings before the Commission, as a statute can provide for the jurisdiction of the Court being invoked as a Court on the agreement of parties, as for example, on a case stated under Order 36 of the Code of Civil Procedure. There is thus nothing in 1913 A C 546 (F), which can be said to conflict with the law as laid down in 39 Ind App 197 (P C) (A), that when the reference is to a Court as arbitrator, its decision is not open to appeal.The principles being thus well-settled, we have to see in the present case whether an appeal to the High Court under S. 19 (1) (f) of the Act comes before it as a Court or as arbitrator. Under S. 19 (1) (b), the reference is admittedly to an arbitrator.He need not even be a Judge of a Court. It is sufficient that he is qualified to be appointed a Judge of the High Court. And under the law, no appeal would have lain to the High Court against the decision of such an arbitrator. Thus, the provision for appeal to the High Court under S. 19 (1) (f) can only be construed as a reference to it as an authority designated and not as a Court. The fact that, in the present case, the reference was to a District Judge would not affect the position. Then again, the decision of the arbitrator appointed under S. 19 (1) (b) is expressly referred to in S. 19 (1) (f) as an award. Now, an appeal is essentially a continuation of the original proceedings, and if the proceedings under S. 19 (1) (b) are arbitration proceedings, it is difficult to see how their character can suffer a change, when they are brought up before an appellate tribunal.The decisions in I L R 37 Bom 506 (B), 17 Cal W N 421 ( P C) (C), I L R 41 Mad 943 : (A I R 1919 Mad 626) (D), and 58 Ind App 259 : (A I R 1931 P C 149) (E), proceed all on the view that an appeal against an award continues to be part of, and a further stage of the original arbitration proceedings.In our view, a proceeding which is at the inception an arbitration proceeding must retain its character as arbitration, even when it is taken up in appeal, where that is provided by the statute.15. The question whether an appeal under S. 19 (1) (f) is of the nature of arbitration proceedings, and whether the decision given therein is an award came up directly for consideration in Kollegal Silk Filatures Ltd. v. Province of Madras, ILR (1948) Mad 490 (A I R 1949 Mad 39) (H) before a Bench of the Madras High Court consisting of Patanjali Sastri and Chandrasekhara Aiyar, JJ, and it was held by them that the word "arbitration" in S. 19 (1) (g) of the Act covered the entire proceedings from their commencement before the arbitrator to their termination in the High Court on appeal where an appeal had been preferred, and the High Court in hearing and deciding the appeal acted essentially as an arbitration tribunal. We agree with this decision that the appeal under S. 19 (1) (f) is an arbitration proceeding.We must, therefore, hold that the decision of the High Court in the appeal under that provision is not a judgment, decree or order either within Ss. 109 and 110, Civil P. C. or Cl. 29 of the Letters patent of the Nagpur High Court, which corresponds to Cl. 39 of the Letters Patent of the Calcutta, Madras and Bombay High Courts, and that, therefore, the present appeals areis sufficient answer to this contention that the Federal Court had power under S. 3 (a) (ii) to grant leave only when the proposed appeal was against a judgment, and that, under the definition in S. 2 (b), meant a judgment, decree or order of a High Court in a civil case; and that on our conclusion that the decision in the appeal under S. 19 (1) (f) is not a judgment, decree or order but an award, no order could have been passed granting special leave under S. 3 (a) (ii). | 0 | 5,121 | 966 | ### 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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in Secretary of State for India v. Chelikani Rama Rao, 43 Ind App 192 : (A I R 1916 P C 21) (G). There, the question arose with reference to certain provisions of the Madras Forest act, 1882. That Act provides that claims to lands which are sought to be declared reserved forests by the Government are to be enquired into by the Forest Settlement Officer, and an appeal is provided against his decision to the District Court. The point for decision was whether the decision of the District Court was open to further appeal under the provisions of the Code of Civil Procedure. The contention was that the reference to the District Court under the Act was to it not as a Court but as arbitrator, and that therefore its decision was not open to appeal on the principle laid down in 39 Ind App 197 (P C) (A). In repelling this contention, Lord Shaw observed that under the Land Acquisition Act the proceedings were "from beginning to end ostensibly and actually arbitration proceedings", but that the proceedings under the Forest Act were essentially different in character. "The claim was", he said,"the assertion of a legal right to possession of and property in land; and if the ordinary Courts of the country are seised of a dispute of that character, it would require, in the opinion of the Board; a specific limitation to exclude the ordinary incidents of litigation."14. The principles being thus well-settled, we have to see in the present case whether an appeal to the High Court under S. 19 (1) (f) of the Act comes before it as a Court or as arbitrator. Under S. 19 (1) (b), the reference is admittedly to an arbitrator.He need not even be a Judge of a Court. It is sufficient that he is qualified to be appointed a Judge of the High Court. And under the law, no appeal would have lain to the High Court against the decision of such an arbitrator. Thus, the provision for appeal to the High Court under S. 19 (1) (f) can only be construed as a reference to it as an authority designated and not as a Court. The fact that, in the present case, the reference was to a District Judge would not affect the position. Then again, the decision of the arbitrator appointed under S. 19 (1) (b) is expressly referred to in S. 19 (1) (f) as an award. Now, an appeal is essentially a continuation of the original proceedings, and if the proceedings under S. 19 (1) (b) are arbitration proceedings, it is difficult to see how their character can suffer a change, when they are brought up before an appellate tribunal.The decisions in I L R 37 Bom 506 (B), 17 Cal W N 421 ( P C) (C), I L R 41 Mad 943 : (A I R 1919 Mad 626) (D), and 58 Ind App 259 : (A I R 1931 P C 149) (E), proceed all on the view that an appeal against an award continues to be part of, and a further stage of the original arbitration proceedings.In our view, a proceeding which is at the inception an arbitration proceeding must retain its character as arbitration, even when it is taken up in appeal, where that is provided by the statute.15. The question whether an appeal under S. 19 (1) (f) is of the nature of arbitration proceedings, and whether the decision given therein is an award came up directly for consideration in Kollegal Silk Filatures Ltd. v. Province of Madras, ILR (1948) Mad 490 (A I R 1949 Mad 39) (H) before a Bench of the Madras High Court consisting of Patanjali Sastri and Chandrasekhara Aiyar, JJ, and it was held by them that the word "arbitration" in S. 19 (1) (g) of the Act covered the entire proceedings from their commencement before the arbitrator to their termination in the High Court on appeal where an appeal had been preferred, and the High Court in hearing and deciding the appeal acted essentially as an arbitration tribunal. We agree with this decision that the appeal under S. 19 (1) (f) is an arbitration proceeding.We must, therefore, hold that the decision of the High Court in the appeal under that provision is not a judgment, decree or order either within Ss. 109 and 110, Civil P. C. or Cl. 29 of the Letters patent of the Nagpur High Court, which corresponds to Cl. 39 of the Letters Patent of the Calcutta, Madras and Bombay High Courts, and that, therefore, the present appeals are incompetent.16. Mr. Achhru Ram finally contended that even if no appeal lay under Ss. 109 and 110, Civil P. C. or Cl. 29 of the Letters Patent, it was, nevertheless, within the competence of this Court to grant leave to appeal, and that this was a fit case for the grant of such leave. He argued that the Privy Council had the power to grant leave to appeal against the decision of the Nagpur High Court in the appeal under S. 19 (1) (f), that under S. 3 (a) (ii) of the Federal Court (Enlargement of Jurisdiction) Act I of 1948 that power became vested in the Federal Court, and under Art. 135 it has devolved on this Court, and that in the exercise of that power we should grant leave to appeal against the decision now under challenge.It is sufficient answer to this contention that the Federal Court had power under S. 3 (a) (ii) to grant leave only when the proposed appeal was against a judgment, and that, under the definition in S. 2 (b), meant a judgment, decree or order of a High Court in a civil case; and that on our conclusion that the decision in the appeal under S. 19 (1) (f) is not a judgment, decree or order but an award, no order could have been passed granting special leave under S. 3 (a) (ii).
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It may be noted that it was the use of the work "arbitration" in the title to the Act that furnished the ground for the contention that the proceedings before the Commission were of the nature of arbitration. But that description, however, could not alter the true character of the reference under the Act, which was in terms to the Commission as a Court of record. In fact, there was no element of arbitration in the proceedings. It is true that under that Act there could be a reference only by agreement of parties. That, however, could not make any difference in the character of the proceedings before the Commission, as a statute can provide for the jurisdiction of the Court being invoked as a Court on the agreement of parties, as for example, on a case stated under Order 36 of the Code of Civil Procedure. There is thus nothing in 1913 A C 546 (F), which can be said to conflict with the law as laid down in 39 Ind App 197 (P C) (A), that when the reference is to a Court as arbitrator, its decision is not open to appeal.The principles being thus well-settled, we have to see in the present case whether an appeal to the High Court under S. 19 (1) (f) of the Act comes before it as a Court or as arbitrator. Under S. 19 (1) (b), the reference is admittedly to an arbitrator.He need not even be a Judge of a Court. It is sufficient that he is qualified to be appointed a Judge of the High Court. And under the law, no appeal would have lain to the High Court against the decision of such an arbitrator. Thus, the provision for appeal to the High Court under S. 19 (1) (f) can only be construed as a reference to it as an authority designated and not as a Court. The fact that, in the present case, the reference was to a District Judge would not affect the position. Then again, the decision of the arbitrator appointed under S. 19 (1) (b) is expressly referred to in S. 19 (1) (f) as an award. Now, an appeal is essentially a continuation of the original proceedings, and if the proceedings under S. 19 (1) (b) are arbitration proceedings, it is difficult to see how their character can suffer a change, when they are brought up before an appellate tribunal.The decisions in I L R 37 Bom 506 (B), 17 Cal W N 421 ( P C) (C), I L R 41 Mad 943 : (A I R 1919 Mad 626) (D), and 58 Ind App 259 : (A I R 1931 P C 149) (E), proceed all on the view that an appeal against an award continues to be part of, and a further stage of the original arbitration proceedings.In our view, a proceeding which is at the inception an arbitration proceeding must retain its character as arbitration, even when it is taken up in appeal, where that is provided by the statute.15. The question whether an appeal under S. 19 (1) (f) is of the nature of arbitration proceedings, and whether the decision given therein is an award came up directly for consideration in Kollegal Silk Filatures Ltd. v. Province of Madras, ILR (1948) Mad 490 (A I R 1949 Mad 39) (H) before a Bench of the Madras High Court consisting of Patanjali Sastri and Chandrasekhara Aiyar, JJ, and it was held by them that the word "arbitration" in S. 19 (1) (g) of the Act covered the entire proceedings from their commencement before the arbitrator to their termination in the High Court on appeal where an appeal had been preferred, and the High Court in hearing and deciding the appeal acted essentially as an arbitration tribunal. We agree with this decision that the appeal under S. 19 (1) (f) is an arbitration proceeding.We must, therefore, hold that the decision of the High Court in the appeal under that provision is not a judgment, decree or order either within Ss. 109 and 110, Civil P. C. or Cl. 29 of the Letters patent of the Nagpur High Court, which corresponds to Cl. 39 of the Letters Patent of the Calcutta, Madras and Bombay High Courts, and that, therefore, the present appeals areis sufficient answer to this contention that the Federal Court had power under S. 3 (a) (ii) to grant leave only when the proposed appeal was against a judgment, and that, under the definition in S. 2 (b), meant a judgment, decree or order of a High Court in a civil case; and that on our conclusion that the decision in the appeal under S. 19 (1) (f) is not a judgment, decree or order but an award, no order could have been passed granting special leave under S. 3 (a) (ii).
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Sugra Bibi Vs. Hazi Kummu Mia | of certain debts and thereafter to establish a Chatram for the feeding of the poor. There was a further provision that after the wifes death, two-thirds of the income given to her would be applied to charity and one-third to the members of the family. On these facts the Judicial Committee agreed with the findings of the Court below that the Chatram so established was a public trust.8. It was, however, contended on behalf of the appellant that the suit was brought not to vindicate or to establish a right of the public institution i.e., the trust, but to remedy an infringement of an individual right or to vindicate the private right of the appellant. It was said that the suit was therefore not within the purview of Section 92 of the Civil Procedure Code. The argument was stressed that in deciding whether Section 92. Civil Procedure Code is attracted the Court must go beyond the reliefs prayed for and have regard to the capacity in which the plaintiff is suing and for the purpose for which the suit is brought. For the respondent it was pointed out that the reliefs sought for by the appellant in the present suit are exactly those contemplated by Section 92 of the Civil Procedure Code. The reliefs prayed for are: (1) removal of the respondent from the office of Mutwalli and appointment of soleman, appellants son, as Mutwalli in his place, and(2) till the said Soleman attains majority appointment of a Receiver for the management of the Wakf estate. It is true that the facts that a suit relates to public trust of a religious or charitable nature and the reliefs claimed fall within Clauses (a) to (h) of sub-section (1) of Section 92. Civil Procedure Code would not by themselves attract the operation of the Section unless the suit is of a representative character instituted in the interests of the public and not merely for vindication of the individual or personal rights of the plaintiff. As was stated by Woodroffe. J., in Budreedas v. Choonilal, (1906) ILR 33 Cal 789 at p. 807:"It is obvious that the Advocate-General, Collector or other public officer can and do sue only as representing the public, and if, instead of these officers, two or more persons having an interest in the trust sue with their consent, they sue under a warrant to represent the public as the objects of the trust. It follows from this, that when a person or persons sue not to establish the general rights of the public, of which they are a member or members, but to remedy a particular infringement of their own individual right, the suit is not within or need not be brought under the section."9. This principle was accepted as sound by a Full Bench of the Madras High Court in Appanna v. Narasingha, ILR 45 Mad I13 =(AIR 1922 Mad 17 ) (FB). In that case, a suit was instituted by a trustee of a public religious trust against a cotrustee for accounts and the Full Bench decided that it did not come within Section 92 of the C. P. Code, the claim being to enforce a purely personal right of the plaintiff as a trustee against his co-trustees. The same view was taken by the Madras High Court in Tirumalai Tirupati Devasthanams Committee v. U. Krishnayya Shambhaga, ILR (1943) Mad 619 = (AIR 1943 Mad 466 ) (FB). In this case the general trustees of a public temple filed a suit against the trustees for the recovery of moneys which the latter had collected on behalf of the former praying for a decree directing accounts and inquiries. It was held that the right to collect moneys was entirely independent of Section 92 of the Civil Procedure Code and no sanction of the Advocate-General was necessary for the institution of the suit. Leach, C. J., who delivered the judgment of the Court observed as follows :-"After hearing the arguments of learned Counsel in the present case we can see no reason for disagreeing with anything said in Shanmukham Chetty v. Govinda Chetty, ILR (1938) Mad 39 = (AIR 1938 Mad 92 ). On, the other hand we find ourselves in full agreement with the opinion of Varadachariar, J., that, in deciding whether a suit falls within Section 92, the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit is brought. The judgment of the Privy Council in Abdur Rahim v. Mahomed Barkat Ali, ILR 55 Cal 519 = (AIR 1928 PC 16 ) lends no support for the opinion expressed by the Full Bench in Janaki Bai v. Thiruchitrambala Vinayakar, ILR 58 Mad 988 = (AIR 1935 Mad 825 ) (FB)."10. Applying the principle laid down in these authorities, we are of opinion that in the present case the suit brought by the appellant must be treated as a suit brought by her in a representative capacity on behalf of all the beneficiaries of the Wakf. As we have already stated, the Wakf created by Haji Elahi Bux was a Wakf created for a public purpose of charitable or religious nature. The reliefs claimed by the appellant in the suit are not reliefs for enforcing any private rights but reliefs for the removal of the defendant as trustee and for appointment of a new trustee in his place. The reliefs asked for by the appellant fall within cls. (a) and (b) of Section 92 (1) of the Civil Procedure Code and these reliefs claimed by the appellant indicate that the suit was brought by the appellant not in an individual capacity but as representing all the beneficiaries of the Wakf estate. We are accordingly of the opinion that the suit falls within the purview of the provisions of Section 92, Civil Procedure Code and in the absence of the consent in writing of the Advocate-General the suit is not maintainable. | 0[ds]5. It is evident that this Section has no application unless three conditions are fulfilled: (1) the suit must relate to a public charitable or religious trust, (2) the suit must be founded on an allegation of breach of trust or the direction of the Court is required for administration of the trust, and (3) the reliefs claimed are those which are mentioned in the section.It was, however, contended on behalf of the appellant that the suit was brought not to vindicate or to establish a right of the public institution i.e., the trust, but to remedy an infringement of an individual right or to vindicate the private right of the appellant. It was said that the suit was therefore not within the purview of Section 92 of the Civil Procedure Code. The argument was stressed that in deciding whether Section 92.Applying the principle laid down in these authorities, we are of opinion that in the present case the suit brought by the appellant must be treated as a suit brought by her in a representative capacity on behalf of all the beneficiaries of the Wakf. As we have already stated, the Wakf created by Haji Elahi Bux was a Wakf created for a public purpose of charitable or religious nature. The reliefs claimed by the appellant in the suit are not reliefs for enforcing any private rights but reliefs for the removal of the defendant as trustee and for appointment of a new trustee in his place. The reliefs asked for by the appellant fall within cls. (a) and (b) of Section 92 (1) of the Civil Procedure Code and these reliefs claimed by the appellant indicate that the suit was brought by the appellant not in an individual capacity but as representing all the beneficiaries of the Wakf estate. We are accordingly of the opinion that the suit falls within the purview of the provisions of Section 92, Civil Procedure Code and in the absence of the consent in writing of the Advocate-General the suit is not maintainable. | 0 | 3,124 | 375 | ### 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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of certain debts and thereafter to establish a Chatram for the feeding of the poor. There was a further provision that after the wifes death, two-thirds of the income given to her would be applied to charity and one-third to the members of the family. On these facts the Judicial Committee agreed with the findings of the Court below that the Chatram so established was a public trust.8. It was, however, contended on behalf of the appellant that the suit was brought not to vindicate or to establish a right of the public institution i.e., the trust, but to remedy an infringement of an individual right or to vindicate the private right of the appellant. It was said that the suit was therefore not within the purview of Section 92 of the Civil Procedure Code. The argument was stressed that in deciding whether Section 92. Civil Procedure Code is attracted the Court must go beyond the reliefs prayed for and have regard to the capacity in which the plaintiff is suing and for the purpose for which the suit is brought. For the respondent it was pointed out that the reliefs sought for by the appellant in the present suit are exactly those contemplated by Section 92 of the Civil Procedure Code. The reliefs prayed for are: (1) removal of the respondent from the office of Mutwalli and appointment of soleman, appellants son, as Mutwalli in his place, and(2) till the said Soleman attains majority appointment of a Receiver for the management of the Wakf estate. It is true that the facts that a suit relates to public trust of a religious or charitable nature and the reliefs claimed fall within Clauses (a) to (h) of sub-section (1) of Section 92. Civil Procedure Code would not by themselves attract the operation of the Section unless the suit is of a representative character instituted in the interests of the public and not merely for vindication of the individual or personal rights of the plaintiff. As was stated by Woodroffe. J., in Budreedas v. Choonilal, (1906) ILR 33 Cal 789 at p. 807:"It is obvious that the Advocate-General, Collector or other public officer can and do sue only as representing the public, and if, instead of these officers, two or more persons having an interest in the trust sue with their consent, they sue under a warrant to represent the public as the objects of the trust. It follows from this, that when a person or persons sue not to establish the general rights of the public, of which they are a member or members, but to remedy a particular infringement of their own individual right, the suit is not within or need not be brought under the section."9. This principle was accepted as sound by a Full Bench of the Madras High Court in Appanna v. Narasingha, ILR 45 Mad I13 =(AIR 1922 Mad 17 ) (FB). In that case, a suit was instituted by a trustee of a public religious trust against a cotrustee for accounts and the Full Bench decided that it did not come within Section 92 of the C. P. Code, the claim being to enforce a purely personal right of the plaintiff as a trustee against his co-trustees. The same view was taken by the Madras High Court in Tirumalai Tirupati Devasthanams Committee v. U. Krishnayya Shambhaga, ILR (1943) Mad 619 = (AIR 1943 Mad 466 ) (FB). In this case the general trustees of a public temple filed a suit against the trustees for the recovery of moneys which the latter had collected on behalf of the former praying for a decree directing accounts and inquiries. It was held that the right to collect moneys was entirely independent of Section 92 of the Civil Procedure Code and no sanction of the Advocate-General was necessary for the institution of the suit. Leach, C. J., who delivered the judgment of the Court observed as follows :-"After hearing the arguments of learned Counsel in the present case we can see no reason for disagreeing with anything said in Shanmukham Chetty v. Govinda Chetty, ILR (1938) Mad 39 = (AIR 1938 Mad 92 ). On, the other hand we find ourselves in full agreement with the opinion of Varadachariar, J., that, in deciding whether a suit falls within Section 92, the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit is brought. The judgment of the Privy Council in Abdur Rahim v. Mahomed Barkat Ali, ILR 55 Cal 519 = (AIR 1928 PC 16 ) lends no support for the opinion expressed by the Full Bench in Janaki Bai v. Thiruchitrambala Vinayakar, ILR 58 Mad 988 = (AIR 1935 Mad 825 ) (FB)."10. Applying the principle laid down in these authorities, we are of opinion that in the present case the suit brought by the appellant must be treated as a suit brought by her in a representative capacity on behalf of all the beneficiaries of the Wakf. As we have already stated, the Wakf created by Haji Elahi Bux was a Wakf created for a public purpose of charitable or religious nature. The reliefs claimed by the appellant in the suit are not reliefs for enforcing any private rights but reliefs for the removal of the defendant as trustee and for appointment of a new trustee in his place. The reliefs asked for by the appellant fall within cls. (a) and (b) of Section 92 (1) of the Civil Procedure Code and these reliefs claimed by the appellant indicate that the suit was brought by the appellant not in an individual capacity but as representing all the beneficiaries of the Wakf estate. We are accordingly of the opinion that the suit falls within the purview of the provisions of Section 92, Civil Procedure Code and in the absence of the consent in writing of the Advocate-General the suit is not maintainable.
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### Explanation:
5. It is evident that this Section has no application unless three conditions are fulfilled: (1) the suit must relate to a public charitable or religious trust, (2) the suit must be founded on an allegation of breach of trust or the direction of the Court is required for administration of the trust, and (3) the reliefs claimed are those which are mentioned in the section.It was, however, contended on behalf of the appellant that the suit was brought not to vindicate or to establish a right of the public institution i.e., the trust, but to remedy an infringement of an individual right or to vindicate the private right of the appellant. It was said that the suit was therefore not within the purview of Section 92 of the Civil Procedure Code. The argument was stressed that in deciding whether Section 92.Applying the principle laid down in these authorities, we are of opinion that in the present case the suit brought by the appellant must be treated as a suit brought by her in a representative capacity on behalf of all the beneficiaries of the Wakf. As we have already stated, the Wakf created by Haji Elahi Bux was a Wakf created for a public purpose of charitable or religious nature. The reliefs claimed by the appellant in the suit are not reliefs for enforcing any private rights but reliefs for the removal of the defendant as trustee and for appointment of a new trustee in his place. The reliefs asked for by the appellant fall within cls. (a) and (b) of Section 92 (1) of the Civil Procedure Code and these reliefs claimed by the appellant indicate that the suit was brought by the appellant not in an individual capacity but as representing all the beneficiaries of the Wakf estate. We are accordingly of the opinion that the suit falls within the purview of the provisions of Section 92, Civil Procedure Code and in the absence of the consent in writing of the Advocate-General the suit is not maintainable.
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Assistant Collector of Central Excise And Customs Vs. J.C. Shah | known as Saurashtra Mills at Surendranagar, which manufactures the same fabrics on 24 looms. In this firm, there are 12 partners and the respondents share is two annas. The respondent is a partner in another firm Sunlight Textile Mills which owns 19 powerlooms at Bhandup and produces silk fabrics on them. In this last partnership the respondent has eight annas share. His contention is that on a fair and reasonable construction of Item 12A(v) it should be held that the silk fabrics which are produced by him are produced in factory in which less than 25 powerlooms in all are installed. On the other hand, the appellants contention is that in considering the question as to whether in the factories where artificial silk fabrics are produced by or on behalf of the respondent, it will be necessary to add up the powerlooms in all the three factories. According to the appellants, the fact that the respondent owns only one factory in which nine powerlooms are working would not be decisive, because since he is a partner in two other firms which own 24 and 19 powerlooms respectively, these powerlooms must be added to the powerlooms that are working in the factory owned by the respondent alone, and that inevitably takes his case outside the exemption prescribed by Item 12A(v).3.The question which these contentions raise is one of construction. Item 12A(v) refers to cases where artificial silk fabrics are produced or manufactured in one or more factories by or on behalf of the same person in which less than 25 powerlooms in all are installed. Can it be said that the powerlooms which work in the two partnership in which the respondent is a partner are worked by or on behalf of the same person, viz., the respondent. It is quite true that under the law of partnership each partner is an agent of the other partners, but when clause refers to the same person, does it take in cases like the present where a person is working a factory of his own and has joined other partners in working other factories belonging to the said partnership? Under Section 3(42) of the General Clauses Act, 1897 (No. 10 of 1897), a person shall include any company or association or body of individuals, whether incorporated or not; and so, it may be conceded that a partnership is a person within the meaning of Item 12A(v). But are the two partnerships of which the respondent is a partner the same person as the respondent? In other words, is the test that the production of artificial silk fabrics must be attributable to the same person, satisfied in a case like the present? The Bombay High Court has answered this question in the negative and in our opinion, the view taken by the High Court is right. The contention of the appellants that every partner of a firm is in law the same person as the firm within the meaning of Item 12A(v) seems to us plainly inconsistent with the content of the said item and the object intended to be served by it in granting exemption to cases covered by it.4.It has been urged by Mr. Prem on behalf of the appellants that the duty is levied not against the individual who produces the artificial silk fabrics, but against the artificial silk fabrics themselves, and since it is the production of the fabrics which in the subject-matter of the duty, the expression "same person" should be liberally construed to include cases like the present. This argument appears to us to be misconceived. If a partnership consists of 10 persons on Mr. Prems argument the articles produced by the factory belonging to such a partnership may become the subject-matter of duty in respect of each one of the partners. In fact, in Civil Appeal No. 395/1962 that is what the taxing authorities have purported to do. In the partnership M/s. Arun Textiles with which the said appeal is concerned, there were two partners who were also partners in M/s. M. Kantilal & Co. and notices have been served on both the partnerships in respect of the artificial silk fabrics manufactured in factories belonging to the partnership. The view taken by the taxing authorities was that both the art silk factories, namely, Arun Textiles and M. Kantilal & Co. of Surat which had common partners and had an aggregate potential loomage of more than 24 powerlooms and were producing rayon or art silk fabrics in both these factories, are treated as a collective entity for the Central Excise purposes for the period in question.5.Apart from this consideration, however, on a plain construction of the relevant clause, the context seems to require that the words "the same person" cannot receive the liberal construction for which the appellants contend. The respondent Shah owns a factory in which there are 9 powerlooms. He is a partner in two other factories in which there are 24 and 19 powerlooms respectively; but the production of artificial silk fabrics attributable to these two factories cannot be said to be production or manufacture by or on behalf of the same person. The production in the first factory is by or on behalf of the respondent himself, while the production or manufacture in the other two factories is by or on behalf of two separate partnership of which the respondent happens to be one partner. We, therefore, feel no difficulty in holding that for the purpose of Item 12A(v) the three persons cannot be said to be the same person as claimed by the appellants. If it was the intention of the legislature to exclude cases like the present from the purview of the exemption clause, then it must be held that the legislature has failed to use appropriate words to carry out that intention. We were told that for subsequent years, the relevant item in the Schedule has been suitably modified and the present question is, therefore, not likely to arise in future. | 0[ds]Item 12A(v) refers to cases where artificial silk fabrics are produced or manufactured in one or more factories by or on behalf of the same person in which less than 25 powerlooms in all are installed. Can it be said that the powerlooms which work in the two partnership in which the respondent is a partner are worked by or on behalf of the same person, viz., the respondent. It is quite true that under the law of partnership each partner is an agent of the other partners, but when clause refers to the same person, does it take in cases like the present where a person is working a factory of his own and has joined other partners in working other factories belonging to the said partnership? Under Section 3(42) of the General Clauses Act, 1897 (No. 10 of 1897), a person shall include any company or association or body of individuals, whether incorporated or not; and so, it may be conceded that a partnership is a person within the meaning of Item 12A(v). But are the two partnerships of which the respondent is a partner the same person as the respondent? In other words, is the test that the production of artificial silk fabrics must be attributable to the same person, satisfied in a case like the present? The Bombay High Court has answered this question in the negative and in our opinion, the view taken by the High Court is right. The contention of the appellants that every partner of a firm is in law the same person as the firm within the meaning of Item 12A(v) seems to us plainly inconsistent with the content of the said item and the object intended to be served by it in granting exemption to cases covered byargument appears to us to be misconceived. If a partnership consists of 10 persons on Mr. Prems argument the articles produced by the factory belonging to such a partnership may become theof duty in respect of each one of the partners. In fact, in Civil Appeal No. 395/1962 that is what the taxing authorities have purported to do. In the partnership M/s. Arun Textiles with which the said appeal is concerned, there were two partners who were also partners in M/s. M. Kantilal & Co. and notices have been served on both the partnerships in respect of the artificial silk fabrics manufactured in factories belonging to the partnership. The view taken by the taxing authorities was that both the art silk factories, namely, Arun Textiles and M. Kantilal & Co. of Surat which had common partners and had an aggregate potential loomage of more than 24 powerlooms and were producing rayon or art silk fabrics in both these factories, are treated as a collective entity for the Central Excise purposes for the period in question.5.Apart from this consideration, however, on a plain construction of the relevant clause, the context seems to require that the words "the same person" cannot receive the liberal construction for which the appellantsrespondent Shah owns a factory in which there are 9 powerlooms. He is a partner in two other factories in which there are 24 and 19 powerlooms respectively; but the production of artificial silk fabrics attributable to these two factories cannot be said to be production or manufacture by or on behalf of the same person. The production in the first factory is by or on behalf of the respondent himself, while the production or manufacture in the other two factories is by or on behalf of two separate partnership of which the respondent happens to be one partner. We, therefore, feel no difficulty in holding that for the purpose of Item 12A(v) the three persons cannot be said to be the same person as claimed by the appellants. If it was the intention of the legislature to exclude cases like the present from the purview of the exemption clause, then it must be held that the legislature has failed to use appropriate words to carry out that intention. We were told that for subsequent years, the relevant item in the Schedule has been suitably modified and the present question is, therefore, not likely to arise in future. | 0 | 1,753 | 776 | ### 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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known as Saurashtra Mills at Surendranagar, which manufactures the same fabrics on 24 looms. In this firm, there are 12 partners and the respondents share is two annas. The respondent is a partner in another firm Sunlight Textile Mills which owns 19 powerlooms at Bhandup and produces silk fabrics on them. In this last partnership the respondent has eight annas share. His contention is that on a fair and reasonable construction of Item 12A(v) it should be held that the silk fabrics which are produced by him are produced in factory in which less than 25 powerlooms in all are installed. On the other hand, the appellants contention is that in considering the question as to whether in the factories where artificial silk fabrics are produced by or on behalf of the respondent, it will be necessary to add up the powerlooms in all the three factories. According to the appellants, the fact that the respondent owns only one factory in which nine powerlooms are working would not be decisive, because since he is a partner in two other firms which own 24 and 19 powerlooms respectively, these powerlooms must be added to the powerlooms that are working in the factory owned by the respondent alone, and that inevitably takes his case outside the exemption prescribed by Item 12A(v).3.The question which these contentions raise is one of construction. Item 12A(v) refers to cases where artificial silk fabrics are produced or manufactured in one or more factories by or on behalf of the same person in which less than 25 powerlooms in all are installed. Can it be said that the powerlooms which work in the two partnership in which the respondent is a partner are worked by or on behalf of the same person, viz., the respondent. It is quite true that under the law of partnership each partner is an agent of the other partners, but when clause refers to the same person, does it take in cases like the present where a person is working a factory of his own and has joined other partners in working other factories belonging to the said partnership? Under Section 3(42) of the General Clauses Act, 1897 (No. 10 of 1897), a person shall include any company or association or body of individuals, whether incorporated or not; and so, it may be conceded that a partnership is a person within the meaning of Item 12A(v). But are the two partnerships of which the respondent is a partner the same person as the respondent? In other words, is the test that the production of artificial silk fabrics must be attributable to the same person, satisfied in a case like the present? The Bombay High Court has answered this question in the negative and in our opinion, the view taken by the High Court is right. The contention of the appellants that every partner of a firm is in law the same person as the firm within the meaning of Item 12A(v) seems to us plainly inconsistent with the content of the said item and the object intended to be served by it in granting exemption to cases covered by it.4.It has been urged by Mr. Prem on behalf of the appellants that the duty is levied not against the individual who produces the artificial silk fabrics, but against the artificial silk fabrics themselves, and since it is the production of the fabrics which in the subject-matter of the duty, the expression "same person" should be liberally construed to include cases like the present. This argument appears to us to be misconceived. If a partnership consists of 10 persons on Mr. Prems argument the articles produced by the factory belonging to such a partnership may become the subject-matter of duty in respect of each one of the partners. In fact, in Civil Appeal No. 395/1962 that is what the taxing authorities have purported to do. In the partnership M/s. Arun Textiles with which the said appeal is concerned, there were two partners who were also partners in M/s. M. Kantilal & Co. and notices have been served on both the partnerships in respect of the artificial silk fabrics manufactured in factories belonging to the partnership. The view taken by the taxing authorities was that both the art silk factories, namely, Arun Textiles and M. Kantilal & Co. of Surat which had common partners and had an aggregate potential loomage of more than 24 powerlooms and were producing rayon or art silk fabrics in both these factories, are treated as a collective entity for the Central Excise purposes for the period in question.5.Apart from this consideration, however, on a plain construction of the relevant clause, the context seems to require that the words "the same person" cannot receive the liberal construction for which the appellants contend. The respondent Shah owns a factory in which there are 9 powerlooms. He is a partner in two other factories in which there are 24 and 19 powerlooms respectively; but the production of artificial silk fabrics attributable to these two factories cannot be said to be production or manufacture by or on behalf of the same person. The production in the first factory is by or on behalf of the respondent himself, while the production or manufacture in the other two factories is by or on behalf of two separate partnership of which the respondent happens to be one partner. We, therefore, feel no difficulty in holding that for the purpose of Item 12A(v) the three persons cannot be said to be the same person as claimed by the appellants. If it was the intention of the legislature to exclude cases like the present from the purview of the exemption clause, then it must be held that the legislature has failed to use appropriate words to carry out that intention. We were told that for subsequent years, the relevant item in the Schedule has been suitably modified and the present question is, therefore, not likely to arise in future.
### Response:
0
### Explanation:
Item 12A(v) refers to cases where artificial silk fabrics are produced or manufactured in one or more factories by or on behalf of the same person in which less than 25 powerlooms in all are installed. Can it be said that the powerlooms which work in the two partnership in which the respondent is a partner are worked by or on behalf of the same person, viz., the respondent. It is quite true that under the law of partnership each partner is an agent of the other partners, but when clause refers to the same person, does it take in cases like the present where a person is working a factory of his own and has joined other partners in working other factories belonging to the said partnership? Under Section 3(42) of the General Clauses Act, 1897 (No. 10 of 1897), a person shall include any company or association or body of individuals, whether incorporated or not; and so, it may be conceded that a partnership is a person within the meaning of Item 12A(v). But are the two partnerships of which the respondent is a partner the same person as the respondent? In other words, is the test that the production of artificial silk fabrics must be attributable to the same person, satisfied in a case like the present? The Bombay High Court has answered this question in the negative and in our opinion, the view taken by the High Court is right. The contention of the appellants that every partner of a firm is in law the same person as the firm within the meaning of Item 12A(v) seems to us plainly inconsistent with the content of the said item and the object intended to be served by it in granting exemption to cases covered byargument appears to us to be misconceived. If a partnership consists of 10 persons on Mr. Prems argument the articles produced by the factory belonging to such a partnership may become theof duty in respect of each one of the partners. In fact, in Civil Appeal No. 395/1962 that is what the taxing authorities have purported to do. In the partnership M/s. Arun Textiles with which the said appeal is concerned, there were two partners who were also partners in M/s. M. Kantilal & Co. and notices have been served on both the partnerships in respect of the artificial silk fabrics manufactured in factories belonging to the partnership. The view taken by the taxing authorities was that both the art silk factories, namely, Arun Textiles and M. Kantilal & Co. of Surat which had common partners and had an aggregate potential loomage of more than 24 powerlooms and were producing rayon or art silk fabrics in both these factories, are treated as a collective entity for the Central Excise purposes for the period in question.5.Apart from this consideration, however, on a plain construction of the relevant clause, the context seems to require that the words "the same person" cannot receive the liberal construction for which the appellantsrespondent Shah owns a factory in which there are 9 powerlooms. He is a partner in two other factories in which there are 24 and 19 powerlooms respectively; but the production of artificial silk fabrics attributable to these two factories cannot be said to be production or manufacture by or on behalf of the same person. The production in the first factory is by or on behalf of the respondent himself, while the production or manufacture in the other two factories is by or on behalf of two separate partnership of which the respondent happens to be one partner. We, therefore, feel no difficulty in holding that for the purpose of Item 12A(v) the three persons cannot be said to be the same person as claimed by the appellants. If it was the intention of the legislature to exclude cases like the present from the purview of the exemption clause, then it must be held that the legislature has failed to use appropriate words to carry out that intention. We were told that for subsequent years, the relevant item in the Schedule has been suitably modified and the present question is, therefore, not likely to arise in future.
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MUKUL KUMAR TYAGI Vs. THE STATE OF UTTAR PRADESH | to Class III posts or whether the marks and qualifying marks were also incorporated. Moreover, no prejudice was established to have been caused to the appellants by the 90 : 10 allocation. 72. The present is a case where writ petitioners were not aggrieved by any qualifications as prescribed in the advertisement. The cause of action had arisen to them to seek judicial review only when the persons, who do not fulfil the essential qualifications were included in the select list. 73. Further, before issuance of appointment letters to the selected candidates an order was passed in writ petition on 31.07.2015 which has been extracted above wherein learned counsel appearing for corporation had made a statement that no final decision will be taken in pursuance of impugned select list. The High Court by its order dated 17.02.2016, extracted above has made all appointments subject to the result of the writ petition. 74. There is one more aspect which needs to be noted. The Commission had obtained an undertaking from the candidates who had claimed that they have equivalent qualification to CCC that in event their qualification is not found equivalent to CCC, whatever decision will be taken by the Commission same will be acceptable to him. One of such letters given by one of the candidates has been brought on record as Annexure P-3 in the short Rejoinder- Affidavit on behalf of petitioners in SLP(C) No.12943 of 2018 (Now Civil Appeal No.9026 of 2019), which is to the following effect: - To,Secretary,Power Service Commission, U.P. Power Corporation Limited Lucknow. Sub:- Regarding equivalency of CCC Certificate of Computer. Sir, I, Abhijeet Kumar son of Birendra Pandey do hereby declare that Computer Certificate submitted by me at the time of interview for the post of Technician Grade-2(Power) Under Advertisement No.4/PSC/2014, is equivalent to Course CCC conducted by NIELIT and the complete course covered under CCC includes in it. In case Computer Certificate submitted by me is not found equivalent to CCC, then whatever decision will be then by the Power Service Commission about my candidature, the same would be acceptable to me. In case my candidature is rejected, I will not raise any kind of claim. Dated 02.01.2015 Sd/- (ABHIJEET KUMAR) Roll No.2013120008 75. The present is a case where the writ petitioners had not raised any challenge to a particular qualification of any individual candidate rather their challenge was that without scrutiny large number of candidates, who were claiming qualification equivalent to CCC certificate have been included without there being any scrutiny and without they fulfil the qualification. The case of the writ petitioners was that the computer certificate issued by the private organisations and unregistered societies, who neither were recognised by the State Government or Central Government or by any statutory body could not issue any certificate. We may further notice that Division Bench also noticed the above argument of non-impleadment of all the selected candidates in the writ petition but Division Bench has not based its judgment on the above argument. When the inclusion in the select list of large number of candidates is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermore, when select list contained names of 2211 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ petitions in representative capacity. 76. For the reasons as noted above, we are of the opinion that the judgment of learned Single Judge cannot be faulted on the ground that all the selected candidates were not impleaded in the writ petitions filed in the High Court challenging the select list dated 14.07.2015. 77. One of the submissions, which has been made by learned counsel for the appellant appearing in Civil Appeal No. 9028 of 2019 – Ravi Prakash & Ors. Vs. The State of Uttar Pradesh & Ors. is that although the names of the appellants have not been included in the original select list or revised select list, but there being number of vacancies due to non-joining and resignation and they having computer certificate equivalent to CCC certificate, the respondent be directed to fill those vacancies by persons, who are next in the order of merit. It is submitted that appellants are those who have CCC certificates. We may observe that the fact that there are several vacancies due to non-joining or resignation of the candidates is a subsequent event, with regard to which, it is for the Corporation to take any decision and no direction need to be issued in this appeal in this regard. If so advised, the appellants - aggrieved candidates can always represent to the Corporation. 78. One more submission, which has been advanced by learned counsel appearing for those candidates, who were initially in the select list dated 14.07.2015 and went out of the select list due to redrawing of select list is that there are still vacancies on which they can be accommodated, it is submitted that equities have to be adjusted by this Court in facts of this case. The candidates, who were already in the select list dated 14.07.2015 were appointed in August, 2015 and worked for about 03 years, which is a factor, which may be sympathetically considered by this Court. We only observe that these are the issues, which need to be addressed to the Corporation. Whether the existing vacancies have to be filled up by the recruitment, which was undertaken in 2014 or for existing vacancies any further steps are to be taken up, are the issues which have to be considered by the Corporation and we need not issue any direction in that regard. We, however, observe that there shall be liberty to such candidates to represent to the Corporation, which is the authority, to take a decision in accordance with law. | 1[ds]43. In the special appeal, which was filed against judgment of learned Single Judge neither there was any ground nor any pleading that CCC certificate is being granted by any other body or authority. The Division Bench in the impugned judgment has not set aside the above finding of learned Single Judge that CCC certificate is granted only by NIELIT (formerly DOEACC Society)44. One of the submissions, which has been advanced by Shri Dushyant Dave, learned senior counsel for the respondent is that the requirement of CCC certificate by DOEACC Society, which was provided for by O.M. dated 29.01.2011 was done away by O.M. Dated 05.07.2013 issued by the Managing Director of the Corporation, which subsequently was ex-post facto approved on 23.11.2015, hence there was no requirement of CCC certificate from DOEACC/NIELIT. It is true that in the O.M. dated 29.01.2011 issued by the Corporation, specific requirement was of CCC certificate issued by the DOEACC Society as noted above. The recruitment on the above basis was held by the Commission in the year 2011 for filling 2974 posts of Technician Grade-II. The Managing Director on 05.07.2013 issued an O.M. where in place of the CCC certificate by DOEACC as provided in O.M. dated 29.01.2011, it was provided that candidate must possess CCC certificate or equivalent computer qualification, which advertisement dated 06.09.2014 was issued containing the computer qualification as mentioned in the O.M. dated 05.07.2013. When the Managing Director referred to Course on Computer Concept (CCC) in the O.M. dated 05.07.2013, where he mentions that CCC certificate, it cannot be held that CCC certificate by DOEACC or NIELIT was not contemplated. When no other body or authority is issuing CCC certificate, it has to be held that CCC certificate mentioned in the O.M. of Managing Director and the advertisement was the CCC certificate issued by DOEACC/NIELIT. The Uttar Pradesh Power Corporation had added the computer qualification as the essential requirement to serve a particular purpose and to select the candidates having such qualification so that they could perform their duties of the job well. It cannot be accepted that Managing Director by deleting the CCC certificate from DOEACC wanted to do away with CCC certificate by DOEACC or wanted to introduce an uncertainty or a window for all kind of certificates to be recognised. It is, however, to be noted that when the qualification of equivalent computer certificate was provided and added, any certificate, which can be held to be equivalent to CCC certificate, shall also confer eligibility to a candidate. Thus, the true determination, which was to be done with regard to an equivalent computer certificate relied by candidate was to find out whether it was equivalent to CCC certificate or not. But the change in the qualification by Managing Director by O.M. dated 05.07.2013 cannot be read to mean that in the CCC certificate or equivalent computer qualification, the equivalence was to be found out and in which it shall not include only the CCC certificate issued by DOEACC or NIELIT. Any other view shall not be in the interest of either Corporation or Commission47. As noted above, the Commission and the Corporation accepted the judgment of learned Single Judge dated 07.10.2017 and proceeded to redraw the select list. The decision of the Board of Directors of the Corporation as communicated to Electricity Service Commission by letter dated 29.01.2018 which has been brought on record in the counter affidavit filed on behalf of respondent Nos. 2, 3 and 4 in Civil Appeal No. 9026 of 2019 also refers the CCC certificate issued by NIELIT/DOEACC while determining the equivalence of the certificate claimed by the candidates who do not possess CCC certificate by DOEACC/NIELIT49. The candidates who had CCC certificate from NIELIT/DOEACC and who were included in the merit list dated 14.07.2015 were not affected by the judgment of the learned Single Judge dated 07.10.2017 since the list was quashed only insofar as those candidates included in the merit list who did not have CCC certificate by NIELIT/DOEACC. The Division Bench in the impugned judgment has erroneously held that employer after judgment dated 07.10.2017 did not take into consideration the CCC Certificate of DOEACC or NIELIT. Following are the observations made by Division Bench in this regard: -Heard learned counsels appearing on behalf of rival parties. At the threshold, it would be appropriate to state that the employer after accepting the judgment given by learned Single Bench has prepared a fresh select list and, while doing so, the certificate issued by DOEACC relating to CCC has not been taken into consideration50. The Division Bench was not correct in making above observations since neither the learned Single Judge vide its judgment dated 07.10.2017 directed for not taking into consideration CCC certificate by DOEACC nor Corporation or Commission deleted those names from the merit list who had CCC certificate from DOEACC51. We, thus, are of the considered opinion that CCC certificate as mentioned in the advertisement dated 14.09.2014 was CCC certificate as granted by NIELIT/DOEACCThe Clause (7) does not contemplates any self-declaration or self- certification of equivalence of computer qualification of the candidate. The advertisement neither envisaged nor permitted the candidates to give any self-certification or self-declaration that their computer qualification is equivalent to CCC55. The equivalence of qualification as claimed by a candidate is matter of scrutiny by the recruiting agency/employer. It is the recruiting agency which has to be satisfied as to whether the claim of equivalence of qualification by a candidate is sustainable or not. The purpose and object of qualification is fixed by employer to suit or fulfil the objective of recruiting the best candidates for the job. It is the recruiting agency who is under obligation to scrutinise the qualifications of a candidate as to whether a candidate is eligible and entitled to participate in the selection. More so when the advertisement clearly contemplates that certificate concerning the qualification shall be scrutinised, it was the duty and obligation of the recruiting agency to scrutinise the qualification to find out the eligibility of the candidates. The self- certification or self-declaration by a candidate that his computer qualification is equivalent to CCC has neither been envisaged in the advertisement nor can be said to be fulfilling the eligibility condition56. The Division Bench in the impugned judgment has held that self-certification by the candidates of equivalence of their computer qualification was sufficient to treat them eligible. The Division Bench has further observed that no error was committed by employer (Recruiting Agency) in relying on self- declaration by the candidates for computer qualification equivalent to CCC. Following observations have been made in the impugned judgment:-....In present days, computer literacy is just equivalent to letter literacy in earlier days. For letter literacy, self- certification was always acceptable and in line of the same, the computer literacy on self-certification can very well be accepted. In this factual background, we are of considered opinion that the employer did not commit any wrong while having a declaration on basis of self- certification for computer literacy equivalent to CCC57. We are unable to concur with the above view taken by the Division Bench. Scrutiny of Computer qualification claimed by candidate to be equivalent to CCC certificate is the obligation and duty of the recruiting agency/employer as per the advertisement itself as noted above. The recruiting agency or the employer cannot abdicate their obligation to scrutinise the eligibility of candidate pertaining to computer qualification and reliance on self- certification by the candidate is wholly inappropriate and may lead to participation of candidates who does not fulfil the mandatory qualification as per the advertisement58. In view of the foregoing discussions, we conclude that advertisement dated 14.09.2014 do not envisage self-certification by the candidate of equivalence to CCC certificate of the computer qualification and further, self-certification by the candidates of their computer qualification was not sufficient to treat them having passed the required qualificationPOINT NOS.3, 4 AND 5 TOGETHER60. It is relevant to note that in the earlier recruitment, which was held in 2011 for the post of Technician Grade-II only CCC certificate issued by DOEACC was part of mandatory qualification and it was for the 2014 recruitment that CCC certificate or equivalent computer qualification was provided for. When equivalent qualification to CCC was provided for as a mandatory qualification, it was incumbent on the Corporation as well as on the recruitment agency to reflect on the said issue and to lay down criteria or guidelines to declare equivalence of the CCC certificate. It is, thus, clearly proved from the record that no criteria or guidelines were framed or determined either by the Corporation or the Commission before completion of the recruitment process. The employer, who had issued advertisement and required fulfilling of qualification as prescribed ought to be keenly interested in selecting candidates, who fulfil the qualification and serve the post as per requirement of employer. Preparation of the select list without scrutiny of the computer qualification of the candidates, who do not possess CCC certificates is abdication of duty and obligation, both by Corporation and the Commission. It has been noted by learned Single Judge in his judgment that it was only after direction by the Court in the writ petition, the Corporation and Commission became alive to the obligation, which was on them to find out equivalence62. When issue is of the equivalence of a qualification, which is mandatory qualification for a post, there should be yardsticks declaring equivalent or equivalence, which has to be declared by any body entrusted with such jurisdiction and who is competent to declare equivalence of a qualification. In absence of any such declaration, it is for the employer to provide for the methodology for determining the equivalent qualification. The CCC certificate is issued by DOEACC/NIELIT, which is on a particular syllabus. Syllabus of the CCC certificate is placed before us at pages 225 to 230 of the paper book. For declaring any other certificate as equivalent to CCC, the syllabus on which CCC certificate has been granted is most material factor, which has to be looked into. In the present case, no exercise has been done by the Corporation or the Commission to determine the equivalence of the qualification claimed by the candidates, who had not passed CCC certificate from DOEACC/NIELIT. Learned Single Judge has, after consideration of materials on record, made following observations:-As is evident from the above discussion, the question of equivalence was left to hinge solely upon a self-declaration of the candidate. Neither the Corporation nor the Commission had any list of recognised equivalent certificates to guide them on the subject. The policy on equivalence which came about on 27 January, 2015 was a decision taken not only too late but as noted above suffered from fundamental flaws. There was a complete and evident lack of enquiry on course content. Leaving these issues to be decided solely on the basis of a self- declaration of candidates is unequivocal evidence of a failure to exercise powers and an abject abdication of functions vesting in the Commission. More fundamentally, none of the certificates other than CCC were shown or established to be a legally recognised equivalent65. The above view of the Division Bench cannot be approved when the advertisement itself referred to the scrutiny of the qualification and in the recruitment for the first time, the equivalent qualifications were also made mandatory qualification, both the Corporation and the Commission ought to have been more careful in the recruitment process since it is in the interest of both the Commission and the Corporation to select the candidates, who fulfil the qualification, which may subserve the public interest and fulfil the requirement of Article 16 of the Constitution of India. The Division Bench set aside the direction of learned Single Judge by which learned Single Judge had directed to exclude those, who did not have the CCC certificates. The direction of the learned Single Judge as extracted above is in two parts. Learned Single Judge directed :- (i) the select list drawn up pursuant to the advertisements in question insofar as it includes candidates who do not hold a CCC certificate conferred or recognised by NIELIT is quashed; (ii) The respondents shall in consequence redraw the select list restricting it to candidates who hold a recognised CCC certificate or a qualification recognised in law as being equivalent thereto66. The above direction indicates that select list insofar as the candidates, who had certificates from NIELIT/DOEACC was not quashed, their position in select list was not disturbed and select list was partly quashed only with regard to those candidates, who did not have CCC or NIELIT certificate. The object or purpose of the direction was to scrutinise the qualifications of those candidates, who have claimed equivalent certificate. The above direction of the learned Single Judge was only for the purpose to scrutinise the qualification of those candidates, who are found possessing equivalent computer qualification so as to retain their names in the select list. After the judgment of learned Single Judge dated 07.10.2017, the Commission in revising the merit list accepted the guidelines given under the Government Order dated 03.05.2016. The guidelines prescribed under the Government Order dated 03.05.2016 are as follows: -a) The qualification of High School or Intermediate examination with an independent subject or Computer Science from Madhyamik Shiksha Parishad, Uttar Pradesh or from any Institution/Education Board/Council established by the Central or any State Governmentb) If any candidate has obtained Diploma or Degree in Computer Science then he shall also be eligible to be recruited as Junior Assistant/StenographerThus, in the revised select list apart from candidates, who had CCC certificates from DOEACC/NIELIT, the candidates who were covered under guidelines dated 03.05.2016 were also treated as equivalent to CCC and were given place in the merit list subject to marks secured by them in the written test and interview67. The Division Bench opined that self- certification by the candidates for the qualification was sufficient to uphold the earlier action of the recruitment agency in which candidates were included without scrutiny of equivalent certificate. The direction of the learned Single Judge was in accordance with law and has done substantial justice, which did not deserve to be set aside by the Division Bench. We may further notice that after the exercise undertaken by the Commission for redetermining the select list, large number of candidates, whose certificates were not found equivalent to CCC certificates were deleted from the select list. Some of the candidates whose names were deleted from the select list due to their qualification having not found equivalent had filed the writ petitions in the High Court. One Writ Petition of Rohit (Writ Petition No. 13216 of 2018 -Rohit Vs. State of U.P. and 2 others), whose name was deleted on 13.05.2018 has been referred to and relied by the appellants. A special appeal was also filed by Rohit against the dismissal of the writ petition where Division Bench upheld the judgment of learned Single Judge holding that writ petitioner of that petition having not possessed CCC certificate was rightly excluded from the select list68. Thus, the deletion of names of certain candidates from the select list was upheld by an earlier Division Bench of the High Court. The Division Bench of the High Court in the impugned judgment without adverting to cases of those whose deletion of names were upheld by the earlier Division Bench of the High Court had restored the select list, which was in existence on 14.07.2015. For the above reasons, the judgment of the Division Bench cannot be sustained72. The present is a case where writ petitioners were not aggrieved by any qualifications as prescribed in the advertisement. The cause of action had arisen to them to seek judicial review only when the persons, who do not fulfil the essential qualifications were included in the select list73. Further, before issuance of appointment letters to the selected candidates an order was passed in writ petition on 31.07.2015 which has been extracted above wherein learned counsel appearing for corporation had made a statement that no final decision will be taken in pursuance of impugned select list. The High Court by its order dated 17.02.2016, extracted above has made all appointments subject to the result of the writ petition74. There is one more aspect which needs to be noted. The Commission had obtained an undertaking from the candidates who had claimed that they have equivalent qualification to CCC that in event their qualification is not found equivalent to CCC, whatever decision will be taken by the Commission same will be acceptable to him75. The present is a case where the writ petitioners had not raised any challenge to a particular qualification of any individual candidate rather their challenge was that without scrutiny large number of candidates, who were claiming qualification equivalent to CCC certificate have been included without there being any scrutiny and without they fulfil the qualification. The case of the writ petitioners was that the computer certificate issued by the private organisations and unregistered societies, who neither were recognised by the State Government or Central Government or by any statutory body could not issue any certificate. We may further notice that Division Bench also noticed the above argument of non-impleadment of all the selected candidates in the writ petition but Division Bench has not based its judgment on the above argument. When the inclusion in the select list of large number of candidates is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermore, when select list contained names of 2211 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ petitions in representative capacity76. For the reasons as noted above, we are of the opinion that the judgment of learned Single Judge cannot be faulted on the ground that all the selected candidates were not impleaded in the writ petitions filed in the High Court challenging the select list dated 14.07.201577. One of the submissions, which has been made by learned counsel for the appellant appearing in Civil Appeal No. 9028 of 2019 – Ravi Prakash & Ors. Vs. The State of Uttar Pradesh & Ors. is that although the names of the appellants have not been included in the original select list or revised select list, but there being number of vacancies due to non-joining and resignation and they having computer certificate equivalent to CCC certificate, the respondent be directed to fill those vacancies by persons, who are next in the order of merit. It is submitted that appellants are those who have CCC certificates. We may observe that the fact that there are several vacancies due to non-joining or resignation of the candidates is a subsequent event, with regard to which, it is for the Corporation to take any decision and no direction need to be issued in this appeal in this regard. If so advised, the appellants - aggrieved candidates can always represent to the Corporation78. One more submission, which has been advanced by learned counsel appearing for those candidates, who were initially in the select list dated 14.07.2015 and went out of the select list due to redrawing of select list is that there are still vacancies on which they can be accommodated, it is submitted that equities have to be adjusted by this Court in facts of this case. The candidates, who were already in the select list dated 14.07.2015 were appointed in August, 2015 and worked for about 03 years, which is a factor, which may be sympathetically considered by this Court. We only observe that these are the issues, which need to be addressed to the Corporation. Whether the existing vacancies have to be filled up by the recruitment, which was undertaken in 2014 or for existing vacancies any further steps are to be taken up, are the issues which have to be considered by the Corporation and we need not issue any direction in that regard. We, however, observe that there shall be liberty to such candidates to represent to the Corporation, which is the authority, to take a decision in accordance with law. | 1 | 12,461 | 3,655 | ### Instruction:
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to Class III posts or whether the marks and qualifying marks were also incorporated. Moreover, no prejudice was established to have been caused to the appellants by the 90 : 10 allocation. 72. The present is a case where writ petitioners were not aggrieved by any qualifications as prescribed in the advertisement. The cause of action had arisen to them to seek judicial review only when the persons, who do not fulfil the essential qualifications were included in the select list. 73. Further, before issuance of appointment letters to the selected candidates an order was passed in writ petition on 31.07.2015 which has been extracted above wherein learned counsel appearing for corporation had made a statement that no final decision will be taken in pursuance of impugned select list. The High Court by its order dated 17.02.2016, extracted above has made all appointments subject to the result of the writ petition. 74. There is one more aspect which needs to be noted. The Commission had obtained an undertaking from the candidates who had claimed that they have equivalent qualification to CCC that in event their qualification is not found equivalent to CCC, whatever decision will be taken by the Commission same will be acceptable to him. One of such letters given by one of the candidates has been brought on record as Annexure P-3 in the short Rejoinder- Affidavit on behalf of petitioners in SLP(C) No.12943 of 2018 (Now Civil Appeal No.9026 of 2019), which is to the following effect: - To,Secretary,Power Service Commission, U.P. Power Corporation Limited Lucknow. Sub:- Regarding equivalency of CCC Certificate of Computer. Sir, I, Abhijeet Kumar son of Birendra Pandey do hereby declare that Computer Certificate submitted by me at the time of interview for the post of Technician Grade-2(Power) Under Advertisement No.4/PSC/2014, is equivalent to Course CCC conducted by NIELIT and the complete course covered under CCC includes in it. In case Computer Certificate submitted by me is not found equivalent to CCC, then whatever decision will be then by the Power Service Commission about my candidature, the same would be acceptable to me. In case my candidature is rejected, I will not raise any kind of claim. Dated 02.01.2015 Sd/- (ABHIJEET KUMAR) Roll No.2013120008 75. The present is a case where the writ petitioners had not raised any challenge to a particular qualification of any individual candidate rather their challenge was that without scrutiny large number of candidates, who were claiming qualification equivalent to CCC certificate have been included without there being any scrutiny and without they fulfil the qualification. The case of the writ petitioners was that the computer certificate issued by the private organisations and unregistered societies, who neither were recognised by the State Government or Central Government or by any statutory body could not issue any certificate. We may further notice that Division Bench also noticed the above argument of non-impleadment of all the selected candidates in the writ petition but Division Bench has not based its judgment on the above argument. When the inclusion in the select list of large number of candidates is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermore, when select list contained names of 2211 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ petitions in representative capacity. 76. For the reasons as noted above, we are of the opinion that the judgment of learned Single Judge cannot be faulted on the ground that all the selected candidates were not impleaded in the writ petitions filed in the High Court challenging the select list dated 14.07.2015. 77. One of the submissions, which has been made by learned counsel for the appellant appearing in Civil Appeal No. 9028 of 2019 – Ravi Prakash & Ors. Vs. The State of Uttar Pradesh & Ors. is that although the names of the appellants have not been included in the original select list or revised select list, but there being number of vacancies due to non-joining and resignation and they having computer certificate equivalent to CCC certificate, the respondent be directed to fill those vacancies by persons, who are next in the order of merit. It is submitted that appellants are those who have CCC certificates. We may observe that the fact that there are several vacancies due to non-joining or resignation of the candidates is a subsequent event, with regard to which, it is for the Corporation to take any decision and no direction need to be issued in this appeal in this regard. If so advised, the appellants - aggrieved candidates can always represent to the Corporation. 78. One more submission, which has been advanced by learned counsel appearing for those candidates, who were initially in the select list dated 14.07.2015 and went out of the select list due to redrawing of select list is that there are still vacancies on which they can be accommodated, it is submitted that equities have to be adjusted by this Court in facts of this case. The candidates, who were already in the select list dated 14.07.2015 were appointed in August, 2015 and worked for about 03 years, which is a factor, which may be sympathetically considered by this Court. We only observe that these are the issues, which need to be addressed to the Corporation. Whether the existing vacancies have to be filled up by the recruitment, which was undertaken in 2014 or for existing vacancies any further steps are to be taken up, are the issues which have to be considered by the Corporation and we need not issue any direction in that regard. We, however, observe that there shall be liberty to such candidates to represent to the Corporation, which is the authority, to take a decision in accordance with law.
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number of candidates, whose certificates were not found equivalent to CCC certificates were deleted from the select list. Some of the candidates whose names were deleted from the select list due to their qualification having not found equivalent had filed the writ petitions in the High Court. One Writ Petition of Rohit (Writ Petition No. 13216 of 2018 -Rohit Vs. State of U.P. and 2 others), whose name was deleted on 13.05.2018 has been referred to and relied by the appellants. A special appeal was also filed by Rohit against the dismissal of the writ petition where Division Bench upheld the judgment of learned Single Judge holding that writ petitioner of that petition having not possessed CCC certificate was rightly excluded from the select list68. Thus, the deletion of names of certain candidates from the select list was upheld by an earlier Division Bench of the High Court. The Division Bench of the High Court in the impugned judgment without adverting to cases of those whose deletion of names were upheld by the earlier Division Bench of the High Court had restored the select list, which was in existence on 14.07.2015. For the above reasons, the judgment of the Division Bench cannot be sustained72. The present is a case where writ petitioners were not aggrieved by any qualifications as prescribed in the advertisement. The cause of action had arisen to them to seek judicial review only when the persons, who do not fulfil the essential qualifications were included in the select list73. Further, before issuance of appointment letters to the selected candidates an order was passed in writ petition on 31.07.2015 which has been extracted above wherein learned counsel appearing for corporation had made a statement that no final decision will be taken in pursuance of impugned select list. The High Court by its order dated 17.02.2016, extracted above has made all appointments subject to the result of the writ petition74. There is one more aspect which needs to be noted. The Commission had obtained an undertaking from the candidates who had claimed that they have equivalent qualification to CCC that in event their qualification is not found equivalent to CCC, whatever decision will be taken by the Commission same will be acceptable to him75. The present is a case where the writ petitioners had not raised any challenge to a particular qualification of any individual candidate rather their challenge was that without scrutiny large number of candidates, who were claiming qualification equivalent to CCC certificate have been included without there being any scrutiny and without they fulfil the qualification. The case of the writ petitioners was that the computer certificate issued by the private organisations and unregistered societies, who neither were recognised by the State Government or Central Government or by any statutory body could not issue any certificate. We may further notice that Division Bench also noticed the above argument of non-impleadment of all the selected candidates in the writ petition but Division Bench has not based its judgment on the above argument. When the inclusion in the select list of large number of candidates is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermore, when select list contained names of 2211 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ petitions in representative capacity76. For the reasons as noted above, we are of the opinion that the judgment of learned Single Judge cannot be faulted on the ground that all the selected candidates were not impleaded in the writ petitions filed in the High Court challenging the select list dated 14.07.201577. One of the submissions, which has been made by learned counsel for the appellant appearing in Civil Appeal No. 9028 of 2019 – Ravi Prakash & Ors. Vs. The State of Uttar Pradesh & Ors. is that although the names of the appellants have not been included in the original select list or revised select list, but there being number of vacancies due to non-joining and resignation and they having computer certificate equivalent to CCC certificate, the respondent be directed to fill those vacancies by persons, who are next in the order of merit. It is submitted that appellants are those who have CCC certificates. We may observe that the fact that there are several vacancies due to non-joining or resignation of the candidates is a subsequent event, with regard to which, it is for the Corporation to take any decision and no direction need to be issued in this appeal in this regard. If so advised, the appellants - aggrieved candidates can always represent to the Corporation78. One more submission, which has been advanced by learned counsel appearing for those candidates, who were initially in the select list dated 14.07.2015 and went out of the select list due to redrawing of select list is that there are still vacancies on which they can be accommodated, it is submitted that equities have to be adjusted by this Court in facts of this case. The candidates, who were already in the select list dated 14.07.2015 were appointed in August, 2015 and worked for about 03 years, which is a factor, which may be sympathetically considered by this Court. We only observe that these are the issues, which need to be addressed to the Corporation. Whether the existing vacancies have to be filled up by the recruitment, which was undertaken in 2014 or for existing vacancies any further steps are to be taken up, are the issues which have to be considered by the Corporation and we need not issue any direction in that regard. We, however, observe that there shall be liberty to such candidates to represent to the Corporation, which is the authority, to take a decision in accordance with law.
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Dhakeswari Cotton Mills Limited Vs. Commissioner of Income Tax, West Bengal | subject has declared those findings as final and conclusive. (2) That the finding given by the Income-tax Officer and affirmed by the Appellate Assistant Commissioner and the Tribunal was based on material and it could not be said that these bodies had acted arbitrarily in this matter. 17. It was contended that the Income-tax Officer has very wide powers and is not fettered by technical rules of evidence and pleadings, and that the only restriction on his judgment is that he must act honestly on the material however inadequate before him, but not capriciously or arbitrarily. It was suggested that owing to the disparity of the rate of wastage the Income-tax Officer was entitled to reach the conclusion that the assessee had not disclosed the full sales made by him during the accounting year, and that on that basis he was entitled on his own information to make an estimate of the rate of gross profit. 18. As regards the first contention of the learned Solicitor- General, we are unable to accede to it. It is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in this Court by the constitutional provision made in article 136. The limitations, whatever they be, are implicit in the nature and character of the power itself. It being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula or rule. 19. All that can be said is that the Constitution having trusted the wisdom and good sense of the Judges of this Court in this matter, that itself is a sufficient safeguard and guarantee that the power will only be used to advance the cause of justice, and that its exercise will be governed by well established principles which govern the exercise of overriding constitutional powers. It is, however, plain that when the Court reaches the conclusion that a person has been dealt with arbitrarily or that a Court or tribunal within the territory of India has not given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts or otherwise can stand in the way of the exercise of this power because the whole intent and purpose of this article is that it is the duty of this Court to see that injustice is not perpetuated or perpetrated by decisions of Courts and tribunals because certain laws have made the decisions of these Courts or tribunals final and conclusive. What we have said above sufficiently disposes of the first contention raised by the learned Solicitor-General. 20. As regards the second contention, we are in entire agreement with the learned Solicitor-General when he says that the Income-tax Officer is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on material which may not be accepted as evidence in a Court of law, but there the agreement ends; because it is equally clear that in making the assessment under sub-section (3) of section 23 of the Act, the Income-tax Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment under section 23(3). The rule of law on this subject has, in our opinion, been fairly and rightly stated by the Lahore High Court in the case of Seth Gurmukh Singh v. Commissioner of Income-tax, Punjab (Supra). 21. In this case we are of the opinion that the Tribunal violated certain fundamental rules of justice in reaching its conclusions. Firstly, it did not disclose to the assessee what information had been supplied to it by the departmental representative. Next, it did not give any opportunity to the company to rebut the material furnished to it by him, and, lastly, it declined to take all the material that the assessee wanted to produce in support of its case. The result is that the assessee had not had a fair hearing. The estimate of the gross rate of profit on sales, both by the Income-tax Officer and the Tribunal seems to be based on surmises, suspicions and conjectures. 22. It is somewhat surprising that the Tribunal took from the representative of the department a statement of gross profit rates of other cotton mills without showing that statement to the assessee and without giving him an opportunity to show that statement had no relevancy whatsoever to the case of the mill in question. It is not known whether the mills which had disclosed these rates were situate in Bengal or elsewhere, and whether these mills were similarly situated and circumstances. Not only did the Tribunal not show the information given by the representative of the department to the appellant, but it refused even to look at the trunk load of books and papers which Mr. Banerjee produced before the Accountant-Member in his chamber. No harm would have been done if after notice to the department the trunk had been opened and some time devoted to see what it contained. 23. The assessment in this case and in the connected appeal, * we are told, was above the figure of Rs. 55 lakhs and it was meet and proper when dealing with a matter of this magnitude not to employ*civil Appeal NO- 218 Of 1953, not reported, unnecessary haste and show impatience, particularly when it was known to the department that the books of the assessee were in the custody of, the Sub-Divisional Officer, Narayanganj. We think that both the Income-tax Officer and the Tribunal in estimating the gross profit rate on sales did not act on any material but acted on pure guess and suspicion. It is thus a fit case for the exercise of our power under article 136. | 1[ds]18. As regards the first contention of the learned SolicitorGeneral, we are unable to accede to it. It is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in this Court by the constitutional provision made in article 136. The limitations, whatever they be, are implicit in the nature and character of the power itself. It being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula or rule20. As regards the second contention, we are in entire agreement with the learnedl when he says that thex Officer is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on material which may not be accepted as evidence in a Court of law, but there the agreement ends; because it is equally clear that in making the assessment undern (3) of section 23 of the Act, thex Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment under section 23(3). The rule of law on this subject has, in our opinion, been fairly and rightly stated by the Lahore High Court in the case of Seth Gurmukh Singh v. Commissioner of, Punjab (Supra)21. In this case we are of the opinion that the Tribunal violated certain fundamental rules of justice in reaching its conclusions. Firstly, it did not disclose to the assessee what information had been supplied to it by the departmental representative. Next, it did not give any opportunity to the company to rebut the material furnished to it by him, and, lastly, it declined to take all the material that the assessee wanted to produce in support of its case. The result is that the assessee had not had a fair hearing. The estimate of the gross rate of profit on sales, both by thex Officer and the Tribunal seems to be based on surmises, suspicions and conjectures22. It is somewhat surprising that the Tribunal took from the representative of the department a statement of gross profit rates of other cotton mills without showing that statement to the assessee and without giving him an opportunity to show that statement had no relevancy whatsoever to the case of the mill in question. It is not known whether the mills which had disclosed these rates were situate in Bengal or elsewhere, and whether these mills were similarly situated and circumstances. Not only did the Tribunal not show the information given by the representative of the department to the appellant, but it refused even to look at the trunk load of books and papers which Mr. Banerjee produced before ther in his chamber. No harm would have been done if after notice to the department the trunk had been opened and some time devoted to see what it contained23. The assessment in this case and in the connected appeal, * we are told, was above the figure of Rs. 55 lakhs and it was meet and proper when dealing with a matter of this magnitude not to employ*civil Appeal NO218 Of 1953, not reported, unnecessary haste and show impatience, particularly when it was known to the department that the books of the assessee were in the custody of, thel Officer, Narayanganj. We think that both thex Officer and the Tribunal in estimating the gross profit rate on sales did not act on any material but acted on pure guess and suspicion. It is thus a fit case for the exercise of our power under article 136. | 1 | 3,715 | 697 | ### Instruction:
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subject has declared those findings as final and conclusive. (2) That the finding given by the Income-tax Officer and affirmed by the Appellate Assistant Commissioner and the Tribunal was based on material and it could not be said that these bodies had acted arbitrarily in this matter. 17. It was contended that the Income-tax Officer has very wide powers and is not fettered by technical rules of evidence and pleadings, and that the only restriction on his judgment is that he must act honestly on the material however inadequate before him, but not capriciously or arbitrarily. It was suggested that owing to the disparity of the rate of wastage the Income-tax Officer was entitled to reach the conclusion that the assessee had not disclosed the full sales made by him during the accounting year, and that on that basis he was entitled on his own information to make an estimate of the rate of gross profit. 18. As regards the first contention of the learned Solicitor- General, we are unable to accede to it. It is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in this Court by the constitutional provision made in article 136. The limitations, whatever they be, are implicit in the nature and character of the power itself. It being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula or rule. 19. All that can be said is that the Constitution having trusted the wisdom and good sense of the Judges of this Court in this matter, that itself is a sufficient safeguard and guarantee that the power will only be used to advance the cause of justice, and that its exercise will be governed by well established principles which govern the exercise of overriding constitutional powers. It is, however, plain that when the Court reaches the conclusion that a person has been dealt with arbitrarily or that a Court or tribunal within the territory of India has not given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts or otherwise can stand in the way of the exercise of this power because the whole intent and purpose of this article is that it is the duty of this Court to see that injustice is not perpetuated or perpetrated by decisions of Courts and tribunals because certain laws have made the decisions of these Courts or tribunals final and conclusive. What we have said above sufficiently disposes of the first contention raised by the learned Solicitor-General. 20. As regards the second contention, we are in entire agreement with the learned Solicitor-General when he says that the Income-tax Officer is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on material which may not be accepted as evidence in a Court of law, but there the agreement ends; because it is equally clear that in making the assessment under sub-section (3) of section 23 of the Act, the Income-tax Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment under section 23(3). The rule of law on this subject has, in our opinion, been fairly and rightly stated by the Lahore High Court in the case of Seth Gurmukh Singh v. Commissioner of Income-tax, Punjab (Supra). 21. In this case we are of the opinion that the Tribunal violated certain fundamental rules of justice in reaching its conclusions. Firstly, it did not disclose to the assessee what information had been supplied to it by the departmental representative. Next, it did not give any opportunity to the company to rebut the material furnished to it by him, and, lastly, it declined to take all the material that the assessee wanted to produce in support of its case. The result is that the assessee had not had a fair hearing. The estimate of the gross rate of profit on sales, both by the Income-tax Officer and the Tribunal seems to be based on surmises, suspicions and conjectures. 22. It is somewhat surprising that the Tribunal took from the representative of the department a statement of gross profit rates of other cotton mills without showing that statement to the assessee and without giving him an opportunity to show that statement had no relevancy whatsoever to the case of the mill in question. It is not known whether the mills which had disclosed these rates were situate in Bengal or elsewhere, and whether these mills were similarly situated and circumstances. Not only did the Tribunal not show the information given by the representative of the department to the appellant, but it refused even to look at the trunk load of books and papers which Mr. Banerjee produced before the Accountant-Member in his chamber. No harm would have been done if after notice to the department the trunk had been opened and some time devoted to see what it contained. 23. The assessment in this case and in the connected appeal, * we are told, was above the figure of Rs. 55 lakhs and it was meet and proper when dealing with a matter of this magnitude not to employ*civil Appeal NO- 218 Of 1953, not reported, unnecessary haste and show impatience, particularly when it was known to the department that the books of the assessee were in the custody of, the Sub-Divisional Officer, Narayanganj. We think that both the Income-tax Officer and the Tribunal in estimating the gross profit rate on sales did not act on any material but acted on pure guess and suspicion. It is thus a fit case for the exercise of our power under article 136.
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18. As regards the first contention of the learned SolicitorGeneral, we are unable to accede to it. It is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in this Court by the constitutional provision made in article 136. The limitations, whatever they be, are implicit in the nature and character of the power itself. It being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula or rule20. As regards the second contention, we are in entire agreement with the learnedl when he says that thex Officer is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on material which may not be accepted as evidence in a Court of law, but there the agreement ends; because it is equally clear that in making the assessment undern (3) of section 23 of the Act, thex Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment under section 23(3). The rule of law on this subject has, in our opinion, been fairly and rightly stated by the Lahore High Court in the case of Seth Gurmukh Singh v. Commissioner of, Punjab (Supra)21. In this case we are of the opinion that the Tribunal violated certain fundamental rules of justice in reaching its conclusions. Firstly, it did not disclose to the assessee what information had been supplied to it by the departmental representative. Next, it did not give any opportunity to the company to rebut the material furnished to it by him, and, lastly, it declined to take all the material that the assessee wanted to produce in support of its case. The result is that the assessee had not had a fair hearing. The estimate of the gross rate of profit on sales, both by thex Officer and the Tribunal seems to be based on surmises, suspicions and conjectures22. It is somewhat surprising that the Tribunal took from the representative of the department a statement of gross profit rates of other cotton mills without showing that statement to the assessee and without giving him an opportunity to show that statement had no relevancy whatsoever to the case of the mill in question. It is not known whether the mills which had disclosed these rates were situate in Bengal or elsewhere, and whether these mills were similarly situated and circumstances. Not only did the Tribunal not show the information given by the representative of the department to the appellant, but it refused even to look at the trunk load of books and papers which Mr. Banerjee produced before ther in his chamber. No harm would have been done if after notice to the department the trunk had been opened and some time devoted to see what it contained23. The assessment in this case and in the connected appeal, * we are told, was above the figure of Rs. 55 lakhs and it was meet and proper when dealing with a matter of this magnitude not to employ*civil Appeal NO218 Of 1953, not reported, unnecessary haste and show impatience, particularly when it was known to the department that the books of the assessee were in the custody of, thel Officer, Narayanganj. We think that both thex Officer and the Tribunal in estimating the gross profit rate on sales did not act on any material but acted on pure guess and suspicion. It is thus a fit case for the exercise of our power under article 136.
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M/s Laxmi Continental Construction Co Vs. State of U.P. & Anr | the department is appointed as an Arbitrator considering the arbitration clause, whether his mandate to continue the arbitration proceedings shall come to an end on his retirement? The further question which is posed is whether continuance of the arbitration proceedings by such an Arbitrator after his retirement can be said to be committing a misconduct by such a Sole Arbitrator? 11. For the aforesaid question, the relevant arbitration clause required to be considered is clause 52. In the present case, arbitration agreement contains arbitration clause as per clause 52 of the agreement, which is reproduced hereinabove. It provides that on the receipt of the notice from the contractor of his intention to refer the dispute to the arbitration the Chief Engineer shall send to the contractor a list of three officers of the rank of Superintending Engineer or higher, who have not been connected with the work under the contract. Thereafter, the contractor shall within fifteen days of receipt of the list select and communicate to the Chief Engineer the name of one officer from the list, who shall then be appointed as the Sole Arbitrator. It further provides that if a contractor is failed to communicate his selection of name, within the stipulated period, the Chief Engineer shall without delay select one officer from the list and appoint him as the Sole Arbitrator. It further provides that if the Chief Engineer fails to send such a list within 30 days, as stipulated, the contractor shall send a similar list to the Chief Engineer within fifteen days and the Chief Engineer shall then select an officer from the list and appoint him as the Sole Arbitrator within fifteen days. It further provides that the arbitration shall be conducted in accordance with the provisions of the Indian Arbitration Act, 1940. Therefore, the only qualification for appointment as an arbitrator is that he should be the officer of the rank of the Superintending Engineer or higher. Once such an officer is appointed as an Arbitrator, he continues to be the Sole Arbitrator till the arbitration proceedings are concluded unless he incurs the disqualification under the provisions of the Indian Arbitration Act, 1940. Even after his retirement, the arbitration proceedings have to be continued by the same Arbitrator. Clause 52 of the agreement does not provide at all that on the retirement of such an officer, who is appointed as a Sole Arbitrator, he shall not continue as a Sole Arbitrator and/or the mandate to continue with the arbitration proceedings will come to an end. 12. Identical question came to be considered by this Court in the case of Himalayan Construction Co. (supra). The question before this Court was whether the High Court was justified in taking the view that the award, which is made the Rule of the Court by the learned Single Judge was illegal and liable to be set aside on the ground that the arbitrator, who was appointed by designation had retired and has ceased to hold his office when he passed the award. In that case also, the Sole Arbitrator even after his retirement prayed for extension of time and the extension was granted after hearing the parties and as no such objection was raised at that time, and thereafter the nominated Arbitrator, who was the officer, passed the award. This Court overruled the objection that after the retirement of the Sole Arbitrator, who was appointed by designation cannot continue arbitration proceedings after his retirement and cannot pass the award. 13. In the present case also the Sole Arbitrator, who at the relevant time was the Chief Engineer and was qualified to become the Sole Arbitrator was even nominated and/or appointed by the Chief Engineer as per clause 52. Therefore, considering the clause 52 of the agreement, it cannot be said that his mandate to continue with the arbitration proceedings would come to an end on his retirement. 14. It is further required to be noted that even the very objection was raised by the respondents before the learned Civil Judge (Senior Division), Roorkee when the question of extension of time was being considered by the learned Civil Judge (Senior Division), Roorkee. The learned Civil Judge (Senior Division), Roorkee overruled such an objection and granted further one months extension to the Sole Arbitrator to complete the arbitration proceedings. The said order has attained the finality. Therefore, thereafter, it was not open for the respondents to again raise such an objection. 15. Now, so far as the reliance placed upon the amendment to Section 4 of the Indian Arbitration Act, 1940 as applicable to the State of U.P. is concerned, the aforesaid has no substance. State amendment of Section 4 of Arbitration Act, 1940 as applicable to State of U.P. upon which the reliance has been placed reads as under:- XXXXXXXXXX (2) In every such case where any appointed arbitrator neglects or refuses to act, or becomes incapable of acting or dies, the vacancy shall be supplied by the person designated as aforesaid. On fair reading of the aforesaid provision, we are afraid that the aforesaid provision shall be applicable at all. It cannot be said that the Sole Arbitrator had become incapable of acting on his retirement from service. 16. Even the observations made by the High Court in the impugned judgment and order that the Sole Arbitrator has misconducted himself by continuing with the arbitration proceedings after his retirement is also not tenable at law. In the present case, the learned Civil Judge (Senior Division), Roorkee extended the time to the Sole Arbitrator to complete the arbitration proceedings and granted further period of 30 days which was after his retirement and after specifically overruling/rejecting the objections raised by the respondents that after retirement, he cannot continue with the arbitration proceedings. Therefore, once the learned Sole Arbitrator continued with the arbitration proceedings and passed the award within the extended period of time, it cannot be said that he has misconducted himself as he continued with the arbitration proceedings. | 1[ds]12. Identical question came to be considered by this Court in the case of Himalayan Construction Co. (supra). The question before this Court was whether the High Court was justified in taking the view that the award, which is made the Rule of the Court by the learned Single Judge was illegal and liable to be set aside on the ground that the arbitrator, who was appointed by designation had retired and has ceased to hold his office when he passed the award. In that case also, the Sole Arbitrator even after his retirement prayed for extension of time and the extension was granted after hearing the parties and as no such objection was raised at that time, and thereafter the nominated Arbitrator, who was the officer, passed the award. This Court overruled the objection that after the retirement of the Sole Arbitrator, who was appointed by designation cannot continue arbitration proceedings after his retirement and cannot pass the award.13. In the present case also the Sole Arbitrator, who at the relevant time was the Chief Engineer and was qualified to become the Sole Arbitrator was even nominated and/or appointed by the Chief Engineer as per clause 52. Therefore, considering the clause 52 of the agreement, it cannot be said that his mandate to continue with the arbitration proceedings would come to an end on his retirement.14. It is further required to be noted that even the very objection was raised by the respondents before the learned Civil Judge (Senior Division), Roorkee when the question of extension of time was being considered by the learned Civil Judge (Senior Division), Roorkee. The learned Civil Judge (Senior Division), Roorkee overruled such an objection and granted further one months extension to the Sole Arbitrator to complete the arbitration proceedings. The said order has attained the finality. Therefore, thereafter, it was not open for the respondents to again raise such an objection.15. Now, so far as the reliance placed upon the amendment to Section 4 of the Indian Arbitration Act, 1940 as applicable to the State of U.P. is concerned, the aforesaid has no substance.On fair reading of the aforesaid provision, we are afraid that the aforesaid provision shall be applicable at all. It cannot be said that the Sole Arbitrator had become incapable of acting on his retirement from service.16. Even the observations made by the High Court in the impugned judgment and order that the Sole Arbitrator has misconducted himself by continuing with the arbitration proceedings after his retirement is also not tenable at law. In the present case, the learned Civil Judge (Senior Division), Roorkee extended the time to the Sole Arbitrator to complete the arbitration proceedings and granted further period of 30 days which was after his retirement and after specifically overruling/rejecting the objections raised by the respondents that after retirement, he cannot continue with the arbitration proceedings. Therefore, once the learned Sole Arbitrator continued with the arbitration proceedings and passed the award within the extended period of time, it cannot be said that he has misconducted himself as he continued with the arbitration proceedings. | 1 | 3,339 | 576 | ### Instruction:
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the department is appointed as an Arbitrator considering the arbitration clause, whether his mandate to continue the arbitration proceedings shall come to an end on his retirement? The further question which is posed is whether continuance of the arbitration proceedings by such an Arbitrator after his retirement can be said to be committing a misconduct by such a Sole Arbitrator? 11. For the aforesaid question, the relevant arbitration clause required to be considered is clause 52. In the present case, arbitration agreement contains arbitration clause as per clause 52 of the agreement, which is reproduced hereinabove. It provides that on the receipt of the notice from the contractor of his intention to refer the dispute to the arbitration the Chief Engineer shall send to the contractor a list of three officers of the rank of Superintending Engineer or higher, who have not been connected with the work under the contract. Thereafter, the contractor shall within fifteen days of receipt of the list select and communicate to the Chief Engineer the name of one officer from the list, who shall then be appointed as the Sole Arbitrator. It further provides that if a contractor is failed to communicate his selection of name, within the stipulated period, the Chief Engineer shall without delay select one officer from the list and appoint him as the Sole Arbitrator. It further provides that if the Chief Engineer fails to send such a list within 30 days, as stipulated, the contractor shall send a similar list to the Chief Engineer within fifteen days and the Chief Engineer shall then select an officer from the list and appoint him as the Sole Arbitrator within fifteen days. It further provides that the arbitration shall be conducted in accordance with the provisions of the Indian Arbitration Act, 1940. Therefore, the only qualification for appointment as an arbitrator is that he should be the officer of the rank of the Superintending Engineer or higher. Once such an officer is appointed as an Arbitrator, he continues to be the Sole Arbitrator till the arbitration proceedings are concluded unless he incurs the disqualification under the provisions of the Indian Arbitration Act, 1940. Even after his retirement, the arbitration proceedings have to be continued by the same Arbitrator. Clause 52 of the agreement does not provide at all that on the retirement of such an officer, who is appointed as a Sole Arbitrator, he shall not continue as a Sole Arbitrator and/or the mandate to continue with the arbitration proceedings will come to an end. 12. Identical question came to be considered by this Court in the case of Himalayan Construction Co. (supra). The question before this Court was whether the High Court was justified in taking the view that the award, which is made the Rule of the Court by the learned Single Judge was illegal and liable to be set aside on the ground that the arbitrator, who was appointed by designation had retired and has ceased to hold his office when he passed the award. In that case also, the Sole Arbitrator even after his retirement prayed for extension of time and the extension was granted after hearing the parties and as no such objection was raised at that time, and thereafter the nominated Arbitrator, who was the officer, passed the award. This Court overruled the objection that after the retirement of the Sole Arbitrator, who was appointed by designation cannot continue arbitration proceedings after his retirement and cannot pass the award. 13. In the present case also the Sole Arbitrator, who at the relevant time was the Chief Engineer and was qualified to become the Sole Arbitrator was even nominated and/or appointed by the Chief Engineer as per clause 52. Therefore, considering the clause 52 of the agreement, it cannot be said that his mandate to continue with the arbitration proceedings would come to an end on his retirement. 14. It is further required to be noted that even the very objection was raised by the respondents before the learned Civil Judge (Senior Division), Roorkee when the question of extension of time was being considered by the learned Civil Judge (Senior Division), Roorkee. The learned Civil Judge (Senior Division), Roorkee overruled such an objection and granted further one months extension to the Sole Arbitrator to complete the arbitration proceedings. The said order has attained the finality. Therefore, thereafter, it was not open for the respondents to again raise such an objection. 15. Now, so far as the reliance placed upon the amendment to Section 4 of the Indian Arbitration Act, 1940 as applicable to the State of U.P. is concerned, the aforesaid has no substance. State amendment of Section 4 of Arbitration Act, 1940 as applicable to State of U.P. upon which the reliance has been placed reads as under:- XXXXXXXXXX (2) In every such case where any appointed arbitrator neglects or refuses to act, or becomes incapable of acting or dies, the vacancy shall be supplied by the person designated as aforesaid. On fair reading of the aforesaid provision, we are afraid that the aforesaid provision shall be applicable at all. It cannot be said that the Sole Arbitrator had become incapable of acting on his retirement from service. 16. Even the observations made by the High Court in the impugned judgment and order that the Sole Arbitrator has misconducted himself by continuing with the arbitration proceedings after his retirement is also not tenable at law. In the present case, the learned Civil Judge (Senior Division), Roorkee extended the time to the Sole Arbitrator to complete the arbitration proceedings and granted further period of 30 days which was after his retirement and after specifically overruling/rejecting the objections raised by the respondents that after retirement, he cannot continue with the arbitration proceedings. Therefore, once the learned Sole Arbitrator continued with the arbitration proceedings and passed the award within the extended period of time, it cannot be said that he has misconducted himself as he continued with the arbitration proceedings.
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### Explanation:
12. Identical question came to be considered by this Court in the case of Himalayan Construction Co. (supra). The question before this Court was whether the High Court was justified in taking the view that the award, which is made the Rule of the Court by the learned Single Judge was illegal and liable to be set aside on the ground that the arbitrator, who was appointed by designation had retired and has ceased to hold his office when he passed the award. In that case also, the Sole Arbitrator even after his retirement prayed for extension of time and the extension was granted after hearing the parties and as no such objection was raised at that time, and thereafter the nominated Arbitrator, who was the officer, passed the award. This Court overruled the objection that after the retirement of the Sole Arbitrator, who was appointed by designation cannot continue arbitration proceedings after his retirement and cannot pass the award.13. In the present case also the Sole Arbitrator, who at the relevant time was the Chief Engineer and was qualified to become the Sole Arbitrator was even nominated and/or appointed by the Chief Engineer as per clause 52. Therefore, considering the clause 52 of the agreement, it cannot be said that his mandate to continue with the arbitration proceedings would come to an end on his retirement.14. It is further required to be noted that even the very objection was raised by the respondents before the learned Civil Judge (Senior Division), Roorkee when the question of extension of time was being considered by the learned Civil Judge (Senior Division), Roorkee. The learned Civil Judge (Senior Division), Roorkee overruled such an objection and granted further one months extension to the Sole Arbitrator to complete the arbitration proceedings. The said order has attained the finality. Therefore, thereafter, it was not open for the respondents to again raise such an objection.15. Now, so far as the reliance placed upon the amendment to Section 4 of the Indian Arbitration Act, 1940 as applicable to the State of U.P. is concerned, the aforesaid has no substance.On fair reading of the aforesaid provision, we are afraid that the aforesaid provision shall be applicable at all. It cannot be said that the Sole Arbitrator had become incapable of acting on his retirement from service.16. Even the observations made by the High Court in the impugned judgment and order that the Sole Arbitrator has misconducted himself by continuing with the arbitration proceedings after his retirement is also not tenable at law. In the present case, the learned Civil Judge (Senior Division), Roorkee extended the time to the Sole Arbitrator to complete the arbitration proceedings and granted further period of 30 days which was after his retirement and after specifically overruling/rejecting the objections raised by the respondents that after retirement, he cannot continue with the arbitration proceedings. Therefore, once the learned Sole Arbitrator continued with the arbitration proceedings and passed the award within the extended period of time, it cannot be said that he has misconducted himself as he continued with the arbitration proceedings.
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Smt. Saiyada Mossarrat Vs. Hindustan Steel Ltd: Bhillai Steel Plant,Bhillai (M.P.) & O | occupants from properties belonging to the union of India and incidental and ancillary matters. It does not pertain to any matter relating to rights in relation to landlord and tenants for eviction of tenants from lands which have been leased. The Public Premises Act is concerned with the eviction of those persons who have no authority in law to remain in possession of the land belonging to the Union of the India. The unauthorised persons may be squatters, persons having no right whatsoever, or persons who were in occupation by virtue of any agreement but whose right under the agreement had come to an end. Thus, there is no substance in the contention that the Parliament had no legislative competence to enact the Public Premises Act. 12. The learned counsel for the petitioner had however urged an argument in the context of the definition of Public Premises as embodied in Section 2(e)(1)(i) of the Act. The definition envelops premises belonging to or taken on lease by or on behalf of any Company as defined in Section 3 of the Companies Act of 1956 in which not less than 51 per cent of the paid-up capital is held by the Central Government. This contention was raised before the Madhya Pradesh High Court in L. S. Nair case (AIR 1980 MP 106 : 1980 MPLJ 429 : (1980) Ren LR 553) and has been repulsed by the High Court on the reasoning unfolded in the passage extracted from paragraph 4 of the judgment. The first contention raised by the learned counsel for the petitioner is that the Act insofar as it includes in the definition of public premises "any premises belonging to or taken on lease by or on behalf of any company as defined in Section 3 of the Companies Act, 1956, in which not less than 51 per cent of the paid-up share capital is held by the Central Government, " is ultra vires and void, as to that extent the Act is beyond the legislative competence of Parliament. The argument of the learned counsel is that the Act was enacted under entry 32, List I of the Seventh Schedule to the Constitution, which relates to "property of the Union and the revenue therefrom", and that this entry cannot be construed to include the property of a government company which is a different and distinct legal entity from the Union. It may be conceded that the expression "property of the Union", as used in entry 32, List I, cannot be construed to include the property of a government company. But if entry 32 gives jurisdiction to Parliament to enact the Act in respect of government premises, as contended by the learned counsel for the petitioner, entry 43 which relates to incorporation, regulation and winding up of trading jurisdictions read with entry 95 which relates to jurisdiction and powers of all courts except the Supreme Court, with respect to any of the matters in List I, can be construed to confer power on Parliament to enact the Act in respect of premises belonging to a government company. It seems, however, more appropriate that insofar as the Act deals with a lessee or licensee of premises belonging to a government company, the subject matter of the Act would be covered by entries 6, 7 and 46 of List III. These entries broadly deal with transfer of property, contracts and jurisdiction and powers of courts with respect to an of the matter in List III. Taking either view, in our opinion, it is not correct to say that the Act insofar as it relates to premises belonging to a government company suffers from want of legislative competenceLearned counsel for the Petitioner has not been able to show that there is any infirmity in the reasoning of the High Court. Besides, a legislation pertaining to a government company including one pertaining to eviction of trespassers, or unlawful occupants of properties belonging to government companies speedily can be enacted by the Parliament. Government companies are governed by the Indian Companies Act which had itself been enacted in exercise of the legislative authority conferred by entry 43 of the Union List (List I) of the Seventh Schedule of the Constitution. It is idle to contend and it has accordingly not been contended, that a State can legislate under the authority to legislate conferred by the State List (List II) in regard to properties of a government company which may have properties in more than one State and even in Union territories. The need to speedily evict trespassers or unauthorised occupants of such properties is self-evident. The States cannot legislate for such properties in respect of properties situated in more than one State or government companies situated in different States all over India. Surely, the Parliament, in obeisance to its obligation to protect and safeguard the national and overall public interest, can legislate in this respect under the residuary all-pervasive entry - entry 97 of the Union List (List I) of the Constitution of India which clothes the Parliament with the requisite legislative authority in regard to "any other matter not enumerated in List II or List III including any tax not mentioned in either of these lists". It has not been shown that any of the entries in List II or List III would be attracted to the subject matter of speedy eviction of unauthorised occupants from properties belonging to a government company wherein Central Government has more than 51 per cent of the paid-up share capital. The source of authority can thus in any case be traced to entry 97 read with entry 95 of the Constitution of India. 13. In any view of the matter therefore it is futile to contend that Parliament had no legislative competence in this behalf. We therefore concur with the conclusion reached by the High Court in L. S. Nair case (AIR 1980 MP 106 : 1980 MPLJ 429 : (1980) Ren LR 553) and repel the challenge unhesitatingly. | 0[ds]The first contention raised by the learned counsel for the petitioner is that the Act insofar as it includes in the definition of public premises "any premises belonging to or taken on lease by or on behalf of any company as defined in Section 3 of the Companies Act, 1956, in which not less than 51 per cent of thep share capital is held by the Central Government, " is ultra vires and void, as to that extent the Act is beyond the legislative competence of Parliament. The argument of the learned counsel is that the Act was enacted under entry 32, List I of the Seventh Schedule to the Constitution, which relates to "property of the Union and the revenue therefrom", and that this entry cannot be construed to include the property of a government company which is a different and distinct legal entity from the Union. It may be conceded that the expression "property of the Union", as used in entry 32, List I, cannot be construed to include the property of a government company. But if entry 32 gives jurisdiction to Parliament to enact the Act in respect of government premises, as contended by the learned counsel for the petitioner, entry 43 which relates to incorporation, regulation and winding up of trading jurisdictions read with entry 95 which relates to jurisdiction and powers of all courts except the Supreme Court, with respect to any of the matters in List I, can be construed to confer power on Parliament to enact the Act in respect of premises belonging to a government company. It seems, however, more appropriate that insofar as the Act deals with a lessee or licensee of premises belonging to a government company, the subject matter of the Act would be covered by entries 6, 7 and 46 of List III. These entries broadly deal with transfer of property, contracts and jurisdiction and powers of courts with respect to an of the matter in List III. Taking either view, in our opinion, it is not correct to say that the Act insofar as it relates to premises belonging to a government company suffers from want of legislative competenceLearned counsel for the Petitioner has not been able to show that there is any infirmity in the reasoning of the High Court. Besides, a legislation pertaining to a government company including one pertaining to eviction of trespassers, or unlawful occupants of properties belonging to government companies speedily can be enacted by the Parliament. Government companies are governed by the Indian Companies Act which had itself been enacted in exercise of the legislative authority conferred by entry 43 of the Union List (List I) of the Seventh Schedule of the Constitution. It is idle to contend and it has accordingly not been contended, that a State can legislate under the authority to legislate conferred by the State List (List II) in regard to properties of a government company which may have properties in more than one State and even in Union territories. The need to speedily evict trespassers or unauthorised occupants of such properties is. The States cannot legislate for such properties in respect of properties situated in more than one State or government companies situated in different States all over India. Surely, the Parliament, in obeisance to its obligation to protect and safeguard the national and overall public interest, can legislate in this respect under the residuarye entryentry 97 of the Union List (List I) of the Constitution of India which clothes the Parliament with the requisite legislative authority in regard to "any other matter not enumerated in List II or List III including any tax not mentioned in either of these lists". It has not been shown that any of the entries in List II or List III would be attracted to the subject matter of speedy eviction of unauthorised occupants from properties belonging to a government company wherein Central Government has more than 51 per cent of thep share capital. The source of authority can thus in any case be traced to entry 97 read with entry 95 of the Constitution of India13. In any view of the matter therefore it is futile to contend that Parliament had no legislative competence in this behalf. We therefore concur with the conclusion reached by the High Court in L. S. Nair case (AIR 1980 MP 106 : 1980 MPLJ 429 : (1980) Ren LR 553) and repel the challenge unhesitatingly | 0 | 4,354 | 810 | ### Instruction:
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occupants from properties belonging to the union of India and incidental and ancillary matters. It does not pertain to any matter relating to rights in relation to landlord and tenants for eviction of tenants from lands which have been leased. The Public Premises Act is concerned with the eviction of those persons who have no authority in law to remain in possession of the land belonging to the Union of the India. The unauthorised persons may be squatters, persons having no right whatsoever, or persons who were in occupation by virtue of any agreement but whose right under the agreement had come to an end. Thus, there is no substance in the contention that the Parliament had no legislative competence to enact the Public Premises Act. 12. The learned counsel for the petitioner had however urged an argument in the context of the definition of Public Premises as embodied in Section 2(e)(1)(i) of the Act. The definition envelops premises belonging to or taken on lease by or on behalf of any Company as defined in Section 3 of the Companies Act of 1956 in which not less than 51 per cent of the paid-up capital is held by the Central Government. This contention was raised before the Madhya Pradesh High Court in L. S. Nair case (AIR 1980 MP 106 : 1980 MPLJ 429 : (1980) Ren LR 553) and has been repulsed by the High Court on the reasoning unfolded in the passage extracted from paragraph 4 of the judgment. The first contention raised by the learned counsel for the petitioner is that the Act insofar as it includes in the definition of public premises "any premises belonging to or taken on lease by or on behalf of any company as defined in Section 3 of the Companies Act, 1956, in which not less than 51 per cent of the paid-up share capital is held by the Central Government, " is ultra vires and void, as to that extent the Act is beyond the legislative competence of Parliament. The argument of the learned counsel is that the Act was enacted under entry 32, List I of the Seventh Schedule to the Constitution, which relates to "property of the Union and the revenue therefrom", and that this entry cannot be construed to include the property of a government company which is a different and distinct legal entity from the Union. It may be conceded that the expression "property of the Union", as used in entry 32, List I, cannot be construed to include the property of a government company. But if entry 32 gives jurisdiction to Parliament to enact the Act in respect of government premises, as contended by the learned counsel for the petitioner, entry 43 which relates to incorporation, regulation and winding up of trading jurisdictions read with entry 95 which relates to jurisdiction and powers of all courts except the Supreme Court, with respect to any of the matters in List I, can be construed to confer power on Parliament to enact the Act in respect of premises belonging to a government company. It seems, however, more appropriate that insofar as the Act deals with a lessee or licensee of premises belonging to a government company, the subject matter of the Act would be covered by entries 6, 7 and 46 of List III. These entries broadly deal with transfer of property, contracts and jurisdiction and powers of courts with respect to an of the matter in List III. Taking either view, in our opinion, it is not correct to say that the Act insofar as it relates to premises belonging to a government company suffers from want of legislative competenceLearned counsel for the Petitioner has not been able to show that there is any infirmity in the reasoning of the High Court. Besides, a legislation pertaining to a government company including one pertaining to eviction of trespassers, or unlawful occupants of properties belonging to government companies speedily can be enacted by the Parliament. Government companies are governed by the Indian Companies Act which had itself been enacted in exercise of the legislative authority conferred by entry 43 of the Union List (List I) of the Seventh Schedule of the Constitution. It is idle to contend and it has accordingly not been contended, that a State can legislate under the authority to legislate conferred by the State List (List II) in regard to properties of a government company which may have properties in more than one State and even in Union territories. The need to speedily evict trespassers or unauthorised occupants of such properties is self-evident. The States cannot legislate for such properties in respect of properties situated in more than one State or government companies situated in different States all over India. Surely, the Parliament, in obeisance to its obligation to protect and safeguard the national and overall public interest, can legislate in this respect under the residuary all-pervasive entry - entry 97 of the Union List (List I) of the Constitution of India which clothes the Parliament with the requisite legislative authority in regard to "any other matter not enumerated in List II or List III including any tax not mentioned in either of these lists". It has not been shown that any of the entries in List II or List III would be attracted to the subject matter of speedy eviction of unauthorised occupants from properties belonging to a government company wherein Central Government has more than 51 per cent of the paid-up share capital. The source of authority can thus in any case be traced to entry 97 read with entry 95 of the Constitution of India. 13. In any view of the matter therefore it is futile to contend that Parliament had no legislative competence in this behalf. We therefore concur with the conclusion reached by the High Court in L. S. Nair case (AIR 1980 MP 106 : 1980 MPLJ 429 : (1980) Ren LR 553) and repel the challenge unhesitatingly.
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The first contention raised by the learned counsel for the petitioner is that the Act insofar as it includes in the definition of public premises "any premises belonging to or taken on lease by or on behalf of any company as defined in Section 3 of the Companies Act, 1956, in which not less than 51 per cent of thep share capital is held by the Central Government, " is ultra vires and void, as to that extent the Act is beyond the legislative competence of Parliament. The argument of the learned counsel is that the Act was enacted under entry 32, List I of the Seventh Schedule to the Constitution, which relates to "property of the Union and the revenue therefrom", and that this entry cannot be construed to include the property of a government company which is a different and distinct legal entity from the Union. It may be conceded that the expression "property of the Union", as used in entry 32, List I, cannot be construed to include the property of a government company. But if entry 32 gives jurisdiction to Parliament to enact the Act in respect of government premises, as contended by the learned counsel for the petitioner, entry 43 which relates to incorporation, regulation and winding up of trading jurisdictions read with entry 95 which relates to jurisdiction and powers of all courts except the Supreme Court, with respect to any of the matters in List I, can be construed to confer power on Parliament to enact the Act in respect of premises belonging to a government company. It seems, however, more appropriate that insofar as the Act deals with a lessee or licensee of premises belonging to a government company, the subject matter of the Act would be covered by entries 6, 7 and 46 of List III. These entries broadly deal with transfer of property, contracts and jurisdiction and powers of courts with respect to an of the matter in List III. Taking either view, in our opinion, it is not correct to say that the Act insofar as it relates to premises belonging to a government company suffers from want of legislative competenceLearned counsel for the Petitioner has not been able to show that there is any infirmity in the reasoning of the High Court. Besides, a legislation pertaining to a government company including one pertaining to eviction of trespassers, or unlawful occupants of properties belonging to government companies speedily can be enacted by the Parliament. Government companies are governed by the Indian Companies Act which had itself been enacted in exercise of the legislative authority conferred by entry 43 of the Union List (List I) of the Seventh Schedule of the Constitution. It is idle to contend and it has accordingly not been contended, that a State can legislate under the authority to legislate conferred by the State List (List II) in regard to properties of a government company which may have properties in more than one State and even in Union territories. The need to speedily evict trespassers or unauthorised occupants of such properties is. The States cannot legislate for such properties in respect of properties situated in more than one State or government companies situated in different States all over India. Surely, the Parliament, in obeisance to its obligation to protect and safeguard the national and overall public interest, can legislate in this respect under the residuarye entryentry 97 of the Union List (List I) of the Constitution of India which clothes the Parliament with the requisite legislative authority in regard to "any other matter not enumerated in List II or List III including any tax not mentioned in either of these lists". It has not been shown that any of the entries in List II or List III would be attracted to the subject matter of speedy eviction of unauthorised occupants from properties belonging to a government company wherein Central Government has more than 51 per cent of thep share capital. The source of authority can thus in any case be traced to entry 97 read with entry 95 of the Constitution of India13. In any view of the matter therefore it is futile to contend that Parliament had no legislative competence in this behalf. We therefore concur with the conclusion reached by the High Court in L. S. Nair case (AIR 1980 MP 106 : 1980 MPLJ 429 : (1980) Ren LR 553) and repel the challenge unhesitatingly
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Claude-Lila Parulekar Vs. M/S. Sakal Papers Pvt. Ltd. | issue of shares to be allotted in any particular manner to the existing share holders, the allocation of the further issue to the respondent No. 5 and his group was not illegal or contrary to law. V.6.2 As a matter of fact the finding as to the absence of such a requirement in the Articles of Association of the Company was erroneous. Increase of share capital is dealt with in Articles 14 and 15 . Article 15 says: Subject to the directions that may be given by the meeting that sanctions the increase of capital (i) such new shares shall be offered to the persons who are at the date of the offer members of the Company in proportion as nearly as circumstances admit to the capital paid up on their shares at that date, (ii) the offer aforesaid shall be made by notice specifying the number of shares to which the member is entitled and limiting a time not less than fifteen days from the date of the offer, within which the offer, if not accepted, will be deemed to have been declined, (iii) after expiry of the time specified in the notice aforesaid or on the earlier intimation from the member to whom such notice is given that he declines to accept the shares offered, the Directors may dispose of the same in such manner as they think most beneficial to the Company. (emphasis added) V.6.3 No offer was made by notice in writing in terms of this Article. The fresh shares were, as we have seen, allotted on the day they were issued before the expiry of 15 days without waiting for the expiry of the period. The allocation of shares to the Pawars group contrary to this Article was invalid. V.6.4 No court could possibly object to a decision on merits provided it is taken in accordance with law. The decision to issue all the additional shares to the Pawar Group at par may not by itself have warranted interference were it not for the manner in which the entire exercise was undertaken. V.6.5 During the course of the hearing both before the Division Bench and before this Court, the respondents offered to make an allotment of the issued capital to the appellants to participate prorata in the additional issuance. The offer did no more than what the companys articles required to have been undertaken. VI Having effectively held in favour of the appellants, the question finally to be determined is what reliefs can be granted to them. Reliefs VI.1 The respondents contended that the relief of cancellation of 17,666 shares cannot be granted in a petition under Section 155 petition as any reduction of capital must be made strictly in accordance with Sections 100 to 104 or Section 402 of the Companies Act. VI.2. The issue need not detain us as there was no such prayer made by the appellants. They have asked only for rectification of the share register by deletion of the names of the Pawar Grpoup as shareholders in the company. The learned Single Judge merely directed the Board of Directors to dispose of the fresh shares, one can only assume, in accordance with the Articles of the Company and the Act. VI.3. Having effectively held on all issues in favour of the appellant the question remains as to whether we should, in exercise of our discretion under Section 155, grant the appellant the relief of rectification of the shares as claimed. Although the logical conclusion of our findings would be to set aside the transfers and restore the status quo ante, the question is should the share register of the company be directed to be rectified now in respect of shares, the impugned transfer of which took place more than 20 years ago? The respondents have submitted in the course of the hearing that this Court should not in any event disturb the status quo but should mould the relief by awarding compensation, if necessary as prayed for by the appellant. They have referred to the decision in Needle Industries (India) Ltd. V. Needle Industries (Newey) India Holding Ltd. 1981 (3) SCC 333 in support of this submission. We agree. There has been a sea change in the factual scenario. Shantha has died. The company has become a public limited company. The respondents have been at the helm of the company more than, two decades during the legal struggle. Many decisions must of necessity have been taken and implemented. The situation cannot now be unscrambled. It is a course of action which would make the company disfunctional harming the interests of the whole body of share holders, affect companys employees, its creditors and customers. It is not as if we are able to grant any relief directly to the appellant except to the extent of setting aside the transfer. The appellant will still have to pursue her remedies for effective relief in the two pending suits in the District Court of Pune in which the appellant has prayed for specific performance of the contracts for sale of the shares. The outcome of the suits is uncertain. What is certain is that whatever the outcome of the litigation it will be another long round of litigation. Yet another factor to be borne in mind is that the appellant had her own role to play in contributing to the situation which she had to face eventually. Admittedly, Shanta and the appellant ultimately accepted the Chartered Accountants report. As we have noted, no reason whatsoever was given for the sudden change of attitude. If they could agree subsequently to pay the price they could have done so earlier, paid the price and then challenged the value. Further, the Single Judge also gave the appellant and Shanta an opportunity of paying the share price into the Court within a period of six weeks. Had the appellant and Shanta done so, they might have been in a stronger position vis-a-vis- the Pawars in the appeal Court. | 1[ds]12. The Trial Court had rejected the preliminary objection and held that it was open to the parties to choose any one of the remedies available to such party and that the remedy under Section 155 of the Companies Act was equally efficacious, definitely more speedy and certainly appropriate. The Division Bench did not go into the issue having held in favour of the respondents on the merits.14. The power of the Court under Section 155 is limited to the rectification of the register of members of a Company in three situations (a) when the name of a person is wrongly entered in such register (b) when the name of a person, whose name having been entered in the register is omitted therefrom and (3) when default is made in entering the name of any person who has already become or who has ceased to be a member. None of the three situations envisaged under sub-section (1) of Section 155 would allow the person whose right as a member qua the disputed shares is yet to be established to apply for rectification by inclusion of such persons name. The appellants could not, therefore have applied for transfer of the disputed shares in their favour under Section 155 of the Companies Act. They would have to establish that right by way of a separate suit or otherwise. The appellants in paragraph 26 of the Company Petition correctly reserved their right to file appropriate action for transfer of the 3,417 shares to themselves.16. As had been noted by the learned Single Judge, there was no prayer for transfer of the disputed shares to the appellants. The only prayers related to the cancellation of the impugned transfers and the rectification of the Register of Members of the Company by removal of the names of the Respondent 5 and his group.18. Similar prayers were made in respect of the 93 shares. Clearly the reliefs prayed for in the Company Petition were different from for the reliefs claimed in the Civil Suits filed by the appellants. The Civil Suits arose out of and were consequent upon the findings of the learned single Judge on the petition under Section 155 that there was a concluded contract between the holders of the 3417 and 93 shares and the appellants for transfer of those shares to the appellants.19. The learned single Judge correctly held that :This suit was necessary as even if the Petitioners had managed to deposit the amount and got an order of rectification of the register in their favour, there was still no order of any Court which directed the respondents to deliver these shares to the petitioners.20. If there is any issue in the suit which was required to be and has been determined in the Company Petition, the effect of that determination would no doubt be the subject matter of consideration by the Civil Judge, Pune, before whom the suits are pending. But the possibility of overlapping of such issues does not preclude the filing of the suits by the appellants. The appellants advisedly did not pray for the transfer and registration of the disputed shares in their favour in the proceedings under Section 155. They could not have done so.21. That the Court exercising jurisdiction under Section 155 of the Companies Act was competent to entertain the applications filed by the appellants cannot be disputed. The only question is whether the discretion to do so was properly exercised. Despite the respondents submissions to the contrary, we do not consider this case as an appropriate one to decide whether this Courts decision in Ammonia Supplies Corporation (supra) was correct in so far as it has held that the jurisdiction to grant relief provided under Section 155 was exclusive. It may be noted that the view has been reiterated by a larger Bench in Canara Bank vs. Nuclear Power Corporation of India Ltd. & Ors. JT 1995 (3) SC 42 (para 31). But assuming that the decision is wrong and that jurisdiction of the Company Court under S. 155 of the Companies Act and the Civil Court under Section 9 of the Code of Civil Procedure is concurrent, there is no reason for us to refuse to entertain the application under Section 155 of the Companies Act. The questions raised in the petition for rectification were determined on the basis of the material available both by the Single and the Division Bench. Neither of the Courts were of the view that the materials were inadequate or that the disputes were such which could not be resolved under Section 155. Apart from any other circumstance, the fact that the matter has been awaiting disposal by the Courts at the different levels for almost 18 years would render it grossly inequitable and be an improper exercise of judicial discretion if we were to turn the appellants away at this stage to pursue an alternative remedy (if any) available under the general law. The preliminary objection raised by the respondents is accordingly rejected.22. Moving to the merits of the appeals the various issues raised relate to the appellants right to purchase the disputed shares; the transfer of 3417 and 93 shares and the issue and transfer of 17,666 sharesI.1 The preemptive right which is being claimed by the appellants arises from Article 57A of the Articles of Association of the Company. The right is admitted by the respondents, but as the extent of the right is in dispute, it is quoted verbatim.57-A. In the event of any member of Company desires to transfer his shares he shall be bound to offer the same either to Dr. N.B. Parulekar or to Madame Shanta Parulekar or such other person or persons as Dr. N. B. Parulekar or Madame Shanta Parulekar may direct or may nominate and in which event the transferee or transferees shall pay such price as may be certified by the Auditors of the Company.I. 4.1 The Articles give the hierarchy of the persons entitled to purchase shares upon transfer. The first right is given to the preemptors under Article 57-A. Next in the hierarchy is any member who is willing to purchase the shares at a fair value. This follows from a reading of Article 58 with Article 64. The third category is of any person or persons selected by the Directors as being desirable in the interest of the company to admit to membership. The last category is the person to whom the transferor may choose to sell the shares. As long as there is any person in a higher category, there is no question of sale or purchase by a person in a lower category. Thus for example the right of a member or a person in the 2nd category to purchase shares can arise only in the event there is a default or refusal on the part of the preemptor and so on. A person may fall within any one or more of these four categories and would, by virtue of these articles have distinct and separate rights to purchase the shares in each of the four categories. So even if a preemptor or a nominee of a preemptor does not exercise his/her right under Article 57-A to purchase the shares at a price certified by the companys Auditors, such person may choose to exercise the right as an ordinary member and purchase the share at a fair value or the transferor may choose to sell the shares to such person under Article 63.I. 4.2. In the case of a transfer to a person in the 2nd and 3rd categories of putative purchasers, the Directors are appointed agents of the transferor. The notice of transfer is required to constitute the Directors as the transferors agents. This notice is distinct from the other required to be given under Article 57-A. In respect of these two categories, the price of the shares is at first to be negotiated with the transferor. It is only in the case of a default in such agreement being reached that the companys Auditors step in and fix a fair price. The third distinctive feature of these two categories is that upon refusal/default of the preemptor , the transferor is required to give a notice in writing of his desire to transfer. Giving of this notice must necessarily be subsequent to the failure of Article 57-A for whatever reason, as the Directors are required to find a willing person either in the 2nd and if not the 3rd category within a period of 30 days. There is no time limit specified for the completion of the preemptive transfer under Article 57-A. Therefore unless the transferor gives a separate notice of the failure of Article 57-A how would a willing member know whether he/she has a right or when the period fixed for intimating their willingness to purchase was to lapse? Article 60 also requires the Directors to give a notice to the transferor after finding a willing purchasing member or selectee under Article 58. Giving of this notice is important because if 30 days expires without such notice by the Directors, Article 63 would come into play and the transferor would be at liberty to sell the shares to any person and at any price, albeit also within a period of 30 days from the expiry of the first period of 30 days. It follows that a notice issued prior to the preemptor exercising or failing to exercise the right under Article 57-A would not be in keeping with Articles 59 and 60 as this would make the period of 30 days uncertain if not illusory. Thus the notice by the transferor under Article 58 must succeed the factual failure of Article 57-A and notice, if any, under Article 60 must follow the failure of Article 58.I.4.3 Assuming there is a willing purchaser under Article 58, there is no time limit fixed either for the parties to arrive at a negotiated price or for the Auditor to fix a fair value. But Article 63 indicates that the entire transaction envisaged by Articles 59, 60, 61 and 62 would have to be completed within a period of 60 days after Article 57-A failed to operate.I.4.4. Section 36 of the Companies Act, 1956 makes the Memorandum and Articles of Company, when registered, binding not only on the company but also the members inter-se to the same extent as if they had been signed by the company and by each member and covenanted to by the company and each shareholder to observe all the provisions of the Memorandum and of the Articles. The Articles of Association constitute a contract not merely between the shareholders and the company but between the individual shareholders also. The Articles are a source of powers of the Directors who can as a result exercise only those powers conferred by the Articles in accordance therewith. Any action referable to the Articles and contrary thereto would be ultra vires.IV.1 In our opinion the entire transaction of sale is riddled with illegalities.IV.1.1 The notices issued in respect of the 93 and 3417 shares were not in keeping with the Articles as far as Articles 58 to 63 were concerned. As we have already observed, notices to willing members or to selected persons under Article 58 must succeed and not precede the actual operation of Article 57-A. The notices issued by the respondent Nos. 2, 3 and 4 also did not constitute the Directors as the transferors agents for the purposes of selling the shares in terms of Article 59. There was, in the circumstances, no question of the transferors selling their shares to any 3rd party under Article 63 unless proper notice had been issued to the 2nd and 3rd category of persons if any. There was also no question of the transferor invoking Article 61 bypassing the right of a willing member or selectee, if any, to negotiate a fair price.IV.1.2 The Division Bench held that the notices dated 29.11.84 and 10.11.84 issued by the respondent Nos. 2,3 and 4 in respect of the 3417 shares, and the 93 shares respectively, were valid notices under Articles 57-A and 58 to the other shareholders in the company. But the Division Bench erred in holding that none of the other shareholders showed any interest in purchasing the shares. In fact the conclusion of the Division Bench is contradictory. If the notices could be combined notices under Article 57-A and Article 58, then the appellants acceptance of the offer as made in the notices should also be construed as a combined assent under both the Articles. The Division Bench erred in holding that there was no material before the Court to indicate that the second appellant had at any time informed the company that she proposed to exercise her rights as a shareholder to purchase the shares. The Division Bench should have considered whether there was any offer to the second appellant as a shareholder to purchase the shares. If there was not an offer to the shareholders, obviously, there was no question of the second appellant accepting the offer. But whatever offer was made whether under Article 57-A or under Article 58 by the two notices, that offer was accepted by the appellant. And upon such acceptance, there was a concluded contract between the respondent Nos. 2,3 and 4 on the one hand and the second appellant on the other.IV.1.3 The learned Single Judge correctly held that:-The offers being both under Article 57-A and Articles 58 to 64, the acceptance by the second petitioner must be deemed to be not only as a nominee, but also as a member of the first respondent-company entitled to take up the shares in her own right. There is a concluded contract to sell the shares to the second petitioner. The second petitioner was and is not an executrix or a trustee. This contract cannot, therefore, be said to be void or unenforceable.IV.2.1 Article 57-A does not by itself indicate when the contract is concluded between the offeror and offeree. It was concurrently held by the Single Judge and the Division Bench that with the acceptance of the offers of the respondent Nos. 2, 3 and 4 by the appellants, the contract to purchase the shares under STA was concluded. Having regard to Section 9(1) of the Sale of Goods Act, 1930 we see no reason to differ from this conclusion. Section 10(1) of the Sale of Goods Act also speaks of avoidance of an agreement if the third party valuer either cannot or does not fix the price of the goods to be sold. Apart from the fact that the third party valuer in this case did in fact make the valuation, the section proceeds on the basis that the agreement is already concluded otherwise there would be no question of avoidance.The section has no relevance to the question whether there was a contract at all between the parties. It pertains to a condition which is to be implied, unless there is a provision to the contrary, in a contract. Indeed the section assumes the existence of a contract in respect of which such a term may or may not be read in.IV.2.2. The respondents argument that a contract could not be said to be concluded until the price was in fact paid because it would then be open to an offeree like the appellants to stall the transfer of shares to a third party buyer and hold the offeror to ransom, is ingenious but not an argument which is legally acceptable. The legal consequence of a concluded contract will remain irrespective of how a particular party in a given situation might abuse the rights flowing from it. It is platitudinous that the possibility of abuse of a right cannot determine whether the right exists as a matter of law. Such arguments are normally met by the aphorism hard cases make bad law.IV.2.5 If the notices issued by the respondent Nos. 2,3, and 4 were not under Article 58, then it was not open to the respondent Nos. 2,3 and 4 to have sold the shares to the Pawar Group without issuing such notices. Hence irrespective of whether there was a concluded contract between the appellants and the respondent Nos. 2,3 and 4 in respect of the 3417 and 93 shares, the shares could not have been sold to the Pawar Group. Apart from the lack of notice under Article 58, as we have already noticed, the right of a transferor in terms of the Articles of the company to sell the shares to a person of the transferors choice is required to be exercised within the period specified in the Articles. This is clear from Article 63.According to the respondents the appellants had repudiated the contract by challenging the certification of the auditor in February, 1985. If that were so then the Directors were required to give the notice to the transferor or if no such notices were given, the transferors could sell within the period of 30 days thereafter. Those 30 days had long since expired much before the date on which the sale of the shares is said to have taken place between the respondent Nos. 2,3 and 4 and the Pawar Group.IV.3 We are of the view that there was also no repudiation of the contract by the appellants as contended by the respondents on account of the appellants alleged failure to pay the price within the time fixed by the respondent Nos. 2, 3 and 4 by their notices dated 21.2.1985.IV.3.2. As there was no time fixed either under Article 57-A or in the offer letters, the question of time being of the essence did not at all arise. As was held in S.C.Gomathinayagam Pillai vs. Palaniswami Nadar 1967 AIR 1967 SC 868 the stipulation must show that the intention was to make the rights of the parties depend on the observation of the time limits prescribed in a fashion which is unmistakable. If there is no stipulation as to time, it is not open to a party to unilaterally stipulate a time and then cancel the contract because of an alleged failure of the other party to act within the time stipulated. [See: National Co-operative Sugar Mills Ltd., Alanganallur v. M/s. Albert & Co. AIR 1981 MAD 172 (D.B.)IV.3.3. Of course if time is fixed by the contract but it is not originally of the essence, a party could by notice served upon the other call upon him to complete the transaction within the time fixed and intimate that in default of compliance with the requisition the contract will be treated as cancelled (ibid p.872). But where no time is fixed for completion, it is not open to either the vendor or purchaser to serve notice limiting a time at the expiration of which he will treat the contract as at an endIV.3.4 In the circumstances, the contract for sale of the shares to the appellants could not be avoided by reason of any alleged failure on the part of the appellants to pay the price fixed by the Auditor.IV.4.2 There would have been no point in the appellant challenging the valuation of the shares by the auditors if they were not interested in completing the transaction. There would have been also no point in their offering to deposit Rs.20 lakhs as proof of their continued interest in purchasing the shares. The filing of the suit in Pune is not conduct in keeping with an intention of not performing the contract. If the offers were in terms of Article 58, as is now contended by the respondents, then, as we have said, the acceptance of that offer must also be understood to be under Article 58. In that case it was for the parties to negotiate the price for the shares and not for the auditors to determine. The challenge to the certification may be taken as a method of negotiating a fair value under Article 58. Be that as it may, the appellants in fact accepted the price as certified by the auditors on 1st October, 1985.The resolution of the executors was that one of the executors could implement the sale and execute the transfer forms but did not name anyone. Before the sale of the 3417 shares was made to the Pawars by the Executors, it was abundantly clear from the conduct of Shanta (i) that she had revoked consent she may have given qua Executor and Trustee to the sale of the 3417 shares to third parties and (ii) that the appellants were desirous of purchasing the shares themselves in whatever capacity.IV.5.1 In any event the Executors resolution dated 27.11.84 authorizing one of them to effect the transfer of the shares could not override the provisions of Section 108 of the Companies Act which prohibits a company from registering or transferring of shares in the company unless a proper instrument of transfer duly stamped and executed by and on behalf of the transferor and by and on behalf of the transferee and specifying the name, address and occupation if any of the transferee, has been delivered to the company.IV. 5.2 For the purposes of registration of the transfer under Section 108 the instrument of transfer must be executed by the transferor or it must be executed on behalf of the transferor. But there must be execution. The learned single Judge has found as a fact that the instrument of transfer had been signed by only three of the joint shareholders. Shanta had not signed. There were three signatures on the transfer deed. Each transferor had therefore, executed qua shareholders in respect of their own interest. There was no 4th signature on behalf of the 4th joint shareholder. This was also the finding of the Division Bench. But the Division Bench held that it was a mere irregularity which did not vitiate the registration. It was also held that the irregularity could be cured by one of the Executors signing on his behalf.IV.5.3 But compliance with the provisions of Section 108 was and is mandatory.IV.5.5 Even if the four executors had wanted registration only in the capacity of executors and the company also acquiesced in it, the four executors would continue to be ordinary share holders and the limitation would be illegal and of no effect. Being on the register as joint share holders, there is no escape from the proposition that a transfer by one of them only would be an invalid transfer. [See: Barton v. London and Northern Western Railway Co. (1889 24 QBD 77)]IV.5.6 As far as the company is concerned, the requirement of execution of the transfer form by each of the joint share holders could not be met by execution of the transfer form by one of the shareholders even though between the share holders inter-se there was an agreement that one share holder could sign on behalf of all the other share holders unless the executant signs for himself and for on behalf of the other share holders/transferors. It would be of no consequence as far as Section 108 is concerned to exclude the reluctant share holder on the ground that the share holder had refused to execute the form. The remedy of the other joint share holders to compel the reluctant share holder to sign the transfer form would lie elsewhere and not in a breach of the requirement of Section 108 of the Companies Act.IV.5.7 Here the instruments of transfer had admittedly been improperly executed. Both the Courts have so held. It was therefore not lawful for the company to register the transfer. The principle that a Court will not interfere in the affairs of the company if the defect complained of can be cured would apply if the defect is a technicality and is curable. The non-compliance of Section 108 is not a technicality.IV.6 Apart from the violation of Section 108 as far as the registration of shares is concerned, the meeting of the Board of Directors at which the company recorded the transfer was invalidly held.IV.6.2 In the notice for the meeting held on 21st September, 1985, there was no mention whatsoever, let alone a statement, relating to the transfer of the 3417 and 93 shares to the Pawars. At the same meeting, the respondents Nos.5 and 10, were appointed as Additional Directors although their shares were not yet entered in the Companys register of members.IV.7 As we have found several legal infirmities in the sale of the 3417 and 93 shares to the Pawars, it is not necessary to consider whether the respondent No.5 and his group were purchasers of the shares.IV.8. The Division Bench erred in holding that the violation of Section 108 was ratified at the Board Meeting held on 13th October, 1985. Ratification is possible in respect of an act which is incompetent, by a person who would have been competent to do such act. The violation of Section 108 could not be ratified by the Board of Directors as the act was one which the Board was incompetent to allow. The Board of Directors never had the legal capacity to direct the registration of shares invalidly transferred.We do not propose to go into this question in these proceedings.IV.9.2 Under Sections 51 and 52 of the 1882 Act a trustee may not use or deal with trust property for his own profit or any other purpose in connection with the trust. And no trustee whose duty it is to sell trust property may directly or indirectly buy the same or any interest therein, on his own account or through his agent or third person.IV.9.3 Article 57-A does not envisage Shanta purchasing the shares through her nominee. One of hers rights under Article 57-A was no doubt to purchase the shares herself. But she could also nominate any other person to purchase the shares. The transferor then would have to make an offer to such other person who would then, independently of Shanta, be entitled to a transfer of the shares. In the latter case there is no question of any conflict of interest between Shanta in her capacity as trustee under the will of Dr. Paruleker and as a nominator under Article 57-A. Here, Shanta was not purchasing the shares. It is true that she could have done so in exercise of her preemptive right under Article 57-A, but she did not and only nominated her daughter as the person to whom shares should be sold.IV.9.4. This was also how the parties understood the situation as the correspondence exchanged between the parties evidences. As we have noted the resolution relied upon by the respondents authorizing one of them to sell the trust shares, was taken of a meeting held on 27th November, 1984 which was attended only by two of the four Executors. Shanta could not attend because she was ill. Her prayer for adjournment was rejected by the two executors on the ground that her interest would not be jeopardized since she would be given notice under Article 57-A. It was then resolved that notice should be given under Article 57-A to Shanta. If she exercised her right under that Article, the executor was to sell the shares to her at Rs.2,250 per share. If she did not agree to purchase the shares at the price of Rs. 2,250 then the price should be fixed in accordance with Article 61. The resolution further records that only if Shanta did not buy the shares at such fixed price then the executors do sell the shares to any other person or persons at or for the price of Rs. 2,250 per share. Since the meeting was not adjourned because Article 57-A protected Shanta, it follows that if Shantas rights were not to be protected under Article 57-A, then the meeting should have been postponed.IV.9.5. Indeed the matter was referred to the companys auditors in purported compliance with Article 57-A. Certification of the price was made by the auditors also under that Article. The notice of the respondent Nos. 2,3 and 4 calling upon the appellants to pay the certified price was also under Article 57-A. The present stand of the respondent Nos. 2,3 and 4 with regard to the disqualification of Shanta as a purchaser of the shares under Article 57-A is thus wholly inconsistent with their conduct ante litem.IV.9.6. The respondents now say that Article 57-A has no application. If it does not then Article 58 would.In that event, the certification by the auditors was entirely premature as the willing shareholder (the appellant No.2 in this case) would be at liberty to negotiate the price with the respondent Nos. 2,3 and 4 and it would only be in default of any agreement being reached that a fair value would have to be fixed by the auditors. In the circumstances the principle that the trustee not directly or indirectly buying the trust property as contained in Section 57-A of the 1882 Act would also not have any application because irrespective of her right as a nominee of Shanta, the present appellant could undoubtedly have purchased the shares being in the second category in the hierarchy of purchasers provided under Articles 57-A to 64.V.1 The decision to raise the issued capital of the company and to allot the shares at par was taken at an Annual General Meeting held on 16.11.1985. It was resolved at that meeting to immediately issue increased share capital of Rs.17,66,600 of 17,666 equity shares of Rs.100/- each to any person whether a member of the company or not. It was further resolved that the decision would be ratified by convening a general body meeting preferably in the month of January/February, 1986 after giving proper notice and explanatory statementV.2 The notice of the Annual General Meeting was given on 13.10.1985. Although details of ordinary business and special business were given, there was no indication whatsoever that there would be any decision taken with regard to the increase in the issued capital and allotment of shares in the notice. According to the respondents, after the notice of the Annual General Meeting had been issued on 13.10.85, on 5.11.85, the Ministry of Finance gave notice to the company extending the validity of a sanction for foreign exchange loan to 30.11.85 and stating that no further extension would be granted. On 9.11.1985 a letter dated 7.11.1985 was sent to the company by Modular Finance and Consultancy Private Limited (the respondent No.12 before us and a member of Pawar Group) proposing that the share capital of the company be increased and requesting the issue to be decided at an ensuing AGM. On 11.11.1985 a letter was also received by the company from the United Western Bank advising the company in view of its expansion programme, to increase its share capital.We are unable to agree. The purchase of the machinery was in contemplation of the company from much prior to the date of the notice. The alleged letter from the Ministry of Finance was not produced before the High Court and we are not prepared to allow the same to be brought on record at this stageV.3.1 The Division Bench affirmed the finding of the learned Single Judge that the need to increase the issued capital from Rs.7,33,400 to Rs.25 lakhs was not established. Indeed the Division Bench went on to find that the action of issuing the increased share capital clearly indicated that the respondent No. 5 and his group who were in control of the company, had decided to make a fresh issue of share capital to themselves at par so as to strengthen their control over the companyV.4. We have already noticed that Article 93 specifically provides inter alia that every notice of a meeting of the Company shall contain a statement of the business to be transacted thereat and no General Meeting, Annual or Extraordinary, shall be competent to enter upon, discuss or transact any business which has not been specifically mentioned in the notice or notices upon which it was convened.V.4.2 The increase in issuance of share capital does not fall within the exceptions carved out in Article 94 as not being special business. Article 94 reflects the substance of Section 173 of the Companies Act, 1956 and it was therefore, incumbent for notice to be given not only indicating the issuance of the share capital as a special item of business but also giving a statement setting out all material facts relating thereto. The violation of this Article by the company is patent and the Annual General Meeting is to the extent of the violation vitiated thereby.V.5.2. Section 188 provides that a meeting could be requisitioned by the prescribed number of members, after notice of any resolution which may properly be moved and is intended to be moved at a meeting together with a statement with respect to the matter referred to in any proposed resolution. Assuming that Modular Finances letter was in fact circulated, this could hardly be termed to be compliance with the requirement of Section 188 of the Act which deals with meetings called at the instance of requisitionist and circulation of a statement by the requisitionist of a proposed resolution and a statement in support thereof. Moreover, such a notice in terms of the proviso of Sub Section 3 of Section 188 is required to be given in the same manner and, so far as practicable, at the same time as notice of the meeting, and where it is not practicable for it to be served or given at that time, it shall be served or given as soon as practicable thereafter. Further it is clear from Article 94(e) that compliance with Section 188 was in addition to the requirements with the other parts of Article 94 which admittedly have not been complied with.V.5.3 The Division Bench found that there was no explanatory statement annexed to the notice and held that the respondents certainly committed an irregularity in not mentioning the proposal to increase and allot the share capital on the agenda of the annual general meeting. However, it went on to hold that the irregularity did not vitiate the decision because it could be cured since the Pawar group already had majority control and also because the decision had been taken at the annual general meeting that an extraordinary general meeting would be called after proper notice to ratify the fresh issue of 17666 shares at PawarsV.5.4 We are unable to accept the reasoning of the Division Bench. The two grounds which persuaded them not to interfere with the fresh issue are questionable . For one, we have already come to the conclusion that the sale of 3417 and 93 share to the Pawar Group was bad. The Pawar group did not legally have the majority to push through the decision to increase the share capital or to allot the further shares to themselves. For another, the majority cannot be permitted to ride rough shod over the provisions of the Articles and the Companies Act merely because they could if they so desired follow the proper procedure. The haste with which the Pawar Group sought to ensure their position in the company is evident from the fact that a Board Meeting was held immediately after the Annual General Meeting on 16.11.1985 at which the Board resolved to issue the additional 17,666 shares at par to the Pawar Group. There was no notice given of the Board meeting at allV.6.1 The Respondent Company was bound to offer the further shares on a fresh issue of capital to the existing equity share holders in proportion to the capital paid up on the shares at that date. The Division Bench noted that this was provided in Section 81 of the Companies Act. However, because Section 81(3) does not apply to a private limited company (which the company was at that stage) and since according to the Division Bench, the Articles of Association did not require such further issue of shares to be allotted in any particular manner to the existing share holders, the allocation of the further issue to the respondent No. 5 and his group was not illegal or contrary to lawV.6.2 As a matter of fact the finding as to the absence of such a requirement in the Articles of Association of the Company was erroneous.V.6.3 No offer was made by notice in writing in terms of this Article. The fresh shares were, as we have seen, allotted on the day they were issued before the expiry of 15 days without waiting for the expiry of the period. The allocation of shares to the Pawars group contrary to this Article was invalidV.6.4 No court could possibly object to a decision on merits provided it is taken in accordance with law. The decision to issue all the additional shares to the Pawar Group at par may not by itself have warranted interference were it not for the manner in which the entire exercise was undertaken.V.6.5 During the course of the hearing both before the Division Bench and before this Court, the respondents offered to make an allotment of the issued capital to the appellants to participate prorata in the additional issuance. The offer did no more than what the companys articles required to have been undertaken.VI.2. The issue need not detain us as there was no such prayer made by the appellants. They have asked only for rectification of the share register by deletion of the names of the Pawar Grpoup as shareholders in the company. The learned Single Judge merely directed the Board of Directors to dispose of the fresh shares, one can only assume, in accordance with the Articles of the Company and the Act.Although the logical conclusion of our findings would be to set aside the transfers and restore the status quo ante, the question is should the share register of the company be directed to be rectified now in respect of shares, the impugned transfer of which took place more than 20 years ago? The respondents have submitted in the course of the hearing that this Court should not in any event disturb the status quo but should mould the relief by awarding compensation, if necessary as prayed for by the appellant. They have referred to the decision in Needle Industries (India) Ltd. V. Needle Industries (Newey) India Holding Ltd. 1981 (3) SCC 333 in support of this submission. We agree. There has been a sea change in the factual scenario. Shantha has died. The company has become a public limited company. The respondents have been at the helm of the company more than, two decades during the legal struggle. Many decisions must of necessity have been taken and implemented. The situation cannot now be unscrambled. It is a course of action which would make the company disfunctional harming the interests of the whole body of share holders, affect companys employees, its creditors and customers. It is not as if we are able to grant any relief directly to the appellant except to the extent of setting aside the transfer. The appellant will still have to pursue her remedies for effective relief in the two pending suits in the District Court of Pune in which the appellant has prayed for specific performance of the contracts for sale of the shares. The outcome of the suits is uncertain. What is certain is that whatever the outcome of the litigation it will be another long round of litigation. Yet another factor to be borne in mind is that the appellant had her own role to play in contributing to the situation which she had to face eventually. Admittedly, Shanta and the appellant ultimately accepted the Chartered Accountants report. As we have noted, no reason whatsoever was given for the sudden change of attitude. If they could agree subsequently to pay the price they could have done so earlier, paid the price and then challenged the value. Further, the Single Judge also gave the appellant and Shanta an opportunity of paying the share price into the Court within a period of six weeks. Had the appellant and Shanta done so, they might have been in a stronger position vis-a-vis- the Pawars in the appeal Court. | 1 | 16,330 | 7,151 | ### Instruction:
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issue of shares to be allotted in any particular manner to the existing share holders, the allocation of the further issue to the respondent No. 5 and his group was not illegal or contrary to law. V.6.2 As a matter of fact the finding as to the absence of such a requirement in the Articles of Association of the Company was erroneous. Increase of share capital is dealt with in Articles 14 and 15 . Article 15 says: Subject to the directions that may be given by the meeting that sanctions the increase of capital (i) such new shares shall be offered to the persons who are at the date of the offer members of the Company in proportion as nearly as circumstances admit to the capital paid up on their shares at that date, (ii) the offer aforesaid shall be made by notice specifying the number of shares to which the member is entitled and limiting a time not less than fifteen days from the date of the offer, within which the offer, if not accepted, will be deemed to have been declined, (iii) after expiry of the time specified in the notice aforesaid or on the earlier intimation from the member to whom such notice is given that he declines to accept the shares offered, the Directors may dispose of the same in such manner as they think most beneficial to the Company. (emphasis added) V.6.3 No offer was made by notice in writing in terms of this Article. The fresh shares were, as we have seen, allotted on the day they were issued before the expiry of 15 days without waiting for the expiry of the period. The allocation of shares to the Pawars group contrary to this Article was invalid. V.6.4 No court could possibly object to a decision on merits provided it is taken in accordance with law. The decision to issue all the additional shares to the Pawar Group at par may not by itself have warranted interference were it not for the manner in which the entire exercise was undertaken. V.6.5 During the course of the hearing both before the Division Bench and before this Court, the respondents offered to make an allotment of the issued capital to the appellants to participate prorata in the additional issuance. The offer did no more than what the companys articles required to have been undertaken. VI Having effectively held in favour of the appellants, the question finally to be determined is what reliefs can be granted to them. Reliefs VI.1 The respondents contended that the relief of cancellation of 17,666 shares cannot be granted in a petition under Section 155 petition as any reduction of capital must be made strictly in accordance with Sections 100 to 104 or Section 402 of the Companies Act. VI.2. The issue need not detain us as there was no such prayer made by the appellants. They have asked only for rectification of the share register by deletion of the names of the Pawar Grpoup as shareholders in the company. The learned Single Judge merely directed the Board of Directors to dispose of the fresh shares, one can only assume, in accordance with the Articles of the Company and the Act. VI.3. Having effectively held on all issues in favour of the appellant the question remains as to whether we should, in exercise of our discretion under Section 155, grant the appellant the relief of rectification of the shares as claimed. Although the logical conclusion of our findings would be to set aside the transfers and restore the status quo ante, the question is should the share register of the company be directed to be rectified now in respect of shares, the impugned transfer of which took place more than 20 years ago? The respondents have submitted in the course of the hearing that this Court should not in any event disturb the status quo but should mould the relief by awarding compensation, if necessary as prayed for by the appellant. They have referred to the decision in Needle Industries (India) Ltd. V. Needle Industries (Newey) India Holding Ltd. 1981 (3) SCC 333 in support of this submission. We agree. There has been a sea change in the factual scenario. Shantha has died. The company has become a public limited company. The respondents have been at the helm of the company more than, two decades during the legal struggle. Many decisions must of necessity have been taken and implemented. The situation cannot now be unscrambled. It is a course of action which would make the company disfunctional harming the interests of the whole body of share holders, affect companys employees, its creditors and customers. It is not as if we are able to grant any relief directly to the appellant except to the extent of setting aside the transfer. The appellant will still have to pursue her remedies for effective relief in the two pending suits in the District Court of Pune in which the appellant has prayed for specific performance of the contracts for sale of the shares. The outcome of the suits is uncertain. What is certain is that whatever the outcome of the litigation it will be another long round of litigation. Yet another factor to be borne in mind is that the appellant had her own role to play in contributing to the situation which she had to face eventually. Admittedly, Shanta and the appellant ultimately accepted the Chartered Accountants report. As we have noted, no reason whatsoever was given for the sudden change of attitude. If they could agree subsequently to pay the price they could have done so earlier, paid the price and then challenged the value. Further, the Single Judge also gave the appellant and Shanta an opportunity of paying the share price into the Court within a period of six weeks. Had the appellant and Shanta done so, they might have been in a stronger position vis-a-vis- the Pawars in the appeal Court.
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because the decision had been taken at the annual general meeting that an extraordinary general meeting would be called after proper notice to ratify the fresh issue of 17666 shares at PawarsV.5.4 We are unable to accept the reasoning of the Division Bench. The two grounds which persuaded them not to interfere with the fresh issue are questionable . For one, we have already come to the conclusion that the sale of 3417 and 93 share to the Pawar Group was bad. The Pawar group did not legally have the majority to push through the decision to increase the share capital or to allot the further shares to themselves. For another, the majority cannot be permitted to ride rough shod over the provisions of the Articles and the Companies Act merely because they could if they so desired follow the proper procedure. The haste with which the Pawar Group sought to ensure their position in the company is evident from the fact that a Board Meeting was held immediately after the Annual General Meeting on 16.11.1985 at which the Board resolved to issue the additional 17,666 shares at par to the Pawar Group. There was no notice given of the Board meeting at allV.6.1 The Respondent Company was bound to offer the further shares on a fresh issue of capital to the existing equity share holders in proportion to the capital paid up on the shares at that date. The Division Bench noted that this was provided in Section 81 of the Companies Act. However, because Section 81(3) does not apply to a private limited company (which the company was at that stage) and since according to the Division Bench, the Articles of Association did not require such further issue of shares to be allotted in any particular manner to the existing share holders, the allocation of the further issue to the respondent No. 5 and his group was not illegal or contrary to lawV.6.2 As a matter of fact the finding as to the absence of such a requirement in the Articles of Association of the Company was erroneous.V.6.3 No offer was made by notice in writing in terms of this Article. The fresh shares were, as we have seen, allotted on the day they were issued before the expiry of 15 days without waiting for the expiry of the period. The allocation of shares to the Pawars group contrary to this Article was invalidV.6.4 No court could possibly object to a decision on merits provided it is taken in accordance with law. The decision to issue all the additional shares to the Pawar Group at par may not by itself have warranted interference were it not for the manner in which the entire exercise was undertaken.V.6.5 During the course of the hearing both before the Division Bench and before this Court, the respondents offered to make an allotment of the issued capital to the appellants to participate prorata in the additional issuance. The offer did no more than what the companys articles required to have been undertaken.VI.2. The issue need not detain us as there was no such prayer made by the appellants. They have asked only for rectification of the share register by deletion of the names of the Pawar Grpoup as shareholders in the company. The learned Single Judge merely directed the Board of Directors to dispose of the fresh shares, one can only assume, in accordance with the Articles of the Company and the Act.Although the logical conclusion of our findings would be to set aside the transfers and restore the status quo ante, the question is should the share register of the company be directed to be rectified now in respect of shares, the impugned transfer of which took place more than 20 years ago? The respondents have submitted in the course of the hearing that this Court should not in any event disturb the status quo but should mould the relief by awarding compensation, if necessary as prayed for by the appellant. They have referred to the decision in Needle Industries (India) Ltd. V. Needle Industries (Newey) India Holding Ltd. 1981 (3) SCC 333 in support of this submission. We agree. There has been a sea change in the factual scenario. Shantha has died. The company has become a public limited company. The respondents have been at the helm of the company more than, two decades during the legal struggle. Many decisions must of necessity have been taken and implemented. The situation cannot now be unscrambled. It is a course of action which would make the company disfunctional harming the interests of the whole body of share holders, affect companys employees, its creditors and customers. It is not as if we are able to grant any relief directly to the appellant except to the extent of setting aside the transfer. The appellant will still have to pursue her remedies for effective relief in the two pending suits in the District Court of Pune in which the appellant has prayed for specific performance of the contracts for sale of the shares. The outcome of the suits is uncertain. What is certain is that whatever the outcome of the litigation it will be another long round of litigation. Yet another factor to be borne in mind is that the appellant had her own role to play in contributing to the situation which she had to face eventually. Admittedly, Shanta and the appellant ultimately accepted the Chartered Accountants report. As we have noted, no reason whatsoever was given for the sudden change of attitude. If they could agree subsequently to pay the price they could have done so earlier, paid the price and then challenged the value. Further, the Single Judge also gave the appellant and Shanta an opportunity of paying the share price into the Court within a period of six weeks. Had the appellant and Shanta done so, they might have been in a stronger position vis-a-vis- the Pawars in the appeal Court.
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Hongkong & Shanghai Banking Corpn. Ltd Vs. Canbank Financial Services Ltd. | totally unconnected with the transaction between plaintiff and defendant no. 1.On the aforesaid pleadings, the plaintiff filed the suit seeking the relief aforesaid on its assertion that the action of defendant no. 1 by adjusting the amount paid by the plaintiff towards payment allegedly due to defendant no. 1 from Canbank Mutual Fund is totally unauthorized.The defendant no. 1 contested the suit and its plea in the written statement is that on 8th of May, 1991, through a broker M/s. Naresh K. Aggarwala, defendant no. 1 purchased Coal India bonds of the face value of Rs.18 crores from Canbank Mutual Fund and paid to it an amount of Rs.18,05,64,657.53/-. Defendant no. 1 received from Canbank Mutual Fund bank receipt No. 2214 promising to deliver securities purchased by the plaintiff from the Canbank Mutual Fund. The plea of defendant no. 1 further is that on 24th of June, 1991 it sold the same securities to Canbank Mutual Fund and in consideration, received a cheque from Canara Bank for Rs. 18,59,71,808.22/-, which is the principal trustee of Canbank Mutual Fund. Further plea of defendant no. 1 is that along with the pay order defendant no. 1 did not receive any covering letter. Defendant no. 1 has further averred that after receiving the pay order, acting on instructions received from the broker, it handed over the bank receipt to the said broker for onward delivery to the Canbank Mutual Fund. It is claimed by defendant no. 1 that for transaction dated 24th of June, 1991 the broker has issued a contract note to defendant no. 1 who by letter dated 30th of October, 1992 confirmed that he had received the bank receipt No. 2214 issued by Canbank Mutual Fund from defendant no. 1 and handed over that receipt to Canbank Mutual Fund. Although defendant no. 1 admits that broker had informed him that the pay order dated 24th of June, 1991 was issued on account of plaintiff, the said payment had been made by it with a clear understanding and arrangement between the plaintiff and the Canbank Mutual Fund that the bonds would be delivered by Canbank Mutual Fund to the plaintiff on account of the money having been paid by the plaintiff to said defendant. Therefore, according to defendant no. 1, the liability to deliver the securities to the plaintiff is that of Canbank Mutual Fund and not of defendant no. 1. It is the case of defendant no. 1 that there was no transaction between it and plaintiff for purchase of any securities on 24th of June, 1991.On the basis of the pleadings the trial court framed a large number of issues including the following issue with which we are concerned in the present appeal:?3) Whether Defendant prove that the said pay order for Rs. 18,59,71,808.22 was issued by Plaintiffs on behalf of CMF as alleged in para 8 of Written Statement??On the basis of the pleadings and the evidence, the trial court recorded a finding that the plaintiff has proved that on 24th of June, 1991 it had bought the securities through the broker Naresh K. Aggarwala. The trial court also recorded a finding that the payment was made by the plaintiff to defendant no. 1 of the purchase price relying on the pay order which shows that Canara Bank issued the pay order on account of the plaintiff. All these findings are based on material on record and, in fact, can not legitimately be questioned. The main defence of defendant no. 1 is that there was understanding between the plaintiff and Canbank Mutual Fund and, in fact, the payment was made to it by the plaintiff on behalf of the Canbank Mutual Fund. Thus, defendant no. 1 accepts receipt of the payment by a pay order on account of the plaintiff. However, its assertion is that the payment was made to it by the plaintiff on behalf of the Canbank Mutual Fund. In view of this assertion, the only question which falls for consideration is as to whether defendant no. 1 has established that the payment that was made by the plaintiff to it on 24th of June, 1991 was on behalf of the Canbank Mutual Fund? Mr. C.A. Sundaram, Senior Counsel appearing on behalf of defendant no. 1-appellant submits that on 24th of June, 1991, the appellant received the payment and the broker informed it that the payment had been made by the plaintiff on behalf of Canbank Mutual Fund. Once this is established, the case of the plaintiff would fail. Ms. Sunita Dutt, Counsel appearing on behalf Canbank Financial Services Ltd., plaintiff-respondent no. 1, however, submits that it is a separate legal entity so also the Canbank Mutual Fund and it is established that as the amount was paid by the plaintiff for purchase of the securities, defendant no. 1 was obliged to deliver the securities or to refund the amount to the plaintiff. We have bestowed our consideration to the rival submission and we do not find any substance in the submission of Mr. Sundaram. It is the specific case of defendant no. 1 that the broker informed it that the plaintiff has made payment on behalf of Canbank Mutual Fund. However, the letter dated 25th of February, 1993 of the broker to defendant no. 1 shows that on 24th of June, 1991 the Coal India bonds were sold by defendant no. 1 to the plaintiff and not to Canbank Mutual Fund. From the aforesaid it is evident that defendant no. 1 has not been able to prove that payment was made by the plaintiff on behalf of Canbank Mutual Fund. The natural corollary thereof is that the payment was made by the plaintiff to defendant no. 1 to purchase the bonds. It is not the case of defendant no. 1 that it had delivered the bonds to the plaintiff. Therefore, we are in agreement with the reasoning and the conclusions arrived at by the trial court and find no reason to interfere with the same. | 0[ds]We have bestowed our consideration to the rival submission and we do not find any substance in the submission of Mr. Sundaram. It is the specific case of defendant no. 1 that the broker informed it that the plaintiff has made payment on behalf of Canbank Mutual Fund. However, the letter dated 25th of February, 1993 of the broker to defendant no. 1 shows that on 24th of June, 1991 the Coal India bonds were sold by defendant no. 1 to the plaintiff and not to Canbank Mutual Fund. From the aforesaid it is evident that defendant no. 1 has not been able to prove that payment was made by the plaintiff on behalf of Canbank Mutual Fund. The natural corollary thereof is that the payment was made by the plaintiff to defendant no. 1 to purchase the bonds. It is not the case of defendant no. 1 that it had delivered the bonds to the plaintiff. Therefore, we are in agreement with the reasoning and the conclusions arrived at by the trial court and find no reason to interfere with the same. | 0 | 1,644 | 204 | ### 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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totally unconnected with the transaction between plaintiff and defendant no. 1.On the aforesaid pleadings, the plaintiff filed the suit seeking the relief aforesaid on its assertion that the action of defendant no. 1 by adjusting the amount paid by the plaintiff towards payment allegedly due to defendant no. 1 from Canbank Mutual Fund is totally unauthorized.The defendant no. 1 contested the suit and its plea in the written statement is that on 8th of May, 1991, through a broker M/s. Naresh K. Aggarwala, defendant no. 1 purchased Coal India bonds of the face value of Rs.18 crores from Canbank Mutual Fund and paid to it an amount of Rs.18,05,64,657.53/-. Defendant no. 1 received from Canbank Mutual Fund bank receipt No. 2214 promising to deliver securities purchased by the plaintiff from the Canbank Mutual Fund. The plea of defendant no. 1 further is that on 24th of June, 1991 it sold the same securities to Canbank Mutual Fund and in consideration, received a cheque from Canara Bank for Rs. 18,59,71,808.22/-, which is the principal trustee of Canbank Mutual Fund. Further plea of defendant no. 1 is that along with the pay order defendant no. 1 did not receive any covering letter. Defendant no. 1 has further averred that after receiving the pay order, acting on instructions received from the broker, it handed over the bank receipt to the said broker for onward delivery to the Canbank Mutual Fund. It is claimed by defendant no. 1 that for transaction dated 24th of June, 1991 the broker has issued a contract note to defendant no. 1 who by letter dated 30th of October, 1992 confirmed that he had received the bank receipt No. 2214 issued by Canbank Mutual Fund from defendant no. 1 and handed over that receipt to Canbank Mutual Fund. Although defendant no. 1 admits that broker had informed him that the pay order dated 24th of June, 1991 was issued on account of plaintiff, the said payment had been made by it with a clear understanding and arrangement between the plaintiff and the Canbank Mutual Fund that the bonds would be delivered by Canbank Mutual Fund to the plaintiff on account of the money having been paid by the plaintiff to said defendant. Therefore, according to defendant no. 1, the liability to deliver the securities to the plaintiff is that of Canbank Mutual Fund and not of defendant no. 1. It is the case of defendant no. 1 that there was no transaction between it and plaintiff for purchase of any securities on 24th of June, 1991.On the basis of the pleadings the trial court framed a large number of issues including the following issue with which we are concerned in the present appeal:?3) Whether Defendant prove that the said pay order for Rs. 18,59,71,808.22 was issued by Plaintiffs on behalf of CMF as alleged in para 8 of Written Statement??On the basis of the pleadings and the evidence, the trial court recorded a finding that the plaintiff has proved that on 24th of June, 1991 it had bought the securities through the broker Naresh K. Aggarwala. The trial court also recorded a finding that the payment was made by the plaintiff to defendant no. 1 of the purchase price relying on the pay order which shows that Canara Bank issued the pay order on account of the plaintiff. All these findings are based on material on record and, in fact, can not legitimately be questioned. The main defence of defendant no. 1 is that there was understanding between the plaintiff and Canbank Mutual Fund and, in fact, the payment was made to it by the plaintiff on behalf of the Canbank Mutual Fund. Thus, defendant no. 1 accepts receipt of the payment by a pay order on account of the plaintiff. However, its assertion is that the payment was made to it by the plaintiff on behalf of the Canbank Mutual Fund. In view of this assertion, the only question which falls for consideration is as to whether defendant no. 1 has established that the payment that was made by the plaintiff to it on 24th of June, 1991 was on behalf of the Canbank Mutual Fund? Mr. C.A. Sundaram, Senior Counsel appearing on behalf of defendant no. 1-appellant submits that on 24th of June, 1991, the appellant received the payment and the broker informed it that the payment had been made by the plaintiff on behalf of Canbank Mutual Fund. Once this is established, the case of the plaintiff would fail. Ms. Sunita Dutt, Counsel appearing on behalf Canbank Financial Services Ltd., plaintiff-respondent no. 1, however, submits that it is a separate legal entity so also the Canbank Mutual Fund and it is established that as the amount was paid by the plaintiff for purchase of the securities, defendant no. 1 was obliged to deliver the securities or to refund the amount to the plaintiff. We have bestowed our consideration to the rival submission and we do not find any substance in the submission of Mr. Sundaram. It is the specific case of defendant no. 1 that the broker informed it that the plaintiff has made payment on behalf of Canbank Mutual Fund. However, the letter dated 25th of February, 1993 of the broker to defendant no. 1 shows that on 24th of June, 1991 the Coal India bonds were sold by defendant no. 1 to the plaintiff and not to Canbank Mutual Fund. From the aforesaid it is evident that defendant no. 1 has not been able to prove that payment was made by the plaintiff on behalf of Canbank Mutual Fund. The natural corollary thereof is that the payment was made by the plaintiff to defendant no. 1 to purchase the bonds. It is not the case of defendant no. 1 that it had delivered the bonds to the plaintiff. Therefore, we are in agreement with the reasoning and the conclusions arrived at by the trial court and find no reason to interfere with the same.
### Response:
0
### Explanation:
We have bestowed our consideration to the rival submission and we do not find any substance in the submission of Mr. Sundaram. It is the specific case of defendant no. 1 that the broker informed it that the plaintiff has made payment on behalf of Canbank Mutual Fund. However, the letter dated 25th of February, 1993 of the broker to defendant no. 1 shows that on 24th of June, 1991 the Coal India bonds were sold by defendant no. 1 to the plaintiff and not to Canbank Mutual Fund. From the aforesaid it is evident that defendant no. 1 has not been able to prove that payment was made by the plaintiff on behalf of Canbank Mutual Fund. The natural corollary thereof is that the payment was made by the plaintiff to defendant no. 1 to purchase the bonds. It is not the case of defendant no. 1 that it had delivered the bonds to the plaintiff. Therefore, we are in agreement with the reasoning and the conclusions arrived at by the trial court and find no reason to interfere with the same.
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Sadashiv Prasad Singh Vs. Harendar Singh | is nobody’s case, that at the time of the auction-purchase, the value of the property purchased by Sadashiv Prasad Sinha was in excess of his bid. In fact, the factual position depicted under paragraph 8 of the impugned judgment reveals, that the escalation of prices had taken place thereafter, and the value of the property purchased by Sadashiv Prasad Sinha was presently much higher than the bid amount. Since it was nobody’s case that Sadashiv Prasad Sinha, the highest bidder at the auction conducted on 28.8.2008, had purchased the property in question at a price lesser than the then prevailing market price, there was no justification whatsoever to set aside the auction-purchase made by him on account of escalation of prices thereafter. The High Court in ignoring the vested right of the appellant in the property in question, after his auction bid was accepted and confirmed, subjected him to grave injustice by depriving him to property which he had genuinely and legitimately purchased at a public auction. In our considered view, not only did the Division Bench of the High Court in the matter by ignoring the sound, legal and clear principles laid down by this Court in respect of a third party auction purchaser, the High Court also clearly overlooked the equitable rights vested in the auction-purchaser during the pendency of a lis. The High Court also clearly overlooked the equitable rights vested in the auction purchaser while disposing of the matter. 15. At the time of hearing, we were thinking of remanding the matter to the Recovery Officer to investigate into the objection of Harender Singh under Rule 11 of the Second Schedule to the Income Tax Act, 1961. But considering the delay such a remand may cause, we have ourselves examined the objections of Harender Singh and reject the objections for a variety of reasons. Firstly, the contention raised at the hands of the respondents before the High Court, that the facts narrated by Harender Singh (the appellant in Special Leave Petition (C) No.26550 of 2010) were a total sham, as he was actually the brother of one of the judgment-debtors, namely, Jagmohan Singh. And that Harender Singh had created an unbelievable story with the connivance and help of his brother, so as to save the property in question. The claim of Harender Singh in his objection petition, was based on an unregistered agreement to sell dated 10.1.1991. Not only that such an agreement to sell would not vest any legal right in his favour; it is apparent that it may not have been difficult for him to have had the aforesaid agreement to sell notarized in connivance with his brother, for the purpose sought to be achieved. Secondly, it is apparent from the factual position depicted in the foregoing paragraphs that Harender Singh, despite his having filed objections before the Recovery Officer, had abandoned the contest raised by him by not appearing (and by not being represented) before the Recovery Officer after 26.10.2005, whereas, the Recovery Officer had passed the order of sale of the property by way of public auction more than two years thereafter, only on 5.5.2008. Having abandoned his claim before the Recovery Officer, it was not open to him to have reagitated the same by filing a writ petition before the High Court. Thirdly, a remedy of appeal was available to Harender Singh in respect of the order of the Recovery Officer assailed by him before the High Court under Section 30, which is being extracted herein to assail the order dated 5.5.2008: “30. Appeal against the order of Recovery Officer.—(1) Notwithstanding anything contained in section 29, any person aggrieved by an order of the Recovery Officer made under this Act may, within thirty days from the date on which a copy of the order is issued to him, prefer an appeal to the Tribunal.(2) On receipt of an appeal under sub-section (1), the Tribunal may, after giving an opportunity to the appellant to be heard, and after making such inquiry as it deems fit, confirm, modify or set aside the order made by the Recovery Officer in exercise of his powers under section 25 to 28 (both inclusive).” 16. The High Court ought not to have interfered with in the matter agitated by Harender Singh in exercise of its writ jurisdiction. In fact, the learned Single Judge rightfully dismissed the writ petition filed by Harender Singh. Fourthly, Harender Singh could not be allowed to raise a challenge to the public auction held on 28.8.2008 because he had not raised any objection to the attachment of the property in question or the proclamations and notices issued in newspapers in connection with the auction thereof. All these facts cumulatively lead to the conclusion that after 26.10.2005, Harender Singh had lost all interest in the property in question and had therefore, remained a silent spectator to various orders which came to be passed from time to time. He had, therefore, no equitable right in his favour to assail the auction-purchase made by Sadashiv Prasad Sinha on 28.8.2008. Finally, the public auction under reference was held on 28.8.2008. Thereafter the same was confirmed on 22.09.2008. Possession of the property was handed over to the auction-purchaser Sadashiv Prasad Sinha on 11.3.2009. The auction-purchaser initiated mutation proceedings in respect of the property in question. Harender Singh did not raise any objections in the said mutation proceedings. The said mutation proceedings were also finalized in favour of Sadashiv Prasad Sinha. Harender Singh approached the High Court through CWJC No.16485 of 209 only on 27.11.2009. We are of the view that the challenged raised by Harender Singh ought to have been rejected on the grounds of delay and latches, especially because third party rights had emerged in the meantime. More so, because the auction purchaser was a bona fide purchaser for consideration, having purchased the property in furtherance of a duly publicized public auction, interference by the High Court even on ground of equity was clearly uncalled for. 17. | 1[ds]The High Court ought not to have interfered with in the matter agitated by Harender Singh in exercise of its writ jurisdiction. In fact, the learned Single Judge rightfully dismissed the writ petition filed by Harender Singh. Fourthly, Harender Singh could not be allowed to raise a challenge to the public auction held on 28.8.2008 because he had not raised any objection to the attachment of the property in question or the proclamations and notices issued in newspapers in connection with the auction thereof. All these facts cumulatively lead to the conclusion that after 26.10.2005, Harender Singh had lost all interest in the property in question and had therefore, remained a silent spectator to various orders which came to be passed from time to time. He had, therefore, no equitable right in his favour to assail the auction-purchase made by Sadashiv Prasad Sinha on 28.8.2008. Finally, the public auction under reference was held on 28.8.2008. Thereafter the same was confirmed on 22.09.2008. Possession of the property was handed over to the auction-purchaser Sadashiv Prasad Sinha on 11.3.2009. The auction-purchaser initiated mutation proceedings in respect of the property in question. Harender Singh did not raise any objections in the said mutation proceedings. The said mutation proceedings were also finalized in favour of Sadashiv Prasad Sinha. Harender Singh approached the High Court through CWJC No.16485 of 209 only on 27.11.2009. We are of the view that the challenged raised by Harender Singh ought to have been rejected on the grounds of delay and latches, especially because third party rights had emerged in the meantime. More so, because the auction purchaser was a bona fide purchaser for consideration, having purchased the property in furtherance of a duly publicized public auction, interference by the High Court even on ground of equity was clearly uncalled for. | 1 | 5,404 | 330 | ### 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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is nobody’s case, that at the time of the auction-purchase, the value of the property purchased by Sadashiv Prasad Sinha was in excess of his bid. In fact, the factual position depicted under paragraph 8 of the impugned judgment reveals, that the escalation of prices had taken place thereafter, and the value of the property purchased by Sadashiv Prasad Sinha was presently much higher than the bid amount. Since it was nobody’s case that Sadashiv Prasad Sinha, the highest bidder at the auction conducted on 28.8.2008, had purchased the property in question at a price lesser than the then prevailing market price, there was no justification whatsoever to set aside the auction-purchase made by him on account of escalation of prices thereafter. The High Court in ignoring the vested right of the appellant in the property in question, after his auction bid was accepted and confirmed, subjected him to grave injustice by depriving him to property which he had genuinely and legitimately purchased at a public auction. In our considered view, not only did the Division Bench of the High Court in the matter by ignoring the sound, legal and clear principles laid down by this Court in respect of a third party auction purchaser, the High Court also clearly overlooked the equitable rights vested in the auction-purchaser during the pendency of a lis. The High Court also clearly overlooked the equitable rights vested in the auction purchaser while disposing of the matter. 15. At the time of hearing, we were thinking of remanding the matter to the Recovery Officer to investigate into the objection of Harender Singh under Rule 11 of the Second Schedule to the Income Tax Act, 1961. But considering the delay such a remand may cause, we have ourselves examined the objections of Harender Singh and reject the objections for a variety of reasons. Firstly, the contention raised at the hands of the respondents before the High Court, that the facts narrated by Harender Singh (the appellant in Special Leave Petition (C) No.26550 of 2010) were a total sham, as he was actually the brother of one of the judgment-debtors, namely, Jagmohan Singh. And that Harender Singh had created an unbelievable story with the connivance and help of his brother, so as to save the property in question. The claim of Harender Singh in his objection petition, was based on an unregistered agreement to sell dated 10.1.1991. Not only that such an agreement to sell would not vest any legal right in his favour; it is apparent that it may not have been difficult for him to have had the aforesaid agreement to sell notarized in connivance with his brother, for the purpose sought to be achieved. Secondly, it is apparent from the factual position depicted in the foregoing paragraphs that Harender Singh, despite his having filed objections before the Recovery Officer, had abandoned the contest raised by him by not appearing (and by not being represented) before the Recovery Officer after 26.10.2005, whereas, the Recovery Officer had passed the order of sale of the property by way of public auction more than two years thereafter, only on 5.5.2008. Having abandoned his claim before the Recovery Officer, it was not open to him to have reagitated the same by filing a writ petition before the High Court. Thirdly, a remedy of appeal was available to Harender Singh in respect of the order of the Recovery Officer assailed by him before the High Court under Section 30, which is being extracted herein to assail the order dated 5.5.2008: “30. Appeal against the order of Recovery Officer.—(1) Notwithstanding anything contained in section 29, any person aggrieved by an order of the Recovery Officer made under this Act may, within thirty days from the date on which a copy of the order is issued to him, prefer an appeal to the Tribunal.(2) On receipt of an appeal under sub-section (1), the Tribunal may, after giving an opportunity to the appellant to be heard, and after making such inquiry as it deems fit, confirm, modify or set aside the order made by the Recovery Officer in exercise of his powers under section 25 to 28 (both inclusive).” 16. The High Court ought not to have interfered with in the matter agitated by Harender Singh in exercise of its writ jurisdiction. In fact, the learned Single Judge rightfully dismissed the writ petition filed by Harender Singh. Fourthly, Harender Singh could not be allowed to raise a challenge to the public auction held on 28.8.2008 because he had not raised any objection to the attachment of the property in question or the proclamations and notices issued in newspapers in connection with the auction thereof. All these facts cumulatively lead to the conclusion that after 26.10.2005, Harender Singh had lost all interest in the property in question and had therefore, remained a silent spectator to various orders which came to be passed from time to time. He had, therefore, no equitable right in his favour to assail the auction-purchase made by Sadashiv Prasad Sinha on 28.8.2008. Finally, the public auction under reference was held on 28.8.2008. Thereafter the same was confirmed on 22.09.2008. Possession of the property was handed over to the auction-purchaser Sadashiv Prasad Sinha on 11.3.2009. The auction-purchaser initiated mutation proceedings in respect of the property in question. Harender Singh did not raise any objections in the said mutation proceedings. The said mutation proceedings were also finalized in favour of Sadashiv Prasad Sinha. Harender Singh approached the High Court through CWJC No.16485 of 209 only on 27.11.2009. We are of the view that the challenged raised by Harender Singh ought to have been rejected on the grounds of delay and latches, especially because third party rights had emerged in the meantime. More so, because the auction purchaser was a bona fide purchaser for consideration, having purchased the property in furtherance of a duly publicized public auction, interference by the High Court even on ground of equity was clearly uncalled for. 17.
### Response:
1
### Explanation:
The High Court ought not to have interfered with in the matter agitated by Harender Singh in exercise of its writ jurisdiction. In fact, the learned Single Judge rightfully dismissed the writ petition filed by Harender Singh. Fourthly, Harender Singh could not be allowed to raise a challenge to the public auction held on 28.8.2008 because he had not raised any objection to the attachment of the property in question or the proclamations and notices issued in newspapers in connection with the auction thereof. All these facts cumulatively lead to the conclusion that after 26.10.2005, Harender Singh had lost all interest in the property in question and had therefore, remained a silent spectator to various orders which came to be passed from time to time. He had, therefore, no equitable right in his favour to assail the auction-purchase made by Sadashiv Prasad Sinha on 28.8.2008. Finally, the public auction under reference was held on 28.8.2008. Thereafter the same was confirmed on 22.09.2008. Possession of the property was handed over to the auction-purchaser Sadashiv Prasad Sinha on 11.3.2009. The auction-purchaser initiated mutation proceedings in respect of the property in question. Harender Singh did not raise any objections in the said mutation proceedings. The said mutation proceedings were also finalized in favour of Sadashiv Prasad Sinha. Harender Singh approached the High Court through CWJC No.16485 of 209 only on 27.11.2009. We are of the view that the challenged raised by Harender Singh ought to have been rejected on the grounds of delay and latches, especially because third party rights had emerged in the meantime. More so, because the auction purchaser was a bona fide purchaser for consideration, having purchased the property in furtherance of a duly publicized public auction, interference by the High Court even on ground of equity was clearly uncalled for.
|
M/S. Optiemus Infracom Ltd Vs. M/S. Ishan Systems Pvt.Ltd. | 1. Two Special Leave Petitions have been filed against the judgment and order dated 14th February, 2012, passed by the Allahabad High Court, in Civil Miscellaneous Writ Petition No.8409/2012. 2. The first Special Leave Petition has been filed by M/S. OPTIEMUS INFRACOM LTD., being SLP(C)......CC 12128/12. the second Special Leave Petition has been filed by M/S. PHOENIX ARC PVT.LTD., being SLP(C)......CC 12468/12. 3. Delay condoned. 4. Leave granted in both the Special Leave Petitions. 5. Writ Petition No.8409 of 2012, was filed by the respondent, M/S. ISHAN SYSTEMS PVT.LTD.& ANR., against the judgment and order dated 11th April, 2011, whereunder the property of the respondent/judgment-debtor Co. was put to auction. An application had been filed by the respondent-company before the Debts Recovery Tribunal complaining of violation of the statutory rules which regulate the auction of property. Other grounds were also taken, but the same were rejected by the High Court. In fact, the High Court, after examining the records of the writ petition, had found no good ground to interfere with the order of the Appellate Authority. Instead of stopping there, the High Court went on further to give various directions to the Debts Recovery Tribunal, to proceed and decide the application, which had been filed by the respondent No.1/petitioner, being S.A.No.714/2011. By another direction the auction purchaser was restrained from making any further transfer of the property in question and any construction raised would abide by the orders to be passed in the pending application before the Debts Recovery Tribunal. With the aforesaid directions, the High Court disposed of the writ petition finally.6. The said judgment and order of the High Court had been questioned on the ground that having found no ground to interfere with the order of the Appellate Authority, the learned Judge of the High Court should not have passed other orders, and, in particular, an order of injunction, which was to the prejudice of the appellant before us, without issuing notice or giving the appellant an opportunity of hearing.7. Since the writ petition was disposed of on the very first date, without notice to the respondents, there was no occasion to consider the competence of the Allahabad High Court to entertain the writ petition. Subsequently, another writ petition was filed by the respondents herein, being No.35215 of 2012, before the Allahabad High Court, for quashing the order dated 10th July, 2012, which had been passed by the D.R.T.-III, Delhi, by which the application filed by the respondents herein under Section 17(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the SARFAESI Act), was rejected. In the said petition, the question of jurisdiction was raised and was heard and decided against the respondents herein. In fact, reference was made in the judgment delivered on 30th July, 2012, to the earlier writ petition and it had been observed that although, the earlier writ petition had been entertained by the Allahabad High Court, the issue relating to jurisdiction had not been gone into, since the writ petition had been disposed of on the first date, without hearing the respondents.8. Ultimately, the learned Judge accepted the preliminary objections raised on behalf of the appellants herein and held that the Allahabad High Court had no jurisdiction to entertain the writ petition and dismissed the same accordingly.9. Both, S/Shri Venugopal and Ranjit Kumar, learned senior advocates appearing for the appellants in these two appeals, submitted that, although, the order of the High Court has to some extent been worked out and the sale which had been effected has been confirmed, the only question which remained to be considered was the competence of the Allahabad High Court to entertain a writ petition from an order passed by the Debts Recovery Tribunal, Delhi, and the fact that the same was disposed of on the very first day, without notice, by issuing orders and directions which prejudiced the appellants.10. Mr. Chetan Sharma, learned senior advocate appearing for the respondents, has tried to impress upon us that the order of injunction which was passed by the Allahabad High Court was innocuous and that it did not prejudice or adversely affect the appellants in any way and since the sale has been confirmed, nothing further remained to be decided, as far as the said question is concerned.11. It is true that the impugned order has more or less worked itself out, but it needs to be indicated that the practice which was adopted by the Allahabad High Court, is not only arbitrary, but also contrary to the concept of the principles of natural justice. Since the writ petition was to be dismissed without issuing notice, it should have been dismissed without giving any further directions in the matter. Instead, certain positive instructions were given to the respondents and one of the respondents was restrained from dealing with the property, without any notice to him/them. If there was any intention on the part of the learned Judge to protect the properties in question during the pendency of the matter before the Debts Recovery Tribunal, the proper course of action would have been to issue notice, and, if necessary, pass interim orders and, thereafter, after hearing the parties to pass final orders in the matter.12. We hope that in future, this kind of order will be avoided in the interest of justice and also having regard to the principles of natural justice. | 1[ds]11. It is true that the impugned order has more or less worked itself out, but it needs to be indicated that the practice which was adopted by the Allahabad High Court, is not only arbitrary, but also contrary to the concept of the principles of natural justice. Since the writ petition was to be dismissed without issuing notice, it should have been dismissed without giving any further directions in the matter. Instead, certain positive instructions were given to the respondents and one of the respondents was restrained from dealing with the property, without any notice to him/them. If there was any intention on the part of the learned Judge to protect the properties in question during the pendency of the matter before the Debts Recovery Tribunal, the proper course of action would have been to issue notice, and, if necessary, pass interim orders and, thereafter, after hearing the parties to pass final orders in the matter.12. We hope that in future, this kind of order will be avoided in the interest of justice and also having regard to the principles of natural justice. | 1 | 1,023 | 207 | ### 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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1. Two Special Leave Petitions have been filed against the judgment and order dated 14th February, 2012, passed by the Allahabad High Court, in Civil Miscellaneous Writ Petition No.8409/2012. 2. The first Special Leave Petition has been filed by M/S. OPTIEMUS INFRACOM LTD., being SLP(C)......CC 12128/12. the second Special Leave Petition has been filed by M/S. PHOENIX ARC PVT.LTD., being SLP(C)......CC 12468/12. 3. Delay condoned. 4. Leave granted in both the Special Leave Petitions. 5. Writ Petition No.8409 of 2012, was filed by the respondent, M/S. ISHAN SYSTEMS PVT.LTD.& ANR., against the judgment and order dated 11th April, 2011, whereunder the property of the respondent/judgment-debtor Co. was put to auction. An application had been filed by the respondent-company before the Debts Recovery Tribunal complaining of violation of the statutory rules which regulate the auction of property. Other grounds were also taken, but the same were rejected by the High Court. In fact, the High Court, after examining the records of the writ petition, had found no good ground to interfere with the order of the Appellate Authority. Instead of stopping there, the High Court went on further to give various directions to the Debts Recovery Tribunal, to proceed and decide the application, which had been filed by the respondent No.1/petitioner, being S.A.No.714/2011. By another direction the auction purchaser was restrained from making any further transfer of the property in question and any construction raised would abide by the orders to be passed in the pending application before the Debts Recovery Tribunal. With the aforesaid directions, the High Court disposed of the writ petition finally.6. The said judgment and order of the High Court had been questioned on the ground that having found no ground to interfere with the order of the Appellate Authority, the learned Judge of the High Court should not have passed other orders, and, in particular, an order of injunction, which was to the prejudice of the appellant before us, without issuing notice or giving the appellant an opportunity of hearing.7. Since the writ petition was disposed of on the very first date, without notice to the respondents, there was no occasion to consider the competence of the Allahabad High Court to entertain the writ petition. Subsequently, another writ petition was filed by the respondents herein, being No.35215 of 2012, before the Allahabad High Court, for quashing the order dated 10th July, 2012, which had been passed by the D.R.T.-III, Delhi, by which the application filed by the respondents herein under Section 17(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the SARFAESI Act), was rejected. In the said petition, the question of jurisdiction was raised and was heard and decided against the respondents herein. In fact, reference was made in the judgment delivered on 30th July, 2012, to the earlier writ petition and it had been observed that although, the earlier writ petition had been entertained by the Allahabad High Court, the issue relating to jurisdiction had not been gone into, since the writ petition had been disposed of on the first date, without hearing the respondents.8. Ultimately, the learned Judge accepted the preliminary objections raised on behalf of the appellants herein and held that the Allahabad High Court had no jurisdiction to entertain the writ petition and dismissed the same accordingly.9. Both, S/Shri Venugopal and Ranjit Kumar, learned senior advocates appearing for the appellants in these two appeals, submitted that, although, the order of the High Court has to some extent been worked out and the sale which had been effected has been confirmed, the only question which remained to be considered was the competence of the Allahabad High Court to entertain a writ petition from an order passed by the Debts Recovery Tribunal, Delhi, and the fact that the same was disposed of on the very first day, without notice, by issuing orders and directions which prejudiced the appellants.10. Mr. Chetan Sharma, learned senior advocate appearing for the respondents, has tried to impress upon us that the order of injunction which was passed by the Allahabad High Court was innocuous and that it did not prejudice or adversely affect the appellants in any way and since the sale has been confirmed, nothing further remained to be decided, as far as the said question is concerned.11. It is true that the impugned order has more or less worked itself out, but it needs to be indicated that the practice which was adopted by the Allahabad High Court, is not only arbitrary, but also contrary to the concept of the principles of natural justice. Since the writ petition was to be dismissed without issuing notice, it should have been dismissed without giving any further directions in the matter. Instead, certain positive instructions were given to the respondents and one of the respondents was restrained from dealing with the property, without any notice to him/them. If there was any intention on the part of the learned Judge to protect the properties in question during the pendency of the matter before the Debts Recovery Tribunal, the proper course of action would have been to issue notice, and, if necessary, pass interim orders and, thereafter, after hearing the parties to pass final orders in the matter.12. We hope that in future, this kind of order will be avoided in the interest of justice and also having regard to the principles of natural justice.
### Response:
1
### Explanation:
11. It is true that the impugned order has more or less worked itself out, but it needs to be indicated that the practice which was adopted by the Allahabad High Court, is not only arbitrary, but also contrary to the concept of the principles of natural justice. Since the writ petition was to be dismissed without issuing notice, it should have been dismissed without giving any further directions in the matter. Instead, certain positive instructions were given to the respondents and one of the respondents was restrained from dealing with the property, without any notice to him/them. If there was any intention on the part of the learned Judge to protect the properties in question during the pendency of the matter before the Debts Recovery Tribunal, the proper course of action would have been to issue notice, and, if necessary, pass interim orders and, thereafter, after hearing the parties to pass final orders in the matter.12. We hope that in future, this kind of order will be avoided in the interest of justice and also having regard to the principles of natural justice.
|
Bombay Anand Bhavan Restaurant Vs. Dy. Director , Esi Corpn. | relevant period as the same has been proved beyond doubt. So, the essential question which comes up for consideration is whether there has been use of power in the aid of the manufacturing process. It is the contention of the respondent corporation that use of LPG gas amounts to use of power.25) The definition of `Power is in two parts. Firstly, it is electrical energy, and includes any other form of energy which is mechanically transmitted. The second part of the definition provides for exclusion from the definition of power, i.e., it does not include power generated by human or animal energy. The definition is wide enough to include all forms of energy which is mechanically transmitted. We will revert back to this definition little later after understanding what is LPG Gas and the mechanism employed while transmitting the energy from LPG containers. 26) The New Encyclopaedia Britannica, 15th Edition contains an article on liquefied petroleum gas which is also called LP Gas, or LPG. The article is extracted: "Liquefied petroleum gas, also called LP Gas or LPG, any of several liquid mixture of the volatile hydrocarbons propene, propane, butene, and butane. It was used as early as 1860 for a portable fuel source, and its production and consumption for both domestic and industrial use have expanded ever since. A typical commercial mixture may also contain ethane and ethylene as well as a volatile mercaptan, an odorant added as a safety precaution." 27) LPG or LPG gas is the abbreviation of liquefied petroleum gas. This group of products includes saturated hydrocarbons, propane and butane, which can be stored and transported separately or as a mixture. This is called liquefied petroleum gas, because these gases liquefy under moderate pressure. LPG is used as a fuel for domestic (cooking), industrial, horticulture, agricultural, heating and drying processes. LPG can be used as an automotive fuel or as a propellant for aerosols, in addition to other specialists applications. LPG can also be used to provide lighting through the use of pressure lanterns. 28) The gas cylinder is filled with a liquefied fuel gas, such as liquefied butane or the like, having a relatively low activity. A portion of the liquefied fuel gas is enclosed in the body of the gas cylinder which is vaporized, causing the internal pressure of the gas cylinder to be higher than the outside pressure. Therefore, there is conversion from one form of energy to another. A valve mechanism having a stem is mounted on the body of gas cylinder. The gas cylinder is joined to the gas cooking stove so that the stem is pushed inwards and the valve mechanism is opened. Thus, the fuel gas is discharged owing to the internal pressure. The gas cooking stove incorporates a body, which is provided with a valve mechanism for supplying fuel gas to the burner and an operating member for opening/closing the valve mechanism. The valve mechanism in gas cooking equipment is to reduce high pressure gas supply to a lower working pressure. This is done to ensure steady supply of the gas at constant pressure. (Assistance is taken from the internet). 29) The submission of the learned counsel for the appellant, is that in view of the definition of power in the Factories Act, any other form of energy requires to be `Mechanically transmitted, which essentially involves use of machinery. It is also suggested that `mechanical pertains to the use of machines and, as such, the transmission of LPG from the cylinder through a tube connected thereto does not qualify as a machine. 30) Mechanical transmission is as opposed to manual transmission where human agency is involved in the process of transmission. Transmission is defined in the Collins Discovery Encyclopedia, 2005 (1st ed.) as "the extent to which a body or medium transmits light, sound or some other form of the energy". The word `Machinery is defined under Section 2(j) of the Factories Act. `Machinery includes Prime movers, transmission machinery and all other appliances whereby power is generated, transformed, transmitted or applied. The expression `prime mover means any engine, motor or other appliances which generates or otherwise provides power and the definition of transmission machinery under Section 2(i) of the Factories Act means any shaft, wheel drum, pulley, system of pulleys, coupling clutch, driving belt or other appliance or device by which the motion of a prime mover is transmitted to or received by any machinery or appliance. 31) LPG is stored in a cylinder fitted with a tube. Upon careful perusal of the definitions, which we have noticed earlier, it is clear that an LPG cylinder would qualify as an appliance which provides power. This power is transmitted by a tube which upon careful reading of the definition qualifies as transmission machinery as it is an appliance or device by which the motion of a primary mover is transmitted. In fact an analogy between the transmission of electricity and transmission of LPG can be drawn. The movement or transfer of electrical energy takes place over an interconnected group of lines and associated equipment between points of supply and points at which it is transformed for delivery to consumers or is delivered to other electric systems. Transmission is considered to end when the energy is transformed for distribution to the consumer. In many countries transmission of LPG also takes place in a similar manner from a large fixed tank. In case of LPG stored in a cylinder the mechanism of transmission is essentially the same as the gas travels from the cylinder where it is stored to the gas cooking stove. While transmission of electricity involves a switch, transmission of LPG involves a valve mechanism or a regulator to ensure smooth flow. Hence, LPG is a source of energy which is mechanically transmitted by way of the tube attached to the machinery.32) In our view, the use of LPG satisfies the definition of power as it is mechanically transmitted and is not something generated by human or animal agency. | 0[ds]23) Both the appellants prepare sweets, savories and other beverages in their establishments. It is a settled position of law that cooking and preparing food items qualifies as manufacturing process. In the case of ESI v. Spencer and Co. [(1978) L.I.C 1759], the Madras High Court held, while dealing with the case of a hotel run by Sponsor and Company, that preparation of coffee, peeling of potatoes, makingetc., in a hotel, involve manufacturing process. Similarly the Bombay High Court in Poona Industrial Hotel Limited v. I. C. Sarin, [(1980) L.I.C. 106] held that the kitchen attached to Hotel Blue Diamond run by the Petitioners therein, should be considered as a factory for the purpose of ESI Act. Hence, it is beyond doubt that there is manufacturing process involved in the establishment of the appellants.24) We need not go into the details of the number of workers in the establishment of the appellants in the 12 months preceding the relevant period as the same has been proved beyond doubt. So, the essential question which comes up for consideration is whether there has been use of power in the aid of the manufacturing process. It is the contention of the respondent corporation that use of LPG gas amounts to use of power.25) The definition of `Power is in two parts. Firstly, it is electrical energy, and includes any other form of energy which is mechanically transmitted. The second part of the definition provides for exclusion from the definition of power, i.e., it does not include power generated by human or animal energy. The definition is wide enough to include all forms of energy which is mechanically transmitted. We will revert back to this definition little later after understanding what is LPG Gas and the mechanism employed while transmitting the energy from LPGLPG is stored in a cylinder fitted with a tube. Upon careful perusal of the definitions, which we have noticed earlier, it is clear that an LPG cylinder would qualify as an appliance which provides power. This power is transmitted by a tube which upon careful reading of the definition qualifies as transmission machinery as it is an appliance or device by which the motion of a primary mover is transmitted. In fact an analogy between the transmission of electricity and transmission of LPG can be drawn. The movement or transfer of electrical energy takes place over an interconnected group of lines and associated equipment between points of supply and points at which it is transformed for delivery to consumers or is delivered to other electric systems. Transmission is considered to end when the energy is transformed for distribution to the consumer. In many countries transmission of LPG also takes place in a similar manner from a large fixed tank. In case of LPG stored in a cylinder the mechanism of transmission is essentially the same as the gas travels from the cylinder where it is stored to the gas cooking stove. While transmission of electricity involves a switch, transmission of LPG involves a valve mechanism or a regulator to ensure smooth flow. Hence, LPG is a source of energy which is mechanically transmitted by way of the tube attached to the machinery.32) In our view, the use of LPG satisfies the definition of power as it is mechanically transmitted and is not something generated by human or animal agency. | 0 | 3,807 | 618 | ### 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:
relevant period as the same has been proved beyond doubt. So, the essential question which comes up for consideration is whether there has been use of power in the aid of the manufacturing process. It is the contention of the respondent corporation that use of LPG gas amounts to use of power.25) The definition of `Power is in two parts. Firstly, it is electrical energy, and includes any other form of energy which is mechanically transmitted. The second part of the definition provides for exclusion from the definition of power, i.e., it does not include power generated by human or animal energy. The definition is wide enough to include all forms of energy which is mechanically transmitted. We will revert back to this definition little later after understanding what is LPG Gas and the mechanism employed while transmitting the energy from LPG containers. 26) The New Encyclopaedia Britannica, 15th Edition contains an article on liquefied petroleum gas which is also called LP Gas, or LPG. The article is extracted: "Liquefied petroleum gas, also called LP Gas or LPG, any of several liquid mixture of the volatile hydrocarbons propene, propane, butene, and butane. It was used as early as 1860 for a portable fuel source, and its production and consumption for both domestic and industrial use have expanded ever since. A typical commercial mixture may also contain ethane and ethylene as well as a volatile mercaptan, an odorant added as a safety precaution." 27) LPG or LPG gas is the abbreviation of liquefied petroleum gas. This group of products includes saturated hydrocarbons, propane and butane, which can be stored and transported separately or as a mixture. This is called liquefied petroleum gas, because these gases liquefy under moderate pressure. LPG is used as a fuel for domestic (cooking), industrial, horticulture, agricultural, heating and drying processes. LPG can be used as an automotive fuel or as a propellant for aerosols, in addition to other specialists applications. LPG can also be used to provide lighting through the use of pressure lanterns. 28) The gas cylinder is filled with a liquefied fuel gas, such as liquefied butane or the like, having a relatively low activity. A portion of the liquefied fuel gas is enclosed in the body of the gas cylinder which is vaporized, causing the internal pressure of the gas cylinder to be higher than the outside pressure. Therefore, there is conversion from one form of energy to another. A valve mechanism having a stem is mounted on the body of gas cylinder. The gas cylinder is joined to the gas cooking stove so that the stem is pushed inwards and the valve mechanism is opened. Thus, the fuel gas is discharged owing to the internal pressure. The gas cooking stove incorporates a body, which is provided with a valve mechanism for supplying fuel gas to the burner and an operating member for opening/closing the valve mechanism. The valve mechanism in gas cooking equipment is to reduce high pressure gas supply to a lower working pressure. This is done to ensure steady supply of the gas at constant pressure. (Assistance is taken from the internet). 29) The submission of the learned counsel for the appellant, is that in view of the definition of power in the Factories Act, any other form of energy requires to be `Mechanically transmitted, which essentially involves use of machinery. It is also suggested that `mechanical pertains to the use of machines and, as such, the transmission of LPG from the cylinder through a tube connected thereto does not qualify as a machine. 30) Mechanical transmission is as opposed to manual transmission where human agency is involved in the process of transmission. Transmission is defined in the Collins Discovery Encyclopedia, 2005 (1st ed.) as "the extent to which a body or medium transmits light, sound or some other form of the energy". The word `Machinery is defined under Section 2(j) of the Factories Act. `Machinery includes Prime movers, transmission machinery and all other appliances whereby power is generated, transformed, transmitted or applied. The expression `prime mover means any engine, motor or other appliances which generates or otherwise provides power and the definition of transmission machinery under Section 2(i) of the Factories Act means any shaft, wheel drum, pulley, system of pulleys, coupling clutch, driving belt or other appliance or device by which the motion of a prime mover is transmitted to or received by any machinery or appliance. 31) LPG is stored in a cylinder fitted with a tube. Upon careful perusal of the definitions, which we have noticed earlier, it is clear that an LPG cylinder would qualify as an appliance which provides power. This power is transmitted by a tube which upon careful reading of the definition qualifies as transmission machinery as it is an appliance or device by which the motion of a primary mover is transmitted. In fact an analogy between the transmission of electricity and transmission of LPG can be drawn. The movement or transfer of electrical energy takes place over an interconnected group of lines and associated equipment between points of supply and points at which it is transformed for delivery to consumers or is delivered to other electric systems. Transmission is considered to end when the energy is transformed for distribution to the consumer. In many countries transmission of LPG also takes place in a similar manner from a large fixed tank. In case of LPG stored in a cylinder the mechanism of transmission is essentially the same as the gas travels from the cylinder where it is stored to the gas cooking stove. While transmission of electricity involves a switch, transmission of LPG involves a valve mechanism or a regulator to ensure smooth flow. Hence, LPG is a source of energy which is mechanically transmitted by way of the tube attached to the machinery.32) In our view, the use of LPG satisfies the definition of power as it is mechanically transmitted and is not something generated by human or animal agency.
### Response:
0
### Explanation:
23) Both the appellants prepare sweets, savories and other beverages in their establishments. It is a settled position of law that cooking and preparing food items qualifies as manufacturing process. In the case of ESI v. Spencer and Co. [(1978) L.I.C 1759], the Madras High Court held, while dealing with the case of a hotel run by Sponsor and Company, that preparation of coffee, peeling of potatoes, makingetc., in a hotel, involve manufacturing process. Similarly the Bombay High Court in Poona Industrial Hotel Limited v. I. C. Sarin, [(1980) L.I.C. 106] held that the kitchen attached to Hotel Blue Diamond run by the Petitioners therein, should be considered as a factory for the purpose of ESI Act. Hence, it is beyond doubt that there is manufacturing process involved in the establishment of the appellants.24) We need not go into the details of the number of workers in the establishment of the appellants in the 12 months preceding the relevant period as the same has been proved beyond doubt. So, the essential question which comes up for consideration is whether there has been use of power in the aid of the manufacturing process. It is the contention of the respondent corporation that use of LPG gas amounts to use of power.25) The definition of `Power is in two parts. Firstly, it is electrical energy, and includes any other form of energy which is mechanically transmitted. The second part of the definition provides for exclusion from the definition of power, i.e., it does not include power generated by human or animal energy. The definition is wide enough to include all forms of energy which is mechanically transmitted. We will revert back to this definition little later after understanding what is LPG Gas and the mechanism employed while transmitting the energy from LPGLPG is stored in a cylinder fitted with a tube. Upon careful perusal of the definitions, which we have noticed earlier, it is clear that an LPG cylinder would qualify as an appliance which provides power. This power is transmitted by a tube which upon careful reading of the definition qualifies as transmission machinery as it is an appliance or device by which the motion of a primary mover is transmitted. In fact an analogy between the transmission of electricity and transmission of LPG can be drawn. The movement or transfer of electrical energy takes place over an interconnected group of lines and associated equipment between points of supply and points at which it is transformed for delivery to consumers or is delivered to other electric systems. Transmission is considered to end when the energy is transformed for distribution to the consumer. In many countries transmission of LPG also takes place in a similar manner from a large fixed tank. In case of LPG stored in a cylinder the mechanism of transmission is essentially the same as the gas travels from the cylinder where it is stored to the gas cooking stove. While transmission of electricity involves a switch, transmission of LPG involves a valve mechanism or a regulator to ensure smooth flow. Hence, LPG is a source of energy which is mechanically transmitted by way of the tube attached to the machinery.32) In our view, the use of LPG satisfies the definition of power as it is mechanically transmitted and is not something generated by human or animal agency.
|
VIJAY MAHADEORAO KUBADE Vs. STATE OF MAHARASHTRA THROUGH THE COLLECTOR | any issue on limitation. 5. Aggrieved, both parties, filed Cross appeals being First Appeal No. 116 of 1996 and First Appeal No. 31 of 1996 and the present matter was tagged along with various other similar petitions. The High Court by order dated, 07.10.2010, while remanding the matter back to the Reference Court on the issue of limitation, kept the matter pending before the High Court in the following manner- On hearing the learned Counsel for the parties and on perusal of the Record and proceedings along with the copy of Section 12(2) notices, which were sought to be produced by the learned Assistant Government Pleaders before this Court at the time of the arguments that it would be necessary in the interest of justice to refer the issue of limitation to the reference Court from whose judgments, the appeals are preferred by invoking the provisions of Order 41 Rule 25 of the Code of Civil Procedure, since the reference Court has omitted and failed to frame and try the issue of limitation, which essentially ought to have been decided before deciding the reference applications on merit. Hence, by keeping all these first appeals pending in High Court, the issue of limitation is referred to the reference Court for trial after granting an opportunity to the parties to amend the pleadings on the issue of limitation and also to tender evidence on the said issue. The reference Court is directed to try the issue of limitation in all these cases within a period of six months from the date of appearance of the parties before the reference Court and shall return the record to this Court and shall return the record to this Court together with its findings on the issue of limitation along with the reasons therefor. 6. On remand, the reference Court granted opportunity to the parties to lead evidence and upon hearing the parties, it passed judgment and order dated 11.10.2011. The reference court, found that the predecessor interest had filed the reference for enhancement, before the expiry of the limitation as they became aware of the contents of the award only on 03.02.1988 and not when a notice informing the award was sent. 7. The High court resumed hearing of the case, after receiving the order of the Reference Court on remand. The High Court again dealt with the contention concerning the issue of limitation and concluded, by order dated 14.07.2014, that the Appellants herein, had not filed the reference for enhancement of compensation within the time limitation, in the following manner- 10. The next submission made by Mr. K.H. Deshpande, learned Senior Counsel, is that the details about the Award in order to raise a challenge or grounds to be taken in the reference Application, could be available only after obtaining certified copy of the Award and a mere visit to the office of the Land Acquisition officer for receipt of compensation on 28th December, 1987 cannot be taken to mean that the claimants were posted with the details of the Award in order to raise a challenge. It is an admitted fact that all the claimants received compensation on 28th December, 1987 and, therefore, constructively and practically, they must be posted with the knowledge about the contents and details of the award. 8. Aggrieved by the aforesaid impugned order, the Appellant is in appeal before this Court. 9. The main contention canvassed by the Appellants, in these Civil Appeals, is whether an effective notice of the award was provided to the Appellant herein, as per the mandate of Section 12(2) of the Land Acquisition Act, 1894? 10. Learned Counsel for the Petitioner, Ms. Bansuri Swaraj, relies on the judgment of Premji Nathu v. State of Gujarat and Anr. (2012) 5 SCC 250 , wherein this Court has observed as under- 20. In the light of the above, it is to be seen whether the conclusion recorded by the Reference Court, which has been approved by the High Court that the application filed by the Appellant was barred by time is legally sustainable. 21. A careful reading of the averments contained in Para 2 of the application filed by the Appellant Under Section 18(1) shows that the notice issued by the Collector Under Section 12(2) was served upon him on 22-2-1985. Thereafter, his advocate obtained certified copy of the award and filed application dated 8-4-1985 for making a reference to the Court. This implies that the copy of the award had not been sent to the Appellant along with the notice and without that he could not have effectively made an application for seeking reference. 22. On behalf of the State Government, no evidence was produced before the Reference Court to show that the copy of the award was sent to the Appellant along with the notice. Unfortunately, while deciding Issue 3, this aspect has been totally ignored by the Reference Court which mechanically concluded that the application filed on 8-4-1985 was beyond the time specified in Section 18(2)(b). The learned Single Judge of the High Court also committed serious error by approving the view taken by the Reference Court, albeit without considering the fact that the notice issued by the Collector Under Section 12(2) was not accompanied by a copy of the award which was essential for effective exercise of right vested in the Appellant to seek reference Under Section 18(1). (emphasis supplied) 11. The learned Counsel appearing on behalf of the Government, has not disputed the aforesaid proposition of law. Accordingly, we are of the opinion that the aforesaid observations are squarely applicable to the present case as the notice dated 4.12.1987, was not accompanied with the award. In this case, there could not have been a valid notice of the award, by letter dated 4.12.1987, Under Sub-Section (2) of Section 12 of the Land Acquisition Act, until the Appellant received a certified copy of the award, which he did on 03.02.1988. Therefore, the reference for enhancement was, accordingly, not barred by limitation. | 1[ds]Accordingly, we are of the opinion that the aforesaid observations are squarely applicable to the present case as the notice dated 4.12.1987, was not accompanied with the award. In this case, there could not have been a valid notice of the award, by letter dated 4.12.1987,n (2) of Section 12 of the Land Acquisition Act, until thereceived a certified copy of the award, which he did on 03.02.1988. Therefore, the reference for enhancement was, accordingly, not barred by limitation. | 1 | 1,692 | 99 | ### 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:
any issue on limitation. 5. Aggrieved, both parties, filed Cross appeals being First Appeal No. 116 of 1996 and First Appeal No. 31 of 1996 and the present matter was tagged along with various other similar petitions. The High Court by order dated, 07.10.2010, while remanding the matter back to the Reference Court on the issue of limitation, kept the matter pending before the High Court in the following manner- On hearing the learned Counsel for the parties and on perusal of the Record and proceedings along with the copy of Section 12(2) notices, which were sought to be produced by the learned Assistant Government Pleaders before this Court at the time of the arguments that it would be necessary in the interest of justice to refer the issue of limitation to the reference Court from whose judgments, the appeals are preferred by invoking the provisions of Order 41 Rule 25 of the Code of Civil Procedure, since the reference Court has omitted and failed to frame and try the issue of limitation, which essentially ought to have been decided before deciding the reference applications on merit. Hence, by keeping all these first appeals pending in High Court, the issue of limitation is referred to the reference Court for trial after granting an opportunity to the parties to amend the pleadings on the issue of limitation and also to tender evidence on the said issue. The reference Court is directed to try the issue of limitation in all these cases within a period of six months from the date of appearance of the parties before the reference Court and shall return the record to this Court and shall return the record to this Court together with its findings on the issue of limitation along with the reasons therefor. 6. On remand, the reference Court granted opportunity to the parties to lead evidence and upon hearing the parties, it passed judgment and order dated 11.10.2011. The reference court, found that the predecessor interest had filed the reference for enhancement, before the expiry of the limitation as they became aware of the contents of the award only on 03.02.1988 and not when a notice informing the award was sent. 7. The High court resumed hearing of the case, after receiving the order of the Reference Court on remand. The High Court again dealt with the contention concerning the issue of limitation and concluded, by order dated 14.07.2014, that the Appellants herein, had not filed the reference for enhancement of compensation within the time limitation, in the following manner- 10. The next submission made by Mr. K.H. Deshpande, learned Senior Counsel, is that the details about the Award in order to raise a challenge or grounds to be taken in the reference Application, could be available only after obtaining certified copy of the Award and a mere visit to the office of the Land Acquisition officer for receipt of compensation on 28th December, 1987 cannot be taken to mean that the claimants were posted with the details of the Award in order to raise a challenge. It is an admitted fact that all the claimants received compensation on 28th December, 1987 and, therefore, constructively and practically, they must be posted with the knowledge about the contents and details of the award. 8. Aggrieved by the aforesaid impugned order, the Appellant is in appeal before this Court. 9. The main contention canvassed by the Appellants, in these Civil Appeals, is whether an effective notice of the award was provided to the Appellant herein, as per the mandate of Section 12(2) of the Land Acquisition Act, 1894? 10. Learned Counsel for the Petitioner, Ms. Bansuri Swaraj, relies on the judgment of Premji Nathu v. State of Gujarat and Anr. (2012) 5 SCC 250 , wherein this Court has observed as under- 20. In the light of the above, it is to be seen whether the conclusion recorded by the Reference Court, which has been approved by the High Court that the application filed by the Appellant was barred by time is legally sustainable. 21. A careful reading of the averments contained in Para 2 of the application filed by the Appellant Under Section 18(1) shows that the notice issued by the Collector Under Section 12(2) was served upon him on 22-2-1985. Thereafter, his advocate obtained certified copy of the award and filed application dated 8-4-1985 for making a reference to the Court. This implies that the copy of the award had not been sent to the Appellant along with the notice and without that he could not have effectively made an application for seeking reference. 22. On behalf of the State Government, no evidence was produced before the Reference Court to show that the copy of the award was sent to the Appellant along with the notice. Unfortunately, while deciding Issue 3, this aspect has been totally ignored by the Reference Court which mechanically concluded that the application filed on 8-4-1985 was beyond the time specified in Section 18(2)(b). The learned Single Judge of the High Court also committed serious error by approving the view taken by the Reference Court, albeit without considering the fact that the notice issued by the Collector Under Section 12(2) was not accompanied by a copy of the award which was essential for effective exercise of right vested in the Appellant to seek reference Under Section 18(1). (emphasis supplied) 11. The learned Counsel appearing on behalf of the Government, has not disputed the aforesaid proposition of law. Accordingly, we are of the opinion that the aforesaid observations are squarely applicable to the present case as the notice dated 4.12.1987, was not accompanied with the award. In this case, there could not have been a valid notice of the award, by letter dated 4.12.1987, Under Sub-Section (2) of Section 12 of the Land Acquisition Act, until the Appellant received a certified copy of the award, which he did on 03.02.1988. Therefore, the reference for enhancement was, accordingly, not barred by limitation.
### Response:
1
### Explanation:
Accordingly, we are of the opinion that the aforesaid observations are squarely applicable to the present case as the notice dated 4.12.1987, was not accompanied with the award. In this case, there could not have been a valid notice of the award, by letter dated 4.12.1987,n (2) of Section 12 of the Land Acquisition Act, until thereceived a certified copy of the award, which he did on 03.02.1988. Therefore, the reference for enhancement was, accordingly, not barred by limitation.
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Piarey Lal Vs. Hori Lal | till such source exists, as the former tenure-holder of the plots comprising the chak had in regard to them."3. It would thus appear that while clause (a) deals with the rights, title, interests and liabilities of t he tenure- holder entering into possession of the chak, as well as of the former tenure-holder of the plots comprising the chak, in their respective original holdings, and provides that those rights, title, interests and liabilities. shall "cease", clause (b) provides that the tenure-holder entering into possession of the chak shall have, in that chak, the same rights, title, interests and liabilities "as he had in the original holdings." The expression chak has been defined in section 3(1-A) of the Act to mean "the parcel of land allotted to a tenure-holder on consolidation." The two clauses therefore are quite simple and clear, and do not raise any real problems of interpretation, but the question is whether there is justification for the argument, in the facts and circumstances of this case, that the expression "liabilities" would cover the liability of the seller (i.e. the defendant), under the aforesaid agreement for the sale of his original holding ?As is obvious, clause (a) of section 30 does not bear on the question in controversy because it only provides for the cessation of the rights, title, interests and liabilities both of the tenure-holder to whom the chak has been allotted, and of the former tenure-holder of the plots comprising the chak in their respective original holdings". There is no controversy that this was so in the present case. It is also no bodys case that the rights, title, and interests of the tenure-holder entering into possession of his chak have any bearing on the controversy relating to the specified performance of the agreement for sale, for all that has been urged before us is that the defendant, as the tenure-holder of the new holding or chak had the same "liabilities" in that chak as he had in the original holding. What therefore remains for consideration is whether, on the defendants entering into possession of his new land or chak, there was the same liability "in" the new land as "in" the original holding. It therefore to be examined whether, by virtue of the agreement for sale, any liability accrued "in" the original holding ?4. A cross-reference to section 54 o f the Transfer of Property Act shows that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It has however been specifically provided in the section that such a contract "does not, of itself, create any interest in or charge on such property." It would therefore follow that the agreement for Sale in the present case did not give rise to any interest "in" the original holding of the defendant as the tenure-holder. That being so, there could be no occasion for the transfer of any such "liability in" the new land or chak of the defendant so as to attract clause (b) of section 30 of the Act. In fact what the defendant, was bound to do under section 55(1)(d) of the Transfer of Property Act was to execute a proper conveyance of "the property" which was the subject matter of the contract for sale, and not of any other property. So when he lost that property as a result of the scheme of consolidation and his rights, title, interests ceased in that property by virtue of claus e (a) of section 30 of the Act, the agreement for sale became void within the meaning of section 56 of the Contract Act, and it is futile to urge that they were saved by clause (a) or clause (b) of section 30 of the Act.We have gone through the decision in Shanti Prasads case (supra), but we find that while the High Court took note of the fact that the rights, title, interests and liabilities of the tenure-holder "in" his original holdings ceased, and he acquired the same rights, title, interests and liabilities "in" the chak allotted to him, it lost sight of the significance of the word "in", and the aforesaid provisions of sect ion 54 of the Transfer of Property Act, and disposed of the controversy before it by raising the other question whether "the tenure holder" was subject to any liability "in respect of" his old holding. That was why it f ell into the error of holding that a liability was created in the original holding of the defendant, and was transferred his chak on his entering into its possession. As has been shown, that was an erroneous view which h as to be rectified.5. It may be mentioned that counsel for the respondent tried to argue that the defendant was bound to execute a proper conveyance of his original holding, which was the subject matter of the agreement of sale, because, that holding had been substituted" by the chak.6. He also tried to argue that the chak allotted to the defendant by way of consolidation of his holding was the same as his original holding so that there was no occasion to invoke section 30 of the Act. Counsel could not however support his argument by reference to the law, or the facts of the case. Moreover he was unable to show how he could raise any such argument when the special leave had been limited to the interpretation of clauses (a) and (b) of section 30 of the Act.7. It would thus appear that the plaintiff respondents suit for specific performance of the agreement for sale was liable to dismissal, and the High Court as well as the courts below erred in taking a contrary view. Counsel for the appellant has however frankly stated at the bar that the appellant would be willing to refund the sum of Rs. 3000/- along with interest at 6 per cent per annum from the date of payment. | 1[ds]It would thus appear that while clause (a) deals with the rights, title, interests and liabilities of t he tenure- holder entering into possession of the chak, as well as of the former tenure-holder of the plots comprising the chak, in their respective original holdings, and provides that those rights, title, interests and liabilities. shall "cease", clause (b) provides that the tenure-holder entering into possession of the chak shall have, in that chak, the same rights, title, interests and liabilities "as he had in the original holdings." The expression chak has been defined in section 3(1-A) of the Act to mean "the parcel of land allotted to a tenure-holder on consolidation." The two clauses therefore are quite simple and clear, and do not raise any real problems of interpretation, but the question is whether there is justification for the argument, in the facts and circumstances of this case, that the expression "liabilities" would cover the liability of the seller (i.e. the defendant), under the aforesaid agreement for the sale of his original holding ?As is obvious, clause (a) of section 30 does not bear on the question in controversy because it only provides for the cessation of the rights, title, interests and liabilities both of the tenure-holder to whom the chak has been allotted, and of the former tenure-holder of the plots comprising the chak in their respective original holdings". There is no controversy that this was so in the present case. It is also no bodys case that the rights, title, and interests of the tenure-holder entering into possession of his chak have any bearing on the controversy relating to the specified performance of the agreement for sale, for all that has been urged before us is that the defendant, as the tenure-holder of the new holding or chak had the same "liabilities" in that chak as he had in the original holding. What therefore remains for consideration is whether, on the defendants entering into possession of his new land or chak, there was the same liability "in" the new land as "in" the originalcross-reference to section 54 o f the Transfer of Property Act shows that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It has however been specifically provided in the section that such a contract "does not, of itself, create any interest in or charge on such property." It would therefore follow that the agreement for Sale in the present case did not give rise to any interest "in" the original holding of the defendant as the tenure-holder. That being so, there could be no occasion for the transfer of any such "liability in" the new land or chak of the defendant so as to attract clause (b) of section 30 of the Act. In fact what the defendant, was bound to do under section 55(1)(d) of the Transfer of Property Act was to execute a proper conveyance of "the property" which was the subject matter of the contract for sale, and not of any other property. So when he lost that property as a result of the scheme of consolidation and his rights, title, interests ceased in that property by virtue of claus e (a) of section 30 of the Act, the agreement for sale became void within the meaning of section 56 of the Contract Act, and it is futile to urge that they were saved by clause (a) or clause (b) of section 30 of the Act.We have gone through the decision in Shanti Prasads case (supra), but we find that while the High Court took note of the fact that the rights, title, interests and liabilities of the tenure-holder "in" his original holdings ceased, and he acquired the same rights, title, interests and liabilities "in" the chak allotted to him, it lost sight of the significance of the word "in", and the aforesaid provisions of sect ion 54 of the Transfer of Property Act, and disposed of the controversy before it by raising the other question whether "the tenure holder" was subject to any liability "in respect of" his old holding. That was why it f ell into the error of holding that a liability was created in the original holding of the defendant, and was transferred his chak on his entering into its possession. As has been shown, that was an erroneous view which h as to becould not however support his argument by reference to the law, or the facts of the case. Moreover he was unable to show how he could raise any such argument when the special leave had been limited to the interpretation of clauses (a) and (b) of section 30 of thewould thus appear that the plaintiff respondents suit for specific performance of the agreement for sale was liable to dismissal, and the High Court as well as the courts below erred in taking a contrary view. Counsel for the appellant has however frankly stated at the bar that the appellant would be willing to refund the sum of Rs. 3000/- along with interest at 6 per cent per annum from the date of payment. | 1 | 2,151 | 1,003 | ### Instruction:
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till such source exists, as the former tenure-holder of the plots comprising the chak had in regard to them."3. It would thus appear that while clause (a) deals with the rights, title, interests and liabilities of t he tenure- holder entering into possession of the chak, as well as of the former tenure-holder of the plots comprising the chak, in their respective original holdings, and provides that those rights, title, interests and liabilities. shall "cease", clause (b) provides that the tenure-holder entering into possession of the chak shall have, in that chak, the same rights, title, interests and liabilities "as he had in the original holdings." The expression chak has been defined in section 3(1-A) of the Act to mean "the parcel of land allotted to a tenure-holder on consolidation." The two clauses therefore are quite simple and clear, and do not raise any real problems of interpretation, but the question is whether there is justification for the argument, in the facts and circumstances of this case, that the expression "liabilities" would cover the liability of the seller (i.e. the defendant), under the aforesaid agreement for the sale of his original holding ?As is obvious, clause (a) of section 30 does not bear on the question in controversy because it only provides for the cessation of the rights, title, interests and liabilities both of the tenure-holder to whom the chak has been allotted, and of the former tenure-holder of the plots comprising the chak in their respective original holdings". There is no controversy that this was so in the present case. It is also no bodys case that the rights, title, and interests of the tenure-holder entering into possession of his chak have any bearing on the controversy relating to the specified performance of the agreement for sale, for all that has been urged before us is that the defendant, as the tenure-holder of the new holding or chak had the same "liabilities" in that chak as he had in the original holding. What therefore remains for consideration is whether, on the defendants entering into possession of his new land or chak, there was the same liability "in" the new land as "in" the original holding. It therefore to be examined whether, by virtue of the agreement for sale, any liability accrued "in" the original holding ?4. A cross-reference to section 54 o f the Transfer of Property Act shows that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It has however been specifically provided in the section that such a contract "does not, of itself, create any interest in or charge on such property." It would therefore follow that the agreement for Sale in the present case did not give rise to any interest "in" the original holding of the defendant as the tenure-holder. That being so, there could be no occasion for the transfer of any such "liability in" the new land or chak of the defendant so as to attract clause (b) of section 30 of the Act. In fact what the defendant, was bound to do under section 55(1)(d) of the Transfer of Property Act was to execute a proper conveyance of "the property" which was the subject matter of the contract for sale, and not of any other property. So when he lost that property as a result of the scheme of consolidation and his rights, title, interests ceased in that property by virtue of claus e (a) of section 30 of the Act, the agreement for sale became void within the meaning of section 56 of the Contract Act, and it is futile to urge that they were saved by clause (a) or clause (b) of section 30 of the Act.We have gone through the decision in Shanti Prasads case (supra), but we find that while the High Court took note of the fact that the rights, title, interests and liabilities of the tenure-holder "in" his original holdings ceased, and he acquired the same rights, title, interests and liabilities "in" the chak allotted to him, it lost sight of the significance of the word "in", and the aforesaid provisions of sect ion 54 of the Transfer of Property Act, and disposed of the controversy before it by raising the other question whether "the tenure holder" was subject to any liability "in respect of" his old holding. That was why it f ell into the error of holding that a liability was created in the original holding of the defendant, and was transferred his chak on his entering into its possession. As has been shown, that was an erroneous view which h as to be rectified.5. It may be mentioned that counsel for the respondent tried to argue that the defendant was bound to execute a proper conveyance of his original holding, which was the subject matter of the agreement of sale, because, that holding had been substituted" by the chak.6. He also tried to argue that the chak allotted to the defendant by way of consolidation of his holding was the same as his original holding so that there was no occasion to invoke section 30 of the Act. Counsel could not however support his argument by reference to the law, or the facts of the case. Moreover he was unable to show how he could raise any such argument when the special leave had been limited to the interpretation of clauses (a) and (b) of section 30 of the Act.7. It would thus appear that the plaintiff respondents suit for specific performance of the agreement for sale was liable to dismissal, and the High Court as well as the courts below erred in taking a contrary view. Counsel for the appellant has however frankly stated at the bar that the appellant would be willing to refund the sum of Rs. 3000/- along with interest at 6 per cent per annum from the date of payment.
### Response:
1
### Explanation:
It would thus appear that while clause (a) deals with the rights, title, interests and liabilities of t he tenure- holder entering into possession of the chak, as well as of the former tenure-holder of the plots comprising the chak, in their respective original holdings, and provides that those rights, title, interests and liabilities. shall "cease", clause (b) provides that the tenure-holder entering into possession of the chak shall have, in that chak, the same rights, title, interests and liabilities "as he had in the original holdings." The expression chak has been defined in section 3(1-A) of the Act to mean "the parcel of land allotted to a tenure-holder on consolidation." The two clauses therefore are quite simple and clear, and do not raise any real problems of interpretation, but the question is whether there is justification for the argument, in the facts and circumstances of this case, that the expression "liabilities" would cover the liability of the seller (i.e. the defendant), under the aforesaid agreement for the sale of his original holding ?As is obvious, clause (a) of section 30 does not bear on the question in controversy because it only provides for the cessation of the rights, title, interests and liabilities both of the tenure-holder to whom the chak has been allotted, and of the former tenure-holder of the plots comprising the chak in their respective original holdings". There is no controversy that this was so in the present case. It is also no bodys case that the rights, title, and interests of the tenure-holder entering into possession of his chak have any bearing on the controversy relating to the specified performance of the agreement for sale, for all that has been urged before us is that the defendant, as the tenure-holder of the new holding or chak had the same "liabilities" in that chak as he had in the original holding. What therefore remains for consideration is whether, on the defendants entering into possession of his new land or chak, there was the same liability "in" the new land as "in" the originalcross-reference to section 54 o f the Transfer of Property Act shows that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It has however been specifically provided in the section that such a contract "does not, of itself, create any interest in or charge on such property." It would therefore follow that the agreement for Sale in the present case did not give rise to any interest "in" the original holding of the defendant as the tenure-holder. That being so, there could be no occasion for the transfer of any such "liability in" the new land or chak of the defendant so as to attract clause (b) of section 30 of the Act. In fact what the defendant, was bound to do under section 55(1)(d) of the Transfer of Property Act was to execute a proper conveyance of "the property" which was the subject matter of the contract for sale, and not of any other property. So when he lost that property as a result of the scheme of consolidation and his rights, title, interests ceased in that property by virtue of claus e (a) of section 30 of the Act, the agreement for sale became void within the meaning of section 56 of the Contract Act, and it is futile to urge that they were saved by clause (a) or clause (b) of section 30 of the Act.We have gone through the decision in Shanti Prasads case (supra), but we find that while the High Court took note of the fact that the rights, title, interests and liabilities of the tenure-holder "in" his original holdings ceased, and he acquired the same rights, title, interests and liabilities "in" the chak allotted to him, it lost sight of the significance of the word "in", and the aforesaid provisions of sect ion 54 of the Transfer of Property Act, and disposed of the controversy before it by raising the other question whether "the tenure holder" was subject to any liability "in respect of" his old holding. That was why it f ell into the error of holding that a liability was created in the original holding of the defendant, and was transferred his chak on his entering into its possession. As has been shown, that was an erroneous view which h as to becould not however support his argument by reference to the law, or the facts of the case. Moreover he was unable to show how he could raise any such argument when the special leave had been limited to the interpretation of clauses (a) and (b) of section 30 of thewould thus appear that the plaintiff respondents suit for specific performance of the agreement for sale was liable to dismissal, and the High Court as well as the courts below erred in taking a contrary view. Counsel for the appellant has however frankly stated at the bar that the appellant would be willing to refund the sum of Rs. 3000/- along with interest at 6 per cent per annum from the date of payment.
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Oriental Insurance Co.Ltd Vs. Rajni Devi | driving the motorcycle. Janak Raj and Sukhdev Raj were on the motor cycle. Both received injuries in the accident. Sukhdevraj had succumbed to his injuries in the Civil Hospital, Dalhousie. Janak Raj was shifted to different hospitals. Ultimately, Janak Raj had also succumbed to his injuries. Motorcycle was owned by Janak Raj. Counsel for the company failed to convince how the petition is bad for non-joinder of necessary parties and what is the effect of non-production of driving licence when evidence is not clear as to who was driving the offending vehicle. So, all the issues are decided against the Insurance Company." 6. It is now a well settled principle of law that in a case where third party is involved, the liability of the insurance company would be unlimited. Where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the insurance company would depend upon the terms thereof.7. The Tribunal, in our opinion, therefore, was not correct in taking the view that while determining the amount of compensation, the only factor which would be relevant would be merely the use of the motor vehicle. Section 163-A reads thus : 163A. Special provisions as to payment of compensation on structured formula basis- "(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.Explanation.-For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmens Compensation Act, 1923 (8 of 1923).(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule." The said provision cannot be said to have any application in regard to an accident wherein the owner of the motor vehicle himself is involved. The question is no longer res integra. 8. In Oriental Insurance Co. Ltd. v. Smt. Jhuma Saha & Ors. [AIR 2007 SC 1055], it was held: "10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable.11. Liability of the insurer Company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise.12. In Dhanraj v. New India Assurance Co. Ltd.2 it is stated as follows:"8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.* * *10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs 4989 paid under the heading Own damage is for covering liability towards personal injury. Under the heading Own damage, the words premium on vehicle and non-electrical accessories appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out.In this case there is no such insurance." 9. In National Insurance Co. Ltd. v. Laxmi Narain Dhut [2007 (4) SCALE 36 ], it has been held: "Where the claim relates to own damage claims, it cannot be adjudicated by the insurance company. But it has to be decided by another forum i.e. forum created under the Consumer Protection Act, 1985(in short the CP Act). Before the Tribunal,, there were essentially three parties i.e. the insurer, insured and the claimants. On the contrary, before the consumer forums there were two parties i.e. owner of the vehicle and the insurer. The claimant does not come into the picture. Therefore, these are cases where there is no third party involved." The said principle has been reiterated recently in Prem Kumari & Ors. v. Prahlad Dev & Ors. [2008 (1) SCALE 531 ] and Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727 ].10. The liability under Section 163-A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient. The heirs of Janakraj could not have maintained a claim in terms of Section 163-A of the Act. For the said purpose only the terms of the contract of insurance could be taken recourse to. | 1[ds]6. It is now a well settled principle of law that in a case where third party is involved, the liability of the insurance company would be unlimited. Where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the insurance company would depend upon the terms thereof.7. The Tribunal, in our opinion, therefore, was not correct in taking the view that while determining the amount of compensation, the only factor which would be relevant would be merely the use of the motor vehicle.10. The liability under Section 163-A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient. The heirs of Janakraj could not have maintained a claim in terms of Section 163-A of the Act. For the said purpose only the terms of the contract of insurance could be taken recourse to. | 1 | 1,697 | 188 | ### Instruction:
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driving the motorcycle. Janak Raj and Sukhdev Raj were on the motor cycle. Both received injuries in the accident. Sukhdevraj had succumbed to his injuries in the Civil Hospital, Dalhousie. Janak Raj was shifted to different hospitals. Ultimately, Janak Raj had also succumbed to his injuries. Motorcycle was owned by Janak Raj. Counsel for the company failed to convince how the petition is bad for non-joinder of necessary parties and what is the effect of non-production of driving licence when evidence is not clear as to who was driving the offending vehicle. So, all the issues are decided against the Insurance Company." 6. It is now a well settled principle of law that in a case where third party is involved, the liability of the insurance company would be unlimited. Where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the insurance company would depend upon the terms thereof.7. The Tribunal, in our opinion, therefore, was not correct in taking the view that while determining the amount of compensation, the only factor which would be relevant would be merely the use of the motor vehicle. Section 163-A reads thus : 163A. Special provisions as to payment of compensation on structured formula basis- "(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.Explanation.-For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmens Compensation Act, 1923 (8 of 1923).(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule." The said provision cannot be said to have any application in regard to an accident wherein the owner of the motor vehicle himself is involved. The question is no longer res integra. 8. In Oriental Insurance Co. Ltd. v. Smt. Jhuma Saha & Ors. [AIR 2007 SC 1055], it was held: "10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable.11. Liability of the insurer Company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise.12. In Dhanraj v. New India Assurance Co. Ltd.2 it is stated as follows:"8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.* * *10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs 4989 paid under the heading Own damage is for covering liability towards personal injury. Under the heading Own damage, the words premium on vehicle and non-electrical accessories appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out.In this case there is no such insurance." 9. In National Insurance Co. Ltd. v. Laxmi Narain Dhut [2007 (4) SCALE 36 ], it has been held: "Where the claim relates to own damage claims, it cannot be adjudicated by the insurance company. But it has to be decided by another forum i.e. forum created under the Consumer Protection Act, 1985(in short the CP Act). Before the Tribunal,, there were essentially three parties i.e. the insurer, insured and the claimants. On the contrary, before the consumer forums there were two parties i.e. owner of the vehicle and the insurer. The claimant does not come into the picture. Therefore, these are cases where there is no third party involved." The said principle has been reiterated recently in Prem Kumari & Ors. v. Prahlad Dev & Ors. [2008 (1) SCALE 531 ] and Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727 ].10. The liability under Section 163-A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient. The heirs of Janakraj could not have maintained a claim in terms of Section 163-A of the Act. For the said purpose only the terms of the contract of insurance could be taken recourse to.
### Response:
1
### Explanation:
6. It is now a well settled principle of law that in a case where third party is involved, the liability of the insurance company would be unlimited. Where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the insurance company would depend upon the terms thereof.7. The Tribunal, in our opinion, therefore, was not correct in taking the view that while determining the amount of compensation, the only factor which would be relevant would be merely the use of the motor vehicle.10. The liability under Section 163-A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient. The heirs of Janakraj could not have maintained a claim in terms of Section 163-A of the Act. For the said purpose only the terms of the contract of insurance could be taken recourse to.
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Chaganlal Textile Mills Private, Limited Vs. Chalisgaon Girni Kamgar Union | Schedule II is in these terms:"Reduction intended to be of permanent or semi-permanent character in the number of persons employed or to be employed in any occupation or process or department or departments or in a shift not due to force majeure."6. It is not necessary to refer to any other provision of the Act for the purpose of this judgment.7. The Labour Court held that the termination of the services of the employees effected on November 1, 1957 amounted to a reduction of a permanent or semi-permanent character within the meaning of item No. 1 of Schedule II of the Act and it was illegal as no notice of change had been given. It held that the posts occupied by the retrenched employees were permanent or semi-permanent posts because a notice of change for the abolition of these posts was subsequently, namely, on November 9, 1957 given. It also held that the working of the second shift had been closed on August 9, 1957 and then the fate of the posts occupied by the retrenched employees had become certain. It, therefore, held that the retrenchment had amounted to a change within the meaning of item No. 1 of Schedule II and as it had been effected without a notice under S. 42 it was illegal. In this view of the matter, it directed the retrenched employees to be reinstated. On appeal the Industrial Court took the same view and affirmed the order of the Labour Court.8. In our view, both the Courts below were wrong. The notice of change contemplated by S. 42 is the expression of an intention to effect a change in any of the matters mentioned in Schedule II. In the present case we are concerned with Item No. 1 of that Schedule. It seems to us clear that that item relates only to posts and not to the personnel occupying the posts. A notice of change in respect of Item No. 1 of Schedule II does not automatically effect any retrenchment; an independent notice to retrench has also to be given under standing order No. 23(1) earlier set out. Without such notice no retrenchment can be legally effected. If Item No. 1 of Schedule II refers to the retrenchment of employees, then on the same subject there would be two provisions, for Item No. 10 of Schedule I also deals with the retrenchment of employees. In such a case two notices for the same purpose would be required by the Act, namely, a notice under S. 42 and another notice under standing order No. 23(1). But that could not have been intended.9. Furthermore, the language of Item No. 1 of Schedule II clearly refers to a reduction in posts. It deals with the reduction not of persons employed but with the number of persons employed. Therefore, it clearly contemplates posts. Again, this item also refers to the number of persons to be employed. That of course has nothing to do with the retrenchment of persons actually employed. Again, when a notice of change in respect of Item No. 1 of Schedule II is to be given, it is not to be given to any employee but to the representative of the employees which would include a union of employees. It could hardly have been intended that when employees were to be retrenched they would not be given any notice. The learned counsel for the appellant said that the reason for a notice of change is that when posts are reduced, the burden of the work on the remaining posts may become heavier and therefore the representative of the employees is given a hearing in this connection. This seems to be a plausible view. Again the Act provides for conciliation when there is difference between the representative of the employees and the employer regarding the subject matter of a notice of change though there is no such provision where employees are retrenched.All these considerations lead us to the view that Item No. 1 of Schedule II is concerned only with posts. The notice of November 1, 1957 was not a notice of change and its validity cannot be tested by reference to S. 42 of the Act.10. When, therefore, an employer does not desire to reduce the posts but only to retrench certain employees holding certain posts, no question of giving a notice of change as mentioned in S. 42 of the Act arises. This is what the appellant intended to do by notice of November 1, 1957. That notice was duly given in terms of standing order No. 23(1) earlier mentioned. This is not disputed by the respondent. The appellant paid all the retrenchment compensation and salary and other dues that under the law applicable, the retrenched persons were entitled to. In our view, the notice of retrenchment dated November 1, 1957 was legal and no exception can be taken to it. If it was legally given, it does not cease to be so because within eight days a notice of change was also given. It makes no difference that at the time the earlier notice was given the appellant knew that the later notice would have to be given. We have not been shown that by the procedure followed by the appellant the employees have in any way been prejudiced. We do not see that there was any attempt by the appellant to practise a fraud upon the Act: the rights of the employees under the Act had not been affected by anything that the appellant had done. Item No. 1 of Schedule II no doubt refers to reduction of a permanent or semi-permanent character and there is nothing on the record to establish that the retrenched persons were not permanent or semi-permanent employees.But that cannot make the notice of retrenchment given on November 1, 1957 a notice of change: the notice remains what it was, that is, a notice of termination of services of employees and not a notice of reduction of posts. | 1[ds]8. In our view, both the Courts below were wrong. The notice of change contemplated by S. 42 is the expression of an intention to effect a change in any of the matters mentioned in Schedule II. In the present case we are concerned with Item No. 1 of that Schedule. It seems to us clear that that item relates only to posts and not to the personnel occupying the posts. A notice of change in respect of Item No. 1 of Schedule II does not automatically effect any retrenchment; an independent notice to retrench has also to be given under standing order No. 23(1) earlier set out. Without such notice no retrenchment can be legally effected. If Item No. 1 of Schedule II refers to the retrenchment of employees, then on the same subject there would be two provisions, for Item No. 10 of Schedule I also deals with the retrenchment of employees. In such a case two notices for the same purpose would be required by the Act, namely, a notice under S. 42 and another notice under standing order No. 23(1). But that could not have been intended.9. Furthermore, the language of Item No. 1 of Schedule II clearly refers to a reduction in posts. It deals with the reduction not of persons employed but with the number of persons employed. Therefore, it clearly contemplates posts. Again, this item also refers to the number of persons to be employed. That of course has nothing to do with the retrenchment of persons actually employed. Again, when a notice of change in respect of Item No. 1 of Schedule II is to be given, it is not to be given to any employee but to the representative of the employees which would include a union of employees. It could hardly have been intended that when employees were to be retrenched they would not be given any notice. The learned counsel for the appellant said that the reason for a notice of change is that when posts are reduced, the burden of the work on the remaining posts may become heavier and therefore the representative of the employees is given a hearing in this connection. This seems to be a plausible view. Again the Act provides for conciliation when there is difference between the representative of the employees and the employer regarding the subject matter of a notice of change though there is no such provision where employees are retrenched.All these considerations lead us to the view that Item No. 1 of Schedule II is concerned only with posts. The notice of November 1, 1957 was not a notice of change and its validity cannot be tested by reference to S. 42 of the Act.10. When, therefore, an employer does not desire to reduce the posts but only to retrench certain employees holding certain posts, no question of giving a notice of change as mentioned in S. 42 of the Act arises. This is what the appellant intended to do by notice of November 1, 1957. That notice was duly given in terms of standing order No. 23(1) earlier mentioned. This is not disputed by the respondent. The appellant paid all the retrenchment compensation and salary and other dues that under the law applicable, the retrenched persons were entitled to. In our view, the notice of retrenchment dated November 1, 1957 was legal and no exception can be taken to it. If it was legally given, it does not cease to be so because within eight days a notice of change was also given. It makes no difference that at the time the earlier notice was given the appellant knew that the later notice would have to be given. We have not been shown that by the procedure followed by the appellant the employees have in any way been prejudiced. We do not see that there was any attempt by the appellant to practise a fraud upon the Act: the rights of the employees under the Act had not been affected by anything that the appellant had done. Item No. 1 of Schedule II no doubt refers to reduction of a permanent orcharacter and there is nothing on the record to establish that the retrenched persons were not permanent oremployees.But that cannot make the notice of retrenchment given on November 1, 1957 a notice of change: the notice remains what it was, that is, a notice of termination of services of employees and not a notice of reduction of posts. | 1 | 1,929 | 834 | ### 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:
Schedule II is in these terms:"Reduction intended to be of permanent or semi-permanent character in the number of persons employed or to be employed in any occupation or process or department or departments or in a shift not due to force majeure."6. It is not necessary to refer to any other provision of the Act for the purpose of this judgment.7. The Labour Court held that the termination of the services of the employees effected on November 1, 1957 amounted to a reduction of a permanent or semi-permanent character within the meaning of item No. 1 of Schedule II of the Act and it was illegal as no notice of change had been given. It held that the posts occupied by the retrenched employees were permanent or semi-permanent posts because a notice of change for the abolition of these posts was subsequently, namely, on November 9, 1957 given. It also held that the working of the second shift had been closed on August 9, 1957 and then the fate of the posts occupied by the retrenched employees had become certain. It, therefore, held that the retrenchment had amounted to a change within the meaning of item No. 1 of Schedule II and as it had been effected without a notice under S. 42 it was illegal. In this view of the matter, it directed the retrenched employees to be reinstated. On appeal the Industrial Court took the same view and affirmed the order of the Labour Court.8. In our view, both the Courts below were wrong. The notice of change contemplated by S. 42 is the expression of an intention to effect a change in any of the matters mentioned in Schedule II. In the present case we are concerned with Item No. 1 of that Schedule. It seems to us clear that that item relates only to posts and not to the personnel occupying the posts. A notice of change in respect of Item No. 1 of Schedule II does not automatically effect any retrenchment; an independent notice to retrench has also to be given under standing order No. 23(1) earlier set out. Without such notice no retrenchment can be legally effected. If Item No. 1 of Schedule II refers to the retrenchment of employees, then on the same subject there would be two provisions, for Item No. 10 of Schedule I also deals with the retrenchment of employees. In such a case two notices for the same purpose would be required by the Act, namely, a notice under S. 42 and another notice under standing order No. 23(1). But that could not have been intended.9. Furthermore, the language of Item No. 1 of Schedule II clearly refers to a reduction in posts. It deals with the reduction not of persons employed but with the number of persons employed. Therefore, it clearly contemplates posts. Again, this item also refers to the number of persons to be employed. That of course has nothing to do with the retrenchment of persons actually employed. Again, when a notice of change in respect of Item No. 1 of Schedule II is to be given, it is not to be given to any employee but to the representative of the employees which would include a union of employees. It could hardly have been intended that when employees were to be retrenched they would not be given any notice. The learned counsel for the appellant said that the reason for a notice of change is that when posts are reduced, the burden of the work on the remaining posts may become heavier and therefore the representative of the employees is given a hearing in this connection. This seems to be a plausible view. Again the Act provides for conciliation when there is difference between the representative of the employees and the employer regarding the subject matter of a notice of change though there is no such provision where employees are retrenched.All these considerations lead us to the view that Item No. 1 of Schedule II is concerned only with posts. The notice of November 1, 1957 was not a notice of change and its validity cannot be tested by reference to S. 42 of the Act.10. When, therefore, an employer does not desire to reduce the posts but only to retrench certain employees holding certain posts, no question of giving a notice of change as mentioned in S. 42 of the Act arises. This is what the appellant intended to do by notice of November 1, 1957. That notice was duly given in terms of standing order No. 23(1) earlier mentioned. This is not disputed by the respondent. The appellant paid all the retrenchment compensation and salary and other dues that under the law applicable, the retrenched persons were entitled to. In our view, the notice of retrenchment dated November 1, 1957 was legal and no exception can be taken to it. If it was legally given, it does not cease to be so because within eight days a notice of change was also given. It makes no difference that at the time the earlier notice was given the appellant knew that the later notice would have to be given. We have not been shown that by the procedure followed by the appellant the employees have in any way been prejudiced. We do not see that there was any attempt by the appellant to practise a fraud upon the Act: the rights of the employees under the Act had not been affected by anything that the appellant had done. Item No. 1 of Schedule II no doubt refers to reduction of a permanent or semi-permanent character and there is nothing on the record to establish that the retrenched persons were not permanent or semi-permanent employees.But that cannot make the notice of retrenchment given on November 1, 1957 a notice of change: the notice remains what it was, that is, a notice of termination of services of employees and not a notice of reduction of posts.
### Response:
1
### Explanation:
8. In our view, both the Courts below were wrong. The notice of change contemplated by S. 42 is the expression of an intention to effect a change in any of the matters mentioned in Schedule II. In the present case we are concerned with Item No. 1 of that Schedule. It seems to us clear that that item relates only to posts and not to the personnel occupying the posts. A notice of change in respect of Item No. 1 of Schedule II does not automatically effect any retrenchment; an independent notice to retrench has also to be given under standing order No. 23(1) earlier set out. Without such notice no retrenchment can be legally effected. If Item No. 1 of Schedule II refers to the retrenchment of employees, then on the same subject there would be two provisions, for Item No. 10 of Schedule I also deals with the retrenchment of employees. In such a case two notices for the same purpose would be required by the Act, namely, a notice under S. 42 and another notice under standing order No. 23(1). But that could not have been intended.9. Furthermore, the language of Item No. 1 of Schedule II clearly refers to a reduction in posts. It deals with the reduction not of persons employed but with the number of persons employed. Therefore, it clearly contemplates posts. Again, this item also refers to the number of persons to be employed. That of course has nothing to do with the retrenchment of persons actually employed. Again, when a notice of change in respect of Item No. 1 of Schedule II is to be given, it is not to be given to any employee but to the representative of the employees which would include a union of employees. It could hardly have been intended that when employees were to be retrenched they would not be given any notice. The learned counsel for the appellant said that the reason for a notice of change is that when posts are reduced, the burden of the work on the remaining posts may become heavier and therefore the representative of the employees is given a hearing in this connection. This seems to be a plausible view. Again the Act provides for conciliation when there is difference between the representative of the employees and the employer regarding the subject matter of a notice of change though there is no such provision where employees are retrenched.All these considerations lead us to the view that Item No. 1 of Schedule II is concerned only with posts. The notice of November 1, 1957 was not a notice of change and its validity cannot be tested by reference to S. 42 of the Act.10. When, therefore, an employer does not desire to reduce the posts but only to retrench certain employees holding certain posts, no question of giving a notice of change as mentioned in S. 42 of the Act arises. This is what the appellant intended to do by notice of November 1, 1957. That notice was duly given in terms of standing order No. 23(1) earlier mentioned. This is not disputed by the respondent. The appellant paid all the retrenchment compensation and salary and other dues that under the law applicable, the retrenched persons were entitled to. In our view, the notice of retrenchment dated November 1, 1957 was legal and no exception can be taken to it. If it was legally given, it does not cease to be so because within eight days a notice of change was also given. It makes no difference that at the time the earlier notice was given the appellant knew that the later notice would have to be given. We have not been shown that by the procedure followed by the appellant the employees have in any way been prejudiced. We do not see that there was any attempt by the appellant to practise a fraud upon the Act: the rights of the employees under the Act had not been affected by anything that the appellant had done. Item No. 1 of Schedule II no doubt refers to reduction of a permanent orcharacter and there is nothing on the record to establish that the retrenched persons were not permanent oremployees.But that cannot make the notice of retrenchment given on November 1, 1957 a notice of change: the notice remains what it was, that is, a notice of termination of services of employees and not a notice of reduction of posts.
|
509 Karmachari Union, Agra Vs. U.O.I. | of this specific inclusion and exclusion in the meaning of the word `income and `salary, it is rightly submitted that payment received by the assessee has no connection with the profits of the employer. The word `profits is used only to convey an `advantage or `gain by receipt of any payment by the employee. Websters Comprehensive Dictionary gives meaning of the word `profit inter alia to mean advantage or benefit. It states : "Profit - Synonyms : advantage, avail, benefit, emolument, expediency, gain, good, improvement, proceeds, receipts, return, returns, service, utility, value.....Advantage is that which gives one a vantage ground, either for coping with competitioners or with difficulties, needs, or demands; as, to have the advantage of a good education; it is frequently used to what one has beyond another or secures at the expenses of another; as, to have the advantage in argument, or to take advantage in a bargain." 22. Applying the aforesaid general meaning of the word `profits and considering the dictionary meaning given to it under Section (17)(1)(iv) and 3(ii), it can be said that `advantage in terms of payment of money received by the employee from the employer in relation or in addition to any salary or wages would be covered by the inclusive definition of the word `salary. Because of the inclusive meaning given to the phrase `profits in lieu of salary would include `any payment due to or received by an assessee from an employer, even though it has no connection with the profits of the employer. It is true that Legislature might have avoided giving of inclusive meaning to the word `salary by stating that any payment received by the employee from an employer would be considered to be salary except the payments which are excluded by Section 17(3)(ii) i.e. clause (10), (10A), (10B), (11), (12), (13) or (13A) of Section 10. However, it is for the Legislature to decide the same. This would not mean that by giving exhaustive and inclusive meaning, the word `profits can be given a meaning only when it pertains to sharing of profits by the employer. For the assessee, the receipt of such amount would be a profit, gain or advantage in addition to salary, even though it is not named as salary. Therefore, the word `profits in context is required to be understood as gain or advantage to the assessee. Hence, it is not possible to accept the contention of the learned counsel for the employees that as the CCA amount is paid to meet the additional expenditure as contemplated by the statutory Service Rules, it cannot be said to be profit, gain or additional salary. Under the Act, such receipt of the amount as conceded is covered by the definition of the word "income" and as provided it would be in addition to salary. Hence, it would be part and parcel of income by way of salary, which would be taxable one. 23. Learned counsel for the appellant further submitted that assuming for the purpose of `profits in lieu of salary, employer is not required to give any share out of the profits, yet even in the hands of the employees, receipt of the amount must be `profits. It is his contention that whatever CCA, Government or Statutory Corporations pay to the employees, cannot be termed as `profits by any standard because the amount is calculated in such a manner that it reimburses less than extra costs incurred by them at a station where they are posted. It is further submitted that by including these payments as taxable, it would cause hardship to the honest employees whose source of income is limited and are required to meet extra expenses at the station where they are transferred and posted for which service rules provide for reimbursement of extra cost. He referred to the decision rendered by the Bombay High Court in C.I.T. v. D.R. Pathak, (1975)99 ITR 14 , wherein the Court considered whether CCA was taxable as perquisite as contended by the revenue. The Court negatived it by holding that "payment of taxable allowance under the order of the Government is neither an emolument nor fee nor profit, but it is a reimbursement of personal expenses required by the Government servant to be incurred on account of expenses of living at a particular place." 24. May be that this is true to the extent that Government or statutory corporations do pay something less than what is required to be reimbursed and the receipt of CCA cannot be termed as `profit in common parlance. However, for `income, `salary and its taxability under the Act, the dictionary meaning given by the Legislature is to be taken into consideration as for that purpose, it is a complete code. Income tax is attracted at the point when the income is earned. Taxation of income is not dependent upon its destination or the manner of its utilisation. Re. Tuticorin Alkali Chemicals & Fertilizers Ltd., Madras v. Commissioner of Income Tax, Madras (1997)6 SCC 117 . Therefore, there is no question of referring to the Fundamental Rules framed by the Central Government or by the statutory authorities for payment of CCA, HRA or other such allowance for reimbursing the expenditure incurred by the employees. Further, equity or hardship would hardly be relevant ground for interpretation of tax law. It is for the Government or the statutory bodies to be the needful. However, equitable it may be that CCA cannot be held to be `profit in the hands of the assessee or it is not share out of profit, yet it cannot be helped in view of inclusive and exclusive meaning given under the Act. 25. In the result, we hold that DA, CCA and HRA would be taxable income. Since, counsel for the employees did not make any submission with regard to other allowances like, night allowance, tuition fee, leave enacashment linked with leave travel concession, running allowance etc. we do not pass any order with regard to those allowances. | 1[ds]21. In our view, even though three is much substance in the contentions raised by the learned counsel for the assessee yet it is to be stated that the Act is a self-contained Code and the taxability of the receipt of any amount or allowance is to be determined on the basis of meaning given to the words or phrases in the Act. Section 2(24) of the Act gives wide inclusive definition to the word `income. Similarly, for levying tax on salary income, exhaustive definition is given under Section 17, which includes perquisites and `profits in lieu of salary. Only exclusion provided under sub-section (3) is any payment referable to clause (10) [clause (10A)], [clause 10(B)], clause (11), clause (12), clause (13) of [clause (13A)] of Section 10. In view of this specific inclusion and exclusion in the meaning of the word `income and `salary, it is rightly submitted that payment received by the assessee has no connection with the profits of the employer. The word `profits is used only to convey an `advantage or `gain by receipt of any payment by the employee.May be that this is true to the extent that Government or statutory corporations do pay something less than what is required to be reimbursed and the receipt of CCA cannot be termed as `profit in common parlance. However, for `income, `salary and its taxability under the Act, the dictionary meaning given by the Legislature is to be taken into consideration as for that purpose, it is a complete code. Income tax is attracted at the point when the income is earned. Taxation of income is not dependent upon its destination or the manner of its utilisation. Re. Tuticorin Alkali Chemicals & Fertilizers Ltd., Madras v. Commissioner of Income Tax, Madras (1997)6 SCC 117 . Therefore, there is no question of referring to the Fundamental Rules framed by the Central Government or by the statutory authorities for payment of CCA, HRA or other such allowance for reimbursing the expenditure incurred by the employees. Further, equity or hardship would hardly be relevant ground for interpretation of tax law. It is for the Government or the statutory bodies to be the needful. However, equitable it may be that CCA cannot be held to be `profit in the hands of the assessee or it is not share out of profit, yet it cannot be helped in view of inclusive and exclusive meaning given under the Act. | 1 | 6,558 | 488 | ### 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:
of this specific inclusion and exclusion in the meaning of the word `income and `salary, it is rightly submitted that payment received by the assessee has no connection with the profits of the employer. The word `profits is used only to convey an `advantage or `gain by receipt of any payment by the employee. Websters Comprehensive Dictionary gives meaning of the word `profit inter alia to mean advantage or benefit. It states : "Profit - Synonyms : advantage, avail, benefit, emolument, expediency, gain, good, improvement, proceeds, receipts, return, returns, service, utility, value.....Advantage is that which gives one a vantage ground, either for coping with competitioners or with difficulties, needs, or demands; as, to have the advantage of a good education; it is frequently used to what one has beyond another or secures at the expenses of another; as, to have the advantage in argument, or to take advantage in a bargain." 22. Applying the aforesaid general meaning of the word `profits and considering the dictionary meaning given to it under Section (17)(1)(iv) and 3(ii), it can be said that `advantage in terms of payment of money received by the employee from the employer in relation or in addition to any salary or wages would be covered by the inclusive definition of the word `salary. Because of the inclusive meaning given to the phrase `profits in lieu of salary would include `any payment due to or received by an assessee from an employer, even though it has no connection with the profits of the employer. It is true that Legislature might have avoided giving of inclusive meaning to the word `salary by stating that any payment received by the employee from an employer would be considered to be salary except the payments which are excluded by Section 17(3)(ii) i.e. clause (10), (10A), (10B), (11), (12), (13) or (13A) of Section 10. However, it is for the Legislature to decide the same. This would not mean that by giving exhaustive and inclusive meaning, the word `profits can be given a meaning only when it pertains to sharing of profits by the employer. For the assessee, the receipt of such amount would be a profit, gain or advantage in addition to salary, even though it is not named as salary. Therefore, the word `profits in context is required to be understood as gain or advantage to the assessee. Hence, it is not possible to accept the contention of the learned counsel for the employees that as the CCA amount is paid to meet the additional expenditure as contemplated by the statutory Service Rules, it cannot be said to be profit, gain or additional salary. Under the Act, such receipt of the amount as conceded is covered by the definition of the word "income" and as provided it would be in addition to salary. Hence, it would be part and parcel of income by way of salary, which would be taxable one. 23. Learned counsel for the appellant further submitted that assuming for the purpose of `profits in lieu of salary, employer is not required to give any share out of the profits, yet even in the hands of the employees, receipt of the amount must be `profits. It is his contention that whatever CCA, Government or Statutory Corporations pay to the employees, cannot be termed as `profits by any standard because the amount is calculated in such a manner that it reimburses less than extra costs incurred by them at a station where they are posted. It is further submitted that by including these payments as taxable, it would cause hardship to the honest employees whose source of income is limited and are required to meet extra expenses at the station where they are transferred and posted for which service rules provide for reimbursement of extra cost. He referred to the decision rendered by the Bombay High Court in C.I.T. v. D.R. Pathak, (1975)99 ITR 14 , wherein the Court considered whether CCA was taxable as perquisite as contended by the revenue. The Court negatived it by holding that "payment of taxable allowance under the order of the Government is neither an emolument nor fee nor profit, but it is a reimbursement of personal expenses required by the Government servant to be incurred on account of expenses of living at a particular place." 24. May be that this is true to the extent that Government or statutory corporations do pay something less than what is required to be reimbursed and the receipt of CCA cannot be termed as `profit in common parlance. However, for `income, `salary and its taxability under the Act, the dictionary meaning given by the Legislature is to be taken into consideration as for that purpose, it is a complete code. Income tax is attracted at the point when the income is earned. Taxation of income is not dependent upon its destination or the manner of its utilisation. Re. Tuticorin Alkali Chemicals & Fertilizers Ltd., Madras v. Commissioner of Income Tax, Madras (1997)6 SCC 117 . Therefore, there is no question of referring to the Fundamental Rules framed by the Central Government or by the statutory authorities for payment of CCA, HRA or other such allowance for reimbursing the expenditure incurred by the employees. Further, equity or hardship would hardly be relevant ground for interpretation of tax law. It is for the Government or the statutory bodies to be the needful. However, equitable it may be that CCA cannot be held to be `profit in the hands of the assessee or it is not share out of profit, yet it cannot be helped in view of inclusive and exclusive meaning given under the Act. 25. In the result, we hold that DA, CCA and HRA would be taxable income. Since, counsel for the employees did not make any submission with regard to other allowances like, night allowance, tuition fee, leave enacashment linked with leave travel concession, running allowance etc. we do not pass any order with regard to those allowances.
### Response:
1
### Explanation:
21. In our view, even though three is much substance in the contentions raised by the learned counsel for the assessee yet it is to be stated that the Act is a self-contained Code and the taxability of the receipt of any amount or allowance is to be determined on the basis of meaning given to the words or phrases in the Act. Section 2(24) of the Act gives wide inclusive definition to the word `income. Similarly, for levying tax on salary income, exhaustive definition is given under Section 17, which includes perquisites and `profits in lieu of salary. Only exclusion provided under sub-section (3) is any payment referable to clause (10) [clause (10A)], [clause 10(B)], clause (11), clause (12), clause (13) of [clause (13A)] of Section 10. In view of this specific inclusion and exclusion in the meaning of the word `income and `salary, it is rightly submitted that payment received by the assessee has no connection with the profits of the employer. The word `profits is used only to convey an `advantage or `gain by receipt of any payment by the employee.May be that this is true to the extent that Government or statutory corporations do pay something less than what is required to be reimbursed and the receipt of CCA cannot be termed as `profit in common parlance. However, for `income, `salary and its taxability under the Act, the dictionary meaning given by the Legislature is to be taken into consideration as for that purpose, it is a complete code. Income tax is attracted at the point when the income is earned. Taxation of income is not dependent upon its destination or the manner of its utilisation. Re. Tuticorin Alkali Chemicals & Fertilizers Ltd., Madras v. Commissioner of Income Tax, Madras (1997)6 SCC 117 . Therefore, there is no question of referring to the Fundamental Rules framed by the Central Government or by the statutory authorities for payment of CCA, HRA or other such allowance for reimbursing the expenditure incurred by the employees. Further, equity or hardship would hardly be relevant ground for interpretation of tax law. It is for the Government or the statutory bodies to be the needful. However, equitable it may be that CCA cannot be held to be `profit in the hands of the assessee or it is not share out of profit, yet it cannot be helped in view of inclusive and exclusive meaning given under the Act.
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Dr. Karan Singh Vs. State Of J&K | of India for reconsideration or referred for adjudication to an arbitrator to be appointed by this Court. 35. The relevant part of order dated 24th September, 1984 passed by the Government of India rejecting appellants representation reads as under: "2. The relevant facts appear to be that in response to Government of Indias letter of 18.5.1949, the then Maharaja of Kashmir in his letter dated 1.6.1949 addressed to late Sardar Vallabhbhai Patel, the then Minister of Home Affairs and States, had sent a list of his private properties. There is no mention of jewellery or regalia in question in the said list. The aforesaid list of private properties given by the then Maharaja of Kashmir was accepted by the Government of India and the acceptance was duly communicated by letter dated 9th June, 1948 by late Sardar Patel.3. Later, Shri C.S. Venkatachar, the then Secretary, Ministry of States, in his letter dated December 24, 1952 addressed to Maharaja Hari Singh, referred to Sardar Patels aforesaid letter of June 9, 1949 and reiterated that the properties mentioned in the Schedule to Maharajas letter were the private properties of the Maharaja and would continue to be his private properties. There is no mention of jewellery or regalia in question in the said Schedule.4. On 18th August, 1958, a Notification was issued by the Ministry of Finance (Department of Revenue) with regard to exemption of heirloom jewellery from wealth tax. According to this Notification, the then rulers were required to obtain recognition of jewellery as their heirloom, if any, for purposes of exemption from the Wealth Tax Act, 1957. The declaration was given in 26 cases by the then Rulers and the jewellery was exempted from wealth tax subject to certain conditions laid down in the Wealth Tax (Exemption of Heirloom Jewellery of Rules) Rules, 1958. The Ruler of Jammu and Kashmir, however, does not appear to have made any application under Rule 3 of these Rules for recognition of jewellery in question as heirloom.5. Consequent upon the enforcement of the Constitution (Twenty-sixth Amendment) Act, 1971 with effect from 28th December, 1971, the rulership was abolished. The question of the jewellery etc. being required for ceremonial purposes thereafter cannot arise. Para 8 of Shri C.S. Venkatachars letter dated December 24, 1952 reproduced in your letter does not relate to the jewellery in question and is of no relevance now.6. The agreements with regard to the private properties of the Rulers, once arrived at, are final.7. It may incidentally be pointed out that in your autobiography entitled Heir Apparent and statements to the Press, you have acknowledged that the treasure lying in the Toshakhana had been given to the State.8. Taking all aspects into consideration, the Government of India regret their inability to accept your claim to the jewelry and other items lying in Srinagar Toshakhana." 36. As already noticed there has never been any declaration that the articles in question are private properties of the appellant or his father. The correspondence between Maharaja Hari Singh and the Government does not declare these articles as private property of Maharaja though some other properties were so declared. Assuming there is some substance in the claim of the appellant which requires consideration, then it will depend upon examination of various disputed question of facts. Such disputed questions cannot be adjudicated except on taking of evidence. In Dharam Dutt & Ors. vs. Union of India & Ors. [2003 (10) SCALE 141 ], a case of taking over of Sapru House by promulgation of ordinance followed by the Act, the contention of the writ petitioners was that the bui8lding, the library and all other movables in the Sapru House are owned by the Society and take over by the Government has deprived the Society of its property without any authority of law. This Court noticing that Union of India do not admit title of the petitioner and also noticing that there is not one document of title produced by the petitioners, held that such highly disputed questions of fact which cannot be determined except on evidence are not fit to be taken up for adjudication in the exercise of writ jurisdiction. We see no illegality in the decision of the Government that was approached by the appellant himself. Therefore, it is not possible to quash the order dated 24th September, 1984 and direct reconsideration of the issue by the Government. Realising difficulties in grant of relief in respect of declaration of articles to be private property of the appellant, Mr. Kapil Sibal did not seriously press it but at the same time strenuously contended that it was amply fit case where the issue deserves to be referred for adjudication to the arbitration of an independent arbitrator. In support, reference has been made by learned counsel to the report of the inspection team constituted by this Court as noticed hereinbefore. The contention urged is that the said report at least prima facie shows that these articles are private property of the appellant and, therefore, an independent adjudication is called for. The inspection team was constituted and inspection ordered as interim measure when the writ petition was pending before the High Court. The report only gives a tentative opinion. It says that the matter may have to be decided on taking evidence. The prima facie opinion expressed in the report is not a ground to refer the issue to arbitration for adjudication in the absence of any agreement requiring reference to arbitration. Further there is no such claim in the writ petition. Assuming that in an appropriate case relief may be moulded by this Court and matter referred for adjudication to arbitration in exercise of powers of this Court under Article 142 of the Constitution of India, we see no ground, on the facts of the present case, to exercise such power. The decision in respect of private property taken long time back cannot be permitted to be reopened without any exceptional grounds which are none in the present case. | 0[ds]19. At this stage it would be apposite to notice the decision of this Court in Kunwar Shri Vir Rajendra Singh vs. Union of India and others (1970) 2 SCR 631 ), where while considering the contention urged on behalf of the petitioner that by the executive order private properties were handed over to the Ruler, reproducing the concerned notification of Government ofThus, it is evident that any right arising out of or relating to a treaty covenant, agreement etc. as mentioned in Article 363, is barred to be determined by any court. The correspondence exchanged between Maharaja Hari Singh and the Government of India would amount to agreement within the meaning of Article 363. In case, the conclusion reached is that the same also covers the articles in question, the bar of Article 363 would clearly be attracted. But if this Court comes to the conclusion that these articles are not covered by the said correspondence, Article 363 would be inapplicable. According to the appellant, there is no document whereunder the question as to these articles came to be considered by the Government. According to the Government, the correspondence of 1949 and letter dated 24th December, 1952 decides the aspect of private properties. This factual aspect has been considered while examining other questions.For the purpose of the present case, the principles laid down in Provash Chandra Dalui and Anr. Biswanath Banerjee and Anr. (1989) Supp. (1) SCC 487) are quite apt. One of the questions that came up for consideration in the said decision was whether there was estoppel, waiver acquiescence or res judicata on the part of the respondents as in earlier proceedings they treated the appellants as thika tenants before the Controller. It was held that the essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means forsaking the assertion of a right to the proper opportunity. It was held that voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquishment and the conferment of the right in question.29. On the touchstone of aforesaid principles, we have to examine facts of the case in hand to decide whether the right was forsaken. We have to decide whether there existed an opportunity to Maharaja Hari Singh and or the appellant to assert the right but it was not asserted at the appropriate time when there was a proper opportunity. According to appellant, the proper opportunity arose only in1983 when the newspapers reports appeared showing the intention of the State Government to sell these articles. The appellant did not forsake the assertion of his right at that time. In fact, he immediately asserted his right by filing a representation and without even awaiting the decision of the representation by the Government, he filed the writ petition before the high Court. In our view, however it is over simplification of the facts and background of the case. The claim of the appellant loses sight of the followingThe correspondence exchanged between the Government of India and Maharaja Hari Singh shows that articles in question were not claimed by theto be his private property.In the present case, the reliance on aforesaid decisions is as misplaced as the argument itself. It has to be borne in mind that the statements made in the book are not being taken into consideration as conclusive admissions as such but have been taken as additional circumstance along with other circumstances that have already been noticed, for determining whether the conduct of the appellant amounts to waiver and/or abandonment of right in respect of the articles in question. The appellant has not been declined relief only on account of the statements made by him in the autobiography. It may also be noticed that the material on record further shows that the appellant has been taking from State Government on temporary loan certain items from Toshakhana by moving applications from time to time for the said purpose. This conduct of the appellant is also a relevant circumstance. It is evident that the appellant came out of slumber only in the year 1983 and took a chance in respect of the articles in question. Though on the aforesaid facts, the doctrine of estoppel may not be applicable against the appellant for want of three conditions as laid down in Gyarsi Bai (supra) but the same cannot be said about abandonment and waiver. It is not a mere case of latches and standing by the appellant. Firstly the father of the appellant never claimed the articlesto be his private property.After his death for twenty years the appellant did not take any action. On the other hand he was occasionally taking articles on loan from Toshakhana. The appellant failed to assert his right at proper opportunity. Having regard to these facts, the conclusion of the Division Bench that the appellant has waived and/or abandoned his right in respect of the articles in question cannot bedifficulties in grant of relief in respect of declaration of articles to be private property of the appellant, Mr. Kapil Sibal did not seriously press it but at the same time strenuously contended that it was amply fit case where the issue deserves to be referred for adjudication to the arbitration of an independent arbitrator. In support, reference has been made by learned counsel to the report of the inspection team constituted by this Court as noticed hereinbefore. The contention urged is that the said report at least prima facie shows that these articles are private property of the appellant and, therefore, an independent adjudication is called for. The inspection team was constituted and inspection ordered as interim measure when the writ petition was pending before the High Court. The report only gives a tentative opinion. It says that the matter may have to be decided on taking evidence. The prima facie opinion expressed in the report is not a ground to refer the issue to arbitration for adjudication in the absence of any agreement requiring reference to arbitration. Further there is no such claim in the writ petition. Assuming that in an appropriate case relief may be moulded by this Court and matter referred for adjudication to arbitration in exercise of powers of this Court under Article 142 of the Constitution of India, we see no ground, on the facts of the present case, to exercise such power. The decision in respect of private property taken long time back cannot be permitted to be reopened without any exceptional grounds which are none in the present case. | 0 | 6,686 | 1,201 | ### Instruction:
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of India for reconsideration or referred for adjudication to an arbitrator to be appointed by this Court. 35. The relevant part of order dated 24th September, 1984 passed by the Government of India rejecting appellants representation reads as under: "2. The relevant facts appear to be that in response to Government of Indias letter of 18.5.1949, the then Maharaja of Kashmir in his letter dated 1.6.1949 addressed to late Sardar Vallabhbhai Patel, the then Minister of Home Affairs and States, had sent a list of his private properties. There is no mention of jewellery or regalia in question in the said list. The aforesaid list of private properties given by the then Maharaja of Kashmir was accepted by the Government of India and the acceptance was duly communicated by letter dated 9th June, 1948 by late Sardar Patel.3. Later, Shri C.S. Venkatachar, the then Secretary, Ministry of States, in his letter dated December 24, 1952 addressed to Maharaja Hari Singh, referred to Sardar Patels aforesaid letter of June 9, 1949 and reiterated that the properties mentioned in the Schedule to Maharajas letter were the private properties of the Maharaja and would continue to be his private properties. There is no mention of jewellery or regalia in question in the said Schedule.4. On 18th August, 1958, a Notification was issued by the Ministry of Finance (Department of Revenue) with regard to exemption of heirloom jewellery from wealth tax. According to this Notification, the then rulers were required to obtain recognition of jewellery as their heirloom, if any, for purposes of exemption from the Wealth Tax Act, 1957. The declaration was given in 26 cases by the then Rulers and the jewellery was exempted from wealth tax subject to certain conditions laid down in the Wealth Tax (Exemption of Heirloom Jewellery of Rules) Rules, 1958. The Ruler of Jammu and Kashmir, however, does not appear to have made any application under Rule 3 of these Rules for recognition of jewellery in question as heirloom.5. Consequent upon the enforcement of the Constitution (Twenty-sixth Amendment) Act, 1971 with effect from 28th December, 1971, the rulership was abolished. The question of the jewellery etc. being required for ceremonial purposes thereafter cannot arise. Para 8 of Shri C.S. Venkatachars letter dated December 24, 1952 reproduced in your letter does not relate to the jewellery in question and is of no relevance now.6. The agreements with regard to the private properties of the Rulers, once arrived at, are final.7. It may incidentally be pointed out that in your autobiography entitled Heir Apparent and statements to the Press, you have acknowledged that the treasure lying in the Toshakhana had been given to the State.8. Taking all aspects into consideration, the Government of India regret their inability to accept your claim to the jewelry and other items lying in Srinagar Toshakhana." 36. As already noticed there has never been any declaration that the articles in question are private properties of the appellant or his father. The correspondence between Maharaja Hari Singh and the Government does not declare these articles as private property of Maharaja though some other properties were so declared. Assuming there is some substance in the claim of the appellant which requires consideration, then it will depend upon examination of various disputed question of facts. Such disputed questions cannot be adjudicated except on taking of evidence. In Dharam Dutt & Ors. vs. Union of India & Ors. [2003 (10) SCALE 141 ], a case of taking over of Sapru House by promulgation of ordinance followed by the Act, the contention of the writ petitioners was that the bui8lding, the library and all other movables in the Sapru House are owned by the Society and take over by the Government has deprived the Society of its property without any authority of law. This Court noticing that Union of India do not admit title of the petitioner and also noticing that there is not one document of title produced by the petitioners, held that such highly disputed questions of fact which cannot be determined except on evidence are not fit to be taken up for adjudication in the exercise of writ jurisdiction. We see no illegality in the decision of the Government that was approached by the appellant himself. Therefore, it is not possible to quash the order dated 24th September, 1984 and direct reconsideration of the issue by the Government. Realising difficulties in grant of relief in respect of declaration of articles to be private property of the appellant, Mr. Kapil Sibal did not seriously press it but at the same time strenuously contended that it was amply fit case where the issue deserves to be referred for adjudication to the arbitration of an independent arbitrator. In support, reference has been made by learned counsel to the report of the inspection team constituted by this Court as noticed hereinbefore. The contention urged is that the said report at least prima facie shows that these articles are private property of the appellant and, therefore, an independent adjudication is called for. The inspection team was constituted and inspection ordered as interim measure when the writ petition was pending before the High Court. The report only gives a tentative opinion. It says that the matter may have to be decided on taking evidence. The prima facie opinion expressed in the report is not a ground to refer the issue to arbitration for adjudication in the absence of any agreement requiring reference to arbitration. Further there is no such claim in the writ petition. Assuming that in an appropriate case relief may be moulded by this Court and matter referred for adjudication to arbitration in exercise of powers of this Court under Article 142 of the Constitution of India, we see no ground, on the facts of the present case, to exercise such power. The decision in respect of private property taken long time back cannot be permitted to be reopened without any exceptional grounds which are none in the present case.
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Article 363. In case, the conclusion reached is that the same also covers the articles in question, the bar of Article 363 would clearly be attracted. But if this Court comes to the conclusion that these articles are not covered by the said correspondence, Article 363 would be inapplicable. According to the appellant, there is no document whereunder the question as to these articles came to be considered by the Government. According to the Government, the correspondence of 1949 and letter dated 24th December, 1952 decides the aspect of private properties. This factual aspect has been considered while examining other questions.For the purpose of the present case, the principles laid down in Provash Chandra Dalui and Anr. Biswanath Banerjee and Anr. (1989) Supp. (1) SCC 487) are quite apt. One of the questions that came up for consideration in the said decision was whether there was estoppel, waiver acquiescence or res judicata on the part of the respondents as in earlier proceedings they treated the appellants as thika tenants before the Controller. It was held that the essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means forsaking the assertion of a right to the proper opportunity. It was held that voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquishment and the conferment of the right in question.29. On the touchstone of aforesaid principles, we have to examine facts of the case in hand to decide whether the right was forsaken. We have to decide whether there existed an opportunity to Maharaja Hari Singh and or the appellant to assert the right but it was not asserted at the appropriate time when there was a proper opportunity. According to appellant, the proper opportunity arose only in1983 when the newspapers reports appeared showing the intention of the State Government to sell these articles. The appellant did not forsake the assertion of his right at that time. In fact, he immediately asserted his right by filing a representation and without even awaiting the decision of the representation by the Government, he filed the writ petition before the high Court. In our view, however it is over simplification of the facts and background of the case. The claim of the appellant loses sight of the followingThe correspondence exchanged between the Government of India and Maharaja Hari Singh shows that articles in question were not claimed by theto be his private property.In the present case, the reliance on aforesaid decisions is as misplaced as the argument itself. It has to be borne in mind that the statements made in the book are not being taken into consideration as conclusive admissions as such but have been taken as additional circumstance along with other circumstances that have already been noticed, for determining whether the conduct of the appellant amounts to waiver and/or abandonment of right in respect of the articles in question. The appellant has not been declined relief only on account of the statements made by him in the autobiography. It may also be noticed that the material on record further shows that the appellant has been taking from State Government on temporary loan certain items from Toshakhana by moving applications from time to time for the said purpose. This conduct of the appellant is also a relevant circumstance. It is evident that the appellant came out of slumber only in the year 1983 and took a chance in respect of the articles in question. Though on the aforesaid facts, the doctrine of estoppel may not be applicable against the appellant for want of three conditions as laid down in Gyarsi Bai (supra) but the same cannot be said about abandonment and waiver. It is not a mere case of latches and standing by the appellant. Firstly the father of the appellant never claimed the articlesto be his private property.After his death for twenty years the appellant did not take any action. On the other hand he was occasionally taking articles on loan from Toshakhana. The appellant failed to assert his right at proper opportunity. Having regard to these facts, the conclusion of the Division Bench that the appellant has waived and/or abandoned his right in respect of the articles in question cannot bedifficulties in grant of relief in respect of declaration of articles to be private property of the appellant, Mr. Kapil Sibal did not seriously press it but at the same time strenuously contended that it was amply fit case where the issue deserves to be referred for adjudication to the arbitration of an independent arbitrator. In support, reference has been made by learned counsel to the report of the inspection team constituted by this Court as noticed hereinbefore. The contention urged is that the said report at least prima facie shows that these articles are private property of the appellant and, therefore, an independent adjudication is called for. The inspection team was constituted and inspection ordered as interim measure when the writ petition was pending before the High Court. The report only gives a tentative opinion. It says that the matter may have to be decided on taking evidence. The prima facie opinion expressed in the report is not a ground to refer the issue to arbitration for adjudication in the absence of any agreement requiring reference to arbitration. Further there is no such claim in the writ petition. Assuming that in an appropriate case relief may be moulded by this Court and matter referred for adjudication to arbitration in exercise of powers of this Court under Article 142 of the Constitution of India, we see no ground, on the facts of the present case, to exercise such power. The decision in respect of private property taken long time back cannot be permitted to be reopened without any exceptional grounds which are none in the present case.
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Majati Subbarao Vs. P.K.K. Krishna Rao (Deceased) By Lrs | that there was a denial of title by the appellant the result would be only that the respondent-landlord became entitled to forfeit the lease and in order to be a ground for eviction in a suit that forfeiture would have to precede the suit or petition for eviction. It was submitted by him that it was not open to a landlord to take advantage of a denial of title by the tenant in the very proceeding for eviction in the course of which the denial was made. The denial must be anterior to the eviction proceedings. In support of this argument learned counsel placed reliance on the decision in Maharaja of Jeypore v. Rukmani Pattamahdevi (46 IA 109 : AIR 1919 PC 1 : 42 Mad 589 : 17 ALJ 552 : 21 Bom LR 655). In our view, this argument also does not stand scrutiny. In V. Dhanapal Chettiar v. Yesodai Ammal ((1979) 4 SCC 214 : (1980) 1 SCR 334 : AIR 1979 SC 1745 ) a constitution Bench of this Court comprising seven learned Judges held that in the matter of determination of tenancy the State Rent Acts do not permit a landlord to snap his relationship with the tenant merely by serving on him a notice to quit as is the position under the Transfer of Property Act. The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant section of the Rent Acts. Even after the termination of the contractual tenancy the landlord under the definitions of landlord and tenant contained in the Rent Acts, remains a landlord and a tenant remains a tenant because of the express provision made in the enactments that a tenant means a person continuing in possession after the termination of the tenancy in this favour. Yet another important feature of the Rent Acts is that either by way of a non-obstante clause or by necessary implication these enactments have done away with the law contained in Section 108 of the Transfer of Property Act dealing with rights and liabilities of the lessor and the lessee. The difference between the position obtaining under the Transfer of Property Act and the Rent Acts in the matter of determination of a lease is that under the former Act in order to recover possession of the leased premises determination of the lease is necessary because during the continuance of the lease the landlord cannot recover possession of the premises while under the Rent Acts the landlord becomes entitled to recover possession only on the fulfilment of the conditions laid down in the relevant sections. He cannot recover possession merely by determining the tenancy. Nor can he be stopped from doing so on the ground he has not terminated the contractual tenancy. In the case before us, we find that the denial of landlords title by the tenant has been expressly made a ground for eviction under Section 10(2)(vi) of the A.P. Rent Act which we have already set out earlier. In view of this, the entire basis for the argument that the denial of title must be anterior to the proceedings for eviction under the A.P. Rent Act is knocked out. In our opinion, the argument of learned counsel for the appellant must, therefore, be rejected. We find, on the other hand, that a number of High Courts have taken the view that even a denial of the landlords title by a tenant in a written statement in an eviction petition under the Rent Act concerned furnishes a ground for eviction and can be relied upon in the very proceedings in which a written statement containing the denial has been filed (See Sada Ram v. Gajjan Shiama (AIR 1970 P&H 511 : 1970 Cur LJ 88 : 1970 Punj LJ 89); Shiv Parshad v. Shila Rani (AIR 1974 HP 22 : 1973 Ren CR 548) and Machavaram Venkata Narayana Rao v. Sarvepalli Narayana Rao Sarada ((1978) 1 RCJ 368 (AP)). As observed by the Punjab and Haryana High Court to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be field by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenants denial of his character as a tenant in the written statement. 6. It was submitted by learned counsel for the appellant that, in any event, the respondent failed to apply for amendment of his plaint and incorporate the ground of denial of title therein as he was bound to do so in order to get relief on that ground which had arisen after the eviction petition was filed. We agree that normally this would have been so but, in the present case, we find that the trial court, namely, the Rent Controller, framed an issue as to whether the tenants denial of the landlords title to the schedule property including the said premises was bona fide. The parties went to trial on this clear issue and the appellant had full knowledge of the ground alleged against him. It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bona fide. If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground. Having failed to raise that contention that the stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition. No other arguments have been advanced before us. | 0[ds]In our view, this decision is hardly of any assistance to learned counsel. The principle laid down in that case is that, in order to constitute a ground for eviction, the denial of title has to be clear and in unequivocal terms. In the present case, the facts found show that the denial of title of the respondent by the appellant was in clear and unequivocal terms. Although it is observed in the said judgment that in providing this ground for eviction, the legislature of the State of Rajasthan decided to give effect to the provisions of clause (g) of Section 111 of the Transfer of Property Act, the judgment nowhere lays down that the denial title must be anterior to the eviction petition nor does it say that the provisions relating to eviction of tenants under the Transfer of Property Act are applicable to the eviction of tenants under the Rajasthan Rent Act. In this connection we may point out that it is well settled that the court hearing a suit or appeal can taken into account events which are subsequent to the filing of the suit in order to give appropriate relief or mould the relief appropriately. Moreover, it is significant that in the present case, the denial of the landlords title was not the only ground pleaded in support of the claim for eviction but it was also contended by the respondent that the appellant was liable to be evicted as the respondent wanted the said premises for his personal bona fide use andour view, this argument also does not stand scrutiny. In V. Dhanapal Chettiar v. Yesodai Ammal ((1979) 4 SCC 214 : (1980) 1 SCR 334 : AIR 1979 SC 1745 ) a constitution Bench of this Court comprising seven learned Judges held that in the matter of determination of tenancy the State Rent Acts do not permit a landlord to snap his relationship with the tenant merely by serving on him a notice to quit as is the position under the Transfer of Property Act. The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant section of the Rent Acts. Even after the termination of the contractual tenancy the landlord under the definitions of landlord and tenant contained in the Rent Acts, remains a landlord and a tenant remains a tenant because of the express provision made in the enactments that a tenant means a person continuing in possession after the termination of the tenancy in this favour. Yet another important feature of the Rent Acts is that either by way of aclause or by necessary implication these enactments have done away with the law contained in Section 108 of the Transfer of Property Act dealing with rights and liabilities of the lessor and the lessee. The difference between the position obtaining under the Transfer of Property Act and the Rent Acts in the matter of determination of a lease is that under the former Act in order to recover possession of the leased premises determination of the lease is necessary because during the continuance of the lease the landlord cannot recover possession of the premises while under the Rent Acts the landlord becomes entitled to recover possession only on the fulfilment of the conditions laid down in the relevant sections. He cannot recover possession merely by determining the tenancy. Nor can he be stopped from doing so on the ground he has not terminated the contractual tenancy. In the case before us, we find that the denial of landlords title by the tenant has been expressly made a ground for eviction under Section 10(2)(vi) of the A.P. Rent Act which we have already set out earlier. In view of this, the entire basis for the argument that the denial of title must be anterior to the proceedings for eviction under the A.P. Rent Act is knocked out. In our opinion, the argument of learned counsel for the appellant must, therefore, be rejected. We find, on the other hand, that a number of High Courts have taken the view that even a denial of the landlords title by a tenant in a written statement in an eviction petition under the Rent Act concerned furnishes a ground for eviction and can be relied upon in the very proceedings in which a written statement containing the denial has been filed (See Sada Ram v. Gajjan Shiama (AIR 1970 P&H 511 : 1970 Cur LJ 88 : 1970 Punj LJ 89); Shiv Parshad v. Shila Rani (AIR 1974 HP 22 : 1973 Ren CR 548) and Machavaram Venkata Narayana Rao v. Sarvepalli Narayana Rao Sarada ((1978) 1 RCJ 368 (AP)). As observed by the Punjab and Haryana High Court to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be field by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenants denial of his character as a tenant in the writtenagree that normally this would have been so but, in the present case, we find that the trial court, namely, the Rent Controller, framed an issue as to whether the tenants denial of the landlords title to the schedule property including the said premises was bona fide. The parties went to trial on this clear issue and the appellant had full knowledge of the ground alleged against him. It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bona fide. If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground. Having failed to raise that contention that the stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition. No other arguments have been advanced before us | 0 | 2,443 | 1,137 | ### Instruction:
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that there was a denial of title by the appellant the result would be only that the respondent-landlord became entitled to forfeit the lease and in order to be a ground for eviction in a suit that forfeiture would have to precede the suit or petition for eviction. It was submitted by him that it was not open to a landlord to take advantage of a denial of title by the tenant in the very proceeding for eviction in the course of which the denial was made. The denial must be anterior to the eviction proceedings. In support of this argument learned counsel placed reliance on the decision in Maharaja of Jeypore v. Rukmani Pattamahdevi (46 IA 109 : AIR 1919 PC 1 : 42 Mad 589 : 17 ALJ 552 : 21 Bom LR 655). In our view, this argument also does not stand scrutiny. In V. Dhanapal Chettiar v. Yesodai Ammal ((1979) 4 SCC 214 : (1980) 1 SCR 334 : AIR 1979 SC 1745 ) a constitution Bench of this Court comprising seven learned Judges held that in the matter of determination of tenancy the State Rent Acts do not permit a landlord to snap his relationship with the tenant merely by serving on him a notice to quit as is the position under the Transfer of Property Act. The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant section of the Rent Acts. Even after the termination of the contractual tenancy the landlord under the definitions of landlord and tenant contained in the Rent Acts, remains a landlord and a tenant remains a tenant because of the express provision made in the enactments that a tenant means a person continuing in possession after the termination of the tenancy in this favour. Yet another important feature of the Rent Acts is that either by way of a non-obstante clause or by necessary implication these enactments have done away with the law contained in Section 108 of the Transfer of Property Act dealing with rights and liabilities of the lessor and the lessee. The difference between the position obtaining under the Transfer of Property Act and the Rent Acts in the matter of determination of a lease is that under the former Act in order to recover possession of the leased premises determination of the lease is necessary because during the continuance of the lease the landlord cannot recover possession of the premises while under the Rent Acts the landlord becomes entitled to recover possession only on the fulfilment of the conditions laid down in the relevant sections. He cannot recover possession merely by determining the tenancy. Nor can he be stopped from doing so on the ground he has not terminated the contractual tenancy. In the case before us, we find that the denial of landlords title by the tenant has been expressly made a ground for eviction under Section 10(2)(vi) of the A.P. Rent Act which we have already set out earlier. In view of this, the entire basis for the argument that the denial of title must be anterior to the proceedings for eviction under the A.P. Rent Act is knocked out. In our opinion, the argument of learned counsel for the appellant must, therefore, be rejected. We find, on the other hand, that a number of High Courts have taken the view that even a denial of the landlords title by a tenant in a written statement in an eviction petition under the Rent Act concerned furnishes a ground for eviction and can be relied upon in the very proceedings in which a written statement containing the denial has been filed (See Sada Ram v. Gajjan Shiama (AIR 1970 P&H 511 : 1970 Cur LJ 88 : 1970 Punj LJ 89); Shiv Parshad v. Shila Rani (AIR 1974 HP 22 : 1973 Ren CR 548) and Machavaram Venkata Narayana Rao v. Sarvepalli Narayana Rao Sarada ((1978) 1 RCJ 368 (AP)). As observed by the Punjab and Haryana High Court to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be field by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenants denial of his character as a tenant in the written statement. 6. It was submitted by learned counsel for the appellant that, in any event, the respondent failed to apply for amendment of his plaint and incorporate the ground of denial of title therein as he was bound to do so in order to get relief on that ground which had arisen after the eviction petition was filed. We agree that normally this would have been so but, in the present case, we find that the trial court, namely, the Rent Controller, framed an issue as to whether the tenants denial of the landlords title to the schedule property including the said premises was bona fide. The parties went to trial on this clear issue and the appellant had full knowledge of the ground alleged against him. It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bona fide. If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground. Having failed to raise that contention that the stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition. No other arguments have been advanced before us.
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respondent by the appellant was in clear and unequivocal terms. Although it is observed in the said judgment that in providing this ground for eviction, the legislature of the State of Rajasthan decided to give effect to the provisions of clause (g) of Section 111 of the Transfer of Property Act, the judgment nowhere lays down that the denial title must be anterior to the eviction petition nor does it say that the provisions relating to eviction of tenants under the Transfer of Property Act are applicable to the eviction of tenants under the Rajasthan Rent Act. In this connection we may point out that it is well settled that the court hearing a suit or appeal can taken into account events which are subsequent to the filing of the suit in order to give appropriate relief or mould the relief appropriately. Moreover, it is significant that in the present case, the denial of the landlords title was not the only ground pleaded in support of the claim for eviction but it was also contended by the respondent that the appellant was liable to be evicted as the respondent wanted the said premises for his personal bona fide use andour view, this argument also does not stand scrutiny. In V. Dhanapal Chettiar v. Yesodai Ammal ((1979) 4 SCC 214 : (1980) 1 SCR 334 : AIR 1979 SC 1745 ) a constitution Bench of this Court comprising seven learned Judges held that in the matter of determination of tenancy the State Rent Acts do not permit a landlord to snap his relationship with the tenant merely by serving on him a notice to quit as is the position under the Transfer of Property Act. The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant section of the Rent Acts. Even after the termination of the contractual tenancy the landlord under the definitions of landlord and tenant contained in the Rent Acts, remains a landlord and a tenant remains a tenant because of the express provision made in the enactments that a tenant means a person continuing in possession after the termination of the tenancy in this favour. Yet another important feature of the Rent Acts is that either by way of aclause or by necessary implication these enactments have done away with the law contained in Section 108 of the Transfer of Property Act dealing with rights and liabilities of the lessor and the lessee. The difference between the position obtaining under the Transfer of Property Act and the Rent Acts in the matter of determination of a lease is that under the former Act in order to recover possession of the leased premises determination of the lease is necessary because during the continuance of the lease the landlord cannot recover possession of the premises while under the Rent Acts the landlord becomes entitled to recover possession only on the fulfilment of the conditions laid down in the relevant sections. He cannot recover possession merely by determining the tenancy. Nor can he be stopped from doing so on the ground he has not terminated the contractual tenancy. In the case before us, we find that the denial of landlords title by the tenant has been expressly made a ground for eviction under Section 10(2)(vi) of the A.P. Rent Act which we have already set out earlier. In view of this, the entire basis for the argument that the denial of title must be anterior to the proceedings for eviction under the A.P. Rent Act is knocked out. In our opinion, the argument of learned counsel for the appellant must, therefore, be rejected. We find, on the other hand, that a number of High Courts have taken the view that even a denial of the landlords title by a tenant in a written statement in an eviction petition under the Rent Act concerned furnishes a ground for eviction and can be relied upon in the very proceedings in which a written statement containing the denial has been filed (See Sada Ram v. Gajjan Shiama (AIR 1970 P&H 511 : 1970 Cur LJ 88 : 1970 Punj LJ 89); Shiv Parshad v. Shila Rani (AIR 1974 HP 22 : 1973 Ren CR 548) and Machavaram Venkata Narayana Rao v. Sarvepalli Narayana Rao Sarada ((1978) 1 RCJ 368 (AP)). As observed by the Punjab and Haryana High Court to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be field by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenants denial of his character as a tenant in the writtenagree that normally this would have been so but, in the present case, we find that the trial court, namely, the Rent Controller, framed an issue as to whether the tenants denial of the landlords title to the schedule property including the said premises was bona fide. The parties went to trial on this clear issue and the appellant had full knowledge of the ground alleged against him. It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bona fide. If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground. Having failed to raise that contention that the stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition. No other arguments have been advanced before us
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Harnandrai Badridas Vs. Debidutt Bhagwati Prasad & Ors | not a matter relating to the execution, discharge or satisfaction of the decree. Chatterjee, Acting C. J. delivering the Judgment on behalf of himself and four other learned Judges answered the question as to whether a decree-holder auction purchaser is a party to the suit, in the affirmative. Relying among others on the observation of the Judicial Committee in the case of Prosunno Coomar Sanyal v. Kalidas Sanyal, (1892) ILR 19 Ind App 166 (PC) the learned Acting Chief Justice put a wide and liberal construction on Section 47 of the Code of Civil Procedure and decided that the decree-holder was undoubtedly a party to the suit and did not lose that status after the sale. As for the second question, his Lordship held that the weight of authority was in favour of the view that where an auction-purchaser is the decree-holder, any question relating to delivery of possession is a question relating to the "execution, discharge or satisfaction of the decree" within the meaning of Section 47.4. In ILR (1945) 26 Lah 252 = (AIR 1944 Lah 402 (FB)) the Lahore High Court came to an entirely contrary decision. According to the Lahore High Court, Section 47 of the Code of Civil Procedure does not apply to an order passed on an application under O. XXI, R. 95 by an auction-purchaser who was also the decree-holder. This view which is supported by a stream of decisions of the High Courts of Allahabad, Patna, Bombay and Rangoon makes no distinction between a decree-holder purchaser and a stranger purchaser. In the case of a decree-holder purchaser it is, according to this view, a mere accident that the purchaser was also a party before the auction sale and that advantageous factor should not therefore have the effect of making his position better or worse than that of a purchaser who had been a stranger in the suit. Further, according to this view, as soon as a judgment debtors property is sold in auction and the decretal amount realised by the decree-holder, the decree stands satisfied and after that stage there can be no scope for any question arising as to the execution, discharge or satisfaction of the decree. The question whether the auction purchaser gets possession of the property is a matter which has nothing to do with the question of satisfaction of the decree.5. As we have already said, the appellant relied on the Full Bench decision of the Lahore High Court. We have carefully gone through the various decisions cited before us and we find ourselves in agreement with the opinion of the Full Bench of the Calcutta High Court in Kailash Tsrafdars case, ILR 53 Cal 781 = (AIR 1926 Cal 798 (FB)). If a confirmation of the sale would finally terminate all questions as to execution of the decree it is difficult to appreciate why the legislature would frame such rules as Rules 95 to 102 under Order XXI of the Code of Civil Procedure. We are in respectful agreement with G. K. Mitter J., that the legislature must have thought that the duty of the executing Court should not end with the confirmation of the sale and it is because the legislature thought "that the auction purchaser should have the right of applying for possession under the provisions of Rule 95 and Rule 96 that proceedings for obtaining possession were included in the catena of rules relating to the execution of the decree."6. Section 47 in our view should be construed liberally. As far back in 1892 (1892) 19 Ind App 166 (PC) the Privy Council spoke strongly in favour of putting a liberal construction on Section 244 of the Code of Civil Procedure of 1882 which corresponded to present Sec. 47 of the Code of 1908. The Privy Council reiterated this in Ganapathy v. Krishnamachariar, 45 Ind App 54 = (AIR 1917 PC 121).If a liberal construction be put upon Section 47 it is difficult to understand why a decree-holder who has been a party to the decree will shed his character as such party merely upon purchasing the property at the execution sale. After all, a decree-holder purchases the property in execution of his decree with the permission of the Court. There is no reason why he should not retain his character of a party to the suit until the delivery of possession to him of the property purchased by him. Having regard to this consideration, if any question is raised by the judgment-debtor at the time of delivery of possession concerning the nature of the rights purchased and if the judgment-debtor offers any resistance to delivery of possession the question must be one which in our view relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit.7. Speaking of the two conflicting views on this section the learned commentator of the 13th Edition of Sir Dinshaw Mullas Code of Civil Procedure makes the following observation :"The cases in which it has been held that an auction purchaser even if he is the decree-holder is not a party to the suit, require reconsideration in view of the ruling of the Judicial Committee that such an auction purchaser is a party to the suit."The decision of the Judicial Committee which the learned commentator had in mind is that of Ganapathy v. Krishnamachariar, 45 Ind App 54 = (AIR 1917 PC 121).8. It is important to remember that after the decision of the Privy Council in Ganapathys case, 45 Ind App 54 = (AIR 1917 PC 121) there has been an amendment of Section 47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree-holder or not, is unquestionably a party to the suit for the purpose of Section 47. Having regard to this, all questions arising between the auction-purchaser and the judgment-debtor must in our view be determined by the executing Court and not by a separate suit. | 0[ds]3. In Kailash Chandra Tarafdars case, ILR 53 Cal 781 = (AIR 1926 Cal 798 FB) the auction purchaser who was also the decree-holder had made an application for delivery of possession under O. XXI R. 95 of theCode of Civil Procedure. The executing court held that he was only entitled to possession under R. 96 that is, through a tenant in possession. Upon an appeal by the decree-holder auction-purchaser the appeal was resisted mainly on the contention that no appeal lay. The lower appellate court allowed the appeal and ordered the auction-purchaser to be put into khas possession under R. 95. Upon appeal by the judgment-debtor to the High Court, the principal contention of the indgment-debtor was that no appeal lay to the District Court. The Division Bench who heard the appeal referred the case to the Full Bench on account of certain conflicting decisions in the High Court of Calcutta. While making the order of reference the Division Bench held that no appeal lay before the District Court because the matter did not come within R. 97 on two grounds, namely (i) because it was not a question arising between the parties to the suit and (ii) it was not a matter relating to the execution, discharge or satisfaction of the decree. Chatterjee, Acting C. J. delivering the Judgment on behalf of himself and four other learned Judges answered the question as to whether a decree-holder auction purchaser is a party to the suit, in the affirmative. Relying among others on the observation of the Judicial Committee in the case of Prosunno Coomar Sanyal v. Kalidas Sanyal, (1892) ILR 19 Ind App 166 (PC) the learned Acting Chief Justice put a wide and liberal construction on Section 47 of theCode of Civil Procedure and decided that the decree-holder was undoubtedly a party to the suit and did not lose that status after the sale. As for the second question, his Lordship held that the weight of authority was in favour of the view that where an auction-purchaser is the decree-holder, any question relating to delivery of possession is a question relating to the "execution, discharge or satisfaction of the decree" within the meaning of Sectionhave carefully gone through the various decisions cited before us and we find ourselves in agreement with the opinion of the Full Bench of the Calcutta High Court in Kailash Tsrafdars case, ILR 53 Cal 781 = (AIR 1926 Cal 798 (FB)). If a confirmation of the sale would finally terminate all questions as to execution of the decree it is difficult to appreciate why the legislature would frame such rules as Rules 95 to 102 under Order XXI of theCode of Civil Procedure. We are in respectful agreement with G. K. Mitter J., that the legislature must have thought that the duty of the executing Court should not end with the confirmation of the sale and it is because the legislature thought "that the auction purchaser should have the right of applying for possession under the provisions of Rule 95 and Rule 96 that proceedings for obtaining possession were included in the catena of rules relating to the execution of the decree."6. Section 47 in our view should be construed liberally.It is important to remember that after the decision of the Privy Council in Ganapathys case, 45 Ind App 54 = (AIR 1917 PC 121) there has been an amendment of Section 47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree-holder or not, is unquestionably a party to the suit for the purpose of Section 47. Having regard to this, all questions arising between the auction-purchaser and the judgment-debtor must in our view be determined by the executing Court and not by a separatea question does not fall to be determined by the executing court but can be decided only in a separate suit. The question that has been raised by the appellant is one which has formed the subject matter of a long series of decisions which unfortunately have followed two divergent streams. There is on the one hand a Full Bench decision of the Calcutta High Court in Kailash Chandra Tarafdar v. Gopal Chandra Poddar, ILR 53 Cal 781 = (AIR 1926 Cal 798 FB) followed by the Madras High Court while on the other hand there is the decision of the Lahore High Court in Ram Singh Gopal Singh v. Abdullah Habibullah, ILR (1945) 26 Lah 252 = (AIR 1944 Lah 402 FB) which has been followed in various Full Bench decisions by the Allahabad High Court and also by the Patna High Court and the Bombay High Court. In the present case, the Calcutta High Court has followed, as indeed they were bound to follow, the Full Bench decision in Kailash Chandra Tarafdars case ILR 53 Cal 781 = (AIR 1926 Cal 798 FB). | 0 | 2,208 | 890 | ### Instruction:
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not a matter relating to the execution, discharge or satisfaction of the decree. Chatterjee, Acting C. J. delivering the Judgment on behalf of himself and four other learned Judges answered the question as to whether a decree-holder auction purchaser is a party to the suit, in the affirmative. Relying among others on the observation of the Judicial Committee in the case of Prosunno Coomar Sanyal v. Kalidas Sanyal, (1892) ILR 19 Ind App 166 (PC) the learned Acting Chief Justice put a wide and liberal construction on Section 47 of the Code of Civil Procedure and decided that the decree-holder was undoubtedly a party to the suit and did not lose that status after the sale. As for the second question, his Lordship held that the weight of authority was in favour of the view that where an auction-purchaser is the decree-holder, any question relating to delivery of possession is a question relating to the "execution, discharge or satisfaction of the decree" within the meaning of Section 47.4. In ILR (1945) 26 Lah 252 = (AIR 1944 Lah 402 (FB)) the Lahore High Court came to an entirely contrary decision. According to the Lahore High Court, Section 47 of the Code of Civil Procedure does not apply to an order passed on an application under O. XXI, R. 95 by an auction-purchaser who was also the decree-holder. This view which is supported by a stream of decisions of the High Courts of Allahabad, Patna, Bombay and Rangoon makes no distinction between a decree-holder purchaser and a stranger purchaser. In the case of a decree-holder purchaser it is, according to this view, a mere accident that the purchaser was also a party before the auction sale and that advantageous factor should not therefore have the effect of making his position better or worse than that of a purchaser who had been a stranger in the suit. Further, according to this view, as soon as a judgment debtors property is sold in auction and the decretal amount realised by the decree-holder, the decree stands satisfied and after that stage there can be no scope for any question arising as to the execution, discharge or satisfaction of the decree. The question whether the auction purchaser gets possession of the property is a matter which has nothing to do with the question of satisfaction of the decree.5. As we have already said, the appellant relied on the Full Bench decision of the Lahore High Court. We have carefully gone through the various decisions cited before us and we find ourselves in agreement with the opinion of the Full Bench of the Calcutta High Court in Kailash Tsrafdars case, ILR 53 Cal 781 = (AIR 1926 Cal 798 (FB)). If a confirmation of the sale would finally terminate all questions as to execution of the decree it is difficult to appreciate why the legislature would frame such rules as Rules 95 to 102 under Order XXI of the Code of Civil Procedure. We are in respectful agreement with G. K. Mitter J., that the legislature must have thought that the duty of the executing Court should not end with the confirmation of the sale and it is because the legislature thought "that the auction purchaser should have the right of applying for possession under the provisions of Rule 95 and Rule 96 that proceedings for obtaining possession were included in the catena of rules relating to the execution of the decree."6. Section 47 in our view should be construed liberally. As far back in 1892 (1892) 19 Ind App 166 (PC) the Privy Council spoke strongly in favour of putting a liberal construction on Section 244 of the Code of Civil Procedure of 1882 which corresponded to present Sec. 47 of the Code of 1908. The Privy Council reiterated this in Ganapathy v. Krishnamachariar, 45 Ind App 54 = (AIR 1917 PC 121).If a liberal construction be put upon Section 47 it is difficult to understand why a decree-holder who has been a party to the decree will shed his character as such party merely upon purchasing the property at the execution sale. After all, a decree-holder purchases the property in execution of his decree with the permission of the Court. There is no reason why he should not retain his character of a party to the suit until the delivery of possession to him of the property purchased by him. Having regard to this consideration, if any question is raised by the judgment-debtor at the time of delivery of possession concerning the nature of the rights purchased and if the judgment-debtor offers any resistance to delivery of possession the question must be one which in our view relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit.7. Speaking of the two conflicting views on this section the learned commentator of the 13th Edition of Sir Dinshaw Mullas Code of Civil Procedure makes the following observation :"The cases in which it has been held that an auction purchaser even if he is the decree-holder is not a party to the suit, require reconsideration in view of the ruling of the Judicial Committee that such an auction purchaser is a party to the suit."The decision of the Judicial Committee which the learned commentator had in mind is that of Ganapathy v. Krishnamachariar, 45 Ind App 54 = (AIR 1917 PC 121).8. It is important to remember that after the decision of the Privy Council in Ganapathys case, 45 Ind App 54 = (AIR 1917 PC 121) there has been an amendment of Section 47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree-holder or not, is unquestionably a party to the suit for the purpose of Section 47. Having regard to this, all questions arising between the auction-purchaser and the judgment-debtor must in our view be determined by the executing Court and not by a separate suit.
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3. In Kailash Chandra Tarafdars case, ILR 53 Cal 781 = (AIR 1926 Cal 798 FB) the auction purchaser who was also the decree-holder had made an application for delivery of possession under O. XXI R. 95 of theCode of Civil Procedure. The executing court held that he was only entitled to possession under R. 96 that is, through a tenant in possession. Upon an appeal by the decree-holder auction-purchaser the appeal was resisted mainly on the contention that no appeal lay. The lower appellate court allowed the appeal and ordered the auction-purchaser to be put into khas possession under R. 95. Upon appeal by the judgment-debtor to the High Court, the principal contention of the indgment-debtor was that no appeal lay to the District Court. The Division Bench who heard the appeal referred the case to the Full Bench on account of certain conflicting decisions in the High Court of Calcutta. While making the order of reference the Division Bench held that no appeal lay before the District Court because the matter did not come within R. 97 on two grounds, namely (i) because it was not a question arising between the parties to the suit and (ii) it was not a matter relating to the execution, discharge or satisfaction of the decree. Chatterjee, Acting C. J. delivering the Judgment on behalf of himself and four other learned Judges answered the question as to whether a decree-holder auction purchaser is a party to the suit, in the affirmative. Relying among others on the observation of the Judicial Committee in the case of Prosunno Coomar Sanyal v. Kalidas Sanyal, (1892) ILR 19 Ind App 166 (PC) the learned Acting Chief Justice put a wide and liberal construction on Section 47 of theCode of Civil Procedure and decided that the decree-holder was undoubtedly a party to the suit and did not lose that status after the sale. As for the second question, his Lordship held that the weight of authority was in favour of the view that where an auction-purchaser is the decree-holder, any question relating to delivery of possession is a question relating to the "execution, discharge or satisfaction of the decree" within the meaning of Sectionhave carefully gone through the various decisions cited before us and we find ourselves in agreement with the opinion of the Full Bench of the Calcutta High Court in Kailash Tsrafdars case, ILR 53 Cal 781 = (AIR 1926 Cal 798 (FB)). If a confirmation of the sale would finally terminate all questions as to execution of the decree it is difficult to appreciate why the legislature would frame such rules as Rules 95 to 102 under Order XXI of theCode of Civil Procedure. We are in respectful agreement with G. K. Mitter J., that the legislature must have thought that the duty of the executing Court should not end with the confirmation of the sale and it is because the legislature thought "that the auction purchaser should have the right of applying for possession under the provisions of Rule 95 and Rule 96 that proceedings for obtaining possession were included in the catena of rules relating to the execution of the decree."6. Section 47 in our view should be construed liberally.It is important to remember that after the decision of the Privy Council in Ganapathys case, 45 Ind App 54 = (AIR 1917 PC 121) there has been an amendment of Section 47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree-holder or not, is unquestionably a party to the suit for the purpose of Section 47. Having regard to this, all questions arising between the auction-purchaser and the judgment-debtor must in our view be determined by the executing Court and not by a separatea question does not fall to be determined by the executing court but can be decided only in a separate suit. The question that has been raised by the appellant is one which has formed the subject matter of a long series of decisions which unfortunately have followed two divergent streams. There is on the one hand a Full Bench decision of the Calcutta High Court in Kailash Chandra Tarafdar v. Gopal Chandra Poddar, ILR 53 Cal 781 = (AIR 1926 Cal 798 FB) followed by the Madras High Court while on the other hand there is the decision of the Lahore High Court in Ram Singh Gopal Singh v. Abdullah Habibullah, ILR (1945) 26 Lah 252 = (AIR 1944 Lah 402 FB) which has been followed in various Full Bench decisions by the Allahabad High Court and also by the Patna High Court and the Bombay High Court. In the present case, the Calcutta High Court has followed, as indeed they were bound to follow, the Full Bench decision in Kailash Chandra Tarafdars case ILR 53 Cal 781 = (AIR 1926 Cal 798 FB).
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Bhagwan Dayal Vs. Mst. Reoti Devi | that one Buddhi had three sons, Ram Sahai, Ji Sukh Ram and Sita Ram, and that Buddhi and one of his sons, Sita Ram, left the family and the remaining two brothers, Ram Sahai and Ji Sukh Ram, continued to be members of the joint family. The Judicial Committee rightly held that the properties purchased for the family by the two brothers constituting the joint family were joint family properties. It is not a case of some members of different branches or some members of the same branch purchasing properties jointly, but a case of all the members of a joint Hindu family purchasing properties for the family.45. Nor does the decision in Sham Narain v. Court of Wards, 20 Suth WR 197 afford any real assistance to the appellant. There, two Hindu brothers, who held ancestral estate in common with a third brother, acquired other property jointly; the learned Judges held, on the evidence, that the property was held by the two brothers as members of a joint Hindu family. The learned Judges held that the principle of blending of a separate property with the joint family property and the principle of acquisition of property by united members of a divided family would equally apply to an acquisition of property by two of three brothers of a joint Hindu family. Bhashyam Ayyangar, J., in ILR 25 Mad 149 criticised that judgment and observed that he should have no hesitation in dissenting from the said decision. The learned Judges missed the real point, namely, that some members of different branches of a joint Hindu family cannot form a corporate unit. In our view, that decision is wrong and must be overruled.46. Nor does the decision of the Judicial Committee in Rampershad Tewary v. Sheochurn Doss, 10 Moo Ind App 490 (PC) support the contention of the appellant. In that case one of the five brothers constituting an undivided Hindu family acquired personal property. With that money and with the aid of his brothers he established and carried on banking business at five different places. The Judicial Committee held that the property so acquired was joint family property in which the brothers were entitled to share. A perusal of the judgment shows that all the brothers were members of an undivided Hindu family and there was a nucleus of ancestral property and that all of them together acquired the property jointly, though the banking business was started with the help of the self acquisitions of one of the brothers. This again is a case of all the members of a joint Hindu family acquiring property for the family.47. In Maynes Hindu Law, 11th edn., the legal position has been neatly stated thus at p. 347:"So long as a family remains an undivided family, two or more members of it, whether they be members of different branches or of one and the same branch of the family, can have no legal existence as a separate independent unit; but all the members of a branch, or of a sub-branch, can form a distinct and separate corporate unit within the larger corporate family and hold property as such. Such property will be joint family property of the members of the branch inter se, but will be separate property of that branch in relation to the larger family. The principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law".The legal position may be stated thus: Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent express or implied of the members of the family, any other member or members can on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. The identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognize some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to cases specially recognized by it. In the present case, the uncle and the two nephews did not belong to the same branch. The acquisition made by them jointly could not be impressed with the incidents of joint family property. They can only be co-sharers or co-tenants, with the result that their properties passed by inheritence and not by survivorship. | 0[ds]The present suit is for a declaration of the plaintiffs title to the plaint schedule properties and for an injunction restraining the execution of the decree obtained by the defendant in the Revenue Court. Theplaintiff claims title to the suit properties on the ground that he was a member of a joint Hindu family along with his deceased brother and therefore, he succeeded to his share by right ofsaid Schedule does not provide for any suit by a person claiming to be the proprietor of a property and in possession thereof praying for a declaration of his title and for an injunction against another who is trying to interfere with his title. If so, under S. 230 of the Act, the Revenue Court has no exclusive jurisdiction to entertain a suit of the nature that is before us. If it is not a suit of that nature, under that section the civil courts jurisdiction is notagree with the said observations. On the same analogy, the present suit was not within the exclusive jurisdiction of the revenue court and, therefore, the suit in the civil court was maintainable. If so, S. 11 of the Code of Civil Procedure is immediately attracted to the present suit.In this view, it is not necessary to consider the differences between the scope of the principle of res judicata covered by S. 11 of the Code of Civil Procedure and that of the principle of res judicata dehors the said section. Nor is it necessary to express our view on the question whether the decision on the question of title in the previous suit was that of a revenue court or of a civil court. We, therefore, reject the plea of res judicata.The general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. It is also settled that there is no presumption that when one member separates from others that the latter retrain united; whether the latter remain united or not must be decided on the facts of each case. To these it may be added that in the case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inferences than in a case where the evidence is not obliterated by passage of time.There is no evidence to show when Lachhman Prasad died; but it is not disputed that Kashi Ram left the ancestral home long ago and had joined military services at Gwalior and thereafter police service in or about 1895. He gave up the service and came to Agra and started a business with his savings. There is nothing on the record, except the assertion made by Bhagwan Dayal in his deposition, to show that Kashi Ram as manager either received the entire income from the ancestral property or paid any taxes in respect thereof. Raghubar Dayal says that rent of the said holdings was entirely in the accounts maintained by Kashi Ram; but they were not produced. Kashi Ram executed a will on September 13, 1919. Under that will he gave the entire properties to his two nephews, and it cannot be suggested that it was executed to defraud any person. There is a faint suggestion that the said will was executed to bar the claim of his daughter. In that document he does not say that he was a member of a joint Hindu family. The assertion that he was a member of a joint Hindu family would have barred the claims of his daughter more effectively if that was his intention in executing the document. Be it as it may, the will, which, in our view, was an honest attempt on the part of the testator to give his properties to his nephews, does not contain any assertion that he was a member of a joint Hindu family. A number of documents were executed by or in his favour during his lifetime, but in none of the documents there is a recital that he was a member of a joint Hindu family. This consistent conduct also indicates that Kashi Ram never considered himself to be a member of any undivided Hinduis nothing on record to show that these two brothers alone separated from the main family before 1914. The concession that they were separate members supports, to a large extent, the theory that there must have been a partition in the largerthe whole, on a consideration of the material placed before us, we cannot say that the finding given by the learned Civil Judge and accepted by Gurtu, J., is not supported by evidence. We accept the saidprinciple also is unexceptionable. But the facts of that case are entirely different from those in the present case, and the conclusion arrived at by the learned Judges cannot help us in arriving at a finding in the instantplaintiffs case is that there was no partition of the larger family at all; and on that case no question of reunion arises. Further, he does not say that a reunion has taken place by agreement; but he asks the Court to hold that there was a reunion on the ground that the conduct of the parties. amounted to a reunion.The plea, to say the least, indicates that the plaintiff himself is not clear of his case.25. The next circumstance is that neither Kashi Ram nor Raghubar Dayal and Bhagwan Dayal bring in any joint family property either to start the business or to make joint acquisitions. On the other hand, the entire capital for the business was furnished by Kashi Ram; and, under those circumstances, it is not likely that there would have been any conscious act of reunion between the members of the divided family.26. Further, the business was started in 1885, and it is in evidence that Raghubar Dayal joined Kashi Ram in the said business in 1889 and Bhagwan Dayal between 1893 and 1902. Raghubar Dayal in his evidence says that when he came to Agra, he was about 8 or 9 years old. If so, it follows that there could not have been any reunion before he attained majority. In Revenue Appeal No. 65 of 1941, it was not disputed that Raghubar Dayal was also a minor when Kashi Ram started his business. It is not clear from the record when Raghubar Dayal became major. He could not have reunited with Kashi Ram before he attainedthese circumstances, this document deserves the greatest credence and the recitals must be accepted as true. The. recitals show that Kashi Ram at any rate treated all his properties as hisand Raghubar Dayal and Bhagwan Dayal accepted thatappears that the adopted son died soon after the adoption and Kashi Ram, who was 80 years old , executed, a will bequeathing his properties to his two nephews. He asserts in the document that all his properties are hises thereunder the circumstances under which he brought up his nephews and says that both of them areing business. He gives all his properties in equal shares to them. This document is destructive of the plaintiffs case. It is not, and cannot be suggested that this document was executed to defraud third parties. It is faintly suggested that the document was executed to stifle any claim that the daughter of Kashi Ram might prefer to his properties on his death. Such a contemplated claim could have been more effectively prevented by asserting that the properties were joint family properties; but in the document the testator asserts that they are hisand directs that his two nephews shall take the properties jointly under the said will. It is not necessary to consider whether this will would operate upon the shares of the two nephews in the properties jointly acquired by all the three of them. But the recitals are decisive of the question that Kashi Ram was not a member of a joint Hindu Family and the parties never considered themselves as members of a joint Hindudocument does not describe Raghubar Dayal as manager of the joint family or that the brothers are members of a joint Hindu family. So too, in Ex. 72 a similar recital is found. The recitals in the other sale deeds also follow the same line. Strong reliance is placed upon the proceedings of certain suits, which are marked as Exs. 43, 44 and 14. Ex. 43 is a copy of the plaint in Suit No.311 of 1927 filed by Raghubar Dayal and Bhagwan Dayal against one Khushali.13, the decree passed in the aforesaid suit, shows that the suit was decreed ex parte. Ex. 44 is a copy of another plaint in Suit No. 306 of 1929 filed by the two brothers against another debtor. In the plaint it is stated that Kashi Ram is dead and that the plaintiffs are his surviving heirs. Ex. 14 is the decree made therein. The recitals in Ex. 44 are ambiguous; but the recital in Ex. 43 clearly says that the brothers are the surviving coparceners of the joint family. The suits were filed for small amounts. It is obvious that those allegations were made to avoid the necessity of producing succession certificates. As a matter of fact the two brothers got the properties under a will, and in the circumstances the attitude of the brothers in the suits can easily be understood and reasonably be attributed to their anxiety to save same money by avoiding the necessity to get succession certificates.31. The next series of documents relate to the period between 1933 and 1939, that is, from the year of the death of Raghubar Dayal to the year when disputes arose between the plaintiff and the defendant. During this period there were 5 sale deeds in favour of Raghubar Dayal. The first of them is Ex. 89 dated May 23, 1933 and the last is Ex. 88 dated June 20, 1936. There is no recital in Ex. 89 to indicate the status of Bhagwan Dayal. The document shows that one of theis Ajudhia Prasad, son of Ram Lal, one of the brothers of Bhagwan Dayal. It is not suggested, and indeed it is not the case of the appellant, that he was a member of a joint Hindu family along with Ajudhia Prasad. It may have been that Bhagwan Dayal had taken Ajudhia Prasad as partner in the business, and that is consistent with the case of the defendant. Ex. 88 also does not give any indication that Bhagwm Dayal was a member of the joint family along with his uncle, and thereafter with his brother. Ex. 83 is a sale deed whereunder Bhagwan Dayal exchanged a property purchased by him along with his brother for another property owned by a third party. There is no assertion in this document that the property was the joint family property of the brothers; nor is there any evidence to indicate that the widow of Raghubar Dayal had knowledge of the same. Bhagwan Dayal also executed certain sale deeds, the first of them dated April 9, 1934, and the last of them dated April 3, 1942, i.e., after the filing of the suit. Ex. 80 is a sale deed, in which for the first time we find the, recital that the executant and Raghubar Dayal lived together jointly and the entire business was carried on jointly in the name of both of them and that after Raghubar Dayals death the executant had been the manager, karta and mukhia of his joint family up to that time. There is nothing to show that the defendant had knowledge of this document. That apart, the recital that Bhagwan Dayal was the manager of his joint family in 1934 may not be inaccurate, for he was living jointly with his sons. In any view, this recital, appearing for the first time after about 50 years and made behind the back of the defendant, would only be at is suggested by the respondent that the said description is a mistake. But assuming it to be correct, it only shows that they were doing business jointly as a firm. Ex. 36 is a delivery receipt of the property covered by the sale certificate, Ex. 35. This only shows that Bhagwan Dayal took delivery of the property purchased on behalf of the firm, Ex. 84 is a sale deed executed by one Raja Ram in favour of Raghubar Dayal and Bhagwan Dayal. This property, though purchased by both the brothers, was subsequently given in exchange by Bhagwan Dayal alone to Raja Ram for another. These statements only show that the two brothers had a joint mess and that a property purchased by both of them was disposed of by Bhagwan Dayal subsequent to the death of Raghubar Dayal. There is nothing to show that the widow had knowledge of it.From the aforesaid evidence the following facts emerge: In 1885 Kashi Ram started a business at Agra from and out of hisHe brought his nephews at different points of time and allowed them to take part in the business. It may also be that he had taken them as partners in the business and also purchased the properties in their joint names, but there is not a single document during his lifetime wherein Kashi Ram either admitted that he was a member of a joint family along with his nephews or the nephews asserted any joint status along with him. Indeed, on the two occasions when it became necessary to set up his claims, that is, when he executed the adoption deed and the will, Kashi Ram clearly stated that all his properties were hisThe documents that came into existence after the death of Kashi Ram also do not contain any allegations that the brothers were members of a joint Hindu family during Kashi Rams lifetime or that they were members of a joint family after his death. The selfserving statements made by Bhagwan Dayal after the death of his brother, Raghubar Dayal, in 1933 were made to enable him to file suits without obtaining succession certificates. The alleged statements made by the widow of Raghubar Dayal have no evidentiary value, for she was admittedly under the control of the plaintiff and even the alleged admissions were ambiguous. On the other hand, the respondent, soon after the death of her husband, got her name mutated in respect of her husbands share in the properties; and this conduct is an unambiguous piece of evidence which indicates the consciousness on the part of the plaintiff that the defendants husband was not a member of the joint family along with his brother or uncle. The fact that the brothers and the uncle lived together and did business together is consistent with their relationship of uncle and nephew, and the fact that they purchased or sold properties jointly is also consistent with their being mere partners orThe recitals in some of the documents describing the nephews asalso show that were treated only asambiguity there may be, the adoption deed, the will and the mutation of the name of the widow in place of her husband in the revenue records dispel it. From this conduct, spreading over about 50 years, it is not possible to hold that the uncle and the nephews consciously entered into an agreement to reunite and become members of a joint Hindu family.37. This finding is enough to dispose of the appeal. But, as the evidence on the question of partition of the family is not as satisfactory as it should be, we propose to consider the alternative contention put forward by theabove passages clearly lay down the principle behind the rule. Hindu law recognizes only the entire joint family or one or more branches of that family as a corporate unit or units and that the property acquired by that unit in the manner recognized by law would be considered as joint family property. But in the case of two or more members of a joint Hindu family belonging to different branches or even to the same branch, they do, not acquire the property as a corporate unit or for the corporate unit and, therefore, they are only governed by the terms of the contract, express or implied, whereunder they have acquired the property.Nor does the decision in Sham Narain v. Court of Wards, 20 Suth WR 197 afford any real assistance to the appellant. There, two Hindu brothers, who held ancestral estate in common with a third brother, acquired other property jointly; the learned Judges held, on the evidence, that the property was held by the two brothers as members of a joint Hindu family. The learned Judges held that the principle of blending of a separate property with the joint family property and the principle of acquisition of property by united members of a divided family would equally apply to an acquisition of property by two of three brothers of a joint Hindu family. Bhashyam Ayyangar, J., in ILR 25 Mad 149 criticised that judgment and observed that he should have no hesitation in dissenting from the said decision. The learned Judges missed the real point, namely, that some members of different branches of a joint Hindu family cannot form a corporate unit. In our view, that decision is wrong and must belegal position may be stated thus: Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent express or implied of the members of the family, any other member or members can on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. The identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or theirand succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognize some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to cases specially recognized by it. In the present case, the uncle and the two nephews did not belong to the same branch. The acquisition made by them jointly could not be impressed with the incidents of joint family property. They can only bes, with the result that their properties passed by inheritence and not by survivorship. | 0 | 14,281 | 3,620 | ### Instruction:
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that one Buddhi had three sons, Ram Sahai, Ji Sukh Ram and Sita Ram, and that Buddhi and one of his sons, Sita Ram, left the family and the remaining two brothers, Ram Sahai and Ji Sukh Ram, continued to be members of the joint family. The Judicial Committee rightly held that the properties purchased for the family by the two brothers constituting the joint family were joint family properties. It is not a case of some members of different branches or some members of the same branch purchasing properties jointly, but a case of all the members of a joint Hindu family purchasing properties for the family.45. Nor does the decision in Sham Narain v. Court of Wards, 20 Suth WR 197 afford any real assistance to the appellant. There, two Hindu brothers, who held ancestral estate in common with a third brother, acquired other property jointly; the learned Judges held, on the evidence, that the property was held by the two brothers as members of a joint Hindu family. The learned Judges held that the principle of blending of a separate property with the joint family property and the principle of acquisition of property by united members of a divided family would equally apply to an acquisition of property by two of three brothers of a joint Hindu family. Bhashyam Ayyangar, J., in ILR 25 Mad 149 criticised that judgment and observed that he should have no hesitation in dissenting from the said decision. The learned Judges missed the real point, namely, that some members of different branches of a joint Hindu family cannot form a corporate unit. In our view, that decision is wrong and must be overruled.46. Nor does the decision of the Judicial Committee in Rampershad Tewary v. Sheochurn Doss, 10 Moo Ind App 490 (PC) support the contention of the appellant. In that case one of the five brothers constituting an undivided Hindu family acquired personal property. With that money and with the aid of his brothers he established and carried on banking business at five different places. The Judicial Committee held that the property so acquired was joint family property in which the brothers were entitled to share. A perusal of the judgment shows that all the brothers were members of an undivided Hindu family and there was a nucleus of ancestral property and that all of them together acquired the property jointly, though the banking business was started with the help of the self acquisitions of one of the brothers. This again is a case of all the members of a joint Hindu family acquiring property for the family.47. In Maynes Hindu Law, 11th edn., the legal position has been neatly stated thus at p. 347:"So long as a family remains an undivided family, two or more members of it, whether they be members of different branches or of one and the same branch of the family, can have no legal existence as a separate independent unit; but all the members of a branch, or of a sub-branch, can form a distinct and separate corporate unit within the larger corporate family and hold property as such. Such property will be joint family property of the members of the branch inter se, but will be separate property of that branch in relation to the larger family. The principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law".The legal position may be stated thus: Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent express or implied of the members of the family, any other member or members can on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. The identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognize some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to cases specially recognized by it. In the present case, the uncle and the two nephews did not belong to the same branch. The acquisition made by them jointly could not be impressed with the incidents of joint family property. They can only be co-sharers or co-tenants, with the result that their properties passed by inheritence and not by survivorship.
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a joint Hindu family during Kashi Rams lifetime or that they were members of a joint family after his death. The selfserving statements made by Bhagwan Dayal after the death of his brother, Raghubar Dayal, in 1933 were made to enable him to file suits without obtaining succession certificates. The alleged statements made by the widow of Raghubar Dayal have no evidentiary value, for she was admittedly under the control of the plaintiff and even the alleged admissions were ambiguous. On the other hand, the respondent, soon after the death of her husband, got her name mutated in respect of her husbands share in the properties; and this conduct is an unambiguous piece of evidence which indicates the consciousness on the part of the plaintiff that the defendants husband was not a member of the joint family along with his brother or uncle. The fact that the brothers and the uncle lived together and did business together is consistent with their relationship of uncle and nephew, and the fact that they purchased or sold properties jointly is also consistent with their being mere partners orThe recitals in some of the documents describing the nephews asalso show that were treated only asambiguity there may be, the adoption deed, the will and the mutation of the name of the widow in place of her husband in the revenue records dispel it. From this conduct, spreading over about 50 years, it is not possible to hold that the uncle and the nephews consciously entered into an agreement to reunite and become members of a joint Hindu family.37. This finding is enough to dispose of the appeal. But, as the evidence on the question of partition of the family is not as satisfactory as it should be, we propose to consider the alternative contention put forward by theabove passages clearly lay down the principle behind the rule. Hindu law recognizes only the entire joint family or one or more branches of that family as a corporate unit or units and that the property acquired by that unit in the manner recognized by law would be considered as joint family property. But in the case of two or more members of a joint Hindu family belonging to different branches or even to the same branch, they do, not acquire the property as a corporate unit or for the corporate unit and, therefore, they are only governed by the terms of the contract, express or implied, whereunder they have acquired the property.Nor does the decision in Sham Narain v. Court of Wards, 20 Suth WR 197 afford any real assistance to the appellant. There, two Hindu brothers, who held ancestral estate in common with a third brother, acquired other property jointly; the learned Judges held, on the evidence, that the property was held by the two brothers as members of a joint Hindu family. The learned Judges held that the principle of blending of a separate property with the joint family property and the principle of acquisition of property by united members of a divided family would equally apply to an acquisition of property by two of three brothers of a joint Hindu family. Bhashyam Ayyangar, J., in ILR 25 Mad 149 criticised that judgment and observed that he should have no hesitation in dissenting from the said decision. The learned Judges missed the real point, namely, that some members of different branches of a joint Hindu family cannot form a corporate unit. In our view, that decision is wrong and must belegal position may be stated thus: Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent express or implied of the members of the family, any other member or members can on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. The identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or theirand succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognize some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to cases specially recognized by it. In the present case, the uncle and the two nephews did not belong to the same branch. The acquisition made by them jointly could not be impressed with the incidents of joint family property. They can only bes, with the result that their properties passed by inheritence and not by survivorship.
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Attar Singh and Others Vs. Regional Transport Authority, Agra and Others | by this Court was at page 7 of 1978 Vol. 1 of S.C.C. :"To our mind the problem does not present much difficulty. The applications filed by the appellants for grant of permits to them were rejected by the Regional Transport Authority in October, 1971. They were finally disposed of and permits were granted to them by the order of the Appellate Tribunal made on February 19, 1975. The consideration of the applications for grant of permits was no longer pending after the said order. What remained pending was a mere ministerial act to be performed by the Regional Transport Authority or by any delegate of that authority in accordance with Rule 44A of the U.P. Motor Vehicles Rules, 1940."In the instant case, as a result of the limited stay order passed by the High Court on May 20, 1971, the Regional Transport Authority itself granted the permits. The applications, therefore, stood disposed of and were not pending. What remained pending was the ministerial act of issuing the permit on the fulfilment of the conditions imposed in the order. There was no difference between the sanction of a permit and grant of a permit as was sought to be made out by Mr. Yogeshwar Prasad. In our opinion, it was also a futile attempt on his part to show that in the judgment of this Court in Sharif Ahmads case it had been laid down that the applications stood disposed of because the conditions imposed by the Appellate Authority had been complied with before the notification dated September 24, 1975 came into force and even the stay order had been vacated in that case some time in June or July, 1975 prior to that notification. Nothing of the kind was said in that case to call out the alleged ratio. The two limbs of the decision are quite distinct and separate. When the order of grant was made by the Appellate Authority, the applications stood disposed of. Of course, for the purpose of seeing whether by a writ of Mandamus the Regional Transport Authority could be directed to issue the permit it had to be seen whether the conditions imposed by the Appellate Authority had been complied with in time. Similarly in this case the grant was complete and the applications stood disposed of finally by the Regional Transport Authority on May 1, 1973. Permits, however, could not be issued until the order of stay made by the High Court on May 20, 1971 was vacated. We do not think that the argument of Mr. A. K. Sen that the stay order made by the High Court in the earlier writ petition was merged in the stay order of the High Court made in Writ Petition 4158 of 1973 and since that writ petition was dismissed on February 7, 1975 the stay as a whole stood vacated on that date before coming into force of the notification dated September 24, 1975, is correct. In our opinion on a strict interpretation of the order of the Regional Transport Authority made on May 1, 1973 in pursuance of the earlier order of stay made by the High Court the issuance of the permit was made subject to the vacation of this order which was vacated only on September 29, 1975 - five day after the notification in question. But that makes no difference. As held in the earlier case, issuance of a permit was a ministerial act. The notification dated September 24, 1975 did not make the application for grant of permit pending only because of that. The change of the law brought about by the said notification or even later in the year 1976 by some Ordinance and Acts as discussed in Sharif Ahmads case did not make any difference. The appellants, if they complied with the conditions imposed by the Regional Transport Authority in its order dated May 1, 1973 within a month of the receipt of the High Court order vacating the earlier order of stay then permits had to be issued to them. The Regional Transport Authority could not refuse to issue the permits because of the notification dated September 24, 1975.6. Mr. Yogeshwar Prasad also tried to point out that a part of the route in question is not motorable. We are concerned with this matter in this appeal. Even on the basis of the report of the Regional Transport Authority dated August 31, 1977 submitted to this Court in pursuance of the order of this Court dated August 17, 1977 it would be found that a portion of the route is non-motorable only during the rainy season. We cannot, therefore, hold in this appeal that permit should not be issued on that account.7. After the conclusion of the hearing in this case we had asked the parties to file papers and/or affidavits in support of their rival contentions regarding the fulfilment of the conditions imposed by the Regional Transport Authority in its order dated May 1, 1973. Parties have accordingly done so. The position is not quite clear on the basis of the papers filed by the appellants. On behalf of the respondents, however, an affidavit has been filed to indicate that only Sadat Hussain, one of the appellants in this appeal, had complied with the conditions within time or before time. The other appellants had not. It is stated in this affidavit that the order of the High Court dated September 29, 1975 vacating the stay order dated May 20, 1971 was received in the office of the Regional Transport Authority on October 9, 1975. The conditions had to be fulfilled within a month thereof. But the affidavit shows that the other appellants had filed their affidavits required to be filed by them by the Regional Transport Authority in its order dated May 1, 1973 on various dates in December, 1975 and thus the conditions were not complied with in time. We leave this matter open to be looked into by the Regional Transport Authority. | 1[ds]In the instant case, as a result of the limited stay order passed by the High Court on May 20, 1971, the Regional Transport Authority itself granted the permits. The applications, therefore, stood disposed of and were not pending. What remained pending was the ministerial act of issuing the permit on the fulfilment of the conditions imposed in the order. There was no difference between the sanction of a permit and grant of a permit as was sought to be made out by Mr. Yogeshwar Prasad. In our opinion, it was also a futile attempt on his part to show that in the judgment of this Court in Sharif Ahmads case it had been laid down that the applications stood disposed of because the conditions imposed by the Appellate Authority had been complied with before the notification dated September 24, 1975 came into force and even the stay order had been vacated in that case some time in June or July, 1975 prior to that notification. Nothing of the kind was said in that case to call out the alleged ratio. The two limbs of the decision are quite distinct and separate. When the order of grant was made by the Appellate Authority, the applications stood disposed of. Of course, for the purpose of seeing whether by a writ of Mandamus the Regional Transport Authority could be directed to issue the permit it had to be seen whether the conditions imposed by the Appellate Authority had been complied with in time. Similarly in this case the grant was complete and the applications stood disposed of finally by the Regional Transport Authority on May 1, 1973. Permits, however, could not be issued until the order of stay made by the High Court on May 20, 1971 was vacated. We do not think that the argument of Mr. A. K. Sen that the stay order made by the High Court in the earlier writ petition was merged in the stay order of the High Court made in Writ Petition 4158 of 1973 and since that writ petition was dismissed on February 7, 1975 the stay as a whole stood vacated on that date before coming into force of the notification dated September 24, 1975, is correct. In our opinion on a strict interpretation of the order of the Regional Transport Authority made on May 1, 1973 in pursuance of the earlier order of stay made by the High Court the issuance of the permit was made subject to the vacation of this order which was vacated only on September 29, 1975five day after the notification in question. But that makes no difference. As held in the earlier case, issuance of a permit was a ministerial act. The notification dated September 24, 1975 did not make the application for grant of permit pending only because of that. The change of the law brought about by the said notification or even later in the year 1976 by some Ordinance and Acts as discussed in Sharif Ahmads case did not make any difference. The appellants, if they complied with the conditions imposed by the Regional Transport Authority in its order dated May 1, 1973 within a month of the receipt of the High Court order vacating the earlier order of stay then permits had to be issued to them. The Regional Transport Authority could not refuse to issue the permits because of the notification dated September 24, 1975. | 1 | 2,162 | 620 | ### 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:
by this Court was at page 7 of 1978 Vol. 1 of S.C.C. :"To our mind the problem does not present much difficulty. The applications filed by the appellants for grant of permits to them were rejected by the Regional Transport Authority in October, 1971. They were finally disposed of and permits were granted to them by the order of the Appellate Tribunal made on February 19, 1975. The consideration of the applications for grant of permits was no longer pending after the said order. What remained pending was a mere ministerial act to be performed by the Regional Transport Authority or by any delegate of that authority in accordance with Rule 44A of the U.P. Motor Vehicles Rules, 1940."In the instant case, as a result of the limited stay order passed by the High Court on May 20, 1971, the Regional Transport Authority itself granted the permits. The applications, therefore, stood disposed of and were not pending. What remained pending was the ministerial act of issuing the permit on the fulfilment of the conditions imposed in the order. There was no difference between the sanction of a permit and grant of a permit as was sought to be made out by Mr. Yogeshwar Prasad. In our opinion, it was also a futile attempt on his part to show that in the judgment of this Court in Sharif Ahmads case it had been laid down that the applications stood disposed of because the conditions imposed by the Appellate Authority had been complied with before the notification dated September 24, 1975 came into force and even the stay order had been vacated in that case some time in June or July, 1975 prior to that notification. Nothing of the kind was said in that case to call out the alleged ratio. The two limbs of the decision are quite distinct and separate. When the order of grant was made by the Appellate Authority, the applications stood disposed of. Of course, for the purpose of seeing whether by a writ of Mandamus the Regional Transport Authority could be directed to issue the permit it had to be seen whether the conditions imposed by the Appellate Authority had been complied with in time. Similarly in this case the grant was complete and the applications stood disposed of finally by the Regional Transport Authority on May 1, 1973. Permits, however, could not be issued until the order of stay made by the High Court on May 20, 1971 was vacated. We do not think that the argument of Mr. A. K. Sen that the stay order made by the High Court in the earlier writ petition was merged in the stay order of the High Court made in Writ Petition 4158 of 1973 and since that writ petition was dismissed on February 7, 1975 the stay as a whole stood vacated on that date before coming into force of the notification dated September 24, 1975, is correct. In our opinion on a strict interpretation of the order of the Regional Transport Authority made on May 1, 1973 in pursuance of the earlier order of stay made by the High Court the issuance of the permit was made subject to the vacation of this order which was vacated only on September 29, 1975 - five day after the notification in question. But that makes no difference. As held in the earlier case, issuance of a permit was a ministerial act. The notification dated September 24, 1975 did not make the application for grant of permit pending only because of that. The change of the law brought about by the said notification or even later in the year 1976 by some Ordinance and Acts as discussed in Sharif Ahmads case did not make any difference. The appellants, if they complied with the conditions imposed by the Regional Transport Authority in its order dated May 1, 1973 within a month of the receipt of the High Court order vacating the earlier order of stay then permits had to be issued to them. The Regional Transport Authority could not refuse to issue the permits because of the notification dated September 24, 1975.6. Mr. Yogeshwar Prasad also tried to point out that a part of the route in question is not motorable. We are concerned with this matter in this appeal. Even on the basis of the report of the Regional Transport Authority dated August 31, 1977 submitted to this Court in pursuance of the order of this Court dated August 17, 1977 it would be found that a portion of the route is non-motorable only during the rainy season. We cannot, therefore, hold in this appeal that permit should not be issued on that account.7. After the conclusion of the hearing in this case we had asked the parties to file papers and/or affidavits in support of their rival contentions regarding the fulfilment of the conditions imposed by the Regional Transport Authority in its order dated May 1, 1973. Parties have accordingly done so. The position is not quite clear on the basis of the papers filed by the appellants. On behalf of the respondents, however, an affidavit has been filed to indicate that only Sadat Hussain, one of the appellants in this appeal, had complied with the conditions within time or before time. The other appellants had not. It is stated in this affidavit that the order of the High Court dated September 29, 1975 vacating the stay order dated May 20, 1971 was received in the office of the Regional Transport Authority on October 9, 1975. The conditions had to be fulfilled within a month thereof. But the affidavit shows that the other appellants had filed their affidavits required to be filed by them by the Regional Transport Authority in its order dated May 1, 1973 on various dates in December, 1975 and thus the conditions were not complied with in time. We leave this matter open to be looked into by the Regional Transport Authority.
### Response:
1
### Explanation:
In the instant case, as a result of the limited stay order passed by the High Court on May 20, 1971, the Regional Transport Authority itself granted the permits. The applications, therefore, stood disposed of and were not pending. What remained pending was the ministerial act of issuing the permit on the fulfilment of the conditions imposed in the order. There was no difference between the sanction of a permit and grant of a permit as was sought to be made out by Mr. Yogeshwar Prasad. In our opinion, it was also a futile attempt on his part to show that in the judgment of this Court in Sharif Ahmads case it had been laid down that the applications stood disposed of because the conditions imposed by the Appellate Authority had been complied with before the notification dated September 24, 1975 came into force and even the stay order had been vacated in that case some time in June or July, 1975 prior to that notification. Nothing of the kind was said in that case to call out the alleged ratio. The two limbs of the decision are quite distinct and separate. When the order of grant was made by the Appellate Authority, the applications stood disposed of. Of course, for the purpose of seeing whether by a writ of Mandamus the Regional Transport Authority could be directed to issue the permit it had to be seen whether the conditions imposed by the Appellate Authority had been complied with in time. Similarly in this case the grant was complete and the applications stood disposed of finally by the Regional Transport Authority on May 1, 1973. Permits, however, could not be issued until the order of stay made by the High Court on May 20, 1971 was vacated. We do not think that the argument of Mr. A. K. Sen that the stay order made by the High Court in the earlier writ petition was merged in the stay order of the High Court made in Writ Petition 4158 of 1973 and since that writ petition was dismissed on February 7, 1975 the stay as a whole stood vacated on that date before coming into force of the notification dated September 24, 1975, is correct. In our opinion on a strict interpretation of the order of the Regional Transport Authority made on May 1, 1973 in pursuance of the earlier order of stay made by the High Court the issuance of the permit was made subject to the vacation of this order which was vacated only on September 29, 1975five day after the notification in question. But that makes no difference. As held in the earlier case, issuance of a permit was a ministerial act. The notification dated September 24, 1975 did not make the application for grant of permit pending only because of that. The change of the law brought about by the said notification or even later in the year 1976 by some Ordinance and Acts as discussed in Sharif Ahmads case did not make any difference. The appellants, if they complied with the conditions imposed by the Regional Transport Authority in its order dated May 1, 1973 within a month of the receipt of the High Court order vacating the earlier order of stay then permits had to be issued to them. The Regional Transport Authority could not refuse to issue the permits because of the notification dated September 24, 1975.
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The Tata Engineering & Locomotive Co. Ltd. & Others Vs. The State of Bihar & Others | their fundamental rights are infringed and it is a truism to say that this Court as the guardian of the fundamental rights of the citizens will always attempt to safeguard the said fundamental rights but having regard to the decision of this Court in the State Trading Corporation of India Ltd., AIR 1963 SC 1811 we do not see how we can legitimately entertain the petitioners plea in the present petitions, because if their plea was upheld, it would really mean that what the corporations or the companies cannot achieve directly, can be achieved by them indirectly by relying upon the doctrine of lifting the veil. If he corporations and companies are not citizens, it means that the Constitution intended that they should not get the benefit of Art. 19. It is no doubt suggested by the petitioners that though Art. 19 is confined to citizens, the Constitution-makers may have thought that in dealing with the claims of corporations to invoke the provisions of Art, 19, Courts would act upon the doctrine of lifting the veil and would not treat the attempts of the corporations in that behalf as falling outside Art, 19. We do not think this argument is well-founded. The effect of confining Art. 19 to citizens as distinguished from persons to whom other Articles like 14 apply, clearly must be that it is only citizens to whom the rights under Art. 19 are guaranteed. If the legislature intends that the benefit of Art. 19 should be made available to the corporations, it would not be difficult for it to adopt a proper measure in that behalf by enlarging the definition of citizen prescribed by the Citizenship Act passed by the Parliament by virtue of the powers conferred on it by Articles 10 and 11. On the other hand, the fact that the Parliament has not chosen to make any such provision indicates that it was not the intention of the Parliament to treat corporations as citizens. Therefore, it seems to us that in view of the decision of this Court in the case of the State Trading Corporation of India Ltd., AIR 1963 SC 1811 the petitioners cannot be heard to say that their shareholders should be allowed to file the present petitions on the ground that, in substance, the corporations and companies are nothing more than associations of shareholders and members thereof. In our opinion, therefore, the argument that in the present petition we would be justified in lifting the veil cannot be sustained.29. Mr. Pakhivala sought to draw a distinction between the right of a citizen to carry on trade or business which is contemplated by Art. 19 (1) (g) from his right to form associations or unions contemplated by Art. 19 (1) (c). He argued that Art, 19 (1) (c) enables the citizens to choose their instruments or agents for carrying on the business which it is their fundamental right to carry on. If citizens decide to set up a corporation or a company as their agent for the purpose of carrying on trade or business, that is a right which is guaranteed to them under Art, 19 (1) (c). Basing himself on this distinction between the two rights guaranteed by Art, 19(1) (c). Basing himself on this distinction between the two rights guaranteed by Art. 19 (1) (g) and (c) respectively, Mr. Palkhivala somewhat ingeniously contended that we should not hesitate to lift the veil, because by looking at the substance of the matter, we would really be giving effect to the two fundamental rights guaranteed by Art, 19 (1). We are not impressed by this argument either. The fundamental right to form an association cannot in this manner be coupled with the fundamental right to carry on any trade or business. As has been held by this Court in All India Bank Employees Association v. National Industrial Tribunal (Bank Disputes) Bombay, 1962-3 SCR 269 : (AIR 1962 SC 171 ) the argument which is thus attractively presented before us overlooks the fact that Art. 19, as contrasted with certain other articles like Arts. 26, 29 and 30 guarantees rights to the citizens as such, and associations cannot lay claim to the fundamental rights guaranteed by that Article solely on the basis of their being an congregation of citizens, that is to say, the right of the citizens composing the body. The respective rights guaranteed by Art, 19 (1) cannot be combined as suggested by Mr. Palkhivala, but must be asserted each in its own way and within its own limits; the sweep of the several rights is no doubt wide, but the combination of any of those two rights would not justify a claim such as is made by Mr. Palkhivala in the present petitions. As soon as citizens form a company, the right guaranteed to them by Art. 19 (1) (c) has been exercised and no restraint has been placed on that right and no infringement of trial right is made. Once a company or a corporation is formed, the business which is carried on by the said company or corporation is the business of the company or corporation and is not the business of the citizens who get the company or corporation formed or incorporated, and the rights of the incorporated body must be judged on that footing and cannot be judged on the assumption that they are the rights attributable to the business of individual citizens. Therefore we are satisfied that the argument based on the distinction between the two rights guaranteed by Art. 19(1) (c) and (g) and the effect of their combination cannot take the petitioners case very far when they seek to invoke the doctrine that the veil of the corporation should be lifted. That is why we have come to the conclusion that the petitions filed by the petitioners are incompetent under Art. 32, even though in each of these petitions one or two of the shareholders of the petitioning companies or corporation have joined. | 0[ds]We do not think we can answer this question in the affirmative. No doubt, the complaint made by the petitioners is that their fundamental rights are infringed and it is a truism to say that this Court as the guardian of the fundamental rights of the citizens will always attempt to safeguard the said fundamental rights but having regard to the decision of this Court in the State Trading Corporation of India Ltd., AIR 1963 SC 1811 we do not see how we can legitimately entertain the petitioners plea in the present petitions, because if their plea was upheld, it would really mean that what the corporations or the companies cannot achieve directly, can be achieved by them indirectly by relying upon the doctrine of lifting the veil. If he corporations and companies are not citizens, it means that the Constitution intended that they should not get the benefit of Art. 19. It is no doubt suggested by the petitioners that though Art. 19 is confined to citizens, the Constitution-makers may have thought that in dealing with the claims of corporations to invoke the provisions of Art, 19, Courts would act upon the doctrine of lifting the veil and would not treat the attempts of the corporations in that behalf as falling outside Art, 19. We do not think this argument is well-founded. The effect of confining Art. 19 to citizens as distinguished from persons to whom other Articles like 14 apply, clearly must be that it is only citizens to whom the rights under Art. 19 are guaranteed. If the legislature intends that the benefit of Art. 19 should be made available to the corporations, it would not be difficult for it to adopt a proper measure in that behalf by enlarging the definition of citizen prescribed by the Citizenship Act passed by the Parliament by virtue of the powers conferred on it by Articles 10 and 11. On the other hand, the fact that the Parliament has not chosen to make any such provision indicates that it was not the intention of the Parliament to treat corporations as citizens. Therefore, it seems to us that in view of the decision of this Court in the case of the State Trading Corporation of India Ltd., AIR 1963 SC 1811 the petitioners cannot be heard to say that their shareholders should be allowed to file the present petitions on the ground that, in substance, the corporations and companies are nothing more than associations of shareholders and members thereof. In our opinion, therefore, the argument that in the present petition we would be justified in lifting the veil cannot beare not impressed by this argument either. The fundamental right to form an association cannot in this manner be coupled with the fundamental right to carry on any trade or business. As has been held by this Court in All India Bank Employees Association v. National Industrial Tribunal (Bank Disputes) Bombay, 1962-3 SCR 269 : (AIR 1962 SC 171 ) the argument which is thus attractively presented before us overlooks the fact that Art. 19, as contrasted with certain other articles like Arts. 26, 29 and 30 guarantees rights to the citizens as such, and associations cannot lay claim to the fundamental rights guaranteed by that Article solely on the basis of their being an congregation of citizens, that is to say, the right of the citizens composing the body. The respective rights guaranteed by Art, 19 (1) cannot be combined as suggested by Mr. Palkhivala, but must be asserted each in its own way and within its own limits; the sweep of the several rights is no doubt wide, but the combination of any of those two rights would not justify a claim such as is made by Mr. Palkhivala in the present petitions. As soon as citizens form a company, the right guaranteed to them by Art. 19 (1) (c) has been exercised and no restraint has been placed on that right and no infringement of trial right is made. Once a company or a corporation is formed, the business which is carried on by the said company or corporation is the business of the company or corporation and is not the business of the citizens who get the company or corporation formed or incorporated, and the rights of the incorporated body must be judged on that footing and cannot be judged on the assumption that they are the rights attributable to the business of individual citizens. Therefore we are satisfied that the argument based on the distinction between the two rights guaranteed by Art. 19(1) (c) and (g) and the effect of their combination cannot take the petitioners case very far when they seek to invoke the doctrine that the veil of the corporation should be lifted. That is why we have come to the conclusion that the petitions filed by the petitioners are incompetent under Art. 32, even though in each of these petitions one or two of the shareholders of the petitioning companies or corporation have joined. | 0 | 7,078 | 928 | ### 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:
their fundamental rights are infringed and it is a truism to say that this Court as the guardian of the fundamental rights of the citizens will always attempt to safeguard the said fundamental rights but having regard to the decision of this Court in the State Trading Corporation of India Ltd., AIR 1963 SC 1811 we do not see how we can legitimately entertain the petitioners plea in the present petitions, because if their plea was upheld, it would really mean that what the corporations or the companies cannot achieve directly, can be achieved by them indirectly by relying upon the doctrine of lifting the veil. If he corporations and companies are not citizens, it means that the Constitution intended that they should not get the benefit of Art. 19. It is no doubt suggested by the petitioners that though Art. 19 is confined to citizens, the Constitution-makers may have thought that in dealing with the claims of corporations to invoke the provisions of Art, 19, Courts would act upon the doctrine of lifting the veil and would not treat the attempts of the corporations in that behalf as falling outside Art, 19. We do not think this argument is well-founded. The effect of confining Art. 19 to citizens as distinguished from persons to whom other Articles like 14 apply, clearly must be that it is only citizens to whom the rights under Art. 19 are guaranteed. If the legislature intends that the benefit of Art. 19 should be made available to the corporations, it would not be difficult for it to adopt a proper measure in that behalf by enlarging the definition of citizen prescribed by the Citizenship Act passed by the Parliament by virtue of the powers conferred on it by Articles 10 and 11. On the other hand, the fact that the Parliament has not chosen to make any such provision indicates that it was not the intention of the Parliament to treat corporations as citizens. Therefore, it seems to us that in view of the decision of this Court in the case of the State Trading Corporation of India Ltd., AIR 1963 SC 1811 the petitioners cannot be heard to say that their shareholders should be allowed to file the present petitions on the ground that, in substance, the corporations and companies are nothing more than associations of shareholders and members thereof. In our opinion, therefore, the argument that in the present petition we would be justified in lifting the veil cannot be sustained.29. Mr. Pakhivala sought to draw a distinction between the right of a citizen to carry on trade or business which is contemplated by Art. 19 (1) (g) from his right to form associations or unions contemplated by Art. 19 (1) (c). He argued that Art, 19 (1) (c) enables the citizens to choose their instruments or agents for carrying on the business which it is their fundamental right to carry on. If citizens decide to set up a corporation or a company as their agent for the purpose of carrying on trade or business, that is a right which is guaranteed to them under Art, 19 (1) (c). Basing himself on this distinction between the two rights guaranteed by Art, 19(1) (c). Basing himself on this distinction between the two rights guaranteed by Art. 19 (1) (g) and (c) respectively, Mr. Palkhivala somewhat ingeniously contended that we should not hesitate to lift the veil, because by looking at the substance of the matter, we would really be giving effect to the two fundamental rights guaranteed by Art, 19 (1). We are not impressed by this argument either. The fundamental right to form an association cannot in this manner be coupled with the fundamental right to carry on any trade or business. As has been held by this Court in All India Bank Employees Association v. National Industrial Tribunal (Bank Disputes) Bombay, 1962-3 SCR 269 : (AIR 1962 SC 171 ) the argument which is thus attractively presented before us overlooks the fact that Art. 19, as contrasted with certain other articles like Arts. 26, 29 and 30 guarantees rights to the citizens as such, and associations cannot lay claim to the fundamental rights guaranteed by that Article solely on the basis of their being an congregation of citizens, that is to say, the right of the citizens composing the body. The respective rights guaranteed by Art, 19 (1) cannot be combined as suggested by Mr. Palkhivala, but must be asserted each in its own way and within its own limits; the sweep of the several rights is no doubt wide, but the combination of any of those two rights would not justify a claim such as is made by Mr. Palkhivala in the present petitions. As soon as citizens form a company, the right guaranteed to them by Art. 19 (1) (c) has been exercised and no restraint has been placed on that right and no infringement of trial right is made. Once a company or a corporation is formed, the business which is carried on by the said company or corporation is the business of the company or corporation and is not the business of the citizens who get the company or corporation formed or incorporated, and the rights of the incorporated body must be judged on that footing and cannot be judged on the assumption that they are the rights attributable to the business of individual citizens. Therefore we are satisfied that the argument based on the distinction between the two rights guaranteed by Art. 19(1) (c) and (g) and the effect of their combination cannot take the petitioners case very far when they seek to invoke the doctrine that the veil of the corporation should be lifted. That is why we have come to the conclusion that the petitions filed by the petitioners are incompetent under Art. 32, even though in each of these petitions one or two of the shareholders of the petitioning companies or corporation have joined.
### Response:
0
### Explanation:
We do not think we can answer this question in the affirmative. No doubt, the complaint made by the petitioners is that their fundamental rights are infringed and it is a truism to say that this Court as the guardian of the fundamental rights of the citizens will always attempt to safeguard the said fundamental rights but having regard to the decision of this Court in the State Trading Corporation of India Ltd., AIR 1963 SC 1811 we do not see how we can legitimately entertain the petitioners plea in the present petitions, because if their plea was upheld, it would really mean that what the corporations or the companies cannot achieve directly, can be achieved by them indirectly by relying upon the doctrine of lifting the veil. If he corporations and companies are not citizens, it means that the Constitution intended that they should not get the benefit of Art. 19. It is no doubt suggested by the petitioners that though Art. 19 is confined to citizens, the Constitution-makers may have thought that in dealing with the claims of corporations to invoke the provisions of Art, 19, Courts would act upon the doctrine of lifting the veil and would not treat the attempts of the corporations in that behalf as falling outside Art, 19. We do not think this argument is well-founded. The effect of confining Art. 19 to citizens as distinguished from persons to whom other Articles like 14 apply, clearly must be that it is only citizens to whom the rights under Art. 19 are guaranteed. If the legislature intends that the benefit of Art. 19 should be made available to the corporations, it would not be difficult for it to adopt a proper measure in that behalf by enlarging the definition of citizen prescribed by the Citizenship Act passed by the Parliament by virtue of the powers conferred on it by Articles 10 and 11. On the other hand, the fact that the Parliament has not chosen to make any such provision indicates that it was not the intention of the Parliament to treat corporations as citizens. Therefore, it seems to us that in view of the decision of this Court in the case of the State Trading Corporation of India Ltd., AIR 1963 SC 1811 the petitioners cannot be heard to say that their shareholders should be allowed to file the present petitions on the ground that, in substance, the corporations and companies are nothing more than associations of shareholders and members thereof. In our opinion, therefore, the argument that in the present petition we would be justified in lifting the veil cannot beare not impressed by this argument either. The fundamental right to form an association cannot in this manner be coupled with the fundamental right to carry on any trade or business. As has been held by this Court in All India Bank Employees Association v. National Industrial Tribunal (Bank Disputes) Bombay, 1962-3 SCR 269 : (AIR 1962 SC 171 ) the argument which is thus attractively presented before us overlooks the fact that Art. 19, as contrasted with certain other articles like Arts. 26, 29 and 30 guarantees rights to the citizens as such, and associations cannot lay claim to the fundamental rights guaranteed by that Article solely on the basis of their being an congregation of citizens, that is to say, the right of the citizens composing the body. The respective rights guaranteed by Art, 19 (1) cannot be combined as suggested by Mr. Palkhivala, but must be asserted each in its own way and within its own limits; the sweep of the several rights is no doubt wide, but the combination of any of those two rights would not justify a claim such as is made by Mr. Palkhivala in the present petitions. As soon as citizens form a company, the right guaranteed to them by Art. 19 (1) (c) has been exercised and no restraint has been placed on that right and no infringement of trial right is made. Once a company or a corporation is formed, the business which is carried on by the said company or corporation is the business of the company or corporation and is not the business of the citizens who get the company or corporation formed or incorporated, and the rights of the incorporated body must be judged on that footing and cannot be judged on the assumption that they are the rights attributable to the business of individual citizens. Therefore we are satisfied that the argument based on the distinction between the two rights guaranteed by Art. 19(1) (c) and (g) and the effect of their combination cannot take the petitioners case very far when they seek to invoke the doctrine that the veil of the corporation should be lifted. That is why we have come to the conclusion that the petitions filed by the petitioners are incompetent under Art. 32, even though in each of these petitions one or two of the shareholders of the petitioning companies or corporation have joined.
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Chittoor Motor Transport Company Private Limited Vs. Income Tax Officer, Chittoor | anything contained in this Act proceed to re-compute the total income of the assessee for the relevant year as if the re-computation is a rectification of a mistake apparent from the record within the meaning of this section, and the provisions of sub-s. (1) shall apply accordingly, the period of four years specified therein being reckoned from the end of the year in which the transfer takes place or the money is so utilised". 6. There is no doubt that on the true interpretation of S. 10 (2) (vib) it is clear that if an assessee sells to a person other than the Government at any time before the expiry of ten years from the end of the year in which the motor vehicle was acquired, the allowance is deemed to have been wrongly allowed for the purposes of the Act. but if the assessee sells it to the Government no such consequence follows. 7. The learned Additional Solicitor - General says that the object was to help in the development of industry; indeed the rebate was called development rebate: and in order to achieve this object a condition was put that if the assessee did not utilise it in his own business the rebate would be forfeited or deemed to have been allowed wrongly, i.e., not really for development purposes. He said that by a sale to the Government this object was not defeated because the Legislature assumes that the Government will act in the public interest. In our opinion, there is no discrimination which is hit by Art. 14 of the Constitution in this case. The Legislature has directed the giving of a rebate on conditions which are exactly the same for every assessee, one condition being that if the assessee sells before the expiry of ten years from the end of the year in which it was acquired, to a person other than the Government, he would forfeit such rebate. This condition is applicable to every assessee and an assessee has a choice of either selling to a person other than the Government and forfeiting the rebate or selling to the Government and keeping the rebate with himself. The discrimination, if any, arises on the choice made by the assessee. The Legislature perhaps presumes that if the machinery is offered to the Government for sale, the Government will only buy it at a price which will take into consideration the rebate taken by the assessee. In our opinion, therefore, it has not been established that S. 10 (2) (vib) violates Art. 14 of the Constitution. 8. Mr. Naunit Lal then urges that in this case there has been no sale or transfer within S. 10 (2) (vib). He says that the company consisted of the same three persons as the partnership firm. He further says that it is not a commercial transaction at all and what the latter part of S. 10 (2) (vib) contemplates is a commercial sale or transfer. In this connection he relies on Commr. Of Income-tax v. Sir Homi Mehtas Executors (1955) 28 ITR 928 : (AIR 1956 Bom 415 ), Rogers and Co. v. Commr. Of Income-tax (1958) 34 ITR 336 : (AIR 1959 Bom 150 ) and Commr of Income-tax v. Mugneeram Bengur (1963) 47 ITR 565 (Cal) . In the first case the facts in brief were these. The assessee and his sons formed a private limited company and transferred to that company shares in several joint stock companies which the assessee had held jointly with his sons, for Rs. 40,97,000 which was the market value of the shares at that time. It was found that these shares had cost to the assessee only Rs. 30,45,017 and the Income-tax authorities levied income-tax on the difference between the market price and the cost price of the shares on the ground that the assessee had made a profit to that extent by this transaction. The High Court held that though the assessee and his sons on the one hand and the private limited company formed by them were distinct entities in law but in truth and substance the only result of this particular transaction was that Sir Homi Mehta and his sons held these very shares in a different way from the way from the way they held before the transaction. It observed that"they adopted a different mode, the mode of the formation of the limited company with all its advantages, in order to hold these shares and to deal with these shares and to make profit out of these shares." It further held that Sir Homi Mehta did not deal with these shares in the ordinary course as a businessman when he transferred these shares to the private limited company. In our opinion, this case has no relevance to the question of the interpretation of the words "sold or otherwise transferred" in the latter part of S. 10 (2) (vib). 9. The second case [(1958) 34 ITR 336 : (AIR 1959 Bom 150 )] is on the same lines. The Calcutta High Court in (1963)47 ITR 565 (Cal), followed Doughtys case, 1927 AC 327, but there too they were not concerned with the interpretation of the words "sold or otherwise transferred". 10. If we look at the resolution, dated June 30, 1959, it is quite clear that it is a sale for consideration of a number of buses by the limited company to the partnership. It would be a sale under the Sale of Goods Act and it would be a sale in any other proper meaning which might be given to the word sale. We are not concerned whether any profit resulted to the assessee but what we are concerned with is whether the assessee had sold or transferred these buses to the partnership. To us the answer seems to be plain that whether the transaction resulted in profit to the company or not, the transaction comes within the purview of the latter part of S. 10 (2) (vib). 11. | 0[ds]In our opinion, there is no discrimination which is hit by Art. 14 of the Constitution in this case. The Legislature has directed the giving of a rebate on conditions which are exactly the same for every assessee, one condition being that if the assessee sells before the expiry of ten years from the end of the year in which it was acquired, to a person other than the Government, he would forfeit such rebate. This condition is applicable to every assessee and an assessee has a choice of either selling to a person other than the Government and forfeiting the rebate or selling to the Government and keeping the rebate with himself. The discrimination, if any, arises on the choice made by the assessee. The Legislature perhaps presumes that if the machinery is offered to the Government for sale, the Government will only buy it at a price which will take into consideration the rebate taken by the assessee. In our opinion, therefore, it has not been established that S. 10 (2) (vib) violates Art. 14 of the ConstitutionIf we look at the resolution, dated June 30, 1959, it is quite clear that it is a sale for consideration of a number of buses by the limited company to the partnership. It would be a sale under the Sale of Goods Act and it would be a sale in any other proper meaning which might be given to the word sale. We are not concerned whether any profit resulted to the assessee but what we are concerned with is whether the assessee had sold or transferred these buses to the partnership. To us the answer seems to be plain that whether the transaction resulted in profit to the company or not, the transaction comes within the purview of the latter part of S. 10 (2) (vib). | 0 | 2,032 | 343 | ### Instruction:
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anything contained in this Act proceed to re-compute the total income of the assessee for the relevant year as if the re-computation is a rectification of a mistake apparent from the record within the meaning of this section, and the provisions of sub-s. (1) shall apply accordingly, the period of four years specified therein being reckoned from the end of the year in which the transfer takes place or the money is so utilised". 6. There is no doubt that on the true interpretation of S. 10 (2) (vib) it is clear that if an assessee sells to a person other than the Government at any time before the expiry of ten years from the end of the year in which the motor vehicle was acquired, the allowance is deemed to have been wrongly allowed for the purposes of the Act. but if the assessee sells it to the Government no such consequence follows. 7. The learned Additional Solicitor - General says that the object was to help in the development of industry; indeed the rebate was called development rebate: and in order to achieve this object a condition was put that if the assessee did not utilise it in his own business the rebate would be forfeited or deemed to have been allowed wrongly, i.e., not really for development purposes. He said that by a sale to the Government this object was not defeated because the Legislature assumes that the Government will act in the public interest. In our opinion, there is no discrimination which is hit by Art. 14 of the Constitution in this case. The Legislature has directed the giving of a rebate on conditions which are exactly the same for every assessee, one condition being that if the assessee sells before the expiry of ten years from the end of the year in which it was acquired, to a person other than the Government, he would forfeit such rebate. This condition is applicable to every assessee and an assessee has a choice of either selling to a person other than the Government and forfeiting the rebate or selling to the Government and keeping the rebate with himself. The discrimination, if any, arises on the choice made by the assessee. The Legislature perhaps presumes that if the machinery is offered to the Government for sale, the Government will only buy it at a price which will take into consideration the rebate taken by the assessee. In our opinion, therefore, it has not been established that S. 10 (2) (vib) violates Art. 14 of the Constitution. 8. Mr. Naunit Lal then urges that in this case there has been no sale or transfer within S. 10 (2) (vib). He says that the company consisted of the same three persons as the partnership firm. He further says that it is not a commercial transaction at all and what the latter part of S. 10 (2) (vib) contemplates is a commercial sale or transfer. In this connection he relies on Commr. Of Income-tax v. Sir Homi Mehtas Executors (1955) 28 ITR 928 : (AIR 1956 Bom 415 ), Rogers and Co. v. Commr. Of Income-tax (1958) 34 ITR 336 : (AIR 1959 Bom 150 ) and Commr of Income-tax v. Mugneeram Bengur (1963) 47 ITR 565 (Cal) . In the first case the facts in brief were these. The assessee and his sons formed a private limited company and transferred to that company shares in several joint stock companies which the assessee had held jointly with his sons, for Rs. 40,97,000 which was the market value of the shares at that time. It was found that these shares had cost to the assessee only Rs. 30,45,017 and the Income-tax authorities levied income-tax on the difference between the market price and the cost price of the shares on the ground that the assessee had made a profit to that extent by this transaction. The High Court held that though the assessee and his sons on the one hand and the private limited company formed by them were distinct entities in law but in truth and substance the only result of this particular transaction was that Sir Homi Mehta and his sons held these very shares in a different way from the way from the way they held before the transaction. It observed that"they adopted a different mode, the mode of the formation of the limited company with all its advantages, in order to hold these shares and to deal with these shares and to make profit out of these shares." It further held that Sir Homi Mehta did not deal with these shares in the ordinary course as a businessman when he transferred these shares to the private limited company. In our opinion, this case has no relevance to the question of the interpretation of the words "sold or otherwise transferred" in the latter part of S. 10 (2) (vib). 9. The second case [(1958) 34 ITR 336 : (AIR 1959 Bom 150 )] is on the same lines. The Calcutta High Court in (1963)47 ITR 565 (Cal), followed Doughtys case, 1927 AC 327, but there too they were not concerned with the interpretation of the words "sold or otherwise transferred". 10. If we look at the resolution, dated June 30, 1959, it is quite clear that it is a sale for consideration of a number of buses by the limited company to the partnership. It would be a sale under the Sale of Goods Act and it would be a sale in any other proper meaning which might be given to the word sale. We are not concerned whether any profit resulted to the assessee but what we are concerned with is whether the assessee had sold or transferred these buses to the partnership. To us the answer seems to be plain that whether the transaction resulted in profit to the company or not, the transaction comes within the purview of the latter part of S. 10 (2) (vib). 11.
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In our opinion, there is no discrimination which is hit by Art. 14 of the Constitution in this case. The Legislature has directed the giving of a rebate on conditions which are exactly the same for every assessee, one condition being that if the assessee sells before the expiry of ten years from the end of the year in which it was acquired, to a person other than the Government, he would forfeit such rebate. This condition is applicable to every assessee and an assessee has a choice of either selling to a person other than the Government and forfeiting the rebate or selling to the Government and keeping the rebate with himself. The discrimination, if any, arises on the choice made by the assessee. The Legislature perhaps presumes that if the machinery is offered to the Government for sale, the Government will only buy it at a price which will take into consideration the rebate taken by the assessee. In our opinion, therefore, it has not been established that S. 10 (2) (vib) violates Art. 14 of the ConstitutionIf we look at the resolution, dated June 30, 1959, it is quite clear that it is a sale for consideration of a number of buses by the limited company to the partnership. It would be a sale under the Sale of Goods Act and it would be a sale in any other proper meaning which might be given to the word sale. We are not concerned whether any profit resulted to the assessee but what we are concerned with is whether the assessee had sold or transferred these buses to the partnership. To us the answer seems to be plain that whether the transaction resulted in profit to the company or not, the transaction comes within the purview of the latter part of S. 10 (2) (vib).
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Kalpana Bhandari & Others Vs. Securities & Exchange Board of India & Others | the near future. Be that as it may, it appears to us that the grievances raised by the petitioners in the writ petition though are not within the powers of SEBI can be adequately looked into by the Central Government. 11.Moreover, the primal grievance of the petitioners, as we see, is that Sesa Goa must offer the petitioners price not less than Rs.57/- per share for acquiring the shares of Sesa Industries from the petitioners and other investors. Some of the shareholders similarly situated with that of petitioners filed a writ petition being Writ Petition No. 1280 of 1999 before this court earlier. Inter alia, the prayers made therein were: "(a) ..............(b) that this Honble Court may be pleased to issue a writ of mandamus or any other appropriate writ order or direction in the nature of mandamus: (i) immediately calling upon Respondent No.1 and Respondent No.2 to refund the said moneys of the Petitioner as invested by the Petitioner in the said shares of Respondent No. 1, with interest thereon, by buying back the said shares of the Petitioner at a rate so decided by this Honble Court after taking into consideration the original issue price of Respondent No.1 and the interest loss caused to the Petitioner for holding on to the shares of Respondent No.1 ever since;(ii)...............(iii) ...............(iv) directing Respondent No.3 to initiate necessary action against Respondent No.1 and Respondent No.2 for committing gross violations of the provisions of SEBI Act, 1992 and Companies Act, 1956 and for defrauding and misleading the members of the investing public." 12.The said writ petition came to be dismissed by the Division Bench of this court on 17th June, 1999 by the following order : "CORAM: M. B. GHODESWAR & B. N. SRIKRISHNA, JJ. DATE: 17TH JUNE, 1999P.C. :"1. The crux of the case sought to be made out by the Petitioner is that the 2nd Respondent Company (whose shares are already listed on the Stock Exchange) had privately issued circulars to its shareholders regarding the issue of shares of the 1st Respondent-Company with a promise that the shares of the 1st Respondent would be listed on the Stock Exchange at Mumbai after about 12 to 18 months. This contingency failed to take place. The Petitioner made complaints to the 3rd Respondent, The Securities and Exchange Board of India (SEBI). The SEBI has ignored the complaints. The Petitioner seeks a writ of mandamus against the SEBI to carry out its duties. 2. Mr. Samdani, learned Counsel appearing on behalf of the Petitioner, has taken us to the provisions of the Securities and Exchange Board of India Act, 1992 (for short, the "SEBI Act") and the regulations made therein. Even assuming that there is a breach of the promise to list the securities of the 1st Respondent on the Mumbai Stock Exchange, we are not prima facie satisfied that it would, by itself, amount to a dereliction of a statutory duty of the SEBI as a watchdog of investors under the SEBI Act. 3. In our view, the Petitioner may have his remedy either under the Contract Act or under the provisions of the Companies Act, but we see no failure in discharge any statutory duties on the part of the SEBI. No relief can be granted in exercise of our powers under Article 226 of the Constitution of India. Hence, rejected." 13.It is true that at the time the Writ Petition No.1280 of 1999 was filed the letter of offer dated 5th June, 2003 issued by Sesa Goa and now under challenge before us had not seen the light of the day and obviously, the said letter was not under challenge but the effective prayer for buy back of shares of Sesa Industries by Sesa Goa at a reasonable rate is identical in both matters. For the reasons on which the earlier Writ Petitions No.1280 of 1990 came to be rejected, justify rejection of the present writ petition as well. 14.In the light of the aforesaid discussion, we do not deem it necessary to go into the diverse aspects raised by the learned counsel for the petitioners regarding the lifting of the corporate veil, the allegations of insider trade practices, fraudulent and unfair action of Sesa Goa and Sesa Industries. Suffice it to say, however, that letter dated 5th June, 2003 is voluntary letter of offer made by Sesa Goa. It is for the petitioners to accept the same or reject outright. There is no compulsion on the part of the offerer upon the petitioners to accept the said offer. The offer has been made inter alia for the reasons: "(e) The Company has been unable to list its shares by reasons of the difficulties mentioned above and also due to the weak state of the capital market and also world wide industrial recession, particularly in the steel industry. The company had also taken the opinion of a leading merchant banker on the disability of listing its shares after taking into consideration various relevant factors in the context of the original proposal. Furthermore it was advised that it would not be practical to successfully make a new issue or divest part of the promoter holding to facilitate listing of the Companys shares in the larger interest of existing shareholders. Hence the shares remain unlisted till date. (g) The Company is of the view that the recovery of the capital market on a large scale basis may take some more time. Listing of the Shares of the Company would have provided an exit route to the shareholders, but unfortunately it has not been possible so far to do so. Therefore, with a view to provide an exit opportunity to the shareholders, SIL has requested the Acquirer to make this offer and the Acquirer has agreed to the same." If the petitioners feel that the said offer is not for their benefit, they may not accept the same and not follow the exit route suggested by the offerer. Ultimately it is pure commercial dealing. | 0[ds]Though the learned counsel for petitioner worked very hard, to an extent unnecessary, to persuade us to entertain the writ petition, however, we hardly found the case fit for invocation of extra ordinary jurisdiction for the reasons which we indicate hereinafter. First, there is substance in the submission of SEBI that as Sesa Industries is not listed company nor have they made any application to any recognised Stock Exchange manifesting intention of getting their securities listed and, therefore, they have no jurisdiction in thewould be, thus, seen that the provisions contained in various sections as noted in Sectionso far as they relate to issue and transfer of securities andof dividend SEBI has powers (i) in case of listed public companies and (ii) in case of those public companies which intend to get their securities listed on any recognized stock exchange in India. In other words SEBI does not have power in relation to the issue and transfer of securities andof dividend under the various provisions referred to in sectionfor the companies other than listed public companies and the public companies which intend to get their securities listed on any recognised stock exchange in India. Such power is vested in the Central Government. Sesa Industries is admittedly not a listed company on any recognised Stock Exchange. The question is whether SEBI erred in its opinion that Sesa Industries is not even covered under Section 55A(b) of Companies Act. It is the case of SEBI that Sesa Industries intention to get its securities listed is not manifested as it has not made any application to recognised stock exchange under Rule 19 of Contract (Regulation) Rules, 1957. The approach of SEBI cannot be faulted. Even the learned counsel for the petitioners did not dispute that the criteria applied by SEBI is not irrelevant. However, the learned counsel for the petitioners submitted that every year the Chairman in his speech in the annual general meeting, expressed companys intention to have their shares listed at the recognised stock exchanges. The intention is always a question of fact and unless the opinion of regulatory body on this aspect is palpably perverse and grossly erroneous, it would not be proper for this court in extraordinary jurisdiction to interfere with such opinion of regulatory body. Moreover not a single resolution of the Board of Directors has been placed on record by the petitioners to indicate that the Board of Sesa Industries took decision to have their securities listed at the recognised stock exchange/s. Besides that the yardstick applied by SEBI that by making an application to recognised Stock Exchange, the intention of the company to have its securities listed at recognised stock exchange is manifested cannot be said to be unreasonable. In the circumstances SEBIs stand that it has no jurisdiction in the matter cannot be said to be withoutif Sesa Industries is not a listed public company nor is held to have intended to get their securities listed on any recognised stock exchange in India, the various provisions referred to in section 55A relating to issue of transfer of securities andof dividend in relation to the said company is clearly administered by the Central Government and the petitioners can always apply to the Central Government for the various grievances raised before us. Not only that, section 237 of the Companies Act provides for investigation in the companys affairs by the Central Government in the manner provideda matter of fact, the petitioners themselves, have, made an application to the Central Government requesting them to invoke their powers under the Companies Act for carrying out special audit and investigation into the affairs of Sesa Goa and Sesa Industries. Surprisingly and for the reasons best known, the petitioners have not impleaded Central Government as party respondent in the present writ petition, presumably because the petitioners feel that the Central Government would act on the application made by them in the near future. Be that as it may, it appears to us that the grievances raised by the petitioners in the writ petition though are not within the powers of SEBI can be adequately looked into by the Centralis true that at the time the Writ Petition No.1280 of 1999 was filed the letter of offer dated 5th June, 2003 issued by Sesa Goa and now under challenge before us had not seen the light of the day and obviously, the said letter was not under challenge but the effective prayer for buy back of shares of Sesa Industries by Sesa Goa at a reasonable rate is identical in both matters. For the reasons on which the earlier Writ Petitions No.1280 of 1990 came to be rejected, justify rejection of the present writ petition asthe light of the aforesaid discussion, we do not deem it necessary to go into the diverse aspects raised by the learned counsel for the petitioners regarding the lifting of the corporate veil, the allegations of insider trade practices, fraudulent and unfair action of Sesa Goa and Sesa Industries. Suffice it to say, however, that letter dated 5th June, 2003 is voluntary letter of offer made by Sesa Goa. It is for the petitioners to accept the same or reject outright. There is no compulsion on the part of the offerer upon the petitioners to accept the said offer. The offer has been made inter alia for theThe Company has been unable to list its shares by reasons of the difficulties mentioned above and also due to the weak state of the capital market and also world wide industrial recession, particularly in the steel industry. The company had also taken the opinion of a leading merchant banker on the disability of listing its shares after taking into consideration various relevant factors in the context of the original proposal. Furthermore it was advised that it would not be practical to successfully make a new issue or divest part of the promoter holding to facilitate listing of the Companys shares in the larger interest of existing shareholders. Hence the shares remain unlisted tillThe Company is of the view that the recovery of the capital market on a large scale basis may take some more time. Listing of the Shares of the Company would have provided an exit route to the shareholders, but unfortunately it has not been possible so far to do so. Therefore, with a view to provide an exit opportunity to the shareholders, SIL has requested the Acquirer to make this offer and the Acquirer has agreed to thethe petitioners feel that the said offer is not for their benefit, they may not accept the same and not follow the exit route suggested by the offerer. Ultimately it is pure commercial dealing. | 0 | 4,071 | 1,195 | ### Instruction:
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the near future. Be that as it may, it appears to us that the grievances raised by the petitioners in the writ petition though are not within the powers of SEBI can be adequately looked into by the Central Government. 11.Moreover, the primal grievance of the petitioners, as we see, is that Sesa Goa must offer the petitioners price not less than Rs.57/- per share for acquiring the shares of Sesa Industries from the petitioners and other investors. Some of the shareholders similarly situated with that of petitioners filed a writ petition being Writ Petition No. 1280 of 1999 before this court earlier. Inter alia, the prayers made therein were: "(a) ..............(b) that this Honble Court may be pleased to issue a writ of mandamus or any other appropriate writ order or direction in the nature of mandamus: (i) immediately calling upon Respondent No.1 and Respondent No.2 to refund the said moneys of the Petitioner as invested by the Petitioner in the said shares of Respondent No. 1, with interest thereon, by buying back the said shares of the Petitioner at a rate so decided by this Honble Court after taking into consideration the original issue price of Respondent No.1 and the interest loss caused to the Petitioner for holding on to the shares of Respondent No.1 ever since;(ii)...............(iii) ...............(iv) directing Respondent No.3 to initiate necessary action against Respondent No.1 and Respondent No.2 for committing gross violations of the provisions of SEBI Act, 1992 and Companies Act, 1956 and for defrauding and misleading the members of the investing public." 12.The said writ petition came to be dismissed by the Division Bench of this court on 17th June, 1999 by the following order : "CORAM: M. B. GHODESWAR & B. N. SRIKRISHNA, JJ. DATE: 17TH JUNE, 1999P.C. :"1. The crux of the case sought to be made out by the Petitioner is that the 2nd Respondent Company (whose shares are already listed on the Stock Exchange) had privately issued circulars to its shareholders regarding the issue of shares of the 1st Respondent-Company with a promise that the shares of the 1st Respondent would be listed on the Stock Exchange at Mumbai after about 12 to 18 months. This contingency failed to take place. The Petitioner made complaints to the 3rd Respondent, The Securities and Exchange Board of India (SEBI). The SEBI has ignored the complaints. The Petitioner seeks a writ of mandamus against the SEBI to carry out its duties. 2. Mr. Samdani, learned Counsel appearing on behalf of the Petitioner, has taken us to the provisions of the Securities and Exchange Board of India Act, 1992 (for short, the "SEBI Act") and the regulations made therein. Even assuming that there is a breach of the promise to list the securities of the 1st Respondent on the Mumbai Stock Exchange, we are not prima facie satisfied that it would, by itself, amount to a dereliction of a statutory duty of the SEBI as a watchdog of investors under the SEBI Act. 3. In our view, the Petitioner may have his remedy either under the Contract Act or under the provisions of the Companies Act, but we see no failure in discharge any statutory duties on the part of the SEBI. No relief can be granted in exercise of our powers under Article 226 of the Constitution of India. Hence, rejected." 13.It is true that at the time the Writ Petition No.1280 of 1999 was filed the letter of offer dated 5th June, 2003 issued by Sesa Goa and now under challenge before us had not seen the light of the day and obviously, the said letter was not under challenge but the effective prayer for buy back of shares of Sesa Industries by Sesa Goa at a reasonable rate is identical in both matters. For the reasons on which the earlier Writ Petitions No.1280 of 1990 came to be rejected, justify rejection of the present writ petition as well. 14.In the light of the aforesaid discussion, we do not deem it necessary to go into the diverse aspects raised by the learned counsel for the petitioners regarding the lifting of the corporate veil, the allegations of insider trade practices, fraudulent and unfair action of Sesa Goa and Sesa Industries. Suffice it to say, however, that letter dated 5th June, 2003 is voluntary letter of offer made by Sesa Goa. It is for the petitioners to accept the same or reject outright. There is no compulsion on the part of the offerer upon the petitioners to accept the said offer. The offer has been made inter alia for the reasons: "(e) The Company has been unable to list its shares by reasons of the difficulties mentioned above and also due to the weak state of the capital market and also world wide industrial recession, particularly in the steel industry. The company had also taken the opinion of a leading merchant banker on the disability of listing its shares after taking into consideration various relevant factors in the context of the original proposal. Furthermore it was advised that it would not be practical to successfully make a new issue or divest part of the promoter holding to facilitate listing of the Companys shares in the larger interest of existing shareholders. Hence the shares remain unlisted till date. (g) The Company is of the view that the recovery of the capital market on a large scale basis may take some more time. Listing of the Shares of the Company would have provided an exit route to the shareholders, but unfortunately it has not been possible so far to do so. Therefore, with a view to provide an exit opportunity to the shareholders, SIL has requested the Acquirer to make this offer and the Acquirer has agreed to the same." If the petitioners feel that the said offer is not for their benefit, they may not accept the same and not follow the exit route suggested by the offerer. Ultimately it is pure commercial dealing.
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case of listed public companies and (ii) in case of those public companies which intend to get their securities listed on any recognized stock exchange in India. In other words SEBI does not have power in relation to the issue and transfer of securities andof dividend under the various provisions referred to in sectionfor the companies other than listed public companies and the public companies which intend to get their securities listed on any recognised stock exchange in India. Such power is vested in the Central Government. Sesa Industries is admittedly not a listed company on any recognised Stock Exchange. The question is whether SEBI erred in its opinion that Sesa Industries is not even covered under Section 55A(b) of Companies Act. It is the case of SEBI that Sesa Industries intention to get its securities listed is not manifested as it has not made any application to recognised stock exchange under Rule 19 of Contract (Regulation) Rules, 1957. The approach of SEBI cannot be faulted. Even the learned counsel for the petitioners did not dispute that the criteria applied by SEBI is not irrelevant. However, the learned counsel for the petitioners submitted that every year the Chairman in his speech in the annual general meeting, expressed companys intention to have their shares listed at the recognised stock exchanges. The intention is always a question of fact and unless the opinion of regulatory body on this aspect is palpably perverse and grossly erroneous, it would not be proper for this court in extraordinary jurisdiction to interfere with such opinion of regulatory body. Moreover not a single resolution of the Board of Directors has been placed on record by the petitioners to indicate that the Board of Sesa Industries took decision to have their securities listed at the recognised stock exchange/s. Besides that the yardstick applied by SEBI that by making an application to recognised Stock Exchange, the intention of the company to have its securities listed at recognised stock exchange is manifested cannot be said to be unreasonable. In the circumstances SEBIs stand that it has no jurisdiction in the matter cannot be said to be withoutif Sesa Industries is not a listed public company nor is held to have intended to get their securities listed on any recognised stock exchange in India, the various provisions referred to in section 55A relating to issue of transfer of securities andof dividend in relation to the said company is clearly administered by the Central Government and the petitioners can always apply to the Central Government for the various grievances raised before us. Not only that, section 237 of the Companies Act provides for investigation in the companys affairs by the Central Government in the manner provideda matter of fact, the petitioners themselves, have, made an application to the Central Government requesting them to invoke their powers under the Companies Act for carrying out special audit and investigation into the affairs of Sesa Goa and Sesa Industries. Surprisingly and for the reasons best known, the petitioners have not impleaded Central Government as party respondent in the present writ petition, presumably because the petitioners feel that the Central Government would act on the application made by them in the near future. Be that as it may, it appears to us that the grievances raised by the petitioners in the writ petition though are not within the powers of SEBI can be adequately looked into by the Centralis true that at the time the Writ Petition No.1280 of 1999 was filed the letter of offer dated 5th June, 2003 issued by Sesa Goa and now under challenge before us had not seen the light of the day and obviously, the said letter was not under challenge but the effective prayer for buy back of shares of Sesa Industries by Sesa Goa at a reasonable rate is identical in both matters. For the reasons on which the earlier Writ Petitions No.1280 of 1990 came to be rejected, justify rejection of the present writ petition asthe light of the aforesaid discussion, we do not deem it necessary to go into the diverse aspects raised by the learned counsel for the petitioners regarding the lifting of the corporate veil, the allegations of insider trade practices, fraudulent and unfair action of Sesa Goa and Sesa Industries. Suffice it to say, however, that letter dated 5th June, 2003 is voluntary letter of offer made by Sesa Goa. It is for the petitioners to accept the same or reject outright. There is no compulsion on the part of the offerer upon the petitioners to accept the said offer. The offer has been made inter alia for theThe Company has been unable to list its shares by reasons of the difficulties mentioned above and also due to the weak state of the capital market and also world wide industrial recession, particularly in the steel industry. The company had also taken the opinion of a leading merchant banker on the disability of listing its shares after taking into consideration various relevant factors in the context of the original proposal. Furthermore it was advised that it would not be practical to successfully make a new issue or divest part of the promoter holding to facilitate listing of the Companys shares in the larger interest of existing shareholders. Hence the shares remain unlisted tillThe Company is of the view that the recovery of the capital market on a large scale basis may take some more time. Listing of the Shares of the Company would have provided an exit route to the shareholders, but unfortunately it has not been possible so far to do so. Therefore, with a view to provide an exit opportunity to the shareholders, SIL has requested the Acquirer to make this offer and the Acquirer has agreed to thethe petitioners feel that the said offer is not for their benefit, they may not accept the same and not follow the exit route suggested by the offerer. Ultimately it is pure commercial dealing.
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Narendra Vs. K.Meena | the said view of the High Court. As stated hereinabove, in a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the Respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the Respondent wife to constrain the Appellant to be separated from the family would be torturous for the husband and in our opinion, the trial Court was right when it came to the conclusion that this constitutes an act of ‘cruelty’. 12. With regard to the allegations about an extra-marital affair with maid named Kamla, the re-appreciation of the evidence by the High Court does not appear to be correct. There is sufficient evidence to the effect that there was no maid named Kamla working at the residence of the Appellant. Some averment with regard to some relative has been relied upon by the High Court to come to a conclusion that there was a lady named Kamla but the High Court has ignored the fact that the Respondent wife had leveled allegations with regard to an extra-marital affair of the Appellant with the maid and not with someone else. Even if there was some relative named Kamla, who might have visited the Appellant, there is nothing to substantiate the allegations levelled by the Respondent with regard to an extra-marital affair. True, it is very difficult to establish such allegations but at the same time, it is equally true that to suffer an allegation pertaining to one’s character of having an extra-marital affair is quite torturous for any person – be it a husband or a wife. We have carefully gone through the evidence but we could not find any reliable evidence to show that the Appellant had an extra-marital affair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the Appellant with the maid named by the Respondent. We consider levelling of absolutely false allegations and that too, with regard to an extra-marital life to be quite serious and that can surely be a cause for metal cruelty.13. This Court, in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003 (6) SCC 334 has held as under:- “7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.” 14. Applying the said ratio to the facts of this case, we are inclined to hold that the unsubstantiated allegations levelled by the Respondent wife and the threats and attempt to commit suicide by her amounted to mental cruelty and therefore, the marriage deserves to be dissolved by a decree of divorce on the ground stated in Section 13(1)(ia) of the Act. 15. Taking an overall view of the entire evidence and the judgment delivered by the trial Court, we firmly believe that there was no need to take a different view than the one taken by the trial Court. The behaviour of the Respondent wife appears to be terrifying and horrible. One would find it difficult to live with such a person with tranquility and peace of mind. Such torture would adversely affect the life of the husband. It is also not in dispute that the Respondent wife had left the matrimonial house on 12th July, 1995 i.e. more than 20 years back. Though not on record, the learned counsel submitted that till today, the Respondent wife is not staying with the Appellant. The daughter of the Appellant and Respondent has also grown up and according to the learned counsel, she is working in an IT company. We have no reason to disbelieve the aforestated facts because with the passage of time, the daughter must have grown up and the separation of the Appellant and the wife must have also become normal for her and therefore, at this juncture it would not be proper to bring them together, especially when the Appellant husband was treated so cruelly by the Respondent wife. | 1[ds]The constant persuasion by the Respondent for getting separated from the family members of the Appellant and constraining the Appellant to live separately and only with her was also not considered to be of any importance by the High Court. No importance was given to the incident with regard to an attempt to commit suicide made by the Respondent wife. On the contrary, it appears that the High Court found some justification in the request made by the Respondent to live separately from the family of the Appellant husband. According to the High Court, the trial Court did not appreciate the evidence properly. For the aforestated reasons, the High Court reversed the findings arrived at by the learned Family Court and set aside the decree of divorce.9. We do not agree with the manner in which the High Court hasthe evidence and has come to a different conclusion.10. With regard to the allegations of cruelty levelled by the Appellant, we are in agreement with the findings of the trial Court. First of all, let us look at the incident with regard to an attempt to commit suicide by the Respondent. Upon perusal of the evidence of the witnesses, the findings arrived at by the trial Court to the effect that the Respondent wife had locked herself in the bathroom and had poured kerosene on herself so as to commit suicide, are not in dispute. Fortunately for the Appellant, because of the noise and disturbance, even the neighbours of the Appellant rushed to help and the door of the bathroom was broken open and the Respondent was saved. Had she been successful in her attempt to commit suicide, then one can foresee the consequences and the plight of the Appellant because in that event the Appellant would have been put to immense difficulties because of the legal provisions. We feel that there was no fault on the part of the Appellant nor was there any reason for the Respondent wife to make an attempt to commit suicide. No husband would ever be comfortable with or tolerate such an act by his wife and if the wife succeeds in committing suicide, then one can imagine how a poor husband would get entangled into the clutches of law, which would virtually ruin his sanity, peace of mind, career and probably his entire life. The mere idea with regard to facing legal consequences would put a husband under tremendous stress. The thought itself is distressing. Such a mental cruelty could not have been taken lightly by the High Court. In our opinion, only this one event was sufficient for the Appellant husband to get a decree of divorce on the ground of cruelty. It is needless to add that such threats or acts constitute cruelty.cruelty.11. The Respondent wife wanted the Appellant to get separated from his family. The evidence shows that the family was virtually maintained from the income of the Appellant husband. It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagrethe instant case, upon appreciation of the evidence, the trial Court came to the conclusion that merely for monetary considerations, the Respondent wife wanted to get her husband separated from his family. The averment of the Respondent was to the effect that the income of the Appellant was also spent for maintaining his family. The said grievance of the Respondent is absolutelythe opinion of the High Court, the wife had a legitimate expectation to see that the income of her husband is used for her and not for the family members of the Respondent husband. We do not see any reason to justify the said view of the High Court. As stated hereinabove, in a Hindu society, it is a pious obligation of the son to maintain theWith regard to the allegations about anaffair with maid named Kamla, theof the evidence by the High Court does not appear to be correct. There is sufficient evidence to the effect that there was no maid named Kamla working at the residence of the Appellant. Some averment with regard to some relative has been relied upon by the High Court to come to a conclusion that there was a lady named Kamla but the High Court has ignored the fact that the Respondent wife had leveled allegations with regard to anaffair of the Appellant with the maid and not with someone else. Even if there was some relative named Kamla, who might have visited the Appellant, there is nothing to substantiate the allegations levelled by the Respondent with regard to anaffair. True, it is very difficult to establish such allegations but at the same time, it is equally true that to suffer an allegation pertaining tocharacter of having anaffair is quite torturous for any person – be it a husband or a wife. We have carefully gone through the evidence but we could not find any reliable evidence to show that the Appellant had anaffair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the Appellant with the maid named by the Respondent. We consider levelling of absolutely false allegations and that too, with regard to anlife to be quite serious and that can surely be a cause for metal cruelty.13. This Court, in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003 (6) SCC 334 has held asThe question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section13(1)(ia) of the Act.The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way ofsatisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.Applying the said ratio to the facts of this case, we are inclined to hold that the unsubstantiated allegations levelled by the Respondent wife and the threats and attempt to commit suicide by her amounted to mental cruelty and therefore, the marriage deserves to be dissolved by a decree of divorce on the ground stated in Section13(1)(ia) of the Act.Taking an overall view of the entire evidence and the judgment delivered by the trial Court, we firmly believe that there was no need to take a different view than the one taken by the trial Court. The behaviour of the Respondent wife appears to be terrifying and horrible. One would find it difficult to live with such a person with tranquility and peace of mind. Such torture would adversely affect the life of the husband. It is also not in dispute that the Respondent wife had left the matrimonial house on 12th July, 1995 i.e. more than 20 years back. Though not on record, the learned counsel submitted that till today, the Respondent wife is not staying with the Appellant. The daughter of the Appellant and Respondent has also grown up and according to the learned counsel, she is working in an IT company. We have no reason to disbelieve the aforestated facts because with the passage of time, the daughter must have grown up and the separation of the Appellant and the wife must have also become normal for her and therefore, at this juncture it would not be proper to bring them together, especially when the Appellant husband was treated so cruelly by the Respondent wife. | 1 | 3,102 | 1,637 | ### Instruction:
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the said view of the High Court. As stated hereinabove, in a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the Respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the Respondent wife to constrain the Appellant to be separated from the family would be torturous for the husband and in our opinion, the trial Court was right when it came to the conclusion that this constitutes an act of ‘cruelty’. 12. With regard to the allegations about an extra-marital affair with maid named Kamla, the re-appreciation of the evidence by the High Court does not appear to be correct. There is sufficient evidence to the effect that there was no maid named Kamla working at the residence of the Appellant. Some averment with regard to some relative has been relied upon by the High Court to come to a conclusion that there was a lady named Kamla but the High Court has ignored the fact that the Respondent wife had leveled allegations with regard to an extra-marital affair of the Appellant with the maid and not with someone else. Even if there was some relative named Kamla, who might have visited the Appellant, there is nothing to substantiate the allegations levelled by the Respondent with regard to an extra-marital affair. True, it is very difficult to establish such allegations but at the same time, it is equally true that to suffer an allegation pertaining to one’s character of having an extra-marital affair is quite torturous for any person – be it a husband or a wife. We have carefully gone through the evidence but we could not find any reliable evidence to show that the Appellant had an extra-marital affair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the Appellant with the maid named by the Respondent. We consider levelling of absolutely false allegations and that too, with regard to an extra-marital life to be quite serious and that can surely be a cause for metal cruelty.13. This Court, in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003 (6) SCC 334 has held as under:- “7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.” 14. Applying the said ratio to the facts of this case, we are inclined to hold that the unsubstantiated allegations levelled by the Respondent wife and the threats and attempt to commit suicide by her amounted to mental cruelty and therefore, the marriage deserves to be dissolved by a decree of divorce on the ground stated in Section 13(1)(ia) of the Act. 15. Taking an overall view of the entire evidence and the judgment delivered by the trial Court, we firmly believe that there was no need to take a different view than the one taken by the trial Court. The behaviour of the Respondent wife appears to be terrifying and horrible. One would find it difficult to live with such a person with tranquility and peace of mind. Such torture would adversely affect the life of the husband. It is also not in dispute that the Respondent wife had left the matrimonial house on 12th July, 1995 i.e. more than 20 years back. Though not on record, the learned counsel submitted that till today, the Respondent wife is not staying with the Appellant. The daughter of the Appellant and Respondent has also grown up and according to the learned counsel, she is working in an IT company. We have no reason to disbelieve the aforestated facts because with the passage of time, the daughter must have grown up and the separation of the Appellant and the wife must have also become normal for her and therefore, at this juncture it would not be proper to bring them together, especially when the Appellant husband was treated so cruelly by the Respondent wife.
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when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagrethe instant case, upon appreciation of the evidence, the trial Court came to the conclusion that merely for monetary considerations, the Respondent wife wanted to get her husband separated from his family. The averment of the Respondent was to the effect that the income of the Appellant was also spent for maintaining his family. The said grievance of the Respondent is absolutelythe opinion of the High Court, the wife had a legitimate expectation to see that the income of her husband is used for her and not for the family members of the Respondent husband. We do not see any reason to justify the said view of the High Court. As stated hereinabove, in a Hindu society, it is a pious obligation of the son to maintain theWith regard to the allegations about anaffair with maid named Kamla, theof the evidence by the High Court does not appear to be correct. There is sufficient evidence to the effect that there was no maid named Kamla working at the residence of the Appellant. Some averment with regard to some relative has been relied upon by the High Court to come to a conclusion that there was a lady named Kamla but the High Court has ignored the fact that the Respondent wife had leveled allegations with regard to anaffair of the Appellant with the maid and not with someone else. Even if there was some relative named Kamla, who might have visited the Appellant, there is nothing to substantiate the allegations levelled by the Respondent with regard to anaffair. True, it is very difficult to establish such allegations but at the same time, it is equally true that to suffer an allegation pertaining tocharacter of having anaffair is quite torturous for any person – be it a husband or a wife. We have carefully gone through the evidence but we could not find any reliable evidence to show that the Appellant had anaffair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the Appellant with the maid named by the Respondent. We consider levelling of absolutely false allegations and that too, with regard to anlife to be quite serious and that can surely be a cause for metal cruelty.13. This Court, in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003 (6) SCC 334 has held asThe question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section13(1)(ia) of the Act.The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way ofsatisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.Applying the said ratio to the facts of this case, we are inclined to hold that the unsubstantiated allegations levelled by the Respondent wife and the threats and attempt to commit suicide by her amounted to mental cruelty and therefore, the marriage deserves to be dissolved by a decree of divorce on the ground stated in Section13(1)(ia) of the Act.Taking an overall view of the entire evidence and the judgment delivered by the trial Court, we firmly believe that there was no need to take a different view than the one taken by the trial Court. The behaviour of the Respondent wife appears to be terrifying and horrible. One would find it difficult to live with such a person with tranquility and peace of mind. Such torture would adversely affect the life of the husband. It is also not in dispute that the Respondent wife had left the matrimonial house on 12th July, 1995 i.e. more than 20 years back. Though not on record, the learned counsel submitted that till today, the Respondent wife is not staying with the Appellant. The daughter of the Appellant and Respondent has also grown up and according to the learned counsel, she is working in an IT company. We have no reason to disbelieve the aforestated facts because with the passage of time, the daughter must have grown up and the separation of the Appellant and the wife must have also become normal for her and therefore, at this juncture it would not be proper to bring them together, especially when the Appellant husband was treated so cruelly by the Respondent wife.
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State Of Uttar Pradesh Vs. Dr. Vijay Anand Maharaj | 245 is, therefore, subject to Art 226 of the Constitution. It follows that no law made by the Legislature of a State can be in derogation of the powers of the High Court under Art. 226 of the Constitution. It is well settled that Art. 226 confers a discretionary power on the High Courts to make or issue appropriate orders and writs for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. While Art. 226 confers a discretionary power on the High Court, the second part of S. -11 of the Act enjoins on the High Court to make an order in a particular way. We should not give such a construction to the section as would bring it into conflict with Art. 226 of the Constitution and which would have the effect of invalidating it to that extent. On the other hand, the construction adopted by us would be consistent with the second part of the section, for, if the first part is confined only to an order made by any court or authority, other than the High Court in exercise of its jurisdiction under Art. 226 of the Constitution, both the parts fall in a piece, and we would not only be giving a natural meaning to the express words used in the section but we would also be saving the section from the vice of constitutional invalidity.11. Learned counsel for the appellants seeks to get over this obvious difficulty by contending that the word "shall" may be treated as "may" so that the discretion of the High Court under Art. 226 may be maintained. Alternatively, he contends that the second part of the section comprises two parts - the first empowers an aggrieved party only to file an application, and the second imposes a statutory duty, and that the first may conveniently be severed from the second and its validity to that extent sustained. The first argument is contrary to the express words used and the intention of the Legislature. If we read "shall" as "may" the same discretion will have to be given even to authorities and courts other than the High Court, with the result the purpose of the section would be defeated. On the other hand, if the expression "shall" is given its natural meaning the section carries out the intention of the Legislature, viz., the mandatory injunction imposed on courts and authorities to restore the assessment declared invalid. The decisions cited by the learned counsel in support of his construction are not of any help, for they were based upon the construction of the relevant provisions under consideration in those cases. The second argument, if rewriting the section. While the dominant intention of the Legislature is to issue a mandatory injunction on the courts or authorities to review their orders on a suitable application made to them, we would be deleting it and thus defeating the object of the Legislature. For the foregoing reasons, we have no hesitation in holding that, on a plain reading of the clear words used in the section, it does not apply to an order made by the High Court under Art. 226 of the Constitution.12. Lastly it is contended that even if S. 11 does not apply, we should treat the application filed by the appellants before the High Court as one made under Order 47 of the Code of Civil Procedure. There are many objections for allowing the appellants to do so at this very late stage of the proceedings. The application was filed only under S. 11 of the Act and no attempt was made either before Mehrotra, J., or before the division Bench of the High Court to ask for an amendment or to sustain the petition under Order 47 of the Code of Civil Procedure; nor did the appellants raise this plea in the petition filed for special leave or even in the statement of case as originally filed by them. After the case was argued for sometime on an observation casually made by the Court, time was taken and for the first time this plea was taken in the additional statement of case filed by the appellants. This is, therefore, a highly belated attempt to convert the application filed on one basis into that on another. Further, the plea, if allowed, is not so innocuous or smooth sailing as it appears to be, but is brimming with many controversial questions. It raises the following questions: (1) whether the application treated as one made under Order 47 of the Code of Civil Procedure was within time;(2) if it was out of time, could the delay be excused without the appellants filing an application for excusing it and giving valid reasons for the same; (3) whether an order made by the High Court in exercise of its powers under Art. 226 of the Constitution could be reviewed under O. 47 of the Code of Civil Procedure, and, if not, under S. 151 of the said Code; (4) whether the amendment of an Act with retrospective effect could be treated as an error on the face of the record or as a sufficient cause within the meaning of Order 47 of the Code of Civil Procedure for reviewing the final orders and decrees made by courts on the basis of the law obtaining at the time the said orders or decrees were made; and (5) if the order of Mehrotra, J., was one made under Order 47 of the Code of Civil Procedure, would an appeal lie to a division Bench of the High Court under Order 43 of the Code, We do not propose to express any opinion on the aforesaid questions. It would be enough to say that we are not justified to allow the appellants to convert their petition to one made under Order 47 of the Code of Civil Procedure at this very late stage, in view of the foregoing reasons. | 1[ds]The foregoing brief analysis of the judgments shows that the definition given by the Madras High Court is wider than that given by the Calcutta and Nagpur High Courts. It is not necessary in this case to attempt to reconcile the said decisions or to give a definition of our own, for on the facts of the present case the order of Mehrotra, J., would be a judgment within the meaning of the narrower definition of thatfor the amending Act, the order of the High Court admittedly would have become final; but, because of the amending Act there was a controversy whether the binding decision could be reopened and the rights of the parties decided in accordance with the amending Act. The decision of Mehrotra, J., dismissing the application was certainly a decision denying the right of the appellants alleged to have been conferred under the amending Act. We, therefore, hold that the order of Mehrotra, J., dismissing the application, filed for review of his earlier order on the ground that S. 11 of the Act did not confer any such right on the appellants was a "judgment within the meaning of cl. 10 of the Letters Patent as well as Ch. VIII R. 5 of the Rules of Court. If so, we must hold that the division Bench of the High Court went wrong in holding that no appeal lay against the order of Mehrotra,accept this argument is to rewrite the section. While the section says that the order sought to be reviewed is that made in a proceeding under the Principal Act, the argument seeks to remove the qualification attached to the proceedings and add the same to the assessment. The alternative argument, namely, that without changing the position of the words as they stand in the section, the expression "on the basis of " may be substituted for the expression "under" does not also yield the results expected by the learned counsel. It cannot be held with any justification, without doing violence to the language used, that a proceeding under Art. 226 of the Constitution as either one under the Principal Act or on the basis of the Principal Act, for it is a proceeding under Art. 226 of the Constitution to quash the order on the ground that it was made in violation of the Act. An attempt is then made to contend that a proceeding under Art. 226 of the Constitution is a continuation of the proceeding before the Additional Collector and, therefore, the said proceedings are proceedings under the Act.Article 226 confers a power on a High Court to issue the writs, orders, or directions mentioned therein for the, enforcement of any of the rights conferred by Part III or for any other purpose. This is neither an appellate nor a revisional jurisdiction of the High Court. Though the power is not confined to the prerogative writs issued by the English Courts, it is modeled on the said writs mainly to enable the High Courts to keep the subordinate tribunals within bounds. Before the Constitution, the chartered High Courts, that is, the High Courts at Bombay, Calcutta and Madras, were issuing prerogative writs similar to those issued by the Kings Bench Division, subject to the same limitations imposed on the said writs.There is another insurmountable difficulty in accepting the construction suggested by learned counsel. Under the second part of the section a party to the earlier proceedings may within the prescribed time apply to the court or authority for a review of the proceedings in the light of the provisions of the Act, and the court or authority to which the application is made shall review the proceedings accordingly, and make such order, if any, varying or revising the order previously made as maybe necessary to give effect to the Principal Act, as amended by S. 2 of the Act. Should it be held that this section applies to an order made by a High Court under Art. 226 of the Constitution, the statutory mandatory injunction issued under the second part of the section to the High Court to make an order in a particular way would be constitutionally245 is, therefore, subject to Art 226 of the Constitution. It follows that no law made by the Legislature of a State can be in derogation of the powers of the High Court under Art. 226 of the Constitution. It is well settled that Art. 226 confers a discretionary power on the High Courts to make or issue appropriate orders and writs for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. While Art. 226 confers a discretionary power on the High Court, the second part of S. -11 of the Act enjoins on the High Court to make an order in a particular way. We should not give such a construction to the section as would bring it into conflict with Art. 226 of the Constitution and which would have the effect of invalidating it to that extent. On the other hand, the construction adopted by us would be consistent with the second part of the section, for, if the first part is confined only to an order made by any court or authority, other than the High Court in exercise of its jurisdiction under Art. 226 of the Constitution, both the parts fall in a piece, and we would not only be giving a natural meaning to the express words used in the section but we would also be saving the section from the vice of constitutionalfirst argument is contrary to the express words used and the intention of the Legislature. If we read "shall" as "may" the same discretion will have to be given even to authorities and courts other than the High Court, with the result the purpose of the section would be defeated. On the other hand, if the expression "shall" is given its natural meaning the section carries out the intention of the Legislature, viz., the mandatory injunction imposed on courts and authorities to restore the assessment declared invalid. The decisions cited by the learned counsel in support of his construction are not of any help, for they were based upon the construction of the relevant provisions under consideration in those cases. The second argument, if rewriting the section. While the dominant intention of the Legislature is to issue a mandatory injunction on the courts or authorities to review their orders on a suitable application made to them, we would be deleting it and thus defeating the object of the Legislature. For the foregoing reasons, we have no hesitation in holding that, on a plain reading of the clear words used in the section, it does not apply to an order made by the High Court under Art. 226 of the Constitution.12. Lastly it is contended that even if S. 11 does not apply, we should treat the application filed by the appellants before the High Court as one made under Order 47 of theCode of Civil Procedure. There are many objections for allowing the appellants to do so at this very late stage of the proceedings. The application was filed only under S. 11 of the Act and no attempt was made either before Mehrotra, J., or before the division Bench of the High Court to ask for an amendment or to sustain the petition under Order 47 of theCode of Civil Procedure; nor did the appellants raise this plea in the petition filed for special leave or even in the statement of case as originally filed by them. After the case was argued for sometime on an observation casually made by the Court, time was taken and for the first time this plea was taken in the additional statement of case filed by the appellants. This is, therefore, a highly belated attempt to convert the application filed on one basis into that on another. Further, the plea, if allowed, is not so innocuous or smooth sailing as it appears to be, but is brimming with many controversial questions. It raises the following questions: (1) whether the application treated as one made under Order 47 of theCode of Civil Procedure was within time;(2) if it was out of time, could the delay be excused without the appellants filing an application for excusing it and giving valid reasons for the same; (3) whether an order made by the High Court in exercise of its powers under Art. 226 of the Constitution could be reviewed under O. 47 of theCode of Civil Procedure, and, if not, under S. 151 of the said Code; (4) whether the amendment of an Act with retrospective effect could be treated as an error on the face of the record or as a sufficient cause within the meaning of Order 47 of theCode of Civil Procedure for reviewing the final orders and decrees made by courts on the basis of the law obtaining at the time the said orders or decrees were made; and (5) if the order of Mehrotra, J., was one made under Order 47 of theCode of Civil Procedure, would an appeal lie to a division Bench of the High Court under Order 43 of the Code, We do not propose to express any opinion on the aforesaid questions. It would be enough to say that we are not justified to allow the appellants to convert their petition to one made under Order 47 of theCode of Civil Procedure at this very late stage, in view of the foregoing reasons. | 1 | 6,088 | 1,755 | ### Instruction:
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245 is, therefore, subject to Art 226 of the Constitution. It follows that no law made by the Legislature of a State can be in derogation of the powers of the High Court under Art. 226 of the Constitution. It is well settled that Art. 226 confers a discretionary power on the High Courts to make or issue appropriate orders and writs for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. While Art. 226 confers a discretionary power on the High Court, the second part of S. -11 of the Act enjoins on the High Court to make an order in a particular way. We should not give such a construction to the section as would bring it into conflict with Art. 226 of the Constitution and which would have the effect of invalidating it to that extent. On the other hand, the construction adopted by us would be consistent with the second part of the section, for, if the first part is confined only to an order made by any court or authority, other than the High Court in exercise of its jurisdiction under Art. 226 of the Constitution, both the parts fall in a piece, and we would not only be giving a natural meaning to the express words used in the section but we would also be saving the section from the vice of constitutional invalidity.11. Learned counsel for the appellants seeks to get over this obvious difficulty by contending that the word "shall" may be treated as "may" so that the discretion of the High Court under Art. 226 may be maintained. Alternatively, he contends that the second part of the section comprises two parts - the first empowers an aggrieved party only to file an application, and the second imposes a statutory duty, and that the first may conveniently be severed from the second and its validity to that extent sustained. The first argument is contrary to the express words used and the intention of the Legislature. If we read "shall" as "may" the same discretion will have to be given even to authorities and courts other than the High Court, with the result the purpose of the section would be defeated. On the other hand, if the expression "shall" is given its natural meaning the section carries out the intention of the Legislature, viz., the mandatory injunction imposed on courts and authorities to restore the assessment declared invalid. The decisions cited by the learned counsel in support of his construction are not of any help, for they were based upon the construction of the relevant provisions under consideration in those cases. The second argument, if rewriting the section. While the dominant intention of the Legislature is to issue a mandatory injunction on the courts or authorities to review their orders on a suitable application made to them, we would be deleting it and thus defeating the object of the Legislature. For the foregoing reasons, we have no hesitation in holding that, on a plain reading of the clear words used in the section, it does not apply to an order made by the High Court under Art. 226 of the Constitution.12. Lastly it is contended that even if S. 11 does not apply, we should treat the application filed by the appellants before the High Court as one made under Order 47 of the Code of Civil Procedure. There are many objections for allowing the appellants to do so at this very late stage of the proceedings. The application was filed only under S. 11 of the Act and no attempt was made either before Mehrotra, J., or before the division Bench of the High Court to ask for an amendment or to sustain the petition under Order 47 of the Code of Civil Procedure; nor did the appellants raise this plea in the petition filed for special leave or even in the statement of case as originally filed by them. After the case was argued for sometime on an observation casually made by the Court, time was taken and for the first time this plea was taken in the additional statement of case filed by the appellants. This is, therefore, a highly belated attempt to convert the application filed on one basis into that on another. Further, the plea, if allowed, is not so innocuous or smooth sailing as it appears to be, but is brimming with many controversial questions. It raises the following questions: (1) whether the application treated as one made under Order 47 of the Code of Civil Procedure was within time;(2) if it was out of time, could the delay be excused without the appellants filing an application for excusing it and giving valid reasons for the same; (3) whether an order made by the High Court in exercise of its powers under Art. 226 of the Constitution could be reviewed under O. 47 of the Code of Civil Procedure, and, if not, under S. 151 of the said Code; (4) whether the amendment of an Act with retrospective effect could be treated as an error on the face of the record or as a sufficient cause within the meaning of Order 47 of the Code of Civil Procedure for reviewing the final orders and decrees made by courts on the basis of the law obtaining at the time the said orders or decrees were made; and (5) if the order of Mehrotra, J., was one made under Order 47 of the Code of Civil Procedure, would an appeal lie to a division Bench of the High Court under Order 43 of the Code, We do not propose to express any opinion on the aforesaid questions. It would be enough to say that we are not justified to allow the appellants to convert their petition to one made under Order 47 of the Code of Civil Procedure at this very late stage, in view of the foregoing reasons.
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the Act, and the court or authority to which the application is made shall review the proceedings accordingly, and make such order, if any, varying or revising the order previously made as maybe necessary to give effect to the Principal Act, as amended by S. 2 of the Act. Should it be held that this section applies to an order made by a High Court under Art. 226 of the Constitution, the statutory mandatory injunction issued under the second part of the section to the High Court to make an order in a particular way would be constitutionally245 is, therefore, subject to Art 226 of the Constitution. It follows that no law made by the Legislature of a State can be in derogation of the powers of the High Court under Art. 226 of the Constitution. It is well settled that Art. 226 confers a discretionary power on the High Courts to make or issue appropriate orders and writs for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. While Art. 226 confers a discretionary power on the High Court, the second part of S. -11 of the Act enjoins on the High Court to make an order in a particular way. We should not give such a construction to the section as would bring it into conflict with Art. 226 of the Constitution and which would have the effect of invalidating it to that extent. On the other hand, the construction adopted by us would be consistent with the second part of the section, for, if the first part is confined only to an order made by any court or authority, other than the High Court in exercise of its jurisdiction under Art. 226 of the Constitution, both the parts fall in a piece, and we would not only be giving a natural meaning to the express words used in the section but we would also be saving the section from the vice of constitutionalfirst argument is contrary to the express words used and the intention of the Legislature. If we read "shall" as "may" the same discretion will have to be given even to authorities and courts other than the High Court, with the result the purpose of the section would be defeated. On the other hand, if the expression "shall" is given its natural meaning the section carries out the intention of the Legislature, viz., the mandatory injunction imposed on courts and authorities to restore the assessment declared invalid. The decisions cited by the learned counsel in support of his construction are not of any help, for they were based upon the construction of the relevant provisions under consideration in those cases. The second argument, if rewriting the section. While the dominant intention of the Legislature is to issue a mandatory injunction on the courts or authorities to review their orders on a suitable application made to them, we would be deleting it and thus defeating the object of the Legislature. For the foregoing reasons, we have no hesitation in holding that, on a plain reading of the clear words used in the section, it does not apply to an order made by the High Court under Art. 226 of the Constitution.12. Lastly it is contended that even if S. 11 does not apply, we should treat the application filed by the appellants before the High Court as one made under Order 47 of theCode of Civil Procedure. There are many objections for allowing the appellants to do so at this very late stage of the proceedings. The application was filed only under S. 11 of the Act and no attempt was made either before Mehrotra, J., or before the division Bench of the High Court to ask for an amendment or to sustain the petition under Order 47 of theCode of Civil Procedure; nor did the appellants raise this plea in the petition filed for special leave or even in the statement of case as originally filed by them. After the case was argued for sometime on an observation casually made by the Court, time was taken and for the first time this plea was taken in the additional statement of case filed by the appellants. This is, therefore, a highly belated attempt to convert the application filed on one basis into that on another. Further, the plea, if allowed, is not so innocuous or smooth sailing as it appears to be, but is brimming with many controversial questions. It raises the following questions: (1) whether the application treated as one made under Order 47 of theCode of Civil Procedure was within time;(2) if it was out of time, could the delay be excused without the appellants filing an application for excusing it and giving valid reasons for the same; (3) whether an order made by the High Court in exercise of its powers under Art. 226 of the Constitution could be reviewed under O. 47 of theCode of Civil Procedure, and, if not, under S. 151 of the said Code; (4) whether the amendment of an Act with retrospective effect could be treated as an error on the face of the record or as a sufficient cause within the meaning of Order 47 of theCode of Civil Procedure for reviewing the final orders and decrees made by courts on the basis of the law obtaining at the time the said orders or decrees were made; and (5) if the order of Mehrotra, J., was one made under Order 47 of theCode of Civil Procedure, would an appeal lie to a division Bench of the High Court under Order 43 of the Code, We do not propose to express any opinion on the aforesaid questions. It would be enough to say that we are not justified to allow the appellants to convert their petition to one made under Order 47 of theCode of Civil Procedure at this very late stage, in view of the foregoing reasons.
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Director General of Foreign Trade & Another Vs. M/s. Kanak Exports & Another | public interest to ensure that their misuse is not allowed. To recapitulate, the inquiry conducted by the Government revealed that there were exports of rough diamonds even though India is not a rough diamond producing country. These exports stopped the moment DFCE benefits in respect of rough diamond were disallowed. It was also found that cut and polished diamonds were imported, stored inside a bond and re-exported with artificial value addition. Many of these exporters exported to their own counterparts in Dubai and Sharjah and when this consignments reached those destinations, they were declared as scrap to avoid import duty. Following statistics given by the Government in respect of so-called exports by these exporters makes out startling revelations: Growth exceeding 2000% for two petitioners came from 100% export of gold coins and plain jewellery FirmTurnover 2002-03Turnover 2003-04% GrowthShare of Gold coins and Plain jewellery in total exports Rajesh Exports, Bangalore11223722017100 Kanak Exports, Mumbai2710703816100 For M/s Adani Exports, over 80% of export turnover came for diamonds and Supplies from status holders not meeting the minimum turnover and growth criteria Adani Exports Limited, AhmedabadExports (crores) Total exports for the year 2003-04 of which4657 1Rough, and re-exported polished diamonds2475 2Supplies taken from status holders not meeting the minimum turnover and growth criteria1316 Share of the above 2 categories in the total exports81.4% Export surge of 1135% for M/s. Adani Exports came in 2003-04 while for the past six years their exports were declining. It is pertinent to note that except the above mentioned persons no other exporter in the country has challenged the said Notifications or the Public Notices dated January 28, 2004 and April 21, 2004 respectively. It was also brought to the notice of the DGFT that some of the exporters have procured rough diamonds from local firms and exported the same by a 5% loss as they were confident of covering up the loss by receiving the 10% DFCE incentives offered by the Government. All these aspects are discussed in much details earlier and need not be repeated. We would like to recapitulate the following stark features/practices which have surfaced on record as a result of investigation: 113. Mr. Adhyaru has successfully demonstrated that the following methods were found to be resorted to by these exporters to inflate their export turnovers:- (i) Export of rough diamonds even though India is not a rough diamond producing country. These exports stopped the moment DFCE benefits were disallowed. Export of such rough diamonds earlier has never been part of the normal commercial operations and has taken place just to take advantage of the Scheme. According to Gems and Jewellery Export Promotion Council, "India is not a rough exporting country. Rough diamonds which are unsustainable for cutting in India are re-exported." Such exports stopped the moment benefit was explicitly withdrawn. (ii) In the present case also the respondent M/s Adani Exports Limited had stopped exporting the rough diamonds the moment the Notification was issued in January, 2004 and according to Gems and Jewellery Export Promotion Council, "Party has not exported rough diamonds during January/March 2004". (iii) Cut and polished diamonds were imported, stored inside a bond and re- exported with artificial value addition. Few large firms including the petitioners exported these products to buyers directly related to them. (iv) According to reliable information the same sets of diamonds were rotating and these never entered the Indian domestic territory or to the end consumers abroad. The value of such exports in the past two years may exceed L15,000 crores. Government has detailed report of the modus operandi of the firms involved. (v) Most notorious misuse of the Scheme was carried out by few firms who exported Gold medallion and studded jewellery. Key firms included M/s. Kanak Exports, M/s. Rajesh Exports Ltd. and M/s. Adani Exports Ltd. (vi) Many of these exporters exported to their own counterparts in Dubai and Sharjah. Since the jewellery attracted 5% import duty at Dubai, the consignments which were declared as jewellery in India were declared as scrap in Dubai to avoid the import duty. (vii) As it was difficult for them to achieve the value addition prescribed by the Policy through craftsmanship, they added extra gold to get the value addition. However, in this process strangely enough per unit price of the gold exported was less than per unit price of gold imported. (viii) Few exporters including petitioners have purchased exports of other firms to inflate their turnover. Contracts have been signed between the petitioners and other exporters that petitioner will provide marketing and other services and act as third party exporter. According to reports status-holders were purchasing exports made by other parties at a premium with a view to show incremental growth of 25% or more in exports without having actually achieved such growth. 114. In such a scenario, a sagacious approach with practical sense leads us to conclude that these writ petitioners/exporters had actually achieved the targets set down in the original Scheme and thereby acquired any "vested right". It was pernicious and blatant misuse of the provisions of the Scheme and periscopic viewing thereof establishes the same. Thus, the impugned decision reflected in the notifications dated April 21 and 23, 2004, did not take away any vested right of these exporters and amendments were necessitated by over-whelming public interest/ considerations to prevent the misuse of the Scheme.Therefore, we are of the opinion that even when impugned Notification issued under Section 5 could not be retrospective in nature, such retrospectivity have not deprived the writ petitioners/exporters of their right inasmuch as no right had accrued in favour of such persons under the Scheme. This Court, or for that matter the High Court in exercise of its writ jurisdiction, cannot come to the aid of such petitioners/exporters who, without making actual exports, play with the provisions of the Scheme and try to take undue advantage thereof. To this extent, direction of the Bombay High Court granting these exporters benefit of the Scheme for the past period is set aside. | 0[ds]58. The factual matrix, coupled with the arguments advanced before us by both sides, makes it clear that the issues remain the same which were canvassed before the High Courts. Even the position taken by the parties on either side is predicated on identical legal edifice. Before adverting to the analytical discussion and deciding the validity of impugned Notifications and public notice, keeping in mind the legal principles, we would like to first discuss the background in which they came to be issued. We feel that argument of the Union that these were issued in public interest has to be considered first as that would provide the raison detre behind such a move on the part of the Government.As a matter of fact, immediately after the introduction of the scheme, it was found that there was unprecedented sharp rise in the export in Gem and Jewellery articles. It raised certain suspicion in the mind of the authorities as to whether these were genuine exports. The matter was investigated and on the basis of intelligence gathered by the Central Government, it was learnt that there was rampant misuse of the scheme by certain status holders.With regard to the import of capital goods under the Duty Free Credit Entitlement Scheme the matter was deliberated upon and it was decided not to allow all capital goods other than the professional equipment and office equipment mentioned in paragraph 3.8 of EXIM Policy against DFCE to service providers.Based on these Reports an exercise was initiated for carrying out amendments in the Handbook of Procedure (Volume–I) with series of meetings and Open Houses with the Apex Chambers of Commerce and Industry, Export Promotion Councils, Trade Associations, Commodity Boards. Based on these interfaces the lists of suggestions were compiled and the same discussed threadbare during internalas case of writ petitioner Kanak Exports is concerned, the High Court noticed that in the yearthe export of this petitioner was hardly L27 crores which took a big leap and quantum jump in the yearwhen the exports of this petitioner catapulted to more than L1000 crores. The national export growth rate was only 22% over the last year whereas exports of Kanak Exports grew at more than 3800%. According to the High Court, it was merely a paper growth and not incremental growth within the meaning of the scheme and the scheme was not to encourage the status holder/export house to pool the exports made by other exporters for the purpose of showing incrementaldoubt, such EOU/EHTP/STP schemes are allowed to export goods manufactured by them through a merchant exporter/status holder recognised under the EXIM Policy. Likewise, SEZ is also authorised to export its goods through a status holder. The permission to make exports through status holder is one thing. Taking into account these exports by the status holders for the purpose of calculating the value of exports for availing the benefits of the entitlement given under the scheme is altogether different thing. The counsel for the petitioners could not refute or deny that such SEZ/EOU//EHTP/STP are getting the benefit of the exports made by them in the form of facilities for import without payment of duty on various types of goods including capital goods required by them for their activities. Therefore, exactly the same benefit which is sought to be given to the status holders for achieving incremental growth as provided in the scheme was already conferred upon. Obviously, purpose of the scheme was not to give double benefit for same exports. In fact, if that is allowed, it would be a clear case of misuse of the scheme inasmuch as for the same export turnover units operating under SEZ/EOU/EHTP/STP would get the certain incentives and the status holders also manage to extract the same benefits exploiting the scheme by exporting the goods manufactured by these STZ/EOU etc. On considering the issue in this hue, we agree with the opinion of the High Court that such a(ii) was merely clarificatory inregard to the nature of this(v) and when we keep in mind the fact that the twoif they carry out the exports and made the target as per the Scheme were entitled to the benefit of the Scheme, we agree with the High Courts that even insertion of these clauses is clarificatory in nature inasmuch as it only states that the supply made by oneder will not be counted. This clarification was issued, as rightly pointed out by the High Courts, to ensure that two statusholders belonging to the same group may not start pooling and try to take undue advantage.85. Insofar as(vii) of Note 1 is concerned, it stipulates that supplies made or export performance affected by a non status holder to a status holder will not be taken into account for the purpose of calculating the value of exports, if the applicant as well as the non status holder have less than 25% incremental growth over their respective previous years. This appears to be clearly clarificatory in nature inasmuch as the purpose of the Scheme was to give benefit to those who are able to achieve incremental growth of 25%. Thus, each such status holder has to independently attain the growth target stipulated in the scheme to avail the benefit. Obviously, if it has not been able to achieve 25% incremental growth, such export house cannot take the advantage by including exports of a non status holders to show that it has achieved 25% incremental growth.From the aforesaid, it is clear that Section 5 provides that the Central Government may, from time to time, formulate and announce, the EXIM Policy. This has to be done by issuing/announcing this Policy by way of notification in the Official Gazette. The Central Government also has the power to amend the Policy so announced by adopting the same procedure i.e. by issuing notification in the Official Gazette. It is not in dispute that EXIM Policy in question was issued by notification in exercise of powers conferred under Section 5 of the Act. This Policy, thus, is infested with statutory flavour.91. For the purpose of carrying out the objectives of the Act which includes implementation of the Policy, Central Government is authorised to appoint DGFT as per Section 6 of the Act. Main functions of the DGFT are advising the Central Government in formulation of the Policy and he is also responsible for carrying out the said Policy.(3) of Section 6 provides that Central Government may delegate its power exercisable under the Act. However, powers under Sections 3, 5, 15, 16 and 19 are specifically excluded which means these powers cannot be delegated. Thus, power to announce the Policy and to amend the same remains with the Central Government. Likewise, power to make rules under Section 19 which vests with the Central Government, cannot be delegated.From the aforesaid explanation, we take it that the Public Notice dated January 28, 2004 was published in the Gazette of India in accordance with the requirement ofis crystal clear that the Public Notice alters the provisions of EXIM Policy. It would, therefore, amount to amending the EXIM Policy, whether clarificatory or otherwise. There may be a valid justification and rational for exclusion of four items contained therein, as pleaded by the Union. However, it had to be done in accordance with law. When the DGFT had no power in this behalf, he could not have excluded such items from the purview of EXIM Policy by means of Public Notice. The power of DGFT is only to be exercised for procedural purposes and both the High Courts have rightly remarked that para 3.2.6 inserted by public notice goes beyond the procedural conditions.95. In fact, the Government itself realised the same, namely, the DGFT had no such power. It is for this reason that what was sought to be achieved by the said Public Notice, was formalised by the Central Government by issuing Notifications dated April 21 and 23, 2004 in exercise of powers conferred on the Central Government by Section 5 of the Act and the same four items were excluded.96. Therefore, we hold that public notice dated January 28, 2004 issued by DGFT, so far it excludes the aforesaid four items, is ultra vires.It is no doubt that the Central Government has the power to amend the Policy and, therefore, it could do so vide Notifications dated April 21 and 23, 2004. The only question is as to whether these Notifications are bad in law on the ground that they seek to applyis also trite law that such exemptions, concessions or incentives can be withdrawn any time. All these are matters which are in the domain of policy decisions of the Government. When there is withdrawal of such incentive and it is also shown that the same was done in public interest, the Court would not tinker with these policy decisions. This is so laid down by catena of judgments of this Court and is now treated as established and well grounded principle of law. In such circumstances, even the Doctrine of Promissory Estoppel cannot beis well settled that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call trial and error method and therefore its validity cannot be tested on any rigid prior considerations or on the application of any. So far so good. The effect of the aforesaid discussion would be that if the Status Holders had achieved 25% incremental growth in exports, they acquired the right to receive the benefit under the Scheme, which could not be takenrecapitulate, the inquiry conducted by the Government revealed that there were exports of rough diamonds even though India is not a rough diamond producing country. These exports stopped the moment DFCE benefits in respect of rough diamond were disallowed. It was also found that cut and polished diamonds were imported, stored inside a bond andwith artificial value addition. Many of these exporters exported to their own counterparts in Dubai and Sharjah and when this consignments reached those destinations, they were declared as scrap to avoid importIn such a scenario, a sagacious approach with practical sense leads us to conclude that these writ petitioners/exporters had actually achieved the targets set down in the original Scheme and thereby acquired any "vested right". It was pernicious and blatant misuse of the provisions of the Scheme and periscopic viewing thereof establishes the same. Thus, the impugned decision reflected in the notifications dated April 21 and 23, 2004, did not take away any vested right of these exporters and amendments were necessitated bypublic interest/ considerations to prevent the misuse of the Scheme.Therefore, we are of the opinion that even when impugned Notification issued under Section 5 could not be retrospective in nature, such retrospectivity have not deprived the writ petitioners/exporters of their right inasmuch as no right had accrued in favour of such persons under the Scheme. This Court, or for that matter the High Court in exercise of its writ jurisdiction, cannot come to the aid of such petitioners/exporters who, without making actual exports, play with the provisions of the Scheme and try to take undue advantage thereof. To this extent, direction of the Bombay High Court granting these exporters benefit of the Scheme for the past period is set aside.As is clear from the aforesaid provisions of TPS, the Central Government had announced an export incentive scheme under which star export houses were entitled to a duty free entitlement certificate at varying rates, depending on the quantum of incremental growth in exports achieved by them over their exports in the previous year. In terms of para 3.7.6, the Central Government issued Notification No. 32/2005 dated April 08, 2005 whereby it notified the duty credit of TPS which could be availed of in the course of import of any inputs, capital goods, including spares, office equipment, professional equipment and office furniture, provided the same is freely importable under the ITC (HS) classification of export and import items for their own use and that of supporting manufacturers, as declared in the application 17D. The exporters in these cases claim that relying on the aforesaid Scheme, they ensured that they achieved incrementalper that, if the incremental growth was 20% and above to below 25%, duty credit entitlement provided was 5%. In case of incremental growth of 25% or above, but below 100%, the duty credit growth entitlement was to the tune of 10%. On incremental growth of 100% and above, duty credit entitlement stipulated was 15% (of 100%). However, by way of amendment, the minimum percentage incremental growth was specified as 20% in the FOB value of exports in the current year over the previous year and entitlement was made uniform @ 5% of the incrementalthe present case, we find that Section 5 of the Act does not give any specific power to the Central Government to make the Rules with retrospective effect. The Central Government is authorised to make Rules/Schemes under the said provision as a delegatee, which means that the EXIM Policy/Scheme framed under the said provision is by way of delegated legislation. There has to be specific power to make the amendments with retrospective effect, which are lacking in the instant case. Moreover, even if there is such a power, it cannot take away vested rights which have accrued in favour of particular persons/exporters. We have already enlisted number of judgments of this Court taking such aVide Notification No. 32/2005 dated April 08, 2005, the Central Government amended para 3.7.8 and instead of three rates of entitlement based on growth, it prescribed one single rate, i.e. 5% of the incremental growth. In replies given by the Government, no cogent or valid reason is given for this move. Interestingly, comments are made about the misuse of earlier Scheme in the EXIM Policyand the evidence that surfaced during the said investigation, particularly with respect to the alleged dubious practices adopted by some exporters who had inflated their turnover in respect of gold and diamond exports and it is mentioned that under these circumstances, for anticipating misuse, the Government came out with the aforesaid Notification. The amendment Notification is justified on the ground that in the Scheme itself it had preserved the right to change the eligibility criteria and rate of entitlement effective from the beginning of the year, in public interest. Thus, the action is justified on the ground that such a power was reserved in the TPS itself and that measure was taken to avoid misuse by unscrupulous exporters. Nowhere it is stated that there was misuse by any of these parties.Likewise, no cogent explanation is coming forward for adding four items by amending para 3.7.5 vide Notification No. 48 (RE 2005)/dated February 20, 2006. The only argument advanced at the time of hearing was that the Government felt that benefit of TPS should not be extended to the exporters of these items. That may be a policy decision and the Government is empowered to take such a decision. It may be noted that in para 3.7.5 of TPS, as was originally provided, certain items of exports were specifically mentioned, which were not to be taken into account for calculation of export performance or for computation of entitlement under the Scheme and the items now added vide Notification No. 48 (RE 2005)/20042009 dated February 20, 2006 were not mentioned therein. If the Government realised afterwards that export of these items should not have been given the benefit of TPS and extending the benefit to now excluded items was anmove, though the Central Government was free to withdraw it in respect of such items but it could do so only prospectively, but was not entitled to do so with effect from the back date, i.e. April 01, 2005, by taking away the vested right that had already accrued in favour of exporters of these items. | 0 | 33,350 | 2,903 | ### Instruction:
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public interest to ensure that their misuse is not allowed. To recapitulate, the inquiry conducted by the Government revealed that there were exports of rough diamonds even though India is not a rough diamond producing country. These exports stopped the moment DFCE benefits in respect of rough diamond were disallowed. It was also found that cut and polished diamonds were imported, stored inside a bond and re-exported with artificial value addition. Many of these exporters exported to their own counterparts in Dubai and Sharjah and when this consignments reached those destinations, they were declared as scrap to avoid import duty. Following statistics given by the Government in respect of so-called exports by these exporters makes out startling revelations: Growth exceeding 2000% for two petitioners came from 100% export of gold coins and plain jewellery FirmTurnover 2002-03Turnover 2003-04% GrowthShare of Gold coins and Plain jewellery in total exports Rajesh Exports, Bangalore11223722017100 Kanak Exports, Mumbai2710703816100 For M/s Adani Exports, over 80% of export turnover came for diamonds and Supplies from status holders not meeting the minimum turnover and growth criteria Adani Exports Limited, AhmedabadExports (crores) Total exports for the year 2003-04 of which4657 1Rough, and re-exported polished diamonds2475 2Supplies taken from status holders not meeting the minimum turnover and growth criteria1316 Share of the above 2 categories in the total exports81.4% Export surge of 1135% for M/s. Adani Exports came in 2003-04 while for the past six years their exports were declining. It is pertinent to note that except the above mentioned persons no other exporter in the country has challenged the said Notifications or the Public Notices dated January 28, 2004 and April 21, 2004 respectively. It was also brought to the notice of the DGFT that some of the exporters have procured rough diamonds from local firms and exported the same by a 5% loss as they were confident of covering up the loss by receiving the 10% DFCE incentives offered by the Government. All these aspects are discussed in much details earlier and need not be repeated. We would like to recapitulate the following stark features/practices which have surfaced on record as a result of investigation: 113. Mr. Adhyaru has successfully demonstrated that the following methods were found to be resorted to by these exporters to inflate their export turnovers:- (i) Export of rough diamonds even though India is not a rough diamond producing country. These exports stopped the moment DFCE benefits were disallowed. Export of such rough diamonds earlier has never been part of the normal commercial operations and has taken place just to take advantage of the Scheme. According to Gems and Jewellery Export Promotion Council, "India is not a rough exporting country. Rough diamonds which are unsustainable for cutting in India are re-exported." Such exports stopped the moment benefit was explicitly withdrawn. (ii) In the present case also the respondent M/s Adani Exports Limited had stopped exporting the rough diamonds the moment the Notification was issued in January, 2004 and according to Gems and Jewellery Export Promotion Council, "Party has not exported rough diamonds during January/March 2004". (iii) Cut and polished diamonds were imported, stored inside a bond and re- exported with artificial value addition. Few large firms including the petitioners exported these products to buyers directly related to them. (iv) According to reliable information the same sets of diamonds were rotating and these never entered the Indian domestic territory or to the end consumers abroad. The value of such exports in the past two years may exceed L15,000 crores. Government has detailed report of the modus operandi of the firms involved. (v) Most notorious misuse of the Scheme was carried out by few firms who exported Gold medallion and studded jewellery. Key firms included M/s. Kanak Exports, M/s. Rajesh Exports Ltd. and M/s. Adani Exports Ltd. (vi) Many of these exporters exported to their own counterparts in Dubai and Sharjah. Since the jewellery attracted 5% import duty at Dubai, the consignments which were declared as jewellery in India were declared as scrap in Dubai to avoid the import duty. (vii) As it was difficult for them to achieve the value addition prescribed by the Policy through craftsmanship, they added extra gold to get the value addition. However, in this process strangely enough per unit price of the gold exported was less than per unit price of gold imported. (viii) Few exporters including petitioners have purchased exports of other firms to inflate their turnover. Contracts have been signed between the petitioners and other exporters that petitioner will provide marketing and other services and act as third party exporter. According to reports status-holders were purchasing exports made by other parties at a premium with a view to show incremental growth of 25% or more in exports without having actually achieved such growth. 114. In such a scenario, a sagacious approach with practical sense leads us to conclude that these writ petitioners/exporters had actually achieved the targets set down in the original Scheme and thereby acquired any "vested right". It was pernicious and blatant misuse of the provisions of the Scheme and periscopic viewing thereof establishes the same. Thus, the impugned decision reflected in the notifications dated April 21 and 23, 2004, did not take away any vested right of these exporters and amendments were necessitated by over-whelming public interest/ considerations to prevent the misuse of the Scheme.Therefore, we are of the opinion that even when impugned Notification issued under Section 5 could not be retrospective in nature, such retrospectivity have not deprived the writ petitioners/exporters of their right inasmuch as no right had accrued in favour of such persons under the Scheme. This Court, or for that matter the High Court in exercise of its writ jurisdiction, cannot come to the aid of such petitioners/exporters who, without making actual exports, play with the provisions of the Scheme and try to take undue advantage thereof. To this extent, direction of the Bombay High Court granting these exporters benefit of the Scheme for the past period is set aside.
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0
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stored inside a bond andwith artificial value addition. Many of these exporters exported to their own counterparts in Dubai and Sharjah and when this consignments reached those destinations, they were declared as scrap to avoid importIn such a scenario, a sagacious approach with practical sense leads us to conclude that these writ petitioners/exporters had actually achieved the targets set down in the original Scheme and thereby acquired any "vested right". It was pernicious and blatant misuse of the provisions of the Scheme and periscopic viewing thereof establishes the same. Thus, the impugned decision reflected in the notifications dated April 21 and 23, 2004, did not take away any vested right of these exporters and amendments were necessitated bypublic interest/ considerations to prevent the misuse of the Scheme.Therefore, we are of the opinion that even when impugned Notification issued under Section 5 could not be retrospective in nature, such retrospectivity have not deprived the writ petitioners/exporters of their right inasmuch as no right had accrued in favour of such persons under the Scheme. This Court, or for that matter the High Court in exercise of its writ jurisdiction, cannot come to the aid of such petitioners/exporters who, without making actual exports, play with the provisions of the Scheme and try to take undue advantage thereof. To this extent, direction of the Bombay High Court granting these exporters benefit of the Scheme for the past period is set aside.As is clear from the aforesaid provisions of TPS, the Central Government had announced an export incentive scheme under which star export houses were entitled to a duty free entitlement certificate at varying rates, depending on the quantum of incremental growth in exports achieved by them over their exports in the previous year. In terms of para 3.7.6, the Central Government issued Notification No. 32/2005 dated April 08, 2005 whereby it notified the duty credit of TPS which could be availed of in the course of import of any inputs, capital goods, including spares, office equipment, professional equipment and office furniture, provided the same is freely importable under the ITC (HS) classification of export and import items for their own use and that of supporting manufacturers, as declared in the application 17D. The exporters in these cases claim that relying on the aforesaid Scheme, they ensured that they achieved incrementalper that, if the incremental growth was 20% and above to below 25%, duty credit entitlement provided was 5%. In case of incremental growth of 25% or above, but below 100%, the duty credit growth entitlement was to the tune of 10%. On incremental growth of 100% and above, duty credit entitlement stipulated was 15% (of 100%). However, by way of amendment, the minimum percentage incremental growth was specified as 20% in the FOB value of exports in the current year over the previous year and entitlement was made uniform @ 5% of the incrementalthe present case, we find that Section 5 of the Act does not give any specific power to the Central Government to make the Rules with retrospective effect. The Central Government is authorised to make Rules/Schemes under the said provision as a delegatee, which means that the EXIM Policy/Scheme framed under the said provision is by way of delegated legislation. There has to be specific power to make the amendments with retrospective effect, which are lacking in the instant case. Moreover, even if there is such a power, it cannot take away vested rights which have accrued in favour of particular persons/exporters. We have already enlisted number of judgments of this Court taking such aVide Notification No. 32/2005 dated April 08, 2005, the Central Government amended para 3.7.8 and instead of three rates of entitlement based on growth, it prescribed one single rate, i.e. 5% of the incremental growth. In replies given by the Government, no cogent or valid reason is given for this move. Interestingly, comments are made about the misuse of earlier Scheme in the EXIM Policyand the evidence that surfaced during the said investigation, particularly with respect to the alleged dubious practices adopted by some exporters who had inflated their turnover in respect of gold and diamond exports and it is mentioned that under these circumstances, for anticipating misuse, the Government came out with the aforesaid Notification. The amendment Notification is justified on the ground that in the Scheme itself it had preserved the right to change the eligibility criteria and rate of entitlement effective from the beginning of the year, in public interest. Thus, the action is justified on the ground that such a power was reserved in the TPS itself and that measure was taken to avoid misuse by unscrupulous exporters. Nowhere it is stated that there was misuse by any of these parties.Likewise, no cogent explanation is coming forward for adding four items by amending para 3.7.5 vide Notification No. 48 (RE 2005)/dated February 20, 2006. The only argument advanced at the time of hearing was that the Government felt that benefit of TPS should not be extended to the exporters of these items. That may be a policy decision and the Government is empowered to take such a decision. It may be noted that in para 3.7.5 of TPS, as was originally provided, certain items of exports were specifically mentioned, which were not to be taken into account for calculation of export performance or for computation of entitlement under the Scheme and the items now added vide Notification No. 48 (RE 2005)/20042009 dated February 20, 2006 were not mentioned therein. If the Government realised afterwards that export of these items should not have been given the benefit of TPS and extending the benefit to now excluded items was anmove, though the Central Government was free to withdraw it in respect of such items but it could do so only prospectively, but was not entitled to do so with effect from the back date, i.e. April 01, 2005, by taking away the vested right that had already accrued in favour of exporters of these items.
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IEL Supervisors'' Association and Ors Vs. Duncan Industries Ltd. and Ors | Kurian Joseph, J.1. The Appellants are before this Court, aggrieved by the judgment dated 24.02.2016 passed by the High Court of judicature at Allahabad in Writ Petition No. 12468 of 2002 and other connected matters, by which the High Court remitted the dispute to the Industrial Tribunal for fresh adjudication.2. It is the contention of the learned senior Counsel that this is the second time the remittance is made and going by the order dated 14.09.2010 passed by this Court, the High Court could not have made a remand. The relevant portion of the order dated 14.09.2010 passed by this Court in Civil Appeal Nos. 351-355 of 2006 and other connected matters, is reproduced below:In the circumstances and keeping in view the fact that the Labour Court has taken two different views in the two references made to it as regards the stout of Supervisors and Deputy Superintendents, we are of the view that the matters need to be remanded back to the High Court to enable both the sides to argue the matter afresh and also the High Court to examine the issues that arise for determination.We, accordingly, allow these appeals, set aside both the impugned orders and remit the matters back to the High Court for a fresh disposal in accordance with law. Keeping in view the importance of the issues that arise for consideration, we would request the Chief Justice of the High Court to direct placing the matters before a Division Bench. Since, the matters have been lingering on for a long time, we give liberty to the parties to approach the Division Bench for an early hearing and disposal. Parties are left to bear their own costs. Needless to say that all contentions available to the parties are left open to be urged before the High Court.3. It may be seen that the order, as above, was passed in view of the conflicting stands taken by two Labour Courts on the issue as to whether the Supervisors/Deputy Superintendents would be workmen or not under the provisions of the Industrial Disputes Act, 1947. The learned Counsel for the Management submits that in view of the intervening development after the order dated 14.09.2010 passed by this Court, whereby the Management has been taken over by the present Respondent, the matter needs a fresh adjudication. We are afraid, the contention cannot be appreciated.4. The only dispute remaining to be decided is whether the Supervisors/Deputy Superintendents would be workmen or not. There are already two conflicting views of the Labour Courts. | 1[ds]3. It may be seen that the order, as above, was passed in view of the conflicting stands taken by two Labour Courts on the issue as to whether the Supervisors/Deputy Superintendents would be workmen or not under the provisions of the Industrial Disputes Act, 1947There are already two conflicting views of the Labour Courts. | 1 | 458 | 64 | ### 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:
Kurian Joseph, J.1. The Appellants are before this Court, aggrieved by the judgment dated 24.02.2016 passed by the High Court of judicature at Allahabad in Writ Petition No. 12468 of 2002 and other connected matters, by which the High Court remitted the dispute to the Industrial Tribunal for fresh adjudication.2. It is the contention of the learned senior Counsel that this is the second time the remittance is made and going by the order dated 14.09.2010 passed by this Court, the High Court could not have made a remand. The relevant portion of the order dated 14.09.2010 passed by this Court in Civil Appeal Nos. 351-355 of 2006 and other connected matters, is reproduced below:In the circumstances and keeping in view the fact that the Labour Court has taken two different views in the two references made to it as regards the stout of Supervisors and Deputy Superintendents, we are of the view that the matters need to be remanded back to the High Court to enable both the sides to argue the matter afresh and also the High Court to examine the issues that arise for determination.We, accordingly, allow these appeals, set aside both the impugned orders and remit the matters back to the High Court for a fresh disposal in accordance with law. Keeping in view the importance of the issues that arise for consideration, we would request the Chief Justice of the High Court to direct placing the matters before a Division Bench. Since, the matters have been lingering on for a long time, we give liberty to the parties to approach the Division Bench for an early hearing and disposal. Parties are left to bear their own costs. Needless to say that all contentions available to the parties are left open to be urged before the High Court.3. It may be seen that the order, as above, was passed in view of the conflicting stands taken by two Labour Courts on the issue as to whether the Supervisors/Deputy Superintendents would be workmen or not under the provisions of the Industrial Disputes Act, 1947. The learned Counsel for the Management submits that in view of the intervening development after the order dated 14.09.2010 passed by this Court, whereby the Management has been taken over by the present Respondent, the matter needs a fresh adjudication. We are afraid, the contention cannot be appreciated.4. The only dispute remaining to be decided is whether the Supervisors/Deputy Superintendents would be workmen or not. There are already two conflicting views of the Labour Courts.
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3. It may be seen that the order, as above, was passed in view of the conflicting stands taken by two Labour Courts on the issue as to whether the Supervisors/Deputy Superintendents would be workmen or not under the provisions of the Industrial Disputes Act, 1947There are already two conflicting views of the Labour Courts.
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New Indian Insurance Company Vs. Darshana Devi | difficult to apply the ratio of this decision to a case not involving a third party. The whole protection provided by Chapter XI of the Act is against third party risk. Therefore, in a case where a person is not a third party within the meaning of the Act, the insurance company cannot be made automatically liable merely by resorting to the Swaran Singh (supra) ratio. This appears to be the position. This position was expounded recently by this Court in National Insurance Co. Ltd. v. Laxmi Narain Dhut [2007 (4) SCALE 36 ]. This Court after referring to Swaran Singh (supra) and discussing the law summed up the position thus:In view of the above analysis the following situations emerge:1. The decision in Swaran Singhs case (supra) has no application to cases other than third party risks.2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality.3. In case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured.4. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act.The High Courts/Commissions shall now consider the mater afresh in the light of the position in law as delineated above.We are in respectful agreement with the above view." Asha Rani (supra) was followed. Yet again, in Oriental Insurance Co. Ltd. v. Brij Mohan & Ors. [2007 (7) SCALE 753 ], wherein one of us (S.B. Sinha, J.) was a member, this Court noticed Asha Rani and other decisions. Following the same, it was stated: "10. Furthermore, respondent was not the owner of the tractor. He was also not the driver thereof. He was merely a passenger travelling on the trolley attached to the tractor. His claim petition, therefore, could not have been allowed in view of the decision of this Court in New India Assurance Co. Ltd. v. Asha Rani and Ors. [(2003) 2 SCC 223] wherein the earlier decision of this Court in New India Assurance Co. v. Satpal Singh [(2000) 1 SCC 237] was overruled. In Asha Rani (supra) it was, inter alia, held:25. Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of "public service vehicle". Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen Compensation Act. It does not speak of any passenger in a "goods carriage".26. In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used i.e. "a third party". Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.27. Furthermore, Sub-clause (i) of Clause (b) of Sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas Sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.[See also National Insurance Co. Ltd. v. Bommithi Subbhayamma and Ors. [(2005) 12 SCC 243] ; United India Insurance Co. Ltd., Shimla v. Tilak Singh and Ors. [(2006) 4 SCC 404] ; Prem Kumar & Ors. v. Prahlad Dev & Ors. [2008 (1) SCALE 531 ] and Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727 ]" Having said so, we must take notice of the fact that the deceased Baldev Singh was labourer. The Tribunal has found that besides being a labourer, he also used to deal in Safeda wood. He was the owner of the Safeda wood which was being transported to the market for its sale. The first respondent, Darshana Devi, in her deposition, stated that the deceased used to purchase wood from the State of Himachal Pradesh on contract basis. Only Gurdial Singh and Ravinder Singh were accompanying him as labourer. His income was assessed only at Rs.2,400 per month. 13. In this view of the matter, we are of the opinion that it is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution of India. Even in Brij Mohan (supra), this Court held: "13. However, respondent No. 1 is a poor labourer. He had suffered grievous injuries. He had become disabled to a great extent. The amount of compensation awarded in his favour appears to be on a lower side. In the aforementioned situation, although we reject the other contentions of Ms. Indu Malhotra, we are inclined to exercise our extraordinary jurisdiction under Article 142 of the Constitution of India so as to direct that the award may be satisfied by the appellant but it would be entitled to realize the same from the owner of the tractor and the trolley wherefor it would not be necessary for it to initiate any separate proceedings for recovery of the amount as provided for under the Motor Vehicles Act.14. It is well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof can issue suit directions for doing complete justice to the parties." | 0[ds]8. The liability of an insurance company to recompense the owner and driver of a vehicle, who are primarily responsible for payment of compensation to a victim or dependent of a deceased arising out of use of a motor vehicle, is statutory in nature. Whereas an owner of a motor vehicle is under a statutory obligation to get it compulsorily insured, the defence of an insurance company is limited.Extent of liability of an insurance company in terms of the said provision came up for consideration before this Court in a large number of decisions.In this view of the matter, we are of the opinion that it is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution of India. Even in Brij Mohan (supra), this CourtHowever, respondent No. 1 is a poor labourer. He had suffered grievous injuries. He had become disabled to a great extent. The amount of compensation awarded in his favour appears to be on a lower side. In the aforementioned situation, although we reject the other contentions of Ms. Indu Malhotra, we are inclined to exercise our extraordinary jurisdiction under Article 142 of the Constitution of India so as to direct that the award may be satisfied by the appellant but it would be entitled to realize the same from the owner of the tractor and the trolley wherefor it would not be necessary for it to initiate any separate proceedings for recovery of the amount as provided for under the Motor Vehicles Act.14. It is well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof can issue suit directions for doing complete justice to the parties." | 0 | 3,508 | 323 | ### 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:
difficult to apply the ratio of this decision to a case not involving a third party. The whole protection provided by Chapter XI of the Act is against third party risk. Therefore, in a case where a person is not a third party within the meaning of the Act, the insurance company cannot be made automatically liable merely by resorting to the Swaran Singh (supra) ratio. This appears to be the position. This position was expounded recently by this Court in National Insurance Co. Ltd. v. Laxmi Narain Dhut [2007 (4) SCALE 36 ]. This Court after referring to Swaran Singh (supra) and discussing the law summed up the position thus:In view of the above analysis the following situations emerge:1. The decision in Swaran Singhs case (supra) has no application to cases other than third party risks.2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality.3. In case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured.4. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act.The High Courts/Commissions shall now consider the mater afresh in the light of the position in law as delineated above.We are in respectful agreement with the above view." Asha Rani (supra) was followed. Yet again, in Oriental Insurance Co. Ltd. v. Brij Mohan & Ors. [2007 (7) SCALE 753 ], wherein one of us (S.B. Sinha, J.) was a member, this Court noticed Asha Rani and other decisions. Following the same, it was stated: "10. Furthermore, respondent was not the owner of the tractor. He was also not the driver thereof. He was merely a passenger travelling on the trolley attached to the tractor. His claim petition, therefore, could not have been allowed in view of the decision of this Court in New India Assurance Co. Ltd. v. Asha Rani and Ors. [(2003) 2 SCC 223] wherein the earlier decision of this Court in New India Assurance Co. v. Satpal Singh [(2000) 1 SCC 237] was overruled. In Asha Rani (supra) it was, inter alia, held:25. Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of "public service vehicle". Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen Compensation Act. It does not speak of any passenger in a "goods carriage".26. In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used i.e. "a third party". Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.27. Furthermore, Sub-clause (i) of Clause (b) of Sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas Sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.[See also National Insurance Co. Ltd. v. Bommithi Subbhayamma and Ors. [(2005) 12 SCC 243] ; United India Insurance Co. Ltd., Shimla v. Tilak Singh and Ors. [(2006) 4 SCC 404] ; Prem Kumar & Ors. v. Prahlad Dev & Ors. [2008 (1) SCALE 531 ] and Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727 ]" Having said so, we must take notice of the fact that the deceased Baldev Singh was labourer. The Tribunal has found that besides being a labourer, he also used to deal in Safeda wood. He was the owner of the Safeda wood which was being transported to the market for its sale. The first respondent, Darshana Devi, in her deposition, stated that the deceased used to purchase wood from the State of Himachal Pradesh on contract basis. Only Gurdial Singh and Ravinder Singh were accompanying him as labourer. His income was assessed only at Rs.2,400 per month. 13. In this view of the matter, we are of the opinion that it is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution of India. Even in Brij Mohan (supra), this Court held: "13. However, respondent No. 1 is a poor labourer. He had suffered grievous injuries. He had become disabled to a great extent. The amount of compensation awarded in his favour appears to be on a lower side. In the aforementioned situation, although we reject the other contentions of Ms. Indu Malhotra, we are inclined to exercise our extraordinary jurisdiction under Article 142 of the Constitution of India so as to direct that the award may be satisfied by the appellant but it would be entitled to realize the same from the owner of the tractor and the trolley wherefor it would not be necessary for it to initiate any separate proceedings for recovery of the amount as provided for under the Motor Vehicles Act.14. It is well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof can issue suit directions for doing complete justice to the parties."
### Response:
0
### Explanation:
8. The liability of an insurance company to recompense the owner and driver of a vehicle, who are primarily responsible for payment of compensation to a victim or dependent of a deceased arising out of use of a motor vehicle, is statutory in nature. Whereas an owner of a motor vehicle is under a statutory obligation to get it compulsorily insured, the defence of an insurance company is limited.Extent of liability of an insurance company in terms of the said provision came up for consideration before this Court in a large number of decisions.In this view of the matter, we are of the opinion that it is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution of India. Even in Brij Mohan (supra), this CourtHowever, respondent No. 1 is a poor labourer. He had suffered grievous injuries. He had become disabled to a great extent. The amount of compensation awarded in his favour appears to be on a lower side. In the aforementioned situation, although we reject the other contentions of Ms. Indu Malhotra, we are inclined to exercise our extraordinary jurisdiction under Article 142 of the Constitution of India so as to direct that the award may be satisfied by the appellant but it would be entitled to realize the same from the owner of the tractor and the trolley wherefor it would not be necessary for it to initiate any separate proceedings for recovery of the amount as provided for under the Motor Vehicles Act.14. It is well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof can issue suit directions for doing complete justice to the parties."
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Workmen Of The Calcutta Electric Supplycorporation Ltd Vs. Calcutta Electric Supply Corporation Ltd | different systems. The Tribunal tried to rationalise the situation by providing the payment of overtime at uniform rates to all employees upto 48 hours a week: all employees were to get overtime for any period in excess of their weekly hours of work but less than 48 hours a week at their time-rates. For periods exceeding 48 hours a week, however, all workmen were to receive overtime wages at 1 1/2 times their respective time-rates. This is how the Tribunal according to the respondent company sought to establish uniformity in the matter of payment of overtime wages. The appellants contended that payment of wages for overtime at the time-rate cannot be taken as overtime payment at all. If an employee has to work beyond his scheduled working hours he should get proportionately more wages for each such extra hour. The respondent tried to meet this grievance by saying that in some cases the weekly hours of work were less than 48 only because in the centres concerned, there was not sufficient work to keep the employees busy for 48 hours every week. Even so the company would have been at liberty to fix 48 hours as the weekly hours of work for all employees. The fact that in the case of certain employees they fixed a shorter period should not, they say, go against the company and they should be allowed to make the employees work upto 48 hours a week on payment of overtime wages at the time-rate. It was pointed out that the award of the Tribunal did not enable the company to get overtime work without payment of extra wages. All that it permitted the company to do was to pay overtime wages at the time-rate upto 48 hours a week. This provision meant that upto one point all workers were placed on the same uniform basis. After that point had been reached i.e. to say for any period of overtime beyond 48 hours a week the employees were to get overtime wages at 1 1/2 time-rates.4. The point for decision in our opinion, is one which is completely covered by the decision of this Court in Indian Oxygen Ltd. v. Their Workmen, (19691 1 SCR 550 = (AIR 1969 SC 306 ). In that case the employees made various demands of which demand No. 3 was that "the payment of overtime to office staff should be 1 1/2 times the ordinary rate beyond their normal duty hours". As regards this demand the contentions urged on behalf of the appellant company were two-fold. First that under the Bihar Shops and Establishments Act the company could be made liable to pay for overtime work at the rate provided in that Act, viz., at double the ordinary rate when a workman was asked to work beyond 48 hours per week as provided in that Act Therefore, it was argued, the appellant company could not be asked to pay more than the ordinary rate of wages payable to workmen if they were asked to work beyond 39 hours but not exceeding 48 hours. Secondly, it was argued, that if the company were to pay 11/4 times its ordinary rate of wages for overtime it would be paying more than other similar concerns. This Court rejected both these contentions. Shelat J., who delivered the judgment of the Court made the following observations regarding the first contention:-" In our judgment both these contentions are unsustainable. Under the conditions of service of the company, the total hours of work per week are 39 hours. Any workman asked to work beyond these hours would obviously be working overtime and the company in fairness would be expected to pay him compensation for such overtime work. The Bihar Shops and Establishments Act has no relevance to this question as that Act fixes the maximum number of hours of work allowable thereunder, i. e. 48 hours a week, and provides for double the rate of ordinary wages for work done over and above 48 hours. It is not, therefore, as if the previsions of that Act govern overture payment payable by an employer where maximum hours of work are governed by the conditions of service prevailing in his establishment. Therefore, no reliance can be placed on the provisions of that Act for the companys contention that it cannot be called upon to pay for overtime work anything more than its ordinary rate of wages if the workmen do work beyond 39 hours but not exceeding 48 hours a week. It is obvious that if the company were asked to pay at the rate equivalent to the ordinary rate of wages for work done beyond 39 hours but not exceeding 48 hours work a week it would be paying no extra compensation at all for the work done beyond the agreed hours of work. The company would in that case be indirectly increasing the hours of work and consequently altering its conditions of service."5. In view of this decision the matter is no longer res integra and we are bound by the previous decision. Mr. Ginwala appearing for the respondent sought to argue that what this Court had disallowed in the Indian Oxygen Ltd.s case, (1969) 1 SCR 550 = (AIR 1869 SC 306), was non-payment of extra wages for the extra hours of work beyond the normal weekly hours until they exceeded 48 hours of work per week. It was argued that the real ratio of the decision in that case was that the workmen should be entitled to overtime wages only for a period in excess of the prescribed monthly working hours. This is not, in our opinion, a correct construction of that decision where this Court clearly referred to the rate of payment for the extra hours of work. We have no doubt in our mind that the decision in that case requires payment of overtime wages for all hours in excess of the prescribed working hours at special overture rates and not at time-rates. | 1[ds]4. The point for decision in our opinion, is one which is completely covered by the decision of this Court in Indian Oxygen Ltd. v. Their Workmen, (19691 1 SCR 550 = (AIR 1969 SC 306 ). In that case the employees made various demands of which demand No. 3 was that "the payment of overtime to office staff should be 1 1/2 times the ordinary rate beyond their normal duty hours". As regards this demand the contentions urged on behalf of the appellant company were two-fold. First that under the Bihar Shops and Establishments Act the company could be made liable to pay for overtime work at the rate provided in that Act, viz., at double the ordinary rate when a workman was asked to work beyond 48 hours per week as provided in that Act Therefore, it was argued, the appellant company could not be asked to pay more than the ordinary rate of wages payable to workmen if they were asked to work beyond 39 hours but not exceeding 48 hours. Secondly, it was argued, that if the company were to pay 11/4 times its ordinary rate of wages for overtime it would be paying more than other similar concerns. This Court rejected both these contentions. Shelat J., who delivered the judgment of the Court made the following observations regarding the firstIn our judgment both these contentions are unsustainable. Under the conditions of service of the company, the total hours of work per week are 39 hours. Any workman asked to work beyond these hours would obviously be working overtime and the company in fairness would be expected to pay him compensation for such overtime work. The Bihar Shops and Establishments Act has no relevance to this question as that Act fixes the maximum number of hours of work allowable thereunder, i. e. 48 hours a week, and provides for double the rate of ordinary wages for work done over and above 48 hours. It is not, therefore, as if the previsions of that Act govern overture payment payable by an employer where maximum hours of work are governed by the conditions of service prevailing in his establishment. Therefore, no reliance can be placed on the provisions of that Act for the companys contention that it cannot be called upon to pay for overtime work anything more than its ordinary rate of wages if the workmen do work beyond 39 hours but not exceeding 48 hours a week. It is obvious that if the company were asked to pay at the rate equivalent to the ordinary rate of wages for work done beyond 39 hours but not exceeding 48 hours work a week it would be paying no extra compensation at all for the work done beyond the agreed hours of work. The company would in that case be indirectly increasing the hours of work and consequently altering its conditions of service.In view of this decision the matter is no longer res integra and we are bound by the previousis not, in our opinion, a correct construction of that decision where this Court clearly referred to the rate of payment for the extra hours of work. We have no doubt in our mind that the decision in that case requires payment of overtime wages for all hours in excess of the prescribed working hours at special overture rates and not atis not, in our opinion, a correct construction of that decision where this Court clearly referred to the rate of payment for the extra hours of work. We have no doubt in our mind that the decision in that case requires payment of overtime wages for all hours in excess of the prescribed working hours at special overture rates and not at | 1 | 1,402 | 670 | ### Instruction:
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different systems. The Tribunal tried to rationalise the situation by providing the payment of overtime at uniform rates to all employees upto 48 hours a week: all employees were to get overtime for any period in excess of their weekly hours of work but less than 48 hours a week at their time-rates. For periods exceeding 48 hours a week, however, all workmen were to receive overtime wages at 1 1/2 times their respective time-rates. This is how the Tribunal according to the respondent company sought to establish uniformity in the matter of payment of overtime wages. The appellants contended that payment of wages for overtime at the time-rate cannot be taken as overtime payment at all. If an employee has to work beyond his scheduled working hours he should get proportionately more wages for each such extra hour. The respondent tried to meet this grievance by saying that in some cases the weekly hours of work were less than 48 only because in the centres concerned, there was not sufficient work to keep the employees busy for 48 hours every week. Even so the company would have been at liberty to fix 48 hours as the weekly hours of work for all employees. The fact that in the case of certain employees they fixed a shorter period should not, they say, go against the company and they should be allowed to make the employees work upto 48 hours a week on payment of overtime wages at the time-rate. It was pointed out that the award of the Tribunal did not enable the company to get overtime work without payment of extra wages. All that it permitted the company to do was to pay overtime wages at the time-rate upto 48 hours a week. This provision meant that upto one point all workers were placed on the same uniform basis. After that point had been reached i.e. to say for any period of overtime beyond 48 hours a week the employees were to get overtime wages at 1 1/2 time-rates.4. The point for decision in our opinion, is one which is completely covered by the decision of this Court in Indian Oxygen Ltd. v. Their Workmen, (19691 1 SCR 550 = (AIR 1969 SC 306 ). In that case the employees made various demands of which demand No. 3 was that "the payment of overtime to office staff should be 1 1/2 times the ordinary rate beyond their normal duty hours". As regards this demand the contentions urged on behalf of the appellant company were two-fold. First that under the Bihar Shops and Establishments Act the company could be made liable to pay for overtime work at the rate provided in that Act, viz., at double the ordinary rate when a workman was asked to work beyond 48 hours per week as provided in that Act Therefore, it was argued, the appellant company could not be asked to pay more than the ordinary rate of wages payable to workmen if they were asked to work beyond 39 hours but not exceeding 48 hours. Secondly, it was argued, that if the company were to pay 11/4 times its ordinary rate of wages for overtime it would be paying more than other similar concerns. This Court rejected both these contentions. Shelat J., who delivered the judgment of the Court made the following observations regarding the first contention:-" In our judgment both these contentions are unsustainable. Under the conditions of service of the company, the total hours of work per week are 39 hours. Any workman asked to work beyond these hours would obviously be working overtime and the company in fairness would be expected to pay him compensation for such overtime work. The Bihar Shops and Establishments Act has no relevance to this question as that Act fixes the maximum number of hours of work allowable thereunder, i. e. 48 hours a week, and provides for double the rate of ordinary wages for work done over and above 48 hours. It is not, therefore, as if the previsions of that Act govern overture payment payable by an employer where maximum hours of work are governed by the conditions of service prevailing in his establishment. Therefore, no reliance can be placed on the provisions of that Act for the companys contention that it cannot be called upon to pay for overtime work anything more than its ordinary rate of wages if the workmen do work beyond 39 hours but not exceeding 48 hours a week. It is obvious that if the company were asked to pay at the rate equivalent to the ordinary rate of wages for work done beyond 39 hours but not exceeding 48 hours work a week it would be paying no extra compensation at all for the work done beyond the agreed hours of work. The company would in that case be indirectly increasing the hours of work and consequently altering its conditions of service."5. In view of this decision the matter is no longer res integra and we are bound by the previous decision. Mr. Ginwala appearing for the respondent sought to argue that what this Court had disallowed in the Indian Oxygen Ltd.s case, (1969) 1 SCR 550 = (AIR 1869 SC 306), was non-payment of extra wages for the extra hours of work beyond the normal weekly hours until they exceeded 48 hours of work per week. It was argued that the real ratio of the decision in that case was that the workmen should be entitled to overtime wages only for a period in excess of the prescribed monthly working hours. This is not, in our opinion, a correct construction of that decision where this Court clearly referred to the rate of payment for the extra hours of work. We have no doubt in our mind that the decision in that case requires payment of overtime wages for all hours in excess of the prescribed working hours at special overture rates and not at time-rates.
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4. The point for decision in our opinion, is one which is completely covered by the decision of this Court in Indian Oxygen Ltd. v. Their Workmen, (19691 1 SCR 550 = (AIR 1969 SC 306 ). In that case the employees made various demands of which demand No. 3 was that "the payment of overtime to office staff should be 1 1/2 times the ordinary rate beyond their normal duty hours". As regards this demand the contentions urged on behalf of the appellant company were two-fold. First that under the Bihar Shops and Establishments Act the company could be made liable to pay for overtime work at the rate provided in that Act, viz., at double the ordinary rate when a workman was asked to work beyond 48 hours per week as provided in that Act Therefore, it was argued, the appellant company could not be asked to pay more than the ordinary rate of wages payable to workmen if they were asked to work beyond 39 hours but not exceeding 48 hours. Secondly, it was argued, that if the company were to pay 11/4 times its ordinary rate of wages for overtime it would be paying more than other similar concerns. This Court rejected both these contentions. Shelat J., who delivered the judgment of the Court made the following observations regarding the firstIn our judgment both these contentions are unsustainable. Under the conditions of service of the company, the total hours of work per week are 39 hours. Any workman asked to work beyond these hours would obviously be working overtime and the company in fairness would be expected to pay him compensation for such overtime work. The Bihar Shops and Establishments Act has no relevance to this question as that Act fixes the maximum number of hours of work allowable thereunder, i. e. 48 hours a week, and provides for double the rate of ordinary wages for work done over and above 48 hours. It is not, therefore, as if the previsions of that Act govern overture payment payable by an employer where maximum hours of work are governed by the conditions of service prevailing in his establishment. Therefore, no reliance can be placed on the provisions of that Act for the companys contention that it cannot be called upon to pay for overtime work anything more than its ordinary rate of wages if the workmen do work beyond 39 hours but not exceeding 48 hours a week. It is obvious that if the company were asked to pay at the rate equivalent to the ordinary rate of wages for work done beyond 39 hours but not exceeding 48 hours work a week it would be paying no extra compensation at all for the work done beyond the agreed hours of work. The company would in that case be indirectly increasing the hours of work and consequently altering its conditions of service.In view of this decision the matter is no longer res integra and we are bound by the previousis not, in our opinion, a correct construction of that decision where this Court clearly referred to the rate of payment for the extra hours of work. We have no doubt in our mind that the decision in that case requires payment of overtime wages for all hours in excess of the prescribed working hours at special overture rates and not atis not, in our opinion, a correct construction of that decision where this Court clearly referred to the rate of payment for the extra hours of work. We have no doubt in our mind that the decision in that case requires payment of overtime wages for all hours in excess of the prescribed working hours at special overture rates and not at
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P.RAJAGOPAL AND ORS. ETC Vs. THE STATE OF TAMIL NADU | body was exhumed from the burial grounds. It is evident from the depositions that the recovery of the dead body was made from the Tiger-Chola forest area, which is the same place to which Accused No. 2 led the investigation team based on his confession about disposal of the dead body. It is relevant to note at this juncture that merely because the actual recovery of the body happened before the accused lead the police to the scene, it does not, in the facts and circumstances of this case, negate the validity of the recovery based on a confession, in terms of Section 27 of the Evidence Act. In our considered view, the recovery of the body of the deceased at the instance of Accused No. 2 and the identification of the body as that of Santhakumar by PW1, her family as well as by the accused, on the basis of photographs, the clothes and belongings of the deceased, and his scar, stand proved beyond all reasonable doubt. 41. As mentioned supra, the evidence of PWs 1 and 2 proves the circumstance relating to the last seen evidence beyond reasonable doubt, apart from other circumstances. Both of them in their evidence (especially PW1), as mentioned supra, have consistently and cogently deposed that the deceased was last seen along with the accused, who took the deceased away upon the orders of Accused No. 1. No explanation, much less any plausible explanation has come from the accused in their statements under Section 313 of the Cr.P.C rebutting the strong evidence against them. Though the burden had shifted onto the accused to explain the said circumstance as to when they left the company of the deceased, no explanation was adduced in that regard by the accused herein. Hence, an adverse inference has to be drawn against the accused. It may be noted that such non -explanation by the accused provides an additional link in the chain of circumstances. Furthermore, although it was argued by Shri Sushil Kumar that the evidence relating to the last seen circumstance as deposed by PW1 was not put to the accused while recording their statement under Section 313, such an argument cannot be accepted, since Question No. 22 and Question No. 30 specifically relate to the evidence of the last seen circumstance, and were put to Accused No.1. Same is the case with the other appellants. A perusal of the statements of the accused recorded under Section 313 also reveals that the relevant questions pertaining to taking Santhakumar along with PW1 in the car on 26.10.2001, detection of the decomposed dead body and the post-mortem thereof were all put to the accused so as to fully enable them to explain all the incriminating circumstances appearing against them in the evidence adduced by the prosecution. It is needless to observe that it has been established through a catena of judgments of this Court that the doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances. (See Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434 ; Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 ). 42. It is also relevant to note that the bill book and cash book of a petrol pump at Palani (Ext. P32), where the Tata Sumo bearing Registration No. TN 09 Q 1310 (M.O.3) was refuelled, were also seized. This is very crucial evidence to show that the Tata Sumo in which the accused were travelling along with the deceased had in fact gone towards Kodaikanal, as is evident from the fact that fuel was filled from a petrol pump enroute to Kodaikanal at Palani on the relevant date. 43. In our considered opinion, the overwhelming, consistent, cogent and reliable testimonies of PWs 1 and 2, along with the aforementioned corroborative evidence, conclusively prove the prosecution case. We reiterate that PWs 1 and 2 were steadfast in their testimony about the motive, the last seen circumstance, recovery of the dead body based on the confession of Accused No.2, and about the identification of the dead body. We do not find any embellishment or exaggeration in the evidence of these witnesses. Moreover, the evidence of the other prosecution witnesses (especially PWs 7, 26, 27, 29, 32 and 33) is homogeneous, consistent and reliable, and corroborates the testimony of PWs 1 and 2, which leads us to conclude that the chain of circumstances is complete and points solely at the guilt of the accused. In our considered opinion, the prosecution has proved the complicity of all the appellants in murdering Santhakumar by strangulating him and thereafter throwing the dead body at Tiger -Chola. It is worth recalling that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Justice cannot be made sterile by exaggerated adherence to the rule of proof, inasmuch as the benefit of doubt must always be reasonable and not fanciful. (See Inder Singh v. State (Delhi Administration), (1978) 4 SCC 161 ; State of H.P. v. Lekh Raj & Anr., (2000) 1 SCC 247 ; Takhaji Hiraji v. Thakore Kubersing Chamansing & Ors., (2001) 6 SCC 145 ; Chaman & Anr. v. State of Uttarakhand, (2016) 12 SCC 76 ). | 0[ds]15. We do not find any force in the arguments of the learned Senior Advocate for the appellants that the incident of murder in the case in hand is merely a continuation of an earlier offence, i.e. Crime No. 1030 of 2001 relating to the abduction of PW1 and the deceased Santhakumar, which occurred onfactors such as proximity of time or place, unity of purpose and design and continuity of action, in respect of a series of acts, have to be considered in order to determine whether such acts form part of the same transaction or not (See State of A.P. v. Cheemalapati Ganeswara Rao, (1964) 3 SCR 297 ). A quick overview of the sequence of unfolding of the incident of murder in question and the prior incident of abduction would show that the above factors cannot be said to be satisfied in this case. Even when the two FIRs Ext. P1 and P3 are read together, it becomes clear that the first incident of abduction began and ended on 01.10.2001. The crime of abduction commenced when the victims (PW1 and the deceased) were forced into captivity on the said date, and was completed on the same day immediately after the victims were released. In respect of the said incident, the first information came to be lodged on 12.10.2001 by PW1. During the investigation of the said case, on 24.10.2001, the accused brought the deceased, PW1 and her family members to Tirunelveli. The present crime came to be committed on 26.10.2001, whereby PW1 and her husband, Santhakumar were taken away in a car, and on the direction of Accused No.1, Accused Nos. 2 to 4, 6 and 7 forcibly took away Santhakumar by separating him from his wife, committed his murder and threw away his body at the Tiger -Chola forest area within the jurisdiction of Kodaikanal Policethe time and place of occurrence of the two incidents are different. Even the number of accused involved in the incidents is different. No continuity of action can be gathered from the sequence of events either. It may be noted that the motive for commission of both the offences may be the same, inasmuch as they were committed to enable Accused No. 1 to marry PW1, but merely because of their common motive, the second offence cannot be said to be in continuation of the first incident, in light of there being distinct intentions behind the two offences. The first offence was committed with the intention to abduct the deceased and PW1, the purpose for which was merely to threaten and pressurize them. In contrast, the intention behind the second offence was to murder the deceased with a view to permanently get rid of him. Therefore, it is evident that unity of purpose and design between the two offences is also absent. Thus, it is amply clear that the incident of murder is entirely separate and distinct from the earlier incident of abduction.Undisputedly, the first information pertaining to the incident of abduction, after passing through various stages and various police officers, ultimately came to be registered as an FIR on 09.11.2001 in the jurisdictional Police Station. Nevertheless, the fact remains that the offence of abduction was completed on 01.10.2001 itself and the first information came to be lodged on 12.10.2001.There cannot be any dispute that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but also violates Article 21 of the Constitution.However, the aforementioned principles of law may not be applicable to the facts of the incident on hand, as the crimes underlying the two FIRs are distinct and different. The offence punishable under Section 302, in the present case, was committed during the course of investigation of the case in the first FIR, i.e. relating to the crime of abduction. We are of the considered opinion that the allegations and offences under this present FIR relating to the murder of the deceased are substantially distinct from the information lodged in Crime No. 1030 of 2001 relating to abduction. We are unable to accept the argument of Shri Sushil Kumar that at the most, further investigation could have been made by the police in the earlier crime registered relating to abduction since the murder has allegedly taken place during the subsistence of investigation of the crime of abduction. As mentioned supra, the facts and circumstances of the matter clearly indicate that the offence of abduction committed by the appellants and the offence of murder were two different and distinct offences, and therefore, there is no question of further investigation to be made in the crime of abduction by the investigating agency relating to the offence of murder which was committed during the subsistence of the investigation relating to abduction. Further investigation, as envisaged under Sub -section 8 of Section 173 of the Cr.P.C, connotes investigation of the case in continuation of an earlier investigation with respect to which the chargesheet has already been filed. In case a fresh offence is committed during the course of the earlier investigation, which is distinct from the offence being investigated, such fresh offence cannot be investigated as part of the pending case, and should instead be investigated afresh. It is pertinent to note that the facts on hand are similar to the facts in the case of Awadesh Kumar Jha v. State of Bihar, (2016) 3 SCC 8 , wherein this Court held that the case arising out of a second FIR, if relating to a separate transaction, cannot be investigated along with a previous FIR under the clause ‘further investigation? as contemplated under Sub-section 8 to Section 173 of thelight of the aforementioned settled legal proposition, we have no hesitation in holding that the separate first information lodged in this case is just, legal and proper.Furthermore, it is no doubt true that the first information relating to the crime of abduction dated 12.10.2001 was marked in the case on hand relating to murder. However, we cannot accept the contention that the same has been used as a substantive piece of evidence in this matter. This is because the said document was practically used only as supportive material to show the motive for the accused to commit the crime.Coming to the merits of the matter, it is pertinent to note that the prosecution mainly relied upon three circumstances to prove the guilt of the accused, i.e. motive, the last seen circumstance and the recovery of the dead body at the instance of the accused. An additional link in the chain of circumstances is the non -explanation by the accused about the last seen circumstance in their statement recorded under Section 313 of the Cr.P.C. Clearly, there is no direct evidence in this matter and the whole case rests on circumstantialwe undertake a consideration of the evidence supporting such circumstances, we would like to note that the law relating to circumstantial evidence is well settled. The Judge while deciding matters resting on circumstantial evidence should always tread cautiously so as to not allow conjectures or suspicion, however strong, to take the place of proof. If the alleged circumstances are conclusively proved before the Court by leading cogent and reliable evidence, the Court need not look any further before affirming the guilt of the accused. Moreover, human agency may be faulty in expressing the picturisation of the actual incident, but circumstances cannot fail or be ignored. As aptly put in this oft - quoted phrase: ?Men may lie, but circumstances domentioned supra, the circumstances relied upon by the prosecution should be of a conclusive nature and they should be such as to exclude every other hypothesis except the one to be proved by the prosecution regarding the guilt of the accused. There must be a chain of evidence proving the circumstances so complete so as to not leave any reasonable ground for a conclusion of innocence of the accused.In order to satisfy our conscience, we have independently considered the evidence on record in its entirety in view of the aforementioned principles. However, as we do not wish to burden this judgment by reiterating the depositions of all the witnesses on record in detail, we deem it fit to discuss only the important aspects highlighted by some of the prosecution witnesses in theiris evident from the above discussion that the evidence of PWs 1 and 2 with regard to the motive for commission of the offence, the last seen circumstance and recovery as well as the identification of the dead body is consistent with the case of the prosecution. We do not find any artificiality in their evidence. On the other hand, their evidence remains natural, consistent, cogent and probable, and thus we do not find any reason to disagree with the findings arrived at in that regard by the Trial Court as well as by the Highcannot be any dispute that a confession made by the accused in police custody is an inadmissible confession. The confession herein cannot even be called an extra -judicial confession because of the presence of the police. Be that as it may, if a confession is made by the accused before the police and a portion of the confession leads to the recovery of any incriminating material, such portion alone is admissible under Section 27 of the Indian Evidence Act. Since only such portion of the confession relating to the recovery of certain material objects was admitted in evidence and relied upon, such reliance was in accordance withcannot lose sight of the fact that DNA evidence is also in the nature of opinion evidence as envisaged in Section 45 of the Indian Evidence Act. Undoubtedly, an expert giving evidence before the Court plays a crucial role, especially since the entire purpose and object of opinion evidence is to aid the Court in forming its opinion on questions concerning foreign law, science, art, etc., on which the Court might not have the technical expertise to form an opinion on its own. In criminal cases, such questions may pertain to aspects such as ballistics, fingerprint matching, handwriting comparison, and even DNA testing or superimposition techniques, as seen in the instantit is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise along with his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate conclusion. Be that as it may, it cannot be forgotten that opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts.Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party.This leads us to the question of the propriety of relying upon the superimposition test conducted in the instant case for identifying the deceased. As noted supra, the learned counsel for the appellants has argued that evidence pertaining to the use of the superimposition technique is not a tangible piece of evidence. We find ourselves unable to agree with this view. There cannot be any dispute that evidence on superimposition is also based on experts? opinion. We would like to note that the use of the superimposition technique in Indian investigations for identification purposes is not a new phenomenon. Notably, it has been employed in the investigations pertaining to the Nithari murders, the Russian murder incident in Goa in 2008, and even before that in the Morni Hill murder case and the Paharganj bomb blast case as far back as in 1996, and the Udhampur murder case in 2005 (See Modi, A Textbook of Medical Jurisprudence and Toxicology, 26 th edn., 2018, pp. 267-271). This Court itself has placed reliance on identification of the deceased through superimposition on several occasions (see Shankar & Ors. v. State of Tamil Nadu, (1994) 4 SCC 478 ; Swamy Shraddananda v. State of Karnataka, (2007) 12 SCC 288 ; Inspector of Police, Tamil Nadu v. John David, (2011) 5 SCC 509 ; Mahesh Dhanaji Shinde v. State of Maharashtra, (2014) 4 SCC 292 ), clearly indicating that it is an acceptable piece of opinion evidence.It is relevant to note that all of the decisions of this Court cited in the above paragraph were based on circumstantial evidence, involving aspects such as the last seen circumstance, motive, recovery of personal belongings of the deceased, and so on, and therefore in none of the cases was the superimposition technique the sole incriminating factor relied upon to reach a conclusion of guilt of the accused. Indeed, in Mahesh Dhanaji Shinde (supra), the Court also had the advantage of referring to a DNA test, and in John David (supra), of referring to a DNA test as well as dental examination of the deceased, to determine the identity of the victim. This is in line with the settled practice of the Courts, which generally do not rely upon opinion evidence as the sole incriminating circumstance, given its fallibility. This is particularly true for the superimposition technique, which cannot be regarded as infallible.In view of the above discussion, we hold that the High Court was justified in observing that a superimposition test cannot be taken as a conclusive one for the identification of a dead body, because by itself it may not conclusively establish identification. However, the High Court rightly accepted the expert testimony on this aspect since in the instant case, the superimposition test was merely one piece of evidence relied upon by the prosecution to corroborate the evidence of PWs 1 and 2 in order to strengthen its case.Moreover, it is evident from the testimony of PW34, Dr. Jayaprakash, who conducted the superimposition test, that the test was conducted by using three different methods, i.e. video superimposition, visual observation, and dental trait superimposition, and in spite of challenges to the reliability of such evidence, the Courts, after carefully assessing the methodology adopted, accepted the finding reached by PW34 regarding the identification of the body, and we see no error in such conclusion reached by the Courts.Therefore, we are of the opinion that the scientific evidence of PW34 was rightly believed by the Trial Court as well as by the High Court, and strengthens the evidence of PWs 1 and 2 regarding the identification of the body. Though a DNA test would have helped the Courts immensely in determining the reliability of the identification of the body of the deceased, in the presence of other reliable evidence on record in favour of the prosecution version on this aspect, we reject the contention that the non -conducting of a DNA test and the reliance on evidence regarding identification through superimposition is improper. This is all the more true since no material is forthcoming to the effect that the parents of the deceased were alive during the relevant period, so as to conduct comparative DNA tests.It is noteworthy to emphasise that based on the confession of Accused No.6, recoveries of a wallet containing a photograph of PW1, gold chain etc. were effected from his house, which, as mentioned supra, also stand positively identified by PW1 and her family as belonging to the deceased.40. From the evidence of the witnesses discussed supra, it is amply clear that the dead body recovered from Tiger -Chola was identified by PW1 and her family members as Santhakumar?s, and the same body was exhumed from the burial grounds. It is evident from the depositions that the recovery of the dead body was made from the Tiger-Chola forest area, which is the same place to which Accused No. 2 led the investigation team based on his confession about disposal of the dead body. It is relevant to note at this juncture that merely because the actual recovery of the body happened before the accused lead the police to the scene, it does not, in the facts and circumstances of this case, negate the validity of the recovery based on a confession, in terms of Section 27 of the Evidenceour considered view, the recovery of the body of the deceased at the instance of Accused No. 2 and the identification of the body as that of Santhakumar by PW1, her family as well as by the accused, on the basis of photographs, the clothes and belongings of the deceased, and his scar, stand proved beyond all reasonable doubt.As mentioned supra, the evidence of PWs 1 and 2 proves the circumstance relating to the last seen evidence beyond reasonable doubt, apart from other circumstances. Both of them in their evidence (especially PW1), as mentioned supra, have consistently and cogently deposed that the deceased was last seen along with the accused, who took the deceased away upon the orders of Accused No. 1. No explanation, much less any plausible explanation has come from the accused in their statements under Section 313 of the Cr.P.C rebutting the strong evidence against them. Though the burden had shifted onto the accused to explain the said circumstance as to when they left the company of the deceased, no explanation was adduced in that regard by the accused herein. Hence, an adverse inference has to be drawn against the accused. It may be noted that such non -explanation by the accused provides an additional link in the chain ofalthough it was argued by Shri Sushil Kumar that the evidence relating to the last seen circumstance as deposed by PW1 was not put to the accused while recording their statement under Section 313, such an argument cannot be accepted, since Question No. 22 and Question No. 30 specifically relate to the evidence of the last seen circumstance, and were put to Accused No.1. Same is the case with the other appellants. A perusal of the statements of the accused recorded under Section 313 also reveals that the relevant questions pertaining to taking Santhakumar along with PW1 in the car on 26.10.2001, detection of the decomposed dead body and the post-mortem thereof were all put to the accused so as to fully enable them to explain all the incriminating circumstances appearing against them in the evidence adduced by the prosecution. It is needless to observe that it has been established through a catena of judgments of this Court that the doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances.It is also relevant to note that the bill book and cash book of a petrol pump at Palani (Ext. P32), where the Tata Sumo bearing Registration No. TN 09 Q 1310 (M.O.3) was refuelled, were also seized. This is very crucial evidence to show that the Tata Sumo in which the accused were travelling along with the deceased had in fact gone towards Kodaikanal, as is evident from the fact that fuel was filled from a petrol pump enroute to Kodaikanal at Palani on the relevant date.In our considered opinion, the overwhelming, consistent, cogent and reliable testimonies of PWs 1 and 2, along with the aforementioned corroborative evidence, conclusively prove the prosecution case. We reiterate that PWs 1 and 2 were steadfast in their testimony about the motive, the last seen circumstance, recovery of the dead body based on the confession of Accused No.2, and about the identification of the dead body. We do not find any embellishment or exaggeration in the evidence of these witnesses. Moreover, the evidence of the other prosecution witnesses (especially PWs 7, 26, 27, 29, 32 and 33) is homogeneous, consistent and reliable, and corroborates the testimony of PWs 1 and 2, which leads us to conclude that the chain of circumstances is complete and points solely at the guilt of the accused. In our considered opinion, the prosecution has proved the complicity of all the appellants in murdering Santhakumar by strangulating him and thereafter throwing the dead body at Tiger -Chola. It is worth recalling that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Justice cannot be made sterile by exaggerated adherence to the rule of proof, inasmuch as the benefit of doubt must always be reasonable and not fanciful. | 0 | 11,253 | 3,950 | ### 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:
body was exhumed from the burial grounds. It is evident from the depositions that the recovery of the dead body was made from the Tiger-Chola forest area, which is the same place to which Accused No. 2 led the investigation team based on his confession about disposal of the dead body. It is relevant to note at this juncture that merely because the actual recovery of the body happened before the accused lead the police to the scene, it does not, in the facts and circumstances of this case, negate the validity of the recovery based on a confession, in terms of Section 27 of the Evidence Act. In our considered view, the recovery of the body of the deceased at the instance of Accused No. 2 and the identification of the body as that of Santhakumar by PW1, her family as well as by the accused, on the basis of photographs, the clothes and belongings of the deceased, and his scar, stand proved beyond all reasonable doubt. 41. As mentioned supra, the evidence of PWs 1 and 2 proves the circumstance relating to the last seen evidence beyond reasonable doubt, apart from other circumstances. Both of them in their evidence (especially PW1), as mentioned supra, have consistently and cogently deposed that the deceased was last seen along with the accused, who took the deceased away upon the orders of Accused No. 1. No explanation, much less any plausible explanation has come from the accused in their statements under Section 313 of the Cr.P.C rebutting the strong evidence against them. Though the burden had shifted onto the accused to explain the said circumstance as to when they left the company of the deceased, no explanation was adduced in that regard by the accused herein. Hence, an adverse inference has to be drawn against the accused. It may be noted that such non -explanation by the accused provides an additional link in the chain of circumstances. Furthermore, although it was argued by Shri Sushil Kumar that the evidence relating to the last seen circumstance as deposed by PW1 was not put to the accused while recording their statement under Section 313, such an argument cannot be accepted, since Question No. 22 and Question No. 30 specifically relate to the evidence of the last seen circumstance, and were put to Accused No.1. Same is the case with the other appellants. A perusal of the statements of the accused recorded under Section 313 also reveals that the relevant questions pertaining to taking Santhakumar along with PW1 in the car on 26.10.2001, detection of the decomposed dead body and the post-mortem thereof were all put to the accused so as to fully enable them to explain all the incriminating circumstances appearing against them in the evidence adduced by the prosecution. It is needless to observe that it has been established through a catena of judgments of this Court that the doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances. (See Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434 ; Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 ). 42. It is also relevant to note that the bill book and cash book of a petrol pump at Palani (Ext. P32), where the Tata Sumo bearing Registration No. TN 09 Q 1310 (M.O.3) was refuelled, were also seized. This is very crucial evidence to show that the Tata Sumo in which the accused were travelling along with the deceased had in fact gone towards Kodaikanal, as is evident from the fact that fuel was filled from a petrol pump enroute to Kodaikanal at Palani on the relevant date. 43. In our considered opinion, the overwhelming, consistent, cogent and reliable testimonies of PWs 1 and 2, along with the aforementioned corroborative evidence, conclusively prove the prosecution case. We reiterate that PWs 1 and 2 were steadfast in their testimony about the motive, the last seen circumstance, recovery of the dead body based on the confession of Accused No.2, and about the identification of the dead body. We do not find any embellishment or exaggeration in the evidence of these witnesses. Moreover, the evidence of the other prosecution witnesses (especially PWs 7, 26, 27, 29, 32 and 33) is homogeneous, consistent and reliable, and corroborates the testimony of PWs 1 and 2, which leads us to conclude that the chain of circumstances is complete and points solely at the guilt of the accused. In our considered opinion, the prosecution has proved the complicity of all the appellants in murdering Santhakumar by strangulating him and thereafter throwing the dead body at Tiger -Chola. It is worth recalling that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Justice cannot be made sterile by exaggerated adherence to the rule of proof, inasmuch as the benefit of doubt must always be reasonable and not fanciful. (See Inder Singh v. State (Delhi Administration), (1978) 4 SCC 161 ; State of H.P. v. Lekh Raj & Anr., (2000) 1 SCC 247 ; Takhaji Hiraji v. Thakore Kubersing Chamansing & Ors., (2001) 6 SCC 145 ; Chaman & Anr. v. State of Uttarakhand, (2016) 12 SCC 76 ).
### Response:
0
### Explanation:
as to conduct comparative DNA tests.It is noteworthy to emphasise that based on the confession of Accused No.6, recoveries of a wallet containing a photograph of PW1, gold chain etc. were effected from his house, which, as mentioned supra, also stand positively identified by PW1 and her family as belonging to the deceased.40. From the evidence of the witnesses discussed supra, it is amply clear that the dead body recovered from Tiger -Chola was identified by PW1 and her family members as Santhakumar?s, and the same body was exhumed from the burial grounds. It is evident from the depositions that the recovery of the dead body was made from the Tiger-Chola forest area, which is the same place to which Accused No. 2 led the investigation team based on his confession about disposal of the dead body. It is relevant to note at this juncture that merely because the actual recovery of the body happened before the accused lead the police to the scene, it does not, in the facts and circumstances of this case, negate the validity of the recovery based on a confession, in terms of Section 27 of the Evidenceour considered view, the recovery of the body of the deceased at the instance of Accused No. 2 and the identification of the body as that of Santhakumar by PW1, her family as well as by the accused, on the basis of photographs, the clothes and belongings of the deceased, and his scar, stand proved beyond all reasonable doubt.As mentioned supra, the evidence of PWs 1 and 2 proves the circumstance relating to the last seen evidence beyond reasonable doubt, apart from other circumstances. Both of them in their evidence (especially PW1), as mentioned supra, have consistently and cogently deposed that the deceased was last seen along with the accused, who took the deceased away upon the orders of Accused No. 1. No explanation, much less any plausible explanation has come from the accused in their statements under Section 313 of the Cr.P.C rebutting the strong evidence against them. Though the burden had shifted onto the accused to explain the said circumstance as to when they left the company of the deceased, no explanation was adduced in that regard by the accused herein. Hence, an adverse inference has to be drawn against the accused. It may be noted that such non -explanation by the accused provides an additional link in the chain ofalthough it was argued by Shri Sushil Kumar that the evidence relating to the last seen circumstance as deposed by PW1 was not put to the accused while recording their statement under Section 313, such an argument cannot be accepted, since Question No. 22 and Question No. 30 specifically relate to the evidence of the last seen circumstance, and were put to Accused No.1. Same is the case with the other appellants. A perusal of the statements of the accused recorded under Section 313 also reveals that the relevant questions pertaining to taking Santhakumar along with PW1 in the car on 26.10.2001, detection of the decomposed dead body and the post-mortem thereof were all put to the accused so as to fully enable them to explain all the incriminating circumstances appearing against them in the evidence adduced by the prosecution. It is needless to observe that it has been established through a catena of judgments of this Court that the doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances.It is also relevant to note that the bill book and cash book of a petrol pump at Palani (Ext. P32), where the Tata Sumo bearing Registration No. TN 09 Q 1310 (M.O.3) was refuelled, were also seized. This is very crucial evidence to show that the Tata Sumo in which the accused were travelling along with the deceased had in fact gone towards Kodaikanal, as is evident from the fact that fuel was filled from a petrol pump enroute to Kodaikanal at Palani on the relevant date.In our considered opinion, the overwhelming, consistent, cogent and reliable testimonies of PWs 1 and 2, along with the aforementioned corroborative evidence, conclusively prove the prosecution case. We reiterate that PWs 1 and 2 were steadfast in their testimony about the motive, the last seen circumstance, recovery of the dead body based on the confession of Accused No.2, and about the identification of the dead body. We do not find any embellishment or exaggeration in the evidence of these witnesses. Moreover, the evidence of the other prosecution witnesses (especially PWs 7, 26, 27, 29, 32 and 33) is homogeneous, consistent and reliable, and corroborates the testimony of PWs 1 and 2, which leads us to conclude that the chain of circumstances is complete and points solely at the guilt of the accused. In our considered opinion, the prosecution has proved the complicity of all the appellants in murdering Santhakumar by strangulating him and thereafter throwing the dead body at Tiger -Chola. It is worth recalling that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Justice cannot be made sterile by exaggerated adherence to the rule of proof, inasmuch as the benefit of doubt must always be reasonable and not fanciful.
|
Ultratech Cement Limited Vs. Rajasthan Rajya Vidyut Utpadan Nigam Limited | is lower than the sale price determined under Section 9 (by way of an interim arrangement) of the Act. The arbitral awards also provided for an extension of the period of commercial activities between the parties for another 5 years, i.e., up to the year 2022.7. The question, that arises for adjudication before us is, as to whether the proceedings initiated under Section 9 of the Act, (whilst the arbitral proceedings were pending) survive, after the arbitral proceedings come to a closure. Insofar as the instant aspect of the matter is concerned, the answer thereto has to emanate from Section 9 of the Act. The above provision is extracted hereunder:"9. Interim measures, etc. by Court. - (1)A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court-(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or(ii) for an interim measure of protection in respect of any of the following matters, namely:-(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;(b) securing the amount in dispute in the arbitration;(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;(d) interim injunction or the appointment of a receiver;(e) such other interim measure of protection as may appear to the court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.(3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious."A perusal of the above provision reveals, that interim measures can be allowed in favour of a party (who moves an application under Section 9 of the Act), either before the commencement of the arbitration proceedings, or during the pendencey of the arbitral proceedings, and even after the making of the arbitral award "... but before it is enforced in accordance with section 36...”. It is therefore apparent, that an interim arrangement, can be made under Section 9 of the Act, not only before and during the pendency of the arbitral proceedings, but also after the arbitral award has been pronounced.8. As to whether the orders passed by the different Courts, which culminated in the two orders, extracted herein above, dated 13.12.2013 and 14.03.2014, would continue even after the passing of the arbitral award, in our considered view, would depend on the nature of the prayer made by the appellant, when the application under Section 9 was filed, before the concerned Court. We have extracted herein above the prayer made by the appellant in its section 9 application. A perusal thereof reveals, that the interim injunction was sought "...till adjudication of the dispute arises between the parties by appointing the arbitrator by the applicant as per Clause 9 of the agreement dated 15.10.2004 signed by and between the applicant and the respondent, passing of the award by the arbitrator, and also till enforcement of the said award...". It is therefore apparent, that the interim prayer made by the appellant under Section 9 of the Act in the very first instance was till the enforcement of the award. It is undoubtedly apparent from a perusal of Section 9 of the Act, extracted above, that the enforcement of the award can be effected only under Section 36 of the Act. The aforesaid stage has not yet emerged. The stage presently is of the interregnum, between the passing of the award, and the enforcement of the award under Section 36 of the Act.9. We are of the view, that the prayer made by the appellant clearly included the period, after the pronouncement of the award by the arbitral Tribunal. In the above view of the matter, it is not possible for us to hold, that the proceedings pending before this Court, have been rendered infructuous. In any case, it is now imperative for us to determine whether or not the impugned interim order, should continue till the proceedings under Section 34 of the Act (presently pending before the District Judge) are concluded. We are satisfied in directing, that the appellant shall, with effect from the date of the commencement of the arbitral award, pay for the fly ash taken by it from the respondent at the rate of Rs.245/- per metric tonne (i.e., in consonance with the arbitral award), till the determination of the proceedings under Section 34 of the Act. We however clarify, that in case, for any reason, the arbitral award is set aside or modified, as prayed for by the respondent – Nigam, the appellant would be liable to pay the higher amount, as the respondent would have been able to procure, as disclosed by the auction already held in 2011(for the period with effect from 2012). Likewise, in case the appellant before this Court succeeds, and is held to be entitled to pay a lesser amount, the payment with effect from 2012 would be regulated by the said determination. | 1[ds]8. As to whether the orders passed by the different Courts, which culminated in the two orders, extracted herein above, dated 13.12.2013 and 14.03.2014, would continue even after the passing of the arbitral award, in our considered view, would depend on the nature of the prayer made by the appellant, when the application under Section 9 was filed, before the concerned Court. We have extracted herein above the prayer made by the appellant in its section 9 application. A perusal thereof reveals, that the interim injunction was sought "...till adjudication of the dispute arises between the parties by appointing the arbitrator by the applicant as per Clause 9 of the agreement dated 15.10.2004 signed by and between the applicant and the respondent, passing of the award by the arbitrator, and also till enforcement of the said award...". It is therefore apparent, that the interim prayer made by the appellant under Section 9 of the Act in the very first instance was till the enforcement of the award. It is undoubtedly apparent from a perusal of Section 9 of the Act, extracted above, that the enforcement of the award can be effected only under Section 36 of the Act. The aforesaid stage has not yet emerged. The stage presently is of the interregnum, between the passing of the award, and the enforcement of the award under Section 36 of the Act.9. We are of the view, that the prayer made by the appellant clearly included the period, after the pronouncement of the award by the arbitral Tribunal. In the above view of the matter, it is not possible for us to hold, that the proceedings pending before this Court, have been rendered infructuous. In any case, it is now imperative for us to determine whether or not the impugned interim order, should continue till the proceedings under Section 34 of the Act (presently pending before the District Judge) are concluded. We are satisfied in directing, that the appellant shall, with effect from the date of the commencement of the arbitral award, pay for the fly ash taken by it from the respondent at the rate of Rs.245/per metric tonne (i.e., in consonance with the arbitral award), till the determination of the proceedings under Section 34 of the Act. We however clarify, that in case, for any reason, the arbitral award is set aside or modified, as prayed for by the respondent – Nigam, the appellant would be liable to pay the higher amount, as the respondent would have been able to procure, as disclosed by the auction already held in 2011(for the period with effect from 2012). Likewise, in case the appellant before this Court succeeds, and is held to be entitled to pay a lesser amount, the payment with effect from 2012 would be regulated by the saidperusal of the above provision reveals, that interim measures can be allowed in favour of a party (who moves an application under Section 9 of the Act), either before the commencement of the arbitration proceedings, or during the pendencey of the arbitral proceedings, and even after the making of the arbitral award "... but before it is enforced in accordance with section 36...It is therefore apparent, that an interim arrangement, can be made under Section 9 of the Act, not only before and during the pendency of the arbitral proceedings, but also after the arbitral award has been pronounced. | 1 | 1,995 | 646 | ### 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:
is lower than the sale price determined under Section 9 (by way of an interim arrangement) of the Act. The arbitral awards also provided for an extension of the period of commercial activities between the parties for another 5 years, i.e., up to the year 2022.7. The question, that arises for adjudication before us is, as to whether the proceedings initiated under Section 9 of the Act, (whilst the arbitral proceedings were pending) survive, after the arbitral proceedings come to a closure. Insofar as the instant aspect of the matter is concerned, the answer thereto has to emanate from Section 9 of the Act. The above provision is extracted hereunder:"9. Interim measures, etc. by Court. - (1)A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court-(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or(ii) for an interim measure of protection in respect of any of the following matters, namely:-(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;(b) securing the amount in dispute in the arbitration;(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;(d) interim injunction or the appointment of a receiver;(e) such other interim measure of protection as may appear to the court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.(3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious."A perusal of the above provision reveals, that interim measures can be allowed in favour of a party (who moves an application under Section 9 of the Act), either before the commencement of the arbitration proceedings, or during the pendencey of the arbitral proceedings, and even after the making of the arbitral award "... but before it is enforced in accordance with section 36...”. It is therefore apparent, that an interim arrangement, can be made under Section 9 of the Act, not only before and during the pendency of the arbitral proceedings, but also after the arbitral award has been pronounced.8. As to whether the orders passed by the different Courts, which culminated in the two orders, extracted herein above, dated 13.12.2013 and 14.03.2014, would continue even after the passing of the arbitral award, in our considered view, would depend on the nature of the prayer made by the appellant, when the application under Section 9 was filed, before the concerned Court. We have extracted herein above the prayer made by the appellant in its section 9 application. A perusal thereof reveals, that the interim injunction was sought "...till adjudication of the dispute arises between the parties by appointing the arbitrator by the applicant as per Clause 9 of the agreement dated 15.10.2004 signed by and between the applicant and the respondent, passing of the award by the arbitrator, and also till enforcement of the said award...". It is therefore apparent, that the interim prayer made by the appellant under Section 9 of the Act in the very first instance was till the enforcement of the award. It is undoubtedly apparent from a perusal of Section 9 of the Act, extracted above, that the enforcement of the award can be effected only under Section 36 of the Act. The aforesaid stage has not yet emerged. The stage presently is of the interregnum, between the passing of the award, and the enforcement of the award under Section 36 of the Act.9. We are of the view, that the prayer made by the appellant clearly included the period, after the pronouncement of the award by the arbitral Tribunal. In the above view of the matter, it is not possible for us to hold, that the proceedings pending before this Court, have been rendered infructuous. In any case, it is now imperative for us to determine whether or not the impugned interim order, should continue till the proceedings under Section 34 of the Act (presently pending before the District Judge) are concluded. We are satisfied in directing, that the appellant shall, with effect from the date of the commencement of the arbitral award, pay for the fly ash taken by it from the respondent at the rate of Rs.245/- per metric tonne (i.e., in consonance with the arbitral award), till the determination of the proceedings under Section 34 of the Act. We however clarify, that in case, for any reason, the arbitral award is set aside or modified, as prayed for by the respondent – Nigam, the appellant would be liable to pay the higher amount, as the respondent would have been able to procure, as disclosed by the auction already held in 2011(for the period with effect from 2012). Likewise, in case the appellant before this Court succeeds, and is held to be entitled to pay a lesser amount, the payment with effect from 2012 would be regulated by the said determination.
### Response:
1
### Explanation:
8. As to whether the orders passed by the different Courts, which culminated in the two orders, extracted herein above, dated 13.12.2013 and 14.03.2014, would continue even after the passing of the arbitral award, in our considered view, would depend on the nature of the prayer made by the appellant, when the application under Section 9 was filed, before the concerned Court. We have extracted herein above the prayer made by the appellant in its section 9 application. A perusal thereof reveals, that the interim injunction was sought "...till adjudication of the dispute arises between the parties by appointing the arbitrator by the applicant as per Clause 9 of the agreement dated 15.10.2004 signed by and between the applicant and the respondent, passing of the award by the arbitrator, and also till enforcement of the said award...". It is therefore apparent, that the interim prayer made by the appellant under Section 9 of the Act in the very first instance was till the enforcement of the award. It is undoubtedly apparent from a perusal of Section 9 of the Act, extracted above, that the enforcement of the award can be effected only under Section 36 of the Act. The aforesaid stage has not yet emerged. The stage presently is of the interregnum, between the passing of the award, and the enforcement of the award under Section 36 of the Act.9. We are of the view, that the prayer made by the appellant clearly included the period, after the pronouncement of the award by the arbitral Tribunal. In the above view of the matter, it is not possible for us to hold, that the proceedings pending before this Court, have been rendered infructuous. In any case, it is now imperative for us to determine whether or not the impugned interim order, should continue till the proceedings under Section 34 of the Act (presently pending before the District Judge) are concluded. We are satisfied in directing, that the appellant shall, with effect from the date of the commencement of the arbitral award, pay for the fly ash taken by it from the respondent at the rate of Rs.245/per metric tonne (i.e., in consonance with the arbitral award), till the determination of the proceedings under Section 34 of the Act. We however clarify, that in case, for any reason, the arbitral award is set aside or modified, as prayed for by the respondent – Nigam, the appellant would be liable to pay the higher amount, as the respondent would have been able to procure, as disclosed by the auction already held in 2011(for the period with effect from 2012). Likewise, in case the appellant before this Court succeeds, and is held to be entitled to pay a lesser amount, the payment with effect from 2012 would be regulated by the saidperusal of the above provision reveals, that interim measures can be allowed in favour of a party (who moves an application under Section 9 of the Act), either before the commencement of the arbitration proceedings, or during the pendencey of the arbitral proceedings, and even after the making of the arbitral award "... but before it is enforced in accordance with section 36...It is therefore apparent, that an interim arrangement, can be made under Section 9 of the Act, not only before and during the pendency of the arbitral proceedings, but also after the arbitral award has been pronounced.
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C.S.VENKATESH Vs. A.S.C.MURTHY (D) BY LRS | of the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available. 17. In Pushparani S. Sundaram and Others v. Pauline Manomani James (deceased) and Others 2002 (9) SCC 582 , this Court has held that inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. It was held thus: So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved. 18. Similar view has been taken by this Court in Manjunath Anandappa URF Shivappa Hanasi v. Tammanasa and Others 2003 (10) SCC 390 and Pukhraj D. Jain and Others v. G. Gopalakrishna 2004 (7) SCC 251. 19. The judgment of this Court in Umabai and Anr. v. Nilkanth Dhondiba Chavan (Dead) by LRs. and Anr., (2005) 6 SCC 243 is almost similar to the case at hand where the plaintiff had filed a suit for specific performance of the agreement to re- convey property. The plea of the plaintiff was that the transaction was one of mortgage and the sale stood redeemed and the plaintiff was discharged from the debt and he was ready to pay the defendant the amount for the property only in the alternative that the plea of mortgage was not accepted by the Court, would show that his readiness was conditional. The plaintiff did not have any income and could not raise the amount required for re-purchase of the property. In the totality of the circumstances, it was held that the plaintiff was not ready and willing to perform the contract. The conditions laid for the specific performance of the contract are in para 30, which is as under: 30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff- respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the plaintiff-respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records 20. In the instant case, the plaintiff has alleged that he was ready to pay Rs.35,000/- to the defendants and called upon them to execute the re- conveyance deed. However, in para 11 of the plaint it is pleaded that the plaintiff was running contract business wherein he suffered heavy loss and as such he gave up the business. It is also pleaded that at present the plaintiff has no business or profession and has no source of income. He has no property, either movable or immovable. Mere plea that he is ready to pay the consideration, without any material to substantiate this plea, cannot be accepted. It is not necessary for the plaintiff to produce ready money, but it is mandatory on his part to prove that he has the means to generate the consideration amount. Except the statement of PW-1, there is absolutely no evidence to show that the plaintiff has the means to make arrangements for payment of consideration under the reconveyance agreement. 21. It is relevant to state here that before filing the suit, the plaintiff had filed an application before the competent authority under the Karnataka Debt Relief Act seeking extinguishment of the debt and delivery of the property back to him. No doubt, the application was dismissed by the authority. But the fact remains that the intention of the plaintiff was not to pay the amount as per the re- conveyance agreement. 22. The deed of re-conveyance, contains a clause for payment of interest on the consideration amount of Rs.35,000/-. However, the plaintiff has pleaded that there is no agreement to pay the interest. This shows that the plaintiff was not ready to perform his part of the obligation as per the agreement. Further, the plaintiff had mortgaged the property with the bank and the bank had obtained an award against the plaintiff. When the suit property was put up for auction, the defendants paid the entire amount to the bank which was payable by the plaintiff under this award. This aspect also indicates the conduct of the plaintiff. 23. Taking an overall view of the matter, the trial court has rightly held that the plaintiff was not ready and willing to perform his part of the contract. The High Court, in our view, was not justified in reversing the well-reasoned judgment of the trial court. | 1[ds]13. It is settled that the real character of the transaction has to be ascertained from the provisions of the documents viewed in the light of surrounding circumstances. Since two documents were executed on the same day, the transaction cannot be a mortgage by way of conditional sale in view of the express provisions contained in Section 58(c) of the Transfer of Property Act, 1882. A perusal of the recitals contained in the sale deed at Exhibit P-8 shows that the property was agreed to be sold absolutely for a total consideration of Rs.35,000/-. The plaintiff has also stated that since possession has already been delivered earlier under a deed of mortgage, delivery of possession under this document does not arise. It was further stated that henceforth neither himself nor his heirs have any right, title or interest in the property and that the plaintiff is entitled to water, air, right of easement, etc. concerning the property together with all rights, title and interest and right of disposal of the property. The defendant, his son and grandson, etc. unto posterity are entitled to enjoy the property without any obstruction or trouble either by the plaintiff or from anyone claiming under him. He has delivered the possession certificate issued by the CITB and Khata certificate for transfer of Khata from Bangalore City Corporation. Thus, the language employed in this document is plain and unambiguous and the intention of the parties is also very clear from its recitals. Even the evidence led by the parties does not indicate to the contrary. Thus, a careful perusal of all the clauses of the sale deed and the evidence on record would clearly show that the intention of the parties was to make the transaction a sale. We are also of the view that since the execution of the reconveyance deed has already been established, question of holding the sale deed to be nominal cannot be acceptedThough a question was raised before the trial court that there are no pleadings as regards the plaintiffs readiness and willingness to perform the contract, the trial court has rightly held that there is sufficient compliance of Section 16(c) of the Act to the extent of pleadingsMere plea that he is ready to pay the consideration, without any material to substantiate this plea, cannot be accepted. It is not necessary for the plaintiff to produce ready money, but it is mandatory on his part to prove that he has the means to generate the consideration amount. Except the statement of PW-1, there is absolutely no evidence to show that the plaintiff has the means to make arrangements for payment of consideration under the reconveyance agreement21. It is relevant to state here that before filing the suit, the plaintiff had filed an application before the competent authority under the Karnataka Debt Relief Act seeking extinguishment of the debt and delivery of the property back to him. No doubt, the application was dismissed by the authority. But the fact remains that the intention of the plaintiff was not to pay the amount as per the re- conveyance agreement22. The deed of re-conveyance, contains a clause for payment of interest on the consideration amount of Rs.35,000/-. However, the plaintiff has pleaded that there is no agreement to pay the interest. This shows that the plaintiff was not ready to perform his part of the obligation as per the agreement. Further, the plaintiff had mortgaged the property with the bank and the bank had obtained an award against the plaintiff. When the suit property was put up for auction, the defendants paid the entire amount to the bank which was payable by the plaintiff under this award. This aspect also indicates the conduct of the plaintiff23. Taking an overall view of the matter, the trial court has rightly held that the plaintiff was not ready and willing to perform his part of the contract. The High Court, in our view, was not justified in reversing the well-reasoned judgment of the trial court15. The words ready and willing imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract | 1 | 3,469 | 924 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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of the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available. 17. In Pushparani S. Sundaram and Others v. Pauline Manomani James (deceased) and Others 2002 (9) SCC 582 , this Court has held that inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. It was held thus: So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved. 18. Similar view has been taken by this Court in Manjunath Anandappa URF Shivappa Hanasi v. Tammanasa and Others 2003 (10) SCC 390 and Pukhraj D. Jain and Others v. G. Gopalakrishna 2004 (7) SCC 251. 19. The judgment of this Court in Umabai and Anr. v. Nilkanth Dhondiba Chavan (Dead) by LRs. and Anr., (2005) 6 SCC 243 is almost similar to the case at hand where the plaintiff had filed a suit for specific performance of the agreement to re- convey property. The plea of the plaintiff was that the transaction was one of mortgage and the sale stood redeemed and the plaintiff was discharged from the debt and he was ready to pay the defendant the amount for the property only in the alternative that the plea of mortgage was not accepted by the Court, would show that his readiness was conditional. The plaintiff did not have any income and could not raise the amount required for re-purchase of the property. In the totality of the circumstances, it was held that the plaintiff was not ready and willing to perform the contract. The conditions laid for the specific performance of the contract are in para 30, which is as under: 30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff- respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the plaintiff-respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records 20. In the instant case, the plaintiff has alleged that he was ready to pay Rs.35,000/- to the defendants and called upon them to execute the re- conveyance deed. However, in para 11 of the plaint it is pleaded that the plaintiff was running contract business wherein he suffered heavy loss and as such he gave up the business. It is also pleaded that at present the plaintiff has no business or profession and has no source of income. He has no property, either movable or immovable. Mere plea that he is ready to pay the consideration, without any material to substantiate this plea, cannot be accepted. It is not necessary for the plaintiff to produce ready money, but it is mandatory on his part to prove that he has the means to generate the consideration amount. Except the statement of PW-1, there is absolutely no evidence to show that the plaintiff has the means to make arrangements for payment of consideration under the reconveyance agreement. 21. It is relevant to state here that before filing the suit, the plaintiff had filed an application before the competent authority under the Karnataka Debt Relief Act seeking extinguishment of the debt and delivery of the property back to him. No doubt, the application was dismissed by the authority. But the fact remains that the intention of the plaintiff was not to pay the amount as per the re- conveyance agreement. 22. The deed of re-conveyance, contains a clause for payment of interest on the consideration amount of Rs.35,000/-. However, the plaintiff has pleaded that there is no agreement to pay the interest. This shows that the plaintiff was not ready to perform his part of the obligation as per the agreement. Further, the plaintiff had mortgaged the property with the bank and the bank had obtained an award against the plaintiff. When the suit property was put up for auction, the defendants paid the entire amount to the bank which was payable by the plaintiff under this award. This aspect also indicates the conduct of the plaintiff. 23. Taking an overall view of the matter, the trial court has rightly held that the plaintiff was not ready and willing to perform his part of the contract. The High Court, in our view, was not justified in reversing the well-reasoned judgment of the trial court.
### Response:
1
### Explanation:
13. It is settled that the real character of the transaction has to be ascertained from the provisions of the documents viewed in the light of surrounding circumstances. Since two documents were executed on the same day, the transaction cannot be a mortgage by way of conditional sale in view of the express provisions contained in Section 58(c) of the Transfer of Property Act, 1882. A perusal of the recitals contained in the sale deed at Exhibit P-8 shows that the property was agreed to be sold absolutely for a total consideration of Rs.35,000/-. The plaintiff has also stated that since possession has already been delivered earlier under a deed of mortgage, delivery of possession under this document does not arise. It was further stated that henceforth neither himself nor his heirs have any right, title or interest in the property and that the plaintiff is entitled to water, air, right of easement, etc. concerning the property together with all rights, title and interest and right of disposal of the property. The defendant, his son and grandson, etc. unto posterity are entitled to enjoy the property without any obstruction or trouble either by the plaintiff or from anyone claiming under him. He has delivered the possession certificate issued by the CITB and Khata certificate for transfer of Khata from Bangalore City Corporation. Thus, the language employed in this document is plain and unambiguous and the intention of the parties is also very clear from its recitals. Even the evidence led by the parties does not indicate to the contrary. Thus, a careful perusal of all the clauses of the sale deed and the evidence on record would clearly show that the intention of the parties was to make the transaction a sale. We are also of the view that since the execution of the reconveyance deed has already been established, question of holding the sale deed to be nominal cannot be acceptedThough a question was raised before the trial court that there are no pleadings as regards the plaintiffs readiness and willingness to perform the contract, the trial court has rightly held that there is sufficient compliance of Section 16(c) of the Act to the extent of pleadingsMere plea that he is ready to pay the consideration, without any material to substantiate this plea, cannot be accepted. It is not necessary for the plaintiff to produce ready money, but it is mandatory on his part to prove that he has the means to generate the consideration amount. Except the statement of PW-1, there is absolutely no evidence to show that the plaintiff has the means to make arrangements for payment of consideration under the reconveyance agreement21. It is relevant to state here that before filing the suit, the plaintiff had filed an application before the competent authority under the Karnataka Debt Relief Act seeking extinguishment of the debt and delivery of the property back to him. No doubt, the application was dismissed by the authority. But the fact remains that the intention of the plaintiff was not to pay the amount as per the re- conveyance agreement22. The deed of re-conveyance, contains a clause for payment of interest on the consideration amount of Rs.35,000/-. However, the plaintiff has pleaded that there is no agreement to pay the interest. This shows that the plaintiff was not ready to perform his part of the obligation as per the agreement. Further, the plaintiff had mortgaged the property with the bank and the bank had obtained an award against the plaintiff. When the suit property was put up for auction, the defendants paid the entire amount to the bank which was payable by the plaintiff under this award. This aspect also indicates the conduct of the plaintiff23. Taking an overall view of the matter, the trial court has rightly held that the plaintiff was not ready and willing to perform his part of the contract. The High Court, in our view, was not justified in reversing the well-reasoned judgment of the trial court15. The words ready and willing imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract
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SRI LANKAPPA & ORS Vs. KARNATAKA INDUSTRIAL CORPORATION & ORS | second appeal preferred by the parties i.e., RSA No. 236/1999 was dismissed on 16.06.2005. The High Court pertinently observed and held that the appellants herein were in possession of the Suit Schedule Property and rightly injuncted the respondents from interfering with their peaceful possession and enjoyment of the same, holding further that there was deemed cancellation of the grant of land granted in favour of the respondents herein as due procedure had not been followed. 17. These findings were challenged in a suit filed by the appellants, which claimed that they had absolute title to the property. No doubt, KICs suit claimed injunction; its dismissal, if that were the only proceeding, would not have precluded a subsequent suit, claiming title. However, the fact here is that KIC was a respondent in the suit filed by the appellant (i.e., the 1995 Suit) which expressly sought the relief of declaration that the appellant was the absolute owner. It was in such a context that the question of ownership, which was directly in issue, in a proceeding, i.e., a suit, filed before a competent court, was decided. That decision ruled out KICs ownership, holding that there was deemed cancellation of the grant of land before the High Court. All these facts were disclosed by KIC in the suit filed after this Court dismissed its civil appeal, thus rendering the judgment in the second appeal final. In these circumstances, the issue which remains is whether the trial court wrongly rejected KIC Suit-II, as found by the impugned judgment. 18. In Anathula Sudhakar, this Court outlined various situations in which a person claiming possession or injunction can claim relief. They are set out below: 21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over the plaintiffs title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiffs title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiffs lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202]) . Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. 19. In the present case, KIC no doubt sought only a permanent injunction in its first suit. However, it is a fact of equal importance that the appellants-herein consistently agitated KICs title. KIC was a party to those proceedings. All the courts concurrently held that the grant, on which KIC based its possession, was deemed to be cancelled. Therefore, KIC could, by no procedure known to law, claim in another suit, that it was the absolute owner by virtue of the self-same grant, which was deemed to have been cancelled. The trial court therefore cannot be faulted with for holding that the question of title was directly in issue in the previous proceedings, and merely because it resulted in findings adverse to KIC, it could not escape being bound by those findings. 20. It is noticeable that the High Court, in the impugned judgment, has considered Vithalbhai (P) Ltd., v Union Bank of India (2005) 4 SCC 315 . where it has been held that a plaint can be rejected at any stage. Furthermore, it has also been ruled in M. Nagabhushana v State of Karnataka & Others (2011) 3 SCC 408 that the principle of res judicata is fundamental to the judicial system. Having regard to the above discussion, this Court is of the opinion that the impugned judgment (in holding that despite the fact that in the previous proceedings the issue of title stood concluded, the trail court had to proceed with the suit) is clearly in error. | 1[ds]16. It is apparent from the above facts that the two suits filed earlier – the 1995 Suit and KIC Suit-I – culminated in a decision favourable to the appellants herein, as KICs suit was dismissed. KIC and the other respondents appealed against the decision in the present appellants suit; that appeal was also dismissed. The second appeal preferred by the parties i.e., RSA No. 236/1999 was dismissed on 16.06.2005. The High Court pertinently observed and held that the appellants herein were in possession of the Suit Schedule Property and rightly injuncted the respondents from interfering with their peaceful possession and enjoyment of the same, holding further that there was deemed cancellation of the grant of land granted in favour of the respondents herein as due procedure had not been followed.18. In Anathula Sudhakar, this Court outlined various situations in which a person claiming possession or injunction can claim relief. They are set out below:21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:(a) Where a cloud is raised over the plaintiffs title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiffs title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiffs lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202]) . Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.19. In the present case, KIC no doubt sought only a permanent injunction in its first suit. However, it is a fact of equal importance that the appellants-herein consistently agitated KICs title. KIC was a party to those proceedings. All the courts concurrently held that the grant, on which KIC based its possession, was deemed to be cancelled. Therefore, KIC could, by no procedure known to law, claim in another suit, that it was the absolute owner by virtue of the self-same grant, which was deemed to have been cancelled. The trial court therefore cannot be faulted with for holding that the question of title was directly in issue in the previous proceedings, and merely because it resulted in findings adverse to KIC, it could not escape being bound by those findings.20. It is noticeable that the High Court, in the impugned judgment, has considered Vithalbhai (P) Ltd., v Union Bank of India (2005) 4 SCC 315 . where it has been held that a plaint can be rejected at any stage. Furthermore, it has also been ruled in M. Nagabhushana v State of Karnataka & Others (2011) 3 SCC 408 that the principle of res judicata is fundamental to the judicial system. Having regard to the above discussion, this Court is of the opinion that the impugned judgment (in holding that despite the fact that in the previous proceedings the issue of title stood concluded, the trail court had to proceed with the suit) is clearly in error. | 1 | 4,022 | 982 | ### 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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second appeal preferred by the parties i.e., RSA No. 236/1999 was dismissed on 16.06.2005. The High Court pertinently observed and held that the appellants herein were in possession of the Suit Schedule Property and rightly injuncted the respondents from interfering with their peaceful possession and enjoyment of the same, holding further that there was deemed cancellation of the grant of land granted in favour of the respondents herein as due procedure had not been followed. 17. These findings were challenged in a suit filed by the appellants, which claimed that they had absolute title to the property. No doubt, KICs suit claimed injunction; its dismissal, if that were the only proceeding, would not have precluded a subsequent suit, claiming title. However, the fact here is that KIC was a respondent in the suit filed by the appellant (i.e., the 1995 Suit) which expressly sought the relief of declaration that the appellant was the absolute owner. It was in such a context that the question of ownership, which was directly in issue, in a proceeding, i.e., a suit, filed before a competent court, was decided. That decision ruled out KICs ownership, holding that there was deemed cancellation of the grant of land before the High Court. All these facts were disclosed by KIC in the suit filed after this Court dismissed its civil appeal, thus rendering the judgment in the second appeal final. In these circumstances, the issue which remains is whether the trial court wrongly rejected KIC Suit-II, as found by the impugned judgment. 18. In Anathula Sudhakar, this Court outlined various situations in which a person claiming possession or injunction can claim relief. They are set out below: 21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over the plaintiffs title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiffs title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiffs lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202]) . Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. 19. In the present case, KIC no doubt sought only a permanent injunction in its first suit. However, it is a fact of equal importance that the appellants-herein consistently agitated KICs title. KIC was a party to those proceedings. All the courts concurrently held that the grant, on which KIC based its possession, was deemed to be cancelled. Therefore, KIC could, by no procedure known to law, claim in another suit, that it was the absolute owner by virtue of the self-same grant, which was deemed to have been cancelled. The trial court therefore cannot be faulted with for holding that the question of title was directly in issue in the previous proceedings, and merely because it resulted in findings adverse to KIC, it could not escape being bound by those findings. 20. It is noticeable that the High Court, in the impugned judgment, has considered Vithalbhai (P) Ltd., v Union Bank of India (2005) 4 SCC 315 . where it has been held that a plaint can be rejected at any stage. Furthermore, it has also been ruled in M. Nagabhushana v State of Karnataka & Others (2011) 3 SCC 408 that the principle of res judicata is fundamental to the judicial system. Having regard to the above discussion, this Court is of the opinion that the impugned judgment (in holding that despite the fact that in the previous proceedings the issue of title stood concluded, the trail court had to proceed with the suit) is clearly in error.
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1
### Explanation:
16. It is apparent from the above facts that the two suits filed earlier – the 1995 Suit and KIC Suit-I – culminated in a decision favourable to the appellants herein, as KICs suit was dismissed. KIC and the other respondents appealed against the decision in the present appellants suit; that appeal was also dismissed. The second appeal preferred by the parties i.e., RSA No. 236/1999 was dismissed on 16.06.2005. The High Court pertinently observed and held that the appellants herein were in possession of the Suit Schedule Property and rightly injuncted the respondents from interfering with their peaceful possession and enjoyment of the same, holding further that there was deemed cancellation of the grant of land granted in favour of the respondents herein as due procedure had not been followed.18. In Anathula Sudhakar, this Court outlined various situations in which a person claiming possession or injunction can claim relief. They are set out below:21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:(a) Where a cloud is raised over the plaintiffs title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiffs title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiffs lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202]) . Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.19. In the present case, KIC no doubt sought only a permanent injunction in its first suit. However, it is a fact of equal importance that the appellants-herein consistently agitated KICs title. KIC was a party to those proceedings. All the courts concurrently held that the grant, on which KIC based its possession, was deemed to be cancelled. Therefore, KIC could, by no procedure known to law, claim in another suit, that it was the absolute owner by virtue of the self-same grant, which was deemed to have been cancelled. The trial court therefore cannot be faulted with for holding that the question of title was directly in issue in the previous proceedings, and merely because it resulted in findings adverse to KIC, it could not escape being bound by those findings.20. It is noticeable that the High Court, in the impugned judgment, has considered Vithalbhai (P) Ltd., v Union Bank of India (2005) 4 SCC 315 . where it has been held that a plaint can be rejected at any stage. Furthermore, it has also been ruled in M. Nagabhushana v State of Karnataka & Others (2011) 3 SCC 408 that the principle of res judicata is fundamental to the judicial system. Having regard to the above discussion, this Court is of the opinion that the impugned judgment (in holding that despite the fact that in the previous proceedings the issue of title stood concluded, the trail court had to proceed with the suit) is clearly in error.
|
Travancore Rayon Ltd Vs. Union Of India | accept the contention that the order passed by the Government of India rejecting a revision application under the Mineral Concession Rules was liable to be quashed, because it did not give any reasons Bachawat, J., observed at page 477 (of SCR) = (at page 677 of AIR) :"There is a vital difference between the order of reversal by the appellate authority in that case for no. reason whatsoever and the order of affirmance by the revising authority in the present case. Having stated that there was no. valid ground for interference, the revising authority was not bound to give fuller reasons. It is impossible to say that the impugned order was arbitrary, or that there was no. proper trial of the revision application."On the other hand, Subba Rao, J., observed at page 472 (of SCR) = (at p. 674 of AIR) :"The least a tribunal can do is to disclose its mind. The compulsion of disclosure guarantees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory Court, to keep the tribunals within bounds. A reasoned order is a desirable condition of judicial, disposal.The conception of exercise of revisional jurisdiction and the manner of disposal provided in Rule 55 of the Rules are indicative of the scope and nature of the Governments jurisdiction. If tribunals can make orders without giving reasons, the said power in the hands of unscrupulous or dishonest officers may turn out to be a weapon for abuse of power. But if reasons for an order are given. it will be an effective restraint on such abuse, as the order, if it discloses extraneous or irrelevant considerations, will be subject to judicial scrutiny and correction. A speaking order will at its best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard.****The habit of mind of an executive officer so formed cannot be expected to change from function to function or from act to act. So it is essential that some restrictions shall be imposed on tribunals in the matter of passing orders affecting the rights of parties; and the least they should do is to give reasons for their orders.*****Ordinarily, the appellate or revisional tribunal shall give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the appellate tribunal may dismiss the appeal or the revision as the case may be agreeing with those reasons. What is essential is that reasons shall be given by an appellate or revisional tribunal expressly or by reference to those given by the original tribunal. The nature and the elaboration of the reasons necessarily depend upon the facts of each case".9. In a later judgment Bhagat Raja v. The Union of India, (1967) 3 SCR 302 = (AIR 1967 SC 1606 ) the Constitution Bench of this Court in effect overruled the judgment of the majority in Madhya Pradesh Industries Limiteds case. (1966) 1 SCR 466 = (AIR 1966 SC 671 ). The Court held that the decisions of tribunals in India are subject to the supervisory powers of the High Court under Article 227 of the Constitution and of appellate powers of this Court under Article 136. The High Court and this Court would be placed under a great disadvantage if no. reasons are given and the revision is dismissed by the use of the single word rejected or dismissed. The Court in that case held that the order of the Central Government in appeal, did not set out any reasons of its own and on that account set aside that order. In our view, the majority judgment of this Court in Madhya Pradesh Industries Ltd.s case, (1966) 1 SCR 466 = (AIR 1966 SC 671 ) has been overruled by this Court in Bhagat Rajas case, (1967) 3 SCR 302 = (AIR 1967 SC 1606).10. In later decisions of this Court it was held that where the Central Government exercising power in revision gives no. reasons, the order will be regarded as void : see State of Madhya Pradesh v. Seth Narsinghdas Jankidas Mehta, C. A. No. 681 of 1966, D/- 29-4-1969 = (AIR 1969 NSC 115); The State of Gujarat v. Patel Raghav Nath C. A. No. 723 of 1966, D/- 21-4-1969 = (AIR 1969 SC 1297 ); and Prag Das Umar Vaishya v. Union of India, C. A No. 657 of 1967, D/- 17-8-1967 (SC).11. In this case the communication from the Central Government gave no. reasons in support of the order; the appellant Company is merely intimated thereby that the Government of India did not see any reasons to interfere "with the order in appeal". The communication does not disclose the "points" which were considered and the reasons for rejecting them. This is a totally unsatisfactory method of disposal of a case in exercise of the judicial power vested in the Central Government. Necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved, and the mental process by which the conclusion is reached in cases where a non-judicial authority exercises judicial functions, is obvious. When judicial power is exercised by an authority normally performing executive or administrative functions, this Court would require to be satisfied that the decision has been reached after due consideration of the merits of the dispute, uninfluenced by extraneous considerations of policy or expediency. The Court insists upon disclosure of reasons in support of the order on two grounds : one, that the party aggrieved in a proceeding before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous : the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power. | 1[ds]It is true that the rules do not require that personal hearing shall be given, but, if in appropriate cases where complex and difficult questions requiring familiarity with technical problems are raised, personal hearing is given it would conduce to better administration and more satisfactory disposal of the grievances of citizens. The order does not disclose the name or designation of the authority of the Government of India who considered "the points made by the applicants", and it is impossible to say whether the officer was familiar with the subject-matter so that he could decide the dispute without elucidation and merely on a perusal of the papers. The form in which the order was communicated is apparently a printed form. There is a bare assertion by the Joint Secretary to the Government of India in his communication that the Government of India had "carefully considered the points made by the applicants", there is no. evidence as to who considered the "points" and what was considered. The Central Government is by Section 36 invested with the judicial power of the State. Orders involving important disputes are brought before the Government. The orders made by the Central Government are subject to appeal to this Court under Article 136 of the Constitution. It would be impossible for this Court, exercising jurisdiction under Article l36, to decide the dispute without a speaking order of the authority, setting out the nature of the dispute, the arguments in support thereof raised by the aggrieved party and reasonably disclosing that the matter received due consideration by the authority competent to decide the dispute. Exercise of the right to appeal to this Court would be futile, if the authority chooses not to disclose the reasons in support of the decision reached by it. A party who approaches the Government in exercise of a statutory right, for adjudication of a dispute is entitled to know at least the official designation of the person who has considered the matter, what was considered by him, and the reasons for recording a decision against him. To enable the High Court or this Court to exercise its constitutional powers, not only the decision, but an adequate disclosure of materials justifying an inference that there has been a judicial consideration of the dispute by an authority competent in that behalf in the light of the claim made by the aggrieved party, is necessary. If the Officer acting on behalf of the Government chooses to give no. reasons, the right of appeal will be devoid of anyour view, the majority judgment of this Court in Madhya Pradesh Industries Ltd.s case, (1966) 1 SCR 466 = (AIR 1966 SC 671 ) has been overruled by this Court in Bhagat Rajas case, (1967) 3 SCR 302 = (AIR 1967 SCIn this case the communication from the Central Government gave no. reasons in support of the order; the appellant Company is merely intimated thereby that the Government of India did not see any reasons to interfere "with the order in appeal". The communication does not disclose the "points" which were considered and the reasons for rejecting them. This is a totally unsatisfactory method of disposal of a case in exercise of the judicial power vested in the Central Government. Necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved, and the mental process by which the conclusion is reached in cases where a non-judicial authority exercises judicial functions, is obvious. When judicial power is exercised by an authority normally performing executive or administrative functions, this Court would require to be satisfied that the decision has been reached after due consideration of the merits of the dispute, uninfluenced by extraneous considerations of policy or expediency. The Court insists upon disclosure of reasons in support of the order on two grounds : one, that the party aggrieved in a proceeding before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous : the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power. | 1 | 2,547 | 763 | ### 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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accept the contention that the order passed by the Government of India rejecting a revision application under the Mineral Concession Rules was liable to be quashed, because it did not give any reasons Bachawat, J., observed at page 477 (of SCR) = (at page 677 of AIR) :"There is a vital difference between the order of reversal by the appellate authority in that case for no. reason whatsoever and the order of affirmance by the revising authority in the present case. Having stated that there was no. valid ground for interference, the revising authority was not bound to give fuller reasons. It is impossible to say that the impugned order was arbitrary, or that there was no. proper trial of the revision application."On the other hand, Subba Rao, J., observed at page 472 (of SCR) = (at p. 674 of AIR) :"The least a tribunal can do is to disclose its mind. The compulsion of disclosure guarantees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory Court, to keep the tribunals within bounds. A reasoned order is a desirable condition of judicial, disposal.The conception of exercise of revisional jurisdiction and the manner of disposal provided in Rule 55 of the Rules are indicative of the scope and nature of the Governments jurisdiction. If tribunals can make orders without giving reasons, the said power in the hands of unscrupulous or dishonest officers may turn out to be a weapon for abuse of power. But if reasons for an order are given. it will be an effective restraint on such abuse, as the order, if it discloses extraneous or irrelevant considerations, will be subject to judicial scrutiny and correction. A speaking order will at its best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard.****The habit of mind of an executive officer so formed cannot be expected to change from function to function or from act to act. So it is essential that some restrictions shall be imposed on tribunals in the matter of passing orders affecting the rights of parties; and the least they should do is to give reasons for their orders.*****Ordinarily, the appellate or revisional tribunal shall give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the appellate tribunal may dismiss the appeal or the revision as the case may be agreeing with those reasons. What is essential is that reasons shall be given by an appellate or revisional tribunal expressly or by reference to those given by the original tribunal. The nature and the elaboration of the reasons necessarily depend upon the facts of each case".9. In a later judgment Bhagat Raja v. The Union of India, (1967) 3 SCR 302 = (AIR 1967 SC 1606 ) the Constitution Bench of this Court in effect overruled the judgment of the majority in Madhya Pradesh Industries Limiteds case. (1966) 1 SCR 466 = (AIR 1966 SC 671 ). The Court held that the decisions of tribunals in India are subject to the supervisory powers of the High Court under Article 227 of the Constitution and of appellate powers of this Court under Article 136. The High Court and this Court would be placed under a great disadvantage if no. reasons are given and the revision is dismissed by the use of the single word rejected or dismissed. The Court in that case held that the order of the Central Government in appeal, did not set out any reasons of its own and on that account set aside that order. In our view, the majority judgment of this Court in Madhya Pradesh Industries Ltd.s case, (1966) 1 SCR 466 = (AIR 1966 SC 671 ) has been overruled by this Court in Bhagat Rajas case, (1967) 3 SCR 302 = (AIR 1967 SC 1606).10. In later decisions of this Court it was held that where the Central Government exercising power in revision gives no. reasons, the order will be regarded as void : see State of Madhya Pradesh v. Seth Narsinghdas Jankidas Mehta, C. A. No. 681 of 1966, D/- 29-4-1969 = (AIR 1969 NSC 115); The State of Gujarat v. Patel Raghav Nath C. A. No. 723 of 1966, D/- 21-4-1969 = (AIR 1969 SC 1297 ); and Prag Das Umar Vaishya v. Union of India, C. A No. 657 of 1967, D/- 17-8-1967 (SC).11. In this case the communication from the Central Government gave no. reasons in support of the order; the appellant Company is merely intimated thereby that the Government of India did not see any reasons to interfere "with the order in appeal". The communication does not disclose the "points" which were considered and the reasons for rejecting them. This is a totally unsatisfactory method of disposal of a case in exercise of the judicial power vested in the Central Government. Necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved, and the mental process by which the conclusion is reached in cases where a non-judicial authority exercises judicial functions, is obvious. When judicial power is exercised by an authority normally performing executive or administrative functions, this Court would require to be satisfied that the decision has been reached after due consideration of the merits of the dispute, uninfluenced by extraneous considerations of policy or expediency. The Court insists upon disclosure of reasons in support of the order on two grounds : one, that the party aggrieved in a proceeding before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous : the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power.
### Response:
1
### Explanation:
It is true that the rules do not require that personal hearing shall be given, but, if in appropriate cases where complex and difficult questions requiring familiarity with technical problems are raised, personal hearing is given it would conduce to better administration and more satisfactory disposal of the grievances of citizens. The order does not disclose the name or designation of the authority of the Government of India who considered "the points made by the applicants", and it is impossible to say whether the officer was familiar with the subject-matter so that he could decide the dispute without elucidation and merely on a perusal of the papers. The form in which the order was communicated is apparently a printed form. There is a bare assertion by the Joint Secretary to the Government of India in his communication that the Government of India had "carefully considered the points made by the applicants", there is no. evidence as to who considered the "points" and what was considered. The Central Government is by Section 36 invested with the judicial power of the State. Orders involving important disputes are brought before the Government. The orders made by the Central Government are subject to appeal to this Court under Article 136 of the Constitution. It would be impossible for this Court, exercising jurisdiction under Article l36, to decide the dispute without a speaking order of the authority, setting out the nature of the dispute, the arguments in support thereof raised by the aggrieved party and reasonably disclosing that the matter received due consideration by the authority competent to decide the dispute. Exercise of the right to appeal to this Court would be futile, if the authority chooses not to disclose the reasons in support of the decision reached by it. A party who approaches the Government in exercise of a statutory right, for adjudication of a dispute is entitled to know at least the official designation of the person who has considered the matter, what was considered by him, and the reasons for recording a decision against him. To enable the High Court or this Court to exercise its constitutional powers, not only the decision, but an adequate disclosure of materials justifying an inference that there has been a judicial consideration of the dispute by an authority competent in that behalf in the light of the claim made by the aggrieved party, is necessary. If the Officer acting on behalf of the Government chooses to give no. reasons, the right of appeal will be devoid of anyour view, the majority judgment of this Court in Madhya Pradesh Industries Ltd.s case, (1966) 1 SCR 466 = (AIR 1966 SC 671 ) has been overruled by this Court in Bhagat Rajas case, (1967) 3 SCR 302 = (AIR 1967 SCIn this case the communication from the Central Government gave no. reasons in support of the order; the appellant Company is merely intimated thereby that the Government of India did not see any reasons to interfere "with the order in appeal". The communication does not disclose the "points" which were considered and the reasons for rejecting them. This is a totally unsatisfactory method of disposal of a case in exercise of the judicial power vested in the Central Government. Necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved, and the mental process by which the conclusion is reached in cases where a non-judicial authority exercises judicial functions, is obvious. When judicial power is exercised by an authority normally performing executive or administrative functions, this Court would require to be satisfied that the decision has been reached after due consideration of the merits of the dispute, uninfluenced by extraneous considerations of policy or expediency. The Court insists upon disclosure of reasons in support of the order on two grounds : one, that the party aggrieved in a proceeding before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous : the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power.
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Musammat Murti Dussadhin And Others Vs. Surajdeo Singh And Others | of the parties in the present case there can be no question of coming to a formal finding of fact that the plaintiff was in possession because on the pleadings the plaintiff never claimed that he had been ejected or dispossessed and the defendants never asserted that they forcibly ejected the plaintiff."In conclusion, the learned Judge held that having regard to the facts and circumstances of this particular case, the burden was on the defendants to show whether they have been in possession for 12 years or more. In the result he dismissed the appeal. The defendants having obtained leave from this Court, the appeal is now before us for disposal.6. It has been argued on behalf of the appellants that the Full Bench judgment relied on by the learned Judge was wrongly decided and that on the facts of this case, Art, 142 and not Art. 144 governed the case. We are of the opinion that the Full Bench was correctly decided and that Art. 144 applied to the facts of this case.7. The learned counsel for the appellant urged that in an action in ejectment, one of the things that the plaintiff must prove is his title to immediate possession. This is true and there is no dispute about this proposition. He further urges that where the plaintiff does not admit tenancy, although the defendant alleges tenancy, he must show possession within 12 years of the suit. He says that the defendants have admitted title of the plaintiff but not possession. To support his proposition, the learned counsel for the appellant, apart from Patna cases which have been overruled by the Full Bench, relied on The Official Receiver of East Godavari v. Chava Govinda Raju, ILR (1940) Mad 953 : (AIR 1940 Mad 798 FB) and Behari Lal v. Sundar Das, ILR 16 Lah 443: (AIR 1935 Lah 475 FB). In the Madras case, an auction purchaser was obstructed by a person who claimed it as his own ancestral property. The auction purchaser sued for declaration and injunction. The facts are quite different and in none of the cases discussed by the learned Chief Justice in his judgment a defendant had claimed possession under the plaintiff but had asserted right by adverse possession.8. In ILR 16 Lah 443 : (AIR 1935 Lah 475 FB) the fact as stated in the headnote were these :"The plaintiffs instituted a suit for possession of a house against N.B. and N.D., alleging that in 1927 they had rented the house to N.B., who had sublet it to the defendant N.D. The plaintiffs stated in the plaint that they were the owners of the house and that they had instituted a suit previously for recovery of rent against both the defendants, but N.D. had asserted his own title to the property and the suit had been dismissed against him, but had been decreed against N.B."The High Court held that the plaintiffs clearly pleaded possession and dispossession i.e., possession through their tenant N.B. and dispossession by the latters sub-tenant N.D., when he set up a title of his own. This case is again distinguishable for the sub-tenant had clearly asserted his own title and denied that of the plaintiff.9. Another case cited by the learned counsel for the appellant is Lakshmanna v. Venkateshwarlu, 76 Ind App 202 : (AIR 1949 PC 278 ), in which the Privy Council Reviewed most of its earlier decisions on this branch of the law. In this case, a holder of a minor inam sued to eject the tenants from the holding, and the Privy Council held that the burden was on the plaintiff to make out a right by proving that the grant included both the melvaram and Kudivaram interests, or that the tenants or their predecessors were let into possession by the inamdar under a terminable lease. One of the cases referred to is Seturatnam Aiyar v. Venkatachala Gounder, 47 Ind app 76 : (AIR 1920 PC 67), and with reference to it the Board observed at p. 224 (of Ind App) : (at pp. 286-287 of AIR), as follows :"In the above case it was either admitted or found as a fact that the tenants had been let into possession by the landlord who was the absolute owner. When the tenant claims rights of occupancy in such circumstances their Lordships, in Nainapillai Marakayar v. Ramanathan Chettiar, (AIR 1924 PC 65 ), laid down the principle that the burden will be on him to prove that he has such rights. "Is the position the same when the plaintiff does not admit any tenancy but the defendant alleges tenancy but of a permanent nature? It seems to us that if a defendant not only admits title of the plaintiff but also admits that he derived possession from the plaintiff as a tenant, the case must proceed on the defendants plea, and for the purpose of deciding whether Article 142 or Article 144 applied, it must be assumed that the plaintiff has not been dispossessed or has not discontinued his possession within the meaning of Art.142, for neither the plaintiff nor the defendant alleges dispossession or discontinuation of possession.10. Construing the plaint as a whole, it is clear that the plaintiff never alleged dispossession or being out of possession. He asserted ownership of the suit land and claimed that he was in possession. Section 144, Cri. P.C. proceedings seemed to have cast a doubt on his title and he accordingly brought a suit for a declaration. It is true that in the alternative he prayed for a decree for possession and mesne profits. He was careful even in this alternative prayer to say that he could only be deemed to be dispossessed by S. 144 proceedings. The defendants did not deny the title of the plaintiff to the suit land but asserted that they had been settled and acquired occupancy rights. On these facts it seems to us that it is Art. 144 and not Art, 142 that applied. | 0[ds]It seems to us that if a defendant not only admits title of the plaintiff but also admits that he derived possession from the plaintiff as a tenant, the case must proceed on the defendants plea, and for the purpose of deciding whether Article 142 or Article 144 applied, it must be assumed that the plaintiff has not been dispossessed or has not discontinued his possession within the meaning of Art.142, for neither the plaintiff nor the defendant alleges dispossession or discontinuation of possession.10. Construing the plaint as a whole, it is clear that the plaintiff never alleged dispossession or being out of possession. He asserted ownership of the suit land and claimed that he was in possession. Section 144, Cri. P.C. proceedings seemed to have cast a doubt on his title and he accordingly brought a suit for a declaration. It is true that in the alternative he prayed for a decree for possession and mesne profits. He was careful even in this alternative prayer to say that he could only be deemed to be dispossessed by S. 144 proceedings. The defendants did not deny the title of the plaintiff to the suit land but asserted that they had been settled and acquired occupancy rights. On these facts it seems to us that it is Art. 144 and not Art, 142 that applied. | 0 | 1,983 | 246 | ### 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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of the parties in the present case there can be no question of coming to a formal finding of fact that the plaintiff was in possession because on the pleadings the plaintiff never claimed that he had been ejected or dispossessed and the defendants never asserted that they forcibly ejected the plaintiff."In conclusion, the learned Judge held that having regard to the facts and circumstances of this particular case, the burden was on the defendants to show whether they have been in possession for 12 years or more. In the result he dismissed the appeal. The defendants having obtained leave from this Court, the appeal is now before us for disposal.6. It has been argued on behalf of the appellants that the Full Bench judgment relied on by the learned Judge was wrongly decided and that on the facts of this case, Art, 142 and not Art. 144 governed the case. We are of the opinion that the Full Bench was correctly decided and that Art. 144 applied to the facts of this case.7. The learned counsel for the appellant urged that in an action in ejectment, one of the things that the plaintiff must prove is his title to immediate possession. This is true and there is no dispute about this proposition. He further urges that where the plaintiff does not admit tenancy, although the defendant alleges tenancy, he must show possession within 12 years of the suit. He says that the defendants have admitted title of the plaintiff but not possession. To support his proposition, the learned counsel for the appellant, apart from Patna cases which have been overruled by the Full Bench, relied on The Official Receiver of East Godavari v. Chava Govinda Raju, ILR (1940) Mad 953 : (AIR 1940 Mad 798 FB) and Behari Lal v. Sundar Das, ILR 16 Lah 443: (AIR 1935 Lah 475 FB). In the Madras case, an auction purchaser was obstructed by a person who claimed it as his own ancestral property. The auction purchaser sued for declaration and injunction. The facts are quite different and in none of the cases discussed by the learned Chief Justice in his judgment a defendant had claimed possession under the plaintiff but had asserted right by adverse possession.8. In ILR 16 Lah 443 : (AIR 1935 Lah 475 FB) the fact as stated in the headnote were these :"The plaintiffs instituted a suit for possession of a house against N.B. and N.D., alleging that in 1927 they had rented the house to N.B., who had sublet it to the defendant N.D. The plaintiffs stated in the plaint that they were the owners of the house and that they had instituted a suit previously for recovery of rent against both the defendants, but N.D. had asserted his own title to the property and the suit had been dismissed against him, but had been decreed against N.B."The High Court held that the plaintiffs clearly pleaded possession and dispossession i.e., possession through their tenant N.B. and dispossession by the latters sub-tenant N.D., when he set up a title of his own. This case is again distinguishable for the sub-tenant had clearly asserted his own title and denied that of the plaintiff.9. Another case cited by the learned counsel for the appellant is Lakshmanna v. Venkateshwarlu, 76 Ind App 202 : (AIR 1949 PC 278 ), in which the Privy Council Reviewed most of its earlier decisions on this branch of the law. In this case, a holder of a minor inam sued to eject the tenants from the holding, and the Privy Council held that the burden was on the plaintiff to make out a right by proving that the grant included both the melvaram and Kudivaram interests, or that the tenants or their predecessors were let into possession by the inamdar under a terminable lease. One of the cases referred to is Seturatnam Aiyar v. Venkatachala Gounder, 47 Ind app 76 : (AIR 1920 PC 67), and with reference to it the Board observed at p. 224 (of Ind App) : (at pp. 286-287 of AIR), as follows :"In the above case it was either admitted or found as a fact that the tenants had been let into possession by the landlord who was the absolute owner. When the tenant claims rights of occupancy in such circumstances their Lordships, in Nainapillai Marakayar v. Ramanathan Chettiar, (AIR 1924 PC 65 ), laid down the principle that the burden will be on him to prove that he has such rights. "Is the position the same when the plaintiff does not admit any tenancy but the defendant alleges tenancy but of a permanent nature? It seems to us that if a defendant not only admits title of the plaintiff but also admits that he derived possession from the plaintiff as a tenant, the case must proceed on the defendants plea, and for the purpose of deciding whether Article 142 or Article 144 applied, it must be assumed that the plaintiff has not been dispossessed or has not discontinued his possession within the meaning of Art.142, for neither the plaintiff nor the defendant alleges dispossession or discontinuation of possession.10. Construing the plaint as a whole, it is clear that the plaintiff never alleged dispossession or being out of possession. He asserted ownership of the suit land and claimed that he was in possession. Section 144, Cri. P.C. proceedings seemed to have cast a doubt on his title and he accordingly brought a suit for a declaration. It is true that in the alternative he prayed for a decree for possession and mesne profits. He was careful even in this alternative prayer to say that he could only be deemed to be dispossessed by S. 144 proceedings. The defendants did not deny the title of the plaintiff to the suit land but asserted that they had been settled and acquired occupancy rights. On these facts it seems to us that it is Art. 144 and not Art, 142 that applied.
### Response:
0
### Explanation:
It seems to us that if a defendant not only admits title of the plaintiff but also admits that he derived possession from the plaintiff as a tenant, the case must proceed on the defendants plea, and for the purpose of deciding whether Article 142 or Article 144 applied, it must be assumed that the plaintiff has not been dispossessed or has not discontinued his possession within the meaning of Art.142, for neither the plaintiff nor the defendant alleges dispossession or discontinuation of possession.10. Construing the plaint as a whole, it is clear that the plaintiff never alleged dispossession or being out of possession. He asserted ownership of the suit land and claimed that he was in possession. Section 144, Cri. P.C. proceedings seemed to have cast a doubt on his title and he accordingly brought a suit for a declaration. It is true that in the alternative he prayed for a decree for possession and mesne profits. He was careful even in this alternative prayer to say that he could only be deemed to be dispossessed by S. 144 proceedings. The defendants did not deny the title of the plaintiff to the suit land but asserted that they had been settled and acquired occupancy rights. On these facts it seems to us that it is Art. 144 and not Art, 142 that applied.
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Trilok Sudhirbhai Pandya Vs. Union Of India | production of any document, reception of evidence on affidavits, requisitioning any public record from any court or office and issuing commission for examination of witnesses. 9. The aforesaid reference to the various provisions of the Act show that the Competent Authority has got vast powers, which affects the rights of persons interested in the land over which the pipeline is to be laid and on the reports of the Competent Authority, the Central Government and the State Government are to take decisions affecting the rights of persons interested in the land. Under the provisions of the Act, therefore, the Competent Authority does not merely determine the compensation at the first instance in accordance with the statutory rules as has been contended by learned counsel for the respondent no.4, but has to perform various other quasi-judicial functions which are normally performed by public servants whose pay, allowances and other incidentals of service are met out of the public exchequer. If instead of public servants, a person is appointed whose pay, allowances and other incidentals are not paid out of the public exchequer but directly paid by a private employer such as the respondent no.4, for whom the right of user is being acquired and by whom the compensation is payable, persons interested in the land will have reasonable grounds for assuming that such a Competent Authority, who is dependent on a private corporation for his salary, allowances, accommodation and transport allowances, will have a bias in favour of the private corporation. 10. This Court as early as in 1957 held in Manak Lal, Advocate v. Dr. Prem Chand Singhvi and Others [AIR 1957 SC 425 ] that every member of a Tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In the aforesaid decision, this Court also held: “But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case.” In the aforesaid decision, the observations of Viscount Cave L.C. in Frome United Breweries Co. v. Bath Jusstiees (1926 Appeal Cases 586 at p.590) that the rule that every member of a Tribunal must be able to act judicially and without bias applies not only to judicial Tribunals but also in the case of authorities which have to act as Judges of the rights of others. In aforesaid decision, this Court also held that it would always be a question of fact to be decided in each case whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigants or the public at large a reasonable doubt about the fairness of the administration of justice. 11. In Ranjit Thakur v. Union of India and Others (supra), M.N. Venkatachaliah, J. writing the judgment for the Court held in Paras 16 and 17 of the judgment: “16. It is the essence of a judgment that it is made after due observance of the judicial process; that the court or tribunal passing it observes, at least the minimal requirements of natural justice; is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial `coram non-judice. "17. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly, “Am I biased?” but to look at the mind of the party before him.” 12. Thus, as per the judgment of this Court the test of likelihood of bias is whether there is a reasonable apprehension in the mind of the party before the Court or the Tribunal that the Court or the Tribunal will not act with fairness and without bias on account of certain objective circumstances. There is no dispute in the present case that the salary, allowances, accommodation and transport were being borne by the respondent- company directly. Thus, the Competent Authority was virtually an employee of the respondent no.4-company and there were grounds for the appellants to entertain a reasonable apprehension in their mind that the Competent Authority will not act fairly and is likely to act with bias. In the judgment of this Court in Ranjit Thakur v. Union of India and Others (supra) it has been held that a judgment which is the result of bias or want of impartiality is a nullity and the trial coram non-judice. Thus, the entire proceedings for determination of compensation before Shri V.I. Gohil would be a nullity. 13. In Hindustan Petroleum Corporation Ltd. v. Yashwant Gajanan Joshi and Others (supra), relied on by the High Court as well as learned counsel for the respondent no.4, this Court has clearly made a distinction between a public corporation and private employer. In para 13 of the judgment, this Court has held: “.... It would be to broad a proposition to extend the theory of bias to exclude persons only because such person draws the salary from the bodies like public corporation, State Government. It would altogether be a different case if it was a case of a private employer and his employee. We cannot equate the case of a person in private employment with that of a person in public employment. ...” 14. For the aforesaid reasons, | 1[ds]In Ranjit Thakur v. Union of India and Others (supra), M.N. Venkatachaliah, J. writing the judgment for the Court held in Paras 16 and 17 of the judgment:It is the essence of a judgment that it is made after due observance of the judicial process; that the court or tribunal passing it observes, at least the minimal requirements of natural justice; is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial `coram non-judice.As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly,but to look at the mind of the party before him.Thus, as per the judgment of this Court the test of likelihood of bias is whether there is a reasonable apprehension in the mind of the party before the Court or the Tribunal that the Court or the Tribunal will not act with fairness and without bias on account of certain objective circumstances. There is no dispute in the present case that the salary, allowances, accommodation and transport were being borne by the respondent- company directly. Thus, the Competent Authority was virtually an employee of the respondent no.4-company and there were grounds for the appellants to entertain a reasonable apprehension in their mind that the Competent Authority will not act fairly and is likely to act with bias. In the judgment of this Court in Ranjit Thakur v. Union of India and Others (supra) it has been held that a judgment which is the result of bias or want of impartiality is a nullity and the trial coram non-judice. Thus, the entire proceedings for determination of compensation before Shri V.I. Gohil would be a nullity. | 1 | 4,844 | 358 | ### 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:
production of any document, reception of evidence on affidavits, requisitioning any public record from any court or office and issuing commission for examination of witnesses. 9. The aforesaid reference to the various provisions of the Act show that the Competent Authority has got vast powers, which affects the rights of persons interested in the land over which the pipeline is to be laid and on the reports of the Competent Authority, the Central Government and the State Government are to take decisions affecting the rights of persons interested in the land. Under the provisions of the Act, therefore, the Competent Authority does not merely determine the compensation at the first instance in accordance with the statutory rules as has been contended by learned counsel for the respondent no.4, but has to perform various other quasi-judicial functions which are normally performed by public servants whose pay, allowances and other incidentals of service are met out of the public exchequer. If instead of public servants, a person is appointed whose pay, allowances and other incidentals are not paid out of the public exchequer but directly paid by a private employer such as the respondent no.4, for whom the right of user is being acquired and by whom the compensation is payable, persons interested in the land will have reasonable grounds for assuming that such a Competent Authority, who is dependent on a private corporation for his salary, allowances, accommodation and transport allowances, will have a bias in favour of the private corporation. 10. This Court as early as in 1957 held in Manak Lal, Advocate v. Dr. Prem Chand Singhvi and Others [AIR 1957 SC 425 ] that every member of a Tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In the aforesaid decision, this Court also held: “But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case.” In the aforesaid decision, the observations of Viscount Cave L.C. in Frome United Breweries Co. v. Bath Jusstiees (1926 Appeal Cases 586 at p.590) that the rule that every member of a Tribunal must be able to act judicially and without bias applies not only to judicial Tribunals but also in the case of authorities which have to act as Judges of the rights of others. In aforesaid decision, this Court also held that it would always be a question of fact to be decided in each case whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigants or the public at large a reasonable doubt about the fairness of the administration of justice. 11. In Ranjit Thakur v. Union of India and Others (supra), M.N. Venkatachaliah, J. writing the judgment for the Court held in Paras 16 and 17 of the judgment: “16. It is the essence of a judgment that it is made after due observance of the judicial process; that the court or tribunal passing it observes, at least the minimal requirements of natural justice; is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial `coram non-judice. "17. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly, “Am I biased?” but to look at the mind of the party before him.” 12. Thus, as per the judgment of this Court the test of likelihood of bias is whether there is a reasonable apprehension in the mind of the party before the Court or the Tribunal that the Court or the Tribunal will not act with fairness and without bias on account of certain objective circumstances. There is no dispute in the present case that the salary, allowances, accommodation and transport were being borne by the respondent- company directly. Thus, the Competent Authority was virtually an employee of the respondent no.4-company and there were grounds for the appellants to entertain a reasonable apprehension in their mind that the Competent Authority will not act fairly and is likely to act with bias. In the judgment of this Court in Ranjit Thakur v. Union of India and Others (supra) it has been held that a judgment which is the result of bias or want of impartiality is a nullity and the trial coram non-judice. Thus, the entire proceedings for determination of compensation before Shri V.I. Gohil would be a nullity. 13. In Hindustan Petroleum Corporation Ltd. v. Yashwant Gajanan Joshi and Others (supra), relied on by the High Court as well as learned counsel for the respondent no.4, this Court has clearly made a distinction between a public corporation and private employer. In para 13 of the judgment, this Court has held: “.... It would be to broad a proposition to extend the theory of bias to exclude persons only because such person draws the salary from the bodies like public corporation, State Government. It would altogether be a different case if it was a case of a private employer and his employee. We cannot equate the case of a person in private employment with that of a person in public employment. ...” 14. For the aforesaid reasons,
### Response:
1
### Explanation:
In Ranjit Thakur v. Union of India and Others (supra), M.N. Venkatachaliah, J. writing the judgment for the Court held in Paras 16 and 17 of the judgment:It is the essence of a judgment that it is made after due observance of the judicial process; that the court or tribunal passing it observes, at least the minimal requirements of natural justice; is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial `coram non-judice.As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly,but to look at the mind of the party before him.Thus, as per the judgment of this Court the test of likelihood of bias is whether there is a reasonable apprehension in the mind of the party before the Court or the Tribunal that the Court or the Tribunal will not act with fairness and without bias on account of certain objective circumstances. There is no dispute in the present case that the salary, allowances, accommodation and transport were being borne by the respondent- company directly. Thus, the Competent Authority was virtually an employee of the respondent no.4-company and there were grounds for the appellants to entertain a reasonable apprehension in their mind that the Competent Authority will not act fairly and is likely to act with bias. In the judgment of this Court in Ranjit Thakur v. Union of India and Others (supra) it has been held that a judgment which is the result of bias or want of impartiality is a nullity and the trial coram non-judice. Thus, the entire proceedings for determination of compensation before Shri V.I. Gohil would be a nullity.
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Sukhbir Vs. Ajit Singh | shall be entitled to the amount of compensation as awarded under the Land Acquisition Act together with interest and solatium by way of compensation. Therefore, the short question which is posed for the consideration of this Court is, whether in the facts and circumstances of the case, the High Court is justified in modifying the judgment and decree passed by the learned trial court for specific performance? 8. An identical question came to be considered by this Court in the case of Jagdish Singh (supra). In the case before this Court, the learned trial court as well as the first appellate court dismissed the suit for specific performance. However, the High Court in second appeal reversed the findings of the courts below and held that the plaintiff was ready and willing to perform the contract and was entitled for decree. However, during the pendency of the second appeal before the High Court, proceedings for compulsory acquisition of the land were initiated and the land was acquired. Therefore, the question arose as to whether the plaintiff was entitled for the amount of compensation received in the land acquisition proceedings or was entitled only to the refund of the earnest money. The High Court modified the decree of the specific performance of the contract with decree for a realisation of compensation payable in lieu of acquisition. The matter was carried before this Court. After referring to Section 21 of the Specific Relief Act, this Court has held that where the contract for no fault of the plaintiff becomes impossible, Section 21 enables award of compensation in lieu and substitution of the specific performance. So far as the determination of the amount of compensation, this Court observed and held that the compensation awarded under the Land Acquisition Act may safely be taken to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the original land owner in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award. In paras 24, 29 and 30, it is observed and held as under: 24. When the plaintiff by his option has made specific performance impossible, Section 21 does not entitle him to seek damages. That position is common to both Section 2 of Lord Cairns Act, 1858 and Section 21 of the Specific Relief Act, 1963. But in Indian law where the contract, for no fault of the plaintiff, becomes impossible of performance Section 21 enables award of compensation in lieu and substitution of specific performance. xxx xxx xxx 29. In the present case there is no difficulty in assessing the quantum of the compensation. That is ascertainable with reference to the determination of the market value in the land acquisition proceedings. The compensation awarded may safely be taken to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the appellant in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award. 30. We accordingly confirm the finding of the High Court that respondent was willing and ready to perform the contract and that it was the appellant who was in breach. However, in substitution of the decree for specific performance, we make a decree for compensation, equivalent to the amount of the land acquisition compensation awarded for the suit lands together with solatium and accrued interest, less a sum of Rs 1,50,000 (one lakh fifty thousand only) which, by a rough and ready estimate, we quantify as the amount to be paid to the appellant in respect of his services, time and money expended in pursuing the legal claims for compensation. The aforesaid view has been followed by this Court in the case of Urmila Devi (supra). 9. Applying the law laid down by this Court in the aforesaid two decisions to the facts of the case in hand, it cannot be said that the High Court has committed any error in modifying the decree for specific performance. As rightly held by the High Court, as such, the plaintiff will be deemed to be in the shoes of the defendant and therefore shall be entitled to the amount of compensation, determined and awarded under the provisions of the Land Acquisition Act. 10. Now so far as the submission on behalf of the appellant that as compensation has not been specifically prayed by the plaintiff in the suit, the plaintiff shall not be entitled to any amount of compensation even considering Section 21 of the Specific Relief Act. The aforesaid has no substance. The decree for compensation is passed as an alternate decree and in lieu of the decree for specific performance. 11. Now so far as the amount of compensation is concerned, as observed by this Court in the case of Jagdish Singh (supra), the compensation determined and awarded under the Land Acquisition Act may safely be taken into consideration. Therefore, the High Court has rightly observed and held that the plaintiff shall be entitled to the entire amount of compensation awarded under the Land Acquisition Act together with interest and solatium. However, at the same time, the defendant – original land owner shall also be entitled to the deduction therefrom of money value of the services, time and energy expended in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award. As such, nothing is on record to suggest that any expenses have been incurred by the appellant. However, in the facts and circumstances of the case and considering the decisions of this Court in the cases of Jagdish Singh (supra) and Urmila Devi (supra), ends of justice will be served if the plaintiff is awarded the entire amount of compensation determined under the Land Acquisition Act together with interest and solatium less Rs. 2,50,000/- + Rs.50,000/- (towards the balance sale consideration). | 1[ds]At the outset, it is required to be noted that as such there are concurrent findings of fact recorded by all the courts below on the execution of the agreement to sell by the defendant in favour of the plaintiff; payment of Rs. 31,50,000/- towards part sale consideration by the plaintiff to the defendant (out of the total sale consideration of Rs. 32 lakhs) and the readiness and willingness of the plaintiff to pay the balance sale consideration of Rs. 50,000/-. Therefore, as such, the plaintiff shall be entitled to the decree for specific performance. However, in view of the fact that before the final decree could be passed by the learned trial court, the land in question came to be acquired under the provisions of the Land Acquisition Act and therefore the question arose before the High Court what relief the plaintiff shall be entitled to in the event the decree of specific performance is required to be modified by an alternative decree.7.1 Relying upon the decisions of this Court in the cases of Jagdish Singh (supra) and Urmila Devi (supra) and considering Section 21 of the Specific Relief Act, the High Court, by the impugned judgment and order has modified the judgment and decree for specific performance and held that the plaintiff shall be entitled to the amount of compensation as there was no fault on the part of the plaintiff. It is held that the plaintiff shall be entitled to the amount of compensation as awarded under the Land Acquisition Act together with interest and solatium by way of compensation.8. An identical question came to be considered by this Court in the case of Jagdish Singh (supra). In the case before this Court, the learned trial court as well as the first appellate court dismissed the suit for specific performance. However, the High Court in second appeal reversed the findings of the courts below and held that the plaintiff was ready and willing to perform the contract and was entitled for decree. However, during the pendency of the second appeal before the High Court, proceedings for compulsory acquisition of the land were initiated and the land was acquired. Therefore, the question arose as to whether the plaintiff was entitled for the amount of compensation received in the land acquisition proceedings or was entitled only to the refund of the earnest money. The High Court modified the decree of the specific performance of the contract with decree for a realisation of compensation payable in lieu of acquisition. The matter was carried before this Court. After referring to Section 21 of the Specific Relief Act, this Court has held that where the contract for no fault of the plaintiff becomes impossible, Section 21 enables award of compensation in lieu and substitution of the specific performance. So far as the determination of the amount of compensation, this Court observed and held that the compensation awarded under the Land Acquisition Act may safely be taken to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the original land owner in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award. In paras 24, 29 and 30, it is observed and held as under:24. When the plaintiff by his option has made specific performance impossible, Section 21 does not entitle him to seek damages. That position is common to both Section 2 of Lord Cairns Act, 1858 and Section 21 of the Specific Relief Act, 1963. But in Indian law where the contract, for no fault of the plaintiff, becomes impossible of performance Section 21 enables award of compensation in lieu and substitution of specific performance.xxx xxx xxx29. In the present case there is no difficulty in assessing the quantum of the compensation. That is ascertainable with reference to the determination of the market value in the land acquisition proceedings. The compensation awarded may safely be taken to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the appellant in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award.30. We accordingly confirm the finding of the High Court that respondent was willing and ready to perform the contract and that it was the appellant who was in breach. However, in substitution of the decree for specific performance, we make a decree for compensation, equivalent to the amount of the land acquisition compensation awarded for the suit lands together with solatium and accrued interest, less a sum of Rs 1,50,000 (one lakh fifty thousand only) which, by a rough and ready estimate, we quantify as the amount to be paid to the appellant in respect of his services, time and money expended in pursuing the legal claims for compensation.The aforesaid view has been followed by this Court in the case of Urmila Devi (supra).9. Applying the law laid down by this Court in the aforesaid two decisions to the facts of the case in hand, it cannot be said that the High Court has committed any error in modifying the decree for specific performance. As rightly held by the High Court, as such, the plaintiff will be deemed to be in the shoes of the defendant and therefore shall be entitled to the amount of compensation, determined and awarded under the provisions of the Land Acquisition Act.10. Now so far as the submission on behalf of the appellant that as compensation has not been specifically prayed by the plaintiff in the suit, the plaintiff shall not be entitled to any amount of compensation even considering Section 21 of the Specific Relief Act. The aforesaid has no substance. The decree for compensation is passed as an alternate decree and in lieu of the decree for specific performance.11. Now so far as the amount of compensation is concerned, as observed by this Court in the case of Jagdish Singh (supra), the compensation determined and awarded under the Land Acquisition Act may safely be taken into consideration. Therefore, the High Court has rightly observed and held that the plaintiff shall be entitled to the entire amount of compensation awarded under the Land Acquisition Act together with interest and solatium. However, at the same time, the defendant – original land owner shall also be entitled to the deduction therefrom of money value of the services, time and energy expended in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award. As such, nothing is on record to suggest that any expenses have been incurred by the appellant. However, in the facts and circumstances of the case and considering the decisions of this Court in the cases of Jagdish Singh (supra) and Urmila Devi (supra), ends of justice will be served if the plaintiff is awarded the entire amount of compensation determined under the Land Acquisition Act together with interest and solatium less Rs. 2,50,000/- + Rs.50,000/- (towards the balance sale consideration). | 1 | 3,176 | 1,299 | ### 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:
shall be entitled to the amount of compensation as awarded under the Land Acquisition Act together with interest and solatium by way of compensation. Therefore, the short question which is posed for the consideration of this Court is, whether in the facts and circumstances of the case, the High Court is justified in modifying the judgment and decree passed by the learned trial court for specific performance? 8. An identical question came to be considered by this Court in the case of Jagdish Singh (supra). In the case before this Court, the learned trial court as well as the first appellate court dismissed the suit for specific performance. However, the High Court in second appeal reversed the findings of the courts below and held that the plaintiff was ready and willing to perform the contract and was entitled for decree. However, during the pendency of the second appeal before the High Court, proceedings for compulsory acquisition of the land were initiated and the land was acquired. Therefore, the question arose as to whether the plaintiff was entitled for the amount of compensation received in the land acquisition proceedings or was entitled only to the refund of the earnest money. The High Court modified the decree of the specific performance of the contract with decree for a realisation of compensation payable in lieu of acquisition. The matter was carried before this Court. After referring to Section 21 of the Specific Relief Act, this Court has held that where the contract for no fault of the plaintiff becomes impossible, Section 21 enables award of compensation in lieu and substitution of the specific performance. So far as the determination of the amount of compensation, this Court observed and held that the compensation awarded under the Land Acquisition Act may safely be taken to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the original land owner in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award. In paras 24, 29 and 30, it is observed and held as under: 24. When the plaintiff by his option has made specific performance impossible, Section 21 does not entitle him to seek damages. That position is common to both Section 2 of Lord Cairns Act, 1858 and Section 21 of the Specific Relief Act, 1963. But in Indian law where the contract, for no fault of the plaintiff, becomes impossible of performance Section 21 enables award of compensation in lieu and substitution of specific performance. xxx xxx xxx 29. In the present case there is no difficulty in assessing the quantum of the compensation. That is ascertainable with reference to the determination of the market value in the land acquisition proceedings. The compensation awarded may safely be taken to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the appellant in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award. 30. We accordingly confirm the finding of the High Court that respondent was willing and ready to perform the contract and that it was the appellant who was in breach. However, in substitution of the decree for specific performance, we make a decree for compensation, equivalent to the amount of the land acquisition compensation awarded for the suit lands together with solatium and accrued interest, less a sum of Rs 1,50,000 (one lakh fifty thousand only) which, by a rough and ready estimate, we quantify as the amount to be paid to the appellant in respect of his services, time and money expended in pursuing the legal claims for compensation. The aforesaid view has been followed by this Court in the case of Urmila Devi (supra). 9. Applying the law laid down by this Court in the aforesaid two decisions to the facts of the case in hand, it cannot be said that the High Court has committed any error in modifying the decree for specific performance. As rightly held by the High Court, as such, the plaintiff will be deemed to be in the shoes of the defendant and therefore shall be entitled to the amount of compensation, determined and awarded under the provisions of the Land Acquisition Act. 10. Now so far as the submission on behalf of the appellant that as compensation has not been specifically prayed by the plaintiff in the suit, the plaintiff shall not be entitled to any amount of compensation even considering Section 21 of the Specific Relief Act. The aforesaid has no substance. The decree for compensation is passed as an alternate decree and in lieu of the decree for specific performance. 11. Now so far as the amount of compensation is concerned, as observed by this Court in the case of Jagdish Singh (supra), the compensation determined and awarded under the Land Acquisition Act may safely be taken into consideration. Therefore, the High Court has rightly observed and held that the plaintiff shall be entitled to the entire amount of compensation awarded under the Land Acquisition Act together with interest and solatium. However, at the same time, the defendant – original land owner shall also be entitled to the deduction therefrom of money value of the services, time and energy expended in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award. As such, nothing is on record to suggest that any expenses have been incurred by the appellant. However, in the facts and circumstances of the case and considering the decisions of this Court in the cases of Jagdish Singh (supra) and Urmila Devi (supra), ends of justice will be served if the plaintiff is awarded the entire amount of compensation determined under the Land Acquisition Act together with interest and solatium less Rs. 2,50,000/- + Rs.50,000/- (towards the balance sale consideration).
### Response:
1
### Explanation:
the Specific Relief Act, the High Court, by the impugned judgment and order has modified the judgment and decree for specific performance and held that the plaintiff shall be entitled to the amount of compensation as there was no fault on the part of the plaintiff. It is held that the plaintiff shall be entitled to the amount of compensation as awarded under the Land Acquisition Act together with interest and solatium by way of compensation.8. An identical question came to be considered by this Court in the case of Jagdish Singh (supra). In the case before this Court, the learned trial court as well as the first appellate court dismissed the suit for specific performance. However, the High Court in second appeal reversed the findings of the courts below and held that the plaintiff was ready and willing to perform the contract and was entitled for decree. However, during the pendency of the second appeal before the High Court, proceedings for compulsory acquisition of the land were initiated and the land was acquired. Therefore, the question arose as to whether the plaintiff was entitled for the amount of compensation received in the land acquisition proceedings or was entitled only to the refund of the earnest money. The High Court modified the decree of the specific performance of the contract with decree for a realisation of compensation payable in lieu of acquisition. The matter was carried before this Court. After referring to Section 21 of the Specific Relief Act, this Court has held that where the contract for no fault of the plaintiff becomes impossible, Section 21 enables award of compensation in lieu and substitution of the specific performance. So far as the determination of the amount of compensation, this Court observed and held that the compensation awarded under the Land Acquisition Act may safely be taken to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the original land owner in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award. In paras 24, 29 and 30, it is observed and held as under:24. When the plaintiff by his option has made specific performance impossible, Section 21 does not entitle him to seek damages. That position is common to both Section 2 of Lord Cairns Act, 1858 and Section 21 of the Specific Relief Act, 1963. But in Indian law where the contract, for no fault of the plaintiff, becomes impossible of performance Section 21 enables award of compensation in lieu and substitution of specific performance.xxx xxx xxx29. In the present case there is no difficulty in assessing the quantum of the compensation. That is ascertainable with reference to the determination of the market value in the land acquisition proceedings. The compensation awarded may safely be taken to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the appellant in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award.30. We accordingly confirm the finding of the High Court that respondent was willing and ready to perform the contract and that it was the appellant who was in breach. However, in substitution of the decree for specific performance, we make a decree for compensation, equivalent to the amount of the land acquisition compensation awarded for the suit lands together with solatium and accrued interest, less a sum of Rs 1,50,000 (one lakh fifty thousand only) which, by a rough and ready estimate, we quantify as the amount to be paid to the appellant in respect of his services, time and money expended in pursuing the legal claims for compensation.The aforesaid view has been followed by this Court in the case of Urmila Devi (supra).9. Applying the law laid down by this Court in the aforesaid two decisions to the facts of the case in hand, it cannot be said that the High Court has committed any error in modifying the decree for specific performance. As rightly held by the High Court, as such, the plaintiff will be deemed to be in the shoes of the defendant and therefore shall be entitled to the amount of compensation, determined and awarded under the provisions of the Land Acquisition Act.10. Now so far as the submission on behalf of the appellant that as compensation has not been specifically prayed by the plaintiff in the suit, the plaintiff shall not be entitled to any amount of compensation even considering Section 21 of the Specific Relief Act. The aforesaid has no substance. The decree for compensation is passed as an alternate decree and in lieu of the decree for specific performance.11. Now so far as the amount of compensation is concerned, as observed by this Court in the case of Jagdish Singh (supra), the compensation determined and awarded under the Land Acquisition Act may safely be taken into consideration. Therefore, the High Court has rightly observed and held that the plaintiff shall be entitled to the entire amount of compensation awarded under the Land Acquisition Act together with interest and solatium. However, at the same time, the defendant – original land owner shall also be entitled to the deduction therefrom of money value of the services, time and energy expended in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award. As such, nothing is on record to suggest that any expenses have been incurred by the appellant. However, in the facts and circumstances of the case and considering the decisions of this Court in the cases of Jagdish Singh (supra) and Urmila Devi (supra), ends of justice will be served if the plaintiff is awarded the entire amount of compensation determined under the Land Acquisition Act together with interest and solatium less Rs. 2,50,000/- + Rs.50,000/- (towards the balance sale consideration).
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New Punjab Skin Company Vs. Union of India and Others | Delay in filing rejoinder affidavit is condoned and the same is taken on record. Heard Shri Arun Monga, learned counsel for the petitioner, and Shri Harish N. Salve, learned Solicitor General for the respondents. In this special leave petition the assessee has assailed the order dated August 19, 1999 (see of the Punjab and Haryana High Court confirming the order dated May 11, 1999, passed by the Director General of Income-tax (Investigation) Delhi and NW Region, respondent No. 2 herein. The short question that arises for determination in the case is whether respondent No. 2 has power to waive the interest levied under section 158BFA(1) of the Income-tax Act. Section 158BFA(1) provides, inter alia, that where the return of total income including undisclosed income for the block period, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A on or after January 1, 1997, as required by a notice under clause (a) of section 158BC , is furnished after the expiry of the period specified in such notice, or is not furnished, the assessee shall be liable to pay simple interest at the rate of two per cent of the tax on undisclosed income, determined under clause (c) of section 158BC. In this case undisputedly there was delay of four months 28 days in filing the return by the assessee. The assessee took the plea that the delay was caused in getting copies of the relevant documents which had been seized by the department in the course of search and seizure proceedings. The assessee placed reliance on the provision in section 234A of the Income-tax Act and the circular of the Central Board of Direct Taxes dated May 23, 1996 (see 1997 (225) ITR(St) 101), wherein certain guidelines for waiver of interest leviable under section 234A of the Act under certain circumstances had been issued.Respondent No. 2 in the order dated May 11, 1999, declined to accept the prayer of the assessee for waiving the interest levied under section 158BFA either under the provisions of the Income-tax Act or under the circular issued by the Central Board of Direct Taxes. He also referred to a clarification received from the Board that power of waiver of interest under section 158BFA is not vested in him. As noted earlier the High Court confirmed the order passed by respondent No. 2 on the merits. It is pertinent to mention here that the circular dated May 23, 1996 (see 1997 (225) ITR(St) 101), was issued by the Board under section 119(2)(a) of the Income-tax Act which vests power in the Board to pass general or special order for waiver of interest under the provisions specified therein including sections 234A, 234B and 234C of the Income-tax Act. No such power is vested in the Board so far as the interest leviable under section 158BFA(1) is concerned. We have perused the papers and considered the submissions of learned counsel appearing for the parties. The order passed by the High Court dismissing the writ petition confirming the order passed by the Director General of Income-tax (Investigation), Delhi and NW Region, does not suffer from any serious illegality which warrants interference by this court in exercise of jurisdiction under article 136 of the Constitution. | 0[ds]The order passed by the High Court dismissing the writ petition confirming the order passed by the Director General ofx (Investigation), Delhi and NW Region, does not suffer from any serious illegality which warrants interference by this court in exercise of jurisdiction under article 136 of the Constitution. | 0 | 628 | 57 | ### 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:
Delay in filing rejoinder affidavit is condoned and the same is taken on record. Heard Shri Arun Monga, learned counsel for the petitioner, and Shri Harish N. Salve, learned Solicitor General for the respondents. In this special leave petition the assessee has assailed the order dated August 19, 1999 (see of the Punjab and Haryana High Court confirming the order dated May 11, 1999, passed by the Director General of Income-tax (Investigation) Delhi and NW Region, respondent No. 2 herein. The short question that arises for determination in the case is whether respondent No. 2 has power to waive the interest levied under section 158BFA(1) of the Income-tax Act. Section 158BFA(1) provides, inter alia, that where the return of total income including undisclosed income for the block period, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A on or after January 1, 1997, as required by a notice under clause (a) of section 158BC , is furnished after the expiry of the period specified in such notice, or is not furnished, the assessee shall be liable to pay simple interest at the rate of two per cent of the tax on undisclosed income, determined under clause (c) of section 158BC. In this case undisputedly there was delay of four months 28 days in filing the return by the assessee. The assessee took the plea that the delay was caused in getting copies of the relevant documents which had been seized by the department in the course of search and seizure proceedings. The assessee placed reliance on the provision in section 234A of the Income-tax Act and the circular of the Central Board of Direct Taxes dated May 23, 1996 (see 1997 (225) ITR(St) 101), wherein certain guidelines for waiver of interest leviable under section 234A of the Act under certain circumstances had been issued.Respondent No. 2 in the order dated May 11, 1999, declined to accept the prayer of the assessee for waiving the interest levied under section 158BFA either under the provisions of the Income-tax Act or under the circular issued by the Central Board of Direct Taxes. He also referred to a clarification received from the Board that power of waiver of interest under section 158BFA is not vested in him. As noted earlier the High Court confirmed the order passed by respondent No. 2 on the merits. It is pertinent to mention here that the circular dated May 23, 1996 (see 1997 (225) ITR(St) 101), was issued by the Board under section 119(2)(a) of the Income-tax Act which vests power in the Board to pass general or special order for waiver of interest under the provisions specified therein including sections 234A, 234B and 234C of the Income-tax Act. No such power is vested in the Board so far as the interest leviable under section 158BFA(1) is concerned. We have perused the papers and considered the submissions of learned counsel appearing for the parties. The order passed by the High Court dismissing the writ petition confirming the order passed by the Director General of Income-tax (Investigation), Delhi and NW Region, does not suffer from any serious illegality which warrants interference by this court in exercise of jurisdiction under article 136 of the Constitution.
### Response:
0
### Explanation:
The order passed by the High Court dismissing the writ petition confirming the order passed by the Director General ofx (Investigation), Delhi and NW Region, does not suffer from any serious illegality which warrants interference by this court in exercise of jurisdiction under article 136 of the Constitution.
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Samir Sahay @ Sameer Sahay Vs. State of U.P. & Another | made against the appellant was that he accompanied his father Major P.C. Sahay (Retd.) when he assured that the money of the applicants will not be lost and it shall be the responsibility of his father(late P.C. Sahay). Following allegations made in the First Information Report need to be specially noticed: "Along with him his son Samir Sahay Advocate who was already acquainted with the applicant also accompanied his father. Major PC Sahay gave the above said assurance, and the applicant and his wife Smt. Uma Devi deposited Rupees one Lakh with Major P.C.Sahay in this regard and he gave the receipt of the same to the applicant of which the applicant is enclosing the photocopy. Like this Major P.C.Sahay(retired) has got deposited total amount of Rs. 86,000/- from me and my wife (4) But after some days it came to know that the said company has ran away along with the lakhs of rupees of the depositors after closing its office." 21. In the First Information Report even allegation of making assurance was not made against the appellant but was made against Major P.C. Sahay (Retd.), father of the appellant. There was no allegation that the appellant fraudulently or dishonestly induced the complainant to deposit money. This Court in Arun Bhandari v. State of Uttar Pradesh and others, 2013 (2) SCC 801 , has held that it is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. An earlier two-Judge Bench judgment of this Court in State of Kerala v. A. Pareed Pillai, 1972 (3) SCC 661 , was quoted with approval in paragraph 21. Paragraphs 21, 22, 23 and 24 which are relevant are to the following effect: 21.Before we proceed to scan and analyse the material brought on record in the case at hand, it is seemly to refer to certain authorities wherein the ingredients of cheating have been highlighted. In State of Kerala v. A. Pareed Pillai, a two-Judge Bench ruled that: (SCC p. 667, para 16) "16. ... To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise [and] such a dishonest intention cannot be inferred from [a] mere fact that he could not subsequently fulfil the promise." 22.In G.V. Rao v. L.H.V. Prasad, 2000 (3) SCC 693 , this Court has held thus: (SCC pp. 69697, para 7) "7. As mentioned above, Section 415 has two parts. While in the first part, the person must `dishonestly or `fraudulently induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575 , a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, `mens rea on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B., AIR 1954 SC 724 , that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered." 23.In S.W. Palanitkar v. State of Bihar, 2002 (1) SCC 241 , it has been laid down that: (SCC p. 250, para 21) "21. ... In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating." 24.In the said case while dealing with the ingredients of criminal breach of trust and cheating, the Bench observed thus: (S.W. Palanitkar case, SCC p. 246, paras 910) "9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust. 10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by, (ii)(b) the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."" 22. The Chief Judicial Magistrate while rejecting the application of the appellant for seeking discharge has not even referred to any allegation or evidence on the basis of which it can be said that ingredients of Section 420 IPC were made out in the facts of the present case. 23. We are, thus, of the considered opinion that in the present case ingredients of Section 420 IPC were not made out so as to frame any charge under Section 420 IPC against the appellant. | 1[ds]11. After lodging the First Information Report, respondent No.2 and his wife had also filed Petition No.318 of 1998 before the District Consumer Forum, Fatehpur against Inderjeet Aneja, Proprietor of Aneja Consultancy, President and Managing Director of Aneja Financial Services Limited and Aneja Group of Companies. In the complaint filed before the District Consumer Forum neither the appellant nor his father was arrayed and no allegation was made against the appellant and his father in the complaint. It is also relevant to note that the said complaint filed by respondent No.2 and his wife ultimately was allowed by the District Consumer Forum on 27.12.2006. The District Consumer Forum directed the amount as claimed to be paid within 15 days after receiving the copy of the order.Again in Dalip Kaur and others v. Jagnar Singh and another, 2009 (14) SCC 696 , this Court noticed the ingredients of Section 420 IPC. In paragraphs 9 to 11 following wasingredients of Section 420 of the Penal CodeDeception of anyFraudulently or dishonestly inducing any person to deliver any property;To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do orHigh Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants bythe amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P., 2003 (3) SCCcannot furthermore be any doubt that the High Court would exercise its inherent jurisdiction only when one or the other propositions of law, as laid down in R. Kalyani v. Janak C. Mehta, 2009 (1) SCC 516 is attracted, which are as under: (SCC p. 523, paraThe High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizableFor the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by theSuch a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actusIf the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.Applying the ratio laid down by this Court as noted above, it is clear that ingredients of Section 420 IPC are not made out in the present case, either from the First Information Report or from any other material. From the First Information Report as extracted above only allegation made against the appellant was that he accompanied his father Major P.C. Sahay (Retd.) when he assured that the money of the applicants will not be lost and it shall be the responsibility of his father(late P.C. Sahay).The Chief Judicial Magistrate while rejecting the application of the appellant for seeking discharge has not even referred to any allegation or evidence on the basis of which it can be said that ingredients of Section 420 IPC were made out in the facts of the present case.We are, thus, of the considered opinion that in the present case ingredients of Section 420 IPC were not made out so as to frame any charge under Section 420 IPC against the appellant. | 1 | 4,242 | 724 | ### 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:
made against the appellant was that he accompanied his father Major P.C. Sahay (Retd.) when he assured that the money of the applicants will not be lost and it shall be the responsibility of his father(late P.C. Sahay). Following allegations made in the First Information Report need to be specially noticed: "Along with him his son Samir Sahay Advocate who was already acquainted with the applicant also accompanied his father. Major PC Sahay gave the above said assurance, and the applicant and his wife Smt. Uma Devi deposited Rupees one Lakh with Major P.C.Sahay in this regard and he gave the receipt of the same to the applicant of which the applicant is enclosing the photocopy. Like this Major P.C.Sahay(retired) has got deposited total amount of Rs. 86,000/- from me and my wife (4) But after some days it came to know that the said company has ran away along with the lakhs of rupees of the depositors after closing its office." 21. In the First Information Report even allegation of making assurance was not made against the appellant but was made against Major P.C. Sahay (Retd.), father of the appellant. There was no allegation that the appellant fraudulently or dishonestly induced the complainant to deposit money. This Court in Arun Bhandari v. State of Uttar Pradesh and others, 2013 (2) SCC 801 , has held that it is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. An earlier two-Judge Bench judgment of this Court in State of Kerala v. A. Pareed Pillai, 1972 (3) SCC 661 , was quoted with approval in paragraph 21. Paragraphs 21, 22, 23 and 24 which are relevant are to the following effect: 21.Before we proceed to scan and analyse the material brought on record in the case at hand, it is seemly to refer to certain authorities wherein the ingredients of cheating have been highlighted. In State of Kerala v. A. Pareed Pillai, a two-Judge Bench ruled that: (SCC p. 667, para 16) "16. ... To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise [and] such a dishonest intention cannot be inferred from [a] mere fact that he could not subsequently fulfil the promise." 22.In G.V. Rao v. L.H.V. Prasad, 2000 (3) SCC 693 , this Court has held thus: (SCC pp. 69697, para 7) "7. As mentioned above, Section 415 has two parts. While in the first part, the person must `dishonestly or `fraudulently induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575 , a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, `mens rea on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B., AIR 1954 SC 724 , that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered." 23.In S.W. Palanitkar v. State of Bihar, 2002 (1) SCC 241 , it has been laid down that: (SCC p. 250, para 21) "21. ... In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating." 24.In the said case while dealing with the ingredients of criminal breach of trust and cheating, the Bench observed thus: (S.W. Palanitkar case, SCC p. 246, paras 910) "9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust. 10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by, (ii)(b) the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."" 22. The Chief Judicial Magistrate while rejecting the application of the appellant for seeking discharge has not even referred to any allegation or evidence on the basis of which it can be said that ingredients of Section 420 IPC were made out in the facts of the present case. 23. We are, thus, of the considered opinion that in the present case ingredients of Section 420 IPC were not made out so as to frame any charge under Section 420 IPC against the appellant.
### Response:
1
### Explanation:
11. After lodging the First Information Report, respondent No.2 and his wife had also filed Petition No.318 of 1998 before the District Consumer Forum, Fatehpur against Inderjeet Aneja, Proprietor of Aneja Consultancy, President and Managing Director of Aneja Financial Services Limited and Aneja Group of Companies. In the complaint filed before the District Consumer Forum neither the appellant nor his father was arrayed and no allegation was made against the appellant and his father in the complaint. It is also relevant to note that the said complaint filed by respondent No.2 and his wife ultimately was allowed by the District Consumer Forum on 27.12.2006. The District Consumer Forum directed the amount as claimed to be paid within 15 days after receiving the copy of the order.Again in Dalip Kaur and others v. Jagnar Singh and another, 2009 (14) SCC 696 , this Court noticed the ingredients of Section 420 IPC. In paragraphs 9 to 11 following wasingredients of Section 420 of the Penal CodeDeception of anyFraudulently or dishonestly inducing any person to deliver any property;To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do orHigh Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants bythe amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P., 2003 (3) SCCcannot furthermore be any doubt that the High Court would exercise its inherent jurisdiction only when one or the other propositions of law, as laid down in R. Kalyani v. Janak C. Mehta, 2009 (1) SCC 516 is attracted, which are as under: (SCC p. 523, paraThe High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizableFor the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by theSuch a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actusIf the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.Applying the ratio laid down by this Court as noted above, it is clear that ingredients of Section 420 IPC are not made out in the present case, either from the First Information Report or from any other material. From the First Information Report as extracted above only allegation made against the appellant was that he accompanied his father Major P.C. Sahay (Retd.) when he assured that the money of the applicants will not be lost and it shall be the responsibility of his father(late P.C. Sahay).The Chief Judicial Magistrate while rejecting the application of the appellant for seeking discharge has not even referred to any allegation or evidence on the basis of which it can be said that ingredients of Section 420 IPC were made out in the facts of the present case.We are, thus, of the considered opinion that in the present case ingredients of Section 420 IPC were not made out so as to frame any charge under Section 420 IPC against the appellant.
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V. P. Gindroniya Vs. State Of Madhya Pradesh & Ors | them. 10. In Bagchis case, (1966) 1 SCR 771 = (AIR 1966 SC 447 ) (supra), one of the questions that arose for decision was whether on the strength of rule 75 (a) of the West Bengal Service Rules, an officer may be retained in service even after his superannuation for the purpose of holding a departmental enquiry against him. This Court held that the rule in question was not designed to be used for the purpose of retaining a person in service for enquiry against him but to keep in employment persons with a meritorious record of service who although superannuated can render some more service and whose retention in service is considered necessary on public grounds. This decision does not bear on the point under consideration . In Khemi Rams case Civil Appeal No. 1217 of 1966, D/- 6-10-1969 = (reported in AIR 1970 SC 214 ) (supra) the impugned suspension order was made on the strength of statutory rules governing the conditions of service. Hence this Court came to the conclusion that the order of suspension in that case amounted to suspending the contract of service. 11. In the present case, the Rules do not provide for suspension during the pendency of an enquiry. Therefore the impugned order of suspension cannot be considered as an order suspending the contract of service. From that conclusion it follows that when the appellant issued the notice terminating his services on June 6, 1964, the contract of service was in force and it was open to him to put an end to the same. For the reasons mentioned above, we hold that the High Court erred in opining that the true effect of the order of suspension made by the State Government on May 7, 1964 was to suspend the contract of service. 12. This takes us to the legality of the notice served by the appellant on June 6, 1964. That notice was evidently issued under rule 12 of the Rules. That rule reads:"12. (a) Subject to any provision contained in the order of appointment or in any agreement between the Government and the temporary Government servant, the service of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant: Provided that the services of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice; or as the case may be, for the period by which such notice falls short of one month or any agreed longer period : Provided further that the payment of allowances shall by subject to the conditions under which such allowance are admissible. (b) The period of such notice shall be one month unless otherwise agreed between the Government and the Government servant." 13. There is hardly any room for dispute that the notice contemplated by the main cl. (a) of rule 12 can be given either by the Government or its temporary servant. The rule in question specifically says so. It is not necessary for us in the present case to decide whether the two provisos to that rule or cl. (b) thereof apply to a notice given by a government servant. The appellant has assumed that those provisions also apply to a notice given under that rule. We shall for the purpose of this case proceed on the basis of that assumption and see whether the appellant has satisfied that part of the rule also. 14. The material portion of the notice given by the appellant on June 6, 1964 reads thus :"Whereas the undersigned holds no charge this day and is not on duty and intends to bring the termination of his employment with the Government of M. P. forthwith on receipt of this writing and Whereas as required by the service rules the undersigned do hereby forfeit and relinquish his claim for one months pay or allowance whichever is necessary. Now therefore this notice is hereby served as required under the rules on receipt whereof the relationship of employer and employee now existing between the Government of Madhya Pradesh and the undersigned shall cease to exist and consequently all rights, duties and obligations arising from and under the aforesaid relationship shall hereafter absolutely cease." 15. This notice was received by the Government on June 9, 1964. In that notice, the appellant has unequivocally informed the Government that he has terminated his services with the Government. This part of the notice satisfies the requirements of the main part of rule 12 (a). In that very notice he has also intimated that any amount payable by him to the government under the provisos to rule 12 (a) may be forfeited from the amounts due to him from the government. It may be noted that considerable amount must have been due to him towards his salary during the period of this suspension.By his notice he intimated to the government that the amounts due from him to the government under the provisos to rule 12 (a) may be deducted from that amount. We fail to see how this notice is not in accordance with the requirements of rule 12. In our opinion the High Court was wrong in holding that the notice in question did not comply with the requirements of the said rule. 16. No other ground was urged on behalf of the respondent in support of the order of the High Court. 17. From the above findings, it follows that even since June 9, 1964, the appellant was not in the service of the Government. Therefore it was not open to the government to take any disciplinary proceedings against him. Hence the impugned orders are liable to be quashed.We accordingly allow this appeal and quash those orders. No order as to costs. | 1[ds]5. The parties are agreed that the appellant was a temporary public servant at the relevant time. His service was neither made permanent nor. It is also admitted that the conditions of his service are exclusively governed by the Rules. Therefore to find out the true effect of the order of suspension made on May 7, 1964, we must look to those Rules6. Three kinds of suspension are known to law. A public servant may be suspended as a mode of punishment or he may be suspended during the pendency of an enquiry against him if the order appointing him or statutory provisions governing his service provide for such suspensions. Lastly he may merely be forbidden from discharging his duties during the pendency of an enquiry against him which act is also called suspension. The right to suspend as a measure of punishment as well as the right to suspend the contract of service during the pendency of an enquiry are both regulated by the contract of employment or the provisions regulating the conditions of service. But the last category of suspension referred to earlier is the right of the master to forbid his servant from doing the work which he had to do under the terms of the contract of service or the provisions governing his conditions of service at the same time keeping in force the masters obligations under the contract. In other words the master may ask his servant to refrain from rendering his service but he must fulfil his part of the contract7. The legal position as regards a masters right to place his servants under suspension is now well settled by the decisions of this Court. In Management of Hotel Imperial, New Delhi v. Hotel Workers Union, (1960) 1 SCR 476 = (AIR 1959 SC 1342 ), the question whether a master could suspend his servant during the pendency of an enquiry came up for consideration by this Court. Therein this Court observed that it was well settled that under the ordinary law of master and servant the power to suspend the servant without pay could not be implied as a term in an ordinary contract of service between the master and the servant but must arise either from an express term in the contract itself or a statutory provision governing such contract. It was further observed therein that ordinarily in the absence of such a power either in express terms in the contract or under the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work he will have to pay the wages during thed period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relationship of master and the servant with the consequence that the servant is not bound to render service and the master is not bound to pay8. The same view was reiterated by this Court in T. Cajee v. U. Jormanik Siem, (1961) 1 SCR 750 = (AIR 1961 SC 276 ). The rule laid down in the above decisions was followed by this Court in R. P. Kapur v. Union of India, (1964) 5 SCR 431 = (AIR 1964 SC 787 ). The law on the subject was exhaustively reviewed in Balvantray Ratilal Patel v. State of Maharashtra. (1968) 2 SCR 577 = (AIR 1968 SC 800 ). Therein the legal position was stated as thus: The general principle is that an employer can suspend an employee of his pending an enquiry into his misconduct and the only question that can arise in such a suspension will relate to the payment of his wages during the period of sucht is now well settled that the power to suspend, in the sense of a right to forbid a employee to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself.Ordinarily, therefore, the absence of such a power either as an express term in the contract or in the rules framed under some statute would mean that an employer would have no power to suspend an employee of his even if he does so in the sense that he forbids the employee to work, he will have to pay the employees wages during the period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. It is equally well settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such term in the contract of employment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which, it could be withheld.The distinction between suspending the contract of a service of a servant and suspending him from performing the duties of his office on the basis that the contract is subsisting is important. The suspension in the latter case is always an implied term in every contract of service. When an employee is suspended in this sense, it means that the employer merely issues a direction to him that he should not do the service required of him during a particular period. In other words the employer is regarded as issuing an order to the employee which because the contract is subsisting, the employee must obey9. In support of the decision of the High Court, the learned Counsel for the respondent relied on the decisions of this Court in State of West Bengal v. Nipendra Nath Bagchi, (1966) 1 SCR 771 = (AIR 1966 SC 447 ) and State of Punjab v. Khemi Ram, Civil Appeal No. 1217 of 1966, D/9 = (reported in AIR 1970 SC 214 ). He did not rely on the other decisions referred to in the judgment of the High Court. Hence it is not necessary to examine them10. In Bagchis case, (1966) 1 SCR 771 = (AIR 1966 SC 447 ) (supra), one of the questions that arose for decision was whether on the strength of rule 75 (a) of the West Bengal Service Rules, an officer may be retained in service even after his superannuation for the purpose of holding a departmental enquiry against him. This Court held that the rule in question was not designed to be used for the purpose of retaining a person in service for enquiry against him but to keep in employment persons with a meritorious record of service who although superannuated can render some more service and whose retention in service is considered necessary on public grounds. This decision does not bear on the point under consideration . In Khemi Rams case Civil Appeal No. 1217 of 1966, D/9 = (reported in AIR 1970 SC 214 ) (supra) the impugned suspension order was made on the strength of statutory rules governing the conditions of service. Hence this Court came to the conclusion that the order of suspension in that case amounted to suspending the contract of service11. In the present case, the Rules do not provide for suspension during the pendency of an enquiry. Therefore the impugned order of suspension cannot be considered as an order suspending the contract of service. From that conclusion it follows that when the appellant issued the notice terminating his services on June 6, 1964, the contract of service was in force and it was open to him to put an end to the same. For the reasons mentioned above, we hold that the High Court erred in opining that the true effect of the order of suspension made by the State Government on May 7, 1964 was to suspend the contract of service13. There is hardly any room for dispute that the notice contemplated by the main cl. (a) of rule 12 can be given either by the Government or its temporary servant. The rule in question specifically says so. It is not necessary for us in the present case to decide whether the two provisos to that rule or cl. (b) thereof apply to a notice given by a government servant. The appellant has assumed that those provisions also apply to a notice given under that rule. We shall for the purpose of this case proceed on the basis of that assumption and see whether the appellant has satisfied that part of the rule also15. This notice was received by the Government on June 9, 1964. In that notice, the appellant has unequivocally informed the Government that he has terminated his services with the Government. This part of the notice satisfies the requirements of the main part of rule 12 (a). In that very notice he has also intimated that any amount payable by him to the government under the provisos to rule 12 (a) may be forfeited from the amounts due to him from the government. It may be noted that considerable amount must have been due to him towards his salary during the period of this suspension.By his notice he intimated to the government that the amounts due from him to the government under the provisos to rule 12 (a) may be deducted from that amount. We fail to see how this notice is not in accordance with the requirements of rule 12. In our opinion the High Court was wrong in holding that the notice in question did not comply with the requirements of the said rule17. From the above findings, it follows that even since June 9, 1964, the appellant was not in the service of the Government. Therefore it was not open to the government to take any disciplinary proceedings against him. Hence the impugned orders are liable to be quashed.We accordingly allow this appeal and quash those orders. No order as to costs. | 1 | 2,766 | 1,882 | ### Instruction:
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them. 10. In Bagchis case, (1966) 1 SCR 771 = (AIR 1966 SC 447 ) (supra), one of the questions that arose for decision was whether on the strength of rule 75 (a) of the West Bengal Service Rules, an officer may be retained in service even after his superannuation for the purpose of holding a departmental enquiry against him. This Court held that the rule in question was not designed to be used for the purpose of retaining a person in service for enquiry against him but to keep in employment persons with a meritorious record of service who although superannuated can render some more service and whose retention in service is considered necessary on public grounds. This decision does not bear on the point under consideration . In Khemi Rams case Civil Appeal No. 1217 of 1966, D/- 6-10-1969 = (reported in AIR 1970 SC 214 ) (supra) the impugned suspension order was made on the strength of statutory rules governing the conditions of service. Hence this Court came to the conclusion that the order of suspension in that case amounted to suspending the contract of service. 11. In the present case, the Rules do not provide for suspension during the pendency of an enquiry. Therefore the impugned order of suspension cannot be considered as an order suspending the contract of service. From that conclusion it follows that when the appellant issued the notice terminating his services on June 6, 1964, the contract of service was in force and it was open to him to put an end to the same. For the reasons mentioned above, we hold that the High Court erred in opining that the true effect of the order of suspension made by the State Government on May 7, 1964 was to suspend the contract of service. 12. This takes us to the legality of the notice served by the appellant on June 6, 1964. That notice was evidently issued under rule 12 of the Rules. That rule reads:"12. (a) Subject to any provision contained in the order of appointment or in any agreement between the Government and the temporary Government servant, the service of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant: Provided that the services of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice; or as the case may be, for the period by which such notice falls short of one month or any agreed longer period : Provided further that the payment of allowances shall by subject to the conditions under which such allowance are admissible. (b) The period of such notice shall be one month unless otherwise agreed between the Government and the Government servant." 13. There is hardly any room for dispute that the notice contemplated by the main cl. (a) of rule 12 can be given either by the Government or its temporary servant. The rule in question specifically says so. It is not necessary for us in the present case to decide whether the two provisos to that rule or cl. (b) thereof apply to a notice given by a government servant. The appellant has assumed that those provisions also apply to a notice given under that rule. We shall for the purpose of this case proceed on the basis of that assumption and see whether the appellant has satisfied that part of the rule also. 14. The material portion of the notice given by the appellant on June 6, 1964 reads thus :"Whereas the undersigned holds no charge this day and is not on duty and intends to bring the termination of his employment with the Government of M. P. forthwith on receipt of this writing and Whereas as required by the service rules the undersigned do hereby forfeit and relinquish his claim for one months pay or allowance whichever is necessary. Now therefore this notice is hereby served as required under the rules on receipt whereof the relationship of employer and employee now existing between the Government of Madhya Pradesh and the undersigned shall cease to exist and consequently all rights, duties and obligations arising from and under the aforesaid relationship shall hereafter absolutely cease." 15. This notice was received by the Government on June 9, 1964. In that notice, the appellant has unequivocally informed the Government that he has terminated his services with the Government. This part of the notice satisfies the requirements of the main part of rule 12 (a). In that very notice he has also intimated that any amount payable by him to the government under the provisos to rule 12 (a) may be forfeited from the amounts due to him from the government. It may be noted that considerable amount must have been due to him towards his salary during the period of this suspension.By his notice he intimated to the government that the amounts due from him to the government under the provisos to rule 12 (a) may be deducted from that amount. We fail to see how this notice is not in accordance with the requirements of rule 12. In our opinion the High Court was wrong in holding that the notice in question did not comply with the requirements of the said rule. 16. No other ground was urged on behalf of the respondent in support of the order of the High Court. 17. From the above findings, it follows that even since June 9, 1964, the appellant was not in the service of the Government. Therefore it was not open to the government to take any disciplinary proceedings against him. Hence the impugned orders are liable to be quashed.We accordingly allow this appeal and quash those orders. No order as to costs.
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of his even if he does so in the sense that he forbids the employee to work, he will have to pay the employees wages during the period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. It is equally well settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such term in the contract of employment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which, it could be withheld.The distinction between suspending the contract of a service of a servant and suspending him from performing the duties of his office on the basis that the contract is subsisting is important. The suspension in the latter case is always an implied term in every contract of service. When an employee is suspended in this sense, it means that the employer merely issues a direction to him that he should not do the service required of him during a particular period. In other words the employer is regarded as issuing an order to the employee which because the contract is subsisting, the employee must obey9. In support of the decision of the High Court, the learned Counsel for the respondent relied on the decisions of this Court in State of West Bengal v. Nipendra Nath Bagchi, (1966) 1 SCR 771 = (AIR 1966 SC 447 ) and State of Punjab v. Khemi Ram, Civil Appeal No. 1217 of 1966, D/9 = (reported in AIR 1970 SC 214 ). He did not rely on the other decisions referred to in the judgment of the High Court. Hence it is not necessary to examine them10. In Bagchis case, (1966) 1 SCR 771 = (AIR 1966 SC 447 ) (supra), one of the questions that arose for decision was whether on the strength of rule 75 (a) of the West Bengal Service Rules, an officer may be retained in service even after his superannuation for the purpose of holding a departmental enquiry against him. This Court held that the rule in question was not designed to be used for the purpose of retaining a person in service for enquiry against him but to keep in employment persons with a meritorious record of service who although superannuated can render some more service and whose retention in service is considered necessary on public grounds. This decision does not bear on the point under consideration . In Khemi Rams case Civil Appeal No. 1217 of 1966, D/9 = (reported in AIR 1970 SC 214 ) (supra) the impugned suspension order was made on the strength of statutory rules governing the conditions of service. Hence this Court came to the conclusion that the order of suspension in that case amounted to suspending the contract of service11. In the present case, the Rules do not provide for suspension during the pendency of an enquiry. Therefore the impugned order of suspension cannot be considered as an order suspending the contract of service. From that conclusion it follows that when the appellant issued the notice terminating his services on June 6, 1964, the contract of service was in force and it was open to him to put an end to the same. For the reasons mentioned above, we hold that the High Court erred in opining that the true effect of the order of suspension made by the State Government on May 7, 1964 was to suspend the contract of service13. There is hardly any room for dispute that the notice contemplated by the main cl. (a) of rule 12 can be given either by the Government or its temporary servant. The rule in question specifically says so. It is not necessary for us in the present case to decide whether the two provisos to that rule or cl. (b) thereof apply to a notice given by a government servant. The appellant has assumed that those provisions also apply to a notice given under that rule. We shall for the purpose of this case proceed on the basis of that assumption and see whether the appellant has satisfied that part of the rule also15. This notice was received by the Government on June 9, 1964. In that notice, the appellant has unequivocally informed the Government that he has terminated his services with the Government. This part of the notice satisfies the requirements of the main part of rule 12 (a). In that very notice he has also intimated that any amount payable by him to the government under the provisos to rule 12 (a) may be forfeited from the amounts due to him from the government. It may be noted that considerable amount must have been due to him towards his salary during the period of this suspension.By his notice he intimated to the government that the amounts due from him to the government under the provisos to rule 12 (a) may be deducted from that amount. We fail to see how this notice is not in accordance with the requirements of rule 12. In our opinion the High Court was wrong in holding that the notice in question did not comply with the requirements of the said rule17. From the above findings, it follows that even since June 9, 1964, the appellant was not in the service of the Government. Therefore it was not open to the government to take any disciplinary proceedings against him. Hence the impugned orders are liable to be quashed.We accordingly allow this appeal and quash those orders. No order as to costs.
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SEBASTIANI LAKRA Vs. NATIONAL INSURANCE COMPANY LTD | of social security compensation and life insurance policy. However, while dealing with the scheme the Court held that applying a harmonious approach and to determine a just compensation payable under the Motor Vehicles Act it would be appropriate to exclude the amount received under the said Rules under the Head of Pay and Other Allowances last drawn by the employee. We may note that on principle this Court has not disagreed with the proposition laid down in Helen C. Rebello or in Patricia Jean Mahajan case (supra), but while arriving at a just compensation, it had ordered the deduction of the salary, received under the statutory rules. 11. The Indian courts have consistently followed the multiplier system while assessing compensation and the judgment of this Court in Sarla Verma (supra) has been reiterated by a Constitution Bench of this Court in Pranay Sethi (supra) in so far as choice of multiplier is concerned. 12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to just compensation under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death. 13. As far as any amount paid under any insurance policy is concerned whatever is added to the estate of the deceased or his dependents is not because of the death of the deceased but because of the contract entered into between the deceased and the insurance company from where he took out the policy. The deceased paid premium on such life insurance and this amount would have accrued to the estate of the deceased either on maturity of the policy or on his death, whatever be the manner of his death. These amounts are paid because the deceased has wisely invested his savings. Similar would be the position in case of other investments like bank deposits, share, debentures etc.. The tort-feasor cannot take advantage of the foresight and wise financial investments made by the deceased. 14. As far as the amounts of pension and gratuity are concerned, these are paid on account of the service rendered by the deceased to his employer. It is now an established principle of service jurisprudence that pension and gratuity are the property of the deceased. They are more in the nature of deferred wages. The deceased employee works throughout his life expecting that on his retirement he will get substantial amount as pension and gratuity. These amounts are also payable on death, whatever be the cause of death. Therefore, applying the same principles, the said amount cannot be deducted. 15. As held by the House of Lords in Perry v. Cleaver 1969 ACJ 363 the insurance amount is the fruit of premium paid in the past, pension is the fruit of services already rendered and the wrong doer should not be given benefit of the same by deducting it from the damages assessed. 16. Deduction can be ordered only where the tort-feasor satisfies the court that the amount has accrued to the claimants only on account of death of the deceased in a motor vehicle accident. 17. The issue before us is whether we should deduct the amount being received by the family members under the EFB Scheme while calculating the loss of income. 18. The EFB Scheme is totally different from the rules which were under consideration of this Court in Shashi Sharma case (supra). Under this Scheme, the nominee or legal heir(s) of the deceased employee have to deposit the entire amount of gratuity and all other benefits payable to them on the death of the employee. 19. In the present case, it stands proved that the claimants have deposited a sum of Rs.27,43,991/- received by them on the death of the deceased with the employer and are now getting about Rs.50,082/- per month. This amount of Rs.50,082/- is to be paid to the legal heirs under the EFB Scheme only till date of retirement of the deceased. Even if an interest @ of 12% per annum is calculated on the amount of Rs.27,43,991/-, that would amount to Rs.3,30,000/- per year or Rs.27,500/- per month. The appellants-claimants are getting about Rs.50,000/- per month i.e. about Rs.22,500/- per month more, but this is only to be paid for a period of about 7 years till 30.04.2021. This payment will cease thereafter. 20. The aforesaid payment is totally different to the payment made by the employer in Shashi Sharma case (supra) which was statutory in nature. Therefore, we hold that this amount cannot be deducted. 21. However, since the claimants are getting quite an advantage, we feel that the MACT was right in not taking into consideration the future prospects in the peculiar facts and circumstances of the case. Therefore, though we are not inclined to deduct the amount payable to the claimants, we feel that in the peculiar facts and circumstances of the case, they are not entitled to claim another amount @ of 15% by way of future prospects. The payment of the amount under the EFB Scheme more than offsets the loss of future prospects. This, in our opinion, would be just compensation. | 1[ds]12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to just compensation under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death.13. As far as any amount paid under any insurance policy is concerned whatever is added to the estate of the deceased or his dependents is not because of the death of the deceased but because of the contract entered into between the deceased and the insurance company from where he took out the policy. The deceased paid premium on such life insurance and this amount would have accrued to the estate of the deceased either on maturity of the policy or on his death, whatever be the manner of his death. These amounts are paid because the deceased has wisely invested his savings. Similar would be the position in case of other investments like bank deposits, share, debentures etc.. The tort-feasor cannot take advantage of the foresight and wise financial investments made by the deceased.14. As far as the amounts of pension and gratuity are concerned, these are paid on account of the service rendered by the deceased to his employer. It is now an established principle of service jurisprudence that pension and gratuity are the property of the deceased. They are more in the nature of deferred wages. The deceased employee works throughout his life expecting that on his retirement he will get substantial amount as pension and gratuity. These amounts are also payable on death, whatever be the cause of death. Therefore, applying the same principles, the said amount cannot be deducted.15. As held by the House of Lords in Perry v. Cleaverthe insurance amount is the fruit of premium paid in the past, pension is the fruit of services already rendered and the wrong doer should not be given benefit of the same by deducting it from the damages assessed.16. Deduction can be ordered only where the tort-feasor satisfies the court that the amount has accrued to theclaimants only on account of death of the deceased in a motor vehicle accident.18. The EFB Scheme is totally different from the rules which were under consideration of this Court in Shashi Sharma case (supra). Under this Scheme, the nominee or legal heir(s) of the deceased employee have to deposit the entire amount of gratuity and all other benefits payable to them on the death of the employee.19. In the present case, it stands proved that the claimants have deposited a sum of Rs.27,43,991/- received by them on the death of the deceased with the employer and are now getting about Rs.50,082/- per month. This amount of Rs.50,082/- is to be paid to the legal heirs under the EFB Scheme only till date of retirement of the deceased. Even if an interest @ of 12% per annum is calculated on the amount of Rs.27,43,991/-, that would amount to Rs.3,30,000/- per year or Rs.27,500/- per month. The appellants-claimants are getting about Rs.50,000/- per month i.e. about Rs.22,500/- per month more, but this is only to be paid for a period of about 7 years till 30.04.2021. This payment will cease thereafter.20. The aforesaid payment is totally different to the payment made by the employer in Shashi Sharma case (supra) which was statutory in nature. Therefore, we hold that this amount cannot be deducted.21. However, since the claimants are getting quite an advantage, we feel that the MACT was right in not taking into consideration the future prospects in the peculiar facts and circumstances of the case. Therefore, though we are not inclined to deduct the amount payable to the claimants, we feel that in the peculiar facts and circumstances of the case, they are not entitled to claim another amount @ of 15% by way of future prospects. The payment of the amount under the EFB Scheme more than offsets the loss of future prospects. This, in our opinion, would be just compensation. | 1 | 3,446 | 880 | ### Instruction:
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of social security compensation and life insurance policy. However, while dealing with the scheme the Court held that applying a harmonious approach and to determine a just compensation payable under the Motor Vehicles Act it would be appropriate to exclude the amount received under the said Rules under the Head of Pay and Other Allowances last drawn by the employee. We may note that on principle this Court has not disagreed with the proposition laid down in Helen C. Rebello or in Patricia Jean Mahajan case (supra), but while arriving at a just compensation, it had ordered the deduction of the salary, received under the statutory rules. 11. The Indian courts have consistently followed the multiplier system while assessing compensation and the judgment of this Court in Sarla Verma (supra) has been reiterated by a Constitution Bench of this Court in Pranay Sethi (supra) in so far as choice of multiplier is concerned. 12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to just compensation under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death. 13. As far as any amount paid under any insurance policy is concerned whatever is added to the estate of the deceased or his dependents is not because of the death of the deceased but because of the contract entered into between the deceased and the insurance company from where he took out the policy. The deceased paid premium on such life insurance and this amount would have accrued to the estate of the deceased either on maturity of the policy or on his death, whatever be the manner of his death. These amounts are paid because the deceased has wisely invested his savings. Similar would be the position in case of other investments like bank deposits, share, debentures etc.. The tort-feasor cannot take advantage of the foresight and wise financial investments made by the deceased. 14. As far as the amounts of pension and gratuity are concerned, these are paid on account of the service rendered by the deceased to his employer. It is now an established principle of service jurisprudence that pension and gratuity are the property of the deceased. They are more in the nature of deferred wages. The deceased employee works throughout his life expecting that on his retirement he will get substantial amount as pension and gratuity. These amounts are also payable on death, whatever be the cause of death. Therefore, applying the same principles, the said amount cannot be deducted. 15. As held by the House of Lords in Perry v. Cleaver 1969 ACJ 363 the insurance amount is the fruit of premium paid in the past, pension is the fruit of services already rendered and the wrong doer should not be given benefit of the same by deducting it from the damages assessed. 16. Deduction can be ordered only where the tort-feasor satisfies the court that the amount has accrued to the claimants only on account of death of the deceased in a motor vehicle accident. 17. The issue before us is whether we should deduct the amount being received by the family members under the EFB Scheme while calculating the loss of income. 18. The EFB Scheme is totally different from the rules which were under consideration of this Court in Shashi Sharma case (supra). Under this Scheme, the nominee or legal heir(s) of the deceased employee have to deposit the entire amount of gratuity and all other benefits payable to them on the death of the employee. 19. In the present case, it stands proved that the claimants have deposited a sum of Rs.27,43,991/- received by them on the death of the deceased with the employer and are now getting about Rs.50,082/- per month. This amount of Rs.50,082/- is to be paid to the legal heirs under the EFB Scheme only till date of retirement of the deceased. Even if an interest @ of 12% per annum is calculated on the amount of Rs.27,43,991/-, that would amount to Rs.3,30,000/- per year or Rs.27,500/- per month. The appellants-claimants are getting about Rs.50,000/- per month i.e. about Rs.22,500/- per month more, but this is only to be paid for a period of about 7 years till 30.04.2021. This payment will cease thereafter. 20. The aforesaid payment is totally different to the payment made by the employer in Shashi Sharma case (supra) which was statutory in nature. Therefore, we hold that this amount cannot be deducted. 21. However, since the claimants are getting quite an advantage, we feel that the MACT was right in not taking into consideration the future prospects in the peculiar facts and circumstances of the case. Therefore, though we are not inclined to deduct the amount payable to the claimants, we feel that in the peculiar facts and circumstances of the case, they are not entitled to claim another amount @ of 15% by way of future prospects. The payment of the amount under the EFB Scheme more than offsets the loss of future prospects. This, in our opinion, would be just compensation.
### Response:
1
### Explanation:
12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to just compensation under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death.13. As far as any amount paid under any insurance policy is concerned whatever is added to the estate of the deceased or his dependents is not because of the death of the deceased but because of the contract entered into between the deceased and the insurance company from where he took out the policy. The deceased paid premium on such life insurance and this amount would have accrued to the estate of the deceased either on maturity of the policy or on his death, whatever be the manner of his death. These amounts are paid because the deceased has wisely invested his savings. Similar would be the position in case of other investments like bank deposits, share, debentures etc.. The tort-feasor cannot take advantage of the foresight and wise financial investments made by the deceased.14. As far as the amounts of pension and gratuity are concerned, these are paid on account of the service rendered by the deceased to his employer. It is now an established principle of service jurisprudence that pension and gratuity are the property of the deceased. They are more in the nature of deferred wages. The deceased employee works throughout his life expecting that on his retirement he will get substantial amount as pension and gratuity. These amounts are also payable on death, whatever be the cause of death. Therefore, applying the same principles, the said amount cannot be deducted.15. As held by the House of Lords in Perry v. Cleaverthe insurance amount is the fruit of premium paid in the past, pension is the fruit of services already rendered and the wrong doer should not be given benefit of the same by deducting it from the damages assessed.16. Deduction can be ordered only where the tort-feasor satisfies the court that the amount has accrued to theclaimants only on account of death of the deceased in a motor vehicle accident.18. The EFB Scheme is totally different from the rules which were under consideration of this Court in Shashi Sharma case (supra). Under this Scheme, the nominee or legal heir(s) of the deceased employee have to deposit the entire amount of gratuity and all other benefits payable to them on the death of the employee.19. In the present case, it stands proved that the claimants have deposited a sum of Rs.27,43,991/- received by them on the death of the deceased with the employer and are now getting about Rs.50,082/- per month. This amount of Rs.50,082/- is to be paid to the legal heirs under the EFB Scheme only till date of retirement of the deceased. Even if an interest @ of 12% per annum is calculated on the amount of Rs.27,43,991/-, that would amount to Rs.3,30,000/- per year or Rs.27,500/- per month. The appellants-claimants are getting about Rs.50,000/- per month i.e. about Rs.22,500/- per month more, but this is only to be paid for a period of about 7 years till 30.04.2021. This payment will cease thereafter.20. The aforesaid payment is totally different to the payment made by the employer in Shashi Sharma case (supra) which was statutory in nature. Therefore, we hold that this amount cannot be deducted.21. However, since the claimants are getting quite an advantage, we feel that the MACT was right in not taking into consideration the future prospects in the peculiar facts and circumstances of the case. Therefore, though we are not inclined to deduct the amount payable to the claimants, we feel that in the peculiar facts and circumstances of the case, they are not entitled to claim another amount @ of 15% by way of future prospects. The payment of the amount under the EFB Scheme more than offsets the loss of future prospects. This, in our opinion, would be just compensation.
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UNION OF INDIA Vs. PRADEEP VINOD CONSTRUCTION CO | 504, Union of India and another v. V.S. Engineering (P) Ltd. (2006) 13 SCC 240 , Union of India v. Singh Builders Syndicate (2009) 4 SCC 523 and in a catena of judgments, the court held that whenever the agreement specifically provides for appointment of named arbitrators, the appointment of arbitrator should be in terms of the contract. After referring to M.P. Gupta, in V.S. Engineering, it was held as under:- 3. The learned Additional Solicitor General appearing for the appellant Union of India has pointed out that as per clauses 63 and 64 of the General Conditions of Contract, this Court in no uncertain terms has held that the Arbitral Tribunal has to be constituted as per the General Conditions of Contract, the High Court should not interfere under Section 11 of the Act and the High Court should accept the Arbitral Tribunal appointed by the General Manager, Railways. In this connection, the learned ASG invited our attention to a decision of this Court directly bearing on the subject in Union of India v. M.P. Gupta (2004) 10 SCC 504 wherein a similar question with regard to appointment of the Arbitral Tribunal for the Railways with reference to clause 64 of the General Conditions of Contract came up before this Court and this Court held that where two gazetted railway officers are appointed as the Arbitral Tribunal, the High Court should not appoint a retired Judge of the High Court as a sole arbitrator and the appointment of sole arbitrator was set aside. The conditions of clauses 63 and 64 of the General Conditions of Contract are almost analogous to the one we have in our hand. In that case also relying on clause 64 of the contract a three-Judge Bench presided over by the Chief Justice of India observed as follows: (SCC p. 505, para 4)?4. In view of the express provision contained therein that two gazetted railway officers shall be appointed as arbitrators, Justice P.K. Bahri could not be appointed by the High Court as the sole arbitrator. On this short ground alone, the judgment and order under challenge to the extent it appoints Justice P.K. Bahri as sole arbitrator is set aside. Within 30 days from today, the appellants herein shall appoint two gazetted railway officers as arbitrators. The two newly appointed arbitrators shall enter into reference within a period of another one month and thereafter the arbitrators shall make their award within a period of three months.? The court, however observed in para (6) that in the case of public institutions which are slow in responding to the request made by the contractor for appointment of an arbitrator, the power of the High Court to appoint an arbitrator under Section 11 is not taken away. The failure of the authorities in appointing an arbitrator and when the contractor approached the court for appointment of an arbitrator under Section 11 of the Act, it will then be in the discretion of the Chief Justice/designated Judge to appoint a railway officer as per the contract or a High Court Judge. 15. Considering the various matters of railway contracts and setting aside the appointment of independent arbitrators, after referring to M.P. Gupta and V.S. Engineering and other judgments, in Parmar Construction Company, this Court set aside the appointment of the independent arbitrator and directed the General Manager of the Railways to appoint arbitrator in terms of Clause 64(3) of the agreement. In paras (44) and (45), this Court held as under:- ?44. To conclude, in our considered view, the High Court was not justified in appointing an independent arbitrator without resorting to the procedure for appointment of an arbitrator which has been prescribed under Clause 64(3) of the contract under the inbuilt mechanism as agreed by the parties. 45. Consequently, the orders passed by the High Court are quashed and set aside. The Appellants are directed to appoint the arbitrator in terms of Clause 64(3) of the agreement within a period of one month from today under intimation to each of the Respondents/contractors and since sufficient time has been consumed, at the first stage itself, in the appointment of an arbitrator and majority of the Respondents being the petty contractors, the statement of claim be furnished by each of the Respondents within four weeks thereafter and the arbitrator may decide the claim after affording opportunity of hearing to the parties expeditiously without being influenced/inhibited by the observations made independently in accordance with law.? The ratio of the above decision squarely applies to the case in hand. When the agreement specifically provides for appointment of named arbitrators, the appointment should be in terms of the agreement. The High Court, in our view, was not right in appointing an independent arbitrator ignoring Clause 64 of the General Conditions of Contract. 16. Insofar as the plea of the appellant that there was settlement of final bill/issuance of ?No Claim? letter, the learned counsel for the appellant has drawn our attention on Clause 43(2) – Signing of the ?No Claim? Certificate and submitted that as per Clause 43(2), the contractor signs a ?No Claim? certificate in favour of the railway in the prescribed format after the work is finally measured up and the contractor shall be debarred from disputing the correctness of the items covered under the ?No Claim? certificate or demanding a clearance to arbitration in respect thereof. On behalf of the respondent, it has been seriously disputed that issuance of ?No Claim? certificate as to the supplementary agreement recording accord and satisfaction as on 06.05.2014 (CA No.6400/2016) and issuance of ?No Claim? certificate on 28.08.2014 (CA No.6420/2016) that they were issued under compulsion and due to undue influence by the railway authorities. We are not inclined to go into the merits of the contention of the parties. It is for the arbitrator to consider the claim of the respondent(s) and the stand of the appellant-railways. This contention raised by the parties are left open to be raised before the arbitrator. | 1[ds]10. The respondent(s) are registered contractors with the Railways and they are claiming certain payments on account of the work entrusted to them. The request of the respondent(s) for appointment of arbitrator invoking Clause 64 of the contract was declined by the Railways stating that their claims have been settled and the respondent(s) have issued ?No Claim? certificate and executed supplementary agreement recording ?accord and satisfaction? and hence, the matter is not referable to arbitration. Admittedly, the request for referring the dispute was made much prior to the Amendment Act, 2015 which came into force w.e.f. 23.10.2015. Since the request for appointment of arbitrator was made much prior to the Amendment Act, 2015 (w.e.f. 23.10.2015), the provision of the Amended Act, 2015 shall not apply to the arbitral proceedings in terms of Section 21 of the Act unless the parties otherwise agree. As rightlypointed out by the learned counsel for the appellant, the request by the respondent(s)- contractors is to be examined in accordance with the Principal Act, 1996 without taking resort to the Amendment Act, 2015.The ratio of the above decision squarely applies to the case in hand. When the agreement specifically provides for appointment of named arbitrators, the appointment should be in terms of the agreement. The High Court, in our view, was not right in appointing an independent arbitrator ignoring Clause 64 of the General Conditions of ContractWe are not inclined to go into the merits of the contention of the parties. It is for the arbitrator to consider the claim of the respondent(s) and the stand of the appellant-railways. This contention raised by the parties are left open to be raised before the arbitrator. | 1 | 3,723 | 328 | ### 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:
504, Union of India and another v. V.S. Engineering (P) Ltd. (2006) 13 SCC 240 , Union of India v. Singh Builders Syndicate (2009) 4 SCC 523 and in a catena of judgments, the court held that whenever the agreement specifically provides for appointment of named arbitrators, the appointment of arbitrator should be in terms of the contract. After referring to M.P. Gupta, in V.S. Engineering, it was held as under:- 3. The learned Additional Solicitor General appearing for the appellant Union of India has pointed out that as per clauses 63 and 64 of the General Conditions of Contract, this Court in no uncertain terms has held that the Arbitral Tribunal has to be constituted as per the General Conditions of Contract, the High Court should not interfere under Section 11 of the Act and the High Court should accept the Arbitral Tribunal appointed by the General Manager, Railways. In this connection, the learned ASG invited our attention to a decision of this Court directly bearing on the subject in Union of India v. M.P. Gupta (2004) 10 SCC 504 wherein a similar question with regard to appointment of the Arbitral Tribunal for the Railways with reference to clause 64 of the General Conditions of Contract came up before this Court and this Court held that where two gazetted railway officers are appointed as the Arbitral Tribunal, the High Court should not appoint a retired Judge of the High Court as a sole arbitrator and the appointment of sole arbitrator was set aside. The conditions of clauses 63 and 64 of the General Conditions of Contract are almost analogous to the one we have in our hand. In that case also relying on clause 64 of the contract a three-Judge Bench presided over by the Chief Justice of India observed as follows: (SCC p. 505, para 4)?4. In view of the express provision contained therein that two gazetted railway officers shall be appointed as arbitrators, Justice P.K. Bahri could not be appointed by the High Court as the sole arbitrator. On this short ground alone, the judgment and order under challenge to the extent it appoints Justice P.K. Bahri as sole arbitrator is set aside. Within 30 days from today, the appellants herein shall appoint two gazetted railway officers as arbitrators. The two newly appointed arbitrators shall enter into reference within a period of another one month and thereafter the arbitrators shall make their award within a period of three months.? The court, however observed in para (6) that in the case of public institutions which are slow in responding to the request made by the contractor for appointment of an arbitrator, the power of the High Court to appoint an arbitrator under Section 11 is not taken away. The failure of the authorities in appointing an arbitrator and when the contractor approached the court for appointment of an arbitrator under Section 11 of the Act, it will then be in the discretion of the Chief Justice/designated Judge to appoint a railway officer as per the contract or a High Court Judge. 15. Considering the various matters of railway contracts and setting aside the appointment of independent arbitrators, after referring to M.P. Gupta and V.S. Engineering and other judgments, in Parmar Construction Company, this Court set aside the appointment of the independent arbitrator and directed the General Manager of the Railways to appoint arbitrator in terms of Clause 64(3) of the agreement. In paras (44) and (45), this Court held as under:- ?44. To conclude, in our considered view, the High Court was not justified in appointing an independent arbitrator without resorting to the procedure for appointment of an arbitrator which has been prescribed under Clause 64(3) of the contract under the inbuilt mechanism as agreed by the parties. 45. Consequently, the orders passed by the High Court are quashed and set aside. The Appellants are directed to appoint the arbitrator in terms of Clause 64(3) of the agreement within a period of one month from today under intimation to each of the Respondents/contractors and since sufficient time has been consumed, at the first stage itself, in the appointment of an arbitrator and majority of the Respondents being the petty contractors, the statement of claim be furnished by each of the Respondents within four weeks thereafter and the arbitrator may decide the claim after affording opportunity of hearing to the parties expeditiously without being influenced/inhibited by the observations made independently in accordance with law.? The ratio of the above decision squarely applies to the case in hand. When the agreement specifically provides for appointment of named arbitrators, the appointment should be in terms of the agreement. The High Court, in our view, was not right in appointing an independent arbitrator ignoring Clause 64 of the General Conditions of Contract. 16. Insofar as the plea of the appellant that there was settlement of final bill/issuance of ?No Claim? letter, the learned counsel for the appellant has drawn our attention on Clause 43(2) – Signing of the ?No Claim? Certificate and submitted that as per Clause 43(2), the contractor signs a ?No Claim? certificate in favour of the railway in the prescribed format after the work is finally measured up and the contractor shall be debarred from disputing the correctness of the items covered under the ?No Claim? certificate or demanding a clearance to arbitration in respect thereof. On behalf of the respondent, it has been seriously disputed that issuance of ?No Claim? certificate as to the supplementary agreement recording accord and satisfaction as on 06.05.2014 (CA No.6400/2016) and issuance of ?No Claim? certificate on 28.08.2014 (CA No.6420/2016) that they were issued under compulsion and due to undue influence by the railway authorities. We are not inclined to go into the merits of the contention of the parties. It is for the arbitrator to consider the claim of the respondent(s) and the stand of the appellant-railways. This contention raised by the parties are left open to be raised before the arbitrator.
### Response:
1
### Explanation:
10. The respondent(s) are registered contractors with the Railways and they are claiming certain payments on account of the work entrusted to them. The request of the respondent(s) for appointment of arbitrator invoking Clause 64 of the contract was declined by the Railways stating that their claims have been settled and the respondent(s) have issued ?No Claim? certificate and executed supplementary agreement recording ?accord and satisfaction? and hence, the matter is not referable to arbitration. Admittedly, the request for referring the dispute was made much prior to the Amendment Act, 2015 which came into force w.e.f. 23.10.2015. Since the request for appointment of arbitrator was made much prior to the Amendment Act, 2015 (w.e.f. 23.10.2015), the provision of the Amended Act, 2015 shall not apply to the arbitral proceedings in terms of Section 21 of the Act unless the parties otherwise agree. As rightlypointed out by the learned counsel for the appellant, the request by the respondent(s)- contractors is to be examined in accordance with the Principal Act, 1996 without taking resort to the Amendment Act, 2015.The ratio of the above decision squarely applies to the case in hand. When the agreement specifically provides for appointment of named arbitrators, the appointment should be in terms of the agreement. The High Court, in our view, was not right in appointing an independent arbitrator ignoring Clause 64 of the General Conditions of ContractWe are not inclined to go into the merits of the contention of the parties. It is for the arbitrator to consider the claim of the respondent(s) and the stand of the appellant-railways. This contention raised by the parties are left open to be raised before the arbitrator.
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DELHI DAYALBAGH COOPERATIVE HOUSE BUILDING SOCIETY LTD Vs. REGISTRAR COOPERATIVE SOCIETIES | of the Act, 2003 can have a force of law. 42. As regards clauses 2 & 3 of the original sale deed executed between the member of the society at the time of initial allotment is concerned, the society reserves its pre-emptive rights to have a cooling period of six months before the member may have an opportunity to transfer the subject plot in the manner he or she likes at least there was no absolute bar or restrain under clause 2 or 3 of the original sale deed, of which reference has been made, to transfer the land or is otherwise impermissible to a non-member under any other laws. But it was possible with prior notice to the society and the cooling period of six months which may enable the society to purchase the plot on the market value and if it is unable to purchase, the member reserves the right to transfer or sell out the plot in a manner he or she likes reserving the pre-emptive rights of the society. In the given circumstances, transfer by a registered instrument cannot be held void unless it is in contravention of any law, which is not the case of the appellant society. 43. It reveals that what transpired before the Tribunal or the High Court was whether the transfer of title by a registered instrument as alleged was open for scrutiny within the scope of Section 70 of Act, 2003. Although it was never the case of the appellant society that alleged registered sale deed was void ab initio, bad or obtained by fraud or malpractices and it was also not the case of the appellant society that the member of the society in transferring the rights over the property by a registered sale deed, is in violation of any of the provisions of the Act of 2003, or the rules of 2007 framed thereunder. 44. It is gainful to add that the possession was handed over to the society on fulfilment of the conditions of the agreement dated 13 th May, 1955, published in the Gazette under Section 42 of the Land Acquisition Act, and became the law as observed, that at the time when the possession was handed over to the society by the State Government, no further deed or MOU was executed restricting the rights of the society for fulfilment of its obligation of its plots to its members, that persuades to infer that the possession was handed over to the society of the subject land in question by the Government free from encumbrances with unrestrictive rights to execute the sale deed/allot the plots to its members obviously as per its bye-laws keeping in view of the mandate of the statutory provisions of the Act, 1973 or Act, 2003 which has later on taken over the field in protecting the interests of the members of the cooperative societies including the cooperative housing society as in the instant case. 45. It may be relevant to note that the subject land was throughout exhibited by the society as freehold land having ownership rights and allotments were made by the society to its members by the registered sale deed at the time of allotment of plots. It is to be noticed that a letter dated 27 th July, 1985 was written by the Secretary of the society to the Lt. Governor and it was mentioned in paragraph 2 of the letter that Delhi Administration acquired 30 acres of land allotted to the society on 25 th March, 1957 on freehold basis. Later, in the letter dated 15 th March, 1989 issued to the Secretary of the Society it was certified that the status of the land is totally freehold and allotment of the plots to the society members was also on the basis of it and the society at one stage approached to the civil Court in RCA No. 95/82 titled Delhi Dayalbagh Cooperative House Building Society Ltd. Vs. Arjun Das and it was observed by the learned trial Judge that the land in dispute is freehold one and there is no legal bar to the same being sold. In the given facts and circumstances, if the allotment has been made by the society as a freehold land to its members who have further transferred/sold the subject land/plot by registered sale deed to its successors/purchasers, their rights to become member of the society are indeed saved under Section 91 of the Act, 2003 that in no manner could be eluded by the bye-laws and that apart if anyone has any objection regarding the registered instrument(sale deed) pursuant to which right has been created, at least it is not open to examine its validity within the domain and ambit of Section 70 of the cooperative societies Act and any person, if felt aggrieved, the remedy lies only before the civil Court having jurisdiction questioning the registered instrument within the parameters available under the law. 46. The appellant society at one stage in their counter affidavit has stated that the subject land is a grant under the Government Grants Act. It was nowhere the case ever set up and it was raised just to denude the rights of the parties which deserves outright rejection for the additional reason that the subject land was acquired by the Government under Part VII of the Land Acquisition Act and transferred to the society free from encumbrances, there is no applicability to the Government Grants Act. The judgment on which reliance was placed by the learned senior counsel for the appellant in Mohsin Ali and Others Vs. State of Madhya Pradesh 1975(2) SCC 122 may not be of any assistance. 47. As regards submission made in respect to Section 44A of the Act is concerned, it may not have any application, since the rights of the parties are governed after the land stood vested with the society free from encumbrances and regulated under the special enactment of the Act 2003 and Rules 2007 framed thereunder. | 0[ds]It is not the case of either party that there was any breach or violation of the terms and conditions which has been referred to under the agreement dated 13 th May, 1955 either by the society or its members or the purchasers or the successors in interest32. The emphasis of learned senior counsel for the appellant that the title of the land in question never stood transferred to the society in the absence of the deed of conveyance been executed, is without substance for the reason that the title at the first place in favour of the society was not created by any of the modes ascribable to the Transfer of Property Act and once the acquisition proceedings have been initiated by the Government, on fulfilment of the conditions referred to under Section 41 of Land Acquisition Act on being published in the Gazette dated 13 th May 1955 under Section 42 of the Act which became the law, there appears no further statutory requirement to register any deed of conveyance under the Transfer of Property Act. Besides it, the consideration amount was paid by the society as demanded by the competent authority and physical and actual possession, free from encumbrances, was delivered to the appellant society and the land stood conveyed and granted in terms of clause 2 of the agreement. At the same time, no party in the instant proceedings ever raised any objection/dispute on the issue of physical possession of the land in question being delivered to the appellant society and/or the same being passed on to the person who have purchased plots/flats therein subsequently. In the given facts and circumstances, it can legitimately be observed that the marketable title in transferring respective plots to its members has created a statutory genesis33. It is also not the case of the appellant society that at any later stage, after the appropriate Government handed over possession, free from encumbrances, of the subject land in question to the society, it ever raised objection in reference to the breach of the terms & conditions of the agreement dated 13 th May, 1955 to resume the subject land or for taking legal recourse in reference to the title of the subject land in question. In the given facts and circumstances, a legal presumption can be drawn that after the peaceful possession free from encumbrances, was handed over by the State Government to the society, all rights of the said land stood vested with the society free from encumbrances and transferred to its members on the terms as indicated in the registered sale deed executed by the society40. The contention of the learned senior counsel for the appellant that the sale/transfer of the plot in question by the member of the society being in violation of condition nos. 2 and 3 of the registered sale deed or clause 51 of the bye-laws which put restriction on the member to transfer or a sale or otherwise to a non-member of the society, without permission of the society in our opinion, deserves to be negated for the reason that there is no restriction/prohibition under the provisions of the Act, 2003 which has been discussed in detail earlier and to be noticed that if the bye-laws to the extent are inconsistent to the provisions of Act 2003, it is the statute which will prevail and it is not the case of the appellant that the transaction of sale/transfer of the plot in question by the member of the society by registered sale deed or registered instrument is in violation of the provisions of the mandate of Act 2003 or rules 2007 framed thereafter41. To the contrary, it appears to be the duty of the Registrar cooperative societies including the registered housing cooperative society to scrutinise the bye-laws of the society and to the extent they are inconsistent with the provisions of Act 2003 or of Rule 2007 framed therein, to ask them to make appropriate corrections and to amend it to make it in conformity with the Act, 2003. It is needless to say that it is the onerous duty of the competent authority to ensure that it performs the statutory task in this behalf but if the task has not been performed as yet, at least no provision in the bye-laws inconsistent with the provisions of the Act, 2003 can have a force of law42. As regards clauses 2 & 3 of the original sale deed executed between the member of the society at the time of initial allotment is concerned, the society reserves its pre-emptive rights to have a cooling period of six months before the member may have an opportunity to transfer the subject plot in the manner he or she likes at least there was no absolute bar or restrain under clause 2 or 3 of the original sale deed, of which reference has been made, to transfer the land or is otherwise impermissible to a non-member under any other laws. But it was possible with prior notice to the society and the cooling period of six months which may enable the society to purchase the plot on the market value and if it is unable to purchase, the member reserves the right to transfer or sell out the plot in a manner he or she likes reserving the pre-emptive rights of the society. In the given circumstances, transfer by a registered instrument cannot be held void unless it is in contravention of any law, which is not the case of the appellant society43. It reveals that what transpired before the Tribunal or the High Court was whether the transfer of title by a registered instrument as alleged was open for scrutiny within the scope of Section 70 of Act, 2003. Although it was never the case of the appellant society that alleged registered sale deed was void ab initio, bad or obtained by fraud or malpractices and it was also not the case of the appellant society that the member of the society in transferring the rights over the property by a registered sale deed, is in violation of any of the provisions of the Act of 2003, or the rules of 2007 framed thereunder44. It is gainful to add that the possession was handed over to the society on fulfilment of the conditions of the agreement dated 13 th May, 1955, published in the Gazette under Section 42 of the Land Acquisition Act, and became the law as observed, that at the time when the possession was handed over to the society by the State Government, no further deed or MOU was executed restricting the rights of the society for fulfilment of its obligation of its plots to its members, that persuades to infer that the possession was handed over to the society of the subject land in question by the Government free from encumbrances with unrestrictive rights to execute the sale deed/allot the plots to its members obviously as per its bye-laws keeping in view of the mandate of the statutory provisions of the Act, 1973 or Act, 2003 which has later on taken over the field in protecting the interests of the members of the cooperative societies including the cooperative housing society as in the instant case46. The appellant society at one stage in their counter affidavit has stated that the subject land is a grant under the Government Grants Act. It was nowhere the case ever set up and it was raised just to denude the rights of the parties which deserves outright rejection for the additional reason that the subject land was acquired by the Government under Part VII of the Land Acquisition Act and transferred to the society free from encumbrances, there is no applicability to the Government Grants Act. The judgment on which reliance was placed by the learned senior counsel for the appellant in Mohsin Ali and Others Vs. State of Madhya Pradesh 1975(2) SCC 122 may not be of any assistance47. As regards submission made in respect to Section 44A of the Act is concerned, it may not have any application, since the rights of the parties are governed after the land stood vested with the society free from encumbrances and regulated under the special enactment of the Act 2003 and Rules 2007 framed | 0 | 11,318 | 1,458 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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of the Act, 2003 can have a force of law. 42. As regards clauses 2 & 3 of the original sale deed executed between the member of the society at the time of initial allotment is concerned, the society reserves its pre-emptive rights to have a cooling period of six months before the member may have an opportunity to transfer the subject plot in the manner he or she likes at least there was no absolute bar or restrain under clause 2 or 3 of the original sale deed, of which reference has been made, to transfer the land or is otherwise impermissible to a non-member under any other laws. But it was possible with prior notice to the society and the cooling period of six months which may enable the society to purchase the plot on the market value and if it is unable to purchase, the member reserves the right to transfer or sell out the plot in a manner he or she likes reserving the pre-emptive rights of the society. In the given circumstances, transfer by a registered instrument cannot be held void unless it is in contravention of any law, which is not the case of the appellant society. 43. It reveals that what transpired before the Tribunal or the High Court was whether the transfer of title by a registered instrument as alleged was open for scrutiny within the scope of Section 70 of Act, 2003. Although it was never the case of the appellant society that alleged registered sale deed was void ab initio, bad or obtained by fraud or malpractices and it was also not the case of the appellant society that the member of the society in transferring the rights over the property by a registered sale deed, is in violation of any of the provisions of the Act of 2003, or the rules of 2007 framed thereunder. 44. It is gainful to add that the possession was handed over to the society on fulfilment of the conditions of the agreement dated 13 th May, 1955, published in the Gazette under Section 42 of the Land Acquisition Act, and became the law as observed, that at the time when the possession was handed over to the society by the State Government, no further deed or MOU was executed restricting the rights of the society for fulfilment of its obligation of its plots to its members, that persuades to infer that the possession was handed over to the society of the subject land in question by the Government free from encumbrances with unrestrictive rights to execute the sale deed/allot the plots to its members obviously as per its bye-laws keeping in view of the mandate of the statutory provisions of the Act, 1973 or Act, 2003 which has later on taken over the field in protecting the interests of the members of the cooperative societies including the cooperative housing society as in the instant case. 45. It may be relevant to note that the subject land was throughout exhibited by the society as freehold land having ownership rights and allotments were made by the society to its members by the registered sale deed at the time of allotment of plots. It is to be noticed that a letter dated 27 th July, 1985 was written by the Secretary of the society to the Lt. Governor and it was mentioned in paragraph 2 of the letter that Delhi Administration acquired 30 acres of land allotted to the society on 25 th March, 1957 on freehold basis. Later, in the letter dated 15 th March, 1989 issued to the Secretary of the Society it was certified that the status of the land is totally freehold and allotment of the plots to the society members was also on the basis of it and the society at one stage approached to the civil Court in RCA No. 95/82 titled Delhi Dayalbagh Cooperative House Building Society Ltd. Vs. Arjun Das and it was observed by the learned trial Judge that the land in dispute is freehold one and there is no legal bar to the same being sold. In the given facts and circumstances, if the allotment has been made by the society as a freehold land to its members who have further transferred/sold the subject land/plot by registered sale deed to its successors/purchasers, their rights to become member of the society are indeed saved under Section 91 of the Act, 2003 that in no manner could be eluded by the bye-laws and that apart if anyone has any objection regarding the registered instrument(sale deed) pursuant to which right has been created, at least it is not open to examine its validity within the domain and ambit of Section 70 of the cooperative societies Act and any person, if felt aggrieved, the remedy lies only before the civil Court having jurisdiction questioning the registered instrument within the parameters available under the law. 46. The appellant society at one stage in their counter affidavit has stated that the subject land is a grant under the Government Grants Act. It was nowhere the case ever set up and it was raised just to denude the rights of the parties which deserves outright rejection for the additional reason that the subject land was acquired by the Government under Part VII of the Land Acquisition Act and transferred to the society free from encumbrances, there is no applicability to the Government Grants Act. The judgment on which reliance was placed by the learned senior counsel for the appellant in Mohsin Ali and Others Vs. State of Madhya Pradesh 1975(2) SCC 122 may not be of any assistance. 47. As regards submission made in respect to Section 44A of the Act is concerned, it may not have any application, since the rights of the parties are governed after the land stood vested with the society free from encumbrances and regulated under the special enactment of the Act 2003 and Rules 2007 framed thereunder.
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be drawn that after the peaceful possession free from encumbrances, was handed over by the State Government to the society, all rights of the said land stood vested with the society free from encumbrances and transferred to its members on the terms as indicated in the registered sale deed executed by the society40. The contention of the learned senior counsel for the appellant that the sale/transfer of the plot in question by the member of the society being in violation of condition nos. 2 and 3 of the registered sale deed or clause 51 of the bye-laws which put restriction on the member to transfer or a sale or otherwise to a non-member of the society, without permission of the society in our opinion, deserves to be negated for the reason that there is no restriction/prohibition under the provisions of the Act, 2003 which has been discussed in detail earlier and to be noticed that if the bye-laws to the extent are inconsistent to the provisions of Act 2003, it is the statute which will prevail and it is not the case of the appellant that the transaction of sale/transfer of the plot in question by the member of the society by registered sale deed or registered instrument is in violation of the provisions of the mandate of Act 2003 or rules 2007 framed thereafter41. To the contrary, it appears to be the duty of the Registrar cooperative societies including the registered housing cooperative society to scrutinise the bye-laws of the society and to the extent they are inconsistent with the provisions of Act 2003 or of Rule 2007 framed therein, to ask them to make appropriate corrections and to amend it to make it in conformity with the Act, 2003. It is needless to say that it is the onerous duty of the competent authority to ensure that it performs the statutory task in this behalf but if the task has not been performed as yet, at least no provision in the bye-laws inconsistent with the provisions of the Act, 2003 can have a force of law42. As regards clauses 2 & 3 of the original sale deed executed between the member of the society at the time of initial allotment is concerned, the society reserves its pre-emptive rights to have a cooling period of six months before the member may have an opportunity to transfer the subject plot in the manner he or she likes at least there was no absolute bar or restrain under clause 2 or 3 of the original sale deed, of which reference has been made, to transfer the land or is otherwise impermissible to a non-member under any other laws. But it was possible with prior notice to the society and the cooling period of six months which may enable the society to purchase the plot on the market value and if it is unable to purchase, the member reserves the right to transfer or sell out the plot in a manner he or she likes reserving the pre-emptive rights of the society. In the given circumstances, transfer by a registered instrument cannot be held void unless it is in contravention of any law, which is not the case of the appellant society43. It reveals that what transpired before the Tribunal or the High Court was whether the transfer of title by a registered instrument as alleged was open for scrutiny within the scope of Section 70 of Act, 2003. Although it was never the case of the appellant society that alleged registered sale deed was void ab initio, bad or obtained by fraud or malpractices and it was also not the case of the appellant society that the member of the society in transferring the rights over the property by a registered sale deed, is in violation of any of the provisions of the Act of 2003, or the rules of 2007 framed thereunder44. It is gainful to add that the possession was handed over to the society on fulfilment of the conditions of the agreement dated 13 th May, 1955, published in the Gazette under Section 42 of the Land Acquisition Act, and became the law as observed, that at the time when the possession was handed over to the society by the State Government, no further deed or MOU was executed restricting the rights of the society for fulfilment of its obligation of its plots to its members, that persuades to infer that the possession was handed over to the society of the subject land in question by the Government free from encumbrances with unrestrictive rights to execute the sale deed/allot the plots to its members obviously as per its bye-laws keeping in view of the mandate of the statutory provisions of the Act, 1973 or Act, 2003 which has later on taken over the field in protecting the interests of the members of the cooperative societies including the cooperative housing society as in the instant case46. The appellant society at one stage in their counter affidavit has stated that the subject land is a grant under the Government Grants Act. It was nowhere the case ever set up and it was raised just to denude the rights of the parties which deserves outright rejection for the additional reason that the subject land was acquired by the Government under Part VII of the Land Acquisition Act and transferred to the society free from encumbrances, there is no applicability to the Government Grants Act. The judgment on which reliance was placed by the learned senior counsel for the appellant in Mohsin Ali and Others Vs. State of Madhya Pradesh 1975(2) SCC 122 may not be of any assistance47. As regards submission made in respect to Section 44A of the Act is concerned, it may not have any application, since the rights of the parties are governed after the land stood vested with the society free from encumbrances and regulated under the special enactment of the Act 2003 and Rules 2007 framed
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Budhwanti @ Budho Rani Vs. Nidhan Singh @ Kapoor | claimants are entitled to any compensation? If so to what amount and from whom?4. Whether Nidhan Singh respondent No. 1 was not having valid driving licence at the time of accident?5. Whether this claim petition is bad for non-joinder of necessary parties?" 5. The learned Tribunal on the basis of the materials brought on record held issue Nos. 1 to 3 in favour of the claimants opining that Sheela Rani and Budhwanti Devi , appellants herein had sustained injuries owing to rash and negligent driving of the respondent No. 1 Nidhan Singh and Khairati Lal died for the self-same reasons. Issue No. 4 was also decided in favour of the claimants - appellants. Issue No. 5, however, was not pressed.6. Whereas the appellant Sheela Rani was granted compensation for a sum of Rs. 4,11,000/- on account of death of Khairati Lal, she was awarded a sum of Rs. 35,000/- in respect of her own injuries. While determining the amount of compensation of Rs. 4,11,000/- , the learned Tribunal assessed the income of the deceased at Rs. 4500/- per month and one -third therefrom was deducted to arrive at the aforesaid amount. The learned Tribunal awarded a sum of Rs. 85,000/- in favour of the appellant Budhwanti on account of permanent disability suffered by her including disfigurement in the said accident.7. Aggrieved by and dissatisfied with the said award, appellants preferred three separate appeals before the High Court inter alia contending that the income of Khairati Lal should have been calculated at Rs. 8000/- to Rs. 10,000/- per month and not at Rs. 4,500/- by the Tribunal.8. So far as the injuries suffered by the appellant Sheela Rani are concerned, it was contended that she had spent an amount of Rs. 1.50 lakh on her medical treatment and as amount should have been awardedin her favour. Apart therefrom enhancement of the amount of compensation on other heads was also claimed.9. Budhwanti, whose leg was amputated, also raised a contention that she had spent a sum of Rs. 2,00,000/- towards medical expenses. Besides the same, she had also spent towards hire of services of an attendant and would furthermore be required to incur expenditure of Rs. 500/- to Rs. 600/- per month therefor.10. The High Court, by reason of the impugned judgment, enhanced the amount of compensation in respect of death of Khairati Lal to Rs. 5,55,000/- and for injuries suffered by the appellants Sheela Rani and Budhwanti to Rs. 50,000/- and Rs. 1,70,000/- respectively.11. Aggrieved thereby, these appeals have been filed by the appellants herein.12. It is unfortunate, we must note at the outset, that the High Court did not assign sufficient or cogent reasons in support of its judgment.13. Appellants contend that Khairati Lal was aged about 35 years at the time of his death. He was running a general merchant shop. He is said to have been selling shoes also. Although in support of the said plea, income tax receipts were filed, the learned Tribunal did not place any reliance thereupon. It was opined that the income of Khairati Lal was Rs. 4500/- per month. The learned Tribunal, furthermore, held that the age of the deceased in view of the post mortem report (Exhibit PW.3/A) was 43 years. In the aforementioned premise, multiplier of 11 was applied.The High Court, however, while maintaining the quantum of income of Khairati Lal at Rs. 4500/- per month, applied the multiplier of 15. The High Court proceeded to apply the multiplicand and the multiplier with reference to the Second Schedule appended to the Motor Vehicles Act, 1988 (for short "the Act"). The Tribunal and the High Court, however, failed to take into consideration that the multiplier specified in the Second Schedule appended to the Act may not have any co-relationship with computation of the quantum of compensation on an application filed under Section 166 thereof. It, however, appears that the deceased Khairati Lal apart from his mother Budhwanti and wife Sheela Rani had three children, who were minors at the material time. Respondents have not preferred any appeal questioning the correctness of the amount awarded by the High Court. We, therefore, do not find any reason to interfere with the judgment of the High Court as regards compensation paid owing to the death of the deceased Khairati Lal as we are of the opinion that the amount of compensation paid was sufficient having regard to the findings of fact arrived at by the learned Tribunal as also the High Court. 14. So far as that part of the appeal preferred by the appellant Sheela Rani as regards compensation paid to her for her injuries and the appeal preferred by the appellant Budhwanti are concerned, neither the Tribunal nor the High Court considered the evidences of the witnesses examined on behalf of the claimants. 15. Why the amount claimed by the claimants towards expenses for obtaining medical treatment had been rejected has not been stated. On what basis the compensation on other heads, viz., pain and suffering expenses, special diet expenses, expenses on transportation, expenses on attendant, compensation for disfigurement and social discomfort, etc. have been granted is not known. Figures have been arrived at without discussing the materials on records, without analyzing the evidences and without assigning sufficient and cogent reasons therefor. 16. We, therefore, are of the opinion that interest of justice shall be met if the claim petitions filed by Sheela Rani and Budhwanti with regard to the amount of compensation for their personal injuries are remitted to the High Court for consideration of the matters afresh. We, however, make it clear that as the respondents herein did not prefer any appeal, the amount of compensation already granted by the High Court shall not be interfered with and the only question which would be considered by the High Court is as to whether the claimants for sustaining injuries on their persons, are entitled to a higher amount of compensation on the basis of the materials brought on record by the parties. | 0[ds]16. We, therefore, are of the opinion that interest of justice shall be met if the claim petitions filed by Sheela Rani and Budhwanti with regard to the amount of compensation for their personal injuries are remitted to the High Court for consideration of the matters afresh. We, however, make it clear that as the respondents herein did not prefer any appeal, the amount of compensation already granted by the High Court shall not be interfered with and the only question which would be considered by the High Court is as towhether the claimants for sustaining injuries on their persons, are entitled to a higher amount of compensation on the basis of the materials brought on record by the parties. | 0 | 1,480 | 133 | ### 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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claimants are entitled to any compensation? If so to what amount and from whom?4. Whether Nidhan Singh respondent No. 1 was not having valid driving licence at the time of accident?5. Whether this claim petition is bad for non-joinder of necessary parties?" 5. The learned Tribunal on the basis of the materials brought on record held issue Nos. 1 to 3 in favour of the claimants opining that Sheela Rani and Budhwanti Devi , appellants herein had sustained injuries owing to rash and negligent driving of the respondent No. 1 Nidhan Singh and Khairati Lal died for the self-same reasons. Issue No. 4 was also decided in favour of the claimants - appellants. Issue No. 5, however, was not pressed.6. Whereas the appellant Sheela Rani was granted compensation for a sum of Rs. 4,11,000/- on account of death of Khairati Lal, she was awarded a sum of Rs. 35,000/- in respect of her own injuries. While determining the amount of compensation of Rs. 4,11,000/- , the learned Tribunal assessed the income of the deceased at Rs. 4500/- per month and one -third therefrom was deducted to arrive at the aforesaid amount. The learned Tribunal awarded a sum of Rs. 85,000/- in favour of the appellant Budhwanti on account of permanent disability suffered by her including disfigurement in the said accident.7. Aggrieved by and dissatisfied with the said award, appellants preferred three separate appeals before the High Court inter alia contending that the income of Khairati Lal should have been calculated at Rs. 8000/- to Rs. 10,000/- per month and not at Rs. 4,500/- by the Tribunal.8. So far as the injuries suffered by the appellant Sheela Rani are concerned, it was contended that she had spent an amount of Rs. 1.50 lakh on her medical treatment and as amount should have been awardedin her favour. Apart therefrom enhancement of the amount of compensation on other heads was also claimed.9. Budhwanti, whose leg was amputated, also raised a contention that she had spent a sum of Rs. 2,00,000/- towards medical expenses. Besides the same, she had also spent towards hire of services of an attendant and would furthermore be required to incur expenditure of Rs. 500/- to Rs. 600/- per month therefor.10. The High Court, by reason of the impugned judgment, enhanced the amount of compensation in respect of death of Khairati Lal to Rs. 5,55,000/- and for injuries suffered by the appellants Sheela Rani and Budhwanti to Rs. 50,000/- and Rs. 1,70,000/- respectively.11. Aggrieved thereby, these appeals have been filed by the appellants herein.12. It is unfortunate, we must note at the outset, that the High Court did not assign sufficient or cogent reasons in support of its judgment.13. Appellants contend that Khairati Lal was aged about 35 years at the time of his death. He was running a general merchant shop. He is said to have been selling shoes also. Although in support of the said plea, income tax receipts were filed, the learned Tribunal did not place any reliance thereupon. It was opined that the income of Khairati Lal was Rs. 4500/- per month. The learned Tribunal, furthermore, held that the age of the deceased in view of the post mortem report (Exhibit PW.3/A) was 43 years. In the aforementioned premise, multiplier of 11 was applied.The High Court, however, while maintaining the quantum of income of Khairati Lal at Rs. 4500/- per month, applied the multiplier of 15. The High Court proceeded to apply the multiplicand and the multiplier with reference to the Second Schedule appended to the Motor Vehicles Act, 1988 (for short "the Act"). The Tribunal and the High Court, however, failed to take into consideration that the multiplier specified in the Second Schedule appended to the Act may not have any co-relationship with computation of the quantum of compensation on an application filed under Section 166 thereof. It, however, appears that the deceased Khairati Lal apart from his mother Budhwanti and wife Sheela Rani had three children, who were minors at the material time. Respondents have not preferred any appeal questioning the correctness of the amount awarded by the High Court. We, therefore, do not find any reason to interfere with the judgment of the High Court as regards compensation paid owing to the death of the deceased Khairati Lal as we are of the opinion that the amount of compensation paid was sufficient having regard to the findings of fact arrived at by the learned Tribunal as also the High Court. 14. So far as that part of the appeal preferred by the appellant Sheela Rani as regards compensation paid to her for her injuries and the appeal preferred by the appellant Budhwanti are concerned, neither the Tribunal nor the High Court considered the evidences of the witnesses examined on behalf of the claimants. 15. Why the amount claimed by the claimants towards expenses for obtaining medical treatment had been rejected has not been stated. On what basis the compensation on other heads, viz., pain and suffering expenses, special diet expenses, expenses on transportation, expenses on attendant, compensation for disfigurement and social discomfort, etc. have been granted is not known. Figures have been arrived at without discussing the materials on records, without analyzing the evidences and without assigning sufficient and cogent reasons therefor. 16. We, therefore, are of the opinion that interest of justice shall be met if the claim petitions filed by Sheela Rani and Budhwanti with regard to the amount of compensation for their personal injuries are remitted to the High Court for consideration of the matters afresh. We, however, make it clear that as the respondents herein did not prefer any appeal, the amount of compensation already granted by the High Court shall not be interfered with and the only question which would be considered by the High Court is as to whether the claimants for sustaining injuries on their persons, are entitled to a higher amount of compensation on the basis of the materials brought on record by the parties.
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16. We, therefore, are of the opinion that interest of justice shall be met if the claim petitions filed by Sheela Rani and Budhwanti with regard to the amount of compensation for their personal injuries are remitted to the High Court for consideration of the matters afresh. We, however, make it clear that as the respondents herein did not prefer any appeal, the amount of compensation already granted by the High Court shall not be interfered with and the only question which would be considered by the High Court is as towhether the claimants for sustaining injuries on their persons, are entitled to a higher amount of compensation on the basis of the materials brought on record by the parties.
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M/S. Jeewanlal (1929) Ltd., Calcutta Vs. Its Workmen | the continuity of his employment which made his claim incompetent under cl. (iii). This contention has been rejected by the tribunal.4. Mr. S. T. Desai contends that in interpreting the words "continuous service" in cl. (iii) we should compare the provisions of S. 49B (1) along with the explanation in the Indian Factories Act XXV of 1934 as well as S. 79(1) along with explanation (1) in the Indian Factories Act 63 of 1948 prior to its amendment in 1954; and he argues that unauthorised absence from work should normally cause a break in service so that if an employee, after unauthorised absence from work, is allowed to resume after such unauthorised absence he should not be entitled to claim continuous service in view of the break in his service. In support of this argument reliance has been placed on the decision of this Court in Buckingham and Carnatic Co. Ltd. v. Workers of Buckingham and Carnatic Co. Ltd., 1953 SCR 219: (AIR 1953 SC 47 ): In that case this Court has held that the continuity of the service of the workers was interrupted by the illegal strike and so they were not entitled to claim holidays with pay under S. 49B (1) of the Indian Factories Act. It would, however, be noticed that the said decision turned upon the definition of the word "strike" in S. 2(q) of the Industrial Disputes Act, 1947, read with the relevant provision of S. 49B of the Indian Factories Act, 1934; and there can be no doubt that in a different context the same words can and often have different meanings. As this Court has observed in Budge Budge Municipality v. P. R. Mukherjee, 1953-1 Lab LJ 195 at p. 198: (AIR 1953 SC 58 at p. 60)"the same words may mean one thing in one context and another in different context. This is the reason why decisions on the meaning of particular words or collection of words found in other statutes are scarcely of much value when we have to deal with a specific statute of our own; they may be helpful but cannot be taken as guides or precedents."Therefore, the meaning attributed to the words "continuous service" in the context of the Factories Act may not have a material bearing in deciding the point in the present appeal.5. The same comment falls to be made in regard to the argument based on the definition of the expression "continuous service" contained in S. 2(eee) of the Industrial Disputes Act, 1947. The said section provides that "continuous service" means uninterrupted service and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workmen. This definition is undoubtedly relevant in dealing with the question of continuous service by reference to the provisions of the Industrial Disputes Act but its operation cannot be automatically extended in dealing with an interpretation of the words "continuous service" in an award made in an industrial dispute unless the context in which the expression is used in the award justified it. In other words, the expression "continuous service" may be statutorily defined in which case the definition will prevail. An award using the said expression may itself give a definition of that expression and that will bind parties in dealing with claim arising from the award. Where, however, the award does not explain the said expression and statutory definitions contained in other Acts are of no material assistance it would be necessary to examine the question on principle and decide what the expression should mean in any given award; and that is precisely what the tribunal had to do in the present case.6."Continuous service" in the context of the scheme of gratuity framed by the tribunal in the earlier reference postulates the continuance of the relationship of master and servant between the employer and his employees. If the servant resigns his employment service automatically comes to an end. If the employer terminates the service of his employee that again brings the continuity of service to an end. If the service of an employee is brought to an end by the operation of any law that again is another instance where the continuance is disrupted; but it is difficult to hold that merely because an employee is absent without obtaining leave that itself would bring to an end the continuity of his service. Similarly, participation in an illegal strike which may incur the punishment of dismissal may not by itself bring to an end the relationship of master and servant. It may be a good cause for the termination of service provided of course the relevant provisions in the standing orders in that behalf are complied with; but mere participation in an illegal strike cannot be said to cause breach in continuity for the purposes of gratuity. On the other hand, if an employee continues to be absent from duty without obtaining leave and in an unauthorised manner for such a long period of time that an inference may reasonably be drawn from such absence that by his absence he has abandoned service, then such long unauthorised absence may legitimately be held to cause a break in the continuity of service. It would thus always be a question of fact to be decided on the circumstances of each case whether or not a particular employee can claim continuity of service for the requisite period or not. In our opinion, therefore, the view taken by the tribunal is substantially right though we would like to make it clear that in addition to the cases where according to the tribunal continuity of service would come to an end there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee. | 0[ds]Therefore, the meaning attributed to the words "continuous service" in the context of the Factories Act may not have a material bearing in deciding the point in the presentservice" in the context of the scheme of gratuity framed by the tribunal in the earlier reference postulates the continuance of the relationship of master and servant between the employer and his employees. If the servant resigns his employment service automatically comes to an end. If the employer terminates the service of his employee that again brings the continuity of service to an end. If the service of an employee is brought to an end by the operation of any law that again is another instance where the continuance is disrupted; but it is difficult to hold that merely because an employee is absent without obtaining leave that itself would bring to an end the continuity of his service. Similarly, participation in an illegal strike which may incur the punishment of dismissal may not by itself bring to an end the relationship of master and servant. It may be a good cause for the termination of service provided of course the relevant provisions in the standing orders in that behalf are complied with; but mere participation in an illegal strike cannot be said to cause breach in continuity for the purposes of gratuity. On the other hand, if an employee continues to be absent from duty without obtaining leave and in an unauthorised manner for such a long period of time that an inference may reasonably be drawn from such absence that by his absence he has abandoned service, then such long unauthorised absence may legitimately be held to cause a break in the continuity of service. It would thus always be a question of fact to be decided on the circumstances of each case whether or not a particular employee can claim continuity of service for the requisite period or not. In our opinion, therefore, the view taken by the tribunal is substantially right though we would like to make it clear that in addition to the cases where according to the tribunal continuity of service would come to an end there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee. | 0 | 1,832 | 414 | ### 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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the continuity of his employment which made his claim incompetent under cl. (iii). This contention has been rejected by the tribunal.4. Mr. S. T. Desai contends that in interpreting the words "continuous service" in cl. (iii) we should compare the provisions of S. 49B (1) along with the explanation in the Indian Factories Act XXV of 1934 as well as S. 79(1) along with explanation (1) in the Indian Factories Act 63 of 1948 prior to its amendment in 1954; and he argues that unauthorised absence from work should normally cause a break in service so that if an employee, after unauthorised absence from work, is allowed to resume after such unauthorised absence he should not be entitled to claim continuous service in view of the break in his service. In support of this argument reliance has been placed on the decision of this Court in Buckingham and Carnatic Co. Ltd. v. Workers of Buckingham and Carnatic Co. Ltd., 1953 SCR 219: (AIR 1953 SC 47 ): In that case this Court has held that the continuity of the service of the workers was interrupted by the illegal strike and so they were not entitled to claim holidays with pay under S. 49B (1) of the Indian Factories Act. It would, however, be noticed that the said decision turned upon the definition of the word "strike" in S. 2(q) of the Industrial Disputes Act, 1947, read with the relevant provision of S. 49B of the Indian Factories Act, 1934; and there can be no doubt that in a different context the same words can and often have different meanings. As this Court has observed in Budge Budge Municipality v. P. R. Mukherjee, 1953-1 Lab LJ 195 at p. 198: (AIR 1953 SC 58 at p. 60)"the same words may mean one thing in one context and another in different context. This is the reason why decisions on the meaning of particular words or collection of words found in other statutes are scarcely of much value when we have to deal with a specific statute of our own; they may be helpful but cannot be taken as guides or precedents."Therefore, the meaning attributed to the words "continuous service" in the context of the Factories Act may not have a material bearing in deciding the point in the present appeal.5. The same comment falls to be made in regard to the argument based on the definition of the expression "continuous service" contained in S. 2(eee) of the Industrial Disputes Act, 1947. The said section provides that "continuous service" means uninterrupted service and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workmen. This definition is undoubtedly relevant in dealing with the question of continuous service by reference to the provisions of the Industrial Disputes Act but its operation cannot be automatically extended in dealing with an interpretation of the words "continuous service" in an award made in an industrial dispute unless the context in which the expression is used in the award justified it. In other words, the expression "continuous service" may be statutorily defined in which case the definition will prevail. An award using the said expression may itself give a definition of that expression and that will bind parties in dealing with claim arising from the award. Where, however, the award does not explain the said expression and statutory definitions contained in other Acts are of no material assistance it would be necessary to examine the question on principle and decide what the expression should mean in any given award; and that is precisely what the tribunal had to do in the present case.6."Continuous service" in the context of the scheme of gratuity framed by the tribunal in the earlier reference postulates the continuance of the relationship of master and servant between the employer and his employees. If the servant resigns his employment service automatically comes to an end. If the employer terminates the service of his employee that again brings the continuity of service to an end. If the service of an employee is brought to an end by the operation of any law that again is another instance where the continuance is disrupted; but it is difficult to hold that merely because an employee is absent without obtaining leave that itself would bring to an end the continuity of his service. Similarly, participation in an illegal strike which may incur the punishment of dismissal may not by itself bring to an end the relationship of master and servant. It may be a good cause for the termination of service provided of course the relevant provisions in the standing orders in that behalf are complied with; but mere participation in an illegal strike cannot be said to cause breach in continuity for the purposes of gratuity. On the other hand, if an employee continues to be absent from duty without obtaining leave and in an unauthorised manner for such a long period of time that an inference may reasonably be drawn from such absence that by his absence he has abandoned service, then such long unauthorised absence may legitimately be held to cause a break in the continuity of service. It would thus always be a question of fact to be decided on the circumstances of each case whether or not a particular employee can claim continuity of service for the requisite period or not. In our opinion, therefore, the view taken by the tribunal is substantially right though we would like to make it clear that in addition to the cases where according to the tribunal continuity of service would come to an end there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee.
### Response:
0
### Explanation:
Therefore, the meaning attributed to the words "continuous service" in the context of the Factories Act may not have a material bearing in deciding the point in the presentservice" in the context of the scheme of gratuity framed by the tribunal in the earlier reference postulates the continuance of the relationship of master and servant between the employer and his employees. If the servant resigns his employment service automatically comes to an end. If the employer terminates the service of his employee that again brings the continuity of service to an end. If the service of an employee is brought to an end by the operation of any law that again is another instance where the continuance is disrupted; but it is difficult to hold that merely because an employee is absent without obtaining leave that itself would bring to an end the continuity of his service. Similarly, participation in an illegal strike which may incur the punishment of dismissal may not by itself bring to an end the relationship of master and servant. It may be a good cause for the termination of service provided of course the relevant provisions in the standing orders in that behalf are complied with; but mere participation in an illegal strike cannot be said to cause breach in continuity for the purposes of gratuity. On the other hand, if an employee continues to be absent from duty without obtaining leave and in an unauthorised manner for such a long period of time that an inference may reasonably be drawn from such absence that by his absence he has abandoned service, then such long unauthorised absence may legitimately be held to cause a break in the continuity of service. It would thus always be a question of fact to be decided on the circumstances of each case whether or not a particular employee can claim continuity of service for the requisite period or not. In our opinion, therefore, the view taken by the tribunal is substantially right though we would like to make it clear that in addition to the cases where according to the tribunal continuity of service would come to an end there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee.
|
Inst.Of Chartered Accountants Of India Vs. Shaunak H Sayta | in response to part (ii) of first respondents query (13). 23. In its communication dated 22.2.2008, ICAI informed the first respondent that under Regulation 39(2), its Examining Committee had the authority to revise the marks based on the findings of the Head Examiners and any incidental information in its knowledge. This answers part (iv) of query (13) as to the authority which decides the exercise of the discretion to make the revision under Regulation 39(2). 24. In regard to parts (i), (iii) and (v) of query (13), ICAI submits that such data is not maintained. Reliance is placed upon the following observations of this Court in Aditya Bandopadhyay: “The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of `information and `right to information under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant.” As the information sought under parts (i), (iii) and (v) of query (13) are not maintained and is not available in the form of data with the appellant in its records, ICAI is not bound to furnish the same. General submissions of ICAI 25. The learned counsel of ICAI submitted that there are several hundred examining bodies in the country. With the aspirations of young citizens to secure seats in institutions of higher learning or to qualify for certain professions or to secure jobs, more and more persons participate in more and more examinations. It is quite common for an examining body to conduct examinations for lakhs of candidates that too more than once per year. Conducting examinations involving preparing the question papers, conducting the examinations at various centres all over the country, getting the answer scripts evaluated and declaring results, is an immense task for examining bodies, to be completed within fixed time schedules. If the examining bodies are required to frequently furnish various kinds of information as sought in this case to several applicants, it will add an enormous work load and their existing staff will not be able to cope up with the additional work involved in furnishing information under the RTI Act. It was submitted by ICAI that it conducts several examinations every year where more than four lakhs candidates participate; that out of them, about 15-16% are successful, which means that more than three and half lakhs of candidates are unsuccessful; that if even one percent at those unsuccessful candidates feel dissatisfied with the results and seek all types of unrelated information, the working of ICAI will come to a standstill. It was submitted that for every meaningful user of RTI Act, there are several abusers who will attempt to disrupt the functioning of the examining bodies by seeking huge quantity of information. ICAI submits that the application by the first respondent is a classic case of improper use of the Act, where a candidate who has failed in an examination and who does not even choose to take the subsequent examination has been engaging ICAI in a prolonged litigation by seeking a bundle of information none of which is relevant to decide whether his answer script was properly evaluated, nor have any bearing on accountability or reducing corruption. ICAI submits that there should be an effective control and screening of applications for information by the competent authorities under the Act. We do not agree that first respondent had indulged in improper use of RTI Act. His application is intended to bring about transparency and accountability in the functioning of ICAI. How far he is entitled to the information is a different issue. Examining bodies like ICAI should change their old mindsets and tune them to the new regime of disclosure of maximum information. Public authorities should realize that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only through transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information. Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the Civil Society and the Parliament. In its wisdom, the Parliament has chosen to exempt only certain categories of information from disclosure and certain organizations from the applicability of the Act. As the examining bodies have not been exempted, and as the examination processes of examining bodies have not been exempted, the examining bodies will have to gear themselves to comply with the provisions of the RTI Act. Additional workload is not a defence. If there are practical insurmountable difficulties, it is open to the examining bodies to bring them to the notice of the government for consideration so that any changes to the Act can be deliberated upon. Be that as it may. 26. We however agree that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under section 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources.27. In view of the above, | 1[ds]The term `intellectual property refers to a category of intangible rights protecting commercially valuable products of human intellect comprising primarily trade mark, copyright and patent right, as also trade secret rights, publicity rights, moral rights and rights against unfair competition (vide Blacks Law Dictionary, 7th Edition, page 813). Question papers, instructions regarding evaluation and solutions to questions (or model answers) which are furnished to examiners and moderators in connection with evaluation of answer scripts, are literary works which are products of human intellect and therefore subject to a copyright. The paper setters and authors thereof (other than employees of ICAI), who are the first owners thereof are required to assign their copyright in regard to the question papers/solutions in favour of ICAI. We extract below the relevant standard communication sent by ICAI in thatCouncil is anxious to prevent the unauthorized circulation of Question Papers set for the Chartered Accountants Examinations as well as the solutions thereto. With that object in view, the Council proposes to reserve all copy-rights in the question papers as well as solutions. In order to enable the Council to retain the copy-rights, it has been suggested that it would be advisable to obtain a specific assignment of any copy-rights or rights of publication that you may be deemed to possess in the questions set by you for the Chartered Accountants Examinations and the solutions thereto in favour of the Council. I have no doubt that you will appreciate that this is merely a formality to obviate any misconception likely to arise laterresponse to it, the paper setters/authors give declarations of assignment, assigning their copyrights in the question papers and solutions prepared by them, in favour of ICAI. Insofar as instructions prepared by the employees of ICAI, the copyright vests in ICAI. Consequently, the question papers, solutions to questions and instructions are the intellectual properties ofcan be sought under the RTI Act at different stages or different points of time. What is exempted from disclosure at one point of time may cease to be exempted at a later point of time, depending upon the nature of exemption. For example, any information which is exempted from disclosure under section 8, is liable to be disclosed if the application is made in regard to the occurrence or event which took place or occurred or happened twenty years prior to the date of the request, vide section 8(3) of the RTI Act. In other words, information which was exempted from disclosure, if an application is made within twenty years of the occurrence, may not be exempted if the application is made after twenty years. Similarly, if information relating to the intellectual property, that is the question papers, solutions/model answers and instructions, in regard to any particular examination conducted by the appellant cannot be disclosed before the examination is held, as it would harm the competitive position of innumerable third parties who are taking the said examination. Therefore it is obvious that the appellant examining body is not liable to give to any citizen any information relating to question papers, solutions/model answers and instructions relating to a particular examination before the date of such examination. But the position will be different once the examination is held. Disclosure of the question papers, model answers and instructions in regard to any particular examination, would not harm the competitive position of any third party once the examination is held. In fact the question papers are disclosed to everyone at the time of examination. The appellant voluntarily publishes thein regard to the question papers in the form of a book for sale every year, after the examination. Therefore section 8(1)(d) of the RTI Act does not bar or prohibit the disclosure of question papers, model answers (solutions to questions) and instructions if any given to the examiners and moderators after the examination and after the evaluation of answerscripts is completed, as at that stage they will not harm the competitive position of any third party. We therefore reject the contention of the appellant that if an information is exempt at any given point of time, it continues to be exempt for all time to9 of the RTI Act provides that a Central or State Public Information Officer may reject a request for information where providing access to such information would involve an infringement of copyright subsisting in a person other than the State. The word `State used in section 9 of RTI Act refers to the Central or State Government, Parliament or Legislature of a State, or any local or other authorities as described under Article 12 of the Constitution. The reason for using the word `State and not `public authority in section 9 of RTI Act is apparently because the definition of `public authority in the Act is wider than the definition of `State in Article 12, and includes even non-government organizations financed directly or indirectly by funds provided by the appropriate government. Be that as it may. An application for information would be rejected under section 9 of RTI Act, only if information sought involves an infringement of copyright subsisting in a person other than the State. ICAI being a statutory body created by the Chartered Accountants Act, 1948 is `State. The information sought is a material in which ICAI claims a copyright. It is not the case of ICAI that anyone else has a copyright in such material. In fact it has specifically pleaded that even if the question papers, solutions/model answers, or other instructions are prepared by any third party for ICAI, the copyright therein is assigned in favour of ICAI. Providing access to information in respect of which ICAI holds a copyright, does not involve infringement of a copyright subsisting in a person other than the State. Therefore ICAI is not entitled to claim protection against disclosure under section 9 of the RTI Act.14. There is yet another reason why section 9 of RTI Act will be inapplicable. The words `infringement of copyright have a specific connotation. Section 51 of the Copyright Act, 1957 provides when a copyright in a work shall be deemed to be infringed. Section 52 of the Act enumerates the acts which are not infringement of a copyright. A combined reading of sections 51 and 52(1)(a) of Copyright Act shows that furnishing of information by an examining body, in response to a query under the RTI Act may not be termed as an infringement of copyright. Be that as itinstructions and `solutions to questions issued to the examiners and moderators in connection with evaluation of answer scripts, as noticed above, is the intellectual property of ICAI. These are made available by ICAI to the examiners and moderators to enable them to evaluate the answer scripts correctly and effectively, in a proper manner, to achieve uniformity and consistency in evaluation, as a large number of evaluators and moderators are engaged by ICAI in connection with the evaluation. The instructions and solutions to questions are given by the ICAI to the examiners and moderators to be held in confidence. The examiners and moderators are required to maintain absolute secrecy and cannot disclose the answer scripts, the evaluation of answer scripts, the instructions of ICAI and the solutions to questions made available by ICAI, to anyone. The examiners and moderators are in the position of agents and ICAI is in the position of principal in regard to such information which ICAI gives to the examiners and moderators to achieve uniformity, consistency and exactness of evaluation of the answer scripts. When anything is given and taken in trust or in confidence, requiring or expecting secrecy and confidentiality to be maintained in that behalf, it is held by the recipient in a fiduciaryshould be noted that section 8(1)(e) uses the wordsavailable to a person in his fiduciary relationship. Significantly section 8(1)(e) does not use the wordsavailable to a public authority in its fiduciaryThe use of the wordsshows that the holder of the information in a fiduciary relationship need not only be a `public authority as the word `person is of much wider import than the word `public authority. Therefore the exemption under section 8(1)(e) is available not only in regard to information that is held by a public authority (in this case the examining body) in a fiduciary capacity, but also to any information that is given or made available by a public authority to anyone else for being held in a fiduciary relationship. In other words, anything given and taken in confidence expecting confidentiality to be maintained will be information available to a person in fiduciary relationship. As a consequence, it has to be held that the instructions and solutions to questions communicated by the examining body to the examiners, head-examiners and moderators, are information available to such persons in their fiduciary relationship and therefore exempted from disclosure under section 8(1)(d) of RTI Act.18. The information to which RTI Act applies falls into two categories, namely, (i) information which promotes transparency and accountability in the working of every public authority, disclosure of which helps in containing or discouraging corruption, enumerated in clauses (b) and (c) of section 4(1) of RTI Act; and (ii) other information held by public authorities not falling under section 4(1)(b) and (c) of RTI Act. In regard to information falling under the first category, the public authorities owe a duty to disseminate the information widely suo moto to the public so as to make it easily accessible to the public. In regard to information enumerated or required to be enumerated under section 4(1)(b) and (c) of RTI Act, necessarily and naturally, the competent authorities under the RTI Act, will have to act in a pro-active manner so as to ensure accountability and ensure that the fight against corruption goes on relentlessly. But in regard to other information which do not fall under Section 4(1)(b) and (c) of the Act, there is a need to proceed with circumspection as it is necessary to find out whether they are exempted from disclosure. One of the objects of democracy is to bring about transparency of information to contain corruption and bring about accountability. But achieving this object does not mean that other equally important public interests including efficient functioning of the governments and public authorities, optimum use of limited fiscal resources, preservation of confidentiality of sensitive information, etc. are to be ignored or sacrificed. The object of RTI Act is to harmonize the conflicting public interests, that is, ensuring transparency to bring in accountability and containing corruption on the one hand, and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely affect other public interests which include efficient functioning of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information, on the other hand. While sections 3 and 4 seek to achieve the first objective, sections 8, 9, 10 and 11 seek to achieve the second objective. Therefore when section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals. Therefore in dealing with information not falling under section 4(1)(b) and (c), the competent authorities under the RTI Act will not read the exemptions in section 8 in a restrictive manner but in a practical manner so that the other public interests are preserved and the RTI Act attains a fine balance between its goal of attaining transparency of information and safeguarding the other publicthe ten categories of information which are exempted from disclosure under section 8 of RTI Act, six categories which are described in clauses (a), (b), (c), (f), (g) and (h) carry absolute exemption. Information enumerated in clauses (d), (e) and (j) on the other hand get only conditional exemption, that is the exemption is subject to the overriding power of the competent authority under the RTI Act in larger public interest, to direct disclosure of such information. The information referred to in clause (i) relates to an exemption for a specific period, with an obligation to make the said information public after such period. The information relating to intellectual property and the information available to persons in their fiduciary relationship, referred to in clauses (d) and (e) of section 8(1) do not enjoy absolute exemption. Though exempted, if the competent authority under the Act is satisfied that larger public interest warrants disclosure of such information, such information will have to be disclosed. It is needless to say that the competent authority will have to record reasons for holding that an exempted information should be disclosed in larger public interest.20. In this case the Chief Information Commissioner rightly held that the information sought under queries (3) and (5) were exempted under section 8(1)(e) and that there was no larger public interest requiring denial of the statutory exemption regarding such information. The High Court fell into an error in holding that the information sought under queries (3) and (5) was not(13) of the first respondent required the appellant to disclose the following information: (i) The number of times ICAI had revised the marks of any candidate or any class of candidates under Regulation 39(2); (ii) the criteria used for exercising such discretion for revising the marks; (iii) the quantum of such revisions; (iv) the authority who decides the exercise of discretion to make such revision; and (v) the number of students (with particulars of quantum of revision) affected by such revision held in the last five examinations at all levels.22. Regulation 39(2) of the Chartered Accountants Regulations, 1988 provides that the council may in its discretion, revise the marks obtained by all candidates or a section of candidates in a particular paper or papers or in the aggregate, in such manner as may be necessary for maintaining its standards of pass percentage provided in the Regulations. Regulation 39(2) thus provides for what is known as `moderation, which is a necessary concomitant of evaluation process of answer scripts where a large number of examiners are engaged to evaluate a large number of answerhowever agree that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under section 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources. | 1 | 8,335 | 2,822 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
in response to part (ii) of first respondents query (13). 23. In its communication dated 22.2.2008, ICAI informed the first respondent that under Regulation 39(2), its Examining Committee had the authority to revise the marks based on the findings of the Head Examiners and any incidental information in its knowledge. This answers part (iv) of query (13) as to the authority which decides the exercise of the discretion to make the revision under Regulation 39(2). 24. In regard to parts (i), (iii) and (v) of query (13), ICAI submits that such data is not maintained. Reliance is placed upon the following observations of this Court in Aditya Bandopadhyay: “The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of `information and `right to information under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant.” As the information sought under parts (i), (iii) and (v) of query (13) are not maintained and is not available in the form of data with the appellant in its records, ICAI is not bound to furnish the same. General submissions of ICAI 25. The learned counsel of ICAI submitted that there are several hundred examining bodies in the country. With the aspirations of young citizens to secure seats in institutions of higher learning or to qualify for certain professions or to secure jobs, more and more persons participate in more and more examinations. It is quite common for an examining body to conduct examinations for lakhs of candidates that too more than once per year. Conducting examinations involving preparing the question papers, conducting the examinations at various centres all over the country, getting the answer scripts evaluated and declaring results, is an immense task for examining bodies, to be completed within fixed time schedules. If the examining bodies are required to frequently furnish various kinds of information as sought in this case to several applicants, it will add an enormous work load and their existing staff will not be able to cope up with the additional work involved in furnishing information under the RTI Act. It was submitted by ICAI that it conducts several examinations every year where more than four lakhs candidates participate; that out of them, about 15-16% are successful, which means that more than three and half lakhs of candidates are unsuccessful; that if even one percent at those unsuccessful candidates feel dissatisfied with the results and seek all types of unrelated information, the working of ICAI will come to a standstill. It was submitted that for every meaningful user of RTI Act, there are several abusers who will attempt to disrupt the functioning of the examining bodies by seeking huge quantity of information. ICAI submits that the application by the first respondent is a classic case of improper use of the Act, where a candidate who has failed in an examination and who does not even choose to take the subsequent examination has been engaging ICAI in a prolonged litigation by seeking a bundle of information none of which is relevant to decide whether his answer script was properly evaluated, nor have any bearing on accountability or reducing corruption. ICAI submits that there should be an effective control and screening of applications for information by the competent authorities under the Act. We do not agree that first respondent had indulged in improper use of RTI Act. His application is intended to bring about transparency and accountability in the functioning of ICAI. How far he is entitled to the information is a different issue. Examining bodies like ICAI should change their old mindsets and tune them to the new regime of disclosure of maximum information. Public authorities should realize that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only through transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information. Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the Civil Society and the Parliament. In its wisdom, the Parliament has chosen to exempt only certain categories of information from disclosure and certain organizations from the applicability of the Act. As the examining bodies have not been exempted, and as the examination processes of examining bodies have not been exempted, the examining bodies will have to gear themselves to comply with the provisions of the RTI Act. Additional workload is not a defence. If there are practical insurmountable difficulties, it is open to the examining bodies to bring them to the notice of the government for consideration so that any changes to the Act can be deliberated upon. Be that as it may. 26. We however agree that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under section 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources.27. In view of the above,
### Response:
1
### Explanation:
such persons in their fiduciary relationship and therefore exempted from disclosure under section 8(1)(d) of RTI Act.18. The information to which RTI Act applies falls into two categories, namely, (i) information which promotes transparency and accountability in the working of every public authority, disclosure of which helps in containing or discouraging corruption, enumerated in clauses (b) and (c) of section 4(1) of RTI Act; and (ii) other information held by public authorities not falling under section 4(1)(b) and (c) of RTI Act. In regard to information falling under the first category, the public authorities owe a duty to disseminate the information widely suo moto to the public so as to make it easily accessible to the public. In regard to information enumerated or required to be enumerated under section 4(1)(b) and (c) of RTI Act, necessarily and naturally, the competent authorities under the RTI Act, will have to act in a pro-active manner so as to ensure accountability and ensure that the fight against corruption goes on relentlessly. But in regard to other information which do not fall under Section 4(1)(b) and (c) of the Act, there is a need to proceed with circumspection as it is necessary to find out whether they are exempted from disclosure. One of the objects of democracy is to bring about transparency of information to contain corruption and bring about accountability. But achieving this object does not mean that other equally important public interests including efficient functioning of the governments and public authorities, optimum use of limited fiscal resources, preservation of confidentiality of sensitive information, etc. are to be ignored or sacrificed. The object of RTI Act is to harmonize the conflicting public interests, that is, ensuring transparency to bring in accountability and containing corruption on the one hand, and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely affect other public interests which include efficient functioning of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information, on the other hand. While sections 3 and 4 seek to achieve the first objective, sections 8, 9, 10 and 11 seek to achieve the second objective. Therefore when section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals. Therefore in dealing with information not falling under section 4(1)(b) and (c), the competent authorities under the RTI Act will not read the exemptions in section 8 in a restrictive manner but in a practical manner so that the other public interests are preserved and the RTI Act attains a fine balance between its goal of attaining transparency of information and safeguarding the other publicthe ten categories of information which are exempted from disclosure under section 8 of RTI Act, six categories which are described in clauses (a), (b), (c), (f), (g) and (h) carry absolute exemption. Information enumerated in clauses (d), (e) and (j) on the other hand get only conditional exemption, that is the exemption is subject to the overriding power of the competent authority under the RTI Act in larger public interest, to direct disclosure of such information. The information referred to in clause (i) relates to an exemption for a specific period, with an obligation to make the said information public after such period. The information relating to intellectual property and the information available to persons in their fiduciary relationship, referred to in clauses (d) and (e) of section 8(1) do not enjoy absolute exemption. Though exempted, if the competent authority under the Act is satisfied that larger public interest warrants disclosure of such information, such information will have to be disclosed. It is needless to say that the competent authority will have to record reasons for holding that an exempted information should be disclosed in larger public interest.20. In this case the Chief Information Commissioner rightly held that the information sought under queries (3) and (5) were exempted under section 8(1)(e) and that there was no larger public interest requiring denial of the statutory exemption regarding such information. The High Court fell into an error in holding that the information sought under queries (3) and (5) was not(13) of the first respondent required the appellant to disclose the following information: (i) The number of times ICAI had revised the marks of any candidate or any class of candidates under Regulation 39(2); (ii) the criteria used for exercising such discretion for revising the marks; (iii) the quantum of such revisions; (iv) the authority who decides the exercise of discretion to make such revision; and (v) the number of students (with particulars of quantum of revision) affected by such revision held in the last five examinations at all levels.22. Regulation 39(2) of the Chartered Accountants Regulations, 1988 provides that the council may in its discretion, revise the marks obtained by all candidates or a section of candidates in a particular paper or papers or in the aggregate, in such manner as may be necessary for maintaining its standards of pass percentage provided in the Regulations. Regulation 39(2) thus provides for what is known as `moderation, which is a necessary concomitant of evaluation process of answer scripts where a large number of examiners are engaged to evaluate a large number of answerhowever agree that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under section 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources.
|
Ramesh Kumar Vs. State of Haryana | regarding the sentence, we do not propose to discuss in details the prosecution story and the evidence tendered by the prosecution in its support. However, we must notice certain facts in order to appreciate the question of sentence. 7. The alleged incident appears to have happened on the night intervening 5th and 6th February, 1999. It is alleged that the husband of the prosecutrix was addicted to drinking and on evening of 5th February, 1999, Suraj Bhan @ Surja (A-6) came to the house of the prosecutrix and took along her husband. Again at about 11 p.m. at night her door was knocked and after opening of the door she saw that Veer Bhan (A-1) was present there and he told her that her husband was lying in a drunken state and, therefore, she should fetch him back. The prosecutrix allegedly accompanied Veer Bhan (A-1) who took her near the engine in the fields of one Mukhtiar Fauji where the other accused persons, namely, Bagicha (A-2), Surja (A-6), Ramesh (A-4), Ajmer (A-3) and Raju (A-5) were already present. The prosecutrix identified each of the accused as they were known to her. When she asked the whereabouts of her husband she was threatened by Veer Bhan (A-1) as she would lose her life if she were to raise an alarm. She was thereafter relieved of all her clothes by Veer Bhan (A-1) and then Veer Bhan (A-1), Ajmer (A-3) and Ramesh (A-4) (present appellant) committed rape on her turn by turn whereas the other three accused merely kept on scaring her. It was then she was taken back to her house by Veer Bhan (A-1) and again she was threatened not to disclose the incident to anybody, else she would be killed. On the following day when her husband came home, she disclosed the occurrence to her husband whereupon she, along with her parents, went to Police Station Sadar Panipat and lodged the FIR. She was thereafter sent for medical examination and the examination was conducted by the Lady Doctor. The accused were eventually arrested on different dates and all of them were sent for medical examination on 15.2.1999. All of them were found to be fit for committing sexual intercourse. The clothes of the accused were also sent to Forensic Science Laboratory and it was found that there were semen stains on the Salwar of the prosecutrix, vaginal swabs and the underwear’s of accused Ramesh (the present appellant) and accused Ajmer. The prosecution led evidence of Nirmala, the prosecutrix, the husband of Nirmala, namely, Lal Chand, son of Gian Chand and Prithvi Singh, the Investigating Officer. Some of the witnesses were given up while Dr.K.L. Chopra, who had examined the accused Veer Bhan and Raju was examined. One Dr.S.K. Gupta was also examined who had examined accused Ramesh Kumar, Ajmer, Suraj Bhan and Bagicha. The accused generally denied their participation in the crime and the present appellant asserted that on the date of occurrence he was not present in the Village. It was his evidence that since Radhu Ram, his father was contesting the elections of Sarpanch for the last 20 years and one Diwan Chand was contesting the elections against his father and since his father was winning the elections throughout, the said Diwan Chand was nursing a grudge against the accused. On the basis of the evidence and more particularly relying on the evidence of Nirmala, the prosecutrix, all the accused were convicted. 8. It is not for us now to consider whether the appellants were rightly convicted since that question does not remain in view of the fact that this Court had issued only limited notice regarding the sentence obviously taking the view that there was nothing wrong with the judgment of conviction recorded by the Trial as well as the Appellate Courts. The question is only of the sentence. 9. In this case the courts below have awarded the maximum penalty against the three accused being the life sentence. The only plea that was raised before us was that the appellant Ramesh comes from the poor background and that his old parents will be deprived of his company. There is no material placed before the Trial and the Appellate Court as well as before us in support of his poverty. At any rate we can take the notice of the fact that the father of the appellant has been the Sarpanch for the last 20 years. Again there would be no question of taking a lenient view particularly because of the daring dastardly act on the part of the accused persons in which the appellant took active part inasmuch as out of the six accused persons, he was one of the three accused who had committed rape on the lady. We cannot ignore the fact that the lady was a married person and was tricked to accompany the accused who obviously had an evil design. It cannot be forgotten that the husband of the lady was lured on the evening of the day of occurrence itself taking advantage of his addiction to alcohol and it was then that the lady was lured to come out of the house for taking back her husband who was lying in a drunken state. Here was a defenceless married person who was tricked out of her house taking the advantage of the drunkenness of her husband and then was ravished in a most dastardly manner by as many as three persons, one of whom was the appellant before us. Under such circumstances we do not think that any leniency can be shown in the matter of sentence. It cannot be forgotten that out of three accused persons only one of the accused person has come up by way of an appeal. He cannot be treated differently from others who are serving their life sentence.10. Under the circumstances we do not wish to interfere with the judgments of the Trial and Appellate Courts in so far as the sentence is concerned. | 0[ds]The alleged incident appears to have happened on the night intervening 5th and 6th February, 1999. It is alleged that the husband of the prosecutrix was addicted to drinking and on evening of 5th February, 1999, Suraj Bhan @ Surja (A-6) came to the house of the prosecutrix and took along her husband. Again at about 11 p.m. at night her door was knocked and after opening of the door she saw that Veer Bhan (A-1) was present there and he told her that her husband was lying in a drunken state and, therefore, she should fetch him back. The prosecutrix allegedly accompanied Veer Bhan (A-1) who took her near the engine in the fields of one Mukhtiar Fauji where the other accused persons, namely, Bagicha (A-2), Surja (A-6), Ramesh (A-4), Ajmer (A-3) and Raju (A-5) were already present. The prosecutrix identified each of the accused as they were known to her. When she asked the whereabouts of her husband she was threatened by Veer Bhan (A-1) as she would lose her life if she were to raise an alarm. She was thereafter relieved of all her clothes by Veer Bhan (A-1) and then Veer Bhan (A-1), Ajmer (A-3) and Ramesh (A-4) (present appellant) committed rape on her turn by turn whereas the other three accused merely kept on scaring her. It was then she was taken back to her house by Veer Bhan (A-1) and again she was threatened not to disclose the incident to anybody, else she would be killed. On the following day when her husband came home, she disclosed the occurrence to her husband whereupon she, along with her parents, went to Police Station Sadar Panipat and lodged the FIR. She was thereafter sent for medical examination and the examination was conducted by the Lady Doctor. The accused were eventually arrested on different dates and all of them were sent for medical examination on 15.2.1999. All of them were found to be fit for committing sexual intercourse. The clothes of the accused were also sent to Forensic Science Laboratory and it was found that there were semen stains on the Salwar of the prosecutrix, vaginal swabs and theof accused Ramesh (the present appellant) and accused Ajmer. The prosecution led evidence of Nirmala, the prosecutrix, the husband of Nirmala, namely, Lal Chand, son of Gian Chand and Prithvi Singh, the Investigating Officer. Some of the witnesses were given up while Dr.K.L. Chopra, who had examined the accused Veer Bhan and Raju was examined. One Dr.S.K. Gupta was also examined who had examined accused Ramesh Kumar, Ajmer, Suraj Bhan and Bagicha. The accused generally denied their participation in the crime and the present appellant asserted that on the date of occurrence he was not present in the Village. It was his evidence that since Radhu Ram, his father was contesting the elections of Sarpanch for the last 20 years and one Diwan Chand was contesting the elections against his father and since his father was winning the elections throughout, the said Diwan Chand was nursing a grudge against the accused. On the basis of the evidence and more particularly relying on the evidence of Nirmala, the prosecutrix, all the accused wereis not for us now to consider whether the appellants were rightly convicted since that question does not remain in view of the fact that this Court had issued only limited notice regarding the sentence obviously taking the view that there was nothing wrong with the judgment of conviction recorded by the Trial as well as the Appellate Courts. The question is only of thethis case the courts below have awarded the maximum penalty against the three accused being the life sentence. The only plea that was raised before us was that the appellant Ramesh comes from the poor background and that his old parents will be deprived of his company. There is no material placed before the Trial and the Appellate Court as well as before us in support of his poverty. At any rate we can take the notice of the fact that the father of the appellant has been the Sarpanch for the last 20 years. Again there would be no question of taking a lenient view particularly because of the daring dastardly act on the part of the accused persons in which the appellant took active part inasmuch as out of the six accused persons, he was one of the three accused who had committed rape on the lady. We cannot ignore the fact that the lady was a married person and was tricked to accompany the accused who obviously had an evil design. It cannot be forgotten that the husband of the lady was lured on the evening of the day of occurrence itself taking advantage of his addiction to alcohol and it was then that the lady was lured to come out of the house for taking back her husband who was lying in a drunken state. Here was a defenceless married person who was tricked out of her house taking the advantage of the drunkenness of her husband and then was ravished in a most dastardly manner by as many as three persons, one of whom was the appellant before us. Under such circumstances we do not think that any leniency can be shown in the matter of sentence. It cannot be forgotten that out of three accused persons only one of the accused person has come up by way of an appeal. He cannot be treated differently from others who are serving their life sentence. | 0 | 1,808 | 1,028 | ### Instruction:
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regarding the sentence, we do not propose to discuss in details the prosecution story and the evidence tendered by the prosecution in its support. However, we must notice certain facts in order to appreciate the question of sentence. 7. The alleged incident appears to have happened on the night intervening 5th and 6th February, 1999. It is alleged that the husband of the prosecutrix was addicted to drinking and on evening of 5th February, 1999, Suraj Bhan @ Surja (A-6) came to the house of the prosecutrix and took along her husband. Again at about 11 p.m. at night her door was knocked and after opening of the door she saw that Veer Bhan (A-1) was present there and he told her that her husband was lying in a drunken state and, therefore, she should fetch him back. The prosecutrix allegedly accompanied Veer Bhan (A-1) who took her near the engine in the fields of one Mukhtiar Fauji where the other accused persons, namely, Bagicha (A-2), Surja (A-6), Ramesh (A-4), Ajmer (A-3) and Raju (A-5) were already present. The prosecutrix identified each of the accused as they were known to her. When she asked the whereabouts of her husband she was threatened by Veer Bhan (A-1) as she would lose her life if she were to raise an alarm. She was thereafter relieved of all her clothes by Veer Bhan (A-1) and then Veer Bhan (A-1), Ajmer (A-3) and Ramesh (A-4) (present appellant) committed rape on her turn by turn whereas the other three accused merely kept on scaring her. It was then she was taken back to her house by Veer Bhan (A-1) and again she was threatened not to disclose the incident to anybody, else she would be killed. On the following day when her husband came home, she disclosed the occurrence to her husband whereupon she, along with her parents, went to Police Station Sadar Panipat and lodged the FIR. She was thereafter sent for medical examination and the examination was conducted by the Lady Doctor. The accused were eventually arrested on different dates and all of them were sent for medical examination on 15.2.1999. All of them were found to be fit for committing sexual intercourse. The clothes of the accused were also sent to Forensic Science Laboratory and it was found that there were semen stains on the Salwar of the prosecutrix, vaginal swabs and the underwear’s of accused Ramesh (the present appellant) and accused Ajmer. The prosecution led evidence of Nirmala, the prosecutrix, the husband of Nirmala, namely, Lal Chand, son of Gian Chand and Prithvi Singh, the Investigating Officer. Some of the witnesses were given up while Dr.K.L. Chopra, who had examined the accused Veer Bhan and Raju was examined. One Dr.S.K. Gupta was also examined who had examined accused Ramesh Kumar, Ajmer, Suraj Bhan and Bagicha. The accused generally denied their participation in the crime and the present appellant asserted that on the date of occurrence he was not present in the Village. It was his evidence that since Radhu Ram, his father was contesting the elections of Sarpanch for the last 20 years and one Diwan Chand was contesting the elections against his father and since his father was winning the elections throughout, the said Diwan Chand was nursing a grudge against the accused. On the basis of the evidence and more particularly relying on the evidence of Nirmala, the prosecutrix, all the accused were convicted. 8. It is not for us now to consider whether the appellants were rightly convicted since that question does not remain in view of the fact that this Court had issued only limited notice regarding the sentence obviously taking the view that there was nothing wrong with the judgment of conviction recorded by the Trial as well as the Appellate Courts. The question is only of the sentence. 9. In this case the courts below have awarded the maximum penalty against the three accused being the life sentence. The only plea that was raised before us was that the appellant Ramesh comes from the poor background and that his old parents will be deprived of his company. There is no material placed before the Trial and the Appellate Court as well as before us in support of his poverty. At any rate we can take the notice of the fact that the father of the appellant has been the Sarpanch for the last 20 years. Again there would be no question of taking a lenient view particularly because of the daring dastardly act on the part of the accused persons in which the appellant took active part inasmuch as out of the six accused persons, he was one of the three accused who had committed rape on the lady. We cannot ignore the fact that the lady was a married person and was tricked to accompany the accused who obviously had an evil design. It cannot be forgotten that the husband of the lady was lured on the evening of the day of occurrence itself taking advantage of his addiction to alcohol and it was then that the lady was lured to come out of the house for taking back her husband who was lying in a drunken state. Here was a defenceless married person who was tricked out of her house taking the advantage of the drunkenness of her husband and then was ravished in a most dastardly manner by as many as three persons, one of whom was the appellant before us. Under such circumstances we do not think that any leniency can be shown in the matter of sentence. It cannot be forgotten that out of three accused persons only one of the accused person has come up by way of an appeal. He cannot be treated differently from others who are serving their life sentence.10. Under the circumstances we do not wish to interfere with the judgments of the Trial and Appellate Courts in so far as the sentence is concerned.
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0
### Explanation:
The alleged incident appears to have happened on the night intervening 5th and 6th February, 1999. It is alleged that the husband of the prosecutrix was addicted to drinking and on evening of 5th February, 1999, Suraj Bhan @ Surja (A-6) came to the house of the prosecutrix and took along her husband. Again at about 11 p.m. at night her door was knocked and after opening of the door she saw that Veer Bhan (A-1) was present there and he told her that her husband was lying in a drunken state and, therefore, she should fetch him back. The prosecutrix allegedly accompanied Veer Bhan (A-1) who took her near the engine in the fields of one Mukhtiar Fauji where the other accused persons, namely, Bagicha (A-2), Surja (A-6), Ramesh (A-4), Ajmer (A-3) and Raju (A-5) were already present. The prosecutrix identified each of the accused as they were known to her. When she asked the whereabouts of her husband she was threatened by Veer Bhan (A-1) as she would lose her life if she were to raise an alarm. She was thereafter relieved of all her clothes by Veer Bhan (A-1) and then Veer Bhan (A-1), Ajmer (A-3) and Ramesh (A-4) (present appellant) committed rape on her turn by turn whereas the other three accused merely kept on scaring her. It was then she was taken back to her house by Veer Bhan (A-1) and again she was threatened not to disclose the incident to anybody, else she would be killed. On the following day when her husband came home, she disclosed the occurrence to her husband whereupon she, along with her parents, went to Police Station Sadar Panipat and lodged the FIR. She was thereafter sent for medical examination and the examination was conducted by the Lady Doctor. The accused were eventually arrested on different dates and all of them were sent for medical examination on 15.2.1999. All of them were found to be fit for committing sexual intercourse. The clothes of the accused were also sent to Forensic Science Laboratory and it was found that there were semen stains on the Salwar of the prosecutrix, vaginal swabs and theof accused Ramesh (the present appellant) and accused Ajmer. The prosecution led evidence of Nirmala, the prosecutrix, the husband of Nirmala, namely, Lal Chand, son of Gian Chand and Prithvi Singh, the Investigating Officer. Some of the witnesses were given up while Dr.K.L. Chopra, who had examined the accused Veer Bhan and Raju was examined. One Dr.S.K. Gupta was also examined who had examined accused Ramesh Kumar, Ajmer, Suraj Bhan and Bagicha. The accused generally denied their participation in the crime and the present appellant asserted that on the date of occurrence he was not present in the Village. It was his evidence that since Radhu Ram, his father was contesting the elections of Sarpanch for the last 20 years and one Diwan Chand was contesting the elections against his father and since his father was winning the elections throughout, the said Diwan Chand was nursing a grudge against the accused. On the basis of the evidence and more particularly relying on the evidence of Nirmala, the prosecutrix, all the accused wereis not for us now to consider whether the appellants were rightly convicted since that question does not remain in view of the fact that this Court had issued only limited notice regarding the sentence obviously taking the view that there was nothing wrong with the judgment of conviction recorded by the Trial as well as the Appellate Courts. The question is only of thethis case the courts below have awarded the maximum penalty against the three accused being the life sentence. The only plea that was raised before us was that the appellant Ramesh comes from the poor background and that his old parents will be deprived of his company. There is no material placed before the Trial and the Appellate Court as well as before us in support of his poverty. At any rate we can take the notice of the fact that the father of the appellant has been the Sarpanch for the last 20 years. Again there would be no question of taking a lenient view particularly because of the daring dastardly act on the part of the accused persons in which the appellant took active part inasmuch as out of the six accused persons, he was one of the three accused who had committed rape on the lady. We cannot ignore the fact that the lady was a married person and was tricked to accompany the accused who obviously had an evil design. It cannot be forgotten that the husband of the lady was lured on the evening of the day of occurrence itself taking advantage of his addiction to alcohol and it was then that the lady was lured to come out of the house for taking back her husband who was lying in a drunken state. Here was a defenceless married person who was tricked out of her house taking the advantage of the drunkenness of her husband and then was ravished in a most dastardly manner by as many as three persons, one of whom was the appellant before us. Under such circumstances we do not think that any leniency can be shown in the matter of sentence. It cannot be forgotten that out of three accused persons only one of the accused person has come up by way of an appeal. He cannot be treated differently from others who are serving their life sentence.
|
British India Electric Construction Company Limited Vs. Workmen | of the second reservation." According to the Appellate tribunal, the claim to dearness allowance on the "chamber scale" was an " existing advantage " which was being enjoyed by the employees and which was not to be adversely affected by the first award. The reason for this conclusion of the Appellate Tribunal may best be stated in its own words as follows: "The claim for dearness allowance, however, stands on a different footing. Dearness allowance, according to the scales of the Bengal Chamber of Commerce, was at that time an existing advantage. The fact that many engineering firms which were parties to the reference were paying at these scales was noticed by the tribunal and the tribunal did not expressly make any other provision in its award respecting that advantage. We. therefore, hold that this claim comes within the saving."( 13 ) The question is whether this interpretation by the Appellate tribunal, of what it calls the second reservation, is correct. It has to be recalled that the first award, in terms, did not make the "chamber scale" applicable to the workmen as had been claimed by them. The award prescribed a much lower scale of dearness allowance, but, at the same time, it did not intend to deprive the workmen of the benefit of a more generous treatment which was being accorded by some of the engineering firms including the appellant. After having prescribed a graduated scale of dearness allowance with reference to the pay range, as set out above, and after having definitely negatived the claim of the work- men to dearness allowance on the " chamber scale," the award proceeded to make certain reservations. The first reservation, as rightly pointed out by the Appellate Tribunal, was concerned with conserving the total emoluments actually enjoyed by the employees. In the last paragraph, the reservation to the effect that " this award will not affect adversely any other kind of existing advantage which the employees of a firm may be enjoying "must, on a proper reading of the entire award, have reference to " existing advantage " of a kind other than those dealt with in the preceding paragraphs. One of the preceding paragraphs had specifically dealt with the question of dearness allowance. Hence, dearness allowance could not come within the purview of the reservation in respect of " other kind of existing advantage." This expression may have reference to emoluments other than basic salary and dearness allowance. Perhaps, it may have reference to other advantages like housing allowance, supply of free electricity, medical relief, etc. The whole history of the Industrial dispute relating to dearness allowance, as set out above and covered by the first two awards, is against the interpretation given to the reservation aforesaid by the tribunals below. Besides, if Cl. (3) refers to dearness allowance as suggested by the respondents, Cl. (1) would really be redundant since its provisions would, by necessary implication, be covered by Cl. (3) itself. As already stated, soon after the publication of the first award, the appellant notified that there would be no further increase in dearness allowance on the basis of the "chamber scale " in view of the fact that the dearness allowance actually paid to the workmen was considerably in excess of what had been prescribed by the first award. That notice was given effect to and dearness allowance was paid to the workmen accordingly, which they received without any protest. When there was a second reference to the Engineering tribunal, resulting in the second award as aforesaid, no such controversy was raised by the workmen who must have known all the time that the "chamber scale" of dearness allowance was not being enjoyed by them. Thus, the workmen themselves under- stood the first award in the same sense in which the appellant understood it and gave effect to it. It is not correct to interpret the reservation in the last paragraph as having any reference to dearness allowance. The alternative argument, urged by the learned counsel for the respondents before us, was that Cl. (1) of the reservations as quoted above, itself protected the respondents right to have dearness allowance linked up with the " chamber " index of the cost of living. But this argument, In our opinion, is not well-founded on a reasonable 539 construction of the first paragraph aforesaid. It cannot be said that it has any reference to the "chamber scale " of dearness allowance. Clearly, this reservation has been made with a view to ensuring that the total remuneration payable to a workman after giving effect to the dearness allowance fixed by the first award, should not be less than the total emoluments already being paid to him. In other words, the first paragraph is meant so to adjust the proportion between the minimum basic pay and the enhanced dearness allowance fixed by the award as not to prejudicially affect the total emoluments already being enjoyed by the workmen of a particular concern. This reservation had to be made in view of the fact that a large number of firms were concerned with the first award and the tribunal was anxious to ensure that every workman enjoyed the benefit of the enhanced clearness allowance ; and that those workmen who enjoyed the benefit of higher emoluments, were not adversely affected by the new scale of dearness allowance. The adjustment contemplated by the first clause of the reservations, was also necessary as is clearly mentioned therein, for the purpose of calculating contributions to provident fund and gratuity. This reservation does not make even an indirect reference to the " chamber scale " of dearness allowance. The alternative argument, thus, has no force. It must, therefore be held that the tribunals below were in error in basing their award on the question of dearness allowance and directing the appellant to pay it on tile "chamber scale " either from the date of the first award or from the date of the third reference. | 1[ds]But this argument, In our opinion, is not well-founded on a reasonable 539 construction of the first paragraph aforesaid. It cannot be said that it has any reference to the "chamber scale " of dearness allowance. Clearly, this reservation has been made with a view to ensuring that the total remuneration payable to a workman after giving effect to the dearness allowance fixed by the first award, should not be less than the total emoluments already being paid to him. In other words, the first paragraph is meant so to adjust the proportion between the minimum basic pay and the enhanced dearness allowance fixed by the award as not to prejudicially affect the total emoluments already being enjoyed by the workmen of a particular concern. This reservation had to be made in view of the fact that a large number of firms were concerned with the first award and the tribunal was anxious to ensure that every workman enjoyed the benefit of the enhanced clearness allowance ; and that those workmen who enjoyed the benefit of higher emoluments, were not adversely affected by the new scale of dearness allowance. The adjustment contemplated by the first clause of the reservations, was also necessary as is clearly mentioned therein, for the purpose of calculating contributions to provident fund and gratuity. This reservation does not make even an indirect reference to the " chamber scale " of dearness allowance. The alternative argument, thus, has nohas to be recalled that the first award, in terms, did not make the "chamber scale" applicable to the workmen as had been claimed by them. The award prescribed a much lower scale of dearness allowance, but, at the same time, it did not intend to deprive the workmen of the benefit of a more generous treatment which was being accorded by some of the engineering firms including the appellant. After having prescribed a graduated scale of dearness allowance with reference to the pay range, as set out above, and after having definitely negatived the claim of the work- men to dearness allowance on the " chamber scale," the award proceeded to make certain reservations. The first reservation, as rightly pointed out by the Appellate Tribunal, was concerned with conserving the total emoluments actually enjoyed by the employees. In the last paragraph, the reservation to the effect that " this award will not affect adversely any other kind of existing advantage which the employees of a firm may be enjoying "must, on a proper reading of the entire award, have reference to " existing advantage " of a kind other than those dealt with in the preceding paragraphs. One of the preceding paragraphs had specifically dealt with the question of dearness allowance. Hence, dearness allowance could not come within the purview of the reservation in respect of " other kind of existing advantage." This expression may have reference to emoluments other than basic salary and dearness allowance. Perhaps, it may have reference to other advantages like housing allowance, supply of free electricity, medical relief, etc. The whole history of the Industrial dispute relating to dearness allowance, as set out above and covered by the first two awards, is against the interpretation given to the reservation aforesaid by the tribunals below. Besides, if Cl. (3) refers to dearness allowance as suggested by the respondents, Cl. (1) would really be redundant since its provisions would, by necessary implication, be covered by Cl. (3) itself. As already stated, soon after the publication of the first award, the appellant notified that there would be no further increase in dearness allowance on the basis of the "chamber scale " in view of the fact that the dearness allowance actually paid to the workmen was considerably in excess of what had been prescribed by the first award. That notice was given effect to and dearness allowance was paid to the workmen accordingly, which they received without any protest. When there was a second reference to the Engineering tribunal, resulting in the second award as aforesaid, no such controversy was raised by the workmen who must have known all the time that the "chamber scale" of dearness allowance was not being enjoyed by them. Thus, the workmen themselves under- stood the first award in the same sense in which the appellant understood it and gave effect to it. It is not correct to interpret the reservation in the last paragraph as having any reference to dearness | 1 | 4,417 | 825 | ### Instruction:
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of the second reservation." According to the Appellate tribunal, the claim to dearness allowance on the "chamber scale" was an " existing advantage " which was being enjoyed by the employees and which was not to be adversely affected by the first award. The reason for this conclusion of the Appellate Tribunal may best be stated in its own words as follows: "The claim for dearness allowance, however, stands on a different footing. Dearness allowance, according to the scales of the Bengal Chamber of Commerce, was at that time an existing advantage. The fact that many engineering firms which were parties to the reference were paying at these scales was noticed by the tribunal and the tribunal did not expressly make any other provision in its award respecting that advantage. We. therefore, hold that this claim comes within the saving."( 13 ) The question is whether this interpretation by the Appellate tribunal, of what it calls the second reservation, is correct. It has to be recalled that the first award, in terms, did not make the "chamber scale" applicable to the workmen as had been claimed by them. The award prescribed a much lower scale of dearness allowance, but, at the same time, it did not intend to deprive the workmen of the benefit of a more generous treatment which was being accorded by some of the engineering firms including the appellant. After having prescribed a graduated scale of dearness allowance with reference to the pay range, as set out above, and after having definitely negatived the claim of the work- men to dearness allowance on the " chamber scale," the award proceeded to make certain reservations. The first reservation, as rightly pointed out by the Appellate Tribunal, was concerned with conserving the total emoluments actually enjoyed by the employees. In the last paragraph, the reservation to the effect that " this award will not affect adversely any other kind of existing advantage which the employees of a firm may be enjoying "must, on a proper reading of the entire award, have reference to " existing advantage " of a kind other than those dealt with in the preceding paragraphs. One of the preceding paragraphs had specifically dealt with the question of dearness allowance. Hence, dearness allowance could not come within the purview of the reservation in respect of " other kind of existing advantage." This expression may have reference to emoluments other than basic salary and dearness allowance. Perhaps, it may have reference to other advantages like housing allowance, supply of free electricity, medical relief, etc. The whole history of the Industrial dispute relating to dearness allowance, as set out above and covered by the first two awards, is against the interpretation given to the reservation aforesaid by the tribunals below. Besides, if Cl. (3) refers to dearness allowance as suggested by the respondents, Cl. (1) would really be redundant since its provisions would, by necessary implication, be covered by Cl. (3) itself. As already stated, soon after the publication of the first award, the appellant notified that there would be no further increase in dearness allowance on the basis of the "chamber scale " in view of the fact that the dearness allowance actually paid to the workmen was considerably in excess of what had been prescribed by the first award. That notice was given effect to and dearness allowance was paid to the workmen accordingly, which they received without any protest. When there was a second reference to the Engineering tribunal, resulting in the second award as aforesaid, no such controversy was raised by the workmen who must have known all the time that the "chamber scale" of dearness allowance was not being enjoyed by them. Thus, the workmen themselves under- stood the first award in the same sense in which the appellant understood it and gave effect to it. It is not correct to interpret the reservation in the last paragraph as having any reference to dearness allowance. The alternative argument, urged by the learned counsel for the respondents before us, was that Cl. (1) of the reservations as quoted above, itself protected the respondents right to have dearness allowance linked up with the " chamber " index of the cost of living. But this argument, In our opinion, is not well-founded on a reasonable 539 construction of the first paragraph aforesaid. It cannot be said that it has any reference to the "chamber scale " of dearness allowance. Clearly, this reservation has been made with a view to ensuring that the total remuneration payable to a workman after giving effect to the dearness allowance fixed by the first award, should not be less than the total emoluments already being paid to him. In other words, the first paragraph is meant so to adjust the proportion between the minimum basic pay and the enhanced dearness allowance fixed by the award as not to prejudicially affect the total emoluments already being enjoyed by the workmen of a particular concern. This reservation had to be made in view of the fact that a large number of firms were concerned with the first award and the tribunal was anxious to ensure that every workman enjoyed the benefit of the enhanced clearness allowance ; and that those workmen who enjoyed the benefit of higher emoluments, were not adversely affected by the new scale of dearness allowance. The adjustment contemplated by the first clause of the reservations, was also necessary as is clearly mentioned therein, for the purpose of calculating contributions to provident fund and gratuity. This reservation does not make even an indirect reference to the " chamber scale " of dearness allowance. The alternative argument, thus, has no force. It must, therefore be held that the tribunals below were in error in basing their award on the question of dearness allowance and directing the appellant to pay it on tile "chamber scale " either from the date of the first award or from the date of the third reference.
### Response:
1
### Explanation:
But this argument, In our opinion, is not well-founded on a reasonable 539 construction of the first paragraph aforesaid. It cannot be said that it has any reference to the "chamber scale " of dearness allowance. Clearly, this reservation has been made with a view to ensuring that the total remuneration payable to a workman after giving effect to the dearness allowance fixed by the first award, should not be less than the total emoluments already being paid to him. In other words, the first paragraph is meant so to adjust the proportion between the minimum basic pay and the enhanced dearness allowance fixed by the award as not to prejudicially affect the total emoluments already being enjoyed by the workmen of a particular concern. This reservation had to be made in view of the fact that a large number of firms were concerned with the first award and the tribunal was anxious to ensure that every workman enjoyed the benefit of the enhanced clearness allowance ; and that those workmen who enjoyed the benefit of higher emoluments, were not adversely affected by the new scale of dearness allowance. The adjustment contemplated by the first clause of the reservations, was also necessary as is clearly mentioned therein, for the purpose of calculating contributions to provident fund and gratuity. This reservation does not make even an indirect reference to the " chamber scale " of dearness allowance. The alternative argument, thus, has nohas to be recalled that the first award, in terms, did not make the "chamber scale" applicable to the workmen as had been claimed by them. The award prescribed a much lower scale of dearness allowance, but, at the same time, it did not intend to deprive the workmen of the benefit of a more generous treatment which was being accorded by some of the engineering firms including the appellant. After having prescribed a graduated scale of dearness allowance with reference to the pay range, as set out above, and after having definitely negatived the claim of the work- men to dearness allowance on the " chamber scale," the award proceeded to make certain reservations. The first reservation, as rightly pointed out by the Appellate Tribunal, was concerned with conserving the total emoluments actually enjoyed by the employees. In the last paragraph, the reservation to the effect that " this award will not affect adversely any other kind of existing advantage which the employees of a firm may be enjoying "must, on a proper reading of the entire award, have reference to " existing advantage " of a kind other than those dealt with in the preceding paragraphs. One of the preceding paragraphs had specifically dealt with the question of dearness allowance. Hence, dearness allowance could not come within the purview of the reservation in respect of " other kind of existing advantage." This expression may have reference to emoluments other than basic salary and dearness allowance. Perhaps, it may have reference to other advantages like housing allowance, supply of free electricity, medical relief, etc. The whole history of the Industrial dispute relating to dearness allowance, as set out above and covered by the first two awards, is against the interpretation given to the reservation aforesaid by the tribunals below. Besides, if Cl. (3) refers to dearness allowance as suggested by the respondents, Cl. (1) would really be redundant since its provisions would, by necessary implication, be covered by Cl. (3) itself. As already stated, soon after the publication of the first award, the appellant notified that there would be no further increase in dearness allowance on the basis of the "chamber scale " in view of the fact that the dearness allowance actually paid to the workmen was considerably in excess of what had been prescribed by the first award. That notice was given effect to and dearness allowance was paid to the workmen accordingly, which they received without any protest. When there was a second reference to the Engineering tribunal, resulting in the second award as aforesaid, no such controversy was raised by the workmen who must have known all the time that the "chamber scale" of dearness allowance was not being enjoyed by them. Thus, the workmen themselves under- stood the first award in the same sense in which the appellant understood it and gave effect to it. It is not correct to interpret the reservation in the last paragraph as having any reference to dearness
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Rajasthan State Road Development and Construction Corporation Ltd Vs. Piyush Kant Sharma & Ors | M.R. Shah, J. 1. Leave granted. 2. Feeling aggrieved and dissatisfied with the impugned interim Order dated 23.09.2019 passed by the High Court of Judicature for Rajasthan at Jaipur in S.B. Civil Writ Petition No. 1924 of 2019, the original respondent - Rajasthan State Road Development and Construction Corporation Ltd. has preferred the present appeal. 3. That the respondent No. 1 herein was appointed as Computer Operator on contractual basis. Respondent No. 1 - original petitioner filed the writ petition before the High Court for grant of regular pay-scale and to regularize his services on the ground that he is serving the appellant Corporation for the last three years. It was the specific case on behalf of the appellant Corporation that respondent No. 1 was never appointed by the appellant Corporation and there was no employer-employee relationship between respondent No. 1 and the appellant Corporation. It was the specific case on behalf of the appellant Corporation that the original writ petitioner was hired through one M/s Sahara Supreme Security Service, Jaipur. It was also the case on behalf of the appellant Corporation that even there was no regular sanctioned post of Computer Operator existed in the appellant Corporation. That, during the pendency of the aforesaid writ petition, another e-tender was issued by the appellant Corporation for hiring the Computer Operators etc. and the contract was awarded to one firm, namely, M/s Rakshak Security (P) Ltd. for providing Computer Operators and other posts for a period of 12 months. That, thereafter, by the impugned interim order dated 23.09.2019, the High Court has restrained the appellant Corporation from appointing new set of contractual employees in place of the original writ petitioner. 4. Feeling aggrieved and dissatisfied with the impugned interim order passed by the High Court, the original respondent No. 1 -Corporation has preferred the present appeal. 5. We have heard the learned counsel appearing on behalf of the respective parties at length. 5.1 Learned counsel appearing on behalf of the original writ petitioner has submitted that considering the fact that other similarly situated Computer Operators were continued and there was a requirement of Computer Operator and, therefore, the High Court is justified in passing the impugned interim order. 5.2 On the other hand, it is submitted by the learned counsel appearing on behalf of the appellant Corporation that, as such, no reasons have been assigned by the High Court while passing the impugned interim order. It is submitted that in fact the original writ petitioner was a contractors employee and there was no employer-employee relationship between the original writ petitioner and the appellant Corporation. It is submitted that even there is no regular sanctioned post of Computer Operator in the appellant Corporation and, therefore, the appellant Corporation gave the work order to the contractor for providing the services of the Computer Operator etc., the High Court ought not to have passed such an interim order. 6. Having heard the learned counsel appearing on behalf of the respective parties, we are of the opinion that the High Court has committed a grave error in passing such an interim order restraining the appellant Corporation from appointing new set of contractual employees in place of original writ petitioners. No reasons, whatsoever have been assigned by the High Court while passing the impugned interim order. The High Court has failed to appreciate and consider the fact that according to the appellant Corporation, there was no regular sanctioned post of Computer Operator in the appellant Corporation and that there was no employer-employee relationship between the original writ petitioner and the appellant Corporation and that the original writ petitioner was a employee appointed by the contractor on contractual basis and worked with the appellant Corporation on contractual basis. As the writ petition is pending before the High Court, we refrain ourselves from making any further observations on merits. However, we are of the opinion that in the facts and circumstances of the case narrated hereinabove, the High Court ought not to have passed such an interim order. Under the circumstances, the impugned interim order passed by the High Court requires to be quashed and set aside. | 1[ds]6. Having heard the learned counsel appearing on behalf of the respective parties, we are of the opinion that the High Court has committed a grave error in passing such an interim order restraining the appellant Corporation from appointing new set of contractual employees in place of original writ petitioners. No reasons, whatsoever have been assigned by the High Court while passing the impugned interim order. The High Court has failed to appreciate and consider the fact that according to the appellant Corporation, there was no regular sanctioned post of Computer Operator in the appellant Corporation and that there was no employer-employee relationship between the original writ petitioner and the appellant Corporation and that the original writ petitioner was a employee appointed by the contractor on contractual basis and worked with the appellant Corporation on contractual basis. As the writ petition is pending before the High Court, we refrain ourselves from making any further observations on merits. However, we are of the opinion that in the facts and circumstances of the case narrated hereinabove, the High Court ought not to have passed such an interim order. Under the circumstances, the impugned interim order passed by the High Court requires to be quashed and set aside. | 1 | 754 | 223 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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M.R. Shah, J. 1. Leave granted. 2. Feeling aggrieved and dissatisfied with the impugned interim Order dated 23.09.2019 passed by the High Court of Judicature for Rajasthan at Jaipur in S.B. Civil Writ Petition No. 1924 of 2019, the original respondent - Rajasthan State Road Development and Construction Corporation Ltd. has preferred the present appeal. 3. That the respondent No. 1 herein was appointed as Computer Operator on contractual basis. Respondent No. 1 - original petitioner filed the writ petition before the High Court for grant of regular pay-scale and to regularize his services on the ground that he is serving the appellant Corporation for the last three years. It was the specific case on behalf of the appellant Corporation that respondent No. 1 was never appointed by the appellant Corporation and there was no employer-employee relationship between respondent No. 1 and the appellant Corporation. It was the specific case on behalf of the appellant Corporation that the original writ petitioner was hired through one M/s Sahara Supreme Security Service, Jaipur. It was also the case on behalf of the appellant Corporation that even there was no regular sanctioned post of Computer Operator existed in the appellant Corporation. That, during the pendency of the aforesaid writ petition, another e-tender was issued by the appellant Corporation for hiring the Computer Operators etc. and the contract was awarded to one firm, namely, M/s Rakshak Security (P) Ltd. for providing Computer Operators and other posts for a period of 12 months. That, thereafter, by the impugned interim order dated 23.09.2019, the High Court has restrained the appellant Corporation from appointing new set of contractual employees in place of the original writ petitioner. 4. Feeling aggrieved and dissatisfied with the impugned interim order passed by the High Court, the original respondent No. 1 -Corporation has preferred the present appeal. 5. We have heard the learned counsel appearing on behalf of the respective parties at length. 5.1 Learned counsel appearing on behalf of the original writ petitioner has submitted that considering the fact that other similarly situated Computer Operators were continued and there was a requirement of Computer Operator and, therefore, the High Court is justified in passing the impugned interim order. 5.2 On the other hand, it is submitted by the learned counsel appearing on behalf of the appellant Corporation that, as such, no reasons have been assigned by the High Court while passing the impugned interim order. It is submitted that in fact the original writ petitioner was a contractors employee and there was no employer-employee relationship between the original writ petitioner and the appellant Corporation. It is submitted that even there is no regular sanctioned post of Computer Operator in the appellant Corporation and, therefore, the appellant Corporation gave the work order to the contractor for providing the services of the Computer Operator etc., the High Court ought not to have passed such an interim order. 6. Having heard the learned counsel appearing on behalf of the respective parties, we are of the opinion that the High Court has committed a grave error in passing such an interim order restraining the appellant Corporation from appointing new set of contractual employees in place of original writ petitioners. No reasons, whatsoever have been assigned by the High Court while passing the impugned interim order. The High Court has failed to appreciate and consider the fact that according to the appellant Corporation, there was no regular sanctioned post of Computer Operator in the appellant Corporation and that there was no employer-employee relationship between the original writ petitioner and the appellant Corporation and that the original writ petitioner was a employee appointed by the contractor on contractual basis and worked with the appellant Corporation on contractual basis. As the writ petition is pending before the High Court, we refrain ourselves from making any further observations on merits. However, we are of the opinion that in the facts and circumstances of the case narrated hereinabove, the High Court ought not to have passed such an interim order. Under the circumstances, the impugned interim order passed by the High Court requires to be quashed and set aside.
### Response:
1
### Explanation:
6. Having heard the learned counsel appearing on behalf of the respective parties, we are of the opinion that the High Court has committed a grave error in passing such an interim order restraining the appellant Corporation from appointing new set of contractual employees in place of original writ petitioners. No reasons, whatsoever have been assigned by the High Court while passing the impugned interim order. The High Court has failed to appreciate and consider the fact that according to the appellant Corporation, there was no regular sanctioned post of Computer Operator in the appellant Corporation and that there was no employer-employee relationship between the original writ petitioner and the appellant Corporation and that the original writ petitioner was a employee appointed by the contractor on contractual basis and worked with the appellant Corporation on contractual basis. As the writ petition is pending before the High Court, we refrain ourselves from making any further observations on merits. However, we are of the opinion that in the facts and circumstances of the case narrated hereinabove, the High Court ought not to have passed such an interim order. Under the circumstances, the impugned interim order passed by the High Court requires to be quashed and set aside.
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Public Trust Shri Geeta Satsang Bhawan Vs. Nand Lal | Trial Court in Civil Suit Nos. 4/2004 and 5/2004. It was held that since the plaintiff-Trust was not registered under the Rajasthan Public Trust Act, 1959(hereinafter referred to as "the Act"), the suit itself was not competent for want of registration in the light of bar contained in Section 29 of the Act. The Appellate Court, therefore, did not go into the merits of the case and dismissed the suit.13. Aggrieved by the said judgments, the appellant preferred S.B.Civil Second Appeal Nos.295/2006 and 296/2006 before the High Court.14. The High Court, by the impugned judgments, dismissed the appeals in limine.15. Against both the judgments, this appeal by special leave is filed by the plaintiff-Trust before this Court.16. Heard Mr. M.R. Calla, learned senior counsel for the appellant-Trust and Mr. Puneet Jain, learned counsel for the respondents.17. During the pendency of this appeal, the appellant (plaintiff) filed I.A. No 5 of 2013 and sought permission to file additional documents in support of their case. The appellant along with IA filed one Registration Certificate issued on 07.02.2013 by the office of the Assistant Commissioner, Department of Endowments, Jodhpur, Government of Rajasthan(Annexure A-3) certifying therein that the appellant(plaintiff)-Trust is registered under the Act w.e.f. 07.02.2013. A prayer was, therefore, made to take this document on record being relevant one for deciding the appeal. This I.A. was allowed by this Courts order dated 20.01.2014.18. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while setting aside the impugned order and also of the first Appellate Court and the Trial Court restore the civil suit to its file for deciding the civil suit afresh on merits in accordance with law.19. It is an admitted fact that the appellant/plaintiff - Trust was not a registered public Trust under the Act on the date of filing the civil suit. It is also an admitted fact that the appellant-plaintiff, therefore, got the Trust registered as required under the Act only on 07.02.2013 during the pendency of this appeal.20. Section 29 of the Act, which applies to this case, reads as under:"Section 29. Bar against suits by un-registered trust-(1) No suit to enforce a right on behalf of a public trust which is required to be registered under this Act but has not been so registered shall be heard or decided in any Court.(2) The provisions of Sub-section(1) shall apply to claim of set off or other proceeding to enforce a right on behalf of such public trust."21. Section 29 creates a bar "for hearing and deciding a suit" filed by the public Trust for enforcement of any of their rights, if the said Trust is not registered under the Act. The bar, therefore, applies for "hearing and deciding" a suit and not in filing the suit. In other words, suit can be filed by the unregistered Trust but such suit will neither be heard nor decided by the Court unless and until the Trust is registered under the Act. Section 29 is, therefore, operates as stay of proceedings in the suit so long as the Trust does not get itself registered under the Act.22. A fortorari, the moment the Trust is registered under the Act, the Trial Court would assume the jurisdiction to hear and decide the suit on merits. The bar created under Section 29 of the Act for "hearing and deciding" the suit is then lifted and ceases to apply to the proceedings in the suit.23. As mentioned supra, since the appellant (plaintiff) - Trust was registered under the Act on 07.02.2013, they acquired a right to prosecute the suit on merits against the respondents. The bar created under Section 29 then would no longer operate to the proceedings in the suit.24. In our opinion, the Trial Court was, therefore, wholly unjustified in proceeding to hear and decide the suit on merits by passing a judgment/decree. It failed to see the rigor of Section 29 which had taken away the jurisdiction of the Trial Court in hearing and deciding the suit.25. Similarly, the first Appellate Court and the High Court also erred in straightaway dismissing the appellants suit. Having held and indeed rightly that the Trust was unregistered, instead of deciding the appeal and dismissing the suit should have stayed the proceedings by granting some reasonable time to the appellant/plaintiff-Trust to get their Trust registered under the Act. If despite granting time, the Trust had failed to obtain the Registration Certificate then in such eventuality, the first Appellate Court could have dismissed the suit.26. Be that as it may, now that the appellant/plaintiff has obtained the necessary registration certificate in relation to their Trust under the Act, which is also taken on record, their suit can now be heard and decided on merits by the Trial Court. The bar operating under Section 29 of the Act for hearing and deciding the suit would no longer apply to the suit and the Civil Court would now assume jurisdiction to try the suit on merits.27. Learned counsel for the appellant (plaintiff), however, submitted that the matter be remanded to the first Appellate Court to decide the appeal filed by the respondent on merits because the Trial Court has already decided the suit on merits in their favour. The submission is devoid of any merit for more than one reason.28. First, the decree passed by the Trial Court was on the face of it without jurisdiction having been passed in contravention of Section 29 of the Act; second, the Civil Court had no power to hear and decide the suit by virtue of the bar created under section 29 of the Act; and third, admittedly the Trust was not registered on the date of filing of the suit and remained un-registered till the judgment was delivered by the Trial Court. It is for these reasons, the decree passed by the Trial Court is without jurisdiction and has to be set aside. | 1[ds]18. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while setting aside the impugned order and also of the first Appellate Court and the Trial Court restore the civil suit to its file for deciding the civil suit afresh on merits in accordance with law.19. It is an admitted fact that the appellant/plaintiffTrust was not a registered public Trust under the Act on the date of filing the civil suit. It is also an admitted fact that thetherefore, got the Trust registered as required under the Act only on 07.02.2013 during the pendency of this29 is, therefore, operates as stay of proceedings in the suit so long as the Trust does not get itself registered under the Act.As mentioned supra, since the appellant (plaintiff)Trust was registered under the Act on 07.02.2013, they acquired a right to prosecute the suit on merits against the respondents. The bar created under Section 29 then would no longer operate to the proceedings in the suit.24. In our opinion, the Trial Court was, therefore, wholly unjustified in proceeding to hear and decide the suit on merits by passing a judgment/decree. It failed to see the rigor of Section 29 which had taken away the jurisdiction of the Trial Court in hearing and deciding the suit.25. Similarly, the first Appellate Court and the High Court also erred in straightaway dismissing the appellants suit. Having held and indeed rightly that the Trust was unregistered, instead of deciding the appeal and dismissing the suit should have stayed the proceedings by granting some reasonable time to theto get their Trust registered under the Act. If despite granting time, the Trust had failed to obtain the Registration Certificate then in such eventuality, the first Appellate Court could have dismissed the suit.26. Be that as it may, now that the appellant/plaintiff has obtained the necessary registration certificate in relation to their Trust under the Act, which is also taken on record, their suit can now be heard and decided on merits by the Trial Court. The bar operating under Section 29 of the Act for hearing and deciding the suit would no longer apply to the suit and the Civil Court would now assume jurisdiction to try the suit onsubmission is devoid of any merit for more than one reason.28. First, the decree passed by the Trial Court was on the face of it without jurisdiction having been passed in contravention of Section 29 of the Act; second, the Civil Court had no power to hear and decide the suit by virtue of the bar created under section 29 of the Act; and third, admittedly the Trust was not registered on the date of filing of the suit and remainedtill the judgment was delivered by the Trial Court. It is for these reasons, the decree passed by the Trial Court is without jurisdiction and has to be set aside. | 1 | 2,106 | 540 | ### Instruction:
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Trial Court in Civil Suit Nos. 4/2004 and 5/2004. It was held that since the plaintiff-Trust was not registered under the Rajasthan Public Trust Act, 1959(hereinafter referred to as "the Act"), the suit itself was not competent for want of registration in the light of bar contained in Section 29 of the Act. The Appellate Court, therefore, did not go into the merits of the case and dismissed the suit.13. Aggrieved by the said judgments, the appellant preferred S.B.Civil Second Appeal Nos.295/2006 and 296/2006 before the High Court.14. The High Court, by the impugned judgments, dismissed the appeals in limine.15. Against both the judgments, this appeal by special leave is filed by the plaintiff-Trust before this Court.16. Heard Mr. M.R. Calla, learned senior counsel for the appellant-Trust and Mr. Puneet Jain, learned counsel for the respondents.17. During the pendency of this appeal, the appellant (plaintiff) filed I.A. No 5 of 2013 and sought permission to file additional documents in support of their case. The appellant along with IA filed one Registration Certificate issued on 07.02.2013 by the office of the Assistant Commissioner, Department of Endowments, Jodhpur, Government of Rajasthan(Annexure A-3) certifying therein that the appellant(plaintiff)-Trust is registered under the Act w.e.f. 07.02.2013. A prayer was, therefore, made to take this document on record being relevant one for deciding the appeal. This I.A. was allowed by this Courts order dated 20.01.2014.18. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while setting aside the impugned order and also of the first Appellate Court and the Trial Court restore the civil suit to its file for deciding the civil suit afresh on merits in accordance with law.19. It is an admitted fact that the appellant/plaintiff - Trust was not a registered public Trust under the Act on the date of filing the civil suit. It is also an admitted fact that the appellant-plaintiff, therefore, got the Trust registered as required under the Act only on 07.02.2013 during the pendency of this appeal.20. Section 29 of the Act, which applies to this case, reads as under:"Section 29. Bar against suits by un-registered trust-(1) No suit to enforce a right on behalf of a public trust which is required to be registered under this Act but has not been so registered shall be heard or decided in any Court.(2) The provisions of Sub-section(1) shall apply to claim of set off or other proceeding to enforce a right on behalf of such public trust."21. Section 29 creates a bar "for hearing and deciding a suit" filed by the public Trust for enforcement of any of their rights, if the said Trust is not registered under the Act. The bar, therefore, applies for "hearing and deciding" a suit and not in filing the suit. In other words, suit can be filed by the unregistered Trust but such suit will neither be heard nor decided by the Court unless and until the Trust is registered under the Act. Section 29 is, therefore, operates as stay of proceedings in the suit so long as the Trust does not get itself registered under the Act.22. A fortorari, the moment the Trust is registered under the Act, the Trial Court would assume the jurisdiction to hear and decide the suit on merits. The bar created under Section 29 of the Act for "hearing and deciding" the suit is then lifted and ceases to apply to the proceedings in the suit.23. As mentioned supra, since the appellant (plaintiff) - Trust was registered under the Act on 07.02.2013, they acquired a right to prosecute the suit on merits against the respondents. The bar created under Section 29 then would no longer operate to the proceedings in the suit.24. In our opinion, the Trial Court was, therefore, wholly unjustified in proceeding to hear and decide the suit on merits by passing a judgment/decree. It failed to see the rigor of Section 29 which had taken away the jurisdiction of the Trial Court in hearing and deciding the suit.25. Similarly, the first Appellate Court and the High Court also erred in straightaway dismissing the appellants suit. Having held and indeed rightly that the Trust was unregistered, instead of deciding the appeal and dismissing the suit should have stayed the proceedings by granting some reasonable time to the appellant/plaintiff-Trust to get their Trust registered under the Act. If despite granting time, the Trust had failed to obtain the Registration Certificate then in such eventuality, the first Appellate Court could have dismissed the suit.26. Be that as it may, now that the appellant/plaintiff has obtained the necessary registration certificate in relation to their Trust under the Act, which is also taken on record, their suit can now be heard and decided on merits by the Trial Court. The bar operating under Section 29 of the Act for hearing and deciding the suit would no longer apply to the suit and the Civil Court would now assume jurisdiction to try the suit on merits.27. Learned counsel for the appellant (plaintiff), however, submitted that the matter be remanded to the first Appellate Court to decide the appeal filed by the respondent on merits because the Trial Court has already decided the suit on merits in their favour. The submission is devoid of any merit for more than one reason.28. First, the decree passed by the Trial Court was on the face of it without jurisdiction having been passed in contravention of Section 29 of the Act; second, the Civil Court had no power to hear and decide the suit by virtue of the bar created under section 29 of the Act; and third, admittedly the Trust was not registered on the date of filing of the suit and remained un-registered till the judgment was delivered by the Trial Court. It is for these reasons, the decree passed by the Trial Court is without jurisdiction and has to be set aside.
### Response:
1
### Explanation:
18. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while setting aside the impugned order and also of the first Appellate Court and the Trial Court restore the civil suit to its file for deciding the civil suit afresh on merits in accordance with law.19. It is an admitted fact that the appellant/plaintiffTrust was not a registered public Trust under the Act on the date of filing the civil suit. It is also an admitted fact that thetherefore, got the Trust registered as required under the Act only on 07.02.2013 during the pendency of this29 is, therefore, operates as stay of proceedings in the suit so long as the Trust does not get itself registered under the Act.As mentioned supra, since the appellant (plaintiff)Trust was registered under the Act on 07.02.2013, they acquired a right to prosecute the suit on merits against the respondents. The bar created under Section 29 then would no longer operate to the proceedings in the suit.24. In our opinion, the Trial Court was, therefore, wholly unjustified in proceeding to hear and decide the suit on merits by passing a judgment/decree. It failed to see the rigor of Section 29 which had taken away the jurisdiction of the Trial Court in hearing and deciding the suit.25. Similarly, the first Appellate Court and the High Court also erred in straightaway dismissing the appellants suit. Having held and indeed rightly that the Trust was unregistered, instead of deciding the appeal and dismissing the suit should have stayed the proceedings by granting some reasonable time to theto get their Trust registered under the Act. If despite granting time, the Trust had failed to obtain the Registration Certificate then in such eventuality, the first Appellate Court could have dismissed the suit.26. Be that as it may, now that the appellant/plaintiff has obtained the necessary registration certificate in relation to their Trust under the Act, which is also taken on record, their suit can now be heard and decided on merits by the Trial Court. The bar operating under Section 29 of the Act for hearing and deciding the suit would no longer apply to the suit and the Civil Court would now assume jurisdiction to try the suit onsubmission is devoid of any merit for more than one reason.28. First, the decree passed by the Trial Court was on the face of it without jurisdiction having been passed in contravention of Section 29 of the Act; second, the Civil Court had no power to hear and decide the suit by virtue of the bar created under section 29 of the Act; and third, admittedly the Trust was not registered on the date of filing of the suit and remainedtill the judgment was delivered by the Trial Court. It is for these reasons, the decree passed by the Trial Court is without jurisdiction and has to be set aside.
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Administrator-General of West Bengal Vs. Commissioner of Income Tax, Calcutta | ? 332 Os. 7d., as being Income-tax on income payable to the Association and applicable, and in fact applied, by it solely for charitable purposes. The application being unsuccessful, the Secretary of the Association applied for and obtained a rule nisi calling upon the Special Commissioners of Income-tax to show cause why a writ of mandamus should not issue to them commanding them to allow exemption from income-tax on the income in question and to repay the sum of ? 332 Os. 7d."14. The House of Lords held, inter alia, following the decision in Lord Sudeley v. Attorney-General, 1897 AC 11, that"prior to the ascertainment of the residue, the Association as residuary legatee had no interest in the Testators property, that the taxed income of the estate prior to such ascertainment was income of the Executors, and that it was not received by them as trustees on behalf of the Association."15. In the Court of Appeal the Master of Rolls observed that"the income that they were receiving in the meantime was income which they were receiving not on behalf of themselves as executors for application in the due administration of the estate. "16. Viscount Finlay observed as follows :"It appears to me that the present case is really decided by the decision of this House in Lord Sudeleys case [(1897) A.C. 11]. It was pointed out in that case that the legatee of a share in a residue has no interest in any of the property of the testator until the residue has been ascertained. His right is to have the estate property administered and applied for his benefit when the administration is complete. The income from which this Income-tax was deducted was not the income of the charity. It was the income of the executors. They were, of course, bound to apply it in due course of administration, but they were not trustees of any part of it for the charity. There had been no creation of a trust in favour of the charity in respect of this income, it was never paid over to the charity as income. What was ultimately paid over on the close of the administration was the share of the whole estate, consisting of capital and accumulated income, which fell to the charity. The executors, not the charity, were the recipients of this income, and there is no relation back in the case of the bequest of a residue. If no right of deduction at the source had existed it is the executors and the executors only who could have been made liable for the tax."17. Viscount Cave put the point thus :"When the personal estate of a testator has been fully administered by his executors and the net residue ascertained, the residuary legatee is entitled to have the residue as so ascertained, with any accrued income, transferred and paid to him; but until that time he has no property in any specific investment forming part of the estate or in the income from any such investment, and both corpus and income are the property of the executors, and are applicable by them as a mixed fund for the purposes of administration. This was fully explained in (1897) A.C. JJ."18. Subsequent cases such as the Maria Celeste Samaritan Society of the London Hospital v. Commissioner of Inland Reveune, (1927) 11 Tax Cas 226 and Corbett v. Commissioners of Inland Revenue, (1937) 21 Tax Cas 449, have taken the same view. In the latter case, the decision in Dr. Barnardos case was hold to have laid down "a general proposition applicable to all cases of residue which is being ascertained and which cannot be ascertained until the administration is complete."19. Mr. Sastri relied on IN re CunliffeOwen Moutain v. Inland Revenue Commissioner, 1953-1 Ch 546, but, in our opinion, the Court of Appeal has not taken any different view. The Court of Appeal was concerned with the interpretation of S. 27(1) of the Finance Act, 1949, whereby legacy duty was not payable in certain events. It examined the nature of the title of a residuary legatee, and held that"the title of a residuary legatee to a residuary estate remains the same both before and after the completion of the administration, notwithstanding that it is not until it is complete that he can say that any particular asset or any particular income is his, and not merely part of the general estate of the testator."It repelled the argument that pending final administration a residuary legatee has only an expectancy, in the eye of law. But this conclusion does not lead to the next step that an executor or administration receives the income on behalf of the residuary legatee.20. In 1950-18 ITR 787 : (AIR 1950 Mad 790 ), the Madras High Court held that S. 41 of the Act had no application where the administration of the estate had not been completed by the executors.21. The High Court in this case had repelled the argument on behalf of the Revenue that the Administrator-General did not come within the purview of S. 41 of the Act on the ground that "the Administration-General when appointed by the Court is expressly covered by the section and it cannot be said that because he has the powers of an executor, he must be treated differently." In our opinion, the fact that the Administrator-general is expressly mentioned in S. 41 does not conclude the matter. The section prescribes another condition and that is that the income must be received by him up behalf of a person or persons. This condition must be fulfilled before S.41 becomes applicable. The position of an Administrator-General appointed de bonis non is in no way different from that of an executor vis-a-vis the income he receives from the estate.22. Accordingly, we hold that S. 41 of the Act is not applicable in the present case as the appellant received the income on his behalf and not on behalf of the five sons of the deceased Raja. | 0[ds]11. It seems to us that during the administration of the estate, the appellant did not receive the income on behalf of the five sons. When he received the income, he had a discretion to use it either for paying legacy A or legacy B or for meeting other expenses. If there was a saving in one year, next year he could appropriate it for paying legacy C or D or for meeting other expenses. What the five sons were entitled to was the residue of the estate and any savings that might be out of the income of the estate would be received by them finally, not as their income but as part of the residue.In 1950-18 ITR 787 : (AIR 1950 Mad 790 ), the Madras High Court held that S. 41 of the Act had no application where the administration of the estate had not been completed by the executors.21. The High Court in this case had repelled the argument on behalf of the Revenue that the Administrator-General did not come within the purview of S. 41 of the Act on the ground that "the Administration-General when appointed by the Court is expressly covered by the section and it cannot be said that because he has the powers of an executor, he must be treated differently." In our opinion, the fact that the Administrator-general is expressly mentioned in S. 41 does not conclude the matter. The section prescribes another condition and that is that the income must be received by him up behalf of a person or persons. This condition must be fulfilled before S.41 becomes applicable. The position of an Administrator-General appointed de bonis non is in no way different from that of an executor vis-a-vis the income he receives from the estate.22. Accordingly, we hold that S. 41 of the Act is not applicable in the present case as the appellant received the income on his behalf and not on behalf of the five sons of the deceasedt repelled the argument that pending final administration a residuary legatee has only an expectancy, in the eye of law. But this conclusion does not lead to the next step that an executor or administration receives the income on behalf of the residuary legatee. | 0 | 3,520 | 405 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
? 332 Os. 7d., as being Income-tax on income payable to the Association and applicable, and in fact applied, by it solely for charitable purposes. The application being unsuccessful, the Secretary of the Association applied for and obtained a rule nisi calling upon the Special Commissioners of Income-tax to show cause why a writ of mandamus should not issue to them commanding them to allow exemption from income-tax on the income in question and to repay the sum of ? 332 Os. 7d."14. The House of Lords held, inter alia, following the decision in Lord Sudeley v. Attorney-General, 1897 AC 11, that"prior to the ascertainment of the residue, the Association as residuary legatee had no interest in the Testators property, that the taxed income of the estate prior to such ascertainment was income of the Executors, and that it was not received by them as trustees on behalf of the Association."15. In the Court of Appeal the Master of Rolls observed that"the income that they were receiving in the meantime was income which they were receiving not on behalf of themselves as executors for application in the due administration of the estate. "16. Viscount Finlay observed as follows :"It appears to me that the present case is really decided by the decision of this House in Lord Sudeleys case [(1897) A.C. 11]. It was pointed out in that case that the legatee of a share in a residue has no interest in any of the property of the testator until the residue has been ascertained. His right is to have the estate property administered and applied for his benefit when the administration is complete. The income from which this Income-tax was deducted was not the income of the charity. It was the income of the executors. They were, of course, bound to apply it in due course of administration, but they were not trustees of any part of it for the charity. There had been no creation of a trust in favour of the charity in respect of this income, it was never paid over to the charity as income. What was ultimately paid over on the close of the administration was the share of the whole estate, consisting of capital and accumulated income, which fell to the charity. The executors, not the charity, were the recipients of this income, and there is no relation back in the case of the bequest of a residue. If no right of deduction at the source had existed it is the executors and the executors only who could have been made liable for the tax."17. Viscount Cave put the point thus :"When the personal estate of a testator has been fully administered by his executors and the net residue ascertained, the residuary legatee is entitled to have the residue as so ascertained, with any accrued income, transferred and paid to him; but until that time he has no property in any specific investment forming part of the estate or in the income from any such investment, and both corpus and income are the property of the executors, and are applicable by them as a mixed fund for the purposes of administration. This was fully explained in (1897) A.C. JJ."18. Subsequent cases such as the Maria Celeste Samaritan Society of the London Hospital v. Commissioner of Inland Reveune, (1927) 11 Tax Cas 226 and Corbett v. Commissioners of Inland Revenue, (1937) 21 Tax Cas 449, have taken the same view. In the latter case, the decision in Dr. Barnardos case was hold to have laid down "a general proposition applicable to all cases of residue which is being ascertained and which cannot be ascertained until the administration is complete."19. Mr. Sastri relied on IN re CunliffeOwen Moutain v. Inland Revenue Commissioner, 1953-1 Ch 546, but, in our opinion, the Court of Appeal has not taken any different view. The Court of Appeal was concerned with the interpretation of S. 27(1) of the Finance Act, 1949, whereby legacy duty was not payable in certain events. It examined the nature of the title of a residuary legatee, and held that"the title of a residuary legatee to a residuary estate remains the same both before and after the completion of the administration, notwithstanding that it is not until it is complete that he can say that any particular asset or any particular income is his, and not merely part of the general estate of the testator."It repelled the argument that pending final administration a residuary legatee has only an expectancy, in the eye of law. But this conclusion does not lead to the next step that an executor or administration receives the income on behalf of the residuary legatee.20. In 1950-18 ITR 787 : (AIR 1950 Mad 790 ), the Madras High Court held that S. 41 of the Act had no application where the administration of the estate had not been completed by the executors.21. The High Court in this case had repelled the argument on behalf of the Revenue that the Administrator-General did not come within the purview of S. 41 of the Act on the ground that "the Administration-General when appointed by the Court is expressly covered by the section and it cannot be said that because he has the powers of an executor, he must be treated differently." In our opinion, the fact that the Administrator-general is expressly mentioned in S. 41 does not conclude the matter. The section prescribes another condition and that is that the income must be received by him up behalf of a person or persons. This condition must be fulfilled before S.41 becomes applicable. The position of an Administrator-General appointed de bonis non is in no way different from that of an executor vis-a-vis the income he receives from the estate.22. Accordingly, we hold that S. 41 of the Act is not applicable in the present case as the appellant received the income on his behalf and not on behalf of the five sons of the deceased Raja.
### Response:
0
### Explanation:
11. It seems to us that during the administration of the estate, the appellant did not receive the income on behalf of the five sons. When he received the income, he had a discretion to use it either for paying legacy A or legacy B or for meeting other expenses. If there was a saving in one year, next year he could appropriate it for paying legacy C or D or for meeting other expenses. What the five sons were entitled to was the residue of the estate and any savings that might be out of the income of the estate would be received by them finally, not as their income but as part of the residue.In 1950-18 ITR 787 : (AIR 1950 Mad 790 ), the Madras High Court held that S. 41 of the Act had no application where the administration of the estate had not been completed by the executors.21. The High Court in this case had repelled the argument on behalf of the Revenue that the Administrator-General did not come within the purview of S. 41 of the Act on the ground that "the Administration-General when appointed by the Court is expressly covered by the section and it cannot be said that because he has the powers of an executor, he must be treated differently." In our opinion, the fact that the Administrator-general is expressly mentioned in S. 41 does not conclude the matter. The section prescribes another condition and that is that the income must be received by him up behalf of a person or persons. This condition must be fulfilled before S.41 becomes applicable. The position of an Administrator-General appointed de bonis non is in no way different from that of an executor vis-a-vis the income he receives from the estate.22. Accordingly, we hold that S. 41 of the Act is not applicable in the present case as the appellant received the income on his behalf and not on behalf of the five sons of the deceasedt repelled the argument that pending final administration a residuary legatee has only an expectancy, in the eye of law. But this conclusion does not lead to the next step that an executor or administration receives the income on behalf of the residuary legatee.
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State Of Jharkhand Vs. Tata Cummins Ltd. | case of exemptions from tax liability under the taxing statute. 10. Applying the above tests to the facts of the present case, the object behind enactment of the Industrial Policy, 1995 was to confer incentives on industries set up in the State. As part of the incentives, the Industrial Policy envisaged allotment of land/building in growth centres to companies for setting up industrial units on lease for 99 years with an option for renewal. As a part of the incentives, it was also envisaged under clause 16 that sales tax benefit/exemption shall be granted to attract investments in order to sustain industrial development in the State. It is in this background, that we have to consider clause 16.1 and clause 16.2 of the Industrial Policy, 1995. The two notifications are merely instruments giving effect to the policy envisaged under the Industrial Policy, 1995. 11. Under clause 16.1 of the Policy, all new units were given the facility of set off or exemption on purchase of raw-material within the State. The period of exemption was 10 years for industries situated in category A districts and 8 years for industries situated in category B districts. Under clause 16.2, new units were given an option to choose deferment or exemption of sales tax on sale of finished goods for a period of 10 years for category A districts and 8 years for category B districts from the date of production of the unit with a ceiling of 100% of the fixed investment made by the unit. However, those industries which were considered as Thrust Industries located in A category backward districts, the ceiling of exemption or the deferment envisaged was 150% of the fixed investment. 12. Thus, investment constituted the basis of clause 16 of the Industrial Policy. That, the eligibility criterion for conferment of tax incentive was the Fixed Investment by the assessee which is clear if one reads the two notifications dated 22.12.1995 in the context of clause 16 of the Industrial Policy 1995 and which criterion is satisfied by Tata Cummins Ltd. in this case, namely, that, it is the owner of the building in which its factory is situated. The underlying rational behind the notification(s) is that the assessee must deploy funds in the ownership of the building in which the factory is located or by deployment of funds in the building(s) taken on lease for the minimum period of 15 years so that bogus companies without fixed investments are not set up only with the intention of getting tax exemptions. SCOPE OF THE NOTIFICATION NOS.478 & 479: 13. At the outset we reiterate that if one reads the notification(s) in the light of the incentive policy it is clear that incentive is admissible to the unit which is the owner of the building in which it is located from which the industrial production commences or it (unit) is located in a leasehold premises (building or land or both), provided that the lease shall be of the minimum period of 15 years. As stated above, the eligibility criterion is that of a fixed investment by a genuine investor. In the present case, as stated above, we have to go by the interpretation of the notification(s) in the light of the policy. However, even if one goes by the strict interpretation of the notification(s) we are in agreement with the view expressed by the High Court that the first part of the notification(s), as distinct from the second part, does not refer to the land. If the argument of the department is accepted that the first part of the notification would apply only if Tata Cummins Ltd. is the owner of the land and building in which its factory is located then we are not only giving a narrow interpretation to the notification which would defeat the object underlying the incentive policy but also it would be against the very text of the said notification(s) which omits the word land from the first part of the notification. 14. Before concluding, we may reiterate that at one stage of the matter the department had taken the position that Tata Cummins Ltd. was not entitled to the benefit as the Head lease in favour of TISCO was pending renewal by the State Government and till such time as the State renews the lease in favour of TISCO, Tata Cummins Ltd. was not entitled to the benefit of concession. We are now informed that the State Government has renewed the Head lease in favour of TISCO who in turn has sub-leased a portion thereof to TELCO, which has 50% interest in the joint venture, namely, Tata Cummins Ltd. In the circumstances, we are not required to consider whether the above two notifications are repugnant to the incentive policy. We have, however, noted the ratio of the decision of this court in the case of State of Bihar & others etc. v. Suprabhat Steel Ltd. & others etc. reported in (1999) 1 SCC 31 , in which it has been held that the notifications meant for implementing the Industrial Policy of the State government, cannot override the incentive policy. 15. On the facts of the present case, we need not examine the question as to whether the said two notifications no.478 and 479, quoted hereinabove, are repugnant to the incentive policy. Before concluding, we may point out that vide order dated 26.3.2004, this court, by way of interim measure, directed the appellant herein to adjust the refundable amount of Rs.40 crores, for the accounting year commencing from 1.4.2004, the balance amount was ordered to be refunded to Tata Cummins Ltd. who undertook to pay back to the appellant the balance payment with interest at the rate of 9% in the event of the State succeeding in this civil appeal. However, since we are dismissing the appeal filed by the State, the question of refund by Tata Cummins Ltd. to the State, of the balance amount i.e. Rs.14.5 crores with interest, does not arise. 16. | 0[ds]Before analyzing the above Policy read with the notifications, it is important to bear in mind the connotation of the word tax. A tax is a payment for raising general revenue. It is a burden. It is based on the principle of ability or capacity to pay. It is a manifestation of the taxing power of the State. An exemption from payment of tax under an enactment is an exemption from the tax liability. Therefore, every such exemption notification has to be read strictly. However, when an assessee is promised with a tax exemption for setting up an industry in the backward area as a term of the industrial policy, we have to read the implementing notifications in the context of the Industrial Policy. In such a case, the exemption notifications have to be read liberally keeping in mind the objects envisaged by the Industrial Policy and not in a strict sense as in the case of exemptions from tax liability under the taxing statuteApplying the above tests to the facts of the present case, the object behind enactment of the Industrial Policy, 1995 was to confer incentives on industries set up in the State. As part of the incentives, the Industrial Policy envisaged allotment of land/building in growth centres to companies for setting up industrial units on lease for 99 years with an option for renewal. As a part of the incentives, it was also envisaged under clause 16 that sales tax benefit/exemption shall be granted to attract investments in order to sustain industrial development in the State. It is in this background, that we have to consider clause 16.1 and clause 16.2 of the Industrial Policy, 1995. The two notifications are merely instruments giving effect to the policy envisaged under the Industrial Policy, 1995Before concluding, we may reiterate that at one stage of the matter the department had taken the position that Tata Cummins Ltd. was not entitled to the benefit as the Head lease in favour of TISCO was pending renewal by the State Government and till such time as the State renews the lease in favour of TISCO, Tata Cummins Ltd. was not entitled to the benefit of concession. We are now informed that the State Government has renewed the Head lease in favour of TISCO who in turn has sub-leased a portion thereof to TELCO, which has 50% interest in the joint venture, namely, Tata Cummins Ltd. In the circumstances, we are not required to consider whether the above two notifications are repugnant to the incentive policy. We have, however, noted the ratio of the decision of this court in the case of State of Bihar & others etc. v. Suprabhat Steel Ltd. & others etc. reported in (1999) 1 SCC 31 , in which it has been held that the notifications meant for implementing the Industrial Policy of the State government, cannot override the incentive policyOn the facts of the present case, we need not examine the question as to whether the said two notifications no.478 and 479, quoted hereinabove, are repugnant to the incentive policy. Before concluding, we may point out that vide order dated 26.3.2004, this court, by way of interim measure, directed the appellant herein to adjust the refundable amount of Rs.40 crores, for the accounting year commencing from 1.4.2004, the balance amount was ordered to be refunded to Tata Cummins Ltd. who undertook to pay back to the appellant the balance payment with interest at the rate of 9% in the event of the State succeeding in this civil appeal. However, since we are dismissing the appeal filed by the State, the question of refund by Tata Cummins Ltd. to the State, of the balance amount i.e. Rs.14.5 crores with interest, does not arise. | 0 | 3,726 | 688 | ### 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:
case of exemptions from tax liability under the taxing statute. 10. Applying the above tests to the facts of the present case, the object behind enactment of the Industrial Policy, 1995 was to confer incentives on industries set up in the State. As part of the incentives, the Industrial Policy envisaged allotment of land/building in growth centres to companies for setting up industrial units on lease for 99 years with an option for renewal. As a part of the incentives, it was also envisaged under clause 16 that sales tax benefit/exemption shall be granted to attract investments in order to sustain industrial development in the State. It is in this background, that we have to consider clause 16.1 and clause 16.2 of the Industrial Policy, 1995. The two notifications are merely instruments giving effect to the policy envisaged under the Industrial Policy, 1995. 11. Under clause 16.1 of the Policy, all new units were given the facility of set off or exemption on purchase of raw-material within the State. The period of exemption was 10 years for industries situated in category A districts and 8 years for industries situated in category B districts. Under clause 16.2, new units were given an option to choose deferment or exemption of sales tax on sale of finished goods for a period of 10 years for category A districts and 8 years for category B districts from the date of production of the unit with a ceiling of 100% of the fixed investment made by the unit. However, those industries which were considered as Thrust Industries located in A category backward districts, the ceiling of exemption or the deferment envisaged was 150% of the fixed investment. 12. Thus, investment constituted the basis of clause 16 of the Industrial Policy. That, the eligibility criterion for conferment of tax incentive was the Fixed Investment by the assessee which is clear if one reads the two notifications dated 22.12.1995 in the context of clause 16 of the Industrial Policy 1995 and which criterion is satisfied by Tata Cummins Ltd. in this case, namely, that, it is the owner of the building in which its factory is situated. The underlying rational behind the notification(s) is that the assessee must deploy funds in the ownership of the building in which the factory is located or by deployment of funds in the building(s) taken on lease for the minimum period of 15 years so that bogus companies without fixed investments are not set up only with the intention of getting tax exemptions. SCOPE OF THE NOTIFICATION NOS.478 & 479: 13. At the outset we reiterate that if one reads the notification(s) in the light of the incentive policy it is clear that incentive is admissible to the unit which is the owner of the building in which it is located from which the industrial production commences or it (unit) is located in a leasehold premises (building or land or both), provided that the lease shall be of the minimum period of 15 years. As stated above, the eligibility criterion is that of a fixed investment by a genuine investor. In the present case, as stated above, we have to go by the interpretation of the notification(s) in the light of the policy. However, even if one goes by the strict interpretation of the notification(s) we are in agreement with the view expressed by the High Court that the first part of the notification(s), as distinct from the second part, does not refer to the land. If the argument of the department is accepted that the first part of the notification would apply only if Tata Cummins Ltd. is the owner of the land and building in which its factory is located then we are not only giving a narrow interpretation to the notification which would defeat the object underlying the incentive policy but also it would be against the very text of the said notification(s) which omits the word land from the first part of the notification. 14. Before concluding, we may reiterate that at one stage of the matter the department had taken the position that Tata Cummins Ltd. was not entitled to the benefit as the Head lease in favour of TISCO was pending renewal by the State Government and till such time as the State renews the lease in favour of TISCO, Tata Cummins Ltd. was not entitled to the benefit of concession. We are now informed that the State Government has renewed the Head lease in favour of TISCO who in turn has sub-leased a portion thereof to TELCO, which has 50% interest in the joint venture, namely, Tata Cummins Ltd. In the circumstances, we are not required to consider whether the above two notifications are repugnant to the incentive policy. We have, however, noted the ratio of the decision of this court in the case of State of Bihar & others etc. v. Suprabhat Steel Ltd. & others etc. reported in (1999) 1 SCC 31 , in which it has been held that the notifications meant for implementing the Industrial Policy of the State government, cannot override the incentive policy. 15. On the facts of the present case, we need not examine the question as to whether the said two notifications no.478 and 479, quoted hereinabove, are repugnant to the incentive policy. Before concluding, we may point out that vide order dated 26.3.2004, this court, by way of interim measure, directed the appellant herein to adjust the refundable amount of Rs.40 crores, for the accounting year commencing from 1.4.2004, the balance amount was ordered to be refunded to Tata Cummins Ltd. who undertook to pay back to the appellant the balance payment with interest at the rate of 9% in the event of the State succeeding in this civil appeal. However, since we are dismissing the appeal filed by the State, the question of refund by Tata Cummins Ltd. to the State, of the balance amount i.e. Rs.14.5 crores with interest, does not arise. 16.
### Response:
0
### Explanation:
Before analyzing the above Policy read with the notifications, it is important to bear in mind the connotation of the word tax. A tax is a payment for raising general revenue. It is a burden. It is based on the principle of ability or capacity to pay. It is a manifestation of the taxing power of the State. An exemption from payment of tax under an enactment is an exemption from the tax liability. Therefore, every such exemption notification has to be read strictly. However, when an assessee is promised with a tax exemption for setting up an industry in the backward area as a term of the industrial policy, we have to read the implementing notifications in the context of the Industrial Policy. In such a case, the exemption notifications have to be read liberally keeping in mind the objects envisaged by the Industrial Policy and not in a strict sense as in the case of exemptions from tax liability under the taxing statuteApplying the above tests to the facts of the present case, the object behind enactment of the Industrial Policy, 1995 was to confer incentives on industries set up in the State. As part of the incentives, the Industrial Policy envisaged allotment of land/building in growth centres to companies for setting up industrial units on lease for 99 years with an option for renewal. As a part of the incentives, it was also envisaged under clause 16 that sales tax benefit/exemption shall be granted to attract investments in order to sustain industrial development in the State. It is in this background, that we have to consider clause 16.1 and clause 16.2 of the Industrial Policy, 1995. The two notifications are merely instruments giving effect to the policy envisaged under the Industrial Policy, 1995Before concluding, we may reiterate that at one stage of the matter the department had taken the position that Tata Cummins Ltd. was not entitled to the benefit as the Head lease in favour of TISCO was pending renewal by the State Government and till such time as the State renews the lease in favour of TISCO, Tata Cummins Ltd. was not entitled to the benefit of concession. We are now informed that the State Government has renewed the Head lease in favour of TISCO who in turn has sub-leased a portion thereof to TELCO, which has 50% interest in the joint venture, namely, Tata Cummins Ltd. In the circumstances, we are not required to consider whether the above two notifications are repugnant to the incentive policy. We have, however, noted the ratio of the decision of this court in the case of State of Bihar & others etc. v. Suprabhat Steel Ltd. & others etc. reported in (1999) 1 SCC 31 , in which it has been held that the notifications meant for implementing the Industrial Policy of the State government, cannot override the incentive policyOn the facts of the present case, we need not examine the question as to whether the said two notifications no.478 and 479, quoted hereinabove, are repugnant to the incentive policy. Before concluding, we may point out that vide order dated 26.3.2004, this court, by way of interim measure, directed the appellant herein to adjust the refundable amount of Rs.40 crores, for the accounting year commencing from 1.4.2004, the balance amount was ordered to be refunded to Tata Cummins Ltd. who undertook to pay back to the appellant the balance payment with interest at the rate of 9% in the event of the State succeeding in this civil appeal. However, since we are dismissing the appeal filed by the State, the question of refund by Tata Cummins Ltd. to the State, of the balance amount i.e. Rs.14.5 crores with interest, does not arise.
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Ganga Bai Vs. Vijay Kumar & Ors | finding given in the Judgement and the Decree...... It is humbly prayed that finding given by the learned Judge in Para 34 of his judgment may kindly be set aside, and instead the partition deed dated 11-1-56 may kindly be declared as genuine" so ran the Memorandum of Appeal. Defendants 2 and 3 reiterated through their counsel by filing a note to explain the payment of fixed Court-fees of Rs. 20 only that they were "seeking the relief of declaration only" and therefore, the Court-fee paid was proper and sufficient. Long years thereafter, the High Court allowed the Memorandum to be amended not a reason was cited to explain the delay and not a reason was given to condone it. And it was not appreciated that in granting time to defendants 2 and 3 to make up the deficit of the Court-fees 7 1/2 years after the appeal was filed, an amendment was being allowed which had its impact not only on the preliminary decree but on the final decree which was passed in the meanwhile, the auction sale which was held in pursuance of the final decree and the sale certificate which was granted to the appellant who, with the leave of the Court and in full satisfaction of her decree, had purchased a joint 1/2 share in the mortgaged property. With the striking down of the preliminary decree, these proceedings had to fall but the error really lay in allowing the amendment so as to permit, without good cause shown, a belated challenge to the preliminary decree.23. One other aspect of the question relating to the maintainability of the appeal yet remains to be examined. Counsel for the respondents argues that the finding of the trial Court on the issue of partition would have operated as res judicata against them and they were therefore, entitled to appeal therefrom.24. In Harchandra Das v. Bholanath Das, (1935) ILR 62 Cal 701 on which the learned Counsel for the respondents relies in support of this submission a suit for pre-emption was dismissed by the trial Court on the ground of limitation. In an appeal filed by the plaintiff, the District Court reversed that finding but confirmed the decree dismissing the suit on the ground that the sale effected by defendants 4 and 5 in favour of defendants 1,2 and 3 was not validly registered and there being no "sale", there can be no right of pre-emption. Defendants 1 to 3 preferred an appeal to the High Court against the finding recorded by the District Court that the sale effected in their favour by defendants 4 and 5 was not valid as it was not lawfully registered. On a preliminary objection raised by the plaintiffs to the maintainability of the appeal, the High Court of Calcutta held that though under the Code of Civil Procedure there can be no appeal as against a mere finding, "it may be taken to be the view of the Courts in India generally, that a party to the suit adversely affected by a finding contained in a judgment, on which a decree is based, may appeal; and the test applied in some of the cases for the purpose of determining whether a party has been aggrieved or not was whether the finding would be res judicata in other proceedings". The High Court, however, upheld the preliminary objection on the ground that the issue regarding validity of the sale which was decided against defendants 1 to 3 would not operate as res judicata in any subsequent proceedings and therefore the appeal which was solely directed against the finding on that issue was not maintainable.25. The position here is similar to that in the Calcutta case. The trial Court decreed the mortgagees suit only as against defendant 1, the father, and directed the sale of his one half interest in the mortgaged property on the ground that part of the consideration for the mortgage was not supported by legal necessity, the remaining part of the consideration was tainted with immorality and therefore the mortgage was not binding on the interest of the sons, defendants 2 and 3.Whether the partition between the father and sons was sham or real had no impact on the judgment of the trial Court and made no material difference to the decree passed by it. The finding recorded by the trial Court that the partition was a colourable transaction was unnecessary for the decision of the suit because even if the Court were to find that the partition was genuine, the mortgage would only have bound the interest of the father as the debt was not of a character which, under the Hindu Law, would bind the interest of the sons. There is no substance in the submission made on behalf of the sons that if the partition was held to be genuine, the property would have been wholly freed from the mortgage encumbrance. The validity or the binding nature of an alienation cannot depend on a partition effected after the alienation; or else, a sale or a mortgage effected by the Karta of a joint Hindu family can easily be avoided by effecting a partition amongst the members of the joint family. As the matter relating to the partition was not directly and substantially in issue in the suit, the finding that the partition was sham cannot operate as res judicata. Therefore, the appeal filed by defendants 2 and 3 against that finding was not maintainable, even on the assumption that the High Court of "Calcutta is right in its view that though under the Code there could be no appeal against a finding, yet "On grounds of justice" an appeal may lie against a finding, provided that it would operate as res judicata so as to preclude a party aggrieved by the finding from agitating the question covered by the finding in any other proceeding. It is not necessary here to determine whether the view of the Calcutta High Court is correct. | 1[ds]15. It is thus clear that the appeal filed by defendants 2 and 3 in the High Court was directed originally not against any part of the preliminary decree but against a mere finding recorded by the trial. Court that the partition was notis a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at ones peril, bring a suit of ones choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.16. Under Section 96(1) of theCode of Civil Procedure, save where otherwise expressly provided by the Code or by any other law for the time being in force, an appeal lies from every decree passed by any Court exercising original jurisdiction, to the Court authorised to hear appeals from the decisions of such Court. Section 100 provides for a second appeal to the High Court from an appellate decree passed by a Court subordinate to the High Court. Section 104(1) provides for appeals against orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the Code or by any law for the time being in force an appeal shall lie "from no other orders." Clause (i) of this section provides for an appeal against "any orders made under Rules from which an appeal is expressly allowed by rules". Order 43, Rule 1 of the Code, which by reasons of Cl. (i) of S. 104(1) forms a part of that section, provides for appeals against orders passed under various rules referred to in Clauses (a) to (w) thereof. Finally, Section 105(1) of the Code lays down that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in exercise of its original or appellate jurisdiction.The High Court mixed up two distinct issues : one, whether it was competent to defendants 2 and 3 if they were aggrieved by the preliminary decree to file an appeal against that decree; and two, whether the appeal such as was filed by them was maintainable. If it be correct that defendants 2 and 3 could be said to have been aggrieved by the preliminary decree, it was certainly competent for them to challenge that decree in appeal. But they did not file an appeal against the preliminary decree and therefore the question whether they were aggrieved by that decree and could file an appeal therefrom was irrelevant. While deciding whether the appeal filed by defendants 2 and 3 was maintainable, the High Court digressed into the question of the competence of defendants 2 and 3 to file an appeal against the preliminary decree and taking the view that it was open to them to challenge that decree even though the suit was wholly dismissed against them, the High Court held that the appeal, which in fact was directed against a finding given by the trial Court, was maintainable. If the High Court had appreciated that the two questions were distant and separate, it would not have fallen into the error of deciding the latter question by considering the former.19. Adverting to the question which the High Court did consider, namely, whether defendants 2 and 3 could be said to be aggrieved by the preliminary decree, there is nothing in the terms of that decree, which precluded those defendants from depositing the decretal amount to be able to redeem the mortgage. The trial Court had passed the usual preliminary decree for sale in Form No. 5-A, under Order 34, Rule 4, Civil Procedure Code. If the amount found due t the appellant under the decree was paid into the Court within the stipulated or extended period, the appellant would have been obliged to deliver to the mortgagors all the documents in her possession or power relating to the mortgaged property and to deliver up to the defendants quite and peaceable possession of the property free from the mortgage. The amount declared to be due to the appellant by the preliminary decree was not paid by the defendants, from which it would appeal that they were not interested in paying the amount. It is significant that defendants 2 and 3 were served with the notice of final decree proceedings and they appeared therein. The Code is merciful to mortgagors and perhaps rightly, because the mortgagee ought to have no grievance if the loan advanced by him is repaid with permissible interest, costs and expenses. Under Order 21, Rule 89, it was open to defendants 2 and 3 as late as after the appellant purchased the property in the auction sale, to pay the amount due to her. These defendants had interest in the mortgaged property by virtue of a title acquired before the sale, that is, under the registered partition dated January 11, 1956. Under Order 21, Rule 89, where immovable property is sold in execution of a decree, any person owning the property or holding an interest therein by virtue of a title acquired before the sale, can apply to have the sale set aside on his depositing in Court, for payment to the purchaser a sum equal to five per cent of the purchase-money and for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered. Nothing of the kind was done and even the last significant opportunity was not availed of by the defendants. Counsel for the appellant seems right that the defendants were content that only half the mortgaged property was directed to be sold and that it was only because of the later appreciation in prices of real property that defendants 2 and 3 awoke to the exigency of challenging the preliminary decree. That was much too late.The position here is similar to that in the Calcutta case. The trial Court decreed the mortgagees suit only as against defendant 1, the father, and directed the sale of his one half interest in the mortgaged property on the ground that part of the consideration for the mortgage was not supported by legal necessity, the remaining part of the consideration was tainted with immorality and therefore the mortgage was not binding on the interest of the sons, defendants 2 and 3.Whether the partition between the father and sons was sham or real had no impact on the judgment of the trial Court and made no material difference to the decree passed by it. The finding recorded by the trial Court that the partition was a colourable transaction was unnecessary for the decision of the suit because even if the Court were to find that the partition was genuine, the mortgage would only have bound the interest of the father as the debt was not of a character which, under the Hindu Law, would bind the interest of the sons. There is no substance in the submission made on behalf of the sons that if the partition was held to be genuine, the property would have been wholly freed from the mortgage encumbrance. The validity or the binding nature of an alienation cannot depend on a partition effected after the alienation; or else, a sale or a mortgage effected by the Karta of a joint Hindu family can easily be avoided by effecting a partition amongst the members of the joint family. As the matter relating to the partition was not directly and substantially in issue in the suit, the finding that the partition was sham cannot operate as res judicata. Therefore, the appeal filed by defendants 2 and 3 against that finding was not maintainable, even on the assumption that the High Court of "Calcutta is right in its view that though under the Code there could be no appeal against a finding, yet "On grounds of justice" an appeal may lie against a finding, provided that it would operate as res judicata so as to preclude a party aggrieved by the finding from agitating the question covered by the finding in any other proceeding. It is not necessary here to determine whether the view of the Calcutta High Court is correct. | 1 | 4,162 | 1,582 | ### Instruction:
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finding given in the Judgement and the Decree...... It is humbly prayed that finding given by the learned Judge in Para 34 of his judgment may kindly be set aside, and instead the partition deed dated 11-1-56 may kindly be declared as genuine" so ran the Memorandum of Appeal. Defendants 2 and 3 reiterated through their counsel by filing a note to explain the payment of fixed Court-fees of Rs. 20 only that they were "seeking the relief of declaration only" and therefore, the Court-fee paid was proper and sufficient. Long years thereafter, the High Court allowed the Memorandum to be amended not a reason was cited to explain the delay and not a reason was given to condone it. And it was not appreciated that in granting time to defendants 2 and 3 to make up the deficit of the Court-fees 7 1/2 years after the appeal was filed, an amendment was being allowed which had its impact not only on the preliminary decree but on the final decree which was passed in the meanwhile, the auction sale which was held in pursuance of the final decree and the sale certificate which was granted to the appellant who, with the leave of the Court and in full satisfaction of her decree, had purchased a joint 1/2 share in the mortgaged property. With the striking down of the preliminary decree, these proceedings had to fall but the error really lay in allowing the amendment so as to permit, without good cause shown, a belated challenge to the preliminary decree.23. One other aspect of the question relating to the maintainability of the appeal yet remains to be examined. Counsel for the respondents argues that the finding of the trial Court on the issue of partition would have operated as res judicata against them and they were therefore, entitled to appeal therefrom.24. In Harchandra Das v. Bholanath Das, (1935) ILR 62 Cal 701 on which the learned Counsel for the respondents relies in support of this submission a suit for pre-emption was dismissed by the trial Court on the ground of limitation. In an appeal filed by the plaintiff, the District Court reversed that finding but confirmed the decree dismissing the suit on the ground that the sale effected by defendants 4 and 5 in favour of defendants 1,2 and 3 was not validly registered and there being no "sale", there can be no right of pre-emption. Defendants 1 to 3 preferred an appeal to the High Court against the finding recorded by the District Court that the sale effected in their favour by defendants 4 and 5 was not valid as it was not lawfully registered. On a preliminary objection raised by the plaintiffs to the maintainability of the appeal, the High Court of Calcutta held that though under the Code of Civil Procedure there can be no appeal as against a mere finding, "it may be taken to be the view of the Courts in India generally, that a party to the suit adversely affected by a finding contained in a judgment, on which a decree is based, may appeal; and the test applied in some of the cases for the purpose of determining whether a party has been aggrieved or not was whether the finding would be res judicata in other proceedings". The High Court, however, upheld the preliminary objection on the ground that the issue regarding validity of the sale which was decided against defendants 1 to 3 would not operate as res judicata in any subsequent proceedings and therefore the appeal which was solely directed against the finding on that issue was not maintainable.25. The position here is similar to that in the Calcutta case. The trial Court decreed the mortgagees suit only as against defendant 1, the father, and directed the sale of his one half interest in the mortgaged property on the ground that part of the consideration for the mortgage was not supported by legal necessity, the remaining part of the consideration was tainted with immorality and therefore the mortgage was not binding on the interest of the sons, defendants 2 and 3.Whether the partition between the father and sons was sham or real had no impact on the judgment of the trial Court and made no material difference to the decree passed by it. The finding recorded by the trial Court that the partition was a colourable transaction was unnecessary for the decision of the suit because even if the Court were to find that the partition was genuine, the mortgage would only have bound the interest of the father as the debt was not of a character which, under the Hindu Law, would bind the interest of the sons. There is no substance in the submission made on behalf of the sons that if the partition was held to be genuine, the property would have been wholly freed from the mortgage encumbrance. The validity or the binding nature of an alienation cannot depend on a partition effected after the alienation; or else, a sale or a mortgage effected by the Karta of a joint Hindu family can easily be avoided by effecting a partition amongst the members of the joint family. As the matter relating to the partition was not directly and substantially in issue in the suit, the finding that the partition was sham cannot operate as res judicata. Therefore, the appeal filed by defendants 2 and 3 against that finding was not maintainable, even on the assumption that the High Court of "Calcutta is right in its view that though under the Code there could be no appeal against a finding, yet "On grounds of justice" an appeal may lie against a finding, provided that it would operate as res judicata so as to preclude a party aggrieved by the finding from agitating the question covered by the finding in any other proceeding. It is not necessary here to determine whether the view of the Calcutta High Court is correct.
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said to have been aggrieved by the preliminary decree, it was certainly competent for them to challenge that decree in appeal. But they did not file an appeal against the preliminary decree and therefore the question whether they were aggrieved by that decree and could file an appeal therefrom was irrelevant. While deciding whether the appeal filed by defendants 2 and 3 was maintainable, the High Court digressed into the question of the competence of defendants 2 and 3 to file an appeal against the preliminary decree and taking the view that it was open to them to challenge that decree even though the suit was wholly dismissed against them, the High Court held that the appeal, which in fact was directed against a finding given by the trial Court, was maintainable. If the High Court had appreciated that the two questions were distant and separate, it would not have fallen into the error of deciding the latter question by considering the former.19. Adverting to the question which the High Court did consider, namely, whether defendants 2 and 3 could be said to be aggrieved by the preliminary decree, there is nothing in the terms of that decree, which precluded those defendants from depositing the decretal amount to be able to redeem the mortgage. The trial Court had passed the usual preliminary decree for sale in Form No. 5-A, under Order 34, Rule 4, Civil Procedure Code. If the amount found due t the appellant under the decree was paid into the Court within the stipulated or extended period, the appellant would have been obliged to deliver to the mortgagors all the documents in her possession or power relating to the mortgaged property and to deliver up to the defendants quite and peaceable possession of the property free from the mortgage. The amount declared to be due to the appellant by the preliminary decree was not paid by the defendants, from which it would appeal that they were not interested in paying the amount. It is significant that defendants 2 and 3 were served with the notice of final decree proceedings and they appeared therein. The Code is merciful to mortgagors and perhaps rightly, because the mortgagee ought to have no grievance if the loan advanced by him is repaid with permissible interest, costs and expenses. Under Order 21, Rule 89, it was open to defendants 2 and 3 as late as after the appellant purchased the property in the auction sale, to pay the amount due to her. These defendants had interest in the mortgaged property by virtue of a title acquired before the sale, that is, under the registered partition dated January 11, 1956. Under Order 21, Rule 89, where immovable property is sold in execution of a decree, any person owning the property or holding an interest therein by virtue of a title acquired before the sale, can apply to have the sale set aside on his depositing in Court, for payment to the purchaser a sum equal to five per cent of the purchase-money and for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered. Nothing of the kind was done and even the last significant opportunity was not availed of by the defendants. Counsel for the appellant seems right that the defendants were content that only half the mortgaged property was directed to be sold and that it was only because of the later appreciation in prices of real property that defendants 2 and 3 awoke to the exigency of challenging the preliminary decree. That was much too late.The position here is similar to that in the Calcutta case. The trial Court decreed the mortgagees suit only as against defendant 1, the father, and directed the sale of his one half interest in the mortgaged property on the ground that part of the consideration for the mortgage was not supported by legal necessity, the remaining part of the consideration was tainted with immorality and therefore the mortgage was not binding on the interest of the sons, defendants 2 and 3.Whether the partition between the father and sons was sham or real had no impact on the judgment of the trial Court and made no material difference to the decree passed by it. The finding recorded by the trial Court that the partition was a colourable transaction was unnecessary for the decision of the suit because even if the Court were to find that the partition was genuine, the mortgage would only have bound the interest of the father as the debt was not of a character which, under the Hindu Law, would bind the interest of the sons. There is no substance in the submission made on behalf of the sons that if the partition was held to be genuine, the property would have been wholly freed from the mortgage encumbrance. The validity or the binding nature of an alienation cannot depend on a partition effected after the alienation; or else, a sale or a mortgage effected by the Karta of a joint Hindu family can easily be avoided by effecting a partition amongst the members of the joint family. As the matter relating to the partition was not directly and substantially in issue in the suit, the finding that the partition was sham cannot operate as res judicata. Therefore, the appeal filed by defendants 2 and 3 against that finding was not maintainable, even on the assumption that the High Court of "Calcutta is right in its view that though under the Code there could be no appeal against a finding, yet "On grounds of justice" an appeal may lie against a finding, provided that it would operate as res judicata so as to preclude a party aggrieved by the finding from agitating the question covered by the finding in any other proceeding. It is not necessary here to determine whether the view of the Calcutta High Court is correct.
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AKHILESH PRASAD Vs. JHARKHAND PUBLIC SERVICE COMMISSION AND ORS | from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to the Higher Judicial Service. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to compete with each other so as to excel and get quicker promotion. In this way, we expect that the calibre of the members of the Higher Judicial Service will further improve. In order to achieve this, while the ratio of 75 per cent appointment by promotion and 25 per cent by direct recruitment to the Higher Judicial Service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned : 50 per cent of the total posts in the Higher Judicial Service must be filled by promotion on the basis of principle of merit-cum-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case-law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years. The High Courts will have to frame a rule in this regard. 28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i.e. the cadre of District Judges will be: (1)(a) 50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test; (b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service; and (c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts. (2) Appropriate rules shall be framed as above by the High Courts as early as possible. (Emphasis added) 20. By very nature, the promotion to the next higher level is from and amongst those who are at a lower level in the service. The avenue of promotion is not available to persons from the open market, which talent is to be garnered through direct recruitment. The promotion as a channel to reach the higher level is only available to the persons already belonging to the service. In normal circumstances, the promotion would go by the concept of merit linked with seniority subject to suitability. In order to encourage meritorious candidates who may be comparatively junior in service, a window of opportunity is opened through limited departmental examination. Those who pass the examination are entitled to have an accelerated promotion. This process does not change the character of movement to the higher post and it continues to be a promotional channel. The Single Judge of the High Court was therefore right in allowing the writ petition. The underlined portion from the order passed by the Single Judge shows that the matter was considered in the correct perspective. The Division Bench of the High Court was not justified in concluding that limited departmental examination was nothing but direct recruitment from the open market. 21. Before we part, we must deal with some of the observations in Pankaj Kumar 2021 (9) SCALE 576. 22. In the instant case and in the case of Pankaj Kumar 2021 (9) SCALE 576, the appellants belonged to a particular community or tribe which was specified in the erstwhile State of Bihar as Scheduled Castes/ Scheduled Tribes when they entered public service in the erstwhile State of Bihar. The appellants in both the cases were allocated to the service under State of Jharkhand though they belonged to the areas which after re-organization are now part of the successor State of Bihar. By virtue of Sections 73 and 74 of the Act, they could certainly claim benefit in the service under the newly carved State of Jharkhand. On the strength of the view taken in Pankaj Kumar 2021 (9) SCALE 576, the entitlement in a fresh service in State of Jharkhand as well as in accordance with the view taken by us in the instant case, the entitlement in the limited departmental examination in State of Jharkhand is definitely made out. The basis for their entitlement is primarily because of Sections 73 and 74 of the Act. It is quite possible that the progeny of such persons may have stayed back or may later decide to go back to their roots, that is to say, to the area which now falls in the newly carved State of Bihar; and since their lineage is from that area and the State, they may contend that they are entitled to benefits of reservation in the newly carved State of Bihar in relation to which State, the community that they belong, is a Scheduled Caste/ Scheduled Tribe. Paragraph 55 of the decision in Pankaj Kumar 2021 (9) SCALE 576 is capable of being read as conferring entitlement on the wards or the progeny of the appellants in State of Jharkhand alone where in contradistinction to their lineage, they can claim to have connection only through their parent(s) and the effect of the provisions of the Act. 23. It must be stated that the entitlement of the progeny or the wards of the appellant in State of Jharkhand had not strictly arisen for consideration in Pankaj Kumar 2021 (9) SCALE 576. In our view, the issue, if any, can and must be gone into in detail in an appropriate case. | 1[ds]16. In Pankaj Kumar 2021 (9) SCALE 576, the father of the appellant belonged to District Patna (which, after reorganization, is now part of successor State of Bihar) but resided in Hazaribagh (which is now part of State of Jharkhand) where the appellant was born. The appellant was appointed as Assistant Teacher on 21.12.1999 and after reorganization, his service was allocated to State of Jharkhand. While serving as a teacher, he appeared as a member of SC category in the Combined Civil Services Examination, and though his name appeared at Sl. No.5 against 17 vacancies reserved for SC Category, he was not selected on the ground that he being permanent resident of Patna, he would be treated as a migrant in State of Jharkhand.In this factual backdrop, the question that arose for consideration was as under:46. The question that emerges for our consideration in the instant appeals is whether a person, who has been a resident of the State of Bihar and where the Constitution (Scheduled Castes)/ (Scheduled Tribes) Order, 1950 identifying castes/ tribes is issued extending the benefit to members of SC/ST throughout the integrated State of Bihar which was later on bifurcated by virtue of a statutory instrument, i.e., the Act, 2000, into two successor States (State of Bihar and State of Jharkhand) with their rights and privileges to the extent being protected by legislative enactment under the provisions of the Act 2000, could still be considered to be a migrant to the successor State of Jharkhand depriving them of their privileges and benefits to which the incumbent or their lineal descendants has availed from the very inception of the Presidential Order 1950 in the integrated State of Bihar.Thereafter, the effect of Sections 73 and 74 of the Act was considered and it was observed:49. The scheme of the Act 2000 postulates that employees who are working immediately on or before the appointed date, in the State of Bihar, has either domicile of the districts that formed part of State of Jharkhand under Section 3 of the Act or opted or joined being junior in their respective seniority, stands absorbed in the successor State of Jharkhand and by virtue of a statutory instrument, their service conditions stand protected and became entitled to claim privileges and benefits to which the members of scheduled castes/ scheduled tribes/ OBC are entitled for in terms of the Presidential Order 1950 as amended from time to time.50. This Court, while examining almost a similar nature of controversy in Sudhakar Vithal Kumbhare v. State of Maharashtra & Ors., 2004 (9) SCC 481 held as under:-5. But the question which arises for consideration herein appears to have not been raised in any other case. It is not in dispute that the Scheduled Castes and Scheduled Tribes have suffered disadvantages and been denied facilities for development and growth in several States. They require protective preferences, facilities and benefits inter alia in the form of reservation, so as to enable them to compete on equal terms with the more advantaged and developed sections of the community. The question is as to whether the appellant being a Scheduled Tribe known as Halba/Halbi which stands recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra having their origin in Chhindwara region, a part of which, on States reorganisation, has come to the State of Maharashtra, was entitled to the benefit of reservation. It is one thing to say that the expression in relation to that State occurring in Article 342 of the Constitution of India should be given an effective or proper meaning so as to exclude the possibility that a tribe which has been included as a Scheduled Tribe in one State after consultation with the Governor for the purpose of the Constitution may not get the same benefit in another State whose Governor has not been consulted; but it is another thing to say that when an area is dominated by members of the same tribe belonging to the same region which has been bifurcated, the members would not continue to get the same benefit when the said tribe is recognized in both the States. In other words, the question that is required to be posed and answered would be as to whether the members of a Scheduled Tribe belonging to one region would continue to get the same benefits despite bifurcation thereof in terms of the States Reorganization Act. With a view to find out as to whether any particular area of the country was required to be given protection is a matter which requires detailed investigation having regard to the fact that both Pandhurna in the district of Chhindwara and a part of the area of Chandrapur at one point of time belonged to the same region and under the Constitution (Scheduled Tribes) Order, 1950 as it originally stood the tribe Halba/Halbi of that region may be given the same protection. In a case of this nature the degree of disadvantages of various elements which constitute the input for specification may not be totally different and the State of Maharashtra even after reorganisation might have agreed for inclusion of the said tribe Halba/Halbi as a Scheduled tribe in the State of Maharashtra having regard to the said fact in mind.51. It was a case where the person was a member of Scheduled Tribe known as Halba/Halbi. The tribe had its origin in District Chhindwara region which is a part of State of Madhya Pradesh, a part of the district of Chhindwara place Chandrapur, on States reorganization, came to the existing State of Maharashtra from the State of Madhya Pradesh, it was not considered a case of migration from State of Madhya Pradesh to State of Maharashtra. But the State of Maharashtra being the existing State and degree of disadvantages of various elements may be different on the objection being raised by the State of Maharashtra City Board where the incumbent was employed, it was left open for examination by the scrutiny committee constituted and established pursuant to a judgment of this Court in Kumari Madhuri Patil and Another vs. Addl. Commissioner, Tribal Development and Others, 1994 (6) SCC 241 .52. There is a fundamental dichotomy in the submissions made by the counsel for the State of Jharkhand that the existing service conditions including benefit of reservation in the promotional cadre post shall not be varied to his disadvantage but he shall be considered to be a migrant to the State of Jharkhand while participating in public employment to compete in open/general category and asked to seek the benefit of reservation in the neighboring State of Bihar, to hold different status in his parent State of Jharkhand after he became a member of service of the State of Jharkhand, serving for sufficient long time on and after the appointed day, i.e. 15th November, 2000 in the State is unsustainable in law and in contravention to the scheme of the Act 2000.53. It will be highly unfair and pernicious to their interest if the benefits of reservation with privileges and benefits flowing thereof are not being protected in the State of Jharkhand after he is absorbed by virtue to Section 73 of the Act 2000 that clearly postulates not only to protect the existing service conditions but the benefit of reservation and privileges which he was enjoying on or before the appointed day, i.e. 15th November, 2000 in the State of Bihar not to be varied to his disadvantage after he became a member of service in the State of Jharkhand.54. The collective readings of the provisions of the Act, 2000 makes it apparent that such of the persons whose place of origin/domicile on or before the appointed day was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Act, 2000 became ordinary resident of the State of Jharkhand, at the same time, so far as the employees who were in public employment in the State of Bihar on or before the appointed day, i.e. 15th November, 2000 under the Act 2000, apart from those who are domicile of either of the district which became part of the State of Jharkhand, such of the employees who have submitted their option or employees who are junior in the cadre of their seniority as per the policy of the Government of India of which a reference has been made, either voluntarily or involuntarily call upon to serve the State of Jharkhand, their existing service conditions shall not be varied to their disadvantage and stands protected by virtue of Section 73 of the Act, 2000.55. In our considered view, such of the employees who are members of the SC/ST/OBC whose caste/tribe has been notified by an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950 under Vth and VIth Schedule to Sections 23 and 24 of the Act 2000 or by the separate notification for members of other backward class category, benefit of reservation including privileges and benefits flowing thereof, shall remain protected by virtue of Section 73 of the Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public employment.56. It is made clear that person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand, but will not be entitled to claim benefit of reservation simultaneously in both the successor States and those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa.57. We are of the view that the present appellant Pankaj Kumar in Civil Appeal @ SLP (Civil) No.13473 of 2020, being a serving employee in the State of Jharkhand by virtue of Section 73 of the Act 2000, would be entitled to claim the benefit of reservation including the privileges and benefits admissible to the members of Scheduled Caste category in the State of Jharkhand for all practical purposes including participation in open competition seeking public employment.17. As has been clarified in the decision in Pankaj Kumar 2021 (9) SCALE 576, such of the employees who opt for service under a successor State after reorganization, their existing service conditions would not be varied to their disadvantage and would stand protected by virtue of Section 73 of the Act. Further, subject to the condition that such person would not be entitled to claim the benefit of reservation simultaneously in both the successor States, such employees would be entitled to claim not only the benefit of reservation in the service of the successor State to which they had opted and were allocated, but they would also be entitled to participate in any subsequent open competition with the benefit of reservation.18. It must be stated that the decision in Pankaj Kumar 2021 (9) SCALE 576 was rendered by this Court on 19.8.2021, while the judgment presently under challenge was delivered by the High Court on 12.5.2021. The High Court thus did not have the benefit of the decision of this Court. The law having been settled in Pankaj Kumar 2021 (9) SCALE 576, the judgment under appeal has to be read in light of the decision in Pankaj Kumar 2021 (9) SCALE 576. It would therefore be immaterial whether or not the nature of limited departmental examination is to be taken as direct recruitment, as found by the Division Bench of the High Court.20. By very nature, the promotion to the next higher level is from and amongst those who are at a lower level in the service. The avenue of promotion is not available to persons from the open market, which talent is to be garnered through direct recruitment. The promotion as a channel to reach the higher level is only available to the persons already belonging to the service. In normal circumstances, the promotion would go by the concept of merit linked with seniority subject to suitability. In order to encourage meritorious candidates who may be comparatively junior in service, a window of opportunity is opened through limited departmental examination. Those who pass the examination are entitled to have an accelerated promotion. This process does not change the character of movement to the higher post and it continues to be a promotional channel. The Single Judge of the High Court was therefore right in allowing the writ petition. The underlined portion from the order passed by the Single Judge shows that the matter was considered in the correct perspective. The Division Bench of the High Court was not justified in concluding that limited departmental examination was nothing but direct recruitment from the open market.22. In the instant case and in the case of Pankaj Kumar 2021 (9) SCALE 576, the appellants belonged to a particular community or tribe which was specified in the erstwhile State of Bihar as Scheduled Castes/ Scheduled Tribes when they entered public service in the erstwhile State of Bihar. The appellants in both the cases were allocated to the service under State of Jharkhand though they belonged to the areas which after re-organization are now part of the successor State of Bihar. By virtue of Sections 73 and 74 of the Act, they could certainly claim benefit in the service under the newly carved State of Jharkhand. On the strength of the view taken in Pankaj Kumar 2021 (9) SCALE 576, the entitlement in a fresh service in State of Jharkhand as well as in accordance with the view taken by us in the instant case, the entitlement in the limited departmental examination in State of Jharkhand is definitely made out. The basis for their entitlement is primarily because of Sections 73 and 74 of the Act. It is quite possible that the progeny of such persons may have stayed back or may later decide to go back to their roots, that is to say, to the area which now falls in the newly carved State of Bihar; and since their lineage is from that area and the State, they may contend that they are entitled to benefits of reservation in the newly carved State of Bihar in relation to which State, the community that they belong, is a Scheduled Caste/ Scheduled Tribe. Paragraph 55 of the decision in Pankaj Kumar 2021 (9) SCALE 576 is capable of being read as conferring entitlement on the wards or the progeny of the appellants in State of Jharkhand alone where in contradistinction to their lineage, they can claim to have connection only through their parent(s) and the effect of the provisions of the Act.23. It must be stated that the entitlement of the progeny or the wards of the appellant in State of Jharkhand had not strictly arisen for consideration in Pankaj Kumar 2021 (9) SCALE 576. In our view, the issue, if any, can and must be gone into in detail in an appropriate case. | 1 | 6,115 | 2,719 | ### 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:
from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to the Higher Judicial Service. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to compete with each other so as to excel and get quicker promotion. In this way, we expect that the calibre of the members of the Higher Judicial Service will further improve. In order to achieve this, while the ratio of 75 per cent appointment by promotion and 25 per cent by direct recruitment to the Higher Judicial Service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned : 50 per cent of the total posts in the Higher Judicial Service must be filled by promotion on the basis of principle of merit-cum-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case-law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years. The High Courts will have to frame a rule in this regard. 28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i.e. the cadre of District Judges will be: (1)(a) 50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test; (b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service; and (c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts. (2) Appropriate rules shall be framed as above by the High Courts as early as possible. (Emphasis added) 20. By very nature, the promotion to the next higher level is from and amongst those who are at a lower level in the service. The avenue of promotion is not available to persons from the open market, which talent is to be garnered through direct recruitment. The promotion as a channel to reach the higher level is only available to the persons already belonging to the service. In normal circumstances, the promotion would go by the concept of merit linked with seniority subject to suitability. In order to encourage meritorious candidates who may be comparatively junior in service, a window of opportunity is opened through limited departmental examination. Those who pass the examination are entitled to have an accelerated promotion. This process does not change the character of movement to the higher post and it continues to be a promotional channel. The Single Judge of the High Court was therefore right in allowing the writ petition. The underlined portion from the order passed by the Single Judge shows that the matter was considered in the correct perspective. The Division Bench of the High Court was not justified in concluding that limited departmental examination was nothing but direct recruitment from the open market. 21. Before we part, we must deal with some of the observations in Pankaj Kumar 2021 (9) SCALE 576. 22. In the instant case and in the case of Pankaj Kumar 2021 (9) SCALE 576, the appellants belonged to a particular community or tribe which was specified in the erstwhile State of Bihar as Scheduled Castes/ Scheduled Tribes when they entered public service in the erstwhile State of Bihar. The appellants in both the cases were allocated to the service under State of Jharkhand though they belonged to the areas which after re-organization are now part of the successor State of Bihar. By virtue of Sections 73 and 74 of the Act, they could certainly claim benefit in the service under the newly carved State of Jharkhand. On the strength of the view taken in Pankaj Kumar 2021 (9) SCALE 576, the entitlement in a fresh service in State of Jharkhand as well as in accordance with the view taken by us in the instant case, the entitlement in the limited departmental examination in State of Jharkhand is definitely made out. The basis for their entitlement is primarily because of Sections 73 and 74 of the Act. It is quite possible that the progeny of such persons may have stayed back or may later decide to go back to their roots, that is to say, to the area which now falls in the newly carved State of Bihar; and since their lineage is from that area and the State, they may contend that they are entitled to benefits of reservation in the newly carved State of Bihar in relation to which State, the community that they belong, is a Scheduled Caste/ Scheduled Tribe. Paragraph 55 of the decision in Pankaj Kumar 2021 (9) SCALE 576 is capable of being read as conferring entitlement on the wards or the progeny of the appellants in State of Jharkhand alone where in contradistinction to their lineage, they can claim to have connection only through their parent(s) and the effect of the provisions of the Act. 23. It must be stated that the entitlement of the progeny or the wards of the appellant in State of Jharkhand had not strictly arisen for consideration in Pankaj Kumar 2021 (9) SCALE 576. In our view, the issue, if any, can and must be gone into in detail in an appropriate case.
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the Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public employment.56. It is made clear that person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand, but will not be entitled to claim benefit of reservation simultaneously in both the successor States and those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa.57. We are of the view that the present appellant Pankaj Kumar in Civil Appeal @ SLP (Civil) No.13473 of 2020, being a serving employee in the State of Jharkhand by virtue of Section 73 of the Act 2000, would be entitled to claim the benefit of reservation including the privileges and benefits admissible to the members of Scheduled Caste category in the State of Jharkhand for all practical purposes including participation in open competition seeking public employment.17. As has been clarified in the decision in Pankaj Kumar 2021 (9) SCALE 576, such of the employees who opt for service under a successor State after reorganization, their existing service conditions would not be varied to their disadvantage and would stand protected by virtue of Section 73 of the Act. Further, subject to the condition that such person would not be entitled to claim the benefit of reservation simultaneously in both the successor States, such employees would be entitled to claim not only the benefit of reservation in the service of the successor State to which they had opted and were allocated, but they would also be entitled to participate in any subsequent open competition with the benefit of reservation.18. It must be stated that the decision in Pankaj Kumar 2021 (9) SCALE 576 was rendered by this Court on 19.8.2021, while the judgment presently under challenge was delivered by the High Court on 12.5.2021. The High Court thus did not have the benefit of the decision of this Court. The law having been settled in Pankaj Kumar 2021 (9) SCALE 576, the judgment under appeal has to be read in light of the decision in Pankaj Kumar 2021 (9) SCALE 576. It would therefore be immaterial whether or not the nature of limited departmental examination is to be taken as direct recruitment, as found by the Division Bench of the High Court.20. By very nature, the promotion to the next higher level is from and amongst those who are at a lower level in the service. The avenue of promotion is not available to persons from the open market, which talent is to be garnered through direct recruitment. The promotion as a channel to reach the higher level is only available to the persons already belonging to the service. In normal circumstances, the promotion would go by the concept of merit linked with seniority subject to suitability. In order to encourage meritorious candidates who may be comparatively junior in service, a window of opportunity is opened through limited departmental examination. Those who pass the examination are entitled to have an accelerated promotion. This process does not change the character of movement to the higher post and it continues to be a promotional channel. The Single Judge of the High Court was therefore right in allowing the writ petition. The underlined portion from the order passed by the Single Judge shows that the matter was considered in the correct perspective. The Division Bench of the High Court was not justified in concluding that limited departmental examination was nothing but direct recruitment from the open market.22. In the instant case and in the case of Pankaj Kumar 2021 (9) SCALE 576, the appellants belonged to a particular community or tribe which was specified in the erstwhile State of Bihar as Scheduled Castes/ Scheduled Tribes when they entered public service in the erstwhile State of Bihar. The appellants in both the cases were allocated to the service under State of Jharkhand though they belonged to the areas which after re-organization are now part of the successor State of Bihar. By virtue of Sections 73 and 74 of the Act, they could certainly claim benefit in the service under the newly carved State of Jharkhand. On the strength of the view taken in Pankaj Kumar 2021 (9) SCALE 576, the entitlement in a fresh service in State of Jharkhand as well as in accordance with the view taken by us in the instant case, the entitlement in the limited departmental examination in State of Jharkhand is definitely made out. The basis for their entitlement is primarily because of Sections 73 and 74 of the Act. It is quite possible that the progeny of such persons may have stayed back or may later decide to go back to their roots, that is to say, to the area which now falls in the newly carved State of Bihar; and since their lineage is from that area and the State, they may contend that they are entitled to benefits of reservation in the newly carved State of Bihar in relation to which State, the community that they belong, is a Scheduled Caste/ Scheduled Tribe. Paragraph 55 of the decision in Pankaj Kumar 2021 (9) SCALE 576 is capable of being read as conferring entitlement on the wards or the progeny of the appellants in State of Jharkhand alone where in contradistinction to their lineage, they can claim to have connection only through their parent(s) and the effect of the provisions of the Act.23. It must be stated that the entitlement of the progeny or the wards of the appellant in State of Jharkhand had not strictly arisen for consideration in Pankaj Kumar 2021 (9) SCALE 576. In our view, the issue, if any, can and must be gone into in detail in an appropriate case.
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State of Madhya Pradesh and Others Vs. Galla Tilhan Vyapari Sangh and Others | FAZAL ALI, J. 1. In this appeal by special leave, on an application filed by the respondents before the High Court of Madhya Pradesh, the High Court struck down the constitutional validity of sub-s. (5) (a) of s. 37 of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 --hereinafter referred to as the Act--(No. 24 of 1973). The impugned sub-section runs as follows:"(5) Every commission agent shall be liable-- (a) to keep the goods of his principal in safe custody without any charge other than the commission payable to him; and" 2. The High Court thought that this statutory provision places unreasonable restriction on the commission agent and puts great burden on him for storing the goods given to him by the principal without charging the commission for its safe custody. The Act is a social piece Of legislation and should have been liberally construed so as to advance the object of the Act and fulfil the aims to be achieved there- by. The main purpose of the Act is to secure a scientific method of storage, sale, distribution and marketing of agricultural produce and cut out as far as possible middle mans profit. The Act, therefore, contains provisions of a beneficial nature preventing profiteering tendencies. It is not, however, the hardship that can be termed unreasonable so as to make a statute unconstitutional. Moreover, the High Court does not appear to have looked to. the scheme of the Act and has in fact completely overlooked the provisions of s. 37(4) which runs as follows:"(4) The commission agent shall recover his commission only from his principal trader at such rate s as may be specified in the bye- laws including all such expenses as may be incurred by him in storage of the produce and other services rendered by him." 3. This section clearly empowers the commission agent to charge such rates as may be specified by the bye-laws even for the storage of the Produce and other services rendered by him. This provision also does not prevent the commission agent from levying reasonable charges for the storage over and above his commission. All that the Act prevents is that the commission agent is prohibited from levying any charges for safe custody from the farmer or the principal. This is done in order to attract and lure the farmers to place their goods with commission agents without additional payment of charges for safe custody. Section 37 (4), however, compen- sates the commission agent by authorising him to charge his commission and all expenses which may be incurred by the commission agent in connection with the storage of the produce and the services rendered by him. This section, therefore , clearly authorises the commission agent not only to charge his commission from the principal trader but also expenses incurred by him for the purpose of the storage. That apart s. 2(e) of the Act which defines a "Commission agent" empowers him to charge any commission or percentage upon the amount involved in such transaction. 4. | 1[ds]This section clearly empowers the commission agent to charge such rates as may be specified by the bye-laws even for the storage of the Produce and other services rendered by him. This provision also does not prevent the commission agent from levying reasonable charges for the storage over and above his commission. All that the Act prevents is that the commission agent is prohibited from levying any charges for safe custody from the farmer or the principal. This is done in order to attract and lure the farmers to place their goods with commission agents without additional payment of charges for safe custody. Section 37 (4), however, compen- sates the commission agent by authorising him to charge his commission and all expenses which may be incurred by the commission agent in connection with the storage of the produce and the services rendered by him. This section, therefore , clearly authorises the commission agent not only to charge his commission from the principal trader but also expenses incurred by him for the purpose of the storage. That apart s. 2(e) of the Act which defines a "Commission agent" empowers him to charge any commission or percentage upon the amount involved in such transaction. | 1 | 574 | 223 | ### 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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FAZAL ALI, J. 1. In this appeal by special leave, on an application filed by the respondents before the High Court of Madhya Pradesh, the High Court struck down the constitutional validity of sub-s. (5) (a) of s. 37 of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 --hereinafter referred to as the Act--(No. 24 of 1973). The impugned sub-section runs as follows:"(5) Every commission agent shall be liable-- (a) to keep the goods of his principal in safe custody without any charge other than the commission payable to him; and" 2. The High Court thought that this statutory provision places unreasonable restriction on the commission agent and puts great burden on him for storing the goods given to him by the principal without charging the commission for its safe custody. The Act is a social piece Of legislation and should have been liberally construed so as to advance the object of the Act and fulfil the aims to be achieved there- by. The main purpose of the Act is to secure a scientific method of storage, sale, distribution and marketing of agricultural produce and cut out as far as possible middle mans profit. The Act, therefore, contains provisions of a beneficial nature preventing profiteering tendencies. It is not, however, the hardship that can be termed unreasonable so as to make a statute unconstitutional. Moreover, the High Court does not appear to have looked to. the scheme of the Act and has in fact completely overlooked the provisions of s. 37(4) which runs as follows:"(4) The commission agent shall recover his commission only from his principal trader at such rate s as may be specified in the bye- laws including all such expenses as may be incurred by him in storage of the produce and other services rendered by him." 3. This section clearly empowers the commission agent to charge such rates as may be specified by the bye-laws even for the storage of the Produce and other services rendered by him. This provision also does not prevent the commission agent from levying reasonable charges for the storage over and above his commission. All that the Act prevents is that the commission agent is prohibited from levying any charges for safe custody from the farmer or the principal. This is done in order to attract and lure the farmers to place their goods with commission agents without additional payment of charges for safe custody. Section 37 (4), however, compen- sates the commission agent by authorising him to charge his commission and all expenses which may be incurred by the commission agent in connection with the storage of the produce and the services rendered by him. This section, therefore , clearly authorises the commission agent not only to charge his commission from the principal trader but also expenses incurred by him for the purpose of the storage. That apart s. 2(e) of the Act which defines a "Commission agent" empowers him to charge any commission or percentage upon the amount involved in such transaction. 4.
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1
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This section clearly empowers the commission agent to charge such rates as may be specified by the bye-laws even for the storage of the Produce and other services rendered by him. This provision also does not prevent the commission agent from levying reasonable charges for the storage over and above his commission. All that the Act prevents is that the commission agent is prohibited from levying any charges for safe custody from the farmer or the principal. This is done in order to attract and lure the farmers to place their goods with commission agents without additional payment of charges for safe custody. Section 37 (4), however, compen- sates the commission agent by authorising him to charge his commission and all expenses which may be incurred by the commission agent in connection with the storage of the produce and the services rendered by him. This section, therefore , clearly authorises the commission agent not only to charge his commission from the principal trader but also expenses incurred by him for the purpose of the storage. That apart s. 2(e) of the Act which defines a "Commission agent" empowers him to charge any commission or percentage upon the amount involved in such transaction.
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Anjani Molu Dessai Vs. State Of Goa | sales. Further the award of the Collector specifically states that the land sold under sale deed dated 30.8.1989 is a similar land, that is, a bharad land at a distance of 200 meter. Significantly there is no such finding that the subject matter of the second sale dated 31.1.1990 which was one kilometer away, was a similarly situated land. The sale deed dated 31.1.1990 should therefore be inferred to be either an undervalued sale or a distress sale or at all events not a comparable sale. The Land Acquisition Collector was not therefore justified in averaging the sale prices of the two sale deeds. Once it is found that the first sale deed was in regard to a comparable land and the second sale deed was not in regard to a comparable land, the second sale deed dated 31.1.1990 ought to have been excluded from consideration. 13. The legal position is that even where there are several exemplars with reference to similar lands, usually the highest of the exemplars, which is a bona fide transaction, will be considered. Where however there are several sales of similar lands whose prices range in a narrow bandwidth, the average thereof can be taken, as representing the market price. But where the values disclosed in respect of two sales are markedly different, it can only lead to an inference that they are with reference to dissimilar lands or that the lower value sale is on account of under-valuation or other price depressing reasons. Consequently averaging can not be resorted to. We may refer to two decisions of this Court in this behalf. 13.1) In Sri Rani M. Vijayalakshmanna Rao Bahadur, Ranee of Vuyyur Vs. The Collector of Madras, 1969 (1) MLJ 45 , a three Judge Bench of this Court observed that the proper method for evaluation of market value is by taking the highest of the exemplars and not by averaging of different types of sale transactions. This Court held: "It seems to us that there is substance in the first contention of Mr.Ram Reddy. After all, when the land is being compulsorily taken away from a person, he is entitled to say that he should be given the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. It is not disputed that the transaction represented by Exhibit R-19 was a few months prior to the notification under section 4, that it was a bona fide transaction and that it was entered into between a willing purchaser and a willing seller. The land comprised in the sale deed is 11 grounds and was sold at Rs.1,961 per ground. The land covered by Exhibit-27 was also sold before the notification, but after the land comprised in Exhibit R-19 was sold. It is true that this land was sold at Rs.1,096/- per ground. This, however, is apparently because of two circumstances. One is that betterment levy at Rs.500 per ground had to be paid by the vendee and the other that the land comprised in it is very much more extensive, that is about 93 grounds or so. Whatever that may be, it seems to us to be only fair that where sale deed, pertaining to different transactions are relied on behalf of the Government, that representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. In any case we see no reason why an average of two sale deeds should have been taken in this case." 13.2) In State of Punjab Vs. Hans Raj (1994) 5 SCC 734 , this court held: "Having given our anxious consideration to the respective contentions, we are of the considered view that the learned single Judge of the High Court committed a grave error in working out average price paid under the sale transactions to determine the market value of the acquired land on that basis. As the method of averaging the prices fetched by sales of different lands of different kinds at different times, for fixing the market value of the acquired land, if followed, could bring about a figure of price which may not at all be regarded as the price to be fetched by sale of acquired land. One should not have, ordinarily recourse to such method. It is well settled that genuine and bona fide sale transactions in respect of the land under acquisition or in its absence the bona fide sale transactions proximate to the point of acquisition of the lands situated in the neighbourhood of the acquired lands possessing similar value or utility taken place between a willing vendee and the willing vendor which could be expected to reflect the true value, as agreed between reasonable prudent persons acting in the normal market conditions are the real basis to determine the market value." Therefore, we are of the view that the averaging of the prices under the two Sale Deeds was not justified. The Sale Deed dated 31.1.1990 ought to have been excluded for the reasons stated above. That means compensation for the acquired lands had to be fixed only with reference to the Sale Deed dated 30.8.1989 relied upon by the Land Acquisition Collector which will be Rs.57.50 per sq.m. As the said market value has been fixed with reference to comparable bharad land with fruit trees, the question of again separately awarding any compensation for the trees situated in the acquired land does not arise. 14. The Land Acquisition Collector had valued the trees at Rs.6/- per sq.m. to arrive at the value of the lands without trees. On that basis the market value of paddy land situated amidst the bharad land can be arrived at by deducting Rs.6/- per sq.m. In the absence of any other evidence, we fix the said rate for paddy land on that basis, that is, Rs.51.50 per sq.m. Conclusion | 1[ds]Therefore, we are of the view that the averaging of the prices under the two Sale Deeds was not justified. The Sale Deed dated 31.1.1990 ought to have been excluded for the reasons stated above. That means compensation for the acquired lands had to be fixed only with reference to the Sale Deed dated 30.8.1989 relied upon by the Land Acquisition Collector which will be Rs.57.50 per sq.m. As the said market value has been fixed with reference to comparable bharad land with fruit trees, the question of again separately awarding any compensation for the trees situated in the acquired land does not arise | 1 | 3,388 | 113 | ### 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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sales. Further the award of the Collector specifically states that the land sold under sale deed dated 30.8.1989 is a similar land, that is, a bharad land at a distance of 200 meter. Significantly there is no such finding that the subject matter of the second sale dated 31.1.1990 which was one kilometer away, was a similarly situated land. The sale deed dated 31.1.1990 should therefore be inferred to be either an undervalued sale or a distress sale or at all events not a comparable sale. The Land Acquisition Collector was not therefore justified in averaging the sale prices of the two sale deeds. Once it is found that the first sale deed was in regard to a comparable land and the second sale deed was not in regard to a comparable land, the second sale deed dated 31.1.1990 ought to have been excluded from consideration. 13. The legal position is that even where there are several exemplars with reference to similar lands, usually the highest of the exemplars, which is a bona fide transaction, will be considered. Where however there are several sales of similar lands whose prices range in a narrow bandwidth, the average thereof can be taken, as representing the market price. But where the values disclosed in respect of two sales are markedly different, it can only lead to an inference that they are with reference to dissimilar lands or that the lower value sale is on account of under-valuation or other price depressing reasons. Consequently averaging can not be resorted to. We may refer to two decisions of this Court in this behalf. 13.1) In Sri Rani M. Vijayalakshmanna Rao Bahadur, Ranee of Vuyyur Vs. The Collector of Madras, 1969 (1) MLJ 45 , a three Judge Bench of this Court observed that the proper method for evaluation of market value is by taking the highest of the exemplars and not by averaging of different types of sale transactions. This Court held: "It seems to us that there is substance in the first contention of Mr.Ram Reddy. After all, when the land is being compulsorily taken away from a person, he is entitled to say that he should be given the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. It is not disputed that the transaction represented by Exhibit R-19 was a few months prior to the notification under section 4, that it was a bona fide transaction and that it was entered into between a willing purchaser and a willing seller. The land comprised in the sale deed is 11 grounds and was sold at Rs.1,961 per ground. The land covered by Exhibit-27 was also sold before the notification, but after the land comprised in Exhibit R-19 was sold. It is true that this land was sold at Rs.1,096/- per ground. This, however, is apparently because of two circumstances. One is that betterment levy at Rs.500 per ground had to be paid by the vendee and the other that the land comprised in it is very much more extensive, that is about 93 grounds or so. Whatever that may be, it seems to us to be only fair that where sale deed, pertaining to different transactions are relied on behalf of the Government, that representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. In any case we see no reason why an average of two sale deeds should have been taken in this case." 13.2) In State of Punjab Vs. Hans Raj (1994) 5 SCC 734 , this court held: "Having given our anxious consideration to the respective contentions, we are of the considered view that the learned single Judge of the High Court committed a grave error in working out average price paid under the sale transactions to determine the market value of the acquired land on that basis. As the method of averaging the prices fetched by sales of different lands of different kinds at different times, for fixing the market value of the acquired land, if followed, could bring about a figure of price which may not at all be regarded as the price to be fetched by sale of acquired land. One should not have, ordinarily recourse to such method. It is well settled that genuine and bona fide sale transactions in respect of the land under acquisition or in its absence the bona fide sale transactions proximate to the point of acquisition of the lands situated in the neighbourhood of the acquired lands possessing similar value or utility taken place between a willing vendee and the willing vendor which could be expected to reflect the true value, as agreed between reasonable prudent persons acting in the normal market conditions are the real basis to determine the market value." Therefore, we are of the view that the averaging of the prices under the two Sale Deeds was not justified. The Sale Deed dated 31.1.1990 ought to have been excluded for the reasons stated above. That means compensation for the acquired lands had to be fixed only with reference to the Sale Deed dated 30.8.1989 relied upon by the Land Acquisition Collector which will be Rs.57.50 per sq.m. As the said market value has been fixed with reference to comparable bharad land with fruit trees, the question of again separately awarding any compensation for the trees situated in the acquired land does not arise. 14. The Land Acquisition Collector had valued the trees at Rs.6/- per sq.m. to arrive at the value of the lands without trees. On that basis the market value of paddy land situated amidst the bharad land can be arrived at by deducting Rs.6/- per sq.m. In the absence of any other evidence, we fix the said rate for paddy land on that basis, that is, Rs.51.50 per sq.m. Conclusion
### Response:
1
### Explanation:
Therefore, we are of the view that the averaging of the prices under the two Sale Deeds was not justified. The Sale Deed dated 31.1.1990 ought to have been excluded for the reasons stated above. That means compensation for the acquired lands had to be fixed only with reference to the Sale Deed dated 30.8.1989 relied upon by the Land Acquisition Collector which will be Rs.57.50 per sq.m. As the said market value has been fixed with reference to comparable bharad land with fruit trees, the question of again separately awarding any compensation for the trees situated in the acquired land does not arise
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Savanth (K.) Vs. Mysore Road Transport Corporation & Anr | scale at Rs. 190/-. Dissatisfied with this fixation, the appellant made a representation to the management urging that his initial pay in the revised scale ought to have been fixed at Rs. 220/- and that it had been wrongly fixed at Rs. 190/-. 4. On August 1, 1961, a Corporation styled as the Mysore State Road Transport Corporation (hereinafter referred to as the Corporation) was constituted under section 3 of the Road Trans port Corporation Act (Act 34 of 1951). By virtue of a notification issued by the Government of Mysore Under section 34 of the Act, the Corporation took over the business of the, Transport Department together with all its liabilities as the sole successor of the Department. In view of the fact that the said notification protected the service conditions of the employees of the erstwhile Transport Department, the appellant opted for service under the Corporation and kept on pursuing the earlier representation made by him for fixation of his initial pay as on April 1, 1957 at Rs. 220/- in terms of the first part of sub-clause (c) of clause 4 of the Industrial Truce Agreement. The efforts made by him in t his behalf having proved ineffective, the appellant made an application on December 2O, 1965 before the Labour Court under section 330(2) of the Industrial Disputes Act, 1947 claiming that his initial pay as on 1, 1957 had been wrongly fixed by the management of the Transport Department at Rs. 190/- as against Rs. 220/to which he was entitled by virtue of clause 4 of the Industrial Truce Agreement. The appellant also claimed increase in his dearness allowance in terms of the said agreement. Holding that the appellants pay had to be fixed at Rs. 220/-P.M. in the pay scale of Rs. 175-15325 with a dearness allowance of Rs. 50/- P.M. as on April 1, 1957, the Labour Court by its order dated September 30, 1966 allowed the claim of the appellant and directed the Corporation to pay him a sum of Rs. 3, 345.29 p. on account of the benefit claimed by him. The Order was challenged by the Corporation before the High Court of Mysore by means of a writ petition under Articles 226 and 227 of the Constitution. By its aforesaid judgment and order dated December 14, 1970, the High Court allowed the petition and held that the erstwhile management of the Transport Department was right in fixing the initial pay of the appellant at- Rs. 190/-. It is against this judgment and order that the appellant has come up in appeal to this Court by special leave, as already stated.In the absence of the appellant who has chosen not to appear despite service, the learned Attorney General has taken us through the material on the record and has urged that the High Court was right in reversing the order of the Labour Court and upholding the contention of the Corporation that the initial pay of the appellant could be fixed only at Rs. 190/- and not at Rs. 220/- as claimed by the appellant. 5. We have given our careful consideration to the submissions made by the learned Attorney General but are unable to agree with him. 6. A plain reading of clause 4 of the Industrial Truce Agreement reproduced above makes it crystal clear that the pay of the appellant as on April 1, 1957 in the then existing scale of Rs. 150-10-200 being admittedly Rs. 150/- i.e. less than the minimum pay of the revised scale of Rs. 1 75-15-325, it had, according to clause 4(a) of the agreement, to be fixed at Rs. 175/- which is the minimum of the aforementioned revised scale. Now the appellant having put in more than six years service and his case being clearly outsi de the pale of the prohibition envisaged by the first part of sub-clause (c) of clause 4 of the Agreement, he had to be granted the benefit of three advance increments in terms of the formula contained in sub-clause (b) of clause 4 of the Agreement which would take his initial pay to Rs. 220/-. The second part of sub-clause (c) of clause 4 of the Agreement which is heavily relied upon on behalf of the Corporation has no applicability to the present case as that part would operate only in those cases which fall within the prohibition contemplated by the first part of sub-clause (c) of clause 4 i.e. where the increase in the minimum pay in the revised scale over the pay in the scale which existed on April 1, 1957 exceeds Rs. 25/- plus one increment in the new scale i.e. if it exceeds Rs. 25/- plus Rs. 15/- totalling Rs. 40/-. As in the instant case the increase of the minimum pay in the new scale does not exceed Rs. 40/-, the second part of sub-clause (c) of clause 4 which is residuary cannot be invoked by the Corporation. The High Court was, therefore, patently in error in holding that the case of the appellant was covered not by the first part of sub clause (c) of clause 4 but by the second part thereof. I n so holding, it Obviously overlooked the significance of the words "in other cases" occurring at the commencement of the second part of sub-clause (c) of clause 4. The said words make it abundantly clear that it is only where a case does not fall within the purview of the first part of sub clause (c) of clause 4 that it would be governed by the second part of the sub-clause. As the case of the appellant was not covered by the ban imposed by the first part of sub-clause (c) of clause 4 of the Industrial Truce Agreement, he could not have been denied the benefit , of the advance increments which accrued to him under sub-clause (b) thereof. Accordingly, the order of the High Court which suffers from a patent error cannot be sustained. 7. In | 1[ds]A plain reading of clause 4 of the Industrial Truce Agreement reproduced above makes it crystal clear that the pay of the appellant as on April 1, 1957 in the then existing scale ofRs.150-10-200 being admittedlyRs.150/- i.e. less than the minimum pay of the revised scale ofRs.1 75-15-325, it had, according to clause 4(a) of the agreement, to be fixed atRs.175/- which is the minimum of the aforementioned revised scale. Now the appellant having put in more than six years service and his case being clearly outsi de the pale of the prohibition envisaged by the first part of sub-clause (c) of clause 4 of the Agreement, he had to be granted the benefit of three advance increments in terms of the formula contained in sub-clause (b) of clause 4 of the Agreement which would take his initial pay toRs.220/-. The second part of sub-clause (c) of clause 4 of the Agreement which is heavily relied upon on behalf of the Corporation has no applicability to the present case as that part would operate only in those cases which fall within the prohibition contemplated by the first part of sub-clause (c) of clause 4 i.e. where the increase in the minimum pay in the revised scale over the pay in the scale which existed on April 1, 1957 exceedsRs.25/- plus one increment in the new scale i.e. if it exceedsRs.25/- plusRs.15/- totallingRs.40/-. As in the instant case the increase of the minimum pay in the new scale does not exceedRs.40/-, the second part of sub-clause (c) of clause 4 which is residuary cannot be invoked by the Corporation. The High Court was, therefore, patently in error in holding that the case of the appellant was covered not by the first part of sub clause (c) of clause 4 but by the second part thereof. I n so holding, it Obviously overlooked the significance of the words "in other cases" occurring at the commencement of the second part of sub-clause (c) of clause 4. The said words make it abundantly clear that it is only where a case does not fall within the purview of the first part of sub clause (c) of clause 4 that it would be governed by the second part of the sub-clause. As the case of the appellant was not covered by the ban imposed by the first part of sub-clause (c) of clause 4 of the Industrial Truce Agreement, he could not have been denied the benefit , of the advance increments which accrued to him under sub-clause (b) thereof. Accordingly, the order of the High Court which suffers from a patent error cannot ben the result, we allow the appeal, set aside the judgment and order of the High Court and restore that of the Labour CourtA plain reading of clause 4 of the Industrial Truce Agreement reproduced above makes it crystal clear that the pay of the appellant as on April 1, 1957 in the then existing scale ofRs.150-10-200 being admittedlyRs.150/- i.e. less than the minimum pay of the revised scale ofRs.1 75-15-325, it had, according to clause 4(a) of the agreement, to be fixed atRs.175/- which is the minimum of the aforementioned revised scale. Now the appellant having put in more than six years service and his case being clearly outsi de the pale of the prohibition envisaged by the first part of sub-clause (c) of clause 4 of the Agreement, he had to be granted the benefit of three advance increments in terms of the formula contained in sub-clause (b) of clause 4 of the Agreement which would take his initial pay toRs.220/-. The second part of sub-clause (c) of clause 4 of the Agreement which is heavily relied upon on behalf of the Corporation has no applicability to the present case as that part would operate only in those cases which fall within the prohibition contemplated by the first part of sub-clause (c) of clause 4 i.e. where the increase in the minimum pay in the revised scale over the pay in the scale which existed on April 1, 1957 exceedsRs.25/- plusone increment in the new scale i.e. if it exceedsRs.25/- plusRs.15/- totallingRs.40/-. As in the instant case the increase of the minimum pay in the new scale does not exceedRs.We have given our careful consideration to the submissions made by the learned Attorney General but are unable to agree with him. | 1 | 2,044 | 812 | ### 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:
scale at Rs. 190/-. Dissatisfied with this fixation, the appellant made a representation to the management urging that his initial pay in the revised scale ought to have been fixed at Rs. 220/- and that it had been wrongly fixed at Rs. 190/-. 4. On August 1, 1961, a Corporation styled as the Mysore State Road Transport Corporation (hereinafter referred to as the Corporation) was constituted under section 3 of the Road Trans port Corporation Act (Act 34 of 1951). By virtue of a notification issued by the Government of Mysore Under section 34 of the Act, the Corporation took over the business of the, Transport Department together with all its liabilities as the sole successor of the Department. In view of the fact that the said notification protected the service conditions of the employees of the erstwhile Transport Department, the appellant opted for service under the Corporation and kept on pursuing the earlier representation made by him for fixation of his initial pay as on April 1, 1957 at Rs. 220/- in terms of the first part of sub-clause (c) of clause 4 of the Industrial Truce Agreement. The efforts made by him in t his behalf having proved ineffective, the appellant made an application on December 2O, 1965 before the Labour Court under section 330(2) of the Industrial Disputes Act, 1947 claiming that his initial pay as on 1, 1957 had been wrongly fixed by the management of the Transport Department at Rs. 190/- as against Rs. 220/to which he was entitled by virtue of clause 4 of the Industrial Truce Agreement. The appellant also claimed increase in his dearness allowance in terms of the said agreement. Holding that the appellants pay had to be fixed at Rs. 220/-P.M. in the pay scale of Rs. 175-15325 with a dearness allowance of Rs. 50/- P.M. as on April 1, 1957, the Labour Court by its order dated September 30, 1966 allowed the claim of the appellant and directed the Corporation to pay him a sum of Rs. 3, 345.29 p. on account of the benefit claimed by him. The Order was challenged by the Corporation before the High Court of Mysore by means of a writ petition under Articles 226 and 227 of the Constitution. By its aforesaid judgment and order dated December 14, 1970, the High Court allowed the petition and held that the erstwhile management of the Transport Department was right in fixing the initial pay of the appellant at- Rs. 190/-. It is against this judgment and order that the appellant has come up in appeal to this Court by special leave, as already stated.In the absence of the appellant who has chosen not to appear despite service, the learned Attorney General has taken us through the material on the record and has urged that the High Court was right in reversing the order of the Labour Court and upholding the contention of the Corporation that the initial pay of the appellant could be fixed only at Rs. 190/- and not at Rs. 220/- as claimed by the appellant. 5. We have given our careful consideration to the submissions made by the learned Attorney General but are unable to agree with him. 6. A plain reading of clause 4 of the Industrial Truce Agreement reproduced above makes it crystal clear that the pay of the appellant as on April 1, 1957 in the then existing scale of Rs. 150-10-200 being admittedly Rs. 150/- i.e. less than the minimum pay of the revised scale of Rs. 1 75-15-325, it had, according to clause 4(a) of the agreement, to be fixed at Rs. 175/- which is the minimum of the aforementioned revised scale. Now the appellant having put in more than six years service and his case being clearly outsi de the pale of the prohibition envisaged by the first part of sub-clause (c) of clause 4 of the Agreement, he had to be granted the benefit of three advance increments in terms of the formula contained in sub-clause (b) of clause 4 of the Agreement which would take his initial pay to Rs. 220/-. The second part of sub-clause (c) of clause 4 of the Agreement which is heavily relied upon on behalf of the Corporation has no applicability to the present case as that part would operate only in those cases which fall within the prohibition contemplated by the first part of sub-clause (c) of clause 4 i.e. where the increase in the minimum pay in the revised scale over the pay in the scale which existed on April 1, 1957 exceeds Rs. 25/- plus one increment in the new scale i.e. if it exceeds Rs. 25/- plus Rs. 15/- totalling Rs. 40/-. As in the instant case the increase of the minimum pay in the new scale does not exceed Rs. 40/-, the second part of sub-clause (c) of clause 4 which is residuary cannot be invoked by the Corporation. The High Court was, therefore, patently in error in holding that the case of the appellant was covered not by the first part of sub clause (c) of clause 4 but by the second part thereof. I n so holding, it Obviously overlooked the significance of the words "in other cases" occurring at the commencement of the second part of sub-clause (c) of clause 4. The said words make it abundantly clear that it is only where a case does not fall within the purview of the first part of sub clause (c) of clause 4 that it would be governed by the second part of the sub-clause. As the case of the appellant was not covered by the ban imposed by the first part of sub-clause (c) of clause 4 of the Industrial Truce Agreement, he could not have been denied the benefit , of the advance increments which accrued to him under sub-clause (b) thereof. Accordingly, the order of the High Court which suffers from a patent error cannot be sustained. 7. In
### Response:
1
### Explanation:
A plain reading of clause 4 of the Industrial Truce Agreement reproduced above makes it crystal clear that the pay of the appellant as on April 1, 1957 in the then existing scale ofRs.150-10-200 being admittedlyRs.150/- i.e. less than the minimum pay of the revised scale ofRs.1 75-15-325, it had, according to clause 4(a) of the agreement, to be fixed atRs.175/- which is the minimum of the aforementioned revised scale. Now the appellant having put in more than six years service and his case being clearly outsi de the pale of the prohibition envisaged by the first part of sub-clause (c) of clause 4 of the Agreement, he had to be granted the benefit of three advance increments in terms of the formula contained in sub-clause (b) of clause 4 of the Agreement which would take his initial pay toRs.220/-. The second part of sub-clause (c) of clause 4 of the Agreement which is heavily relied upon on behalf of the Corporation has no applicability to the present case as that part would operate only in those cases which fall within the prohibition contemplated by the first part of sub-clause (c) of clause 4 i.e. where the increase in the minimum pay in the revised scale over the pay in the scale which existed on April 1, 1957 exceedsRs.25/- plus one increment in the new scale i.e. if it exceedsRs.25/- plusRs.15/- totallingRs.40/-. As in the instant case the increase of the minimum pay in the new scale does not exceedRs.40/-, the second part of sub-clause (c) of clause 4 which is residuary cannot be invoked by the Corporation. The High Court was, therefore, patently in error in holding that the case of the appellant was covered not by the first part of sub clause (c) of clause 4 but by the second part thereof. I n so holding, it Obviously overlooked the significance of the words "in other cases" occurring at the commencement of the second part of sub-clause (c) of clause 4. The said words make it abundantly clear that it is only where a case does not fall within the purview of the first part of sub clause (c) of clause 4 that it would be governed by the second part of the sub-clause. As the case of the appellant was not covered by the ban imposed by the first part of sub-clause (c) of clause 4 of the Industrial Truce Agreement, he could not have been denied the benefit , of the advance increments which accrued to him under sub-clause (b) thereof. Accordingly, the order of the High Court which suffers from a patent error cannot ben the result, we allow the appeal, set aside the judgment and order of the High Court and restore that of the Labour CourtA plain reading of clause 4 of the Industrial Truce Agreement reproduced above makes it crystal clear that the pay of the appellant as on April 1, 1957 in the then existing scale ofRs.150-10-200 being admittedlyRs.150/- i.e. less than the minimum pay of the revised scale ofRs.1 75-15-325, it had, according to clause 4(a) of the agreement, to be fixed atRs.175/- which is the minimum of the aforementioned revised scale. Now the appellant having put in more than six years service and his case being clearly outsi de the pale of the prohibition envisaged by the first part of sub-clause (c) of clause 4 of the Agreement, he had to be granted the benefit of three advance increments in terms of the formula contained in sub-clause (b) of clause 4 of the Agreement which would take his initial pay toRs.220/-. The second part of sub-clause (c) of clause 4 of the Agreement which is heavily relied upon on behalf of the Corporation has no applicability to the present case as that part would operate only in those cases which fall within the prohibition contemplated by the first part of sub-clause (c) of clause 4 i.e. where the increase in the minimum pay in the revised scale over the pay in the scale which existed on April 1, 1957 exceedsRs.25/- plusone increment in the new scale i.e. if it exceedsRs.25/- plusRs.15/- totallingRs.40/-. As in the instant case the increase of the minimum pay in the new scale does not exceedRs.We have given our careful consideration to the submissions made by the learned Attorney General but are unable to agree with him.
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Siliguri Municipality & Others Vs. Amalendu Das & Others | SEN, J.1. This appeal by special leave is directed against an interlocutory order dated August 25, 1983 passed by the Calcutta High Court restraining t he Siliguri Municipality, the appellant herein, from recovering a graduated consolidated rate on the annual value of the holdings in terms of the amended provisions in ss. 123 and 124 of the Bengal Municipal Act, 1932, as amended by the Bengal Municipal (Amendment) Act, 1980.2. We are constrained to make the observations which follows as we do feel dismayed at the tendency on the part of some of the High Court to grant interlocutory orders for the mere asking. Normally, the High Courts should not, as a rule, in proceedings under Art. 226 of the Constitution grant any stay of recovery of tax save under very exceptional circumstances. The grant of stay in such matters, should be an exception and not a rule.3. It is needless to stress that a levy or impost does not become bad as soon as a writ petition is instituted in order to assail the validity of the levy. So also there is no warrant for presuming the levy to be bad at the very threshold of the proceedings. The only consideration at that juncture is to ensure that no prejudice is occasioned to the rate payers in case they ultimately succeed at the conclusion of the proceedings. This object can be attained by requiring the body or authority levying the impost to give an undertaking to refund or adjust against future dues, the levy of tax or rate or a part thereof, as the case may be, in the event of the entire levy or a part thereof being ultimately held to be inv alid by the Court without obliging the tax-payers to institute a civil suit in order to claim the amount already recovered from them. On the other hand, the Court cannot be unmindful of the need to protect the authority levying the tax, for, at that stage the Court has to proceed on the hypothesis that the challenge may or may not succeed. The Court has to show awareness of the fact that in a case like the present a municipality cannot function or meet its financial obligations if its source of revenue is blocked by an interim order restraining the municipality from recovering the taxes as per the impugned provision. And that the municipality has to maintain essential civic services like water supply, street lighting a nd public streets etc., apart from running public institutions like schools, dispensaries, libraries etc. What is more, supplies have to he purchased and salaries have to be paid. The grant of an interlocutory order of this nature would paralyze the administration and dislocate the entire working of the municipality. It seems that these serious ramifications of the matter were lost sight of while making the impugned order.We will be failing in our duty if we do not advert to a feature which causes us dismay and distress. On a previous occasion, a Division Bench had vacated an interim order passed by a learned Single Judge on similar facts in a similar situation. Even so when a similar matter giving rise to the present appeal ca me up again, the same learned Judge whose order had been reversed earlier, granted a non-speaking interlocutory order of the aforesaid nature. This order was in turn confirmed by a Division Bench without a speaking order articulating reasons for granting a stay when the earlier Bench had vacated the stay. We mean no disrespect to the High Court in emphasizing the necessity for sell-imposed discipline in such matters in obeisance to such weighty institutional considerations like the need t o maintain decorum and comity. So also we mean no disrespect to the High Court in stressing the need for self-discipline on the part of the High Court in passing interim orders without entering into the question of amplitude and width of the powers of the High Court to grant interim relief. The main purpose of passing an interim order is to evolve a workable formula or a workable arrangement to the extent called for by the demands of the situation keeping in mind the presumption regarding the constitutionality of the legislation and the vulnerability of the challenge, only in order that no irreparable injury in occasioned. The Court has therefore to strike a delicate balance after considering the pros and cons of the matter last larger public interest is not jeopardized and institutional embarrassment is eschewed.4 | 1[ds]It is needless to stress that a levy or impost does not become bad as soon as a writ petition is instituted in order to assail the validity of the levy. So also there is no warrant for presuming the levy to be bad at the very threshold of the proceedings. The only consideration at that juncture is to ensure that no prejudice is occasioned to the rate payers in case they ultimately succeed at the conclusion of the proceedings. This object can be attained by requiring the body or authority levying the impost to give an undertaking to refund or adjust against future dues, the levy of tax or rate or a part thereof, as the case may be, in the event of the entire levy or a part thereof being ultimately held to be inv alid by the Court without obliging the tax-payers to institute a civil suit in order to claim the amount already recovered from them. On the other hand, the Court cannot be unmindful of the need to protect the authority levying the tax, for, at that stage the Court has to proceed on the hypothesis that the challenge may or may not succeed. The Court has to show awareness of the fact that in a case like the present a municipality cannot function or meet its financial obligations if its source of revenue is blocked by an interim order restraining the municipality from recovering the taxes as per the impugned provision. And that the municipality has to maintain essential civic services like water supply, street lighting a nd public streets etc., apart from running public institutions like schools, dispensaries, libraries etc. What is more, supplies have to he purchased and salaries have to be paid. The grant of an interlocutory order of this nature would paralyze the administration and dislocate the entire working of the municipality. It seems that these serious ramifications of the matter were lost sight of while making the impugned order.We will be failing in our duty if we do not advert to a feature which causes us dismay and distress. On a previous occasion, a Division Bench had vacated an interim order passed by a learned Single Judge on similar facts in a similar situation. Even so when a similar matter giving rise to the present appeal ca me up again, the same learned Judge whose order had been reversed earlier, granted a non-speaking interlocutory order of the aforesaid nature. This order was in turn confirmed by a Division Bench without a speaking order articulating reasons for granting a stay when the earlier Bench had vacated the stay. We mean no disrespect to the High Court in emphasizing the necessity for sell-imposed discipline in such matters in obeisance to such weighty institutional considerations like the need t o maintain decorum and comity. So also we mean no disrespect to the High Court in stressing the need for self-discipline on the part of the High Court in passing interim orders without entering into the question of amplitude and width of the powers of the High Court to grant interim relief. The main purpose of passing an interim order is to evolve a workable formula or a workable arrangement to the extent called for by the demands of the situation keeping in mind the presumption regarding the constitutionality of the legislation and the vulnerability of the challenge, only in order that no irreparable injury in occasioned. The Court has therefore to strike a delicate balance after considering the pros and cons of the matter last larger public interest is not jeopardized and institutional embarrassment is eschewed. | 1 | 805 | 642 | ### 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:
SEN, J.1. This appeal by special leave is directed against an interlocutory order dated August 25, 1983 passed by the Calcutta High Court restraining t he Siliguri Municipality, the appellant herein, from recovering a graduated consolidated rate on the annual value of the holdings in terms of the amended provisions in ss. 123 and 124 of the Bengal Municipal Act, 1932, as amended by the Bengal Municipal (Amendment) Act, 1980.2. We are constrained to make the observations which follows as we do feel dismayed at the tendency on the part of some of the High Court to grant interlocutory orders for the mere asking. Normally, the High Courts should not, as a rule, in proceedings under Art. 226 of the Constitution grant any stay of recovery of tax save under very exceptional circumstances. The grant of stay in such matters, should be an exception and not a rule.3. It is needless to stress that a levy or impost does not become bad as soon as a writ petition is instituted in order to assail the validity of the levy. So also there is no warrant for presuming the levy to be bad at the very threshold of the proceedings. The only consideration at that juncture is to ensure that no prejudice is occasioned to the rate payers in case they ultimately succeed at the conclusion of the proceedings. This object can be attained by requiring the body or authority levying the impost to give an undertaking to refund or adjust against future dues, the levy of tax or rate or a part thereof, as the case may be, in the event of the entire levy or a part thereof being ultimately held to be inv alid by the Court without obliging the tax-payers to institute a civil suit in order to claim the amount already recovered from them. On the other hand, the Court cannot be unmindful of the need to protect the authority levying the tax, for, at that stage the Court has to proceed on the hypothesis that the challenge may or may not succeed. The Court has to show awareness of the fact that in a case like the present a municipality cannot function or meet its financial obligations if its source of revenue is blocked by an interim order restraining the municipality from recovering the taxes as per the impugned provision. And that the municipality has to maintain essential civic services like water supply, street lighting a nd public streets etc., apart from running public institutions like schools, dispensaries, libraries etc. What is more, supplies have to he purchased and salaries have to be paid. The grant of an interlocutory order of this nature would paralyze the administration and dislocate the entire working of the municipality. It seems that these serious ramifications of the matter were lost sight of while making the impugned order.We will be failing in our duty if we do not advert to a feature which causes us dismay and distress. On a previous occasion, a Division Bench had vacated an interim order passed by a learned Single Judge on similar facts in a similar situation. Even so when a similar matter giving rise to the present appeal ca me up again, the same learned Judge whose order had been reversed earlier, granted a non-speaking interlocutory order of the aforesaid nature. This order was in turn confirmed by a Division Bench without a speaking order articulating reasons for granting a stay when the earlier Bench had vacated the stay. We mean no disrespect to the High Court in emphasizing the necessity for sell-imposed discipline in such matters in obeisance to such weighty institutional considerations like the need t o maintain decorum and comity. So also we mean no disrespect to the High Court in stressing the need for self-discipline on the part of the High Court in passing interim orders without entering into the question of amplitude and width of the powers of the High Court to grant interim relief. The main purpose of passing an interim order is to evolve a workable formula or a workable arrangement to the extent called for by the demands of the situation keeping in mind the presumption regarding the constitutionality of the legislation and the vulnerability of the challenge, only in order that no irreparable injury in occasioned. The Court has therefore to strike a delicate balance after considering the pros and cons of the matter last larger public interest is not jeopardized and institutional embarrassment is eschewed.4
### Response:
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### Explanation:
It is needless to stress that a levy or impost does not become bad as soon as a writ petition is instituted in order to assail the validity of the levy. So also there is no warrant for presuming the levy to be bad at the very threshold of the proceedings. The only consideration at that juncture is to ensure that no prejudice is occasioned to the rate payers in case they ultimately succeed at the conclusion of the proceedings. This object can be attained by requiring the body or authority levying the impost to give an undertaking to refund or adjust against future dues, the levy of tax or rate or a part thereof, as the case may be, in the event of the entire levy or a part thereof being ultimately held to be inv alid by the Court without obliging the tax-payers to institute a civil suit in order to claim the amount already recovered from them. On the other hand, the Court cannot be unmindful of the need to protect the authority levying the tax, for, at that stage the Court has to proceed on the hypothesis that the challenge may or may not succeed. The Court has to show awareness of the fact that in a case like the present a municipality cannot function or meet its financial obligations if its source of revenue is blocked by an interim order restraining the municipality from recovering the taxes as per the impugned provision. And that the municipality has to maintain essential civic services like water supply, street lighting a nd public streets etc., apart from running public institutions like schools, dispensaries, libraries etc. What is more, supplies have to he purchased and salaries have to be paid. The grant of an interlocutory order of this nature would paralyze the administration and dislocate the entire working of the municipality. It seems that these serious ramifications of the matter were lost sight of while making the impugned order.We will be failing in our duty if we do not advert to a feature which causes us dismay and distress. On a previous occasion, a Division Bench had vacated an interim order passed by a learned Single Judge on similar facts in a similar situation. Even so when a similar matter giving rise to the present appeal ca me up again, the same learned Judge whose order had been reversed earlier, granted a non-speaking interlocutory order of the aforesaid nature. This order was in turn confirmed by a Division Bench without a speaking order articulating reasons for granting a stay when the earlier Bench had vacated the stay. We mean no disrespect to the High Court in emphasizing the necessity for sell-imposed discipline in such matters in obeisance to such weighty institutional considerations like the need t o maintain decorum and comity. So also we mean no disrespect to the High Court in stressing the need for self-discipline on the part of the High Court in passing interim orders without entering into the question of amplitude and width of the powers of the High Court to grant interim relief. The main purpose of passing an interim order is to evolve a workable formula or a workable arrangement to the extent called for by the demands of the situation keeping in mind the presumption regarding the constitutionality of the legislation and the vulnerability of the challenge, only in order that no irreparable injury in occasioned. The Court has therefore to strike a delicate balance after considering the pros and cons of the matter last larger public interest is not jeopardized and institutional embarrassment is eschewed.
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ANANT RAJ LTD. (FORMERLY M/S. ANANT RAJ INDUSTRIES LTD.) Vs. STATE OF HARYANA & ORS | be the mechanism to be followed has also been referred to, but from where it has been originated and about its factual foundation has not been placed on record, despite the directions of this Court at the time of conclusion of submissions made. The extract of the explanation tendered is reproduced hereunder :- A. That in reply to sub para (A), it is submitted that though land applied for licence for setting up of a Group Housing Colony by the present petitioner and respondent no.1 to 3 was different, but as per the Final Development Plan of GMUC-2025 AD published vide notification dated 24.05.2011, the same was falling within the same sector i.e. Sector 63A, Gurugram. The licence was granted to the present petitioner on the basis of first come First Serve basis. However, licence application of respondent no.1 to 3 was rejected by respondent no.5 vide order dated 16.09.2011 mainly on the ground that some land applied for licence was not partitioned and that the land has not been mutated in favour of the applicant. Another ground for rejection was that the same was falling beyond the limits of the Development Plan of Gurugram Manesar Urban Complex-2021 AD. B. That in reply to sub para (B), it is submitted that the interim order dated 21.12.2013 passed by the Honble High Court was only to the extent that the area measuring 13.61875 acres for which respondent no.1 to 3 had applied for grant of licence for setting up of a Group Housing Colony will be reserved till the final conclusion of the legal proceedings. However, the licence of private respondents in CWP No.21942 of 2013 was cancelled by the Honble High Court vide impugned order by observing that the doctrine of first come First Serve basis was not fair and transparent. H. That in reply to the averments made in sub para (H), it is submitted that in the policy dated 19.12.2006, it was specifically mentioned that the area under Group Housing should not exceed 20% of the sector area. Though, it is not specifically stated in the said policy that the applications would be considered on first come First Serve, but the applications were considered on the basis of policy of first come First Serve basis. The seniority of the applicants for grant of licence for Group Housing Colony/Commercial Colony etc. (where there is cap for grant of licence) was fixed from the date of receipt of application. If the date of receipt was the same, then from the receipt number of the same date. Hence, it cannot be said that the time and date when the application for grant of licence was filed was not relevant. However, if the applicant whose application for grant of licence was received earlier, but was not eligible for grant of licence, the application received after the date of the receipt of the earlier application was considered for grant of licence. Hence, the averments made by the petitioner in this sub para cannot be accepted as such. 40. In our considered view, the principle of First Come First Serve basis which has been adopted by the State Respondents in the facts of the instant case is neither held to be rational nor in public interest and is in violation of Article 14 of the Constitution of India. 41. The submission made by counsel for the Appellant that their grant of licence was not the subject matter of challenge in the writ petition before the High Court is of no substance for the reason that firstly they were impleaded as party respondents and the subject issue under consideration was much known to them as to whether the so-called alleged practice of First Come First Serve basis which has been adopted by the State authorities for grant of licence, how far it was rational and is in conformity with the Scheme of the statute and secondly, the High Court after framing substantive question under its order dated 13th August, 2015 afforded opportunity of hearing to the Appellants who have filed their counter-affidavits and thereafter has arrived to a conclusion that the principle of First Come First Serve basis adopted in grant of licences is not a valid consideration, the only consequence available was to cancel such licence which have been granted based on the so-called alleged practice which is unsustainable in law and in our considered view no error was committed in passing the order of cancellation of grant of licence to the Appellants under the judgment impugned. 42. A further submission made by counsel for the Appellant that it is a consistent practice which was followed throughout and almost 248 licences had been granted under the policy in vogue at that time, in our considered view does not hold good for the reason that those who are not party to the proceedings before the High Court obviously no adverse action could have been taken against them pursuant to the view expressed by the High Court in the impugned judgment, at the same time the principle may apply to the present Appellants who are indeed parties to the proceedings and have contested their claim and have been non-suited after a fair opportunity of hearing being afforded, may not be in a position to defend their grant of licence on the principle of First Come First Serve basis which has been held to be unfair and in violation of Article 14 of the Constitution. 43. With regard to the further submission made by the counsel for Respondent nos.7 to 9 about rejection of their application for grant of licence, suffice it to say that once this Court has upheld the view expressed by the High Court regarding the procedure of allotment of licence based on the principle of First Come First Serve basis, as held against the Public Policy, at least Respondent nos.7 to 9 would not be in a position to plead for consideration of their applications for grant of licence under the impugned policy. | 1[ds]30. The undisputed facts which have emerged from the record are that neither in the public notice dated 1st October, 2010 which came to be published on 4th October, 2010, nor in the Final Development Plan dated 24th May, 2011, nor in policy instructions which came to be circulated by the Respondents at a later stage on 5th July, 2012, regarding receipt and validity of the applications for grant of licence, of which a detailed reference has been made, nowhere prescribes that the method of allotment of licence shall be made on First Come First Serve basis and from where this practice had been borrowed/adopted by the Respondent/State authorities is alien to the Scheme of the 1975 Act or the 1976 Rules framed thereunder, nor any material in support thereof has been placed on record.31. Even at the time of conclusion of submissions, we posed this question to the counsel for the State of Haryana as to from where this principle of First Come First Serve basis for allotment of licence has been borrowed and what is the basis/foundation to hold it as a practice in inviting applications from the prospective applicants on the principle of First Come First Serve basis, but nothing has been placed on record despite opportunity being afforded to substantiate and to support it further, we find that the policy of the State Government for grant of licence and change of land use cases dated 19th December, 2006 which was made effective retrospectively from 7th February, 2005, is also completely silent and there is no material on record that after the policy of 2006 came to be introduced, at any given point of time in the interregnum the process was ever initiated by the Respondent nos.1 and 2 for grant of licence and change of land use before the publication of public notice dated 4th October, 2010.32. This Court can validly proceed on the basis that some impression has been thrown to examine the applications submitted by the interested parties/applicants pursuant to a public notice dated 4th October, 2010 for grant of licence and change of land use on the principle of First Come First Serve basis, but it is neither codified nor on record from where this practice has been developed and adopted by the Respondents in examining the applications for grant of licence. The entire Scheme placed on record is completely silent on the subject issue which came to be examined by the High Court under the impugned judgment.34. The very foundation on which the process was initiated, inviting applications pursuant to the public notice dated 4th October, 2010, on the principle of First Come First Serve basis is completely silent/missing from records and how that becomes an established practice in entertaining applications for grant of allotment of licence under the policy of the State Government dated 19th December, 2006, pursuant to which the public notice came to be published on 4th October, 2010 with a clarification being made of the policy of the Government dated 5th July, 2012 is alien to the records and it was never made known to the public as to the mechanism the Government intended to adopt for grant of licence to the prospective applicants.35. Although this factor cannot be ruled out that those who are interested parties, they were aware of this so-called alleged practice of First Come First Serve adopted in the office of the State Respondent and that was the reason for which even before the public notice dated 1st October, 2010 came to be published on 4th October, 2010, people start running for submitting their applications as if they are participating in the mad race, without being known to the people at large about the policy according to which the applications are invited for grant of licence to the prospective applicants which is a sine qua non for good governance.36. That apart, there is a fundamental flaw in the policy of the State of First Come First Serve basis as it involves an element of pure chance or accident and it indeed has inherent in-built implications and this factor cannot be ruled out as we have gone through the record, any person who has an access to the power corridors will be made available with an information from the Government records and before there could be a public notice accessible to the people at large, the interested person may submit his application, as happened in the instant case, and become entitled to stand first included in queue to have a better claim, at the same time it is the solemn duty of the State to ensure that a non-discriminatory method is adopted, whether it is for distribution or allotment of licence on his own land, or alienation of property and it is imperative and of paramount consideration that every action of the State should always be in public interest.37. In the matter of grant of licence even on its own land to set up a group housing society, the policy of allotment must be fair and transparent and as there is a cap of 20% for group housing society in the sector area and if the demand exceeds more than available density of 20% area reserved for group housing in the sector alike Sector 63A, Gurgaon under the Final Development Plans as published in the instant case, the method of selection has to be such so that all the eligible applicants get a fair opportunity of competition and it is the bounden duty of the State and its instrumentalities of their action to be conformed with Article 14 of the Constitution of which non-arbitrariness is a significant facet. A public authority possesses powers only to use them for public good. This imposes a solemn duty on the State to act impartially and to adopt a procedure of allotment of licence which is fair play in action.38. We find no difficulty in holding that in the first instance there is no such consistent practice as alleged of First Come First Serve basis for allotment of licence available under the entire Scheme placed on record and secondly, from where this principle has been borrowed is alien to the statute and also the policy pursuant to which the process was initiated for allotment of licences to the prospective applicants.39. Curiously, we find that before this Court counter affidavits came to be filed by the Respondent State though its Chief Town Planner, Department of Town and Country Planning, Haryana, Chandigarh coming out with the justification and the procedure which has been followed based on the principle of First Come First Serve basis while granting licence to the Appellants stating inter alia that if there are more than one application of the same day and time, what will be the mechanism to be followed has also been referred to, but from where it has been originated and about its factual foundation has not been placed on record, despite the directions of this Court at the time of conclusion of submissions made.40. In our considered view, the principle of First Come First Serve basis which has been adopted by the State Respondents in the facts of the instant case is neither held to be rational nor in public interest and is in violation of Article 14 of the Constitution of India.41. The submission made by counsel for the Appellant that their grant of licence was not the subject matter of challenge in the writ petition before the High Court is of no substance for the reason that firstly they were impleaded as party respondents and the subject issue under consideration was much known to them as to whether the so-called alleged practice of First Come First Serve basis which has been adopted by the State authorities for grant of licence, how far it was rational and is in conformity with the Scheme of the statute and secondly, the High Court after framing substantive question under its order dated 13th August, 2015 afforded opportunity of hearing to the Appellants who have filed their counter-affidavits and thereafter has arrived to a conclusion that the principle of First Come First Serve basis adopted in grant of licences is not a valid consideration, the only consequence available was to cancel such licence which have been granted based on the so-called alleged practice which is unsustainable in law and in our considered view no error was committed in passing the order of cancellation of grant of licence to the Appellants under the judgment impugned.42. A further submission made by counsel for the Appellant that it is a consistent practice which was followed throughout and almost 248 licences had been granted under the policy in vogue at that time, in our considered view does not hold good for the reason that those who are not party to the proceedings before the High Court obviously no adverse action could have been taken against them pursuant to the view expressed by the High Court in the impugned judgment, at the same time the principle may apply to the present Appellants who are indeed parties to the proceedings and have contested their claim and have been non-suited after a fair opportunity of hearing being afforded, may not be in a position to defend their grant of licence on the principle of First Come First Serve basis which has been held to be unfair and in violation of Article 14 of the Constitution.43. With regard to the further submission made by the counsel for Respondent nos.7 to 9 about rejection of their application for grant of licence, suffice it to say that once this Court has upheld the view expressed by the High Court regarding the procedure of allotment of licence based on the principle of First Come First Serve basis, as held against the Public Policy, at least Respondent nos.7 to 9 would not be in a position to plead for consideration of their applications for grant of licence under the impugned policy. | 1 | 6,441 | 1,750 | ### Instruction:
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be the mechanism to be followed has also been referred to, but from where it has been originated and about its factual foundation has not been placed on record, despite the directions of this Court at the time of conclusion of submissions made. The extract of the explanation tendered is reproduced hereunder :- A. That in reply to sub para (A), it is submitted that though land applied for licence for setting up of a Group Housing Colony by the present petitioner and respondent no.1 to 3 was different, but as per the Final Development Plan of GMUC-2025 AD published vide notification dated 24.05.2011, the same was falling within the same sector i.e. Sector 63A, Gurugram. The licence was granted to the present petitioner on the basis of first come First Serve basis. However, licence application of respondent no.1 to 3 was rejected by respondent no.5 vide order dated 16.09.2011 mainly on the ground that some land applied for licence was not partitioned and that the land has not been mutated in favour of the applicant. Another ground for rejection was that the same was falling beyond the limits of the Development Plan of Gurugram Manesar Urban Complex-2021 AD. B. That in reply to sub para (B), it is submitted that the interim order dated 21.12.2013 passed by the Honble High Court was only to the extent that the area measuring 13.61875 acres for which respondent no.1 to 3 had applied for grant of licence for setting up of a Group Housing Colony will be reserved till the final conclusion of the legal proceedings. However, the licence of private respondents in CWP No.21942 of 2013 was cancelled by the Honble High Court vide impugned order by observing that the doctrine of first come First Serve basis was not fair and transparent. H. That in reply to the averments made in sub para (H), it is submitted that in the policy dated 19.12.2006, it was specifically mentioned that the area under Group Housing should not exceed 20% of the sector area. Though, it is not specifically stated in the said policy that the applications would be considered on first come First Serve, but the applications were considered on the basis of policy of first come First Serve basis. The seniority of the applicants for grant of licence for Group Housing Colony/Commercial Colony etc. (where there is cap for grant of licence) was fixed from the date of receipt of application. If the date of receipt was the same, then from the receipt number of the same date. Hence, it cannot be said that the time and date when the application for grant of licence was filed was not relevant. However, if the applicant whose application for grant of licence was received earlier, but was not eligible for grant of licence, the application received after the date of the receipt of the earlier application was considered for grant of licence. Hence, the averments made by the petitioner in this sub para cannot be accepted as such. 40. In our considered view, the principle of First Come First Serve basis which has been adopted by the State Respondents in the facts of the instant case is neither held to be rational nor in public interest and is in violation of Article 14 of the Constitution of India. 41. The submission made by counsel for the Appellant that their grant of licence was not the subject matter of challenge in the writ petition before the High Court is of no substance for the reason that firstly they were impleaded as party respondents and the subject issue under consideration was much known to them as to whether the so-called alleged practice of First Come First Serve basis which has been adopted by the State authorities for grant of licence, how far it was rational and is in conformity with the Scheme of the statute and secondly, the High Court after framing substantive question under its order dated 13th August, 2015 afforded opportunity of hearing to the Appellants who have filed their counter-affidavits and thereafter has arrived to a conclusion that the principle of First Come First Serve basis adopted in grant of licences is not a valid consideration, the only consequence available was to cancel such licence which have been granted based on the so-called alleged practice which is unsustainable in law and in our considered view no error was committed in passing the order of cancellation of grant of licence to the Appellants under the judgment impugned. 42. A further submission made by counsel for the Appellant that it is a consistent practice which was followed throughout and almost 248 licences had been granted under the policy in vogue at that time, in our considered view does not hold good for the reason that those who are not party to the proceedings before the High Court obviously no adverse action could have been taken against them pursuant to the view expressed by the High Court in the impugned judgment, at the same time the principle may apply to the present Appellants who are indeed parties to the proceedings and have contested their claim and have been non-suited after a fair opportunity of hearing being afforded, may not be in a position to defend their grant of licence on the principle of First Come First Serve basis which has been held to be unfair and in violation of Article 14 of the Constitution. 43. With regard to the further submission made by the counsel for Respondent nos.7 to 9 about rejection of their application for grant of licence, suffice it to say that once this Court has upheld the view expressed by the High Court regarding the procedure of allotment of licence based on the principle of First Come First Serve basis, as held against the Public Policy, at least Respondent nos.7 to 9 would not be in a position to plead for consideration of their applications for grant of licence under the impugned policy.
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### Explanation:
basis as it involves an element of pure chance or accident and it indeed has inherent in-built implications and this factor cannot be ruled out as we have gone through the record, any person who has an access to the power corridors will be made available with an information from the Government records and before there could be a public notice accessible to the people at large, the interested person may submit his application, as happened in the instant case, and become entitled to stand first included in queue to have a better claim, at the same time it is the solemn duty of the State to ensure that a non-discriminatory method is adopted, whether it is for distribution or allotment of licence on his own land, or alienation of property and it is imperative and of paramount consideration that every action of the State should always be in public interest.37. In the matter of grant of licence even on its own land to set up a group housing society, the policy of allotment must be fair and transparent and as there is a cap of 20% for group housing society in the sector area and if the demand exceeds more than available density of 20% area reserved for group housing in the sector alike Sector 63A, Gurgaon under the Final Development Plans as published in the instant case, the method of selection has to be such so that all the eligible applicants get a fair opportunity of competition and it is the bounden duty of the State and its instrumentalities of their action to be conformed with Article 14 of the Constitution of which non-arbitrariness is a significant facet. A public authority possesses powers only to use them for public good. This imposes a solemn duty on the State to act impartially and to adopt a procedure of allotment of licence which is fair play in action.38. We find no difficulty in holding that in the first instance there is no such consistent practice as alleged of First Come First Serve basis for allotment of licence available under the entire Scheme placed on record and secondly, from where this principle has been borrowed is alien to the statute and also the policy pursuant to which the process was initiated for allotment of licences to the prospective applicants.39. Curiously, we find that before this Court counter affidavits came to be filed by the Respondent State though its Chief Town Planner, Department of Town and Country Planning, Haryana, Chandigarh coming out with the justification and the procedure which has been followed based on the principle of First Come First Serve basis while granting licence to the Appellants stating inter alia that if there are more than one application of the same day and time, what will be the mechanism to be followed has also been referred to, but from where it has been originated and about its factual foundation has not been placed on record, despite the directions of this Court at the time of conclusion of submissions made.40. In our considered view, the principle of First Come First Serve basis which has been adopted by the State Respondents in the facts of the instant case is neither held to be rational nor in public interest and is in violation of Article 14 of the Constitution of India.41. The submission made by counsel for the Appellant that their grant of licence was not the subject matter of challenge in the writ petition before the High Court is of no substance for the reason that firstly they were impleaded as party respondents and the subject issue under consideration was much known to them as to whether the so-called alleged practice of First Come First Serve basis which has been adopted by the State authorities for grant of licence, how far it was rational and is in conformity with the Scheme of the statute and secondly, the High Court after framing substantive question under its order dated 13th August, 2015 afforded opportunity of hearing to the Appellants who have filed their counter-affidavits and thereafter has arrived to a conclusion that the principle of First Come First Serve basis adopted in grant of licences is not a valid consideration, the only consequence available was to cancel such licence which have been granted based on the so-called alleged practice which is unsustainable in law and in our considered view no error was committed in passing the order of cancellation of grant of licence to the Appellants under the judgment impugned.42. A further submission made by counsel for the Appellant that it is a consistent practice which was followed throughout and almost 248 licences had been granted under the policy in vogue at that time, in our considered view does not hold good for the reason that those who are not party to the proceedings before the High Court obviously no adverse action could have been taken against them pursuant to the view expressed by the High Court in the impugned judgment, at the same time the principle may apply to the present Appellants who are indeed parties to the proceedings and have contested their claim and have been non-suited after a fair opportunity of hearing being afforded, may not be in a position to defend their grant of licence on the principle of First Come First Serve basis which has been held to be unfair and in violation of Article 14 of the Constitution.43. With regard to the further submission made by the counsel for Respondent nos.7 to 9 about rejection of their application for grant of licence, suffice it to say that once this Court has upheld the view expressed by the High Court regarding the procedure of allotment of licence based on the principle of First Come First Serve basis, as held against the Public Policy, at least Respondent nos.7 to 9 would not be in a position to plead for consideration of their applications for grant of licence under the impugned policy.
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Vithal Vs. State of Maharashtra | persons were around and particularly when the accused took away the boy mentioning to everybody that he would warm him up, he would not have killed him in the manner suggested by the prosecution. But the accused had no explanation at all as to how he parted with the company of deceased 2 when lie himself had taken him inside his house. Taking the other circumstances particularly attack on PWs 6 and 7 and deceased 1 into consideration, the only irresistible conclusion is that the appellant alone must have caused the death of Bandu, deceased 2. Therefore the accused has been rightly convicted under Section 302 IPC. So far the sentence is concerned, the High Court held that the accused committed these offences only with a view to grab the property and with that greedy motive he did not even spare the young boy and designed to eliminate the entire family of PW 6. At more than one place, the High Court observed that : "The only intention as explicit is to extinguish all the members of the family and grab the land which was in the name of his father and brother." With that motive the accused, according to the High Court, acted in a beastly and ghastly manner and that this is one of the rarest of rare cases where the crime was perpetrated to grab the property. In this context the High Court also observed that "with the elimination of the accused, the society would be much better of and its safety will no longer be endangered" and accordingly awarded the death sentence. So far the motive aspect namely that the accused with a view to grab the property of PW 6 designed to eliminate all the members of his family, cannot, in our view, readily be inferred because if that was the only motive, then PW 6 should have necessarily been done away with. The Doctor, PW 13, who examined PW 6 found only one incised injury near the left ear and it resulted in separating the pinna of the ear and resulted in bleeding. Injuries No. 2 and 3 are described as follows : "2. Contusion left 2nd intercostal space 2"x 1", tenderness over clavicle present. 3. Patient was complaining pain in neck. Tenderness over cervical spine present." The third injury was not an injury as such and the pain complained of could be due to injury No. 2 or injury No. 1. It can thus be seen that injury No. 1 alone if at all was a serious injury but that was also comparatively not serious so as to infer that whoever inflicted this injury wanted to kill him. It is only after attacking PW 6 that the accused is said to have dealt some blows to PW 7. If as suggested his motive was to eliminate PW 6 and his family members to grab the property, this would not have been the nature of attack. Even PW 7 after receiving the injury coolly sat for some time near the courtyard warming, himself. We are referring to these aspects only to show that these deaths were not caused only to grab the property and there was no reason why he should cause the death of deceased 1 without causing any serious injuries to Ramesh, PW 6 himself. We think that something must have preceded this occurrence which has not come to light. 8. The High Court has referred to a decision of this Court which deals with circumstances under which death sentence could be imposed. It may also not be necessary to refer to all those cases cited by the counsel. In Bachan Singh v. State of Punjab, (1980) 2 SCC 684 this Court considered the circumstances under which the death sentence could be imposed and finally observed that taking life by imposing death sentence should be done only in the rarest of rare cases when the alternative option is unquestionably foreclosed. In Machhi Singh v. State of Punjab, (1983) 3 SCR 413 after referring to the ratio laid down in Bachan Singh case this Court observed that a balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 9. The High Court in awarding the death sentence relied on a judgment of this Court in Sarveshwar Prasad Sharma v. State of Madhya Pradesh, AIR 1977 SC 2423 . In that case the Supreme Court confirmed the death sentence taking into consideration that gruesome murders wiping out an entire family of nine persons including aged parents and two infants were committed by the accused with a deliberate motive of wrongful gain and that there were no extenuating circumstances to award a lesser sentence. 10. As discussed above we are not able to agree with the High Court that the appellant, in the instant case, committed the murder of deceased 1 and 2 and inflicted injuries on PWs 6 and 7 with a deliberate motive of wrongful gain and with extreme greed and therefore he does not deserve to exist and be a member of the society and that the death sentence is the only appropriate sentence to be awarded and that there are no extenuating circumstances at all. The High Court in arriving at this conclusion has failed to note that PW 6, who is the main person to be eliminated, has not been attacked by the accused in the manner expected of him with such motive. As already pointed out, what has exactly preceded the attack is not clear. However, the participation of the accused is proved. But what prompted him to inflict those injuries on his own kith and kin is not clearly established by the prosecution. Therefore we cannot say that this is one of the rarest of rare cases where death sentence alone should be awarded. | 1[ds]That apart, no father would immediately come out and speak against his own son and for that reason also PW 6 could not have immediately disclosed the incident. However, PW 8, who went there and inquired was told by PW 7 that they had to blame their own fate. Learned counsel, however, submitted that due to suspicion they might have implicated the accused. We do not think that any father on mere suspicion would implicate his own son falsely without witnessing the occurrence as such. If really some outsider has committed the crime as suggested by the learned counsel, PW 7, the father, would be the last person to implicate his own son. Therefore the evidence of PWs 6 and 7 corroborated by other evidence amply establishes beyond all reasonable doubt that the accused committed the murder of deceased 1 by causing injuries on her person with a crowbar and also during the same occurrence he caused injuries to PWs 6 andthe other circumstances particularly attack on PWs 6 and 7 and deceased 1 into consideration, the only irresistible conclusion is that the appellant alone must have caused the death of Bandu, deceased 2. Therefore the accused has been rightly convicted under Section 302 IPC. So far the sentence is concerned, the High Court held that the accused committed these offences only with a view to grab the property and with that greedy motive he did not even spare the young boy and designed to eliminate the entire family of PW 6. At more than one place, the High Court observed that : "The only intention as explicit is to extinguish all the members of the family and grab the land which was in the name of his father and brother." With that motive the accused, according to the High Court, acted in a beastly and ghastly manner and that this is one of the rarest of rare cases where the crime was perpetrated to grab the property. In this context the High Court also observed that "with the elimination of the accused, the society would be much better of and its safety will no longer be endangered" and accordingly awarded the death sentence. So far the motive aspect namely that the accused with a view to grab the property of PW 6 designed to eliminate all the members of his family, cannot, in our view, readily be inferred because if that was the only motive, then PW 6 should have necessarily been done away with. The Doctor, PW 13, who examined PW 6 found only one incised injury near the left ear and it resulted in separating the pinna of the ear and resulted in bleeding.As discussed above we are not able to agree with the High Court that the appellant, in the instant case, committed the murder of deceased 1 and 2 and inflicted injuries on PWs 6 and 7 with a deliberate motive of wrongful gain and with extreme greed and therefore he does not deserve to exist and be a member of the society and that the death sentence is the only appropriate sentence to be awarded and that there are no extenuating circumstances at all. The High Court in arriving at this conclusion has failed to note that PW 6, who is the main person to be eliminated, has not been attacked by the accused in the manner expected of him with such motive. As already pointed out, what has exactly preceded the attack is not clear. However, the participation of the accused is proved. But what prompted him to inflict those injuries on his own kith and kin is not clearly established by the prosecution. Therefore we cannot say that this is one of the rarest of rare cases where death sentence alone should be awarded. | 1 | 3,347 | 687 | ### Instruction:
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persons were around and particularly when the accused took away the boy mentioning to everybody that he would warm him up, he would not have killed him in the manner suggested by the prosecution. But the accused had no explanation at all as to how he parted with the company of deceased 2 when lie himself had taken him inside his house. Taking the other circumstances particularly attack on PWs 6 and 7 and deceased 1 into consideration, the only irresistible conclusion is that the appellant alone must have caused the death of Bandu, deceased 2. Therefore the accused has been rightly convicted under Section 302 IPC. So far the sentence is concerned, the High Court held that the accused committed these offences only with a view to grab the property and with that greedy motive he did not even spare the young boy and designed to eliminate the entire family of PW 6. At more than one place, the High Court observed that : "The only intention as explicit is to extinguish all the members of the family and grab the land which was in the name of his father and brother." With that motive the accused, according to the High Court, acted in a beastly and ghastly manner and that this is one of the rarest of rare cases where the crime was perpetrated to grab the property. In this context the High Court also observed that "with the elimination of the accused, the society would be much better of and its safety will no longer be endangered" and accordingly awarded the death sentence. So far the motive aspect namely that the accused with a view to grab the property of PW 6 designed to eliminate all the members of his family, cannot, in our view, readily be inferred because if that was the only motive, then PW 6 should have necessarily been done away with. The Doctor, PW 13, who examined PW 6 found only one incised injury near the left ear and it resulted in separating the pinna of the ear and resulted in bleeding. Injuries No. 2 and 3 are described as follows : "2. Contusion left 2nd intercostal space 2"x 1", tenderness over clavicle present. 3. Patient was complaining pain in neck. Tenderness over cervical spine present." The third injury was not an injury as such and the pain complained of could be due to injury No. 2 or injury No. 1. It can thus be seen that injury No. 1 alone if at all was a serious injury but that was also comparatively not serious so as to infer that whoever inflicted this injury wanted to kill him. It is only after attacking PW 6 that the accused is said to have dealt some blows to PW 7. If as suggested his motive was to eliminate PW 6 and his family members to grab the property, this would not have been the nature of attack. Even PW 7 after receiving the injury coolly sat for some time near the courtyard warming, himself. We are referring to these aspects only to show that these deaths were not caused only to grab the property and there was no reason why he should cause the death of deceased 1 without causing any serious injuries to Ramesh, PW 6 himself. We think that something must have preceded this occurrence which has not come to light. 8. The High Court has referred to a decision of this Court which deals with circumstances under which death sentence could be imposed. It may also not be necessary to refer to all those cases cited by the counsel. In Bachan Singh v. State of Punjab, (1980) 2 SCC 684 this Court considered the circumstances under which the death sentence could be imposed and finally observed that taking life by imposing death sentence should be done only in the rarest of rare cases when the alternative option is unquestionably foreclosed. In Machhi Singh v. State of Punjab, (1983) 3 SCR 413 after referring to the ratio laid down in Bachan Singh case this Court observed that a balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 9. The High Court in awarding the death sentence relied on a judgment of this Court in Sarveshwar Prasad Sharma v. State of Madhya Pradesh, AIR 1977 SC 2423 . In that case the Supreme Court confirmed the death sentence taking into consideration that gruesome murders wiping out an entire family of nine persons including aged parents and two infants were committed by the accused with a deliberate motive of wrongful gain and that there were no extenuating circumstances to award a lesser sentence. 10. As discussed above we are not able to agree with the High Court that the appellant, in the instant case, committed the murder of deceased 1 and 2 and inflicted injuries on PWs 6 and 7 with a deliberate motive of wrongful gain and with extreme greed and therefore he does not deserve to exist and be a member of the society and that the death sentence is the only appropriate sentence to be awarded and that there are no extenuating circumstances at all. The High Court in arriving at this conclusion has failed to note that PW 6, who is the main person to be eliminated, has not been attacked by the accused in the manner expected of him with such motive. As already pointed out, what has exactly preceded the attack is not clear. However, the participation of the accused is proved. But what prompted him to inflict those injuries on his own kith and kin is not clearly established by the prosecution. Therefore we cannot say that this is one of the rarest of rare cases where death sentence alone should be awarded.
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1
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That apart, no father would immediately come out and speak against his own son and for that reason also PW 6 could not have immediately disclosed the incident. However, PW 8, who went there and inquired was told by PW 7 that they had to blame their own fate. Learned counsel, however, submitted that due to suspicion they might have implicated the accused. We do not think that any father on mere suspicion would implicate his own son falsely without witnessing the occurrence as such. If really some outsider has committed the crime as suggested by the learned counsel, PW 7, the father, would be the last person to implicate his own son. Therefore the evidence of PWs 6 and 7 corroborated by other evidence amply establishes beyond all reasonable doubt that the accused committed the murder of deceased 1 by causing injuries on her person with a crowbar and also during the same occurrence he caused injuries to PWs 6 andthe other circumstances particularly attack on PWs 6 and 7 and deceased 1 into consideration, the only irresistible conclusion is that the appellant alone must have caused the death of Bandu, deceased 2. Therefore the accused has been rightly convicted under Section 302 IPC. So far the sentence is concerned, the High Court held that the accused committed these offences only with a view to grab the property and with that greedy motive he did not even spare the young boy and designed to eliminate the entire family of PW 6. At more than one place, the High Court observed that : "The only intention as explicit is to extinguish all the members of the family and grab the land which was in the name of his father and brother." With that motive the accused, according to the High Court, acted in a beastly and ghastly manner and that this is one of the rarest of rare cases where the crime was perpetrated to grab the property. In this context the High Court also observed that "with the elimination of the accused, the society would be much better of and its safety will no longer be endangered" and accordingly awarded the death sentence. So far the motive aspect namely that the accused with a view to grab the property of PW 6 designed to eliminate all the members of his family, cannot, in our view, readily be inferred because if that was the only motive, then PW 6 should have necessarily been done away with. The Doctor, PW 13, who examined PW 6 found only one incised injury near the left ear and it resulted in separating the pinna of the ear and resulted in bleeding.As discussed above we are not able to agree with the High Court that the appellant, in the instant case, committed the murder of deceased 1 and 2 and inflicted injuries on PWs 6 and 7 with a deliberate motive of wrongful gain and with extreme greed and therefore he does not deserve to exist and be a member of the society and that the death sentence is the only appropriate sentence to be awarded and that there are no extenuating circumstances at all. The High Court in arriving at this conclusion has failed to note that PW 6, who is the main person to be eliminated, has not been attacked by the accused in the manner expected of him with such motive. As already pointed out, what has exactly preceded the attack is not clear. However, the participation of the accused is proved. But what prompted him to inflict those injuries on his own kith and kin is not clearly established by the prosecution. Therefore we cannot say that this is one of the rarest of rare cases where death sentence alone should be awarded.
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Geeta Enterprises And Others Vs. State Of U.P. And Others | for admission includes:-"Any payment for a programme or synopsis of an entertainment.""Any payment for any purpose whatsoever connected with an entertainment which a person is required to make as a condition of attending or continuing to attend the entertainment in addition to the payment, if any, for admission to the entertainment ."Section 3 which is the charging section runs thus:-"There shall be levied and paid on all payments for admission to any entertainment a tax (hereinafter referred to as entertainment tax)."Section 3 of the Act which has been extracted above, clearly applies to the facts of this case because here the payment is based on lump sum basis calculated at the rate of SO paise per 30 seconds.Thus, on a consideration of the legal connotation of the word entertainment as defined in various books, and other circumstances of the case as also on a true interpretation of the word as defined in s. 2 (3) of the Act, it follows that the show must pass the following tests to fall within the ambit of the aforesaid section:1. that the show, performance, game or sport, etc. must contain a public colour in that the show should be open to public in a hall, theatre or any other place where members of the public are invited or attend the show.2. that the show may provide any kind of amusement whether sport, game or even a performance which requires some amount of skill.In some of the cases, it has been held that even holding of a tombola in a club hall amounts to entertainment although the playing of tombola does, to some extent, involves a little skill.3. that even if admission to the hall may be free but if the exhibitor derives some benefit in terms of money it would be deemed to be an entertainment.4. that the duration of the show or the identity of the person who operates the machine and derives pleasure or entertained or that the operator who pays him self feels entertainment is wholly irrelevant in judging the actual meaning of the word entertainment as used in s. 2 (3) of the Act. So also the fact that the income derived from the show is shared by one or more persons who run the show.8. The Allahabad High Court in the case of Gopal Krishna Agarwal, v. State of Uttar Pradesh and Ors(1) which was also a case under the Act, held that entertainment tax was leviable on video games. The High Court has very carefully analysed sub-section 3 of s. 2 of the Act and the import o f the word entertainment and observes as follows:-"The context in which the word includes, has been used in the definition clauses of the Act does not indicate that the Legislature intended to put a restriction or a limitation on words like entertainment or admission to an entertainment or payment for admission. With the advance of civilization and scientific developments new forms of entertainment have come into existence. Video Games are probably the latest additions to the means of entertainment. These games require skill and precision as so many other games do. They are a source of amusement and enjoyment to those who participate in the games. Others who stand by and watch also derive some pleasure and amusement though not to the same degree. Admission to the premises where the Video Machines are installed may be free but payment is admittedly made if one wants to play the game. The money charged for use of the Video Machine is an admission to entertainment and the payment made by the person who uses the Machine is the payment for admission. In any case it is a payment for admission. In any case it is a payment connected with entertainment which a person is required to make as a condition of attending the entertainmentWe find ourselves in entire agreement with the observations of the Court and fully approve of the ratio decendi of this case. The Allahabad High Court has given almost the same reasons as given by us in the earlier part of the judgment.9. It is true that in the case of Harrish Wilson v. State of Madhya Pradesh and Ors.(1) the Madhya Pradesh High Court had taken a contrary view and held as follows:-"Therefore, what entertains a person in the video games parlour is his own performance and not the exhibition, performance, amusement, game or any sport offered by the petitioners. The payment made by a person to another to provide him with tools for deriving pleasure from his own performance with the help of the tools can not be held to be payment to that an other for admission to entertainment as contemplated by the Act. In our opinion, therefore, it cannot be held that the petitioners receive payment for admission to entertainment, when they collect amounts inserted by the persons in the slot."10. And the Gujarat High Court in N. T. Gursahaney v. State and Anr.(2) has taken a similar view. Apart from the wrong line of reasoning adopted by the Madhya Pradesh High Court it seems to have completely overlooked certain important aspects of the question which we have dealt with in our judgment. Moreover even the language of the charging provision of the Act which fell for interpretation in that case does not appear to be absolutely in pari-materia with t he language of the various sections of the U. P. Act. Even so the pivotal conclusions derived by the Madhya Pradesh High Court and the Gujarat High Court do not appeal to us. The mere fact that payment is not made at the time of entering the premises is irrelevant. Payment made at a later, stage by inserting a coin is nonetheless for being admitted to a place of entertainment. Thus the fee being charged in a different manner at a different stage is in any case for providing entertainment. We, therefore, with due respect to the High Courts, disapprove their decisions. Fo | 1[ds]And the Gujarat High Court in N. T. Gursahaney v. State and Anr.(2) has taken a similar view. Apart from the wrong line of reasoning adopted by the Madhya Pradesh High Court it seems to have completely overlooked certain important aspects of the question which we have dealt with in our judgment. Moreover even the language of the charging provision of the Act which fell for interpretation in that case does not appear to be absolutely in pari-materia with t he language of the various sections of the U. P. Act. Even so the pivotal conclusions derived by the Madhya Pradesh High Court and the Gujarat High Court do not appeal to us. The mere fact that payment is not made at the time of entering the premises is irrelevant. Payment made at a later, stage by inserting a coin is nonetheless for being admitted to a place of entertainment. Thus the fee being charged in a different manner at a different stage is in any case for providing entertainment. We, therefore, with due respect to the High Courts, disapprove their decisions. For the reasons given above we hold that the decision of the Allahabad High Court is correct and we hereby over rule the decisions of the Gujarat and Madhya Pradesh High Courts. In our opinion, the video show in the instant case is clearly exigible to tax under section 3 of the Act.It is true that in the case of Harrish Wilson v. State of Madhya Pradesh and Ors.(1) the Madhya Pradesh High Court had taken a contrary view and held aswhat entertains a person in the video games parlour is his own performance and not the exhibition, performance, amusement, game or any sport offered by the petitioners. The payment made by a person to another to provide him with tools for deriving pleasure from his own performance with the help of the tools can not be held to be payment to that an other for admission to entertainment as contemplated by the Act. In our opinion, therefore, it cannot be held that the petitioners receive payment for admission to entertainment, when they collect amounts inserted by the persons in the slot." | 1 | 2,785 | 401 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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for admission includes:-"Any payment for a programme or synopsis of an entertainment.""Any payment for any purpose whatsoever connected with an entertainment which a person is required to make as a condition of attending or continuing to attend the entertainment in addition to the payment, if any, for admission to the entertainment ."Section 3 which is the charging section runs thus:-"There shall be levied and paid on all payments for admission to any entertainment a tax (hereinafter referred to as entertainment tax)."Section 3 of the Act which has been extracted above, clearly applies to the facts of this case because here the payment is based on lump sum basis calculated at the rate of SO paise per 30 seconds.Thus, on a consideration of the legal connotation of the word entertainment as defined in various books, and other circumstances of the case as also on a true interpretation of the word as defined in s. 2 (3) of the Act, it follows that the show must pass the following tests to fall within the ambit of the aforesaid section:1. that the show, performance, game or sport, etc. must contain a public colour in that the show should be open to public in a hall, theatre or any other place where members of the public are invited or attend the show.2. that the show may provide any kind of amusement whether sport, game or even a performance which requires some amount of skill.In some of the cases, it has been held that even holding of a tombola in a club hall amounts to entertainment although the playing of tombola does, to some extent, involves a little skill.3. that even if admission to the hall may be free but if the exhibitor derives some benefit in terms of money it would be deemed to be an entertainment.4. that the duration of the show or the identity of the person who operates the machine and derives pleasure or entertained or that the operator who pays him self feels entertainment is wholly irrelevant in judging the actual meaning of the word entertainment as used in s. 2 (3) of the Act. So also the fact that the income derived from the show is shared by one or more persons who run the show.8. The Allahabad High Court in the case of Gopal Krishna Agarwal, v. State of Uttar Pradesh and Ors(1) which was also a case under the Act, held that entertainment tax was leviable on video games. The High Court has very carefully analysed sub-section 3 of s. 2 of the Act and the import o f the word entertainment and observes as follows:-"The context in which the word includes, has been used in the definition clauses of the Act does not indicate that the Legislature intended to put a restriction or a limitation on words like entertainment or admission to an entertainment or payment for admission. With the advance of civilization and scientific developments new forms of entertainment have come into existence. Video Games are probably the latest additions to the means of entertainment. These games require skill and precision as so many other games do. They are a source of amusement and enjoyment to those who participate in the games. Others who stand by and watch also derive some pleasure and amusement though not to the same degree. Admission to the premises where the Video Machines are installed may be free but payment is admittedly made if one wants to play the game. The money charged for use of the Video Machine is an admission to entertainment and the payment made by the person who uses the Machine is the payment for admission. In any case it is a payment for admission. In any case it is a payment connected with entertainment which a person is required to make as a condition of attending the entertainmentWe find ourselves in entire agreement with the observations of the Court and fully approve of the ratio decendi of this case. The Allahabad High Court has given almost the same reasons as given by us in the earlier part of the judgment.9. It is true that in the case of Harrish Wilson v. State of Madhya Pradesh and Ors.(1) the Madhya Pradesh High Court had taken a contrary view and held as follows:-"Therefore, what entertains a person in the video games parlour is his own performance and not the exhibition, performance, amusement, game or any sport offered by the petitioners. The payment made by a person to another to provide him with tools for deriving pleasure from his own performance with the help of the tools can not be held to be payment to that an other for admission to entertainment as contemplated by the Act. In our opinion, therefore, it cannot be held that the petitioners receive payment for admission to entertainment, when they collect amounts inserted by the persons in the slot."10. And the Gujarat High Court in N. T. Gursahaney v. State and Anr.(2) has taken a similar view. Apart from the wrong line of reasoning adopted by the Madhya Pradesh High Court it seems to have completely overlooked certain important aspects of the question which we have dealt with in our judgment. Moreover even the language of the charging provision of the Act which fell for interpretation in that case does not appear to be absolutely in pari-materia with t he language of the various sections of the U. P. Act. Even so the pivotal conclusions derived by the Madhya Pradesh High Court and the Gujarat High Court do not appeal to us. The mere fact that payment is not made at the time of entering the premises is irrelevant. Payment made at a later, stage by inserting a coin is nonetheless for being admitted to a place of entertainment. Thus the fee being charged in a different manner at a different stage is in any case for providing entertainment. We, therefore, with due respect to the High Courts, disapprove their decisions. Fo
### Response:
1
### Explanation:
And the Gujarat High Court in N. T. Gursahaney v. State and Anr.(2) has taken a similar view. Apart from the wrong line of reasoning adopted by the Madhya Pradesh High Court it seems to have completely overlooked certain important aspects of the question which we have dealt with in our judgment. Moreover even the language of the charging provision of the Act which fell for interpretation in that case does not appear to be absolutely in pari-materia with t he language of the various sections of the U. P. Act. Even so the pivotal conclusions derived by the Madhya Pradesh High Court and the Gujarat High Court do not appeal to us. The mere fact that payment is not made at the time of entering the premises is irrelevant. Payment made at a later, stage by inserting a coin is nonetheless for being admitted to a place of entertainment. Thus the fee being charged in a different manner at a different stage is in any case for providing entertainment. We, therefore, with due respect to the High Courts, disapprove their decisions. For the reasons given above we hold that the decision of the Allahabad High Court is correct and we hereby over rule the decisions of the Gujarat and Madhya Pradesh High Courts. In our opinion, the video show in the instant case is clearly exigible to tax under section 3 of the Act.It is true that in the case of Harrish Wilson v. State of Madhya Pradesh and Ors.(1) the Madhya Pradesh High Court had taken a contrary view and held aswhat entertains a person in the video games parlour is his own performance and not the exhibition, performance, amusement, game or any sport offered by the petitioners. The payment made by a person to another to provide him with tools for deriving pleasure from his own performance with the help of the tools can not be held to be payment to that an other for admission to entertainment as contemplated by the Act. In our opinion, therefore, it cannot be held that the petitioners receive payment for admission to entertainment, when they collect amounts inserted by the persons in the slot."
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K.K. Modi Vs. K.N. Modi & Others | parallel proceedings, one under the Arbitration Act and the other byway ofa suit. When the order of interim injunction obtained by the appellants was vacated in arbitration proceedings, they obtained an injunction in the suit. The learned Single Judge also felt that the issues in the two proceedings were identical, and the suit was substantially to set aside the award. He, therefore, held that the proceedings by way ofa suit was an abuse of the process ofCourt since it amounted to litigating the same issue in a different forum through different proceedings.47. This perception of the learned Judge may be substantially correct though not entirely so. Undoubtedly, if the plaint in the suit is viewed as challenging only the arbitration award, a suit to challenge the award would be re-litigating the issues already raised in the arbitration petition. The suit would also be barred under Section 32 of the Arbitration Act, 1940. Section 32 of the Arbitration Act, 1940 provides that not withstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence effect or validity ofan arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act.48. According to the appellants, however, the suit is not confined only to challenging the award or steps taken pursuant to the award bythe Chairman, Modipon Ltd. in order to enforce it. According to the appellants, in the suit there is an alternative plea that if the impugned decision ofthe Chairman and Managing Director, IFCI is not considered as an award, then that decision as a decision should be set aside. It is contended that the suit, insofar as it challenges the decision of the Chairman and Managing Director, IFCI, as a decision and not as an award is maintainable. In support, the appellants have relied upon the submissions in paragraph 55 of the plaint which we have set out earlier.49. The plaint in the suit, to the limited extent that it challenges the decision as a decision, would not amount to abuse of the process of Court. We are not called upon to examine whether this alternative submission is supported by proper averments and whether there is a proper cause of action framed in the plaint in support of such an alternative plea. This is a matter which the Court hearing the suit will have to examine and decide. But in the suit, the decision cannot be challenged as if it were an award and on the same grounds as if it were an award. The Court will also have to consider the binding nature of such a decision particularly when no mala fides have been alleged against the CMD, IFCI. If ultimately it is found that even on the alternative plea, the claim is not maintainable the Court may pass appropriate orders in accordance with law. But to the limited extent that the suit raises an alternative independent plea, it cannot be considered as re-litigation of the same issue or an abuse of the process of Court.50. In a proceeding under the Arbitration Act, the appellants could not have raised an alternative plea that in case the impugned decision is treated not as an award, but as a decision, the same is bad in law. This plea could only have been raised by filing a separate suit. Similarly in the suit, the appellants could not have raised an alternative plea that in case the impugned decision is considered as an award, the same should be set aside. For this purpose an arbitration petition was required to be filed. Therefore, the suit, if and to the extent that it challenges in accordance with law the impugned decision as a decision, cannot be treated as an abuse of the process of the Court.51. Group A also contends that there is no merit in the challenge to the decision of the Chairman of IFCI which has been made binding under the Memorandum of Understanding. The entire Memorandum of Understanding including Clause 9 has to be looked upon as a family settlement between various members of the Modi family. Under the Memorandum of Understanding, all pending disputes in respect of the rights of various members of the Modi family forming part of either Group A or Group B have been finally settled and adjusted. Where it has become necessary to split any of the existing companies, this has also been provided for in the Memorandum of Understanding. It is a complete settlement, providing how assets. are to be valued, how they are to be divided, how a scheme for dividing some of the specified companies has to be prepared and who has to do this work. In order to obviate any dispute, the parties have agreed that the entire working out of this agreement will be subject to such directions as the Chairman, IFCI may give pertaining to the implementation of Memorandum of Understanding. He is also empowered to give clarifications and decide any differences relating to the implementation of the Memorandum of Understanding. Such a family settlement which settles disputes within the family should not be lightly interfered with especially when the settlement has been already acted upon by some members of the family. In the present case, from 1989 to1995, the Memorandum of Understanding has been substantially acted upon and hence the parties must be held to the settlement which is in the interest of the family and which avoids disputes between the members of the family. Such settlements have to be viewed a little differently from ordinary contracts and their internal mechanism for working out the settlement should not be lightly disturbed. The respondents may make appropriate submissions in this connection before the High Court. We are sure that they will be considered as and when the High Court is required to do so whether in interlocutory proceedings or at the final hearing. | 1[ds]Question No. 1:15. Mustill and Boyd in their book on, 2nd Edition, at page 30, point out that in a complex modern State there is an immense variety of tribunals, differing fundamentally as regards their compositions, their functions and the sources from which their powers are derived. Dealing with tribunals whose jurisdiction is derived from consent of parties, they list, apart from arbitral tribunals, persons (not properly called Tribunals) entrusted by consent with the power to affect the legal rights of two parties inter sein a manner creating legally enforceable rights, but intended to do so by a procedure of a ministerial and not a judicial nature (for example, persons appointed by contract to value property or to certify the compliance of building works with a specification). There are also other tribunals with a consensual jurisdiction whose decisions are intended to affect the private rights of two parties inter se, but not in a manner which creates a legally enforceable remedy (for example, conciliation tribunals of local religious communities, or persons privately appointed to act as mediators between two disputing persons or groups). Mustill and Boyd have listed some of the attributes which must be present for an agreement to be considered as an arbitration agreement, though these attributes in themselves may not be sufficient. They have also listed certain other considerations which are relevant to this question, although not conclusive on the point.16. Among the attributes which must be present for an agreement to be considered as an arbitration agreementThe arbitration agreement must contemplate that the decision of the tribunal will be binding on the parties to the agreement,(2) That the jurisdiction of the tribunal to decide the rights of parties must derive either from the consent of the parties or from an order of the Court or from a statute, the terms of which make it clear that the process is to be an arbitration,(3) The agreement must contemplate that substantive rights of the parties will be determined by the agreed tribunal,(4) That the tribunal will determine the rights of the parties in an impartial and judicial manner with the tribunal owing an equal obligation of fairness towards both sides,(5) That the agreement of the parties to refer their disputes to the decision of the tribunal must be intended to be enforceable in law and lastly,(6) The agreement must contemplate that the tribunal will make a decision upon a dispute which is already formulated at the time when a reference is made to the tribunal.The authorities thus seem to agree that while there are no conclusive tests, by and large, one can follow a set of guidelines in deciding whether the agreement is to refer an issue to an expert or whether the parties have agreed to resolve disputes through arbitration.20. Therefore, our Courts have laid emphasis on : (1) existence of disputes as against intention to avoid future disputes; (2) the tribunal or forum so chosen is intended to act judicially after taking into account relevant evidence before it and the submissions made by the parties before it; and (3) the decision is intended to bind the parties. Nomenclature used by the parties may not be conclusive. One must examine the true intent and purport of the agreement. There are, or course, the statutory requirements of a written agreement, existing or future disputes and an intention to refer them to arbitration. (Vide Section 2 Arbitration Act, 1940 and Section 7 Arbitration and Conciliation Act, 1996).32. In the present case, the Memorandum of Understanding records the settlement of various disputes as between Group A and Group B in terms of the Memorandum of Understanding. It essentially records a settlement arrived at regarding disputes and differences between the two groups which belong to the same family. In terms of the settlement, the shares and assets of various companies are required to be valued in the manner specified in the agreement. The valuation is to be done by M/s. S.B. Billimoria and Co. Three companies which have to be divided between the two groups are to be divided in accordance with a scheme to be prepared by Bansi S. Mehta and Co. In the implementation of the Memorandum of Understanding which is to be done in consultation with the financial institutions any disputes or clarifications relating to implementation are to be referred to the Chairman, IFCI or his nominees whose decision will be final and binding. The purport of Clause 9 is to prevent any further disputes between Groups A and B. Because the agreement requires division of assets in agreed proportions after their valuation by a named body and under a scheme of division by another named body. Clause 9 is intended to clear any other difficulties which may arise in the implementation of the agreement by leaving it to the decision of the Chairman, IFCI. This clause does not contemplate any judicial determination by the Chairman of the IFCI. He is entitled to nominate another person for deciding any question. His decision has been made final and binding. Thus, Clause 9 is not intended to be for any different decision than what is already agreed upon between the parties to the dispute. It is meant for a proper implementation of the settlement already arrived at. A judicial determination, recording of evidence, etc. are not contemplated. The decision of the Chairman, IFCI is to be binding on the parties. Moreover, difficulties and disputes in implementation may not be between the parties to the Memorandum of Understanding. It is possible that the valuers nominated in the Memorandum of Understanding or the firm entrusted with the responsibility of splitting some of the companies may require some clarifications or may find difficulties doing the work. They can also resort to Clause 9. Looking to the scheme of the Memorandum of Understanding and the purpose behind Clause 9, the learned Single Judge, in our view, has rightly come to the conclusion that this was not an agreement to refer disputes to arbitration. It was meant to be an experts decision. The Chairman, IFCI has designated his decision as a decision. He has consulted experts in connection with valuation and division of assets. He did not file his decision in Court nor did any of the parties request him to do so.33. Undoubtedly, in the course of correspondence exchanged by various members of Groups A and B with the Chairman, IFCI, some of the members have used the wordsin connection with Clause 9. That by itself, however, is not conclusive. The intention of the parties was not to have any judicial determination on the basis of evidence led before the Chairman, IFCI. Nor was the Chairman, IFCI required to base his decision only on the material placed before him by the parties and their submissions. He was free to make his own inquiries. He had to apply his own mind and use his own expertise for the purpose. He was free to take the help of other experts. He was required to decide the question of valuation and the division of assets as an expert and not as an arbitrator. He has been authorised to nominate another in his place. But the contract indicates that he has to nominate an expert. The fact that submissions were made before the Chairman, IFCI, would not turn the decision-making process into an arbitration.34. The Chairman, IFCI has framed issues before answering them in his decision. These issues have been framed by himself for the purpose of enabling him to pin-point those issues which require his decision. There is no agreed reference in respect of any specific disputes by the parties to him.35. The finality of the decision is also indicative of it being an experts decision though of course, this would not be conclusive. But looking at the nature of the functions expected to be performed by the Chairman, IFCI, in our view, the decision is not an arbitration award. The learned Single Judge was, therefore, right in coming to the conclusion that the proceedings before the Chairman, IFCI, were not arbitration proceedings. Nor was his decision an award. Appeal arising out of Special Leave Petition No. 14905 of 1997 is, therefore, dismissed with costs.Question No. 2:36. The next question which requires to be decided relates to Suit No. 1394 of 1996. The learned Single Judge has struck off the plaint in the suit as being an abuse of the process of Court. The appellants had filed this suit in the Delhi High Court on the same day as Arbitration Petition bearing O.M.P. No. 58 of 1996. It challenges the same decision of the Chairman, IFCI which is challenged in the arbitration petition as an award.37. The learned Single Judge has compared the plaint in the suit with the petition filed under the Arbitration Act. The prayers in the arbitration petition are for a declaration: (a) that the award of the C.M.D., IFCI, dated 8.12.1995 is illegal, bad in law and null and void; (b) that the directions given and actions taken by the Chairman, Modipon Ltd. in letters dated 22.1.1996, 5.2.1996,17.4.1996, 23.4.1996 and 24.4.1996 and the scheme of arrangement drawn up by M/s. S.S. Kothari and Co. are illegal and bad in law; (c) that the said award of the Chairman and Managing Director, IFCI and the said letters and directions of the Chairman, Modipon Ltd. and the said scheme of arrangement drawn by M/s. S.S. Kothari and Co. be set aside; (d) for a perpetual injunction restraining the respondents from taking any action directly or indirectly in pursuance of or to give effect to the said award; (e) for a perpetual injunction restraining respondent No. 5 from passing any resolutions in terms of the proposed items 8 and 9 set out in the notice regarding the proposed Board Meeting of Modipon Ltd.; (f) for a perpetual injunction restraining respondents 6 and 7 from selling or disposing of shares in Godfrey Phillips India Ltd. or from dealing with the said shares in a manner contrary to the scheme prepared by M/s. Bansi S. Mehta and Co. and for further and other reliefs.38. In the plaint in the suit prayers (c), (d), (e), (f), (g) and (h) are identical with the prayers in the arbitration petition with small variations which are of no consequence. The remaining prayers are as follows : Prayer (a) is for a declaration that the Memorandum of Understanding dated 24.1.1989 is binding on both the plaintiffs and defendants and all parties are bound in law to act in conformity with the same, Prayer (b) is for a declaration that neither the Chairman, IFCI nor the Chairman, Modipon Ltd. has any power to alter, amend, or modify in any manner the scheme of separation drawn by M/s. Bansi S. Mehta and Co., Prayer (i) is for an injunction restraining the defendants from altering, amending or modifying the scheme of separation drawn up by M/s. Bansi S. Mehta and Co., Prayer (j) is for a decree ordering and directing Modipon Ltd. to be split in accordance with the scheme of separation drawn up by M/s. Bansi S. Mehta and Co., and Prayer (k) is for a decree ordering and directing the implementation of the said Memorandum of Understanding dated 24.1.1989 in respect of Modipon Ltd. in such a manner that the control and management of Chemical Division including the shares of Modi Group Company allotted to Group B held by Modipon Ltd. is vested in the plaintiff and the control and management of the remainder of the company including the Fibre Division is vested in the Group A. The paragraphs in the plaint and in the arbitration petition are verbatim the same to a substantial extent. The respondents have pointed out that paragraphs 1A to 54A in the petition are the same as paragraphs 1 to 54A in the plaint. The grounds which are set out in the petition as well as in the plaint are also substantially the same.Under Order 6, Rule 16, the Court may, at any stage of the proceeding, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the Court. Mulla in his Treatise on the Code of Civil Procedure, (15th Edition, Volume II, Page 1179 note 7) has stated that power under Clauses (c) of Order 6, Rule 16 of the Code is confined to cases where the abuse of the process of the Court is manifest from the pleadings; and that this power is unlike the power under Section 151 whereunder Courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of Court on the basis of what is stated in the plaint.42. The Supreme Court Practice 1995 published by Sweet and Maxwell in paragraph 18/19/33 (para 344) explains the phraseof the process of theIn the present case, the learned Judge was ofthe view that the appellants had resorted to two parallel proceedings, one under the Arbitration Act and the other byway ofa suit. When the order of interim injunction obtained by the appellants was vacated in arbitration proceedings, they obtained an injunction in the suit. The learned Single Judge also felt that the issues in the two proceedings were identical, and the suit was substantially to set aside the award. He, therefore, held that the proceedings by way ofa suit was an abuse of the process ofCourt since it amounted to litigating the same issue in a different forum through different proceedings.47. This perception of the learned Judge may be substantially correct though not entirely so. Undoubtedly, if the plaint in the suit is viewed as challenging only the arbitration award, a suit to challenge the award would be re-litigating the issues already raised in the arbitration petition. The suit would also be barred under Section 32 of the Arbitration Act, 1940. Section 32 of the Arbitration Act, 1940 provides that not withstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence effect or validity ofan arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act.48. According to the appellants, however, the suit is not confined only to challenging the award or steps taken pursuant to the award bythe Chairman, Modipon Ltd. in order to enforce it. According to the appellants, in the suit there is an alternative plea that if the impugned decision ofthe Chairman and Managing Director, IFCI is not considered as an award, then that decision as a decision should be set aside. It is contended that the suit, insofar as it challenges the decision of the Chairman and Managing Director, IFCI, as a decision and not as an award is maintainable. In support, the appellants have relied upon the submissions in paragraph 55 of the plaint which we have set out earlier.49. The plaint in the suit, to the limited extent that it challenges the decision as a decision, would not amount to abuse of the process of Court. We are not called upon to examine whether this alternative submission is supported by proper averments and whether there is a proper cause of action framed in the plaint in support of such an alternative plea. This is a matter which the Court hearing the suit will have to examine and decide. But in the suit, the decision cannot be challenged as if it were an award and on the same grounds as if it were an award. The Court will also have to consider the binding nature of such a decision particularly when no mala fides have been alleged against the CMD, IFCI. If ultimately it is found that even on the alternative plea, the claim is not maintainable the Court may pass appropriate orders in accordance with law. But to the limited extent that the suit raises an alternative independent plea, it cannot be considered as re-litigation of the same issue or an abuse of the process of Court.50. In a proceeding under the Arbitration Act, the appellants could not have raised an alternative plea that in case the impugned decision is treated not as an award, but as a decision, the same is bad in law. This plea could only have been raised by filing a separate suit. Similarly in the suit, the appellants could not have raised an alternative plea that in case the impugned decision is considered as an award, the same should be set aside. For this purpose an arbitration petition was required to be filed. Therefore, the suit, if and to the extent that it challenges in accordance with law the impugned decision as a decision, cannot be treated as an abuseCourt.51. Group A also contends that there is no merit in the challenge to the decision of the Chairman of IFCI which has been made binding under the Memorandum of Understanding. The entire Memorandum of Understanding including Clause 9 has to be looked upon as a family settlement between various members of the Modi family. Under the Memorandum of Understanding, all pending disputes in respect of the rights of various members of the Modi family forming part of either Group A or Group B have been finally settled and adjusted. Where it has become necessary to split any of the existing companies, this has also been provided for in the Memorandum of Understanding. It is a complete settlement, providing how assets. are to be valued, how they are to be divided, how a scheme for dividing some of the specified companies has to be prepared and who has to do this work. In order to obviate any dispute, the parties have agreed that the entire working out of this agreement will be subject to such directions as the Chairman, IFCI may give pertaining to the implementation of Memorandum of Understanding. He is also empowered to give clarifications and decide any differences relating to the implementation of the Memorandum of Understanding. Such a family settlement which settles disputes within the family should not be lightly interfered with especially when the settlement has been already acted upon by some members of the family. In the present case, from 1989 to1995, the Memorandum of Understanding has been substantially acted upon and hence the parties must be held to the settlement which is in the interest of the family and which avoids disputes between the members of the family. Such settlements have to be viewed a little differently from ordinary contracts and their internal mechanism for working out the settlement should not be lightly disturbed. The respondents may make appropriate submissions in this connection before the High Court. We are sure that they will be considered as and when the High Court is required to do so whether in interlocutory proceedings or at the final hearing. | 1 | 9,393 | 3,524 | ### 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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parallel proceedings, one under the Arbitration Act and the other byway ofa suit. When the order of interim injunction obtained by the appellants was vacated in arbitration proceedings, they obtained an injunction in the suit. The learned Single Judge also felt that the issues in the two proceedings were identical, and the suit was substantially to set aside the award. He, therefore, held that the proceedings by way ofa suit was an abuse of the process ofCourt since it amounted to litigating the same issue in a different forum through different proceedings.47. This perception of the learned Judge may be substantially correct though not entirely so. Undoubtedly, if the plaint in the suit is viewed as challenging only the arbitration award, a suit to challenge the award would be re-litigating the issues already raised in the arbitration petition. The suit would also be barred under Section 32 of the Arbitration Act, 1940. Section 32 of the Arbitration Act, 1940 provides that not withstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence effect or validity ofan arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act.48. According to the appellants, however, the suit is not confined only to challenging the award or steps taken pursuant to the award bythe Chairman, Modipon Ltd. in order to enforce it. According to the appellants, in the suit there is an alternative plea that if the impugned decision ofthe Chairman and Managing Director, IFCI is not considered as an award, then that decision as a decision should be set aside. It is contended that the suit, insofar as it challenges the decision of the Chairman and Managing Director, IFCI, as a decision and not as an award is maintainable. In support, the appellants have relied upon the submissions in paragraph 55 of the plaint which we have set out earlier.49. The plaint in the suit, to the limited extent that it challenges the decision as a decision, would not amount to abuse of the process of Court. We are not called upon to examine whether this alternative submission is supported by proper averments and whether there is a proper cause of action framed in the plaint in support of such an alternative plea. This is a matter which the Court hearing the suit will have to examine and decide. But in the suit, the decision cannot be challenged as if it were an award and on the same grounds as if it were an award. The Court will also have to consider the binding nature of such a decision particularly when no mala fides have been alleged against the CMD, IFCI. If ultimately it is found that even on the alternative plea, the claim is not maintainable the Court may pass appropriate orders in accordance with law. But to the limited extent that the suit raises an alternative independent plea, it cannot be considered as re-litigation of the same issue or an abuse of the process of Court.50. In a proceeding under the Arbitration Act, the appellants could not have raised an alternative plea that in case the impugned decision is treated not as an award, but as a decision, the same is bad in law. This plea could only have been raised by filing a separate suit. Similarly in the suit, the appellants could not have raised an alternative plea that in case the impugned decision is considered as an award, the same should be set aside. For this purpose an arbitration petition was required to be filed. Therefore, the suit, if and to the extent that it challenges in accordance with law the impugned decision as a decision, cannot be treated as an abuse of the process of the Court.51. Group A also contends that there is no merit in the challenge to the decision of the Chairman of IFCI which has been made binding under the Memorandum of Understanding. The entire Memorandum of Understanding including Clause 9 has to be looked upon as a family settlement between various members of the Modi family. Under the Memorandum of Understanding, all pending disputes in respect of the rights of various members of the Modi family forming part of either Group A or Group B have been finally settled and adjusted. Where it has become necessary to split any of the existing companies, this has also been provided for in the Memorandum of Understanding. It is a complete settlement, providing how assets. are to be valued, how they are to be divided, how a scheme for dividing some of the specified companies has to be prepared and who has to do this work. In order to obviate any dispute, the parties have agreed that the entire working out of this agreement will be subject to such directions as the Chairman, IFCI may give pertaining to the implementation of Memorandum of Understanding. He is also empowered to give clarifications and decide any differences relating to the implementation of the Memorandum of Understanding. Such a family settlement which settles disputes within the family should not be lightly interfered with especially when the settlement has been already acted upon by some members of the family. In the present case, from 1989 to1995, the Memorandum of Understanding has been substantially acted upon and hence the parties must be held to the settlement which is in the interest of the family and which avoids disputes between the members of the family. Such settlements have to be viewed a little differently from ordinary contracts and their internal mechanism for working out the settlement should not be lightly disturbed. The respondents may make appropriate submissions in this connection before the High Court. We are sure that they will be considered as and when the High Court is required to do so whether in interlocutory proceedings or at the final hearing.
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the appellants had resorted to two parallel proceedings, one under the Arbitration Act and the other byway ofa suit. When the order of interim injunction obtained by the appellants was vacated in arbitration proceedings, they obtained an injunction in the suit. The learned Single Judge also felt that the issues in the two proceedings were identical, and the suit was substantially to set aside the award. He, therefore, held that the proceedings by way ofa suit was an abuse of the process ofCourt since it amounted to litigating the same issue in a different forum through different proceedings.47. This perception of the learned Judge may be substantially correct though not entirely so. Undoubtedly, if the plaint in the suit is viewed as challenging only the arbitration award, a suit to challenge the award would be re-litigating the issues already raised in the arbitration petition. The suit would also be barred under Section 32 of the Arbitration Act, 1940. Section 32 of the Arbitration Act, 1940 provides that not withstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence effect or validity ofan arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act.48. According to the appellants, however, the suit is not confined only to challenging the award or steps taken pursuant to the award bythe Chairman, Modipon Ltd. in order to enforce it. According to the appellants, in the suit there is an alternative plea that if the impugned decision ofthe Chairman and Managing Director, IFCI is not considered as an award, then that decision as a decision should be set aside. It is contended that the suit, insofar as it challenges the decision of the Chairman and Managing Director, IFCI, as a decision and not as an award is maintainable. In support, the appellants have relied upon the submissions in paragraph 55 of the plaint which we have set out earlier.49. The plaint in the suit, to the limited extent that it challenges the decision as a decision, would not amount to abuse of the process of Court. We are not called upon to examine whether this alternative submission is supported by proper averments and whether there is a proper cause of action framed in the plaint in support of such an alternative plea. This is a matter which the Court hearing the suit will have to examine and decide. But in the suit, the decision cannot be challenged as if it were an award and on the same grounds as if it were an award. The Court will also have to consider the binding nature of such a decision particularly when no mala fides have been alleged against the CMD, IFCI. If ultimately it is found that even on the alternative plea, the claim is not maintainable the Court may pass appropriate orders in accordance with law. But to the limited extent that the suit raises an alternative independent plea, it cannot be considered as re-litigation of the same issue or an abuse of the process of Court.50. In a proceeding under the Arbitration Act, the appellants could not have raised an alternative plea that in case the impugned decision is treated not as an award, but as a decision, the same is bad in law. This plea could only have been raised by filing a separate suit. Similarly in the suit, the appellants could not have raised an alternative plea that in case the impugned decision is considered as an award, the same should be set aside. For this purpose an arbitration petition was required to be filed. Therefore, the suit, if and to the extent that it challenges in accordance with law the impugned decision as a decision, cannot be treated as an abuseCourt.51. Group A also contends that there is no merit in the challenge to the decision of the Chairman of IFCI which has been made binding under the Memorandum of Understanding. The entire Memorandum of Understanding including Clause 9 has to be looked upon as a family settlement between various members of the Modi family. Under the Memorandum of Understanding, all pending disputes in respect of the rights of various members of the Modi family forming part of either Group A or Group B have been finally settled and adjusted. Where it has become necessary to split any of the existing companies, this has also been provided for in the Memorandum of Understanding. It is a complete settlement, providing how assets. are to be valued, how they are to be divided, how a scheme for dividing some of the specified companies has to be prepared and who has to do this work. In order to obviate any dispute, the parties have agreed that the entire working out of this agreement will be subject to such directions as the Chairman, IFCI may give pertaining to the implementation of Memorandum of Understanding. He is also empowered to give clarifications and decide any differences relating to the implementation of the Memorandum of Understanding. Such a family settlement which settles disputes within the family should not be lightly interfered with especially when the settlement has been already acted upon by some members of the family. In the present case, from 1989 to1995, the Memorandum of Understanding has been substantially acted upon and hence the parties must be held to the settlement which is in the interest of the family and which avoids disputes between the members of the family. Such settlements have to be viewed a little differently from ordinary contracts and their internal mechanism for working out the settlement should not be lightly disturbed. The respondents may make appropriate submissions in this connection before the High Court. We are sure that they will be considered as and when the High Court is required to do so whether in interlocutory proceedings or at the final hearing.
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Commissioner of Income Tax, Madras Vs. R. Venkataswamy Naidu | flowers or roots, though no doubt they differ in obvious respects";on the observations of Viswanatha Sastri J. in - Commissioner of Income-tax, Madras v. K. E. Sundara Mudaliar, 1950 Mad 566 (AIR V 37) (C):"In my opinion the word agriculture is used in S. 2 of the Income-tax Act in a wide sense so as to denote the raising of useful or valuable products which derive nutriment from the soil with the aid of human skill and labour. It would include horticulture, which involves intensive cultivation of land as garden in the production of fruits, flowers or vegetables. It would also include growing of trees or plants whose growth is effected by the expenditure of human effort, skill and attention in such operations, as those of ploughing, sowing, planting, pruning, manuring, watering, protecting etc., as held by Spencer J., in Pavadai Pathan v. Ramaswami Chetty".1922 Mad 351 (AIR V9) (D). The word agriculture applies to the cultivation of the soil for food produce or any other useful or valuable growth of the field or garden and is wide enough to cover the rearing, feeding and management of livestock, which live on the land and draw their sustenance from the soil"; and also on the following passage from the referring judgment of Bose, Acting C. J. in - Mahendralal Choudhari v. Commissioner of Income-tax, C. P. and Berar, 1952 Nag 205 (AIR V 39) (E) at p. 207."I do not conceive that the term "agriculture" has been used as a term of art in the Act. It must therefore bear its ordinary meaning. I find it defined in Websters Dictionary as "the art or science of cultivating the ground including the harvesting of crops, and the rearing the management of livestock; tillage, husbandry, farming"and it was urged that the 65 cows in this case were appurtenant to the soil and drew their sustenance from the soil and the milk which was given by these 65 cows stood on the same footing as the fruit of trees, the milk of goats or eggs laid by fowls and was income "derived from land by agriculture" within the meaning of S. 2 (1) (b) (i) or was income derived from such land "by the sale by a cultivator ....of the produce raised .....by him in respect of which no process has been performed other than a process of the nature described in sub-clause (ii)" within the meaning of S. 2 (1) (b) (iii) of the Act.8. This contention was rejected by the Income-tax Officer, the Appellate Assistant Commissioner as well as the Income-tax Appellate Tribunal. They were of the opinion that the assessee had failed to furnish proper materials and had failed to discharge the burden which lay on it to prove that the income derived by it from the sale of milk during the accounting year was agricultural income. They rightly placed the burden of proof on the assessee but the High Court erroneously framed the question in the negative form and placed the burden on the Income-tax Authorities of proving that the income from the sale of milk received by the assessee during the accounting year was not agricultural income. In order to claim an exemption from payment of income-tax in respect of what the assessee considered agricultural income, the assessee had to put before the Income-tax Authorities proper materials which would enable them to come to a conclusion that the income which was sought to be assessed was agricultural income. It was not for the Income-tax Authorities to prove that it was not agricultural income. It was this wrong approach to the question which vitiated the judgment of the High Court and led it to an erroneous conclusion.9. We are not called upon in the facts and circumstances of the case before us to express any opinion as to whether the word "agriculture" is synonymous with "husbandry" or whether the opinions expressed in the several passages cited above are correct becausewe are of the opinion that the assessee failed to put before the Income-tax Authorities the proper materials which it was incumbent upon it to do to enable them to decide whether the income from the sale of milk during the accounting year was agricultural income as claimed by the assessee. The bare allegations unsupported as they were by any evidence of the nature specified above or by any books of account in connection with the maintenance of the 65 cows and marketing of what according to the assessee was the surplus milk after satisfying its needs were not sufficient to discharge the burden which lay upon the assessee of proving that the income derived by it from these sales was agricultural income. On the contrary, the regularity with which the sales of milk were effected by it to the Co-operative Milk Supply Union at Coimbatore, the quantity of milk sold by it which was of the average value of Rs. 2,500 per month and the payment of the sales-tax of Rs. 235 for the year ended the 31st March 1946 showed that what the assessee carried on was a regular business of producing milk and selling it as a commercial proposition and was, therefore, a business and not agricultural operation.10.The assessee was solely responsible for the paucity of these materials inasmuch as it did not furnish any materials to the Income-tax Officer in spite of the latter having given it an adjournment for the purpose. Counsel for the assessee, as an ultimate resort, appealed to us that we should send back the case to the High Court for calling a further statement of case from the Income-tax Appellate Tribunal but we declined to entertain the application at that late stage, the assessee having not availed itself of the opportunity given by the Income-tax Officer to it in the earlier stages of the enquiry and having rested merely on the position in law as emerging from the judgment of Roberts, C. J. in 1938 Rang 260 (AIR V 25) (FB) (A). | 1[ds]9. We are not called upon in the facts and circumstances of the case before us to express any opinion as to whether the word "agriculture" is synonymous with "husbandry" or whether the opinions expressed in the several passages cited above are correct becausewe are of the opinion that the assessee failed to put before theAuthorities the proper materials which it was incumbent upon it to do to enable them to decide whether the income from the sale of milk during the accounting year was agricultural income as claimed by the assessee. The bare allegations unsupported as they were by any evidence of the nature specified above or by any books of account in connection with the maintenance of the 65 cows and marketing of what according to the assessee was the surplus milk after satisfying its needs were not sufficient to discharge the burden which lay upon the assessee of proving that the income derived by it from these sales was agricultural income. On the contrary, the regularity with which the sales of milk were effected by it to theMilk Supply Union at Coimbatore, the quantity of milk sold by it which was of the average value of Rs. 2,500 per month and the payment of theof Rs. 235 for the year ended the 31st March 1946 showed that what the assessee carried on was a regular business of producing milk and selling it as a commercial proposition and was, therefore, a business and not agricultural operation.10.The assessee was solely responsible for the paucity of these materials inasmuch as it did not furnish any materials to theOfficer in spite of the latter having given it an adjournment for the purpose. Counsel for the assessee, as an ultimate resort, appealed to us that we should send back the case to the High Court for calling a further statement of case from theAppellate Tribunal but we declined to entertain the application at that late stage, the assessee having not availed itself of the opportunity given by theOfficer to it in the earlier stages of the enquiry and having rested merely on the position in law as emerging from the judgment of Roberts, C. J. in 1938 Rang 260 (AIR V 25) (FB) (A). | 1 | 2,372 | 401 | ### 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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flowers or roots, though no doubt they differ in obvious respects";on the observations of Viswanatha Sastri J. in - Commissioner of Income-tax, Madras v. K. E. Sundara Mudaliar, 1950 Mad 566 (AIR V 37) (C):"In my opinion the word agriculture is used in S. 2 of the Income-tax Act in a wide sense so as to denote the raising of useful or valuable products which derive nutriment from the soil with the aid of human skill and labour. It would include horticulture, which involves intensive cultivation of land as garden in the production of fruits, flowers or vegetables. It would also include growing of trees or plants whose growth is effected by the expenditure of human effort, skill and attention in such operations, as those of ploughing, sowing, planting, pruning, manuring, watering, protecting etc., as held by Spencer J., in Pavadai Pathan v. Ramaswami Chetty".1922 Mad 351 (AIR V9) (D). The word agriculture applies to the cultivation of the soil for food produce or any other useful or valuable growth of the field or garden and is wide enough to cover the rearing, feeding and management of livestock, which live on the land and draw their sustenance from the soil"; and also on the following passage from the referring judgment of Bose, Acting C. J. in - Mahendralal Choudhari v. Commissioner of Income-tax, C. P. and Berar, 1952 Nag 205 (AIR V 39) (E) at p. 207."I do not conceive that the term "agriculture" has been used as a term of art in the Act. It must therefore bear its ordinary meaning. I find it defined in Websters Dictionary as "the art or science of cultivating the ground including the harvesting of crops, and the rearing the management of livestock; tillage, husbandry, farming"and it was urged that the 65 cows in this case were appurtenant to the soil and drew their sustenance from the soil and the milk which was given by these 65 cows stood on the same footing as the fruit of trees, the milk of goats or eggs laid by fowls and was income "derived from land by agriculture" within the meaning of S. 2 (1) (b) (i) or was income derived from such land "by the sale by a cultivator ....of the produce raised .....by him in respect of which no process has been performed other than a process of the nature described in sub-clause (ii)" within the meaning of S. 2 (1) (b) (iii) of the Act.8. This contention was rejected by the Income-tax Officer, the Appellate Assistant Commissioner as well as the Income-tax Appellate Tribunal. They were of the opinion that the assessee had failed to furnish proper materials and had failed to discharge the burden which lay on it to prove that the income derived by it from the sale of milk during the accounting year was agricultural income. They rightly placed the burden of proof on the assessee but the High Court erroneously framed the question in the negative form and placed the burden on the Income-tax Authorities of proving that the income from the sale of milk received by the assessee during the accounting year was not agricultural income. In order to claim an exemption from payment of income-tax in respect of what the assessee considered agricultural income, the assessee had to put before the Income-tax Authorities proper materials which would enable them to come to a conclusion that the income which was sought to be assessed was agricultural income. It was not for the Income-tax Authorities to prove that it was not agricultural income. It was this wrong approach to the question which vitiated the judgment of the High Court and led it to an erroneous conclusion.9. We are not called upon in the facts and circumstances of the case before us to express any opinion as to whether the word "agriculture" is synonymous with "husbandry" or whether the opinions expressed in the several passages cited above are correct becausewe are of the opinion that the assessee failed to put before the Income-tax Authorities the proper materials which it was incumbent upon it to do to enable them to decide whether the income from the sale of milk during the accounting year was agricultural income as claimed by the assessee. The bare allegations unsupported as they were by any evidence of the nature specified above or by any books of account in connection with the maintenance of the 65 cows and marketing of what according to the assessee was the surplus milk after satisfying its needs were not sufficient to discharge the burden which lay upon the assessee of proving that the income derived by it from these sales was agricultural income. On the contrary, the regularity with which the sales of milk were effected by it to the Co-operative Milk Supply Union at Coimbatore, the quantity of milk sold by it which was of the average value of Rs. 2,500 per month and the payment of the sales-tax of Rs. 235 for the year ended the 31st March 1946 showed that what the assessee carried on was a regular business of producing milk and selling it as a commercial proposition and was, therefore, a business and not agricultural operation.10.The assessee was solely responsible for the paucity of these materials inasmuch as it did not furnish any materials to the Income-tax Officer in spite of the latter having given it an adjournment for the purpose. Counsel for the assessee, as an ultimate resort, appealed to us that we should send back the case to the High Court for calling a further statement of case from the Income-tax Appellate Tribunal but we declined to entertain the application at that late stage, the assessee having not availed itself of the opportunity given by the Income-tax Officer to it in the earlier stages of the enquiry and having rested merely on the position in law as emerging from the judgment of Roberts, C. J. in 1938 Rang 260 (AIR V 25) (FB) (A).
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9. We are not called upon in the facts and circumstances of the case before us to express any opinion as to whether the word "agriculture" is synonymous with "husbandry" or whether the opinions expressed in the several passages cited above are correct becausewe are of the opinion that the assessee failed to put before theAuthorities the proper materials which it was incumbent upon it to do to enable them to decide whether the income from the sale of milk during the accounting year was agricultural income as claimed by the assessee. The bare allegations unsupported as they were by any evidence of the nature specified above or by any books of account in connection with the maintenance of the 65 cows and marketing of what according to the assessee was the surplus milk after satisfying its needs were not sufficient to discharge the burden which lay upon the assessee of proving that the income derived by it from these sales was agricultural income. On the contrary, the regularity with which the sales of milk were effected by it to theMilk Supply Union at Coimbatore, the quantity of milk sold by it which was of the average value of Rs. 2,500 per month and the payment of theof Rs. 235 for the year ended the 31st March 1946 showed that what the assessee carried on was a regular business of producing milk and selling it as a commercial proposition and was, therefore, a business and not agricultural operation.10.The assessee was solely responsible for the paucity of these materials inasmuch as it did not furnish any materials to theOfficer in spite of the latter having given it an adjournment for the purpose. Counsel for the assessee, as an ultimate resort, appealed to us that we should send back the case to the High Court for calling a further statement of case from theAppellate Tribunal but we declined to entertain the application at that late stage, the assessee having not availed itself of the opportunity given by theOfficer to it in the earlier stages of the enquiry and having rested merely on the position in law as emerging from the judgment of Roberts, C. J. in 1938 Rang 260 (AIR V 25) (FB) (A).
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DAVESH NAGALYA (D) & ORS Vs. PRADEEP KUMAR (D) THR. LRS. AND ORS | been held as under: 4. We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-à-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is not violated, with a view to promote substantial justice- subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case, has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into Section 10(3) (iii) itself. We are not disposed to disturb this approach in law or finding of act. 11. Therefore, the subsequent event of death of Pradeep Kumar being relevant was bound to be taken into consideration by the High Court in the review petition. 12. The appellant also relied upon the judgment of this Court reported as Harish Tandon v. Addl. District Magistrate, Allahabad, U.P and Others (1995) 1 SCC 537 interpreting Section 12(2) and 25 of the Act. It was held as under: 17. When sub-section (2) of Section 12 provides that whenever a tenant carrying on business in a building admits a person, who is not a member of his family, as a partner, the tenant shall be deemed to have ceased to occupy the building, full effect has to be given to the mandate of the Legislature. There is no escape from the conclusion that such tenant has ceased to occupy the building. No discretion is left to the court to enquire or investigate as to what was the object of such tenant while inducting a person as partner who was not the member of his family. It can be said that the aforesaid statutory provision requires the court to come to the conclusion that by the contravention made by the tenant, such tenant has ceased to occupy the building. The framers of the Act have not stopped only at the stage of Section 12(2) but have further provided in Section 25, Explanation (i) another legal fiction saying that where the tenant ceases to occupy the building within the meaning of sub-section (2) of Section 12 he shall be deemed to have sub-let that building or part. In view of the three deeming clauses introduced in sub-section (2) of Section 12, sub-section (4) of Section 12 and Explanation (i) to Section 25, no scope has been left for the courts to examine and consider the facts and circumstances of any particular case, as to what was the object of admitting a person who is not the member of the family, as partner and as to whether, in fact, the premises or part thereof have been sub-let to such person. xxx xxx xxx 25. The framers of the Act have clearly expressed their intention in Sections 12, 20 and 25 while protecting the tenant from eviction except on the grounds mentioned in Section 20, that after the death of the original tenant his heirs will be deemed to be holding the premises as joint tenants and for any breach committed by any of such joint tenants, all the heirs of the original tenant have to suffer. They cannot take a plea that unless the grounds for eviction mentioned in sub-section (2) of Section 20 are established individually against each one of them, they cannot be evicted from the premises in question. 13. We find that the order of permitting Subhash Chand as partner with Pradeep Kumar has come to an end by efflux of time and operation of law. In terms of Section 42(c) of the Partnership Act, partnership stands dissolved by death of a partner. One of the partners i.e., Pradeep Kumar died on 21.05.2004. The High Court has not taken note of such fact in the review petition and failed to take into consideration the subsequent events which were germane to the controversy. Subhash Chand, the other partner also died during the pendency of appeal on 25.06.2014. It was represented to the District Magistrate by Pradeep Kumar that Subhash Chand is a divorcee and has no children but such assertion was not found to be correct as he had two children, a son and a daughter who were impleaded as his legal heirs. 14. Therefore, with the death of both partners and not having any clause permitting continuation of the partnership by the legal heirs, the non-residential tenanted premises is deemed to be vacant in law as the tenant is deemed to have ceased to occupy the building. | 1[ds]6. Though learned counsel for the appellant raised an argument that approval of the District Magistrate, an Executive Authority, to seek permission to sublet or admit a partner was against the principle of separation of powers between the executive and judicial or quasi- judicial functions, however we need not examine the said question in the present appeal.In Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. (2019) 4 SCC 376 , this Court re-iterated the principles of law as under:26.2 xxx xxx(iv) An order refusing special leave to appeal may be a non- speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.(v) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.(vi) Once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Order 47 Rule 1 CPC.26.3. Once we hold that the law laid down in Kunhayammed [Kunhayammed v. State of Kerala, (2000) 6 SCC 359 ] is to be followed, it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition. Such a situation is covered in para 37 of Kunhayammed case [Kunhayammed v. State of Kerala, (2000) 6 SCC 359 ].13. We find that the order of permitting Subhash Chand as partner with Pradeep Kumar has come to an end by efflux of time and operation of law. In terms of Section 42(c) of the Partnership Act, partnership stands dissolved by death of a partner. One of the partners i.e., Pradeep Kumar died on 21.05.2004. The High Court has not taken note of such fact in the review petition and failed to take into consideration the subsequent events which were germane to the controversy. Subhash Chand, the other partner also died during the pendency of appeal on 25.06.2014. It was represented to the District Magistrate by Pradeep Kumar that Subhash Chand is a divorcee and has no children but such assertion was not found to be correct as he had two children, a son and a daughter who were impleaded as his legal heirs.14. Therefore, with the death of both partners and not having any clause permitting continuation of the partnership by the legal heirs, the non-residential tenanted premises is deemed to be vacant in law as the tenant is deemed to have ceased to occupy the building. | 1 | 3,344 | 733 | ### 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:
been held as under: 4. We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-à-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is not violated, with a view to promote substantial justice- subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case, has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into Section 10(3) (iii) itself. We are not disposed to disturb this approach in law or finding of act. 11. Therefore, the subsequent event of death of Pradeep Kumar being relevant was bound to be taken into consideration by the High Court in the review petition. 12. The appellant also relied upon the judgment of this Court reported as Harish Tandon v. Addl. District Magistrate, Allahabad, U.P and Others (1995) 1 SCC 537 interpreting Section 12(2) and 25 of the Act. It was held as under: 17. When sub-section (2) of Section 12 provides that whenever a tenant carrying on business in a building admits a person, who is not a member of his family, as a partner, the tenant shall be deemed to have ceased to occupy the building, full effect has to be given to the mandate of the Legislature. There is no escape from the conclusion that such tenant has ceased to occupy the building. No discretion is left to the court to enquire or investigate as to what was the object of such tenant while inducting a person as partner who was not the member of his family. It can be said that the aforesaid statutory provision requires the court to come to the conclusion that by the contravention made by the tenant, such tenant has ceased to occupy the building. The framers of the Act have not stopped only at the stage of Section 12(2) but have further provided in Section 25, Explanation (i) another legal fiction saying that where the tenant ceases to occupy the building within the meaning of sub-section (2) of Section 12 he shall be deemed to have sub-let that building or part. In view of the three deeming clauses introduced in sub-section (2) of Section 12, sub-section (4) of Section 12 and Explanation (i) to Section 25, no scope has been left for the courts to examine and consider the facts and circumstances of any particular case, as to what was the object of admitting a person who is not the member of the family, as partner and as to whether, in fact, the premises or part thereof have been sub-let to such person. xxx xxx xxx 25. The framers of the Act have clearly expressed their intention in Sections 12, 20 and 25 while protecting the tenant from eviction except on the grounds mentioned in Section 20, that after the death of the original tenant his heirs will be deemed to be holding the premises as joint tenants and for any breach committed by any of such joint tenants, all the heirs of the original tenant have to suffer. They cannot take a plea that unless the grounds for eviction mentioned in sub-section (2) of Section 20 are established individually against each one of them, they cannot be evicted from the premises in question. 13. We find that the order of permitting Subhash Chand as partner with Pradeep Kumar has come to an end by efflux of time and operation of law. In terms of Section 42(c) of the Partnership Act, partnership stands dissolved by death of a partner. One of the partners i.e., Pradeep Kumar died on 21.05.2004. The High Court has not taken note of such fact in the review petition and failed to take into consideration the subsequent events which were germane to the controversy. Subhash Chand, the other partner also died during the pendency of appeal on 25.06.2014. It was represented to the District Magistrate by Pradeep Kumar that Subhash Chand is a divorcee and has no children but such assertion was not found to be correct as he had two children, a son and a daughter who were impleaded as his legal heirs. 14. Therefore, with the death of both partners and not having any clause permitting continuation of the partnership by the legal heirs, the non-residential tenanted premises is deemed to be vacant in law as the tenant is deemed to have ceased to occupy the building.
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### Explanation:
6. Though learned counsel for the appellant raised an argument that approval of the District Magistrate, an Executive Authority, to seek permission to sublet or admit a partner was against the principle of separation of powers between the executive and judicial or quasi- judicial functions, however we need not examine the said question in the present appeal.In Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. (2019) 4 SCC 376 , this Court re-iterated the principles of law as under:26.2 xxx xxx(iv) An order refusing special leave to appeal may be a non- speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.(v) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.(vi) Once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Order 47 Rule 1 CPC.26.3. Once we hold that the law laid down in Kunhayammed [Kunhayammed v. State of Kerala, (2000) 6 SCC 359 ] is to be followed, it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition. Such a situation is covered in para 37 of Kunhayammed case [Kunhayammed v. State of Kerala, (2000) 6 SCC 359 ].13. We find that the order of permitting Subhash Chand as partner with Pradeep Kumar has come to an end by efflux of time and operation of law. In terms of Section 42(c) of the Partnership Act, partnership stands dissolved by death of a partner. One of the partners i.e., Pradeep Kumar died on 21.05.2004. The High Court has not taken note of such fact in the review petition and failed to take into consideration the subsequent events which were germane to the controversy. Subhash Chand, the other partner also died during the pendency of appeal on 25.06.2014. It was represented to the District Magistrate by Pradeep Kumar that Subhash Chand is a divorcee and has no children but such assertion was not found to be correct as he had two children, a son and a daughter who were impleaded as his legal heirs.14. Therefore, with the death of both partners and not having any clause permitting continuation of the partnership by the legal heirs, the non-residential tenanted premises is deemed to be vacant in law as the tenant is deemed to have ceased to occupy the building.
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Anandji Haridas & Co. (P.) Ltd Vs. S. P. Kushare, S. T. O. Nagpur & Ors | to 31-12-53. In the State of Orissa v. M/s. Chakobhai Chelabhai and Co., (1961) 1 SCR 719 = (AIR 1961 SC 284 ) this Court held that the issue of one notice under S. 12 (5) of the Orissa Sales Tax Act 1947 which section is similar to Section 11 (4) (a), for several quarters was not contrary to law as the section makes reference to a period which might consist of more than one quarter.21. From the notice in question it cannot be made out whether the assessing authorities wanted to deal with the appellants under Section 10 (1) or under Sec. 11 (4). The notice says that the appellants "had failed to furnish the return as required by a notice in that behalf served on them under Section 10 (1) of the Act, or that they being registered dealers had failed to furnish return for the periods mentioned therein and thereby rendered themselves liable under Section 11 (4) to be assessed to the best of judgment."Quite clearly, the first alternative mentioned in the notice did not apply to the appellants. They are registered dealers. No notice under Sec. 10 (1) had been given to them. The assessing authority by mistake had failed to strike out the first alternative shown in the printed form. That circumstance could not have prejudiced the appellants. It was held by this Court in Chakobhai Chelabhais case 1961-1 SCR-719 = (AIR 1961 SC 284 ) referred to earlier that such a mistake does not vitiate the notice issued.22. But the more serious mistake pointed out by Mr. Gokhale in that notice is that the assessment year mentioned in that notice is not the assessment year of the appellants. Their assessment years commenced from 1st November. This error according to Mr. Gokhale vitiated the notices issued. Yet another complaint made by Mr. Gokhale was that though Rule 33 provides that ordinarily not less than 30 days notice should be given to the assessee, only 9 days notice was given. But this defect was found only in the notice quoted above and not in the other notices issued in l955. For the reasons to be mentioned presently, we see no merit in either of these contentions.23. We are unable to accept the contention of Mr. Gokhale that a notice under Section 11 (4) (a) or 11A (1) is a condition precedent for initiating proceedings under those provisions or that it is the very foundation for the proceedings to be taken under those provisions. The notice contemplated under Rule 32 is not similar to a notice to be issued under Section 34 (1) (b) of the Income Tax Act, 1922. All that Sections 11 (4) and 11A (1) prescribe is that before taking proceedings against an assessee under those provisions, he should be given a reasonable opportunity of being heard. In fact, those sections do not speak of any notice. But Rule 32 prescribes the manner in which the reasonable opportunity contemplated by those provisions should be afforded to the assessee. The period of 30 days prescribed in Rule 32 is not mandatory. The rule itself says that ordinarily not less than 30 days notice should be given.Therefore, the only question to be decided is whether the defects noticed in those notices had prejudiced the appellants. It may be noted that when the assessees received the notices in question, they appeared before the assessing authority, but they did not object to the validity of those notices. They asked for time for submitting their explanation. The time asked for was given. Therefore, the fact that only nine days were given to them for submitting explanation could not have in any manner prejudiced them. So far as the mistake in the notice as regards the assessment year is concerned, the assessees kept silent about that circumstance till 1958. It was only when they were sure that the period of limitation prescribed by Section 11A had expired, they brought that fact to the notice of the assessing authority. It is clear that the appellants were merely trying to take advantage of the mistakes that had crept into the notices. They cannot be permitted to do so. We fail to see why those notices are not valid in respect of the periods commencing from February 1, l953 till 31-10-55. We are unable to agree with Mr. Gokhales contention that each one of those notices should be read separately and that we should not consider them together. If those notices are read together as we think they should be, then it is clear that those notices give the appellants the reasonable opportunity contemplated by Secs. 11 (4 (a) and 11-A (1). In Chatturam v Commr of Income Tax Bihar, (1947) 15 ITR 302 = (AIR 1947 FC 32), the Federal Court held that any irregularity in issuing a notice under S. 22 of the Income Tax Act, l922 does not vitiate the proceeding, that the income tax assessment proceedings commence with the issue of the notice, but the issue or receipt of the notice is, however, not the foundation of the jurisdiction of the income tax officer to make the assessment or of the liability of the assessee to pay the tax. The liability to pay the tax is founded on Sections 3 and 4 of the Income Tax Act which are the charging sections.Section 22 and others are the machinery sections to determine the amount of tax The ratio of that decision applies to the facts of the present case. In our opinion, the notices issued in the year 1955 are valid notices so far as they relate to the period commencing from February 1, 1953 to October 31, 1955.24. In view of our conclusion that every escapement of assessment coming within the scope of Section 11 (4) (a) is also an escapement of assessment under S. 11A (1) a notice issued under Section 11 (4) (a) would be a valid notice in respect of a proceeding under Section 11A (1). | 0[ds]8. Now we may turn to the questions formulated for decision. As mentioned earlier, the main contention advanced on behalf of the appellants is that sub-sec. (3) of Section 11A has brought about a discrimination between those dealers proceeded against under 11 (4) (a) and those dealt with under Section 11A The contention advanced on behalf of the appellants is that the turnover of a registered dealer who has failed to submit his return and also to deposit the tax due from him has escaped assessment; the case of such a dealer comes both within Section 11 (4) (a) as well as Section 11-A, therefore, he can be dealt with under either of those two provisions. Whereas S 11A prescribes a period of limitation for a proceeding under that provision in view of sub-section (3) of Section 11A a proceeding under Section 11 (4) (a) can be initiated at any time under those circumstances it is open to the authorities to proceed against some of the same class of dealers under Section 11 (4) (a) and others under S. 11-A. It was said on their behalf that it is well settled that in its application to legal proceedings Article 14 assures to every :one the same rules of evidence and modes of procedure. in other words. the same rule must exist for all in similar circumstances On the other hand it was urged on behalf of the revenue that Section 11 (4) (a) deals only with registered dealers who have certain advantages under the Act, whereas section 11 A deals with dealers who do not come either under Section 11 (4) or S. 11 (5), and therefore the classification of dealers made under the various provisions is based on real and substantial distinction bearing a just and reasonable relation to the object sought to heis true that the said decisions were given with reference to either Section 34 (1) of the Income Tax Act or Section 14 of the Business Profit Tax Act, but so far as the present enquiry is concerned the said sections are in part materia with Section 11A of the Act. In construing the meaning of the expression escaped assessment in Section 11A of the Act there is no reason why the said expression should bear a more limited meaning than what it bears under the said two Acts. All the three Acts are taxing statutes and the three relevant sections therein are intended to gather the revenue which has improperly escaped. A division Bench of the Madras High Court in the State of Madras v. Balu Chettiar, (1956) 7 STC 519 = (AIR 1957 Mad 681 ) following the decisions of a Full Bench of that Court, held that where an assessee did not file at any time a return of his turnover for a year and, therefore, there was no assessment made,. the turn over escaped assessment.In our judgment, the knowledge of the fact that the appellants had not submitted their quarterly returns as well as the treasury challans, constituted an information to the assessing authority from which it could be satisfied and in fact it was satisfied that the turnovers with which we are concerned in this case had escapedthose facts, it is seen that no notice had been issued within three years in respect of the turnover relating to the period 1-5-52 to 31-12-52. The assessment in respect of that period is clearly barred in view of our earlier conclusion. The period 1-1152 to 31-12-52 forms part of the quarter commencing from 1-11-52. No notice was given in respect of that quarter. A quarter forms a unit by itself. Therefore, it follows that the proceeding in respect of that quarter is also barred bymay be noted that when the assessees received the notices in question, they appeared before the assessing authority, but they did not object to the validity of those notices. They asked for time for submitting their explanation. The time asked for was given. Therefore, the fact that only nine days were given to them for submitting explanation could not have in any manner prejudiced them. So far as the mistake in the notice as regards the assessment year is concerned, the assessees kept silent about that circumstance till 1958. It was only when they were sure that the period of limitation prescribed by Section 11A had expired, they brought that fact to the notice of the assessing authority. It is clear that the appellants were merely trying to take advantage of the mistakes that had crept into the notices. They cannot be permitted to do so. We fail to see why those notices are not valid in respect of the periods commencing from February 1, l953 till 31-10-55. We are unable to agree with Mr. Gokhales contention that each one of those notices should be read separately and that we should not consider them together. If those notices are read together as we think they should be, then it is clear that those notices give the appellants the reasonable opportunity contemplated by Secs. 11 (4 (a) and 11-A (1). In Chatturam v Commr of Income Tax Bihar, (1947) 15 ITR 302 = (AIR 1947 FC 32), the Federal Court held that any irregularity in issuing a notice under S. 22 of the Income Tax Act, l922 does not vitiate the proceeding, that the income tax assessment proceedings commence with the issue of the notice, but the issue or receipt of the notice is, however, not the foundation of the jurisdiction of the income tax officer to make the assessment or of the liability of the assessee to pay the tax. The liability to pay the tax is founded on Sections 3 and 4 of the Income Tax Act which are the charging sections.Section 22 and others are the machinery sections to determine the amount of tax The ratio of that decision applies to the facts of the present case. In our opinion, the notices issued in the year 1955 are valid notices so far as they relate to the period commencing from February 1, 1953 to October 31, 1955.24. In view of our conclusion that every escapement of assessment coming within the scope of Section 11 (4) (a) is also an escapement of assessment under S. 11A (1) a notice issued under Section 11 (4) (a) would be a valid notice in respect of a proceeding under Section 11A (1). | 0 | 7,752 | 1,196 | ### 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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to 31-12-53. In the State of Orissa v. M/s. Chakobhai Chelabhai and Co., (1961) 1 SCR 719 = (AIR 1961 SC 284 ) this Court held that the issue of one notice under S. 12 (5) of the Orissa Sales Tax Act 1947 which section is similar to Section 11 (4) (a), for several quarters was not contrary to law as the section makes reference to a period which might consist of more than one quarter.21. From the notice in question it cannot be made out whether the assessing authorities wanted to deal with the appellants under Section 10 (1) or under Sec. 11 (4). The notice says that the appellants "had failed to furnish the return as required by a notice in that behalf served on them under Section 10 (1) of the Act, or that they being registered dealers had failed to furnish return for the periods mentioned therein and thereby rendered themselves liable under Section 11 (4) to be assessed to the best of judgment."Quite clearly, the first alternative mentioned in the notice did not apply to the appellants. They are registered dealers. No notice under Sec. 10 (1) had been given to them. The assessing authority by mistake had failed to strike out the first alternative shown in the printed form. That circumstance could not have prejudiced the appellants. It was held by this Court in Chakobhai Chelabhais case 1961-1 SCR-719 = (AIR 1961 SC 284 ) referred to earlier that such a mistake does not vitiate the notice issued.22. But the more serious mistake pointed out by Mr. Gokhale in that notice is that the assessment year mentioned in that notice is not the assessment year of the appellants. Their assessment years commenced from 1st November. This error according to Mr. Gokhale vitiated the notices issued. Yet another complaint made by Mr. Gokhale was that though Rule 33 provides that ordinarily not less than 30 days notice should be given to the assessee, only 9 days notice was given. But this defect was found only in the notice quoted above and not in the other notices issued in l955. For the reasons to be mentioned presently, we see no merit in either of these contentions.23. We are unable to accept the contention of Mr. Gokhale that a notice under Section 11 (4) (a) or 11A (1) is a condition precedent for initiating proceedings under those provisions or that it is the very foundation for the proceedings to be taken under those provisions. The notice contemplated under Rule 32 is not similar to a notice to be issued under Section 34 (1) (b) of the Income Tax Act, 1922. All that Sections 11 (4) and 11A (1) prescribe is that before taking proceedings against an assessee under those provisions, he should be given a reasonable opportunity of being heard. In fact, those sections do not speak of any notice. But Rule 32 prescribes the manner in which the reasonable opportunity contemplated by those provisions should be afforded to the assessee. The period of 30 days prescribed in Rule 32 is not mandatory. The rule itself says that ordinarily not less than 30 days notice should be given.Therefore, the only question to be decided is whether the defects noticed in those notices had prejudiced the appellants. It may be noted that when the assessees received the notices in question, they appeared before the assessing authority, but they did not object to the validity of those notices. They asked for time for submitting their explanation. The time asked for was given. Therefore, the fact that only nine days were given to them for submitting explanation could not have in any manner prejudiced them. So far as the mistake in the notice as regards the assessment year is concerned, the assessees kept silent about that circumstance till 1958. It was only when they were sure that the period of limitation prescribed by Section 11A had expired, they brought that fact to the notice of the assessing authority. It is clear that the appellants were merely trying to take advantage of the mistakes that had crept into the notices. They cannot be permitted to do so. We fail to see why those notices are not valid in respect of the periods commencing from February 1, l953 till 31-10-55. We are unable to agree with Mr. Gokhales contention that each one of those notices should be read separately and that we should not consider them together. If those notices are read together as we think they should be, then it is clear that those notices give the appellants the reasonable opportunity contemplated by Secs. 11 (4 (a) and 11-A (1). In Chatturam v Commr of Income Tax Bihar, (1947) 15 ITR 302 = (AIR 1947 FC 32), the Federal Court held that any irregularity in issuing a notice under S. 22 of the Income Tax Act, l922 does not vitiate the proceeding, that the income tax assessment proceedings commence with the issue of the notice, but the issue or receipt of the notice is, however, not the foundation of the jurisdiction of the income tax officer to make the assessment or of the liability of the assessee to pay the tax. The liability to pay the tax is founded on Sections 3 and 4 of the Income Tax Act which are the charging sections.Section 22 and others are the machinery sections to determine the amount of tax The ratio of that decision applies to the facts of the present case. In our opinion, the notices issued in the year 1955 are valid notices so far as they relate to the period commencing from February 1, 1953 to October 31, 1955.24. In view of our conclusion that every escapement of assessment coming within the scope of Section 11 (4) (a) is also an escapement of assessment under S. 11A (1) a notice issued under Section 11 (4) (a) would be a valid notice in respect of a proceeding under Section 11A (1).
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his return and also to deposit the tax due from him has escaped assessment; the case of such a dealer comes both within Section 11 (4) (a) as well as Section 11-A, therefore, he can be dealt with under either of those two provisions. Whereas S 11A prescribes a period of limitation for a proceeding under that provision in view of sub-section (3) of Section 11A a proceeding under Section 11 (4) (a) can be initiated at any time under those circumstances it is open to the authorities to proceed against some of the same class of dealers under Section 11 (4) (a) and others under S. 11-A. It was said on their behalf that it is well settled that in its application to legal proceedings Article 14 assures to every :one the same rules of evidence and modes of procedure. in other words. the same rule must exist for all in similar circumstances On the other hand it was urged on behalf of the revenue that Section 11 (4) (a) deals only with registered dealers who have certain advantages under the Act, whereas section 11 A deals with dealers who do not come either under Section 11 (4) or S. 11 (5), and therefore the classification of dealers made under the various provisions is based on real and substantial distinction bearing a just and reasonable relation to the object sought to heis true that the said decisions were given with reference to either Section 34 (1) of the Income Tax Act or Section 14 of the Business Profit Tax Act, but so far as the present enquiry is concerned the said sections are in part materia with Section 11A of the Act. In construing the meaning of the expression escaped assessment in Section 11A of the Act there is no reason why the said expression should bear a more limited meaning than what it bears under the said two Acts. All the three Acts are taxing statutes and the three relevant sections therein are intended to gather the revenue which has improperly escaped. A division Bench of the Madras High Court in the State of Madras v. Balu Chettiar, (1956) 7 STC 519 = (AIR 1957 Mad 681 ) following the decisions of a Full Bench of that Court, held that where an assessee did not file at any time a return of his turnover for a year and, therefore, there was no assessment made,. the turn over escaped assessment.In our judgment, the knowledge of the fact that the appellants had not submitted their quarterly returns as well as the treasury challans, constituted an information to the assessing authority from which it could be satisfied and in fact it was satisfied that the turnovers with which we are concerned in this case had escapedthose facts, it is seen that no notice had been issued within three years in respect of the turnover relating to the period 1-5-52 to 31-12-52. The assessment in respect of that period is clearly barred in view of our earlier conclusion. The period 1-1152 to 31-12-52 forms part of the quarter commencing from 1-11-52. No notice was given in respect of that quarter. A quarter forms a unit by itself. Therefore, it follows that the proceeding in respect of that quarter is also barred bymay be noted that when the assessees received the notices in question, they appeared before the assessing authority, but they did not object to the validity of those notices. They asked for time for submitting their explanation. The time asked for was given. Therefore, the fact that only nine days were given to them for submitting explanation could not have in any manner prejudiced them. So far as the mistake in the notice as regards the assessment year is concerned, the assessees kept silent about that circumstance till 1958. It was only when they were sure that the period of limitation prescribed by Section 11A had expired, they brought that fact to the notice of the assessing authority. It is clear that the appellants were merely trying to take advantage of the mistakes that had crept into the notices. They cannot be permitted to do so. We fail to see why those notices are not valid in respect of the periods commencing from February 1, l953 till 31-10-55. We are unable to agree with Mr. Gokhales contention that each one of those notices should be read separately and that we should not consider them together. If those notices are read together as we think they should be, then it is clear that those notices give the appellants the reasonable opportunity contemplated by Secs. 11 (4 (a) and 11-A (1). In Chatturam v Commr of Income Tax Bihar, (1947) 15 ITR 302 = (AIR 1947 FC 32), the Federal Court held that any irregularity in issuing a notice under S. 22 of the Income Tax Act, l922 does not vitiate the proceeding, that the income tax assessment proceedings commence with the issue of the notice, but the issue or receipt of the notice is, however, not the foundation of the jurisdiction of the income tax officer to make the assessment or of the liability of the assessee to pay the tax. The liability to pay the tax is founded on Sections 3 and 4 of the Income Tax Act which are the charging sections.Section 22 and others are the machinery sections to determine the amount of tax The ratio of that decision applies to the facts of the present case. In our opinion, the notices issued in the year 1955 are valid notices so far as they relate to the period commencing from February 1, 1953 to October 31, 1955.24. In view of our conclusion that every escapement of assessment coming within the scope of Section 11 (4) (a) is also an escapement of assessment under S. 11A (1) a notice issued under Section 11 (4) (a) would be a valid notice in respect of a proceeding under Section 11A (1).
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Commnr. Of Central Excise, Mumbai Vs. M/S. Kalvert Foods India Pvt. Ltd. | counsel appearing for the respondents submitted that what is a `Brand name is as stated in paragraph 4 of the said Judgment. He relied on the said definition of `Brand name and then submitted that the phrase “New Improved Quick Frozen French Fries” was not held to be a brand name, and therefore, according to him the brand name of the respondent company “Kalvert” being a “House Name” could not be termed as “Brand Name”. 32. In our considered opinion, the aforesaid brand name “New Improved Quick Frozen French Fries” is a descriptive word and the same could not have been termed and coined either as a “house name” or a “brand name” under any circumstances. There can be no dispute therefore with regard to the proposition of law laid down by this Court in the aforesaid decision. We may also refer to another decision of this Court in Astra Pharmaceutical Pvt. Ltd. V. Collector of Central Excise, Chandigarh, reported in [1995 (75) E.L.T. 214 (S.C.)]. That was a case of Pharmaceutical product. In the said decision also the manner and scope of “Brand name” and distinction between `House mark and “Product mark/Brand name” has been brought out. It was stated therein by this Court that “House mark” which is usually a device in the form of an emblem, word or both is an identification of the manufacturer which is compulsory under the Drug Rules. On the other hand, product mark or brand name is invariably a word or a combination of a word and letter or numeral by which the product is identified and asked for. In paragraph 6 of the said Judgment, Narayanans Book on Trade Marks and Passing-Off was also referred to and since the same may have a bearing to the facts of the present case, it is extracted herein below: “677A. House mark and Product mark (or Brand name).In the pharmaceutical business a distinction is made between a House mark and a Product mark. The former is used on all the products of the manufacturer. It is usually a device in the form of an emblem, word or both. For each product a separate mark known as a product mark or a brand name is used which is invariably a word or a combination of a word and letter or numeral by which the product is identified and asked for. In respect of all products both the Product mark and House mark will appear side by side on all the labels, cartons etc. Goods are ordered only by the product mark or Brand name. The House mark serves as an emblem of the manufacturer projecting the image of the manufacturer generally.” 33. In the book of “Trade Marks” by Sarkar, the distinction between the expressions “House mark” and “Product mark” or “Brand name” has been clearly brought out by way of reference to the decision in Astra Pharmaceutical Pvt. Ltd. (supra). It is stated therein that “House mark” is used on all the products of the manufacturer and that it is usually a device or a form of emblem of words or both. It was also pointed out that for each product a separate mark known as a “Product mark” or “Brand name” is used which is invariably a word or combination of word and letter or numeral by which the product is identified and asked for. It was also stated that in respect of all products both the “Product mark” and “Brand name” would appear side by side on all the labels, cartons etc. and that the “House mark” is used generally as an emblem of the manufacturer projecting the image of the manufacturer, whereas “Brand name” is a name or trade mark either unregistered or registered under the Act. 34. Therefore, it is not necessary that “Brand name” should be compulsorily registered. A person can carry on his trade by using a “Brand name” which is not even registered. But in violation/infringement of trade mark, remedy available would be distinctly different to an unregistered brand name from that of remedy available to a registered brand name.35. Unfortunately, the Tribunal did not consider and properly appreciate the apparent distinction between the two distinct expressions i.e. “House mark” and “Brand name” and thereby proceeded to set aside the well-written Judgment passed by the Commissioner of Central Excise, Mumbai who has recorded his reasons giving cogent basis for his reasoning. 36. In the book of “Law of Trade Marks” by K.C. Kailasam and Ramu Vedaraman the distinction between `Product mark and `House mark has been beautifully delineated, which is as under: “It is possible that the proprietor may use several trade marks in respect of his goods (known as Product mark), besides using a common mark in all his products to indicate the origin of the goods from the enterprise (known as House mark). This practice is more predominant in the pharmaceutical trade. Though both are trade marks and are registrable as such, each has its own distinct function. While the House mark represents the image of the enterprise from which the goods emanate, the Product mark is the means by which goods are identified and purchased in the market place and it the focal point of presentation and advertisement.” 37. In view of above discussion, it is clear that what was being used by the respondent under the expression “Kalvert” was a “Brand name” and not a “House mark” as sought to be alleged by the respondent and has been wrongly accepted by the Tribunal. Therefore, the articles of assorted jams, pickles, squashes, cooking sauces, chutneys, syrups, synthetic vinegars etc. manufactured and sold by the respondent company under a brand name “Kalvert” were liable to be charged for excise duty at the rate prescribed in the Excise Law. 38. The Tribunal committed manifest error in coming to its conclusion and therefore the order passed by the Tribunal is set aside and the order dated 27.02.2002 passed by the Commissioner of Central Excise, Mumbai is restored. | 1[ds]18. During the course of arguments learned counsel appearing for the respondent submitted before us that although the aforesaid statements of Managing Director of the Company and other persons were recorded during the course of judicial proceedings but the same were retracted statements, and therefore, they cannot be relied upon. However, the statements were recorded by the Central Excise Officers and they were not police officers.Therefore, such statements made by the Managing Director of the Company and other persons containing all the details about the functioning of the company which could be made only with personal knowledge of the respondents and therefore could not have been obtained through coercion or duress or through dictation. We see no reason why the aforesaid statements made in the circumstances of the case should not be considered, looked into and relied upon.19. We are of the considered opinion that it is established from the record that the aforesaid statements were given by the concerned persons out of their own volition and there is no allegation of threat, force, coercion, duress or pressure being utilized by the officers to extract the statements which corroborated each other. Besides, the Managing Director of the Company on his own volition deposited the amount of Rs. 11 lakhs towards excise duty and therefore in the facts and circumstance of the present case, the aforesaid statement of the counsel for the respondents cannot be accepted. This fact clearly proves the conclusion that the statements of the concerned persons were of their volition and not outcome of any duress.20. During the course of arguments our attention was also drawn to the statement of Managing Director of the Company where he had admitted the fact of clandestine clearance of excisable goods and therefore has voluntarily come forward to sort out the issue and to pay the Central Excise duty liability and that he has paid Central Excise duty voluntarily under TR6 Challans totaling to Rs. 11,00,000/- on various dates. Similarly statement of Miss Vinita M. Khanolkar - proprietor of RTC was also recorded under Section 14 of the Central Excise Act, 1944 along with Shri Shekhar Mogaviera - Production Supervisor of M/s. Kalvert Foods India Pvt. Ltd. Statements of various other persons were also recorded under Section 14 of the Central Excise Act.In view of the aforesaid position and since there was clandestine removal of excisable goods, the period of limitation in the present case would have to be computed from the date of their knowledge, arrived at upon raids on the premises. In the present case therefore the extended period of limitation would be available as there was suppression of facts by the respondents with the intention to evade the central excise duty inasmuch as they did not account for the manufactured goods in the prescribed record.In our considered opinion, the aforesaid findings are also totally wrong and recorded in violation of the law of Trade Marks. During the course of arguments, our attention was drawn to a Judgment of this Court in the case of TARAI FOOD LTD. V. COMMISSIONER OF CENTRAL EXCISE, MEERUT-II, reported in 2007(8) S.T.R. 442 (S.C.). While placing reliance on the said Judgment, the counsel appearing for the respondents submitted that what is a `Brand name is as stated in paragraph 4 of the said Judgment. He relied on the said definition of `Brand name and then submitted that the phraseImproved Quick Frozen Frenchwas not held to be a brand name, and therefore, according to him the brand name of the respondent companycould not be termed as. In our considered opinion, the aforesaid brand named Quick Frozen Frenchis a descriptive word and the same could not have been termed and coined either as aor aer any circumstances. There can be no dispute therefore with regard to the proposition of law laid down by this Court in the aforesaid decision. We may also refer to another decision of this Court in Astra Pharmaceutical Pvt. Ltd. V. Collector of Central Excise, Chandigarh, reported in [1995 (75) E.L.T. 214 (S.C.)]. That was a case of Pharmaceutical product. In the said decision also the manner and scope ofnd distinction between `House mark andhas been brought out. It was stated therein by this Court thatch is usually a device in the form of an emblem, word or both is an identification of the manufacturer which is compulsory under the Drug Rules. On the other hand, product mark or brand name is invariably a wordTherefore, it is not necessary thatld be compulsorily registered. A person can carry on his trade by using ach is not even registered. But in violation/infringement of trade mark, remedy available would be distinctly different to an unregistered brand name from that of remedy available to a registered brand name.35. Unfortunately, the Tribunal did not consider and properly appreciate the apparent distinction between the two distinct expressions i.e.and thereby proceeded to set aside the well-written Judgment passed by the Commissioner of Central Excise, Mumbai who has recorded his reasons giving cogent basis for his reasoning.In view of above discussion, it is clear that what was being used by the respondent under the expressionand not aas sought to be alleged by the respondent and has been wrongly accepted by the Tribunal. Therefore, the articles of assorted jams, pickles, squashes, cooking sauces, chutneys, syrups, synthetic vinegars etc. manufactured and sold by the respondent company under a brand namewere liable to be charged for excise duty at the rate prescribed in the Excise Law. | 1 | 4,360 | 1,003 | ### 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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counsel appearing for the respondents submitted that what is a `Brand name is as stated in paragraph 4 of the said Judgment. He relied on the said definition of `Brand name and then submitted that the phrase “New Improved Quick Frozen French Fries” was not held to be a brand name, and therefore, according to him the brand name of the respondent company “Kalvert” being a “House Name” could not be termed as “Brand Name”. 32. In our considered opinion, the aforesaid brand name “New Improved Quick Frozen French Fries” is a descriptive word and the same could not have been termed and coined either as a “house name” or a “brand name” under any circumstances. There can be no dispute therefore with regard to the proposition of law laid down by this Court in the aforesaid decision. We may also refer to another decision of this Court in Astra Pharmaceutical Pvt. Ltd. V. Collector of Central Excise, Chandigarh, reported in [1995 (75) E.L.T. 214 (S.C.)]. That was a case of Pharmaceutical product. In the said decision also the manner and scope of “Brand name” and distinction between `House mark and “Product mark/Brand name” has been brought out. It was stated therein by this Court that “House mark” which is usually a device in the form of an emblem, word or both is an identification of the manufacturer which is compulsory under the Drug Rules. On the other hand, product mark or brand name is invariably a word or a combination of a word and letter or numeral by which the product is identified and asked for. In paragraph 6 of the said Judgment, Narayanans Book on Trade Marks and Passing-Off was also referred to and since the same may have a bearing to the facts of the present case, it is extracted herein below: “677A. House mark and Product mark (or Brand name).In the pharmaceutical business a distinction is made between a House mark and a Product mark. The former is used on all the products of the manufacturer. It is usually a device in the form of an emblem, word or both. For each product a separate mark known as a product mark or a brand name is used which is invariably a word or a combination of a word and letter or numeral by which the product is identified and asked for. In respect of all products both the Product mark and House mark will appear side by side on all the labels, cartons etc. Goods are ordered only by the product mark or Brand name. The House mark serves as an emblem of the manufacturer projecting the image of the manufacturer generally.” 33. In the book of “Trade Marks” by Sarkar, the distinction between the expressions “House mark” and “Product mark” or “Brand name” has been clearly brought out by way of reference to the decision in Astra Pharmaceutical Pvt. Ltd. (supra). It is stated therein that “House mark” is used on all the products of the manufacturer and that it is usually a device or a form of emblem of words or both. It was also pointed out that for each product a separate mark known as a “Product mark” or “Brand name” is used which is invariably a word or combination of word and letter or numeral by which the product is identified and asked for. It was also stated that in respect of all products both the “Product mark” and “Brand name” would appear side by side on all the labels, cartons etc. and that the “House mark” is used generally as an emblem of the manufacturer projecting the image of the manufacturer, whereas “Brand name” is a name or trade mark either unregistered or registered under the Act. 34. Therefore, it is not necessary that “Brand name” should be compulsorily registered. A person can carry on his trade by using a “Brand name” which is not even registered. But in violation/infringement of trade mark, remedy available would be distinctly different to an unregistered brand name from that of remedy available to a registered brand name.35. Unfortunately, the Tribunal did not consider and properly appreciate the apparent distinction between the two distinct expressions i.e. “House mark” and “Brand name” and thereby proceeded to set aside the well-written Judgment passed by the Commissioner of Central Excise, Mumbai who has recorded his reasons giving cogent basis for his reasoning. 36. In the book of “Law of Trade Marks” by K.C. Kailasam and Ramu Vedaraman the distinction between `Product mark and `House mark has been beautifully delineated, which is as under: “It is possible that the proprietor may use several trade marks in respect of his goods (known as Product mark), besides using a common mark in all his products to indicate the origin of the goods from the enterprise (known as House mark). This practice is more predominant in the pharmaceutical trade. Though both are trade marks and are registrable as such, each has its own distinct function. While the House mark represents the image of the enterprise from which the goods emanate, the Product mark is the means by which goods are identified and purchased in the market place and it the focal point of presentation and advertisement.” 37. In view of above discussion, it is clear that what was being used by the respondent under the expression “Kalvert” was a “Brand name” and not a “House mark” as sought to be alleged by the respondent and has been wrongly accepted by the Tribunal. Therefore, the articles of assorted jams, pickles, squashes, cooking sauces, chutneys, syrups, synthetic vinegars etc. manufactured and sold by the respondent company under a brand name “Kalvert” were liable to be charged for excise duty at the rate prescribed in the Excise Law. 38. The Tribunal committed manifest error in coming to its conclusion and therefore the order passed by the Tribunal is set aside and the order dated 27.02.2002 passed by the Commissioner of Central Excise, Mumbai is restored.
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18. During the course of arguments learned counsel appearing for the respondent submitted before us that although the aforesaid statements of Managing Director of the Company and other persons were recorded during the course of judicial proceedings but the same were retracted statements, and therefore, they cannot be relied upon. However, the statements were recorded by the Central Excise Officers and they were not police officers.Therefore, such statements made by the Managing Director of the Company and other persons containing all the details about the functioning of the company which could be made only with personal knowledge of the respondents and therefore could not have been obtained through coercion or duress or through dictation. We see no reason why the aforesaid statements made in the circumstances of the case should not be considered, looked into and relied upon.19. We are of the considered opinion that it is established from the record that the aforesaid statements were given by the concerned persons out of their own volition and there is no allegation of threat, force, coercion, duress or pressure being utilized by the officers to extract the statements which corroborated each other. Besides, the Managing Director of the Company on his own volition deposited the amount of Rs. 11 lakhs towards excise duty and therefore in the facts and circumstance of the present case, the aforesaid statement of the counsel for the respondents cannot be accepted. This fact clearly proves the conclusion that the statements of the concerned persons were of their volition and not outcome of any duress.20. During the course of arguments our attention was also drawn to the statement of Managing Director of the Company where he had admitted the fact of clandestine clearance of excisable goods and therefore has voluntarily come forward to sort out the issue and to pay the Central Excise duty liability and that he has paid Central Excise duty voluntarily under TR6 Challans totaling to Rs. 11,00,000/- on various dates. Similarly statement of Miss Vinita M. Khanolkar - proprietor of RTC was also recorded under Section 14 of the Central Excise Act, 1944 along with Shri Shekhar Mogaviera - Production Supervisor of M/s. Kalvert Foods India Pvt. Ltd. Statements of various other persons were also recorded under Section 14 of the Central Excise Act.In view of the aforesaid position and since there was clandestine removal of excisable goods, the period of limitation in the present case would have to be computed from the date of their knowledge, arrived at upon raids on the premises. In the present case therefore the extended period of limitation would be available as there was suppression of facts by the respondents with the intention to evade the central excise duty inasmuch as they did not account for the manufactured goods in the prescribed record.In our considered opinion, the aforesaid findings are also totally wrong and recorded in violation of the law of Trade Marks. During the course of arguments, our attention was drawn to a Judgment of this Court in the case of TARAI FOOD LTD. V. COMMISSIONER OF CENTRAL EXCISE, MEERUT-II, reported in 2007(8) S.T.R. 442 (S.C.). While placing reliance on the said Judgment, the counsel appearing for the respondents submitted that what is a `Brand name is as stated in paragraph 4 of the said Judgment. He relied on the said definition of `Brand name and then submitted that the phraseImproved Quick Frozen Frenchwas not held to be a brand name, and therefore, according to him the brand name of the respondent companycould not be termed as. In our considered opinion, the aforesaid brand named Quick Frozen Frenchis a descriptive word and the same could not have been termed and coined either as aor aer any circumstances. There can be no dispute therefore with regard to the proposition of law laid down by this Court in the aforesaid decision. We may also refer to another decision of this Court in Astra Pharmaceutical Pvt. Ltd. V. Collector of Central Excise, Chandigarh, reported in [1995 (75) E.L.T. 214 (S.C.)]. That was a case of Pharmaceutical product. In the said decision also the manner and scope ofnd distinction between `House mark andhas been brought out. It was stated therein by this Court thatch is usually a device in the form of an emblem, word or both is an identification of the manufacturer which is compulsory under the Drug Rules. On the other hand, product mark or brand name is invariably a wordTherefore, it is not necessary thatld be compulsorily registered. A person can carry on his trade by using ach is not even registered. But in violation/infringement of trade mark, remedy available would be distinctly different to an unregistered brand name from that of remedy available to a registered brand name.35. Unfortunately, the Tribunal did not consider and properly appreciate the apparent distinction between the two distinct expressions i.e.and thereby proceeded to set aside the well-written Judgment passed by the Commissioner of Central Excise, Mumbai who has recorded his reasons giving cogent basis for his reasoning.In view of above discussion, it is clear that what was being used by the respondent under the expressionand not aas sought to be alleged by the respondent and has been wrongly accepted by the Tribunal. Therefore, the articles of assorted jams, pickles, squashes, cooking sauces, chutneys, syrups, synthetic vinegars etc. manufactured and sold by the respondent company under a brand namewere liable to be charged for excise duty at the rate prescribed in the Excise Law.
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State of Punjab Vs. Gurmit Singh and Others | alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross-examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The Court, therefore, should not sit as a silent spectator while the victim of crime i being cross-examined by the defence. It must effectively control the recording of evidence in the Court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings, what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as "discrepancies and contradictions" in her evidence. 20. The alarming frequency of crime against women led the Parliament to enact Criminal Law (Amendment) Act, 1983 [Act 43 of 1983] to make the law of rape more realistic. By the Amendment Act, Sections 375 and 376 were amended and certain more penal provisions were incorporated for punishing such custodians who molest a women under their custody or care. Section 114-A was also added in the Evidence Act for drawing a conclusive presumption as to the absence of consent in certain prosecutions for rape, involving such custodians. Section 327 of the Code of Criminal Procedure which deals with the right of an accused to an open trial was also amended by addition of sub-sections 2 and 3 after re-numbering the old Section as sub-section (1). Sub-sections 2 and 3 of Section 327 Cr. P.C. provide as follows:Section 327. Court to be open - (2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under Section 376, Section 376-A, Section 376- B, Section 376-C or Section 376-D of the Indian Penal Code shall be conducted in camera: 21. Provided that the presiding judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or buildingused by the Court. (3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the Court." 22. These two provisions are in the nature of exception to the general rule of an open trial. Inspite of the amendment, however, it is seen that the trial courts either are not conscious of the amendment or do not realise its importance for hardly does one come across a case where the enquiry and trial of a rape case has been conducted by the court in camera. The expression that the inquiry into and trial of rape "shall be conducted in camera" as occurring in sub-section (2) of Section 327 Cr. P.C. is not only significant but very important. It casts a duty on the Court to conduct the trial of rape cases etc. invariably "in camera". The Courts are obliged to act in furtherance of the intention expressed by the Legislature and not to ignore its mandate and must invariably take recourse to the provisions of Section 327 (2) and (3) Cr. P.C. and hold the trial of rape cases in camera. It would enable the victim of crime to be a little comfortable and answer the questions with greater ease in not too familiar a surroundings. Trial in camera would not only be in keeping with the self-respect of the victim of crime and in tune with the legislative intent but is also likely to improve the quality of the evidence of a prosecutrix because s he would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of public. The improved quality of her evidence would assist the courts in arriving at the truth and sifting truth from falsehood. The High Courts would therefore be well advised to draw the attention of the trial courts to the amended provisions of Section 327 Cr. P.C. When trials are held in camera, it would not be lawful for any person to print or publish any matter in relation to t he proceedings in the case, except with the previous permission of the Court as envisaged by Section 327 (3) Cr. P.C. This would save any further embarrassment being caused to the victim of sex crime. Wherever possible it may also be worth considering whether it would not be more desirable that the cases of sexual assaults on the females are tried by lady Judges, wherever available, so that the prosecutrix can make her statement with greater ease and assist the Courts to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities while appreciating evidence in such cases. The Courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime. The anonymity of the victim of the crime must be maintained as far as possible throughout. | 1[ds]The grounds on which the trial court disbelieved the version of the prosecutrix are not at all sound. The findings recorded by the trial court rebel against realism and lose their sanctity and credibility. The court lost sight of the fact that the prosecutrix is a village girl.She was a student of Xth Class. It was wholly irrelevant and immaterial whether she was ignorant of the difference between a Fiat, an Ambassador or a Master car. Again, the statement of the prosecutrix at the trial that she did not remember the colour of the car, though she had given the colour of the car in the FIR was of no material effect on the reliability of her testimony. No fault could also be found with the prosecution version on the ground that the prosecutrix had not raised an alarm while being abducted.are in respectful agreement with the above exposition of law. In the instant case our careful analysis of the statement of the prosecutrix has created an impression on our minds that she is a reliable and truthful witness. Her testimony suffers from no infirmity or blemish whatsoever. We have no hesitation in acting upon her testimony alone withoutlooking for any `corroboration. However, in this case there is ample corroboration available on the record to lend further credence to the testimony of themedical evidence has lent full corroboration to the testimony o f the prosecutrix. According to PW1 lady Doctor Sukhvinder Kaur she had examined the prosecutrix on 2.4.84 at about 7.45 p.m. at the Primary Health Center, Pakhowal, and had found that "her hymen was lacerated with fine rediate tears, swollen and painful". The pubic hair were also found mated. She opined thatintercourse with the prosecutrix could be "one of the reasonfor the laceration of the hymen" of the prosecutrix. She also opined that the "possibility cannot be ruled out t hat (prosecutrix) was not habitual ofearlier to her examination by her on 2.4.84". During herthe lady doctor admitted that she had not inserted her fingers inside the vagina of the prosecutrix during theexamination but that she had put a vaginal speculum for taking the swabs from the posterior vaginal fornix for preparing the slides. She disclosed that the size of the speculum was about two fingers and agreed with the suggestion made to her during herthat "if the hymen of a girl admits two fingers easily, the possibility that such a girl was habitual to sexualcannot be ruled out". However, no direct and specific question was put by the defence to the lady doctor whether the prosecutrix in the present case could be said to be habituated to sexual intercourse and there was no challenge to her statement that the prosecutrix `may not have been subjected to sexual intercourse earlier. No enquiry was made from the lady doctor about the tear of the hymen being old. Yet, the trial court interpreted the statement of PW1 Dr.Sukhwinder Kaur to hold that the prosecutrix was habituated to sexualsince the speculum could enter her vagina easily and as such she was "a girl of loose character". There was no warrant for such a finding and the finding if we may say so with respect, is a wholly irresponsible finding. In the face of the evidence of PW1, the trial court wrongly concluded that the medical evidence had not supported the version of the prosecutrix.The trial court totally ignored the report of the Chemical Examiner Ex. PM, according to which semen had been found on the slides which had been prepared by the lady doctor from the vaginal secretions from the posterior of the vaginal fornix of the prosecutrix. The presence of semen on the slides lent authentic corroboration to the testimony of the prosecutrix. This vital evidence was foresaken by the trial court and as a result wholly erroneous conclusions were arrived at. Thus, even though no corroboration is necessary to rely upon the testimony of the prosecutrix, yet sufficient corroboration from the medical evidence and the report of the chemical examiner is available on theher statement has been fully supported by the evidence of her father, Tirlok Singh, PW6 and her mother Gurdev Kaur, PW7, to whom she had narrated the occurrence soon after her arrival at her house. Moreover, the unchallanged fact that it was the prosecutrix who had led the investigating officer to the Kotha of the tubewell of Ranjit Singh, where she had been raped, lent aassurance that the charge levied by her was "genuine" rather than "fabricated" because it is no ones case that she knew Ranjit Singh earlier or had ever seen or visited the kotha at his tubewell. The trial court completely overlooked this aspect. The trial court did not disbelieve that the prosecutrix had been subjected to sexual intercourse but without any sound basis, observed that the prosecutrix might have spent the "night" in the company of some "persons" and concocted the story on being asked by her mother as to where she had spent the night after her maternal uncle, Darshan Singh, came toto enquire about the prosecutrix. There is no basis for the finding that the prosecutrix had spent the nig ht in the company of "some persons" and had indulged in sexual intercourse with them of her own free will. The observations were made on surmises and conjecturesthe prosecutrix was condemned unheard.The trial court was of the opinion that it was a `false case and that the accused had been implicated on account of enemity. In that connection it observed that since Trilok Singh PW6 had given beating to Gurmit Singh on 1.4.84 suspecting his hand in the abduction of his daughter and Gurmit Singh accused and his elder brother had abused Trilok Singh and given beating to Tirlok Singh PW6 on 2.4.84, "it was very easy on the part of Trilok Singh to persuade his daughter to name Gurmit Singh so as to take revenge". The trial court also found that the relations between the family of Gurmit Singh and of the prosecutrix were strained on account of civil litigation pending between the parties for 7/8 years prior to the date of occurrence and that was also the `reason to falsely implicate Gurmit Singh. Indeed, Gurmit Singh accused in his statement under Section 313 Cr. P.C. did raise such a plea but that plea has remained unsubstantiated. Trilok Singh PW6 categorically denied that he had any litigation with the father of Gurmit Singh at all and went on to say that no litigation had ever taken place between him and Mukand Singh father of Gurmit singh over a piece of land or otherwise. To the similar effect is the statement of Gurdev Kaur PW7 who also categorically stated that there had been no litigation between her husband and Mukand Singh father of Gurmit Singh.The trial court ignored this evidence and found support for the plea of the accused from the statement of t he prosecutrix in which during the first sentence of hershe admitted that litigation was going on between Mukund Singh father of Gurmit Singh and her father for the last 8/9 years over a piece of land. In what context the statement was made is not clear. Moreover, the positive evidence of PW6 and PW7 that there was no litigation pending between PW6 and PW7 that there was no litigation pending between PW6 and the father of Gurmit Singh completely belied the plea of the acc used. If there was any civil litigation pending between the parties as alleged by Gurmit Singh he could have produced some documentary proof in support thereof but none was produced. Even Mukand Singh, father of Gurmit Singh did not appear in the witness box to support the plea taken by Gurmit Singh. The allegation regarding any beating given to Gurmit Singh by PW6 and to PW6 by Gurmit Singh and his brother was denied by PW6 and no material was brought forth in support of that plea either and yet the trial court for undisclosed reasons assumed that the story regarding the beating was correct. Some stray sentences in the statement of the proseuctrix appear to have been unnecessarily blown out of all proportion to hold t hat "admittedly" PW6 had been given given beating by Gurmit Singh accused and that there was civil litigation pending between the father of the prosecutrix and the father of Gurmit Singh to show that the relations between the parties were enemical. There is no acceptable material on the record to hold that there was any such civil litigation pending between the parties. Even if it be assumed for the sake of argument that there was some such litigation, it could hardly be a ground f or a father to put forth his daughter to make a wild allegation of rape against the son of the opposite party, with a view to take revenge. It defies human probabilities. No father could stoop so low as to bring forth a false charge of rape on his unmarried minor daughter with a view to take revenge from the father of an accused on account of pending civil litigation. Again, if the accused could be falsely involved on account of that enemity, it was equally possible that the accused could have sexually assaulted the prosecutrix to take revenge from her father, for after all, enemity is a double edged weapon, which may be used for false implication as well as to take revenge. In any case, there is no proof of the existence of such enemity between PW6 and the father of Gurmit Singh which could have prompted PW6 to put up his daughter to falsely implicate Gurmit Singh on a charge of rape. The trial court was in error to hold that Gurmit Singh had been implicated on account of enemity between the two families and for the beating given by Gurmit Singh and his brother to PW6, in retaliation of the beating given by PW6 to Gurmit Singh on 1.4.1984. Similarly, so far as Jagjit Singh respondent is concerned, the tri al court opined that he could have been got implicated at the instance of the Sarpanch of village Pakhowal, who was hostile to Jagjit Singh. The ground of hostility as given by Jagjit Singh against the Sarpanch of village Pakhowal stems out of t he fact that the sarpanch was annoyed with him for marrying a Canadian girl in the village Gurdwara. There is no evidence whatsoever on the record to show that the Sarpanch of village Pakhowal had any relationship of connection with the pro secutrix or her father or was in any way in a apposition to exhert so much of incluence on the prosecutrix or her family, that to settle his score Trilok Singh PW6 would put forward his daughter to make a false allegation of rape and thereby jeopardise her own honour and future prospects of her marriage etc. The plea of Jagjit Singh alias Bawa like that of Gurmit Singh did not merit acceptance and the trial court erroneously accepted the same without any basis. The Plea of the accused was a plea of despair not worthy of any credence. Ranjit Singh, apart from stating that he had beenfalsely implicated in the case did not offer any reasons for his false implication. It was at his tubewell kothe that rape had been committed on the prosecutrix. She had pointed out that kotha to the police during investigation. No ostensible rason has been suggested as to why the prosecutrix would falsely involve Ranjit Singh for the commission of such a heinous c rime and nominate his kotha as the place where she had been subjected to sexual molestation by the respondents. The trial court ignored that it is almost inconceivable that an unmarried girl and her parents would go to the extent of staking their reputation and future in order to falsely set up a case of rape to settle petty scores as alleged by Jagjit Singh and Gurmit Singh respondents.From the statement of the prosecutrix, it clearly emerges that she was abducted and forc ibly subjected to sexual intercourse by the three respondents without her consent and against her will. In this fact situation the question of age of the prosecutrix would pale into insignificance. However, in the present case, there is evidence on the record to establish that on the date of the occurrence, the prosecutrix was below 16 years of age. The prosecutrix herself and her parents deposed at the trial that her age was less than 16 years on the date of the occu rrence. Their evidence is supported by the birth certificate Ex. PJ. Both Tirlok Singh PW6 and Gurdev Kaur PW7, the father and mother of the prosecutrix respectively, explained that initially they had named their daughter, the prosecutrix, as Mahinder Kaur but her name was changed to .... (name omitted), as according to The holy Guru Granth Sahib her name was required to start with the word "chhachha" and therefore in the school leaving certificate her name was correctly given. There was nothing to disbelieve the explanation given by Trilok Singh and Gurdev Kaur in that behalf. The trial court ignored the explanation given by the parents observing that "it could not be swallowed being a belated one". The trial court was in error. The first occasion for inquiring from Trilok Singh PW6 about the change of the name of the prosecutrix was only at the trial when he was asked about Ex. PJ and there had been no earlier occasion for him to have made any such statement. It was, therefore, not a belatedapart, even according to the lady doctor PW1, the clinical examination of the prosecutrix established that she was less than 16 years of age on the date of the occurrence. The birth certificate Ex. PJ was not only supported by the oral testimony of Trilok Singh PW6 and Gurdev Kaur PW7 but also by that of the school leaving certificate mark `B. With a view to do complete justice, the trial court could have summoned the concerned official from the school to prove various entries in the school leaving certificate.From the material on the record, we have come to an unhesitating conclusion that the prosecutrix was less than 16 years of age when she was made a victim of the lust of the respondents in the manner deposed to by her against her will and without her consent. The trial court did not return any positive finding as to whether or not the prosecutrix was below 16 years of age on 30th M arch 1984 and instead went on to observe that `even assuming for the sake of argument that the prosecutrix was less than 16 years of age on 30th March 1984, it could still not help the case as she was not a reliable witness and was attempting to shield her own conduct by indulging in falsehood to implicate the respondents. The entire approach of the trial court in appreciating the prosecution evidence and drawing inferences therefrom was erroneous.The trial court not only erroneously disbelieved the prosecutrix, but quite uncharitably and unjustifiably even characterised her as a girl "of loose morals" or "such type of a girl". | 1 | 9,982 | 2,723 | ### 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:
alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross-examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The Court, therefore, should not sit as a silent spectator while the victim of crime i being cross-examined by the defence. It must effectively control the recording of evidence in the Court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings, what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as "discrepancies and contradictions" in her evidence. 20. The alarming frequency of crime against women led the Parliament to enact Criminal Law (Amendment) Act, 1983 [Act 43 of 1983] to make the law of rape more realistic. By the Amendment Act, Sections 375 and 376 were amended and certain more penal provisions were incorporated for punishing such custodians who molest a women under their custody or care. Section 114-A was also added in the Evidence Act for drawing a conclusive presumption as to the absence of consent in certain prosecutions for rape, involving such custodians. Section 327 of the Code of Criminal Procedure which deals with the right of an accused to an open trial was also amended by addition of sub-sections 2 and 3 after re-numbering the old Section as sub-section (1). Sub-sections 2 and 3 of Section 327 Cr. P.C. provide as follows:Section 327. Court to be open - (2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under Section 376, Section 376-A, Section 376- B, Section 376-C or Section 376-D of the Indian Penal Code shall be conducted in camera: 21. Provided that the presiding judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or buildingused by the Court. (3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the Court." 22. These two provisions are in the nature of exception to the general rule of an open trial. Inspite of the amendment, however, it is seen that the trial courts either are not conscious of the amendment or do not realise its importance for hardly does one come across a case where the enquiry and trial of a rape case has been conducted by the court in camera. The expression that the inquiry into and trial of rape "shall be conducted in camera" as occurring in sub-section (2) of Section 327 Cr. P.C. is not only significant but very important. It casts a duty on the Court to conduct the trial of rape cases etc. invariably "in camera". The Courts are obliged to act in furtherance of the intention expressed by the Legislature and not to ignore its mandate and must invariably take recourse to the provisions of Section 327 (2) and (3) Cr. P.C. and hold the trial of rape cases in camera. It would enable the victim of crime to be a little comfortable and answer the questions with greater ease in not too familiar a surroundings. Trial in camera would not only be in keeping with the self-respect of the victim of crime and in tune with the legislative intent but is also likely to improve the quality of the evidence of a prosecutrix because s he would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of public. The improved quality of her evidence would assist the courts in arriving at the truth and sifting truth from falsehood. The High Courts would therefore be well advised to draw the attention of the trial courts to the amended provisions of Section 327 Cr. P.C. When trials are held in camera, it would not be lawful for any person to print or publish any matter in relation to t he proceedings in the case, except with the previous permission of the Court as envisaged by Section 327 (3) Cr. P.C. This would save any further embarrassment being caused to the victim of sex crime. Wherever possible it may also be worth considering whether it would not be more desirable that the cases of sexual assaults on the females are tried by lady Judges, wherever available, so that the prosecutrix can make her statement with greater ease and assist the Courts to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities while appreciating evidence in such cases. The Courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime. The anonymity of the victim of the crime must be maintained as far as possible throughout.
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1
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the accused could have sexually assaulted the prosecutrix to take revenge from her father, for after all, enemity is a double edged weapon, which may be used for false implication as well as to take revenge. In any case, there is no proof of the existence of such enemity between PW6 and the father of Gurmit Singh which could have prompted PW6 to put up his daughter to falsely implicate Gurmit Singh on a charge of rape. The trial court was in error to hold that Gurmit Singh had been implicated on account of enemity between the two families and for the beating given by Gurmit Singh and his brother to PW6, in retaliation of the beating given by PW6 to Gurmit Singh on 1.4.1984. Similarly, so far as Jagjit Singh respondent is concerned, the tri al court opined that he could have been got implicated at the instance of the Sarpanch of village Pakhowal, who was hostile to Jagjit Singh. The ground of hostility as given by Jagjit Singh against the Sarpanch of village Pakhowal stems out of t he fact that the sarpanch was annoyed with him for marrying a Canadian girl in the village Gurdwara. There is no evidence whatsoever on the record to show that the Sarpanch of village Pakhowal had any relationship of connection with the pro secutrix or her father or was in any way in a apposition to exhert so much of incluence on the prosecutrix or her family, that to settle his score Trilok Singh PW6 would put forward his daughter to make a false allegation of rape and thereby jeopardise her own honour and future prospects of her marriage etc. The plea of Jagjit Singh alias Bawa like that of Gurmit Singh did not merit acceptance and the trial court erroneously accepted the same without any basis. The Plea of the accused was a plea of despair not worthy of any credence. Ranjit Singh, apart from stating that he had beenfalsely implicated in the case did not offer any reasons for his false implication. It was at his tubewell kothe that rape had been committed on the prosecutrix. She had pointed out that kotha to the police during investigation. No ostensible rason has been suggested as to why the prosecutrix would falsely involve Ranjit Singh for the commission of such a heinous c rime and nominate his kotha as the place where she had been subjected to sexual molestation by the respondents. The trial court ignored that it is almost inconceivable that an unmarried girl and her parents would go to the extent of staking their reputation and future in order to falsely set up a case of rape to settle petty scores as alleged by Jagjit Singh and Gurmit Singh respondents.From the statement of the prosecutrix, it clearly emerges that she was abducted and forc ibly subjected to sexual intercourse by the three respondents without her consent and against her will. In this fact situation the question of age of the prosecutrix would pale into insignificance. However, in the present case, there is evidence on the record to establish that on the date of the occurrence, the prosecutrix was below 16 years of age. The prosecutrix herself and her parents deposed at the trial that her age was less than 16 years on the date of the occu rrence. Their evidence is supported by the birth certificate Ex. PJ. Both Tirlok Singh PW6 and Gurdev Kaur PW7, the father and mother of the prosecutrix respectively, explained that initially they had named their daughter, the prosecutrix, as Mahinder Kaur but her name was changed to .... (name omitted), as according to The holy Guru Granth Sahib her name was required to start with the word "chhachha" and therefore in the school leaving certificate her name was correctly given. There was nothing to disbelieve the explanation given by Trilok Singh and Gurdev Kaur in that behalf. The trial court ignored the explanation given by the parents observing that "it could not be swallowed being a belated one". The trial court was in error. The first occasion for inquiring from Trilok Singh PW6 about the change of the name of the prosecutrix was only at the trial when he was asked about Ex. PJ and there had been no earlier occasion for him to have made any such statement. It was, therefore, not a belatedapart, even according to the lady doctor PW1, the clinical examination of the prosecutrix established that she was less than 16 years of age on the date of the occurrence. The birth certificate Ex. PJ was not only supported by the oral testimony of Trilok Singh PW6 and Gurdev Kaur PW7 but also by that of the school leaving certificate mark `B. With a view to do complete justice, the trial court could have summoned the concerned official from the school to prove various entries in the school leaving certificate.From the material on the record, we have come to an unhesitating conclusion that the prosecutrix was less than 16 years of age when she was made a victim of the lust of the respondents in the manner deposed to by her against her will and without her consent. The trial court did not return any positive finding as to whether or not the prosecutrix was below 16 years of age on 30th M arch 1984 and instead went on to observe that `even assuming for the sake of argument that the prosecutrix was less than 16 years of age on 30th March 1984, it could still not help the case as she was not a reliable witness and was attempting to shield her own conduct by indulging in falsehood to implicate the respondents. The entire approach of the trial court in appreciating the prosecution evidence and drawing inferences therefrom was erroneous.The trial court not only erroneously disbelieved the prosecutrix, but quite uncharitably and unjustifiably even characterised her as a girl "of loose morals" or "such type of a girl".
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Ajit Kumar Vasantlal Zaveri Vs. State of Gujarat | K. JAYACHANDRA REDDY, J. 1. The sole appellant was tried under Section 161 IPC and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (Act for short). The Special Judge, Surat acquitted him. The State preferred an appeal and the High Court reversed the order of acquittal and convicted the appellant under Section 161 IPC and Section 5(1)(d) read with Section 5(2) of the Act. He was sentenced under Section 161 IPC to three months R.I. and to pay a fine of Rs 200 in default of payment of which to suffer R.I. for one month. However, no separate sentence was awarded for the offence under Section (5)(1)(d) read with Section 5(2) of the Act. 2. The prosecution case is that PW 1 started a tailoring shop in the month of January 1976. For the purpose of furnishing his shop he applied for a loan to the Bank of Baroda and his application was pending. On February 9, 1976 he applied for a licence under the Shops and Establishment Act after paying the necessary fee. Later he went to the office of the M Municipal Corporation and found the accused, an Inspector under the Shops and Establishment Act in his office and requested him for a licence. The accused demanded a sum of Rs 30 as bribe. On February 21, 1976 he happened to meet the Municipal Corporator and told him about the demand made by the accused for issuance of the licence. He was advised to give a complaint to the A.C.B. Thereupon the Cooperator took PW 1 to the A.C.B. Office and there he made a complaint before the Inspector. In the presence of the panachs the Inspector prepared a panchanama treating three currency notes of Rs 10 each with phenolphthalein powder and sodium carbonate and thereafter PW 1 was asked to give the amount to the accused and thus a trap was laid. Panch witness No. 1 and PW 1 went to the office of the accused and the tainted money was offered and it was accepted by the accused. On a signal being given the trap party rushed in and recovered the three currency notes and the accused was asked to put his hands in a glass full of water which turned pink. A panchanama was prepared and the statements of the witnesses were recorded and sanction was obtained and the charge-sheet was laid. The plea of the accused was that he had not demanded any amount and that the complainant asked for a licence and he got up to search for the licence. At that time the complaint tried to thrust the amount in his pocket and the accused gave a push as a result of which the currency notes fell on the table. Just at that time the raiding party entered and recovered the amount. In substance his plea was that the money was thrusted and the case was fabricated. 3. The trial court, if we may say so, on flimsy grounds rejected the entire evidence and acquitted him. The appellate court while reversing the order of acquittal has taken into consideration the evidence of the panch witnesses and the Inspector as well as the statement of the accused and reached the conclusion that the reasons given by the trial court were highly unsound and warranted interference and accordingly convicted the appellant.4. In this appeal, the learned counsel for the appellant submitted that the main investigating officer has not been examined and that the plea of the accused appears to be natural and the amount alleged to be demanded by the accused was only Rs 30 a small sum and that all the circumstances go to show that the case was fabricated. We see no force in any one of these submissions. The prosecution has examined another police officer who was in the company of the Inspector. He has spoken to all the details. It must be noted that the accused also has not disputed the trap and recovery of tainted money of Rs 30. While it is the prosecution case that the amount was recovered from the accused, the plea of the accused has been that when the amount was being thrusted he pushed the hand of the complainant aside and the notes feel on the table. The accused however admitted that when his hands were put into water the same turned pink. But his explanation has been that he was using a red ink pen and therefore his hands got stained and that was the reason of the water having turned pink. This explanation on the face of it is artificial. We find from the High Court judgment that all the circumstances have been taken into consideration and cogent and convincing reasons have been given for accepting the prosecution case. There are no merits in this appeal. Now coming to the sentence, the occurrence is said to have taken place in the year 1976 and the accused has undergone the agony of trial which took a long time and he has lost his job and has a family to support. Now at this distance of time we do not think that it is a fit case to sent him back to the jail particularly having regard to the amount of bribe involved. He has been sentenced only under Section 161 and there is no minimum sentence prescribed. From the records it appears that he was in jail for some time during the trial i.e. from the date of arrest to the date of release on bail. | 0[ds]The prosecution has examined another police officer who was in the company of the Inspector. He has spoken to all the details. It must be noted that the accused also has not disputed the trap and recovery of tainted money of Rs 30. While it is the prosecution case that the amount was recovered from the accused, the plea of the accused has been that when the amount was being thrusted he pushed the hand of the complainant aside and the notes feel on the table. The accused however admitted that when his hands were put into water the same turned pink. But his explanation has been that he was using a red ink pen and therefore his hands got stained and that was the reason of the water having turned pink. This explanation on the face of it is artificial. We find from the High Court judgment that all the circumstances have been taken into consideration and cogent and convincing reasons have been given for accepting the prosecution case. There are no merits in this appeal. Now coming to the sentence, the occurrence is said to have taken place in the year 1976 and the accused has undergone the agony of trial which took a long time and he has lost his job and has a family to support. Now at this distance of time we do not think that it is a fit case to sent him back to the jail particularly having regard to the amount of bribe involved. He has been sentenced only under Section 161 and there is no minimum sentence prescribed. From the records it appears that he was in jail for some time during the trial i.e. from the date of arrest to the date of release on bail. | 0 | 1,016 | 316 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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K. JAYACHANDRA REDDY, J. 1. The sole appellant was tried under Section 161 IPC and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (Act for short). The Special Judge, Surat acquitted him. The State preferred an appeal and the High Court reversed the order of acquittal and convicted the appellant under Section 161 IPC and Section 5(1)(d) read with Section 5(2) of the Act. He was sentenced under Section 161 IPC to three months R.I. and to pay a fine of Rs 200 in default of payment of which to suffer R.I. for one month. However, no separate sentence was awarded for the offence under Section (5)(1)(d) read with Section 5(2) of the Act. 2. The prosecution case is that PW 1 started a tailoring shop in the month of January 1976. For the purpose of furnishing his shop he applied for a loan to the Bank of Baroda and his application was pending. On February 9, 1976 he applied for a licence under the Shops and Establishment Act after paying the necessary fee. Later he went to the office of the M Municipal Corporation and found the accused, an Inspector under the Shops and Establishment Act in his office and requested him for a licence. The accused demanded a sum of Rs 30 as bribe. On February 21, 1976 he happened to meet the Municipal Corporator and told him about the demand made by the accused for issuance of the licence. He was advised to give a complaint to the A.C.B. Thereupon the Cooperator took PW 1 to the A.C.B. Office and there he made a complaint before the Inspector. In the presence of the panachs the Inspector prepared a panchanama treating three currency notes of Rs 10 each with phenolphthalein powder and sodium carbonate and thereafter PW 1 was asked to give the amount to the accused and thus a trap was laid. Panch witness No. 1 and PW 1 went to the office of the accused and the tainted money was offered and it was accepted by the accused. On a signal being given the trap party rushed in and recovered the three currency notes and the accused was asked to put his hands in a glass full of water which turned pink. A panchanama was prepared and the statements of the witnesses were recorded and sanction was obtained and the charge-sheet was laid. The plea of the accused was that he had not demanded any amount and that the complainant asked for a licence and he got up to search for the licence. At that time the complaint tried to thrust the amount in his pocket and the accused gave a push as a result of which the currency notes fell on the table. Just at that time the raiding party entered and recovered the amount. In substance his plea was that the money was thrusted and the case was fabricated. 3. The trial court, if we may say so, on flimsy grounds rejected the entire evidence and acquitted him. The appellate court while reversing the order of acquittal has taken into consideration the evidence of the panch witnesses and the Inspector as well as the statement of the accused and reached the conclusion that the reasons given by the trial court were highly unsound and warranted interference and accordingly convicted the appellant.4. In this appeal, the learned counsel for the appellant submitted that the main investigating officer has not been examined and that the plea of the accused appears to be natural and the amount alleged to be demanded by the accused was only Rs 30 a small sum and that all the circumstances go to show that the case was fabricated. We see no force in any one of these submissions. The prosecution has examined another police officer who was in the company of the Inspector. He has spoken to all the details. It must be noted that the accused also has not disputed the trap and recovery of tainted money of Rs 30. While it is the prosecution case that the amount was recovered from the accused, the plea of the accused has been that when the amount was being thrusted he pushed the hand of the complainant aside and the notes feel on the table. The accused however admitted that when his hands were put into water the same turned pink. But his explanation has been that he was using a red ink pen and therefore his hands got stained and that was the reason of the water having turned pink. This explanation on the face of it is artificial. We find from the High Court judgment that all the circumstances have been taken into consideration and cogent and convincing reasons have been given for accepting the prosecution case. There are no merits in this appeal. Now coming to the sentence, the occurrence is said to have taken place in the year 1976 and the accused has undergone the agony of trial which took a long time and he has lost his job and has a family to support. Now at this distance of time we do not think that it is a fit case to sent him back to the jail particularly having regard to the amount of bribe involved. He has been sentenced only under Section 161 and there is no minimum sentence prescribed. From the records it appears that he was in jail for some time during the trial i.e. from the date of arrest to the date of release on bail.
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### Explanation:
The prosecution has examined another police officer who was in the company of the Inspector. He has spoken to all the details. It must be noted that the accused also has not disputed the trap and recovery of tainted money of Rs 30. While it is the prosecution case that the amount was recovered from the accused, the plea of the accused has been that when the amount was being thrusted he pushed the hand of the complainant aside and the notes feel on the table. The accused however admitted that when his hands were put into water the same turned pink. But his explanation has been that he was using a red ink pen and therefore his hands got stained and that was the reason of the water having turned pink. This explanation on the face of it is artificial. We find from the High Court judgment that all the circumstances have been taken into consideration and cogent and convincing reasons have been given for accepting the prosecution case. There are no merits in this appeal. Now coming to the sentence, the occurrence is said to have taken place in the year 1976 and the accused has undergone the agony of trial which took a long time and he has lost his job and has a family to support. Now at this distance of time we do not think that it is a fit case to sent him back to the jail particularly having regard to the amount of bribe involved. He has been sentenced only under Section 161 and there is no minimum sentence prescribed. From the records it appears that he was in jail for some time during the trial i.e. from the date of arrest to the date of release on bail.
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G. Claridge and Company Limited Vs. Collector of Central Excise Pune | and that the egg tray and other similar products manufactured by the appellant are containers because they are receptacles for holding, storing and transporting the things kept in them. It has been urged that a tray is a shallow lidless container and merely because an egg tray is described as a try does not mean that is not a container. It is contended that egg trays are so designed as to protect the eggs from breakage and that egg trays approved the best mode for storage and transport of eggs. The learned counsel has submitted that the Appellant Tribunal was in error in proceeding on the basis that egg tray and other similar products manufactured by the appellant cannot be regarded as containers because when a single egg tray is reversed or turned upside down or titled sideways vertically at 90 Degree angle, the contents would fall down. The submission of the learned counsel is that it is not required that a container should be closed from all sides and that a container can also be open 10. The expression container had been thus defined in the dictionaries and glossaries of packaging terms "Container : One that contains; a receptacle or flexible covering for shipment of goods." (Abstract from Websters New Collegiate Dictionary, 1975) "Container : that which contains that in which goods are enclosed for transport." (Abstract from Chambers 20th Century Dictionary) "Container : Any receptacle which holds, restrains or encloses any article or commodity or articles or commodities to be stored or transported." (Abstract from Indian Standard - Glossary of Terms : 1 S. 4261-1967) "Container : (1) In general, any receptacle or enclosure used in packaging and shipping. (2) Relatively large, reusable enclosures to be filled with smaller packages and discrete objects, to consolidate shipments and allow transport on railway flat cars, flatbed trailers, aircraft, in ships holds or as deckloads, etc. (See Cargo Transporter; Containerization). (3) Any receptacle for holding a product." * [Abstract from Glossary of packaging Terms (USA)] "Container : A large box for intermodal transport, containing many smaller boxes of different shapes and sizes as well as individual articles." [Abstract from Glossary of Packaging Terms (Australia)] 11. The above definitions would show that the expression container is used in three different senses : in a broad sense, it means a receptacle which contains; in a narrower sense, it means a receptacle in which articles are covered or enclosed and transported; and in a more limited sense, it means enclosures used in shipping or railway for transport of goods. If used in a broad sense, container would included a try because it is a receptacle which contains articles and, therefore, an egg tray would be a container. But an egg tray would not be a container in a narrower sense because articles place in it are not covered or enclosed and they cannot be transported a such. It is, therefore, necessary to ascertain whether the expression container in Item 17 of the old Tariff and Heading No. 48.18 of the new Tariff has been used in the broad sense to include all receptacles or in a narrower sense to mean those receptacles in which the articles are covered or enclosed and transported. For this purpose, the context in which the word container has been used in these entries has to be examined. In Item 17 of the old Tariff, the word containers is preceded by the words boxes, cartons, bags and other packing and in Heading No. 48.18 of the new Tariff, the word containers is preceded by the words cartons, boxes and is followed by the words and cases. It is a well accepted cannot of statutory construction that when two or more words which are susceptible of analogous meaning are couplet together they are understood to be used in their cognate sense. It is based on the principle that words take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. [See : Dr. Devendra M. Surti v. State of Gujarat ( 1969 (1) SCR 235 , 240 : 1969 AIR(SC) 63 : 1969 (75) CrLJ 285 : 1969 (2) LLJ 116 )]. Considering the expression containers in the context in which it is used in the relevant tariff items, we are of the opinion that the said expression has to be constructed to mean packing containers which are analogous to boxes and cartons, that is, an enclosed receptacle which can be used for storage and transportation of articles. Egg trays being receptacles which are not covered or enclosed cannot be used for transportation of articles and, therefore, they cannot be regarded as containers under the abovementioned entries in the Excise Tariff 12. According to the New Encyclopedia Britannica (p. 444, Vol. 6, 1974 edn.) the practice followed in the various countries for the packaging of eggs for transport is as follows "Packaging : For retail use in the United States, eggs are repackaged in dozen and half-dozen paperboard cartons. In some other countries they are packed with straw or excelsior in long wooden boxes. In many parts of the world, they are marketed in baskets or boxes and the individual eggs are sold by weight. Several European countries stamp each egg with a date and number to meet the import restrictions of other nations." * The Glossary of Packaging Terms (USA) also shown that moulded pulp egg trays are put in a standard case which indicates that the egg trays containing the eggs are put in a case for the purpose of transport. In other words, the case in which the egg trays are put are containers and not the egg tray itself 13. For the reasons aforesaid, we are of the opinion that the Appellate Tribunal was right in taking the view that the egg trays and other similar products manufactured by the appellant cannot be regarded as containers under the relevant items of the Excise Tariff | 0[ds]g the expression containers in the context in which it is used in the relevant tariff items, we are of the opinion that the said expression has to be constructed to mean packing containers which are analogous to boxes and cartons, that is, an enclosed receptacle which can be used for storage and transportation of articles. Egg trays being receptacles which are not covered or enclosed cannot be used for transportation of articles and, therefore, they cannot be regarded as containers under the abovementioned entries in the ExciseFor the reasons aforesaid, we are of the opinion that the Appellate Tribunal was right in taking the view that the egg trays and other similar products manufactured by the appellant cannot be regarded as containers under the relevant items of the Excise Tariff | 0 | 3,033 | 145 | ### Instruction:
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and that the egg tray and other similar products manufactured by the appellant are containers because they are receptacles for holding, storing and transporting the things kept in them. It has been urged that a tray is a shallow lidless container and merely because an egg tray is described as a try does not mean that is not a container. It is contended that egg trays are so designed as to protect the eggs from breakage and that egg trays approved the best mode for storage and transport of eggs. The learned counsel has submitted that the Appellant Tribunal was in error in proceeding on the basis that egg tray and other similar products manufactured by the appellant cannot be regarded as containers because when a single egg tray is reversed or turned upside down or titled sideways vertically at 90 Degree angle, the contents would fall down. The submission of the learned counsel is that it is not required that a container should be closed from all sides and that a container can also be open 10. The expression container had been thus defined in the dictionaries and glossaries of packaging terms "Container : One that contains; a receptacle or flexible covering for shipment of goods." (Abstract from Websters New Collegiate Dictionary, 1975) "Container : that which contains that in which goods are enclosed for transport." (Abstract from Chambers 20th Century Dictionary) "Container : Any receptacle which holds, restrains or encloses any article or commodity or articles or commodities to be stored or transported." (Abstract from Indian Standard - Glossary of Terms : 1 S. 4261-1967) "Container : (1) In general, any receptacle or enclosure used in packaging and shipping. (2) Relatively large, reusable enclosures to be filled with smaller packages and discrete objects, to consolidate shipments and allow transport on railway flat cars, flatbed trailers, aircraft, in ships holds or as deckloads, etc. (See Cargo Transporter; Containerization). (3) Any receptacle for holding a product." * [Abstract from Glossary of packaging Terms (USA)] "Container : A large box for intermodal transport, containing many smaller boxes of different shapes and sizes as well as individual articles." [Abstract from Glossary of Packaging Terms (Australia)] 11. The above definitions would show that the expression container is used in three different senses : in a broad sense, it means a receptacle which contains; in a narrower sense, it means a receptacle in which articles are covered or enclosed and transported; and in a more limited sense, it means enclosures used in shipping or railway for transport of goods. If used in a broad sense, container would included a try because it is a receptacle which contains articles and, therefore, an egg tray would be a container. But an egg tray would not be a container in a narrower sense because articles place in it are not covered or enclosed and they cannot be transported a such. It is, therefore, necessary to ascertain whether the expression container in Item 17 of the old Tariff and Heading No. 48.18 of the new Tariff has been used in the broad sense to include all receptacles or in a narrower sense to mean those receptacles in which the articles are covered or enclosed and transported. For this purpose, the context in which the word container has been used in these entries has to be examined. In Item 17 of the old Tariff, the word containers is preceded by the words boxes, cartons, bags and other packing and in Heading No. 48.18 of the new Tariff, the word containers is preceded by the words cartons, boxes and is followed by the words and cases. It is a well accepted cannot of statutory construction that when two or more words which are susceptible of analogous meaning are couplet together they are understood to be used in their cognate sense. It is based on the principle that words take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. [See : Dr. Devendra M. Surti v. State of Gujarat ( 1969 (1) SCR 235 , 240 : 1969 AIR(SC) 63 : 1969 (75) CrLJ 285 : 1969 (2) LLJ 116 )]. Considering the expression containers in the context in which it is used in the relevant tariff items, we are of the opinion that the said expression has to be constructed to mean packing containers which are analogous to boxes and cartons, that is, an enclosed receptacle which can be used for storage and transportation of articles. Egg trays being receptacles which are not covered or enclosed cannot be used for transportation of articles and, therefore, they cannot be regarded as containers under the abovementioned entries in the Excise Tariff 12. According to the New Encyclopedia Britannica (p. 444, Vol. 6, 1974 edn.) the practice followed in the various countries for the packaging of eggs for transport is as follows "Packaging : For retail use in the United States, eggs are repackaged in dozen and half-dozen paperboard cartons. In some other countries they are packed with straw or excelsior in long wooden boxes. In many parts of the world, they are marketed in baskets or boxes and the individual eggs are sold by weight. Several European countries stamp each egg with a date and number to meet the import restrictions of other nations." * The Glossary of Packaging Terms (USA) also shown that moulded pulp egg trays are put in a standard case which indicates that the egg trays containing the eggs are put in a case for the purpose of transport. In other words, the case in which the egg trays are put are containers and not the egg tray itself 13. For the reasons aforesaid, we are of the opinion that the Appellate Tribunal was right in taking the view that the egg trays and other similar products manufactured by the appellant cannot be regarded as containers under the relevant items of the Excise Tariff
### Response:
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### Explanation:
g the expression containers in the context in which it is used in the relevant tariff items, we are of the opinion that the said expression has to be constructed to mean packing containers which are analogous to boxes and cartons, that is, an enclosed receptacle which can be used for storage and transportation of articles. Egg trays being receptacles which are not covered or enclosed cannot be used for transportation of articles and, therefore, they cannot be regarded as containers under the abovementioned entries in the ExciseFor the reasons aforesaid, we are of the opinion that the Appellate Tribunal was right in taking the view that the egg trays and other similar products manufactured by the appellant cannot be regarded as containers under the relevant items of the Excise Tariff
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Smt. Rajendra Kumari & Another Vs. Smt.Shanta Trivedi & Others | Rs.4,000 in each case. 7. The finding of the Tribunal on issue No.7 is as follows: The learned counsel for the claimants conceded that the liability of the Insurance Company could not exceed Rs.4,000 in each case. Issue is accordingly decided in favour of the opposite party 3. 8. Upon the said findings, the Tribunal made an award for Rs.10,000 in favour of the appellants against the opposite parties including the Rajasthan Manila Parishad and the driver of the truck assessing the liability of the Insurance Company to the extent of Rs.4,000 only. 9. Being aggrieved by the award of the Tribunal, the appellants preferred an appeal to the Rajasthan High Court challenging only the adequacy of the amount of compensation as awarded by the Tribunal. A cross-objection was also filed by the Rajasthan Mahila Parishad, the owner of the car. The High Court, as stated already, affirmed the award and dismissed the appeal and the cross-objection. Hence this appeal by special leave. 10. The first point that has been urged by Mr Lodha, learned counsel appearing on behalf of the appellants, is that the High Court was not justified in affirming the award of the Tribunal for Rs.10,000 only as compensation. It appears from the evidence of appellant 1 that the father of the deceased had a dairy farm, a poultry farm, a flour mill and an agricultural farm. The deceased used to look after the business and his monthly income was about Rs.1,000 and that out of the said income, about Rs.700 used to be spent and the total saving was only Rs.300 per month. As against this evidence, no evidence was led by the respondents regarding the income of deceased. The High Court, in affirming the award of the Tribunal as to the quantum of compensation observed as follows: It appears to us from the evidence so led by the claimants that Hari Singh at the time of his death was in fact a student and may be that whenever he could spare time, he looked after the various business activities of his father which according to Rajendra Kumari are still running. He had devoted himself to the family business and had no prospects whatever dependent upon education. While estimating the benefits derived from the various business activities one cannot lose sight of the contingencies of losses and fluctuations in income that occur in such types of business. We do realise that the loss of a husband to a young Rajput girl is something which no amount of money can compensate, yet in the circumstances of the case, we do not find that the amount of compensation fixed by the Tribunal was too high or low. We feel that it represents the just and proper compensation. 11. We are unable to understand the reasons given by the High Court in finding that the amount of compensation as awarded by the Tribunal was quite adequate. The High Court has not disbelieved the evidence of appellant 1 that her husband had an income of Rs.1,000 a month. It is true that Hari Singh was a student at the time of his death, but he was also looking after the business of his father and earning a sum of Rs.1,000 a month. There is no reason to disbelieve the evidence of appellant 1 about the income of Hari Singh. 12. Even at the modest computation, the contribution of Hari Singh towards his family could not less than Rs.500 per month, that is, Rs.6,000 per year. Taking the normal span of life to be 60 years, Hari Singh would have lived for another 35 years. It is apparent that the appellants have been deprived of more than a lakh or rupees and, accordingly, their claim for Rs 1 lakh on account of compensation was quite reasonable. Both the Tribunal and the High Court were not justified in assessing the amount of compensation payable to the appellants at Rs.10,000 only. 13. The next question is as to the liability of the Insurance Company, respondent 4 herein. It has been already noticed that the appellants conceded before the Tribunal that the liability of the Insurance Company did not exceed the sum of Rs.4,000. Indeed, as the law stood at the material time, the maximum liability of the Insurance Company in such a case was only to the tune of Rs.4,000. In the appeal before the High Court, the appellants did not challenge the finding of the Tribunal that the statutory liability of the Insurance Company was Rs.4,000 only as conceded to by the appellants. For the first time in this Court, it is submitted that respondent 4 is liable for the entire amount of compensation. It is urged by Mr.Lodha appearing for the appellants that it was incumbent upon respondent 4 to file before the Tribunal the policy of insurance in order to show that apart from the statutory liability up to Rs.4,000, respondent 4 had no further liability under the policy in excess of the statutory liability. In support of the contention, much reliance has ben placed by the learned counsel on a decision of this Court in National Insurance Company Ltd. v. Jugal Kishore National Insurance Company Ltd. v. Jugal Kishore (1988)1 S.C.C. 626: 1988 S.C.C. (Crl) 222: 1988 A.C J. 270: A.I.R. 1988 S.C. 719. In that case, it has been observed that where the Insurance Company concerned wishesto take a defence in a claim petition that its liability is not in excess of the statutory liability, it should file a copy of the insurance policy along with its defence. This decision in our opinion, is not applicable to the facts of the instant case. It has been already noticed that before the Tribunal the appellants had categorically admitted that the liability of the Insurance Company extended to Rs.4,000 only. In the circumstances, we do not think that it was incumbent upon the Insurance Company to file the policy. The contention made on behalf of the appellants is, accordingly, rejected. | 1[ds]11. We are unable to understand the reasons given by the High Court in finding that the amount of compensation as awarded by the Tribunal was quite adequate. The High Court has not disbelieved the evidence of appellant 1 that her husband had an income of Rs.1,000 a month. It is true that Hari Singh was a student at the time of his death, but he was also looking after the business of his father and earning a sum of Rs.1,000 a month. There is no reason to disbelieve the evidence of appellant 1 about the income of Hari Singh12. Even at the modest computation, the contribution of Hari Singh towards his family could not less than Rs.500 per month, that is, Rs.6,000 per year. Taking the normal span of life to be 60 years, Hari Singh would have lived for another 35 years. It is apparent that the appellants have been deprived of more than a lakh or rupees and, accordingly, their claim for Rs 1 lakh on account of compensation was quite reasonable. Both the Tribunal and the High Court were not justified in assessing the amount of compensation payable to the appellants at Rs.10,000 onlyIt has been already noticed that the appellants conceded before the Tribunal that the liability of the Insurance Company did not exceed the sum of Rs.4,000. Indeed, as the law stood at the material time, the maximum liability of the Insurance Company in such a case was only to the tune of Rs.4,000. In the appeal before the High Court, the appellants did not challenge the finding of the Tribunal that the statutory liability of the Insurance Company was Rs.4,000 only as conceded to by the appellants. For the first time in this Court, it is submitted that respondent 4 is liable for the entire amount of compensation. It is urged by Mr.Lodha appearing for the appellants that it was incumbent upon respondent 4 to file before the Tribunal the policy of insurance in order to show that apart from the statutory liability up to Rs.4,000, respondent 4 had no further liability under the policy in excess of the statutory liability. In support of the contention, much reliance has ben placed by the learned counsel on a decision of this Court in National Insurance Company Ltd. v. Jugal Kishore National Insurance Company Ltd. v. Jugal Kishore (1988)1 S.C.C. 626: 1988 S.C.C. (Crl) 222: 1988 A.C J. 270: A.I.R. 1988 S.C. 719. In that case, it has been observed that where the Insurance Company concerned wishesto take a defence in a claim petition that its liability is not in excess of the statutory liability, it should file a copy of the insurance policy along with its defence. This decision in our opinion, is not applicable to the facts of the instant case. It has been already noticed that before the Tribunal the appellants had categorically admitted that the liability of the Insurance Company extended to Rs.4,000 only. In the circumstances, we do not think that it was incumbent upon the Insurance Company to file the policy. The contention made on behalf of the appellants is, accordingly, rejected14. In the result, we direct that the appellants are entitled to a sum of Rs.l lakh (Rupees one lakh only) on account of compensation. Out of the said sum, the Insurance Company respondent 4, is liable to pay Rs.4,000 only and respondents 1,2 and 3 including the Rajasthan Manila Parishad are jointly and severally liable to pay to the appellants the remaining amount. The respondents shall deposit the decretal amount to the extent of their respective liabilities in the Motor Accident Claims Tribunal, Udaipur, within two months from date; in default, the decretal amount or so much thereof as will remain outstanding will bear interest at 12 per cent per annum till realisation. | 1 | 1,493 | 702 | ### Instruction:
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Rs.4,000 in each case. 7. The finding of the Tribunal on issue No.7 is as follows: The learned counsel for the claimants conceded that the liability of the Insurance Company could not exceed Rs.4,000 in each case. Issue is accordingly decided in favour of the opposite party 3. 8. Upon the said findings, the Tribunal made an award for Rs.10,000 in favour of the appellants against the opposite parties including the Rajasthan Manila Parishad and the driver of the truck assessing the liability of the Insurance Company to the extent of Rs.4,000 only. 9. Being aggrieved by the award of the Tribunal, the appellants preferred an appeal to the Rajasthan High Court challenging only the adequacy of the amount of compensation as awarded by the Tribunal. A cross-objection was also filed by the Rajasthan Mahila Parishad, the owner of the car. The High Court, as stated already, affirmed the award and dismissed the appeal and the cross-objection. Hence this appeal by special leave. 10. The first point that has been urged by Mr Lodha, learned counsel appearing on behalf of the appellants, is that the High Court was not justified in affirming the award of the Tribunal for Rs.10,000 only as compensation. It appears from the evidence of appellant 1 that the father of the deceased had a dairy farm, a poultry farm, a flour mill and an agricultural farm. The deceased used to look after the business and his monthly income was about Rs.1,000 and that out of the said income, about Rs.700 used to be spent and the total saving was only Rs.300 per month. As against this evidence, no evidence was led by the respondents regarding the income of deceased. The High Court, in affirming the award of the Tribunal as to the quantum of compensation observed as follows: It appears to us from the evidence so led by the claimants that Hari Singh at the time of his death was in fact a student and may be that whenever he could spare time, he looked after the various business activities of his father which according to Rajendra Kumari are still running. He had devoted himself to the family business and had no prospects whatever dependent upon education. While estimating the benefits derived from the various business activities one cannot lose sight of the contingencies of losses and fluctuations in income that occur in such types of business. We do realise that the loss of a husband to a young Rajput girl is something which no amount of money can compensate, yet in the circumstances of the case, we do not find that the amount of compensation fixed by the Tribunal was too high or low. We feel that it represents the just and proper compensation. 11. We are unable to understand the reasons given by the High Court in finding that the amount of compensation as awarded by the Tribunal was quite adequate. The High Court has not disbelieved the evidence of appellant 1 that her husband had an income of Rs.1,000 a month. It is true that Hari Singh was a student at the time of his death, but he was also looking after the business of his father and earning a sum of Rs.1,000 a month. There is no reason to disbelieve the evidence of appellant 1 about the income of Hari Singh. 12. Even at the modest computation, the contribution of Hari Singh towards his family could not less than Rs.500 per month, that is, Rs.6,000 per year. Taking the normal span of life to be 60 years, Hari Singh would have lived for another 35 years. It is apparent that the appellants have been deprived of more than a lakh or rupees and, accordingly, their claim for Rs 1 lakh on account of compensation was quite reasonable. Both the Tribunal and the High Court were not justified in assessing the amount of compensation payable to the appellants at Rs.10,000 only. 13. The next question is as to the liability of the Insurance Company, respondent 4 herein. It has been already noticed that the appellants conceded before the Tribunal that the liability of the Insurance Company did not exceed the sum of Rs.4,000. Indeed, as the law stood at the material time, the maximum liability of the Insurance Company in such a case was only to the tune of Rs.4,000. In the appeal before the High Court, the appellants did not challenge the finding of the Tribunal that the statutory liability of the Insurance Company was Rs.4,000 only as conceded to by the appellants. For the first time in this Court, it is submitted that respondent 4 is liable for the entire amount of compensation. It is urged by Mr.Lodha appearing for the appellants that it was incumbent upon respondent 4 to file before the Tribunal the policy of insurance in order to show that apart from the statutory liability up to Rs.4,000, respondent 4 had no further liability under the policy in excess of the statutory liability. In support of the contention, much reliance has ben placed by the learned counsel on a decision of this Court in National Insurance Company Ltd. v. Jugal Kishore National Insurance Company Ltd. v. Jugal Kishore (1988)1 S.C.C. 626: 1988 S.C.C. (Crl) 222: 1988 A.C J. 270: A.I.R. 1988 S.C. 719. In that case, it has been observed that where the Insurance Company concerned wishesto take a defence in a claim petition that its liability is not in excess of the statutory liability, it should file a copy of the insurance policy along with its defence. This decision in our opinion, is not applicable to the facts of the instant case. It has been already noticed that before the Tribunal the appellants had categorically admitted that the liability of the Insurance Company extended to Rs.4,000 only. In the circumstances, we do not think that it was incumbent upon the Insurance Company to file the policy. The contention made on behalf of the appellants is, accordingly, rejected.
### Response:
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11. We are unable to understand the reasons given by the High Court in finding that the amount of compensation as awarded by the Tribunal was quite adequate. The High Court has not disbelieved the evidence of appellant 1 that her husband had an income of Rs.1,000 a month. It is true that Hari Singh was a student at the time of his death, but he was also looking after the business of his father and earning a sum of Rs.1,000 a month. There is no reason to disbelieve the evidence of appellant 1 about the income of Hari Singh12. Even at the modest computation, the contribution of Hari Singh towards his family could not less than Rs.500 per month, that is, Rs.6,000 per year. Taking the normal span of life to be 60 years, Hari Singh would have lived for another 35 years. It is apparent that the appellants have been deprived of more than a lakh or rupees and, accordingly, their claim for Rs 1 lakh on account of compensation was quite reasonable. Both the Tribunal and the High Court were not justified in assessing the amount of compensation payable to the appellants at Rs.10,000 onlyIt has been already noticed that the appellants conceded before the Tribunal that the liability of the Insurance Company did not exceed the sum of Rs.4,000. Indeed, as the law stood at the material time, the maximum liability of the Insurance Company in such a case was only to the tune of Rs.4,000. In the appeal before the High Court, the appellants did not challenge the finding of the Tribunal that the statutory liability of the Insurance Company was Rs.4,000 only as conceded to by the appellants. For the first time in this Court, it is submitted that respondent 4 is liable for the entire amount of compensation. It is urged by Mr.Lodha appearing for the appellants that it was incumbent upon respondent 4 to file before the Tribunal the policy of insurance in order to show that apart from the statutory liability up to Rs.4,000, respondent 4 had no further liability under the policy in excess of the statutory liability. In support of the contention, much reliance has ben placed by the learned counsel on a decision of this Court in National Insurance Company Ltd. v. Jugal Kishore National Insurance Company Ltd. v. Jugal Kishore (1988)1 S.C.C. 626: 1988 S.C.C. (Crl) 222: 1988 A.C J. 270: A.I.R. 1988 S.C. 719. In that case, it has been observed that where the Insurance Company concerned wishesto take a defence in a claim petition that its liability is not in excess of the statutory liability, it should file a copy of the insurance policy along with its defence. This decision in our opinion, is not applicable to the facts of the instant case. It has been already noticed that before the Tribunal the appellants had categorically admitted that the liability of the Insurance Company extended to Rs.4,000 only. In the circumstances, we do not think that it was incumbent upon the Insurance Company to file the policy. The contention made on behalf of the appellants is, accordingly, rejected14. In the result, we direct that the appellants are entitled to a sum of Rs.l lakh (Rupees one lakh only) on account of compensation. Out of the said sum, the Insurance Company respondent 4, is liable to pay Rs.4,000 only and respondents 1,2 and 3 including the Rajasthan Manila Parishad are jointly and severally liable to pay to the appellants the remaining amount. The respondents shall deposit the decretal amount to the extent of their respective liabilities in the Motor Accident Claims Tribunal, Udaipur, within two months from date; in default, the decretal amount or so much thereof as will remain outstanding will bear interest at 12 per cent per annum till realisation.
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R.M. Pandye Vs. Automobile Products of India Limited | to him was not the copy which he himself made or a copy which he himself typed.What he stated was that the copy which was shown to him was the copy of the report which he typed. This suggests that the witness evidence was that he typed the report and a copy which was shown to him was a copy of that report. Now, this copy has gone upon the record as admissible evidence. But in the face of the evidence of N. Subharam, this report cannot be received in evidence, firstly because this is net the original report and secondly because it is not secondary evidence since it is not a carbon copy of the report which was dictated by Walters and typed by witness N. Subharam.Apart from this infirmity, the report stated, according to the judgment of the learned Commissioner, that Walters had a bag of two mangoes. To this, however, Walters does not refer in his evidence. In our view, therefore, this report is not admissible in evidence and if the report is not admissible in evidence, the report cannot corroborate the testimony of Pyara Singh.Apart from this, as I have already pointed out, the evidence of Pyara Singh is in conflict with the evidence of Dudhnath. While Pyara Singh stated that Dudhnath asked the appellant to knock down the mangoes, the evidence which Dudhnath himself gave was that he did not tell the appellant to knock down the mangoes.Further, the Commissioner appears to have relied upon what he called a local inspection. The date of this local inspection is not apparent from the record. But it is clear the inspection took place in the course of the proceedings which were initiated on 2-7-1954. Now, as a result of the local inspection, the learned Commissioner has observed as follows"The overhead high-tension electric wires run through the factorys compound at a height of about 25 feet from the ground, and there was a large mango tree short distance away from the overhead high-tension electric wires, and a large branch of the mango tree near the overhead high-tension electric wires had been cut off, and was lying on the ground."Now, if the local inspection took place in 1954, it is difficult to see why the local inspection should have a bearing with reference to the point at issue between the parties. That there were mango trees in the compound of the factory cannot be disputed because that is the evidence in the case.The question however remains whether it was the appellant who lifted the G. I. pipe in order to knock down the mangoes or whether, as the appellant stated he lifted the G.I. pipe in order to take it and keep it in a safe place. Now, the learned Commissioner with reference to the G. I. pipe stated that it was almost impossible to hold a G. I. pipe about 25 feet long at one end and raise it up.This observation was made by him with reference to the story of the appellant that the appellant wanted to keep it at a safe, place. Now, if it is not possible for a person to hold a G. I. pipe 25 feet long at one end to raise it up in order to take it to a safe place, we think it would be equally impossible for a person to hold a G. I. pipe 25 feet long in order to raise it for knocking down mangoes from a mango tree.There is no evidence to show as to what the weight of that G. I. pipe is, nor is there any evidence to show as to what was the width of the G. I. pipe. But it is clear that it was a galvanised iron pipe as long as 25 feet. It is not easy to lift a G. I. pipe of that magnitude in order to knock down mangoes from a mango tree.10. The result therefore, is that there is no evidence in support of the contention raised by the respondents in the written statement of the Insurance Company. The evidence of Pyara Singh is contradicted by the evidence of Dudhnath and if the report is not admissible in evidence, the evidence of Pyara Singh is not corroborated by the report made by Walters.This leaves the story of the appellant in the field and we accept it for the reason that the appellant was a watchman, that he had to take a round of the factory compound and if he noticed a G. I. pipe in the compound, it would be his duty to lift it up and to take it to a safe place.It is noteworthy that in the written statement filed by the company it was not suggested that it was not the duty of the appellant to lift the G. I. pipe in order to take it to a safe place. That being so, we hold that the learned Commissioner was wrong in coming to the conclusion thatit was the appellant who was responsible for the accident and that it was not an injury received by the appellant as a result of an accident arising out of his employment.11. The appellant was on duty at 8-30 a.m. on 11-11-1953. It was the time when he ought to be on duty. It was also the place where he ought to be on duty and if his duty was, which is not contradicted, that he should take the G. I. pipe I to a safe place, then it is clear that the appellant received injury as a result of an accident arising out of the employment.There is a causal connection between the accident and the employment. In this case, the compensation claimed by the appellant is not disputed. That being so, we must allow the application made by the appellant. The view we take is supported by a decision of this Court reported in - Bhagubhai v. General Manager, Central Rly., (S) AIR 1955 Bom 105 (A). | 1[ds]it would be first necessary to look at the evidence in the case. The appellant himself has given evidence and he stated that, while he was taking a round of the factory premises he noticed a G. I. pipe lying in the compound and so he lifted the G. I. pipe in order to keep it in a safe place. He says that he did not know what happened thereafter. He says that when he recovered consciousness, he found himself in a hospital in which he was an indoor patient for six months.Inhe stated that the G. I. pipe was about 20 feet in length and that he caught the G. I. pipe at one end and raised it in order to take it and keep it in a safe place. He was asked as to whether there were any mangoes on the trees which were in the compound; and while he admitted that there were mango trees in the factory compound, he said he could not say that there were any mangoes upon the trees.He further stated that it was not true that he attempted to knock tender mangoes from a tree in the factory compound with the G. I. pipe and while doing so the G. I. pipe came into contact with the H. T. cables.7. One Philip DAbreo, a mechanic in the respondent company, has been examined and his evidence was that onhe attended the factory as usual ata.m. and while going to his work he saw a flash from the H. T. electric wire and when he ran towards the place, he saw the appellant lying on the ground.Now, the evidence of Philip DAbreo is not, therefore, helpful in considering the question whether the appellant received injuries while he was lifting the G. I. pipe in order to take it to a safe place or whether the appellant received injuries while he was lifting up the G. I. pipe, in order to knock the mangoes. The next evidence is of witness Pyara Singh and the Commissioner has relied upon this evidence.Pyara Singh stated that he was a watchman in the respondent companys service since June 1950. He says that onhe went to work ata.m. and while he was there he saw the appellant going towards the watchman by the name of Dudhanath who was standing under a mango tree.He saw a pipe about 25 feet long lying under the mango trees and he says, that Dudhanath asked the appellant to knock down some mangoes and the appellant lifted the pipe to knock down the mangoes and, while doing so the pipe came in contact with the electric wires overhead and the appellant fell on the ground. InPyara Singh stated that the appellant knocked down two mangoes before the G. I. pipe struck the electric wires.InPyara Singh stated that there were about 15 mango trees in the factory compound and the mango tree from which the appellant knocked down the mangoes bore fruit twice a year. Now, one comment upon the evidence of Pyara Singh is that, that if Dudhnath wanted to knock down the mangoes, it was easy for Dudhnath himself to take the pipe and to knock down the mangoes and that it was not necessary for Dudhnath to ask the appellant to knock down the mangoes.The evidence of Pyara Singh is not supported by Dudhnath upon this point. His evidence was that there were mango trees near his room and also in the compound of the factory and that onhis duty was froma.m. and he was off duty at the time of the accident to the appellant. He says that it was not true that he had asked the appellant to knock down mangoes from a tree in the compound and that when the appellant was knocking down the mangoes, the pipe with which he was knocking down the mangoes struck the overhead electric wires.Dudhnath stated that he was not on good terms with Pyara Singh and that Pyara Singh threatened Dudhnath to get him into trouble as soon as he got an opportunity. Taking, therefore, the evidence of these three witnesses, that is, Philip DAbreo, Pyare Singh and Dudhnath, while the evidence of Philip DAbreo is not helpful on the question at issue, the evidence of Pyara Singh no doubt supports the case of the respondent Company. But when one turns to the evidence of Dudhnath, the story which Pyara Singh gives in his evidence is not supported by the evidence of Dudhnath.8. One Hardd Ernest Walters, a Plant Engineer, and a Security Officer in the respondent Company, has been examined in the case and his evidence was that ona worker by the name of Santaram came to his flat and told him that a watchman had met with an accident by electricity. It is to be noted that this Shantaram has not been examined in this case.When he got this information, he made enquiries from the workmen as to how the accident occurred and the enquiries revealed that the appellant knocked down mangoes from a tree in the compound with a galvanised iron pipe. He says that he made enquiries from workmen and when one turns to his cross examination the two workmen with whom he made enquiries are Philip DAbreo and Pyara Singh.Now, according to Walters, he submitted a report to the Works Manager by the name of Warren and he says that the original report which was made by him was not to be found. Inhe admitted that he himself did not personally see the accident, that he recorded in writing what Philip DAbreo and Pyara Singh told him, but he said that he did not take down the1 signatures below the writing.On behalf of the respondent company, an entry has been produced by witness Babu Sidhu Dhende. He said that he searched for the accident report which was made by Warren to the Chief Inspector of Factories, but the report was not to be found and instead he produced the entry. The remaining witness is one N. Subharam Rajan.This witness was a typist in the respondent company. He said that Walters dictated to him a report of the injury by electric shock caused to the appellant Pandye and he typed out the report. He says that Walters then signed the report and he handed it over to Warren, the Works Manager. He also stated when shown a copy of the report ofthat the copy shown to him was a copy of the report he typed.Inhe admitted that the copy which was shown to him was not a carbon copy of the report which he had typed and he stated that he took out one copy of the report and he gave the original report to Warren and the copy to Walters. This evidence, therefore, shows that the original report went to Warren and the copy of the report was given to Walters.The learned Commissioner in coming to the conclusion he did relied upon the evidence of Pyara Singh and the report made by Walters and also upon a local inspection which the Commissioner made in the presence of the appellants Advocate and also in the presence of the Advocate for the Insurance Company.The Commissioner stated that Pyara Singh impressed him as an honest and truthful witness and he accepted the evidence of Pyara Singh because his evidence received corroboration from the report. The report made by Walters stated that he had a bag of two mangoes which had been broken from the tree.Now, this statement is not to be found in the evidence of Walters. But what is more important is this the Original Report is not forthcoming. If the original report is lost, that is if the primary evidence is not available, secondary evidence may be given. But when the typist was asked this question, he stated that the copy which was shown to him was not a carbon copy of the report which he had typed.Mr. Deshpande argues that the typist had made a copy of the report and it was that copy which was produced by witness Walters. If one turns however to the evidence of the typist N. Subharam, it would be clear that the copy which was shown to him was not the copy which he himself made or a copy which he himself typed.What he stated was that the copy which was shown to him was the copy of the report which he typed. This suggests that the witness evidence was that he typed the report and a copy which was shown to him was a copy of that report. Now, this copy has gone upon the record as admissible evidence. But in the face of the evidence of N. Subharam, this report cannot be received in evidence, firstly because this is net the original report and secondly because it is not secondary evidence since it is not a carbon copy of the report which was dictated by Walters and typed by witness N. Subharam.Apart from this infirmity, the report stated, according to the judgment of the learned Commissioner, that Walters had a bag of two mangoes. To this, however, Walters does not refer in his evidence. In our view, therefore, this report is not admissible in evidence and if the report is not admissible in evidence, the report cannot corroborate the testimony of Pyara Singh.Apart from this, as I have already pointed out, the evidence of Pyara Singh is in conflict with the evidence of Dudhnath. While Pyara Singh stated that Dudhnath asked the appellant to knock down the mangoes, the evidence which Dudhnath himself gave was that he did not tell the appellant to knock down the mangoes.Further, the Commissioner appears to have relied upon what he called a local inspection. The date of this local inspection is not apparent from the record. But it is clear the inspection took place in the course of the proceedings which were initiated onif the local inspection took place in 1954, it is difficult to see why the local inspection should have a bearing with reference to the point at issue between the parties. That there were mango trees in the compound of the factory cannot be disputed because that is the evidence in thethe learned Commissioner with reference to the G. I. pipe stated that it was almost impossible to hold a G. I. pipe about 25 feet long at one end and raise it up.This observation was made by him with reference to the story of the appellant that the appellant wanted to keep it at a safe, place. Now, if it is not possible for a person to hold a G. I. pipe 25 feet long at one end to raise it up in order to take it to a safe place, we think it would be equally impossible for a person to hold a G. I. pipe 25 feet long in order to raise it for knocking down mangoes from a mango tree.There is no evidence to show as to what the weight of that G. I. pipe is, nor is there any evidence to show as to what was the width of the G. I. pipe. But it is clear that it was a galvanised iron pipe as long as 25 feet. It is not easy to lift a G. I. pipe of that magnitude in order to knock down mangoes from a mango tree.The result therefore, is that there is no evidence in support of the contention raised by the respondents in the written statement of the Insurance Company. The evidence of Pyara Singh is contradicted by the evidence of Dudhnath and if the report is not admissible in evidence, the evidence of Pyara Singh is not corroborated by the report made by Walters.This leaves the story of the appellant in the field and we accept it for the reason that the appellant was a watchman, that he had to take a round of the factory compound and if he noticed a G. I. pipe in the compound, it would be his duty to lift it up and to take it to a safe place.It is noteworthy that in the written statement filed by the company it was not suggested that it was not the duty of the appellant to lift the G. I. pipe in order to take it to a safe place. That being so, we hold that the learned Commissioner was wrong in coming to the conclusion thatit was the appellant who was responsible for the accident and that it was not an injury received by the appellant as a result of an accident arising out of his employment.11. The appellant was on duty at53. It was the time when he ought to be on duty. It was also the place where he ought to be on duty and if his duty was, which is not contradicted, that he should take the G. I. pipe I to a safe place, then it is clear that the appellant received injury as a result of an accident arising out of the employment.There is a causal connection between the accident and the employment. In this case, the compensation claimed by the appellant is not disputed. That being so, we must allow the application made by the appellant. The view we take is supported by a decision of this Court reported inBhagubhai v. General Manager, Central Rly., (S) AIR 1955 Bom 105 (A). | 1 | 3,137 | 2,383 | ### Instruction:
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to him was not the copy which he himself made or a copy which he himself typed.What he stated was that the copy which was shown to him was the copy of the report which he typed. This suggests that the witness evidence was that he typed the report and a copy which was shown to him was a copy of that report. Now, this copy has gone upon the record as admissible evidence. But in the face of the evidence of N. Subharam, this report cannot be received in evidence, firstly because this is net the original report and secondly because it is not secondary evidence since it is not a carbon copy of the report which was dictated by Walters and typed by witness N. Subharam.Apart from this infirmity, the report stated, according to the judgment of the learned Commissioner, that Walters had a bag of two mangoes. To this, however, Walters does not refer in his evidence. In our view, therefore, this report is not admissible in evidence and if the report is not admissible in evidence, the report cannot corroborate the testimony of Pyara Singh.Apart from this, as I have already pointed out, the evidence of Pyara Singh is in conflict with the evidence of Dudhnath. While Pyara Singh stated that Dudhnath asked the appellant to knock down the mangoes, the evidence which Dudhnath himself gave was that he did not tell the appellant to knock down the mangoes.Further, the Commissioner appears to have relied upon what he called a local inspection. The date of this local inspection is not apparent from the record. But it is clear the inspection took place in the course of the proceedings which were initiated on 2-7-1954. Now, as a result of the local inspection, the learned Commissioner has observed as follows"The overhead high-tension electric wires run through the factorys compound at a height of about 25 feet from the ground, and there was a large mango tree short distance away from the overhead high-tension electric wires, and a large branch of the mango tree near the overhead high-tension electric wires had been cut off, and was lying on the ground."Now, if the local inspection took place in 1954, it is difficult to see why the local inspection should have a bearing with reference to the point at issue between the parties. That there were mango trees in the compound of the factory cannot be disputed because that is the evidence in the case.The question however remains whether it was the appellant who lifted the G. I. pipe in order to knock down the mangoes or whether, as the appellant stated he lifted the G.I. pipe in order to take it and keep it in a safe place. Now, the learned Commissioner with reference to the G. I. pipe stated that it was almost impossible to hold a G. I. pipe about 25 feet long at one end and raise it up.This observation was made by him with reference to the story of the appellant that the appellant wanted to keep it at a safe, place. Now, if it is not possible for a person to hold a G. I. pipe 25 feet long at one end to raise it up in order to take it to a safe place, we think it would be equally impossible for a person to hold a G. I. pipe 25 feet long in order to raise it for knocking down mangoes from a mango tree.There is no evidence to show as to what the weight of that G. I. pipe is, nor is there any evidence to show as to what was the width of the G. I. pipe. But it is clear that it was a galvanised iron pipe as long as 25 feet. It is not easy to lift a G. I. pipe of that magnitude in order to knock down mangoes from a mango tree.10. The result therefore, is that there is no evidence in support of the contention raised by the respondents in the written statement of the Insurance Company. The evidence of Pyara Singh is contradicted by the evidence of Dudhnath and if the report is not admissible in evidence, the evidence of Pyara Singh is not corroborated by the report made by Walters.This leaves the story of the appellant in the field and we accept it for the reason that the appellant was a watchman, that he had to take a round of the factory compound and if he noticed a G. I. pipe in the compound, it would be his duty to lift it up and to take it to a safe place.It is noteworthy that in the written statement filed by the company it was not suggested that it was not the duty of the appellant to lift the G. I. pipe in order to take it to a safe place. That being so, we hold that the learned Commissioner was wrong in coming to the conclusion thatit was the appellant who was responsible for the accident and that it was not an injury received by the appellant as a result of an accident arising out of his employment.11. The appellant was on duty at 8-30 a.m. on 11-11-1953. It was the time when he ought to be on duty. It was also the place where he ought to be on duty and if his duty was, which is not contradicted, that he should take the G. I. pipe I to a safe place, then it is clear that the appellant received injury as a result of an accident arising out of the employment.There is a causal connection between the accident and the employment. In this case, the compensation claimed by the appellant is not disputed. That being so, we must allow the application made by the appellant. The view we take is supported by a decision of this Court reported in - Bhagubhai v. General Manager, Central Rly., (S) AIR 1955 Bom 105 (A).
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two mangoes which had been broken from the tree.Now, this statement is not to be found in the evidence of Walters. But what is more important is this the Original Report is not forthcoming. If the original report is lost, that is if the primary evidence is not available, secondary evidence may be given. But when the typist was asked this question, he stated that the copy which was shown to him was not a carbon copy of the report which he had typed.Mr. Deshpande argues that the typist had made a copy of the report and it was that copy which was produced by witness Walters. If one turns however to the evidence of the typist N. Subharam, it would be clear that the copy which was shown to him was not the copy which he himself made or a copy which he himself typed.What he stated was that the copy which was shown to him was the copy of the report which he typed. This suggests that the witness evidence was that he typed the report and a copy which was shown to him was a copy of that report. Now, this copy has gone upon the record as admissible evidence. But in the face of the evidence of N. Subharam, this report cannot be received in evidence, firstly because this is net the original report and secondly because it is not secondary evidence since it is not a carbon copy of the report which was dictated by Walters and typed by witness N. Subharam.Apart from this infirmity, the report stated, according to the judgment of the learned Commissioner, that Walters had a bag of two mangoes. To this, however, Walters does not refer in his evidence. In our view, therefore, this report is not admissible in evidence and if the report is not admissible in evidence, the report cannot corroborate the testimony of Pyara Singh.Apart from this, as I have already pointed out, the evidence of Pyara Singh is in conflict with the evidence of Dudhnath. While Pyara Singh stated that Dudhnath asked the appellant to knock down the mangoes, the evidence which Dudhnath himself gave was that he did not tell the appellant to knock down the mangoes.Further, the Commissioner appears to have relied upon what he called a local inspection. The date of this local inspection is not apparent from the record. But it is clear the inspection took place in the course of the proceedings which were initiated onif the local inspection took place in 1954, it is difficult to see why the local inspection should have a bearing with reference to the point at issue between the parties. That there were mango trees in the compound of the factory cannot be disputed because that is the evidence in thethe learned Commissioner with reference to the G. I. pipe stated that it was almost impossible to hold a G. I. pipe about 25 feet long at one end and raise it up.This observation was made by him with reference to the story of the appellant that the appellant wanted to keep it at a safe, place. Now, if it is not possible for a person to hold a G. I. pipe 25 feet long at one end to raise it up in order to take it to a safe place, we think it would be equally impossible for a person to hold a G. I. pipe 25 feet long in order to raise it for knocking down mangoes from a mango tree.There is no evidence to show as to what the weight of that G. I. pipe is, nor is there any evidence to show as to what was the width of the G. I. pipe. But it is clear that it was a galvanised iron pipe as long as 25 feet. It is not easy to lift a G. I. pipe of that magnitude in order to knock down mangoes from a mango tree.The result therefore, is that there is no evidence in support of the contention raised by the respondents in the written statement of the Insurance Company. The evidence of Pyara Singh is contradicted by the evidence of Dudhnath and if the report is not admissible in evidence, the evidence of Pyara Singh is not corroborated by the report made by Walters.This leaves the story of the appellant in the field and we accept it for the reason that the appellant was a watchman, that he had to take a round of the factory compound and if he noticed a G. I. pipe in the compound, it would be his duty to lift it up and to take it to a safe place.It is noteworthy that in the written statement filed by the company it was not suggested that it was not the duty of the appellant to lift the G. I. pipe in order to take it to a safe place. That being so, we hold that the learned Commissioner was wrong in coming to the conclusion thatit was the appellant who was responsible for the accident and that it was not an injury received by the appellant as a result of an accident arising out of his employment.11. The appellant was on duty at53. It was the time when he ought to be on duty. It was also the place where he ought to be on duty and if his duty was, which is not contradicted, that he should take the G. I. pipe I to a safe place, then it is clear that the appellant received injury as a result of an accident arising out of the employment.There is a causal connection between the accident and the employment. In this case, the compensation claimed by the appellant is not disputed. That being so, we must allow the application made by the appellant. The view we take is supported by a decision of this Court reported inBhagubhai v. General Manager, Central Rly., (S) AIR 1955 Bom 105 (A).
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DEEPAK TANDON Vs. RAJESH KUMAR GUPTA | house to carry on their business in the suit house. It was also held that the place pointed out by the respondent where the appellants could carry on their business operation was not sufficient and, therefore, the respondent was liable to be evicted from the suit house to enable the appellants to do and carry on their business operations in the suit house.9. The respondent felt aggrieved by the said order and filed appeal (Rent Control Appeal No.52/2013) before the District Judge, Allahabad. By order dated 30.05.2014, the District Judge dismissed the appeal and affirmed the order of the Prescribed Authority.10. The respondent felt aggrieved by the said order and carried the matter to the High Court under Article 227 of the Constitution of India. By impugned order, the Single Judge of High Court allowed the writ appeal and set aside the orders of the Appellate Court and Prescribed Authority and dismissed the appellants’ application filed under Section 21 (1)(a) of the Act, 1972.11. The High Court allowed the writ appeal mainly on the ground that the application filed by the appellants under Section 21(1)(a) of the Act, 1972 was not maintainable. The High Court held that the pleadings of the parties indicate that the tenancy in question was essentially for residential purpose because out of four rooms, the respondent was using three rooms for residence and one room for shop, whereas the appellants sought respondents eviction for their commercial need which, according to the High Court, was not permissible by virtue of proviso to Section 21 of the Act, 1972. The High Court, therefore, did not examine the findings of the two Courts below on merits, which were answered in appellants’ favour. 12. Against the said order, the appellants filed the review application before the High Court, which was also dismissed.13. The appellants (applicantslandlord) have felt aggrieved by the orders of the High Court in appeal and the review and filed these appeals by way of special leave in this Court.14. So, the short question, which arises for consideration in these appeals, is whether the Single Judge was justified in allowing the respondents writ appeal and was, therefore, justified in dismissing the appellants’ application filed under Section 21 (1)(a) of the Act, 1972 as not maintainable. 15. Heard Mr. Avi Tandon, learned counsel for the appellants and Mr. Nitin Bhardwaj, learned counsel for the respondent. 16. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeals, set aside the impugned order and restore the orders of the Prescribed Authority and the Appellate Court (District Judge).17. In our considered opinion, the High Court committed jurisdictional error in setting aside the concurrent findings of the two Courts below and thereby erred in allowing the respondents writ appeal and dismissing the appellants’ application under Section 21(1)(a) of the Act, 1972 as not maintainable. This we say for the following reasons.18. First, it is not in dispute that the respondent (opposite party) had not raised the plea of maintainability of the appellants’ application under Section 21(1)(a) of the Act, 1972 in his written statement before the Prescribed Authority. 19. Second, since the respondent failed to raise the plea of maintainability, the Prescribed Authority rightly did not decide this question either way.20. Third, the respondent again did not raise the plea of maintainability before the First Appellate Court in his appeal and, therefore, the First Appellate Court was also right in not deciding this question either way. 21. Fourth, it is a settled law that if the plea is not taken in the pleadings by the parties and no issue on such plea was, therefore, framed and no finding was recorded either way by the Trial Court or the First Appellate Court, such plea cannot be allowed to be raised by the party for the first time in third Court whether in appeal, revision or writ, as the case may be, for want of any factual foundation and finding. 22. Fifth, it is more so when such plea is founded on factual pleadings and requires evidence to prove, i.e., it is a mixed question of law and fact and not pure jurisdictional legal issue requiring no facts to probe.23. Sixth, the question as to whether the tenancy is solely for residential purpose or for commercial purpose or for composite purpose, i.e., for both residential and commercial purpose, is not a pure question of law but is a question of fact, therefore, this question is required to be first pleaded and then proved by adducing evidence24. It is for this reason, such question could not have been decided by the High Court for the first time in third round of litigation in its writ jurisdiction simply by referring to some portions of the pleadings. 125. In any case and without going into much detail, we are of the view that if the tenancy is for composite purpose because some portion of tenanted premises was being used for residence and some portion for commercial purpose, i.e., residential and commercial, then the landlord will have a right to seek the tenant’s eviction from the tenanted premises for his residential need or commercial need, as the case may be.26. Seventh, the High Court exceeded its jurisdiction in interfering in the concurrent findings of fact of the two Courts below while allowing the writ appeal entirely on the new ground of maintainability of the application without examining the legality and correctness of the concurrent findings of the two Courts below, which was impugned in the writ appeal. 27. Eighth, the High Court should have seen that the concurrent findings of facts of the two Courts below were binding on the writ Court because these findings were based on appreciation of evidence and, therefore, did not call for any interference in the writ jurisdiction.28. In the light of the aforementioned eight reasons, we are of the considered opinion that the impugned order is not legally sustainable. | 1[ds]17. In our considered opinion, the High Court committed jurisdictional error in setting aside the concurrent findings of the two Courts below and thereby erred in allowing the respondents writ appeal and dismissing theapplication under Section 21(1)(a) of the Act, 1972 as not maintainable. This we say for the following reasons.18. First, it is not in dispute that the respondent (opposite party) had not raised the plea of maintainability of theapplication under Section 21(1)(a) of the Act, 1972 in his written statement before the Prescribed Authority. 19. Second, since the respondent failed to raise the plea of maintainability, the Prescribed Authority rightly did not decide this question either way.20. Third, the respondent again did not raise the plea of maintainability before the First Appellate Court in his appeal and, therefore, the First Appellate Court was also right in not deciding this question either way. 21. Fourth, it is a settled law that if the plea is not taken in the pleadings by the parties and no issue on such plea was, therefore, framed and no finding was recorded either way by the Trial Court or the First Appellate Court, such plea cannot be allowed to be raised by the party for the first time in third Court whether in appeal, revision or writ, as the case may be, for want of any factual foundation and finding. 22. Fifth, it is more so when such plea is founded on factual pleadings and requires evidence to prove, i.e., it is a mixed question of law and fact and not pure jurisdictional legal issue requiring no facts to probe.23. Sixth, the question as to whether the tenancy is solely for residential purpose or for commercial purpose or for composite purpose, i.e., for both residential and commercial purpose, is not a pure question of law but is a question of fact, therefore, this question is required to be first pleaded and then proved by adducing evidence24. It is for this reason, such question could not have been decided by the High Court for the first time in third round of litigation in its writ jurisdiction simply by referring to some portions of the pleadings. 125. In any case and without going into much detail, we are of the view that if the tenancy is for composite purpose because some portion of tenanted premises was being used for residence and some portion for commercial purpose, i.e., residential and commercial, then the landlord will have a right to seek theeviction from the tenanted premises for his residential need or commercial need, as the case may be.26. Seventh, the High Court exceeded its jurisdiction in interfering in the concurrent findings of fact of the two Courts below while allowing the writ appeal entirely on the new ground of maintainability of the application without examining the legality and correctness of the concurrent findings of the two Courts below, which was impugned in the writ appeal. 27. Eighth, the High Court should have seen that the concurrent findings of facts of the two Courts below were binding on the writ Court because these findings were based on appreciation of evidence and, therefore, did not call for any interference in the writ jurisdiction.28. In the light of the aforementioned eight reasons, we are of the considered opinion that the impugned order is not legally sustainable. | 1 | 1,651 | 630 | ### 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:
house to carry on their business in the suit house. It was also held that the place pointed out by the respondent where the appellants could carry on their business operation was not sufficient and, therefore, the respondent was liable to be evicted from the suit house to enable the appellants to do and carry on their business operations in the suit house.9. The respondent felt aggrieved by the said order and filed appeal (Rent Control Appeal No.52/2013) before the District Judge, Allahabad. By order dated 30.05.2014, the District Judge dismissed the appeal and affirmed the order of the Prescribed Authority.10. The respondent felt aggrieved by the said order and carried the matter to the High Court under Article 227 of the Constitution of India. By impugned order, the Single Judge of High Court allowed the writ appeal and set aside the orders of the Appellate Court and Prescribed Authority and dismissed the appellants’ application filed under Section 21 (1)(a) of the Act, 1972.11. The High Court allowed the writ appeal mainly on the ground that the application filed by the appellants under Section 21(1)(a) of the Act, 1972 was not maintainable. The High Court held that the pleadings of the parties indicate that the tenancy in question was essentially for residential purpose because out of four rooms, the respondent was using three rooms for residence and one room for shop, whereas the appellants sought respondents eviction for their commercial need which, according to the High Court, was not permissible by virtue of proviso to Section 21 of the Act, 1972. The High Court, therefore, did not examine the findings of the two Courts below on merits, which were answered in appellants’ favour. 12. Against the said order, the appellants filed the review application before the High Court, which was also dismissed.13. The appellants (applicantslandlord) have felt aggrieved by the orders of the High Court in appeal and the review and filed these appeals by way of special leave in this Court.14. So, the short question, which arises for consideration in these appeals, is whether the Single Judge was justified in allowing the respondents writ appeal and was, therefore, justified in dismissing the appellants’ application filed under Section 21 (1)(a) of the Act, 1972 as not maintainable. 15. Heard Mr. Avi Tandon, learned counsel for the appellants and Mr. Nitin Bhardwaj, learned counsel for the respondent. 16. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeals, set aside the impugned order and restore the orders of the Prescribed Authority and the Appellate Court (District Judge).17. In our considered opinion, the High Court committed jurisdictional error in setting aside the concurrent findings of the two Courts below and thereby erred in allowing the respondents writ appeal and dismissing the appellants’ application under Section 21(1)(a) of the Act, 1972 as not maintainable. This we say for the following reasons.18. First, it is not in dispute that the respondent (opposite party) had not raised the plea of maintainability of the appellants’ application under Section 21(1)(a) of the Act, 1972 in his written statement before the Prescribed Authority. 19. Second, since the respondent failed to raise the plea of maintainability, the Prescribed Authority rightly did not decide this question either way.20. Third, the respondent again did not raise the plea of maintainability before the First Appellate Court in his appeal and, therefore, the First Appellate Court was also right in not deciding this question either way. 21. Fourth, it is a settled law that if the plea is not taken in the pleadings by the parties and no issue on such plea was, therefore, framed and no finding was recorded either way by the Trial Court or the First Appellate Court, such plea cannot be allowed to be raised by the party for the first time in third Court whether in appeal, revision or writ, as the case may be, for want of any factual foundation and finding. 22. Fifth, it is more so when such plea is founded on factual pleadings and requires evidence to prove, i.e., it is a mixed question of law and fact and not pure jurisdictional legal issue requiring no facts to probe.23. Sixth, the question as to whether the tenancy is solely for residential purpose or for commercial purpose or for composite purpose, i.e., for both residential and commercial purpose, is not a pure question of law but is a question of fact, therefore, this question is required to be first pleaded and then proved by adducing evidence24. It is for this reason, such question could not have been decided by the High Court for the first time in third round of litigation in its writ jurisdiction simply by referring to some portions of the pleadings. 125. In any case and without going into much detail, we are of the view that if the tenancy is for composite purpose because some portion of tenanted premises was being used for residence and some portion for commercial purpose, i.e., residential and commercial, then the landlord will have a right to seek the tenant’s eviction from the tenanted premises for his residential need or commercial need, as the case may be.26. Seventh, the High Court exceeded its jurisdiction in interfering in the concurrent findings of fact of the two Courts below while allowing the writ appeal entirely on the new ground of maintainability of the application without examining the legality and correctness of the concurrent findings of the two Courts below, which was impugned in the writ appeal. 27. Eighth, the High Court should have seen that the concurrent findings of facts of the two Courts below were binding on the writ Court because these findings were based on appreciation of evidence and, therefore, did not call for any interference in the writ jurisdiction.28. In the light of the aforementioned eight reasons, we are of the considered opinion that the impugned order is not legally sustainable.
### Response:
1
### Explanation:
17. In our considered opinion, the High Court committed jurisdictional error in setting aside the concurrent findings of the two Courts below and thereby erred in allowing the respondents writ appeal and dismissing theapplication under Section 21(1)(a) of the Act, 1972 as not maintainable. This we say for the following reasons.18. First, it is not in dispute that the respondent (opposite party) had not raised the plea of maintainability of theapplication under Section 21(1)(a) of the Act, 1972 in his written statement before the Prescribed Authority. 19. Second, since the respondent failed to raise the plea of maintainability, the Prescribed Authority rightly did not decide this question either way.20. Third, the respondent again did not raise the plea of maintainability before the First Appellate Court in his appeal and, therefore, the First Appellate Court was also right in not deciding this question either way. 21. Fourth, it is a settled law that if the plea is not taken in the pleadings by the parties and no issue on such plea was, therefore, framed and no finding was recorded either way by the Trial Court or the First Appellate Court, such plea cannot be allowed to be raised by the party for the first time in third Court whether in appeal, revision or writ, as the case may be, for want of any factual foundation and finding. 22. Fifth, it is more so when such plea is founded on factual pleadings and requires evidence to prove, i.e., it is a mixed question of law and fact and not pure jurisdictional legal issue requiring no facts to probe.23. Sixth, the question as to whether the tenancy is solely for residential purpose or for commercial purpose or for composite purpose, i.e., for both residential and commercial purpose, is not a pure question of law but is a question of fact, therefore, this question is required to be first pleaded and then proved by adducing evidence24. It is for this reason, such question could not have been decided by the High Court for the first time in third round of litigation in its writ jurisdiction simply by referring to some portions of the pleadings. 125. In any case and without going into much detail, we are of the view that if the tenancy is for composite purpose because some portion of tenanted premises was being used for residence and some portion for commercial purpose, i.e., residential and commercial, then the landlord will have a right to seek theeviction from the tenanted premises for his residential need or commercial need, as the case may be.26. Seventh, the High Court exceeded its jurisdiction in interfering in the concurrent findings of fact of the two Courts below while allowing the writ appeal entirely on the new ground of maintainability of the application without examining the legality and correctness of the concurrent findings of the two Courts below, which was impugned in the writ appeal. 27. Eighth, the High Court should have seen that the concurrent findings of facts of the two Courts below were binding on the writ Court because these findings were based on appreciation of evidence and, therefore, did not call for any interference in the writ jurisdiction.28. In the light of the aforementioned eight reasons, we are of the considered opinion that the impugned order is not legally sustainable.
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M/S Vishal Properties Vs. State Of U.P. | appellant and NOIDA. The terms and conditions contained in the brochure were repeated in the lease deed. The relevant clauses of the lease deed are quoted below: “X(A). The ground floor (of the building constructed on the allotted office plot) will be exclusively used for parking and no temporary or permanent construction of any sort would be allowed in any circumstances.X(B). Construction of basement is optional and if constructed, shall be as per architectural control drawing and building plans approved by the lessor.X(C). No barricade or boundary wall will be permitted on any side of the plot and there will be free access from one plot to another on the ground floor.X(D). The first and above floors of the building constructed on the allotted plot will be exclusively used for showroom-cum-office only. The above floors of the building constructed on the allotted plot will be exclusively used for office only and for no other purpose.XI. - That the lessee shall obey and submit the rules, building regulations and directions of the lessor, and proper municipal or other authority now existing or hereinafter to exist, so far as the same relate to the immovable property in the said area so far as they affect the health, safety and convenience of the other inhabitants of the place.XIV. (A) The plot or building thereon shall not be used for a purpose other than that specified in the lease deed and architectural control drawings prescribed by the lessor. The architectural control drawings will be supplied by the lessor on payment of the prescribed fee by the allottee who shall carry out construction of the plot strictly in accordance with the same after the approval from the lessor.XXI. If the lessee does not abide by the terms and conditions and building rules or any other rules framed by the Authority, the lease may be cancelled by the lessor and the lessee in such event will not be entitled to claim any compensation in respect thereof.” (Emphasis Supplied) 12. Even otherwise, Article 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality. Therefore, we are not bound to direct any Authority to repeat the wrong action done by it earlier. In Sushanta Tagore & Ors. Vs. Union of India & Ors., (2005 (3) SCC 16 ), this Court rejected such a contention as sought to be advanced in the present case by observing:- “Only because some advantages would ensue to the people in general by reason of the proposed development, the same would not mean that the ecology of the place would be sacrificed. Only because some encroachments have been made and unauthorised buildings have been constructed, the same by itself cannot be a good ground for allowing other constructional activities to come up which would be in violation of the provisions of the Act. Illegal encroachments, if any, may be removed in accordance with law. It is trite law that there is no equality in illegality.” 13. This view also finds support from the judgments of the this Court in Snehprabha v. State of U.P. & Ors., (AIR 1996 SC 540 ); Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jam & Ors., (1997 (1) SCC 35 ), State of Haryana & Ors. v. Ram Kumar Mann, (1997 (3) SCC 321 ), and Faridabad C.T. Scan Centre v. D.G. Health Services & Ors. (1997 (7) SCC 752 ). 14. In Finance Commissioner (Revenue) v. Gulab Chandra & Anr. (2001 AIR SCW 4774) this Court rejected the contention that as other similarly situated persons had been retained in service, persons senior to the petitioner could not have been discharged during the period of probation observing that even if no action had been taken in similar situation against similarly situated persons then too it did not confer any legal right upon the petitioner. 15. In Jalandhar Improvement Trust v. Sampuran Singh, (AIR 1999 SC 1347 ) and Union of India & Ors. v. Rakesh Kumar (AIR 2001 SC 1877 ), this Court held that Courts cannot issue a direction that the same mistake be perpetuated on the ground of discrimination or hardship. 16. Any action/order contrary to law does not confer any right upon any person for similar treatment. (See: State of Punjab & Ors. v. Dr. Rajeev Sarwal, (1999 (9) SCC 240 ); Yogesh Kumar & Ors. v. Government of NCT Delhi & Ors., (2003 (3) SCC 548 ); Union of India & Anr. v. International Trading Company & Anr., (2003 (5) SCC 437 ) and M/s Anand Button Ltd. v. State of Haryana & Ors. (2005 AIR SCW 67). 17. Recently in State of Kerala v. K. Prasad & Anr. (JT 2007 (9) SC 140 ), it was inter alia held as follows: “14. Dealing with such pleas at some length, this Court in Chandigarh Administration & Anr. v. Jagjit Singh & Anr. has held that if the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court under Article 226 cannot be exercised for such a purpose. This position in law is well settled by a catena of decisions of this Court. [See: Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain & Ors. and Exta Shakti Foundation v. Govt. of N.C.T. of Delhi. It would, thus, suffice to say that an order made in favour of a person in violation of the prescribed procedure cannot form a legal premise for any other person to claim parity with the said illegal or irregular order. A judicial forum cannot be used to perpetuate the illegalities.” 18. In view of the factual position, the actions of the respondents are not without sanction of law. | 0[ds]The authorities may have acted in an irregular manner in case of some others. That does not confer any legal right on the appellant to claim a similar benefitEven otherwise, Article 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality. Therefore,are not bound to direct any Authority to repeat the wrong action done by it earlier. Inview of the factual position, the actions of the respondents are not without sanction of law. | 0 | 2,822 | 93 | ### 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:
appellant and NOIDA. The terms and conditions contained in the brochure were repeated in the lease deed. The relevant clauses of the lease deed are quoted below: “X(A). The ground floor (of the building constructed on the allotted office plot) will be exclusively used for parking and no temporary or permanent construction of any sort would be allowed in any circumstances.X(B). Construction of basement is optional and if constructed, shall be as per architectural control drawing and building plans approved by the lessor.X(C). No barricade or boundary wall will be permitted on any side of the plot and there will be free access from one plot to another on the ground floor.X(D). The first and above floors of the building constructed on the allotted plot will be exclusively used for showroom-cum-office only. The above floors of the building constructed on the allotted plot will be exclusively used for office only and for no other purpose.XI. - That the lessee shall obey and submit the rules, building regulations and directions of the lessor, and proper municipal or other authority now existing or hereinafter to exist, so far as the same relate to the immovable property in the said area so far as they affect the health, safety and convenience of the other inhabitants of the place.XIV. (A) The plot or building thereon shall not be used for a purpose other than that specified in the lease deed and architectural control drawings prescribed by the lessor. The architectural control drawings will be supplied by the lessor on payment of the prescribed fee by the allottee who shall carry out construction of the plot strictly in accordance with the same after the approval from the lessor.XXI. If the lessee does not abide by the terms and conditions and building rules or any other rules framed by the Authority, the lease may be cancelled by the lessor and the lessee in such event will not be entitled to claim any compensation in respect thereof.” (Emphasis Supplied) 12. Even otherwise, Article 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality. Therefore, we are not bound to direct any Authority to repeat the wrong action done by it earlier. In Sushanta Tagore & Ors. Vs. Union of India & Ors., (2005 (3) SCC 16 ), this Court rejected such a contention as sought to be advanced in the present case by observing:- “Only because some advantages would ensue to the people in general by reason of the proposed development, the same would not mean that the ecology of the place would be sacrificed. Only because some encroachments have been made and unauthorised buildings have been constructed, the same by itself cannot be a good ground for allowing other constructional activities to come up which would be in violation of the provisions of the Act. Illegal encroachments, if any, may be removed in accordance with law. It is trite law that there is no equality in illegality.” 13. This view also finds support from the judgments of the this Court in Snehprabha v. State of U.P. & Ors., (AIR 1996 SC 540 ); Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jam & Ors., (1997 (1) SCC 35 ), State of Haryana & Ors. v. Ram Kumar Mann, (1997 (3) SCC 321 ), and Faridabad C.T. Scan Centre v. D.G. Health Services & Ors. (1997 (7) SCC 752 ). 14. In Finance Commissioner (Revenue) v. Gulab Chandra & Anr. (2001 AIR SCW 4774) this Court rejected the contention that as other similarly situated persons had been retained in service, persons senior to the petitioner could not have been discharged during the period of probation observing that even if no action had been taken in similar situation against similarly situated persons then too it did not confer any legal right upon the petitioner. 15. In Jalandhar Improvement Trust v. Sampuran Singh, (AIR 1999 SC 1347 ) and Union of India & Ors. v. Rakesh Kumar (AIR 2001 SC 1877 ), this Court held that Courts cannot issue a direction that the same mistake be perpetuated on the ground of discrimination or hardship. 16. Any action/order contrary to law does not confer any right upon any person for similar treatment. (See: State of Punjab & Ors. v. Dr. Rajeev Sarwal, (1999 (9) SCC 240 ); Yogesh Kumar & Ors. v. Government of NCT Delhi & Ors., (2003 (3) SCC 548 ); Union of India & Anr. v. International Trading Company & Anr., (2003 (5) SCC 437 ) and M/s Anand Button Ltd. v. State of Haryana & Ors. (2005 AIR SCW 67). 17. Recently in State of Kerala v. K. Prasad & Anr. (JT 2007 (9) SC 140 ), it was inter alia held as follows: “14. Dealing with such pleas at some length, this Court in Chandigarh Administration & Anr. v. Jagjit Singh & Anr. has held that if the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court under Article 226 cannot be exercised for such a purpose. This position in law is well settled by a catena of decisions of this Court. [See: Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain & Ors. and Exta Shakti Foundation v. Govt. of N.C.T. of Delhi. It would, thus, suffice to say that an order made in favour of a person in violation of the prescribed procedure cannot form a legal premise for any other person to claim parity with the said illegal or irregular order. A judicial forum cannot be used to perpetuate the illegalities.” 18. In view of the factual position, the actions of the respondents are not without sanction of law.
### Response:
0
### Explanation:
The authorities may have acted in an irregular manner in case of some others. That does not confer any legal right on the appellant to claim a similar benefitEven otherwise, Article 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality. Therefore,are not bound to direct any Authority to repeat the wrong action done by it earlier. Inview of the factual position, the actions of the respondents are not without sanction of law.
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Commissioner Of Income Tax, Kerala Vs. Associated Fibre And Rubber Industries (P) Ltd | M. SRINIVASAN, J. The respondentassessee is a private limited company. The original assessment for the year 1972-73 was made on February 28, 1973, determining the loss as Rs. 78, 823. A sum of Rs. 78, 500 claimed as interest paid by the assessee on the amounts borrowed for purchase of machinery was allowed as a deduction. Similarly, for the year 1973-74, in the original assessment deduction was allowed for similar interest paid by the assessee. While making the assessment for the assessment year 1974-75, the Income-tax Officer noticed that the assessee had included a note in the schedule of fixed assets appended to its balance-sheet as on March 31, 1973, and that no depreciation had been claimed for unused rubberised machinery valued at Rs. 4, 80, 000. Hence, the Income-tax Officer held that such machinery had not been used for the business of the assessee. Consequently, the Income-tax Officer took the view that the assessee was not entitled to claim deduction for the interest paid by him in all the three assessment years. The assessment was reopened and fresh assessment orders were passed by the Income-tax Officer, rejecting the claim of deduction made by the assessee. That order was confirmed on appeal by the Appellate Assistant Commissioner and when the matter was taken to the Tribunal, the latter took the view that the machinery being a business asset, the interest paid on the amount borrowed for the purchase of such machinery would certainly be an allowable deduction. Consequently, the Tribunal upheld the claim of the assessee and permitted the deduction being made The Revenue applied to the High Court under section 256(2) for directing the Tribunal to make a reference to it on the following question"Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that the interest paid by the assessee on loans taken from the bank for the purchase of machinery, which was never used in the assessees business, is an allowable deduction in computing the total income of the assessee for the assessment years 1972-73 and 1973-74 ?" * A similar application was filed for the year 1974-75. The High Court dismissed the applications by two separate orders. Both the orders are challenged in this appealWe do not find any merit in this appeal. We find that the reasoning of the Tribunal is correct. Even though the machinery has not been actually used in the business at the time when the assessment was made, the same had been treated as a business asset and it was purchased only for the purposes of the business. In the circumstances, the interest paid on the amount borrowed for purchase of such machinery is certainly a deductible amount. Consequently, the view taken by the Tribunal is correct. | 0[ds]We do not find any merit in this appeal. We find that the reasoning of the Tribunal is correct. Even though the machinery has not been actually used in the business at the time when the assessment was made, the same had been treated as a business asset and it was purchased only for the purposes of the business. In the circumstances, the interest paid on the amount borrowed for purchase of such machinery is certainly a deductible amount. Consequently, the view taken by the Tribunal is correct. | 0 | 516 | 100 | ### 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:
M. SRINIVASAN, J. The respondentassessee is a private limited company. The original assessment for the year 1972-73 was made on February 28, 1973, determining the loss as Rs. 78, 823. A sum of Rs. 78, 500 claimed as interest paid by the assessee on the amounts borrowed for purchase of machinery was allowed as a deduction. Similarly, for the year 1973-74, in the original assessment deduction was allowed for similar interest paid by the assessee. While making the assessment for the assessment year 1974-75, the Income-tax Officer noticed that the assessee had included a note in the schedule of fixed assets appended to its balance-sheet as on March 31, 1973, and that no depreciation had been claimed for unused rubberised machinery valued at Rs. 4, 80, 000. Hence, the Income-tax Officer held that such machinery had not been used for the business of the assessee. Consequently, the Income-tax Officer took the view that the assessee was not entitled to claim deduction for the interest paid by him in all the three assessment years. The assessment was reopened and fresh assessment orders were passed by the Income-tax Officer, rejecting the claim of deduction made by the assessee. That order was confirmed on appeal by the Appellate Assistant Commissioner and when the matter was taken to the Tribunal, the latter took the view that the machinery being a business asset, the interest paid on the amount borrowed for the purchase of such machinery would certainly be an allowable deduction. Consequently, the Tribunal upheld the claim of the assessee and permitted the deduction being made The Revenue applied to the High Court under section 256(2) for directing the Tribunal to make a reference to it on the following question"Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that the interest paid by the assessee on loans taken from the bank for the purchase of machinery, which was never used in the assessees business, is an allowable deduction in computing the total income of the assessee for the assessment years 1972-73 and 1973-74 ?" * A similar application was filed for the year 1974-75. The High Court dismissed the applications by two separate orders. Both the orders are challenged in this appealWe do not find any merit in this appeal. We find that the reasoning of the Tribunal is correct. Even though the machinery has not been actually used in the business at the time when the assessment was made, the same had been treated as a business asset and it was purchased only for the purposes of the business. In the circumstances, the interest paid on the amount borrowed for purchase of such machinery is certainly a deductible amount. Consequently, the view taken by the Tribunal is correct.
### Response:
0
### Explanation:
We do not find any merit in this appeal. We find that the reasoning of the Tribunal is correct. Even though the machinery has not been actually used in the business at the time when the assessment was made, the same had been treated as a business asset and it was purchased only for the purposes of the business. In the circumstances, the interest paid on the amount borrowed for purchase of such machinery is certainly a deductible amount. Consequently, the view taken by the Tribunal is correct.
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B.K. Sri Harsha (D) By L.R. Vs. M/S. Bharath Heavy Electricals Ltd | appellants Smt. B. Saroja Devi and her husband Sri B.K. Harsha under the contract. Since the validity and the genuineness of two agreements Exhibits P-1 and P-2 were not disputed, the Trial Court was of the view that the only question which arises for consideration was whether the respondent was entitled to the relief of specific performance. The Trial Court came to hold that the respondent-company was always ready and willing to perform its part of the contract. It was also found that the two agreements were never revoked or cancelled by the appellants at any time. Further, it was held that the suit for specific performance was filed within the period of limitation. The Trial Court further came to hold that the respondent-company being in possession of the suit property from 2.5.1974, equality lies in its favour in granting specific performance and more so, when major portion of the agreement consideration had already been paid. Therefore, both these suits were decreed. The High Court as noted above, dismissed the First Appeals. 3. Learned counsel for the appellants submitted that though the judgment and decree impugned run to several pages, major part of it consists of the averments and reproduction of the part of the trial Courts judgment. 4. It is submitted that this was not an appropriate way for disposal of the First Appeals. It was also submitted that some of the conclusions were legally unsupportable. It was submitted that when the suit is for specific performance, the special features of such a suit have to be kept in view, which has not been done. 5. Learned counsel for the respondent on the other hand submitted that the High Court had referred to the factual and legal position in detail and, therefore, the judgment and decree do not suffer from any infirmity to warrant interference. 6. It is to be noted that pages 4 to 18 of judgment (in the paper book) are quotations from the Trial Courts judgment. The quotation was made after briefly referring to the major issues. Upto page 21 contentions were noted. Learned Single Judge dismissed the appeals in purported exercise of power under Order 41 Rule 1 CPC. Though strictly speaking, the judgment cannot be said to be in limine dismissal of the appeals, yet the manner of disposal of the First Appeals leaves much to be desired. When triable issues are involved, the appeals should not be summarily dismissed or disposed of in the manner done. The suit was for specific performance and the Trial Court recorded findings about adverse possession. That being so, according to learned counsel for the appellants, triable issues are involved. It was pointed out that the stand of the appellants was relatable to lack of readiness, alleged latches, limited novation. 7. A bare reading of the High Courts judgment shows that there was no serious effort to analyse the various points raised. It was submitted that there was notice terminating the agreement. It was categorically stated that plaintiffs were never ready and willing to fufil their part of contract. 8. The nature of suit for specific performance of contract has been highlighted by this Court in several cases. In Rajeshwari v. Puran Indoria (2005 (7) SCC 60 ), it was inter-alia observed as under: "5. Normally, a suit for specific performance of an agreement for sale of immovable property involves the question whether the plaintiff was ready and willing to perform his part of the contract in terms of Section 16 of the Specific Relief Act, whether it was a case for exercise of discretion by the court to decree specific performance in terms of Section 20 of the Specific Relief Act and whether there were laches on the part of the plaintiff in approaching the court to enforce specific performance of the contract. In some cases, a question of limitation may also arise in the context of Article 54 of the Limitation Act on the terms of the agreement for sale. Other questions like the genuineness of the agreement, abandoning of the right to specific performance, a novation and so on, may also arise in some cases. No doubt, a finding on the three primary aspects indicated earlier would depend upon the appreciation of the pleadings and the evidence in the case in the light of the surrounding circumstances. 6. The right to specific performance of an agreement for sale of immovable property, when filed, raises questions of substantial importance between the parties as to whether the plaintiff has satisfied the requirements of Section 16 of the Specific Relief Act, whether it is a case in which specific performance of the contract is enforceable in terms of Section 10, whether in terms of Section 20 of the Act, the discretion to decree specific performance should be exercised by the court and in some cases, whether the suit was barred by limitation and even if not, whether the plaintiff has been guilty of negligence or laches disentitling him to a decree for specific performance. These questions, by and large, may not be questions of law of general importance. But they cannot also be considered to be pure questions of fact based on an appreciation of the evidence in the case. They are questions which have to be adjudicated upon, in the context of the relevant provisions of the Specific Relief Act and the Limitation Act (if the question of limitation is involved). Though an order in exercise of discretion may not involve a substantial question of law, the question whether a court could, in law, exercise a discretion at all for decreeing specific performance, could be a question of law that substantially affects the rights of parties in that suit." 9. The High Court has also given a finding regarding adverse possession in a suit for specific performance. Above being the position, there is total non-application of kind. The manner in which the appeals were dismissed cannot be said to be proper. 10. Above being the position, the | 1[ds]A bare reading of the High Courts judgment shows that there was no serious effort to analyse the various points raised. It was submitted that there was notice terminating the agreement. It was categorically stated that plaintiffs were never ready and willing to fufil their part ofnature of suit for specific performance of contract has been highlighted by this Court in several cases. In Rajeshwari v. Puran Indoria (2005 (7) SCC 60 ), it was inter-alia observed asNormally, a suit for specific performance of an agreement for sale of immovable property involves the question whether the plaintiff was ready and willing to perform his part of the contract in terms of Section 16 of the Specific Relief Act, whether it was a case for exercise of discretion by the court to decree specific performance in terms of Section 20 of the Specific Relief Act and whether there were laches on the part of the plaintiff in approaching the court to enforce specific performance of the contract. In some cases, a question of limitation may also arise in the context of Article 54 of the Limitation Act on the terms of the agreement for sale. Other questions like the genuineness of the agreement, abandoning of the right to specific performance, a novation and so on, may also arise in some cases. No doubt, a finding on the three primary aspects indicated earlier would depend upon the appreciation of the pleadings and the evidence in the case in the light of the surroundingright to specific performance of an agreement for sale of immovable property, when filed, raises questions of substantial importance between the parties as to whether the plaintiff has satisfied the requirements of Section 16 of the Specific Relief Act, whether it is a case in which specific performance of the contract is enforceable in terms of Section 10, whether in terms of Section 20 of the Act, the discretion to decree specific performance should be exercised by the court and in some cases, whether the suit was barred by limitation and even if not, whether the plaintiff has been guilty of negligence or laches disentitling him to a decree for specific performance. These questions, by and large, may not be questions of law of general importance. But they cannot also be considered to be pure questions of fact based on an appreciation of the evidence in the case. They are questions which have to be adjudicated upon, in the context of the relevant provisions of the Specific Relief Act and the Limitation Act (if the question of limitation is involved). Though an order in exercise of discretion may not involve a substantial question of law, the question whether a court could, in law, exercise a discretion at all for decreeing specific performance, could be a question of law that substantially affects the rights of parties in thatHigh Court has also given a finding regarding adverse possession in a suit for specific performance. Above being the position, there is total non-application of kind. The manner in which the appeals were dismissed cannot be said to be | 1 | 1,233 | 561 | ### 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:
appellants Smt. B. Saroja Devi and her husband Sri B.K. Harsha under the contract. Since the validity and the genuineness of two agreements Exhibits P-1 and P-2 were not disputed, the Trial Court was of the view that the only question which arises for consideration was whether the respondent was entitled to the relief of specific performance. The Trial Court came to hold that the respondent-company was always ready and willing to perform its part of the contract. It was also found that the two agreements were never revoked or cancelled by the appellants at any time. Further, it was held that the suit for specific performance was filed within the period of limitation. The Trial Court further came to hold that the respondent-company being in possession of the suit property from 2.5.1974, equality lies in its favour in granting specific performance and more so, when major portion of the agreement consideration had already been paid. Therefore, both these suits were decreed. The High Court as noted above, dismissed the First Appeals. 3. Learned counsel for the appellants submitted that though the judgment and decree impugned run to several pages, major part of it consists of the averments and reproduction of the part of the trial Courts judgment. 4. It is submitted that this was not an appropriate way for disposal of the First Appeals. It was also submitted that some of the conclusions were legally unsupportable. It was submitted that when the suit is for specific performance, the special features of such a suit have to be kept in view, which has not been done. 5. Learned counsel for the respondent on the other hand submitted that the High Court had referred to the factual and legal position in detail and, therefore, the judgment and decree do not suffer from any infirmity to warrant interference. 6. It is to be noted that pages 4 to 18 of judgment (in the paper book) are quotations from the Trial Courts judgment. The quotation was made after briefly referring to the major issues. Upto page 21 contentions were noted. Learned Single Judge dismissed the appeals in purported exercise of power under Order 41 Rule 1 CPC. Though strictly speaking, the judgment cannot be said to be in limine dismissal of the appeals, yet the manner of disposal of the First Appeals leaves much to be desired. When triable issues are involved, the appeals should not be summarily dismissed or disposed of in the manner done. The suit was for specific performance and the Trial Court recorded findings about adverse possession. That being so, according to learned counsel for the appellants, triable issues are involved. It was pointed out that the stand of the appellants was relatable to lack of readiness, alleged latches, limited novation. 7. A bare reading of the High Courts judgment shows that there was no serious effort to analyse the various points raised. It was submitted that there was notice terminating the agreement. It was categorically stated that plaintiffs were never ready and willing to fufil their part of contract. 8. The nature of suit for specific performance of contract has been highlighted by this Court in several cases. In Rajeshwari v. Puran Indoria (2005 (7) SCC 60 ), it was inter-alia observed as under: "5. Normally, a suit for specific performance of an agreement for sale of immovable property involves the question whether the plaintiff was ready and willing to perform his part of the contract in terms of Section 16 of the Specific Relief Act, whether it was a case for exercise of discretion by the court to decree specific performance in terms of Section 20 of the Specific Relief Act and whether there were laches on the part of the plaintiff in approaching the court to enforce specific performance of the contract. In some cases, a question of limitation may also arise in the context of Article 54 of the Limitation Act on the terms of the agreement for sale. Other questions like the genuineness of the agreement, abandoning of the right to specific performance, a novation and so on, may also arise in some cases. No doubt, a finding on the three primary aspects indicated earlier would depend upon the appreciation of the pleadings and the evidence in the case in the light of the surrounding circumstances. 6. The right to specific performance of an agreement for sale of immovable property, when filed, raises questions of substantial importance between the parties as to whether the plaintiff has satisfied the requirements of Section 16 of the Specific Relief Act, whether it is a case in which specific performance of the contract is enforceable in terms of Section 10, whether in terms of Section 20 of the Act, the discretion to decree specific performance should be exercised by the court and in some cases, whether the suit was barred by limitation and even if not, whether the plaintiff has been guilty of negligence or laches disentitling him to a decree for specific performance. These questions, by and large, may not be questions of law of general importance. But they cannot also be considered to be pure questions of fact based on an appreciation of the evidence in the case. They are questions which have to be adjudicated upon, in the context of the relevant provisions of the Specific Relief Act and the Limitation Act (if the question of limitation is involved). Though an order in exercise of discretion may not involve a substantial question of law, the question whether a court could, in law, exercise a discretion at all for decreeing specific performance, could be a question of law that substantially affects the rights of parties in that suit." 9. The High Court has also given a finding regarding adverse possession in a suit for specific performance. Above being the position, there is total non-application of kind. The manner in which the appeals were dismissed cannot be said to be proper. 10. Above being the position, the
### Response:
1
### Explanation:
A bare reading of the High Courts judgment shows that there was no serious effort to analyse the various points raised. It was submitted that there was notice terminating the agreement. It was categorically stated that plaintiffs were never ready and willing to fufil their part ofnature of suit for specific performance of contract has been highlighted by this Court in several cases. In Rajeshwari v. Puran Indoria (2005 (7) SCC 60 ), it was inter-alia observed asNormally, a suit for specific performance of an agreement for sale of immovable property involves the question whether the plaintiff was ready and willing to perform his part of the contract in terms of Section 16 of the Specific Relief Act, whether it was a case for exercise of discretion by the court to decree specific performance in terms of Section 20 of the Specific Relief Act and whether there were laches on the part of the plaintiff in approaching the court to enforce specific performance of the contract. In some cases, a question of limitation may also arise in the context of Article 54 of the Limitation Act on the terms of the agreement for sale. Other questions like the genuineness of the agreement, abandoning of the right to specific performance, a novation and so on, may also arise in some cases. No doubt, a finding on the three primary aspects indicated earlier would depend upon the appreciation of the pleadings and the evidence in the case in the light of the surroundingright to specific performance of an agreement for sale of immovable property, when filed, raises questions of substantial importance between the parties as to whether the plaintiff has satisfied the requirements of Section 16 of the Specific Relief Act, whether it is a case in which specific performance of the contract is enforceable in terms of Section 10, whether in terms of Section 20 of the Act, the discretion to decree specific performance should be exercised by the court and in some cases, whether the suit was barred by limitation and even if not, whether the plaintiff has been guilty of negligence or laches disentitling him to a decree for specific performance. These questions, by and large, may not be questions of law of general importance. But they cannot also be considered to be pure questions of fact based on an appreciation of the evidence in the case. They are questions which have to be adjudicated upon, in the context of the relevant provisions of the Specific Relief Act and the Limitation Act (if the question of limitation is involved). Though an order in exercise of discretion may not involve a substantial question of law, the question whether a court could, in law, exercise a discretion at all for decreeing specific performance, could be a question of law that substantially affects the rights of parties in thatHigh Court has also given a finding regarding adverse possession in a suit for specific performance. Above being the position, there is total non-application of kind. The manner in which the appeals were dismissed cannot be said to be
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MADHAV PRASAD AGGARWAL Vs. AXIS BANK LTD | respondent, the appellant(s) are not genuine home buyers but are investors of developers i.e. Orbit Corporation Ltd. (In Liq.). Due to the close acquaintance/business relationship, the concerned appellant(s) took commercial unsecured risk by purportedly investing huge amount under the guise of purchasing flats and entered into transactions which were contrary to the provisions of 1963 Act. Thus, the appellant(s) cannot claim any right merely on the basis of a self-serving allotment letter pertaining to the concerned flat, purportedly given by the builder. Noticeably, contends learned counsel for respondent No.1 that the averments in the plaint(s) regarding allegation of fraud played upon the appellant(s) are vague and general. The same are baseless and unsubstantiated. Rather, no case can be culled out from the averments in the plaint so as to hold that the suit filed by the concerned appellant(s) comes within the excepted category predicated in Mardia Chemicals Ltd. (supra). Respondent No.1 has supported the impugned judgment of the Division Bench and would contend that the bank is not a necessary or even a proper party to suit for specific performance of the alleged agreement and including in relation to alternative relief of damages claimed against the developers. 11. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) of CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power Order 7 Rule 11 (d) of CPC. Indeed, the learned Single Judge rejected this objection raised by the appellant(s) by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in the case of Sejal Glass Limited (supra) is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) of CPC stating that the plaint disclosed no cause of action. The civil court held that the plaint is to be bifurcated as it did not disclose any cause of action against the director?s defendant(s) 2 to 4 therein. On that basis, the High Court had opined that the suit can continue against defendant No.1- company alone. The question considered by this Court was whether such a course is open to the civil court in exercise of powers under Order 7 Rule 11(d) of CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently held that the plaint can either be rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) and/or properties, Order 7 Rule 11(d) of CPC will have no application at all, and the suit as a whole must then proceed to trial. 12. In view of this settled legal position we may now turn to the nature of reliefs claimed by respondent No.1 in the notice of motion considered by the Single Judge in the first instance and then the Division Bench of the High Court of Bombay. The principal or singular substantive relief is to reject the plaint only qua the applicant/respondent No.1 herein. No more and no less. 13. Indubitably, the plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) of CPC on account of noncompliance of mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 of CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part. In that sense, the relief claimed by respondent No.1 in the notice of motion(s) which commended to the High Court, is clearly a jurisdictional error. The fact that one or some of the reliefs claimed against respondent No.1 in the concerned suit is barred by Section 34 of 2002 Act or otherwise, such objection can be raised by invoking other remedies including under Order 6 Rule 16 of CPC at the appropriate stage. That can be considered by the Court on its own merits and in accordance with law. Although, the High Court has examined those matters in the impugned judgment the same, in our opinion, should stand effaced and we order accordingly. 14. Resultantly, we do not wish to dilate on the argument of the appellant(s) about the inapplicability of the judgments taken into account by the Division Bench of the High Court or for that matter the correctness of the dictum in the concerned judgment on the principle underlying the exposition in Nahar Industrial Enterprises Limited Vs. Hong Kong and Shanghai Banking Corporation (2009) 8 SCC 646 to the effect that the DRT and also the appellate authority cannot pass a decree nor it is open to it to enter upon determination in respect of matters beyond the scope of power or jurisdiction endowed in terms of Section 17 of the 2002 Act. We leave all questions open to be decided afresh on its own merits in accordance with law. 15. A fortiori, these appeals must succeed on the sole ground that the principal relief claimed in the notice of motion filed by respondent No.1 to reject the plaint only qua the said respondent and which commended to the High Court, is replete with jurisdictional error. Such a relief ?cannot be entertained? in exercise of power under Order 7 Rule 11(d) of CPC. That power is limited to rejection of the plaint as a whole or not at all. | 1[ds]11. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) of CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power Order 7 Rule 11 (d) of CPC. Indeed, the learned Single Judge rejected this objection raised by the appellant(s) by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in the case of Sejal Glass Limited (supra) is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) of CPC stating that the plaint disclosed no cause of action. The civil court held that the plaint is to be bifurcated as it did not disclose any cause of action against the director?s defendant(s) 2 to 4 therein. On that basis, the High Court had opined that the suit can continue against defendant No.1- company alone. The question considered by this Court was whether such a course is open to the civil court in exercise of powers under Order 7 Rule 11(d) of CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently held that the plaint can either be rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) and/or properties, Order 7 Rule 11(d) of CPC will have no application at all, and the suit as a whole must then proceed to trial.In view of this settled legal position we may now turn to the nature of reliefs claimed by respondent No.1 in the notice of motion considered by the Single Judge in the first instance and then the Division Bench of the High Court of Bombay. The principal or singular substantive relief is to reject the plaint only qua the applicant/respondent No.1 herein. No more and no less.Indubitably, the plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) of CPC on account of noncompliance of mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 of CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part. In that sense, the relief claimed by respondent No.1 in the notice of motion(s) which commended to the High Court, is clearly a jurisdictional error. The fact that one or some of the reliefs claimed against respondent No.1 in the concerned suit is barred by Section 34 of 2002 Act or otherwise, such objection can be raised by invoking other remedies including under Order 6 Rule 16 of CPC at the appropriate stage. That can be considered by the Court on its own merits and in accordance with law. Although, the High Court has examined those matters in the impugned judgment the same, in our opinion, should stand effaced and we order accordingly.Resultantly, we do not wish to dilate on the argument of the appellant(s) about the inapplicability of the judgments taken into account by the Division Bench of the High Court or for that matter the correctness of the dictum in the concerned judgment on the principle underlying the exposition in Nahar Industrial Enterprises Limited Vs. Hong Kong and Shanghai Banking Corporation (2009) 8 SCC 646 to the effect that the DRT and also the appellate authority cannot pass a decree nor it is open to it to enter upon determination in respect of matters beyond the scope of power or jurisdiction endowed in terms of Section 17 of the 2002 Act. We leave all questions open to be decided afresh on its own merits in accordance with law.A fortiori, these appeals must succeed on the sole ground that the principal relief claimed in the notice of motion filed by respondent No.1 to reject the plaint only qua the said respondent and which commended to the High Court, is replete with jurisdictional error. Such a relief ?cannot be entertained? in exercise of power under Order 7 Rule 11(d) of CPC. That power is limited to rejection of the plaint as a whole or not at all. | 1 | 4,137 | 903 | ### 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:
respondent, the appellant(s) are not genuine home buyers but are investors of developers i.e. Orbit Corporation Ltd. (In Liq.). Due to the close acquaintance/business relationship, the concerned appellant(s) took commercial unsecured risk by purportedly investing huge amount under the guise of purchasing flats and entered into transactions which were contrary to the provisions of 1963 Act. Thus, the appellant(s) cannot claim any right merely on the basis of a self-serving allotment letter pertaining to the concerned flat, purportedly given by the builder. Noticeably, contends learned counsel for respondent No.1 that the averments in the plaint(s) regarding allegation of fraud played upon the appellant(s) are vague and general. The same are baseless and unsubstantiated. Rather, no case can be culled out from the averments in the plaint so as to hold that the suit filed by the concerned appellant(s) comes within the excepted category predicated in Mardia Chemicals Ltd. (supra). Respondent No.1 has supported the impugned judgment of the Division Bench and would contend that the bank is not a necessary or even a proper party to suit for specific performance of the alleged agreement and including in relation to alternative relief of damages claimed against the developers. 11. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) of CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power Order 7 Rule 11 (d) of CPC. Indeed, the learned Single Judge rejected this objection raised by the appellant(s) by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in the case of Sejal Glass Limited (supra) is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) of CPC stating that the plaint disclosed no cause of action. The civil court held that the plaint is to be bifurcated as it did not disclose any cause of action against the director?s defendant(s) 2 to 4 therein. On that basis, the High Court had opined that the suit can continue against defendant No.1- company alone. The question considered by this Court was whether such a course is open to the civil court in exercise of powers under Order 7 Rule 11(d) of CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently held that the plaint can either be rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) and/or properties, Order 7 Rule 11(d) of CPC will have no application at all, and the suit as a whole must then proceed to trial. 12. In view of this settled legal position we may now turn to the nature of reliefs claimed by respondent No.1 in the notice of motion considered by the Single Judge in the first instance and then the Division Bench of the High Court of Bombay. The principal or singular substantive relief is to reject the plaint only qua the applicant/respondent No.1 herein. No more and no less. 13. Indubitably, the plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) of CPC on account of noncompliance of mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 of CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part. In that sense, the relief claimed by respondent No.1 in the notice of motion(s) which commended to the High Court, is clearly a jurisdictional error. The fact that one or some of the reliefs claimed against respondent No.1 in the concerned suit is barred by Section 34 of 2002 Act or otherwise, such objection can be raised by invoking other remedies including under Order 6 Rule 16 of CPC at the appropriate stage. That can be considered by the Court on its own merits and in accordance with law. Although, the High Court has examined those matters in the impugned judgment the same, in our opinion, should stand effaced and we order accordingly. 14. Resultantly, we do not wish to dilate on the argument of the appellant(s) about the inapplicability of the judgments taken into account by the Division Bench of the High Court or for that matter the correctness of the dictum in the concerned judgment on the principle underlying the exposition in Nahar Industrial Enterprises Limited Vs. Hong Kong and Shanghai Banking Corporation (2009) 8 SCC 646 to the effect that the DRT and also the appellate authority cannot pass a decree nor it is open to it to enter upon determination in respect of matters beyond the scope of power or jurisdiction endowed in terms of Section 17 of the 2002 Act. We leave all questions open to be decided afresh on its own merits in accordance with law. 15. A fortiori, these appeals must succeed on the sole ground that the principal relief claimed in the notice of motion filed by respondent No.1 to reject the plaint only qua the said respondent and which commended to the High Court, is replete with jurisdictional error. Such a relief ?cannot be entertained? in exercise of power under Order 7 Rule 11(d) of CPC. That power is limited to rejection of the plaint as a whole or not at all.
### Response:
1
### Explanation:
11. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) of CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power Order 7 Rule 11 (d) of CPC. Indeed, the learned Single Judge rejected this objection raised by the appellant(s) by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in the case of Sejal Glass Limited (supra) is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) of CPC stating that the plaint disclosed no cause of action. The civil court held that the plaint is to be bifurcated as it did not disclose any cause of action against the director?s defendant(s) 2 to 4 therein. On that basis, the High Court had opined that the suit can continue against defendant No.1- company alone. The question considered by this Court was whether such a course is open to the civil court in exercise of powers under Order 7 Rule 11(d) of CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently held that the plaint can either be rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) and/or properties, Order 7 Rule 11(d) of CPC will have no application at all, and the suit as a whole must then proceed to trial.In view of this settled legal position we may now turn to the nature of reliefs claimed by respondent No.1 in the notice of motion considered by the Single Judge in the first instance and then the Division Bench of the High Court of Bombay. The principal or singular substantive relief is to reject the plaint only qua the applicant/respondent No.1 herein. No more and no less.Indubitably, the plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) of CPC on account of noncompliance of mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 of CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part. In that sense, the relief claimed by respondent No.1 in the notice of motion(s) which commended to the High Court, is clearly a jurisdictional error. The fact that one or some of the reliefs claimed against respondent No.1 in the concerned suit is barred by Section 34 of 2002 Act or otherwise, such objection can be raised by invoking other remedies including under Order 6 Rule 16 of CPC at the appropriate stage. That can be considered by the Court on its own merits and in accordance with law. Although, the High Court has examined those matters in the impugned judgment the same, in our opinion, should stand effaced and we order accordingly.Resultantly, we do not wish to dilate on the argument of the appellant(s) about the inapplicability of the judgments taken into account by the Division Bench of the High Court or for that matter the correctness of the dictum in the concerned judgment on the principle underlying the exposition in Nahar Industrial Enterprises Limited Vs. Hong Kong and Shanghai Banking Corporation (2009) 8 SCC 646 to the effect that the DRT and also the appellate authority cannot pass a decree nor it is open to it to enter upon determination in respect of matters beyond the scope of power or jurisdiction endowed in terms of Section 17 of the 2002 Act. We leave all questions open to be decided afresh on its own merits in accordance with law.A fortiori, these appeals must succeed on the sole ground that the principal relief claimed in the notice of motion filed by respondent No.1 to reject the plaint only qua the said respondent and which commended to the High Court, is replete with jurisdictional error. Such a relief ?cannot be entertained? in exercise of power under Order 7 Rule 11(d) of CPC. That power is limited to rejection of the plaint as a whole or not at all.
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THE INSPECTOR GENERAL OF REGISTRATION Vs. K. BASKARAN | performed by authorised officers. The complexity of modern day administration and the expansion of functions of the State to the economic and social spheres have made it necessary that the legislature gives wide powers to various authorities when the situation requires it. Todays governmental functions are a lot more complex and the need for delegation of powers has become more compelling. It cannot be expected that the head of the administrative body performs each and every task himself. … … … 7. Practical necessities or exigencies of administration require that the decision-making authority who has been conferred with statutory power, be able to delegate tasks when the situation so requires. Thus, the maxim delegatus non potest delegare, gives way in the performance of administrative or ministerial tasks by subordinate authorities in furtherance of the exercise of the delegated power by an authority. 14. The following principles can thus be culled out from the decisions of this Court: (i) A statutory functionary exercising a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report, as that is the ordinary mode of exercise of any administrative power; (ii) If a statutory authority empowers a delegate to undertake preparatory work, and to take an initial decision in matters entrusted to it, but retains in its own hands the power to approve or disapprove the decision after it has been taken, the decision will be held to have been validly made if the degree of control maintained by the authority is close enough for the decision to be regarded as the authoritys own; (iii) Even in cases of sub-delegation, so long as the essential function of decision making is performed by the delegate, the burden of performing the ancillary and clerical task need not be shouldered by the primary delegate and it is not necessary that the primary delegate himself should perform the ministerial acts as well; and (iv) Practical necessities or exigencies of administration require that the decision-making authority who has been conferred with statutory power, be able to delegate tasks when the situation so requires. 15. Rule 11A of the Rules empowers the appellate authority to call for any information or record from any public office, officer or authority or to examine and record statements from any member of the public office or authority. In line with the principles laid down by this Court, it can therefore be said that in exercise of such power, if the appellate authority calls for any information or calls for any record or any inputs, that by itself, will not amount to delegation of essential functions. If, in terms of such power, the appellate authority deputes a responsible official to enquire into certain facets and calls for a report, that would be an ordinary mode of exercise of the power vested in the appellate authority. Practical necessities and exigencies of administration demand that the appellate authority must be able to delegate certain tasks such as collecting information after causing inspection. So long as the essential function, that is to say of considering all the necessary factors and inputs and thereafter arriving at an informed decision is done by the appellate authority, the burden of performing ancillary tasks need not be shouldered by the appellate authority. 16. The submission based on Section 76-A of the Act is completely misplaced and does not deserve acceptance. Section 76-A is quoted hereunder for facility: 76-A. Delegation of certain powers- The State Government may, by notification in the Official Gazette delegate- (a) all or any of the powers conferred on it by sections 2(9), 33(3)(b), 70(1), 74 and 78 to the Chief Controlling Revenue Authority; and (b) all or any of the powers conferred on the Chief Controlling Revenue-Authority by sections 45(1), (2), 56(1) and 70(2) to such subordinate Revenue Authority as may be specified in the notification. Section 76-A was inserted in the Principal Act vide the Decentralization Act, 1914 (Act No. IV of 1914). The legislative head in Entry 44, namely Stamp duties other than duties on or fees collected by means of judicial stamps, but not including rates of stamps is in the Concurrent List of Schedule VII to the Constitution. Section 47-A was inserted in the Principal Act by the State Legislature by enacting the Tamil Nadu Act No.24 of 1967 which received the assent of the President on 29 th March, 1968. The Rules including Rule 11-A were framed to effectuate the letter and spirit of Section 47-A. Section 76-A of the Principal Act enables the State Government to delegate some of the statutory powers conferred upon it by the Principal Act to the Chief Controlling Revenue Authority. Such empowerment has nothing to do with the legislative power exercised by the State in terms of which Section 47-A was inserted, or with the Rules promulgated to effectuate Section 47-A. For interpreting and considering the context of said Section 47-A or the Rules, the fact that certain other statutory powers in favour of the State Government are delegable, has absolutely no relation. Section 47-A was inserted by the State in its legislative power and the Rules framed thereunder have to be considered on their own and without being influenced by Section 76-A. 17. Therefore, in observing that the inspection ought to have been carried out by the Inspector General of Registration himself, and such function could not have been delegated, the High Court failed to appreciate the principles laid down by this Court. Any report that was called for was essentially in the nature of rendering assistance to the appellate authority in discharge of its functions. The final order passed by the appellate authority, after considering all the necessary material, must be taken to be one rendered by the appellate authority on its own, and there was no delegation of any essential functions vitiating exercise of power. We do not, therefore, find any impropriety or invalidity touching upon the exercise of power by the appellate authority. | 1[ds]The order of the appellate authority does not disclose any ground of such violation being raised. We, therefore, find that there was no violation of the procedure prescribed under Rule 6. Similar situation obtains in appeals arising of Special Leave Petition (Civil) Nos.17103 of 2019 and 31633-31637 of 2018.14. The following principles can thus be culled out from the decisions of this Court: (i) A statutory functionary exercising a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report, as that is the ordinary mode of exercise of any administrative power; (ii) If a statutory authority empowers a delegate to undertake preparatory work, and to take an initial decision in matters entrusted to it, but retains in its own hands the power to approve or disapprove the decision after it has been taken, the decision will be held to have been validly made if the degree of control maintained by the authority is close enough for the decision to be regarded as the authoritys own; (iii) Even in cases of sub-delegation, so long as the essential function of decision making is performed by the delegate, the burden of performing the ancillary and clerical task need not be shouldered by the primary delegate and it is not necessary that the primary delegate himself should perform the ministerial acts as well; and (iv) Practical necessities or exigencies of administration require that the decision-making authority who has been conferred with statutory power, be able to delegate tasks when the situation so requires15. Rule 11A of the Rules empowers the appellate authority to call for any information or record from any public office, officer or authority or to examine and record statements from any member of the public office or authority. In line with the principles laid down by this Court, it can therefore be said that in exercise of such power, if the appellate authority calls for any information or calls for any record or any inputs, that by itself, will not amount to delegation of essential functions. If, in terms of such power, the appellate authority deputes a responsible official to enquire into certain facets and calls for a report, that would be an ordinary mode of exercise of the power vested in the appellate authority. Practical necessities and exigencies of administration demand that the appellate authority must be able to delegate certain tasks such as collecting information after causing inspection. So long as the essential function, that is to say of considering all the necessary factors and inputs and thereafter arriving at an informed decision is done by the appellate authority, the burden of performing ancillary tasks need not be shouldered by the appellate authority16. The submission based on Section 76-A of the Act is completely misplaced and does not deserve acceptance.17. Therefore, in observing that the inspection ought to have been carried out by the Inspector General of Registration himself, and such function could not have been delegated, the High Court failed to appreciate the principles laid down by this Court. Any report that was called for was essentially in the nature of rendering assistance to the appellate authority in discharge of its functions. The final order passed by the appellate authority, after considering all the necessary material, must be taken to be one rendered by the appellate authority on its own, and there was no delegation of any essential functions vitiating exercise of power. We do not, therefore, find any impropriety or invalidity touching upon the exercise of power by the appellate authority. We, thus, accept the contentions raised by the learned counsel for the Appellants, and set aside the view taken by the High Court in that behalf.18. The ground with respect to delegation of power under Rule 11-A was taken in all these matters, on the basis of which the High Court set aside the determination made by the appellate authority.19. We now turn to question no. 2, in respect of which the High Court in six of these appeals, had concluded that the stipulation of period of three months in Rule 7 being mandatory, the orders passed after the expiry of said period would be invalid.20. Under sub-section (1) of Section 47-A of the Act, if there is reason to believe that the market value has not been truly set forth in the Instrument tendered for registration, a reference can be made to the Collector, who (i) after giving the parties reasonable opportunity of being heard; and (ii) after holding an enquiry in such manner as may be prescribed by Rules, has to determine the correct value of the concerned property. The Section by itself does not lay down any period within which the entire process is to be completed by the Collector. It simply states that the enquiry be held in such manner as may be prescribed by Rules. In this backdrop the manner in which the enquiry must be held as set out in the Rules, is required to be considered.21. The expression within three months from the date of first notice is crucial. Is the description first notice referable to notice in Form I issued in terms of Rule 4(1)? The answer would obviously be in the negative. Form I notice itself must give twenty-one days to the concerned persons to respond. Depending upon their response, their statements would be recorded and/or certain information may be required to be called for, whereafter the Order in Form II is to be issued provisionally determining the market value. The concerned persons are entitled to raise objections in writing and must be afforded hearing. After fulfilling these requirements, the order in terms of Rule 7 can be passed. All these stages may not be completed in three months.Further, the reference in Rule 7 is to the first notice and not to notice in Form I. Considering the context and various stages preceding the stage of passing of the Order under Rule 7, the reference has to be to the first notice in Form II. There could possibly be more than one notices in Form II, specially when the hearing is to take place on an adjourned date and that is why the period must be reckoned from the first notice in Form II. The expression immediately following first notice in Rule 7 is determining the market value of the properties…. That is also indicative that the reference to the notice is one in Form II in the immediately preceding Rule 6.25. As noted above, Section 47-A by itself does not prescribe any timeline. If the stipulation or fixation of period of three months from the first notice in terms of Rule 6 or from notice in Form II is taken to be mandatory it would lead to a situation of incongruity. The fact that Form II notice had been issued, would mean that on a prima facie view of the record and material, the value stated in the instrument was not the correct value; which in turn would mean that prima facie the Government Coffers were being denied the rightful dues. If for any reason the proceedings are not completed within three months and, therefore, must be held to be vitiated, the public interest would suffer, and the persons who were prime facie responsible for suppressing the real value, would stand to gain. The amendment of Rule 7 incorporating the period of three months was essentially to guide the public officials to complete the process as early as possible but was not intended to create a right in favour of those who had prime facie conducted themselves prejudicing public interest.In keeping with the principles laid down in State of Mysore and others v. V .K. Kangan and others (1976) 2 SCC 895 , if the subject matter of the provision as well as the inter-relation of the period of three months to the general object of the provision are considered, the fixation of period has to be taken to be directory. Otherwise, the very object of sub-serving public interest and securing public revenue would get defeated. Pertinently, the concerned provision has not spelt out any consequence for non-adherence to said period of three months.27. We now turn to question No.3, which incidentally arises only in one appeal viz. one arising from SLP(C) Nos.31633-31637 of 2018.The limitation in sub-section (8) of Section 47-A, was high-lighted in paragraphs 33 to 36 of the judgment of the High Court in Rajendran v. The Inspector General of Registration, Tamil Nadu and others (supra). In the present case, adequate notice was issued to the concerned persons and, therefore, there was no infirmity on that count. It is nobodys case that as on the date when the proceedings were initiated in exercise of the power under sub-section (6) of Section 47-A, the period for preferring the appeal had not expired, or that more than five years had expired after the passing of the order under sub-section (2) or sub-section (3). In the circumstances, none of the limitations which the statute has imposed upon the exercise of power were present31. The observations of the High Court in the instant case indicate that while dealing with an appeal preferred by the registrant against an order passed under Section 47-A(2), no suo motu exercise of power could be initiated. It is the correctness of that view which is now in issue.33. The essence of revisional jurisdiction is thus accepted to be in the duty of the superior tribunal or officer to ensure that the subordinate tribunal or officers remain within the bounds prescribed by law and discharge their functions in accordance with law.35. For exercising revisional power suo motu or on its motion, the concerned authority must be satisfied that an order has been passed by the authority or officer subordinate to it. which may be prejudicial to the interest of the revenue. As indicated in some of the hypothetical instances noted in the decisions quoted hereinabove, the error may have crept in unknowingly, or there may be a genuine mistake, or in some cases there could be a deliberate attempt to prejudice the interest of revenue. If an infirmity or illegality is brought to the notice or knowledge of the revisional authority, through normal and regular process of reporting by the subordinate officer or authority, the power of revision can certainly be exercised. The requisite knowledge enabling the revisional authority to exercise the power vested in it, can also be gathered from the appeal preferred by the registrant himself. That may only be an occasion or a source which enables the authority to gather information about the possible infirmity or illegality in the process. Upon being so aware, the revisional authority would thereafter be exercising power vested in it. Qualitatively, it makes no difference as to what was the source of the information or knowledge, so long as the power is exercised within the confines of the limitations or restrictions imposed by the statute, and is in accordance with law. Apart from the restrictions imposed by the statute, none can be read into the exercise of power on the ground as to the nature or source of information.While entertaining an appeal, if an obvious illegality is noticed by the revisional authority, it can certainly exercise suo motu power to undo the mistake, or rectify an error committed by the subordinate officer or authority, subject to such restrictions as are imposed on the exercise of the power by the statute36. There is nothing in the scheme of the Act which purports to restrict the exercise of suo motu power under Section 47-A, and confines it to cases where knowledge of any illegality or infirmity in the proceedings undertaken by the subordinate officers must be gathered from sources other than through a pending appeal. Unless the statute expressly or even by necessary implication restricts the exercise of power, there would be no occasion to read into the power, any other limitations. The High Court has not found the exercise of power to be invalid on any count, nor was any such submission advanced before the High Court. The High Court had simply gone on the existence of power rather than on the exercise of power. It is not as if the assessment made by the appellate authority was either opposed to principles of natural justice, or was so palpably incorrect, that it could never be sustained. In our view, the High Court completely erred in setting aside the exercise of power undertaken by the concerned authority. The exercise of power was definitely designed to obviate an obvious illegality and prejudice to the interest of the revenue. The exercise was, thus, absolutely correct, and there was no occasion to set aside the orders passed in pursuance thereof. We, therefore, answer question No.3 accordingly. | 1 | 8,745 | 2,347 | ### 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:
performed by authorised officers. The complexity of modern day administration and the expansion of functions of the State to the economic and social spheres have made it necessary that the legislature gives wide powers to various authorities when the situation requires it. Todays governmental functions are a lot more complex and the need for delegation of powers has become more compelling. It cannot be expected that the head of the administrative body performs each and every task himself. … … … 7. Practical necessities or exigencies of administration require that the decision-making authority who has been conferred with statutory power, be able to delegate tasks when the situation so requires. Thus, the maxim delegatus non potest delegare, gives way in the performance of administrative or ministerial tasks by subordinate authorities in furtherance of the exercise of the delegated power by an authority. 14. The following principles can thus be culled out from the decisions of this Court: (i) A statutory functionary exercising a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report, as that is the ordinary mode of exercise of any administrative power; (ii) If a statutory authority empowers a delegate to undertake preparatory work, and to take an initial decision in matters entrusted to it, but retains in its own hands the power to approve or disapprove the decision after it has been taken, the decision will be held to have been validly made if the degree of control maintained by the authority is close enough for the decision to be regarded as the authoritys own; (iii) Even in cases of sub-delegation, so long as the essential function of decision making is performed by the delegate, the burden of performing the ancillary and clerical task need not be shouldered by the primary delegate and it is not necessary that the primary delegate himself should perform the ministerial acts as well; and (iv) Practical necessities or exigencies of administration require that the decision-making authority who has been conferred with statutory power, be able to delegate tasks when the situation so requires. 15. Rule 11A of the Rules empowers the appellate authority to call for any information or record from any public office, officer or authority or to examine and record statements from any member of the public office or authority. In line with the principles laid down by this Court, it can therefore be said that in exercise of such power, if the appellate authority calls for any information or calls for any record or any inputs, that by itself, will not amount to delegation of essential functions. If, in terms of such power, the appellate authority deputes a responsible official to enquire into certain facets and calls for a report, that would be an ordinary mode of exercise of the power vested in the appellate authority. Practical necessities and exigencies of administration demand that the appellate authority must be able to delegate certain tasks such as collecting information after causing inspection. So long as the essential function, that is to say of considering all the necessary factors and inputs and thereafter arriving at an informed decision is done by the appellate authority, the burden of performing ancillary tasks need not be shouldered by the appellate authority. 16. The submission based on Section 76-A of the Act is completely misplaced and does not deserve acceptance. Section 76-A is quoted hereunder for facility: 76-A. Delegation of certain powers- The State Government may, by notification in the Official Gazette delegate- (a) all or any of the powers conferred on it by sections 2(9), 33(3)(b), 70(1), 74 and 78 to the Chief Controlling Revenue Authority; and (b) all or any of the powers conferred on the Chief Controlling Revenue-Authority by sections 45(1), (2), 56(1) and 70(2) to such subordinate Revenue Authority as may be specified in the notification. Section 76-A was inserted in the Principal Act vide the Decentralization Act, 1914 (Act No. IV of 1914). The legislative head in Entry 44, namely Stamp duties other than duties on or fees collected by means of judicial stamps, but not including rates of stamps is in the Concurrent List of Schedule VII to the Constitution. Section 47-A was inserted in the Principal Act by the State Legislature by enacting the Tamil Nadu Act No.24 of 1967 which received the assent of the President on 29 th March, 1968. The Rules including Rule 11-A were framed to effectuate the letter and spirit of Section 47-A. Section 76-A of the Principal Act enables the State Government to delegate some of the statutory powers conferred upon it by the Principal Act to the Chief Controlling Revenue Authority. Such empowerment has nothing to do with the legislative power exercised by the State in terms of which Section 47-A was inserted, or with the Rules promulgated to effectuate Section 47-A. For interpreting and considering the context of said Section 47-A or the Rules, the fact that certain other statutory powers in favour of the State Government are delegable, has absolutely no relation. Section 47-A was inserted by the State in its legislative power and the Rules framed thereunder have to be considered on their own and without being influenced by Section 76-A. 17. Therefore, in observing that the inspection ought to have been carried out by the Inspector General of Registration himself, and such function could not have been delegated, the High Court failed to appreciate the principles laid down by this Court. Any report that was called for was essentially in the nature of rendering assistance to the appellate authority in discharge of its functions. The final order passed by the appellate authority, after considering all the necessary material, must be taken to be one rendered by the appellate authority on its own, and there was no delegation of any essential functions vitiating exercise of power. We do not, therefore, find any impropriety or invalidity touching upon the exercise of power by the appellate authority.
### Response:
1
### Explanation:
fact that Form II notice had been issued, would mean that on a prima facie view of the record and material, the value stated in the instrument was not the correct value; which in turn would mean that prima facie the Government Coffers were being denied the rightful dues. If for any reason the proceedings are not completed within three months and, therefore, must be held to be vitiated, the public interest would suffer, and the persons who were prime facie responsible for suppressing the real value, would stand to gain. The amendment of Rule 7 incorporating the period of three months was essentially to guide the public officials to complete the process as early as possible but was not intended to create a right in favour of those who had prime facie conducted themselves prejudicing public interest.In keeping with the principles laid down in State of Mysore and others v. V .K. Kangan and others (1976) 2 SCC 895 , if the subject matter of the provision as well as the inter-relation of the period of three months to the general object of the provision are considered, the fixation of period has to be taken to be directory. Otherwise, the very object of sub-serving public interest and securing public revenue would get defeated. Pertinently, the concerned provision has not spelt out any consequence for non-adherence to said period of three months.27. We now turn to question No.3, which incidentally arises only in one appeal viz. one arising from SLP(C) Nos.31633-31637 of 2018.The limitation in sub-section (8) of Section 47-A, was high-lighted in paragraphs 33 to 36 of the judgment of the High Court in Rajendran v. The Inspector General of Registration, Tamil Nadu and others (supra). In the present case, adequate notice was issued to the concerned persons and, therefore, there was no infirmity on that count. It is nobodys case that as on the date when the proceedings were initiated in exercise of the power under sub-section (6) of Section 47-A, the period for preferring the appeal had not expired, or that more than five years had expired after the passing of the order under sub-section (2) or sub-section (3). In the circumstances, none of the limitations which the statute has imposed upon the exercise of power were present31. The observations of the High Court in the instant case indicate that while dealing with an appeal preferred by the registrant against an order passed under Section 47-A(2), no suo motu exercise of power could be initiated. It is the correctness of that view which is now in issue.33. The essence of revisional jurisdiction is thus accepted to be in the duty of the superior tribunal or officer to ensure that the subordinate tribunal or officers remain within the bounds prescribed by law and discharge their functions in accordance with law.35. For exercising revisional power suo motu or on its motion, the concerned authority must be satisfied that an order has been passed by the authority or officer subordinate to it. which may be prejudicial to the interest of the revenue. As indicated in some of the hypothetical instances noted in the decisions quoted hereinabove, the error may have crept in unknowingly, or there may be a genuine mistake, or in some cases there could be a deliberate attempt to prejudice the interest of revenue. If an infirmity or illegality is brought to the notice or knowledge of the revisional authority, through normal and regular process of reporting by the subordinate officer or authority, the power of revision can certainly be exercised. The requisite knowledge enabling the revisional authority to exercise the power vested in it, can also be gathered from the appeal preferred by the registrant himself. That may only be an occasion or a source which enables the authority to gather information about the possible infirmity or illegality in the process. Upon being so aware, the revisional authority would thereafter be exercising power vested in it. Qualitatively, it makes no difference as to what was the source of the information or knowledge, so long as the power is exercised within the confines of the limitations or restrictions imposed by the statute, and is in accordance with law. Apart from the restrictions imposed by the statute, none can be read into the exercise of power on the ground as to the nature or source of information.While entertaining an appeal, if an obvious illegality is noticed by the revisional authority, it can certainly exercise suo motu power to undo the mistake, or rectify an error committed by the subordinate officer or authority, subject to such restrictions as are imposed on the exercise of the power by the statute36. There is nothing in the scheme of the Act which purports to restrict the exercise of suo motu power under Section 47-A, and confines it to cases where knowledge of any illegality or infirmity in the proceedings undertaken by the subordinate officers must be gathered from sources other than through a pending appeal. Unless the statute expressly or even by necessary implication restricts the exercise of power, there would be no occasion to read into the power, any other limitations. The High Court has not found the exercise of power to be invalid on any count, nor was any such submission advanced before the High Court. The High Court had simply gone on the existence of power rather than on the exercise of power. It is not as if the assessment made by the appellate authority was either opposed to principles of natural justice, or was so palpably incorrect, that it could never be sustained. In our view, the High Court completely erred in setting aside the exercise of power undertaken by the concerned authority. The exercise of power was definitely designed to obviate an obvious illegality and prejudice to the interest of the revenue. The exercise was, thus, absolutely correct, and there was no occasion to set aside the orders passed in pursuance thereof. We, therefore, answer question No.3 accordingly.
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B.R. Shankaranarayana & Ors Vs. State Of Mysore & Ors | by device, purports to make a law which, though in form appears to be within its sphere, in effect and substance, reaches beyond it. 14. Beyond attempting the argument that the impugned Act is a piece of colourable legislation, learned Counsel for the appellant has not succeeded in substantiating his contention that the Act and the rules made thereunder are merely a device for removing the present incumbents from their office. The provisions of the Act and the rules made thereunder plainly provide for the abolition of hereditary village offices and make those offices stipendiary posts. The Act makes no secret of its intention to abolish the hereditary posts. 15. It is argued that even after abolition, the same posts are sought to be continued. It is no doubt true that the names of the offices have not been changed but there is a basic structural difference between the posts that have been abolished and the posts that have been created. The posts created by the new Act are stipendiary posts. They carry salaries according to the grades created by the rules. The incumbents are transferable and their service is pensionable. Different qualifications are prescribed for the new posts. From a consideration of the incidents attaching to the new posts it is clear that the old posts have been abolished and new posts have been created and that the whole complexion of the posts has been changed. 16. The result is that in our opinion the impugned Act cannot be held to be a piece of colourable legislation and as such invalid. 17. Now we may deal with Civil Appeal No. 190 of 1965. In the affidavit filed in support of Writ Petition No. 177 of 1963 out of which the above civil appeal arises it has been stated that the Madras Hereditary Village Offices Act No. III of 1895 does not in terms apply to the village offices of the district of South Kanara, that its principles have been observed in common practice by the revenue authorities, and that their appointments are governed by the Standing Orders of the Madras Board of Revenue which have not been repealed by the Act. The petitioners case is that a consideration of the Madras Boards Standing Orders would show that the post of karnam is a civil post coming within the ambit of Art. 311 and that, therefore, the abolition of their posts in effect amounts to removal within the meaning of that article. 18. It is no doubt true that the Madras Village Offices Act, 1895, does not apply to South Kanara District, but the hereditary principle has been applied to village offices in the South Kanara District in accordance with the instructions contained in the Madras Revenue Boards standing orders and the impugned Act has abolished the principle of heredity in making appointments to the village offices.Learned Counsel for the appellant has argued, relying on the decision of the Privy Council in Musti Venkata Jagannadha v. Musti Veerabhadrayya, 41 Mad LJ 1: (AIR 1922 PC 96) that the karnam under the Madras Karnams Regulation is a personal appointee and that there is no absolute right of hereditary succession to that office and that the principle of heredity does not apply to that office. The correct position with regard to karnams (shanbhogs) in South Karnam District, will be evident from the following extracts: "Proceedings of the Board of Revenue, Madras, dated November 21, 1868, read as follows: "The Village Offices in Canara are not hereditary by law but good policy requires that the hereditary principle should be observed as far as the efficiency of administration permits in order that the value of the office may be enhanced as much as possible and that the services of men of good social standing whom the emoluments of the Office alone would not attract may be procured." Standing order, dated 7th July 1883 of the Collector, South Kanara, reads: "Subordinate Revenue Offices in the District are hereby directed to bear in mind that in submitting nominations to the posts of Village Officials, the principle to be invariably followed is that the heir of the last permanent incumbent is the man entitled to the vacancy, unless he is clearly unfit to hold it. In the case of a minor heir, or one disqualified for active service by near relationship to a dismissed incumbent, some one should be recommended to act during the minority of the heir of the lifetime or the dismissed incumbent as the case may be." Standing Order, dated August 24, 1882, of the Collector, South Kanara, reads: "(i) Succession to village offices will in future be regulated on the principle set forth in the Collectors Standing Order of 1883, namely, that the heir of the last permanent incumbent is the man entitled to the post, unless he is already unfit to hold it. (ii) The Collector takes the opportunity of directing that a register be opened in each Taluk in the annexed form showing the name and other description of permanent incumbent of each post at present. One whole page should be left for each office to show the changes in the office-holders from time to time. If the register is carefully maintained, it will greatly facilitate the speedy and satisfactory disposal of claims to vacant village offices, which, owing to want of such a Register at present, are made the subject of lengthy enquiries." 19. It is not, therefore, correct to say that the principle of heredity does not apply to the appointments of shanbhog in the District of South Kanara. The fact that the Boards standing orders have not been repealed in their application to the district of South Kanara, which is now part of the State of Mysore, will not make any difference since the Boards standing orders recognise the principle of heredity underlying the Madras Hereditary Village Offices Act. The Schedule to the impugned Act specifically repealed the Madras Hereditary Village Offices Act and the Madras Karnams Regulation. | 0[ds]9. On an examination of the material provisions of the impugned Act it is clear that its object and intendment is to abolish all the hereditary village offices, viz., patels, shanbhogs, etc., which were held hereditarily before the commencement of the Constitution and the emoluments appurtenant thereto11. In the territories forming part of the present State of Mysore, in the districts of South Kanara and Coorg the village offices were filled by persons belonging to a particular family. They had a preferential right to be appointed to those posts if they possessed the prescribed qualifications. In Raos case, AIR 1961 SC 564 , this Court held that a law which recognised the custom by which a preferential right to an office vested in the members of a particular family was violative of the fundamental right guaranteed by Art. 16. The Act, in abolishing all the hereditary village offices merely gave effect to the principle established by the said decisionWe are unable to accede to this contention13. As pointed out by this Court in Gajapati Narayan Deos case, AIR 1953 SC 375 , the whole doctrine of colourable legislation resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass the particular law, the motives which impel it to pass the law are really irrelevant. It is open to the Court to scrutinize the law to ascertain whether the legislature by device, purports to make a law which, though in form appears to be within its sphere, in effect and substance, reaches beyond it14. Beyond attempting the argument that the impugned Act is a piece of colourable legislation, learned Counsel for the appellant has not succeeded in substantiating his contention that the Act and the rules made thereunder are merely a device for removing the present incumbents from their office. The provisions of the Act and the rules made thereunder plainly provide for the abolition of hereditary village offices and make those offices stipendiary posts. The Act makes no secret of its intention to abolish the hereditary posts15. It is argued that even after abolition, the same posts are sought to be continued. It is no doubt true that the names of the offices have not been changed but there is a basic structural difference between the posts that have been abolished and the posts that have been created. The posts created by the new Act are stipendiary posts. They carry salaries according to the grades created by the rules. The incumbents are transferable and their service is pensionable. Different qualifications are prescribed for the new posts. From a consideration of the incidents attaching to the new posts it is clear that the old posts have been abolished and new posts have been created and that the whole complexion of the posts has been changed16. The result is that in our opinion the impugned Act cannot be held to be a piece of colourable legislation and as such invalid18. It is no doubt true that the Madras Village Offices Act, 1895, does not apply to South Kanara District, but the hereditary principle has been applied to village offices in the South Kanara District in accordance with the instructions contained in the Madras Revenue Boards standing orders and the impugned Act has abolished the principle of heredity in making appointments to the village offices.Learned Counsel for the appellant has argued, relying on the decision of the Privy Council in Musti Venkata Jagannadha v. Musti Veerabhadrayya, 41 Mad LJ 1: (AIR 1922 PC 96) that the karnam under the Madras Karnams Regulation is a personal appointee and that there is no absolute right of hereditary succession to that office and that the principle of heredity does not apply to that office19. It is not, therefore, correct to say that the principle of heredity does not apply to the appointments of shanbhog in the District of South Kanara. The fact that the Boards standing orders have not been repealed in their application to the district of South Kanara, which is now part of the State of Mysore, will not make any difference since the Boards standing orders recognise the principle of heredity underlying the Madras Hereditary Village Offices Act. The Schedule to the impugned Act specifically repealed the Madras Hereditary Village Offices Act and the Madras Karnams Regulation. | 0 | 4,098 | 784 | ### 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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by device, purports to make a law which, though in form appears to be within its sphere, in effect and substance, reaches beyond it. 14. Beyond attempting the argument that the impugned Act is a piece of colourable legislation, learned Counsel for the appellant has not succeeded in substantiating his contention that the Act and the rules made thereunder are merely a device for removing the present incumbents from their office. The provisions of the Act and the rules made thereunder plainly provide for the abolition of hereditary village offices and make those offices stipendiary posts. The Act makes no secret of its intention to abolish the hereditary posts. 15. It is argued that even after abolition, the same posts are sought to be continued. It is no doubt true that the names of the offices have not been changed but there is a basic structural difference between the posts that have been abolished and the posts that have been created. The posts created by the new Act are stipendiary posts. They carry salaries according to the grades created by the rules. The incumbents are transferable and their service is pensionable. Different qualifications are prescribed for the new posts. From a consideration of the incidents attaching to the new posts it is clear that the old posts have been abolished and new posts have been created and that the whole complexion of the posts has been changed. 16. The result is that in our opinion the impugned Act cannot be held to be a piece of colourable legislation and as such invalid. 17. Now we may deal with Civil Appeal No. 190 of 1965. In the affidavit filed in support of Writ Petition No. 177 of 1963 out of which the above civil appeal arises it has been stated that the Madras Hereditary Village Offices Act No. III of 1895 does not in terms apply to the village offices of the district of South Kanara, that its principles have been observed in common practice by the revenue authorities, and that their appointments are governed by the Standing Orders of the Madras Board of Revenue which have not been repealed by the Act. The petitioners case is that a consideration of the Madras Boards Standing Orders would show that the post of karnam is a civil post coming within the ambit of Art. 311 and that, therefore, the abolition of their posts in effect amounts to removal within the meaning of that article. 18. It is no doubt true that the Madras Village Offices Act, 1895, does not apply to South Kanara District, but the hereditary principle has been applied to village offices in the South Kanara District in accordance with the instructions contained in the Madras Revenue Boards standing orders and the impugned Act has abolished the principle of heredity in making appointments to the village offices.Learned Counsel for the appellant has argued, relying on the decision of the Privy Council in Musti Venkata Jagannadha v. Musti Veerabhadrayya, 41 Mad LJ 1: (AIR 1922 PC 96) that the karnam under the Madras Karnams Regulation is a personal appointee and that there is no absolute right of hereditary succession to that office and that the principle of heredity does not apply to that office. The correct position with regard to karnams (shanbhogs) in South Karnam District, will be evident from the following extracts: "Proceedings of the Board of Revenue, Madras, dated November 21, 1868, read as follows: "The Village Offices in Canara are not hereditary by law but good policy requires that the hereditary principle should be observed as far as the efficiency of administration permits in order that the value of the office may be enhanced as much as possible and that the services of men of good social standing whom the emoluments of the Office alone would not attract may be procured." Standing order, dated 7th July 1883 of the Collector, South Kanara, reads: "Subordinate Revenue Offices in the District are hereby directed to bear in mind that in submitting nominations to the posts of Village Officials, the principle to be invariably followed is that the heir of the last permanent incumbent is the man entitled to the vacancy, unless he is clearly unfit to hold it. In the case of a minor heir, or one disqualified for active service by near relationship to a dismissed incumbent, some one should be recommended to act during the minority of the heir of the lifetime or the dismissed incumbent as the case may be." Standing Order, dated August 24, 1882, of the Collector, South Kanara, reads: "(i) Succession to village offices will in future be regulated on the principle set forth in the Collectors Standing Order of 1883, namely, that the heir of the last permanent incumbent is the man entitled to the post, unless he is already unfit to hold it. (ii) The Collector takes the opportunity of directing that a register be opened in each Taluk in the annexed form showing the name and other description of permanent incumbent of each post at present. One whole page should be left for each office to show the changes in the office-holders from time to time. If the register is carefully maintained, it will greatly facilitate the speedy and satisfactory disposal of claims to vacant village offices, which, owing to want of such a Register at present, are made the subject of lengthy enquiries." 19. It is not, therefore, correct to say that the principle of heredity does not apply to the appointments of shanbhog in the District of South Kanara. The fact that the Boards standing orders have not been repealed in their application to the district of South Kanara, which is now part of the State of Mysore, will not make any difference since the Boards standing orders recognise the principle of heredity underlying the Madras Hereditary Village Offices Act. The Schedule to the impugned Act specifically repealed the Madras Hereditary Village Offices Act and the Madras Karnams Regulation.
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9. On an examination of the material provisions of the impugned Act it is clear that its object and intendment is to abolish all the hereditary village offices, viz., patels, shanbhogs, etc., which were held hereditarily before the commencement of the Constitution and the emoluments appurtenant thereto11. In the territories forming part of the present State of Mysore, in the districts of South Kanara and Coorg the village offices were filled by persons belonging to a particular family. They had a preferential right to be appointed to those posts if they possessed the prescribed qualifications. In Raos case, AIR 1961 SC 564 , this Court held that a law which recognised the custom by which a preferential right to an office vested in the members of a particular family was violative of the fundamental right guaranteed by Art. 16. The Act, in abolishing all the hereditary village offices merely gave effect to the principle established by the said decisionWe are unable to accede to this contention13. As pointed out by this Court in Gajapati Narayan Deos case, AIR 1953 SC 375 , the whole doctrine of colourable legislation resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass the particular law, the motives which impel it to pass the law are really irrelevant. It is open to the Court to scrutinize the law to ascertain whether the legislature by device, purports to make a law which, though in form appears to be within its sphere, in effect and substance, reaches beyond it14. Beyond attempting the argument that the impugned Act is a piece of colourable legislation, learned Counsel for the appellant has not succeeded in substantiating his contention that the Act and the rules made thereunder are merely a device for removing the present incumbents from their office. The provisions of the Act and the rules made thereunder plainly provide for the abolition of hereditary village offices and make those offices stipendiary posts. The Act makes no secret of its intention to abolish the hereditary posts15. It is argued that even after abolition, the same posts are sought to be continued. It is no doubt true that the names of the offices have not been changed but there is a basic structural difference between the posts that have been abolished and the posts that have been created. The posts created by the new Act are stipendiary posts. They carry salaries according to the grades created by the rules. The incumbents are transferable and their service is pensionable. Different qualifications are prescribed for the new posts. From a consideration of the incidents attaching to the new posts it is clear that the old posts have been abolished and new posts have been created and that the whole complexion of the posts has been changed16. The result is that in our opinion the impugned Act cannot be held to be a piece of colourable legislation and as such invalid18. It is no doubt true that the Madras Village Offices Act, 1895, does not apply to South Kanara District, but the hereditary principle has been applied to village offices in the South Kanara District in accordance with the instructions contained in the Madras Revenue Boards standing orders and the impugned Act has abolished the principle of heredity in making appointments to the village offices.Learned Counsel for the appellant has argued, relying on the decision of the Privy Council in Musti Venkata Jagannadha v. Musti Veerabhadrayya, 41 Mad LJ 1: (AIR 1922 PC 96) that the karnam under the Madras Karnams Regulation is a personal appointee and that there is no absolute right of hereditary succession to that office and that the principle of heredity does not apply to that office19. It is not, therefore, correct to say that the principle of heredity does not apply to the appointments of shanbhog in the District of South Kanara. The fact that the Boards standing orders have not been repealed in their application to the district of South Kanara, which is now part of the State of Mysore, will not make any difference since the Boards standing orders recognise the principle of heredity underlying the Madras Hereditary Village Offices Act. The Schedule to the impugned Act specifically repealed the Madras Hereditary Village Offices Act and the Madras Karnams Regulation.
|
Kashinath Sankarappa Wani Vs. New Akot Cotton Ginning & Pressing Co. Limited | could not, therefore, avail the appellant as an acknowledgment of his debt.10. In regard to the balance-sheet of the company for the year 1940-41 dated 10 th October 19412, it is to be noted that, even though the appellant applied before the trial Court for filing the balance-sheet of 1940-41 on 28 th April 1945, he expressly stated that he did not want to adduce any oral evidence to prove it. He was, however, allowed to file the same. But it was realised later that the balance-sheet did not prove itself and he therefore made another application on 11th July 1945, for permission to file a copy from the Registrar of Companies and contended that this proved itself. This document was, however, rejected by the trial Court as filed too late. When the appeal came up for hearing before the High Court, it was contended on behalf of the appellant that the copy which was adduced from the office of the Registrar was admissible in evidence but that evidence was rejected by the High Court on a consideration of Ss. 65 and 74 (2) of the Evidence Act. The attention of the High Court was evidently not drawn no Commercial Documents Evidence Act (XXX of 1939) which has amended the Law of Evidence with respect to certain commercial documents. Section 3 of that Act enacts that"for the purposes of the Indian Evidence Act, 1872, and notwithstanding anything contained therein, a Court(a) ........................................(b) may presume, within the meaning of that Act, in relation to documents included in Pt. II of the Schedule:-That any document purporting to be a document included in Part I or Part II of the Schedule, as the case may be, and to have been duly made by or under the appropriate authority, was so made and that the statements contained therein are accurate."Item No. 21 in Pt. II of the Schedule mentions :"Copy, certified by the Registrar of Companies of the Balance Sheet, Profits and Loss Account, and audit report of a company, filed with the said Registrar under the Indian Companies act, 1913 and the rules made thereunder."11. If the attention of the High Court had been drawn to this provision of law, we are sure, it would not have rejected the copy of the balance-sheet obtained by the appellant from the office of the Registrar of Companies. We are of the opinion that the copy should have been admitted in evidence and we do hereby admit the same.12. The appellant contends that that balance-sheet which was signed by the Directors contained an acknowledgment of the debt due by the company to the appellant for the sum of Rs. 67,939 as and by way of fixed deposit and that was sufficient to save the bar of limitation. The question therefore arises whether any presumption can be raised as regards the balance-sheet having been duly made by or under the appropriate authority or in regard to the accuracy of the statement contained therein under S. 3 (b). Commercial Documents Evidence Act (XXX of 1939).13. It is to be noted that this presumption is not compulsory as in the case of S. 3 (a) of the Act; it is discretionary with the Court. The difficulty in the way of the appellant here is however insuperable because we find that there were factions in the company at or about the relevant time. A Directors meeting was held on 27th April 1941, and the resignation of the appellant as the Chairman was accepted and another person was appointed in his place. A second meeting was called for 17th May 1941, but it had to be adjourned for want of a quorum. The adjourned meeting was held on 20th May 1941, but no balance -sheet was passed at that meeting. There is nothing on the record to show that there was another meeting of the Board of Directors for passing the Balance-sheet of the company for the year 1940-41. A general meeting of the Share-holders was called for 16th November, 1941, to pass the balance-sheet. This also had to be adjourned to the following day for want of a quorum. At the adjourned meeting the share-holders then present refused to pass the accounts and it was not till some five weeks later, namely on 30th December 1941, that the rival faction met and passed the accounts. But this meeting only purported to be a continuation of the meeting which had to be adjourned for want of a quorum and that clearly was irregular because the adjourned meeting had to be called within twenty-four hours. It did not purport to be a fresh meeting convened after due notice etc. Under the circumstances, it could not be urged that the balance-sheet was duly passed.14. Even if the attention of the High Court had been drawn to the provisions of S. 3 (b), Commercial Documents Evidence Act, (XXX of 1939) it would have been perfectly justified in not raising the presumption in regard to the balance-sheet having been duly made by or under the appropriate authority and in regard to the accuracy of the statement contained therein. We are, therefore, of the opinion that this alleged acknowledgement also is of no avail to the appellant.15. In regard to S. 14, Limitation Act which was sought to be relied upon by the appellant, it may be shortly stated that the liquidation proceedings had not been filed in the Courts below and there is nothing to show that the requirements of S. 14 were at all satisfied. No cogent argument has been advanced before us on behalf of the appellant which would induce us to hold that the conclusion reached by the High Court in this behalf was incorrect in any manner whatever.16. On all the above grounds we have come to the conclusion that the appellants claim was clearly time-barred and the dismissal of his suit by the trial Court as well as the dismissal of his appeal by the High Court were in order. | 0[ds]As a matter of fact, such an agreement, either express or implied, was negative by the very terms of the deposit receipt which, apart from mentioning that the monies were received by the company as deposit for 12 months from August 1, 1939, to July 31, 1940, contained on the reverse a note that interest would cease on due date.This was sufficient to establish that the amount due at the foot of the deposit receipt became due and payable on the due date mentioned therein and that there was no question of the amount being payable at any time thereafter on demand being made in this behalf by the creditor.The course of dealings between the parties also negatived any such agreement because it appears from the record that such deposit receipts were passed by the company in his favour from time to time, each of such receipts being for a fixed period in the same terms as the deposit receipt in question and the receipts containing similar notes on the reverse that interest would cease on due date. Both the Courts below were therefore right in coming to the conclusion that there was no agreement of the kind put forward by the appellant that the monies due at the foot of the deposit receipt in question were re-payable on demand and that monies due at the foot thereof became due and payable by the company to him on 31st July 1940.It is to be noted that this presumption is not compulsory as in the case of S. 3 (a) of the Act; it is discretionary with the Court. The difficulty in the way of the appellant here is however insuperable because we find that there were factions in the company at or about the relevant time. A Directors meeting was held on 27th April 1941, and the resignation of the appellant as the Chairman was accepted and another person was appointed in his place. A second meeting was called for 17th May 1941, but it had to be adjourned for want of a quorum. The adjourned meeting was held on 20th May 1941, but no balance -sheet was passed at that meeting. There is nothing on the record to show that there was another meeting of the Board of Directors for passing the Balance-sheet of the company for the yearA general meeting of the Share-holders was called for 16th November, 1941, to pass the balance-sheet. This also had to be adjourned to the following day for want of a quorum. At the adjourned meeting the share-holders then present refused to pass the accounts and it was not till some five weeks later, namely on 30th December 1941, that the rival faction met and passed the accounts. But this meeting only purported to be a continuation of the meeting which had to be adjourned for want of a quorum and that clearly was irregular because the adjourned meeting had to be called within twenty-four hours. It did not purport to be a fresh meeting convened after due notice etc. Under the circumstances, it could not be urged that the balance-sheet was duly passed.Even if the attention of the High Court had been drawn to the provisions of S. 3 (b), Commercial Documents Evidence Act, (XXX of 1939) it would have been perfectly justified in not raising the presumption in regard to the balance-sheet having been duly made by or under the appropriate authority and in regard to the accuracy of the statement contained therein. We are, therefore, of the opinion that this alleged acknowledgement also is of no avail to the appellant.In regard to S. 14, Limitation Act which was sought to be relied upon by the appellant, it may be shortly stated that the liquidation proceedings had not been filed in the Courts below and there is nothing to show that the requirements of S. 14 were at all satisfied. No cogent argument has been advanced before us on behalf of the appellant which would induce us to hold that the conclusion reached by the High Court in this behalf was incorrect in any manner whatever.On all the above grounds we have come to the conclusion that the appellants claim was clearly time-barred and the dismissal of his suit by the trial Court as well as the dismissal of his appeal by the High Court were in order. | 0 | 2,922 | 776 | ### 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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could not, therefore, avail the appellant as an acknowledgment of his debt.10. In regard to the balance-sheet of the company for the year 1940-41 dated 10 th October 19412, it is to be noted that, even though the appellant applied before the trial Court for filing the balance-sheet of 1940-41 on 28 th April 1945, he expressly stated that he did not want to adduce any oral evidence to prove it. He was, however, allowed to file the same. But it was realised later that the balance-sheet did not prove itself and he therefore made another application on 11th July 1945, for permission to file a copy from the Registrar of Companies and contended that this proved itself. This document was, however, rejected by the trial Court as filed too late. When the appeal came up for hearing before the High Court, it was contended on behalf of the appellant that the copy which was adduced from the office of the Registrar was admissible in evidence but that evidence was rejected by the High Court on a consideration of Ss. 65 and 74 (2) of the Evidence Act. The attention of the High Court was evidently not drawn no Commercial Documents Evidence Act (XXX of 1939) which has amended the Law of Evidence with respect to certain commercial documents. Section 3 of that Act enacts that"for the purposes of the Indian Evidence Act, 1872, and notwithstanding anything contained therein, a Court(a) ........................................(b) may presume, within the meaning of that Act, in relation to documents included in Pt. II of the Schedule:-That any document purporting to be a document included in Part I or Part II of the Schedule, as the case may be, and to have been duly made by or under the appropriate authority, was so made and that the statements contained therein are accurate."Item No. 21 in Pt. II of the Schedule mentions :"Copy, certified by the Registrar of Companies of the Balance Sheet, Profits and Loss Account, and audit report of a company, filed with the said Registrar under the Indian Companies act, 1913 and the rules made thereunder."11. If the attention of the High Court had been drawn to this provision of law, we are sure, it would not have rejected the copy of the balance-sheet obtained by the appellant from the office of the Registrar of Companies. We are of the opinion that the copy should have been admitted in evidence and we do hereby admit the same.12. The appellant contends that that balance-sheet which was signed by the Directors contained an acknowledgment of the debt due by the company to the appellant for the sum of Rs. 67,939 as and by way of fixed deposit and that was sufficient to save the bar of limitation. The question therefore arises whether any presumption can be raised as regards the balance-sheet having been duly made by or under the appropriate authority or in regard to the accuracy of the statement contained therein under S. 3 (b). Commercial Documents Evidence Act (XXX of 1939).13. It is to be noted that this presumption is not compulsory as in the case of S. 3 (a) of the Act; it is discretionary with the Court. The difficulty in the way of the appellant here is however insuperable because we find that there were factions in the company at or about the relevant time. A Directors meeting was held on 27th April 1941, and the resignation of the appellant as the Chairman was accepted and another person was appointed in his place. A second meeting was called for 17th May 1941, but it had to be adjourned for want of a quorum. The adjourned meeting was held on 20th May 1941, but no balance -sheet was passed at that meeting. There is nothing on the record to show that there was another meeting of the Board of Directors for passing the Balance-sheet of the company for the year 1940-41. A general meeting of the Share-holders was called for 16th November, 1941, to pass the balance-sheet. This also had to be adjourned to the following day for want of a quorum. At the adjourned meeting the share-holders then present refused to pass the accounts and it was not till some five weeks later, namely on 30th December 1941, that the rival faction met and passed the accounts. But this meeting only purported to be a continuation of the meeting which had to be adjourned for want of a quorum and that clearly was irregular because the adjourned meeting had to be called within twenty-four hours. It did not purport to be a fresh meeting convened after due notice etc. Under the circumstances, it could not be urged that the balance-sheet was duly passed.14. Even if the attention of the High Court had been drawn to the provisions of S. 3 (b), Commercial Documents Evidence Act, (XXX of 1939) it would have been perfectly justified in not raising the presumption in regard to the balance-sheet having been duly made by or under the appropriate authority and in regard to the accuracy of the statement contained therein. We are, therefore, of the opinion that this alleged acknowledgement also is of no avail to the appellant.15. In regard to S. 14, Limitation Act which was sought to be relied upon by the appellant, it may be shortly stated that the liquidation proceedings had not been filed in the Courts below and there is nothing to show that the requirements of S. 14 were at all satisfied. No cogent argument has been advanced before us on behalf of the appellant which would induce us to hold that the conclusion reached by the High Court in this behalf was incorrect in any manner whatever.16. On all the above grounds we have come to the conclusion that the appellants claim was clearly time-barred and the dismissal of his suit by the trial Court as well as the dismissal of his appeal by the High Court were in order.
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0
### Explanation:
As a matter of fact, such an agreement, either express or implied, was negative by the very terms of the deposit receipt which, apart from mentioning that the monies were received by the company as deposit for 12 months from August 1, 1939, to July 31, 1940, contained on the reverse a note that interest would cease on due date.This was sufficient to establish that the amount due at the foot of the deposit receipt became due and payable on the due date mentioned therein and that there was no question of the amount being payable at any time thereafter on demand being made in this behalf by the creditor.The course of dealings between the parties also negatived any such agreement because it appears from the record that such deposit receipts were passed by the company in his favour from time to time, each of such receipts being for a fixed period in the same terms as the deposit receipt in question and the receipts containing similar notes on the reverse that interest would cease on due date. Both the Courts below were therefore right in coming to the conclusion that there was no agreement of the kind put forward by the appellant that the monies due at the foot of the deposit receipt in question were re-payable on demand and that monies due at the foot thereof became due and payable by the company to him on 31st July 1940.It is to be noted that this presumption is not compulsory as in the case of S. 3 (a) of the Act; it is discretionary with the Court. The difficulty in the way of the appellant here is however insuperable because we find that there were factions in the company at or about the relevant time. A Directors meeting was held on 27th April 1941, and the resignation of the appellant as the Chairman was accepted and another person was appointed in his place. A second meeting was called for 17th May 1941, but it had to be adjourned for want of a quorum. The adjourned meeting was held on 20th May 1941, but no balance -sheet was passed at that meeting. There is nothing on the record to show that there was another meeting of the Board of Directors for passing the Balance-sheet of the company for the yearA general meeting of the Share-holders was called for 16th November, 1941, to pass the balance-sheet. This also had to be adjourned to the following day for want of a quorum. At the adjourned meeting the share-holders then present refused to pass the accounts and it was not till some five weeks later, namely on 30th December 1941, that the rival faction met and passed the accounts. But this meeting only purported to be a continuation of the meeting which had to be adjourned for want of a quorum and that clearly was irregular because the adjourned meeting had to be called within twenty-four hours. It did not purport to be a fresh meeting convened after due notice etc. Under the circumstances, it could not be urged that the balance-sheet was duly passed.Even if the attention of the High Court had been drawn to the provisions of S. 3 (b), Commercial Documents Evidence Act, (XXX of 1939) it would have been perfectly justified in not raising the presumption in regard to the balance-sheet having been duly made by or under the appropriate authority and in regard to the accuracy of the statement contained therein. We are, therefore, of the opinion that this alleged acknowledgement also is of no avail to the appellant.In regard to S. 14, Limitation Act which was sought to be relied upon by the appellant, it may be shortly stated that the liquidation proceedings had not been filed in the Courts below and there is nothing to show that the requirements of S. 14 were at all satisfied. No cogent argument has been advanced before us on behalf of the appellant which would induce us to hold that the conclusion reached by the High Court in this behalf was incorrect in any manner whatever.On all the above grounds we have come to the conclusion that the appellants claim was clearly time-barred and the dismissal of his suit by the trial Court as well as the dismissal of his appeal by the High Court were in order.
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Pratap Rai Tanwani Vs. Uttam Chand | to take place which might happen in relation to the parties as well as the subject-matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatter the confidence of the litigant, despite the impairment already caused. 12. The above position in law was highlighted in Gaya Prasad vs. Pradeep Srivastava (2001 (2) SCC 604 ). 13. One of the grounds for eviction contemplated by all the rent control legislations, which otherwise generally lean heavily in favour of the tenants, is the need of the owner landlord to have his own premises, residential or non-residential, for his own use or his own occupation. The expressions employed by different legislations may vary such as "bona fide requirement", "genuine need", "requires reasonably and in good faith", and so on. Whatever be the expression employed, the underlying legislative intent is one and that has been demonstrated in several judicial pronouncements of which we would like to refer to only three. 14. In Ram Dass vs. Ishwar Chander (1988 (3) SCC 131 ) M.N. Venkatachaliah, J. (as His Lordship then was) speaking for the three-Judge Bench, said: (SCC pp. 134-35, para 11) "11. Statutes enacted to afford protection to tenants from eviction on the basis of contractual rights of the parties make the resumption of possession by the landlord subject to the satisfaction of certain statutory conditions. One of them is the bona fide requirement of the landlord, variously described in the statutes as `bona fide requirement, `reasonable requirement, `bona fide and reasonable requirement or, as in the case of the present statute, merely referred to as `landlord requires for his own use. But the essential idea basic to all such cases is that the need of the landlord should be genuine and honest, conceived in good faith; and that, further, the court must also consider it reasonable to gratify that need. Landlords desire for possession, however honest it might otherwise be, `requirement in law must have the objective element of a `need. It must also be such that the court considers it reasonable and therefore, eligible to be gratified. In doing so, the court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down." 15. In Gulabbai vs. Nalin Narsi Vohra (1991 (3) SCC 483 ) reiterating the view taken in Bega Begum vs. Abdul Ahad Khan (1979 (1) SCC 273 ) it was held that the words "reasonable requirement" undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire. 16. Recently, in Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (1999 (6) SCC 222 ) this Court in a detailed judgment, dealing with this aspect, analysed the concept of bona fide requirement and said that the requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of facts by placing himself in the armchair of the landlord and then posing a question to himself - whether in the given facts, substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. We do not think that we can usefully add anything to the exposition of law of requirement for self-occupation than what has been already stated in the three precedents. 17. The above position was remained effected in Atma S. Berar vs. Mukhtiar Singh (2003 (2) SCC 3 ): 18. In the background of the factual position one thing which clearly emerges is that the High Court had considered the subsequent events which the appellants highlighted and tend to hold that the bona fide need continues to subsist. As observed in Hasmat Rajs case (supra) the appellate Court is required to examine, evaluate and adjudicate the subsequent events and their effect. This has been done in the instant case. That factual finding does not suffer from any infirmity. What the appellants have highlighted as subsequent events fall within the realm of possibility or probability of non-return and a certainty, which is necessary to be established to show that the need has been eclipsed.19. As this juncture is would be appropriate to take note of Section 17 of the Act. Same deals with consequences which statutorily follow if there is deviation from the purposes for which possession has been recovered. If in the instant case such contingency arises, the respondents shall re-deliver possession to the appellants-tenants on such terms as the Rent Controlling Authority shall fix.20. Learned counsel for the appellants submitted that considering the long period of tenancy a reasonable time should be granted to the appellant to vacate the premises.21. Learned counsel for the respondents submitted that the High Court has granted time till the end of August, 2002 and by order dated 9th August, 2002 status quo regarding possession was directed to be maintained. Undisputedly the tenants are in occupation of the tenanted premises.22. Considering the fact that the tenants are occupying the premises for nearly two decades, in our considered view the time granted by the High Court can be extended till the end of 2005. The period of tenancy is extended till the aforesaid date subject to the appellants filing the requisite undertaking before the trial court and make continuing to payment of rents due within the stipulated time. Arrears, if any, shall be paid to the respondents within the period of two months from today. 23. | 0[ds]In the background of the factual position one thing which clearly emerges is that the High Court had considered the subsequent events which the appellants highlighted and tend to hold that the bona fide need continues to subsist. As observed in Hasmat Rajs case (supra) the appellate Court is required to examine, evaluate and adjudicate the subsequent events and their effect. This has been done in the instant case. That factual finding does not suffer from any infirmity. What the appellants have highlighted as subsequent events fall within the realm of possibility or probability of non-return and a certainty, which is necessary to be established to show that the need has been eclipsed.19. As this juncture is would be appropriate to take note of Section 17 of the Act. Same deals with consequences which statutorily follow if there is deviation from the purposes for which possession has been recovered. If in the instant case such contingency arises, the respondents shall re-deliver possession to the appellants-tenants on such terms as the Rent Controlling Authority shall fix.20. Learned counsel for the appellants submitted that considering the long period of tenancy a reasonable time should be granted to the appellant to vacate the premises.21. Learned counsel for the respondents submitted that the High Court has granted time till the end of August, 2002 and by order dated 9th August, 2002 status quo regarding possession was directed to be maintained. Undisputedly the tenants are in occupation of the tenanted premises.22. Considering the fact that the tenants are occupying the premises for nearly two decades, in our considered view the time granted by the High Court can be extended till the end of 2005. The period of tenancy is extended till the aforesaid date subject to the appellants filing the requisite undertaking before the trial court and make continuing to payment of rents due within the stipulated time. Arrears, if any, shall be paid to the respondents within the period of two months from today. | 0 | 2,521 | 358 | ### 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:
to take place which might happen in relation to the parties as well as the subject-matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatter the confidence of the litigant, despite the impairment already caused. 12. The above position in law was highlighted in Gaya Prasad vs. Pradeep Srivastava (2001 (2) SCC 604 ). 13. One of the grounds for eviction contemplated by all the rent control legislations, which otherwise generally lean heavily in favour of the tenants, is the need of the owner landlord to have his own premises, residential or non-residential, for his own use or his own occupation. The expressions employed by different legislations may vary such as "bona fide requirement", "genuine need", "requires reasonably and in good faith", and so on. Whatever be the expression employed, the underlying legislative intent is one and that has been demonstrated in several judicial pronouncements of which we would like to refer to only three. 14. In Ram Dass vs. Ishwar Chander (1988 (3) SCC 131 ) M.N. Venkatachaliah, J. (as His Lordship then was) speaking for the three-Judge Bench, said: (SCC pp. 134-35, para 11) "11. Statutes enacted to afford protection to tenants from eviction on the basis of contractual rights of the parties make the resumption of possession by the landlord subject to the satisfaction of certain statutory conditions. One of them is the bona fide requirement of the landlord, variously described in the statutes as `bona fide requirement, `reasonable requirement, `bona fide and reasonable requirement or, as in the case of the present statute, merely referred to as `landlord requires for his own use. But the essential idea basic to all such cases is that the need of the landlord should be genuine and honest, conceived in good faith; and that, further, the court must also consider it reasonable to gratify that need. Landlords desire for possession, however honest it might otherwise be, `requirement in law must have the objective element of a `need. It must also be such that the court considers it reasonable and therefore, eligible to be gratified. In doing so, the court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down." 15. In Gulabbai vs. Nalin Narsi Vohra (1991 (3) SCC 483 ) reiterating the view taken in Bega Begum vs. Abdul Ahad Khan (1979 (1) SCC 273 ) it was held that the words "reasonable requirement" undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire. 16. Recently, in Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (1999 (6) SCC 222 ) this Court in a detailed judgment, dealing with this aspect, analysed the concept of bona fide requirement and said that the requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of facts by placing himself in the armchair of the landlord and then posing a question to himself - whether in the given facts, substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. We do not think that we can usefully add anything to the exposition of law of requirement for self-occupation than what has been already stated in the three precedents. 17. The above position was remained effected in Atma S. Berar vs. Mukhtiar Singh (2003 (2) SCC 3 ): 18. In the background of the factual position one thing which clearly emerges is that the High Court had considered the subsequent events which the appellants highlighted and tend to hold that the bona fide need continues to subsist. As observed in Hasmat Rajs case (supra) the appellate Court is required to examine, evaluate and adjudicate the subsequent events and their effect. This has been done in the instant case. That factual finding does not suffer from any infirmity. What the appellants have highlighted as subsequent events fall within the realm of possibility or probability of non-return and a certainty, which is necessary to be established to show that the need has been eclipsed.19. As this juncture is would be appropriate to take note of Section 17 of the Act. Same deals with consequences which statutorily follow if there is deviation from the purposes for which possession has been recovered. If in the instant case such contingency arises, the respondents shall re-deliver possession to the appellants-tenants on such terms as the Rent Controlling Authority shall fix.20. Learned counsel for the appellants submitted that considering the long period of tenancy a reasonable time should be granted to the appellant to vacate the premises.21. Learned counsel for the respondents submitted that the High Court has granted time till the end of August, 2002 and by order dated 9th August, 2002 status quo regarding possession was directed to be maintained. Undisputedly the tenants are in occupation of the tenanted premises.22. Considering the fact that the tenants are occupying the premises for nearly two decades, in our considered view the time granted by the High Court can be extended till the end of 2005. The period of tenancy is extended till the aforesaid date subject to the appellants filing the requisite undertaking before the trial court and make continuing to payment of rents due within the stipulated time. Arrears, if any, shall be paid to the respondents within the period of two months from today. 23.
### Response:
0
### Explanation:
In the background of the factual position one thing which clearly emerges is that the High Court had considered the subsequent events which the appellants highlighted and tend to hold that the bona fide need continues to subsist. As observed in Hasmat Rajs case (supra) the appellate Court is required to examine, evaluate and adjudicate the subsequent events and their effect. This has been done in the instant case. That factual finding does not suffer from any infirmity. What the appellants have highlighted as subsequent events fall within the realm of possibility or probability of non-return and a certainty, which is necessary to be established to show that the need has been eclipsed.19. As this juncture is would be appropriate to take note of Section 17 of the Act. Same deals with consequences which statutorily follow if there is deviation from the purposes for which possession has been recovered. If in the instant case such contingency arises, the respondents shall re-deliver possession to the appellants-tenants on such terms as the Rent Controlling Authority shall fix.20. Learned counsel for the appellants submitted that considering the long period of tenancy a reasonable time should be granted to the appellant to vacate the premises.21. Learned counsel for the respondents submitted that the High Court has granted time till the end of August, 2002 and by order dated 9th August, 2002 status quo regarding possession was directed to be maintained. Undisputedly the tenants are in occupation of the tenanted premises.22. Considering the fact that the tenants are occupying the premises for nearly two decades, in our considered view the time granted by the High Court can be extended till the end of 2005. The period of tenancy is extended till the aforesaid date subject to the appellants filing the requisite undertaking before the trial court and make continuing to payment of rents due within the stipulated time. Arrears, if any, shall be paid to the respondents within the period of two months from today.
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STATE OF PUNJAB AND OTHERS Vs. DEV BRAT SHARMA | the case of M/s. Commercial Aviation (supra) and Chettiar (supra), several orders were passed by the Punjab & Haryana High Court, which have been relied upon in the impugned judgment. What is important to note here is that this case related to the valuation for the purposes of relief sought. 28. In the present case, the respondent has not given a separate valuation for relief sought and rightly so, as it had no liberty and right to give different valuation than what was being actually claimed. As a matter of fact, in para 11 of the plaint it is clearly stated that the valuation is the same for Court-fees and jurisdiction. 29. The valuation for the purposes of jurisdiction and relief has to be the same in the money suits falling under category 7(i). It was only in category of suits covered by Clause (iv) of Section 7 that there could be two different valuations for the purposes of jurisdiction and for relief sought. 30. Ms Babbar referred to two judgments of the Punjab and Haryana High Court in support of her submissions, namely, Ranjit Kaur (supra) (2006) and Manjeet Singh (supra) (2012). Manjeet Singh (supra) had relied upon Ranjit Kaur (supra) which had clearly held that in a suit for damages, ad valorem Court-fees would be payable on the amount of the damages claimed. 31. Ms. Babbar also pointed out that the judgment in the case of Ranjit Kaur (supra) dealt with the case laws on the point not only of this Court but also of different High Courts. It specifically noted that the judgments in the case of Subhash Chander Goel (supra), Jagdip Singh Chowhan (supra) and Hemraj (supra) did not notice the statutory provisions and other binding precedents. 32. The High Court in the impugned judgment had also placed reliance upon a judgment in the case of Jagdip Singh Chowhan (supra) which again was a case for damages. This was carried to this Court by the State. The said judgment has since been set aside by this Court vide order dated 29.05.2012 passed in Civil Appeal No.3987 of 2006, State of Punjab vs. Jagdip Singh Chowhan. A copy of the said order has been provided by Ms.Babbar, learned counsel for the appellants. This Court observed that there can be no dispute that in a suit for malicious prosecution, ad valorem Court-fees is payable. The Court proceeded to grant liberty to the counsel for the plaintiff- respondent to take appropriate steps for amendment of the plaint or to make good the Court-fees. The said order is reproduced hereunder: The present appeal is directed against the order dated 14.10.2004 passed by the learned Single Judge of the High Court of Punjab and Haryana in C.R.No.2933/2004 whereby the High Court has permitted the plaintiffs- (respondent herein) to pay the court fee on the tentative valuation of the suit for the purpose of court fees. It is worth noting, for the said purpose the suit was valued at Rs.1,43,000/- though a decree was sought for Rs.two crores approximately. There can be no dispute that in a suit for malicious prosecution, ad valorem court fee is payable. Faced with this situation, the learned counsel for the respondent No.1 could only state that he will file an application for amendment before the trial Court either restricting his claim to the amount on which the court fee has been paid or may enhance the claim beyond the said amount and will pay the ad valorem court fee on the same. Recording such statement of respondent No.1, we set aside the order passed by the learned Single Judge and grant him liberty to file the requisite amendment to bring the plaint in order. The appeal is accordingly disposed of with no order as to costs. 33. On behalf of the respondent, a submission was raised relating to the final determination of issue No.3 by the Trial Court vide judgment and order dated 28.02.2020 where the Trial Court decided the issue against the defendants and in favour of the plaintiff. 34. The said submission has no legs to stand for two reasons: firstly, the said judgment had come subsequent to the filing of the present appeal @ Special Leave Petition as the judgment of the High Court is dated 11.08.2017 and secondly, the Trial Court had dismissed the suit vide judgment dated 28.02.2020 as such the State was not required to challenge the finding on issue No.3. At the time when Trial Court took the suit for final determination, the subject-matter of issue No.3 was covered by the impugned order of the High Court. As such, no other decision could have been taken by the Trial Court. Moreover, for the reason that the issue was already pending before this Court since 2018, much before the dismissal of the suit as such it was not necessary for the State to challenge the said finding. Any decision taken by the Trial Court would always remain subject to final outcome of the appeal@ Special Leave Petition which was pending since prior in point of time. To say that the decision of present appeal would be purely academic is therefore not acceptable. As such we find no applicability of the two judgments in the case of M.P. Shreevastava (supra) and Shanbhagakannu Bhattar (supra) relied upon by the respondent. Apart from the above, the finding on issue No.3 could also be questioned by the State in its capacity as respondent during the hearing of the appeal. 35. We are not going into the other questions raised by Ms. Babbar regarding the institution of suit being abuse of the process of law and we leave it open for the Appellate Court to decide the said issue, if raised by the State. 36. The High Court, therefore, fell in error in setting aside the order passed by Trial Court whereby it had granted time to the plaintiff-respondent to make good the Court-fees within a particular period failing which the plaint would stand rejected. | 1[ds]A reading of the relief clause would make it abundantly clear that this was a money suit for compensation/damages and not falling under any of the categories mentioned in clause (iv) of Section 7 of the Act. Therefore, there would be no question at all for the applicability of Section 7(iv) of the Act. It would be a simple case of applicability of Section 7(i) of the Act and ad valorem Court-fees would have to be paid as per Schedule 1 entry 1.21. It is only with respect to the category of suits specified in clause (iv) of Section 7 of the Act that the plaintiff has the liberty of stating in the plaint the amount at which relief is valued and Court-fees would be payable on the said amount. Liberty given under clause (iv) to the specific suits of six categories is not available to the suits falling under any other clause, be it (i), (ii), (iii) etc. Once the suit in question was a money suit for compensation and damages falling under clause (i) of Section 7 of the Act, ad valorem Court-fees would be payable on the amount claimed.23. The judgment in the case of Ms. Commercial Aviation and Travel Company (supra) is of this Court and rest of the judgments are of the Punjab and Haryana High Court. The judgment in the case of M/s Commercial Aviation and Travel Company (supra) has been relied upon by the High Court in the case of Hemraj (supra) which in turn has been followed in other cases. In the case of Commercial Aviation and Travel Company (supra), the suit was filed for relief of dissolution of partnership and for accounts. For the purposes of jurisdiction, it was valued at Rs. 25 lacs whereas for the purposes of court fees the relief was valued at Rs. 500/-. In those circumstances, an application was moved by the defendant under Order VII Rule 11(b) CPC for rejection of the plaint on the ground that the suit has been grossly undervalued.24. This Court considered the provisions under Section 7(iv) of the Act and was of the view that suits covered by Section 7(iv) were of such nature that it is difficult to lay down any standard of valuation and it was, therefore, that liberty was given to the plaintiff to give a separate valuation of the relief sought for the purposes of payment of court fees. This Court also observed that in a suit for accounts, it is almost impossible for the plaintiff to value the relief correctly. As such the judgement in the case of M/s Commercial Aviation (supra) has no application. The suit for accounts and dissolution of partnership would fall in one of the six categories as specified in Section 7(iv) of the Act.25. This Court further relied upon a Constitution Bench decision of this Court in the case of S.RM.AR.RM. Ramanathan Chettiar (supra)reported in AIR 1958 SC 245 equivalent of 1958 SCR 1024 and quoted a paragraph from the said judgment which explains why the legislature left it open for the plaintiff to value his claim for the six categories of the suit falling under Section 7(iv) of the Act. The basic reason was that as it was almost difficult to value the claim for any of the suits covered under Section 7(iv), therefore, for the purposes of payment of court fees, a different valuation for the relief sought could be given. All such suits were thus placed in Clause (iv) giving liberty to the plaintiff to give a separate valuation for relief sought. However, ultimately it would be the actual relief granted which would determine the court fees to be paid and the same may be made good by the plaintiff in case lesser court fees was paid.26. In the case of Chettiar (supra), the relief claimed was for partition of the joint family properties and also for accounts in respect of the joint family assets managed by the respondent. The plaintiff further valued the claim for accounts at Rs. 1,000/- and paid a court fees of Rs. 100/- on the said amount. However, for the purposes of jurisdiction, the appellant gave a valuation of Rs. 15 lacs as the value of his share. The registry took objection with regard to the payment of the court fees and valuation, and therefore, the matter was referred to various authorities, officers and Court under the provisions of the Act. Ultimately after a series of innings, the matter was settled by the aforesaid judgment and while dealing with the said issue regarding different valuations and payment of court fees at the time of institution of the suit, this Court discussed the scheme of Section 7 and in that context, explained it as follows:If the scheme laid down for the computation of fees payable in suits covered by the several sub- sections of s. 7 is considered, it would be clear that, in respect of suits falling under sub-s. (iv), a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of court fees. The theoretical basis of this provision appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness. Take for instance the claim for partition where the plaintiff seeks to enforce his right to share in any property on the ground that it is joint family property. The basis of the claim is that the property in respect of which a share is claimed is joint family property. In other words, it is property in which the plaintiff has an undivided share. What the plaintiff purports to do by making a claim for partition is to ask the court to give him certain specified properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property. Now it would be clear that the conversion of the plaintiffs alleged undivided share in the joint family property into his separate share cannot be easily valued in terms of rupees with any precision or definiteness. That is why legislature has left it to the option of the plaintiff to value his claim for the payment of court fees. It really means that in suits falling under s. 7 (iv)(b) the amount stated by the plaintiff as the value of his claim for partition has ordinarily to be accepted by the court in computing the court fees payable in respect of the said relief. In the circumstances of this case it is unnecessary to consider whether, under the provisions of this section, the plaintiff has been given an absolute right or option to place any valuation whatever on his relief.27. In the case of Hem Raj (supra) and all other judgments referred to in the impugned judgment, reliance is placed upon the observations from the judgments of Commercial Aviation(supra) and Chettiar (supra) explaining the departure of difference carved out for the categories and suits covered by Section 7(iv) of the Act. They have erroneously proceeded to apply the same to the category of money suits mentioned in Section 7(i) of the Act. Neither in the case of M/s Commercial Aviation (supra) nor in the case of Chettiar (supra), this Court ever laid down that for the purposes of suits covered by clauses other than Section 7(iv), there could be separate valuation for the purposes of court fees and jurisdiction. On a completely erroneous approach, an erroneous interpretation of the judgments in the case of M/s. Commercial Aviation (supra) and Chettiar (supra), several orders were passed by the Punjab & Haryana High Court, which have been relied upon in the impugned judgment. What is important to note here is that this case related to the valuation for the purposes of relief sought.28. In the present case, the respondent has not given a separate valuation for relief sought and rightly so, as it had no liberty and right to give different valuation than what was being actually claimed. As a matter of fact, in para 11 of the plaint it is clearly stated that the valuation is the same for Court-fees and jurisdiction.29. The valuation for the purposes of jurisdiction and relief has to be the same in the money suits falling under category 7(i). It was only in category of suits covered by Clause (iv) of Section 7 that there could be two different valuations for the purposes of jurisdiction and for relief sought.32. The High Court in the impugned judgment had also placed reliance upon a judgment in the case of Jagdip Singh Chowhan (supra) which again was a case for damages. This was carried to this Court by the State. The said judgment has since been set aside by this Court vide order dated 29.05.2012 passed in Civil Appeal No.3987 of 2006, State of Punjab vs. Jagdip Singh Chowhan. A copy of the said order has been provided by Ms.Babbar, learned counsel for the appellants. This Court observed that there can be no dispute that in a suit for malicious prosecution, ad valorem Court-fees is payable. The Court proceeded to grant liberty to the counsel for the plaintiff- respondent to take appropriate steps for amendment of the plaint or to make good the Court-fees. The said order is reproduced hereunder:The present appeal is directed against the order dated 14.10.2004 passed by the learned Single Judge of the High Court of Punjab and Haryana in C.R.No.2933/2004 whereby the High Court has permitted the plaintiffs- (respondent herein) to pay the court fee on the tentative valuation of the suit for the purpose of court fees.It is worth noting, for the said purpose the suit was valued at Rs.1,43,000/- though a decree was sought for Rs.two crores approximately. There can be no dispute that in a suit for malicious prosecution, ad valorem court fee is payable. Faced with this situation, the learned counsel for the respondent No.1 could only state that he will file an application for amendment before the trial Court either restricting his claim to the amount on which the court fee has been paid or may enhance the claim beyond the said amount and will pay the ad valorem court fee on the same. Recording such statement of respondent No.1, we set aside the order passed by the learned Single Judge and grant him liberty to file the requisite amendment to bring the plaint in order.The appeal is accordingly disposed of with no order as to costs.34. The said submission has no legs to stand for two reasons: firstly, the said judgment had come subsequent to the filing of the present appeal @ Special Leave Petition as the judgment of the High Court is dated 11.08.2017 and secondly, the Trial Court had dismissed the suit vide judgment dated 28.02.2020 as such the State was not required to challenge the finding on issue No.3. At the time when Trial Court took the suit for final determination, the subject-matter of issue No.3 was covered by the impugned order of the High Court. As such, no other decision could have been taken by the Trial Court. Moreover, for the reason that the issue was already pending before this Court since 2018, much before the dismissal of the suit as such it was not necessary for the State to challenge the said finding. Any decision taken by the Trial Court would always remain subject to final outcome of the appeal@ Special Leave Petition which was pending since prior in point of time. To say that the decision of present appeal would be purely academic is therefore not acceptable. As such we find no applicability of the two judgments in the case of M.P. Shreevastava (supra) and Shanbhagakannu Bhattar (supra) relied upon by the respondent. Apart from the above, the finding on issue No.3 could also be questioned by the State in its capacity as respondent during the hearing of the appeal.35. We are not going into the other questions raised by Ms. Babbar regarding the institution of suit being abuse of the process of law and we leave it open for the Appellate Court to decide the said issue, if raised by the State.36. The High Court, therefore, fell in error in setting aside the order passed by Trial Court whereby it had granted time to the plaintiff-respondent to make good the Court-fees within a particular period failing which the plaint would stand rejected. | 1 | 5,988 | 2,323 | ### Instruction:
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the case of M/s. Commercial Aviation (supra) and Chettiar (supra), several orders were passed by the Punjab & Haryana High Court, which have been relied upon in the impugned judgment. What is important to note here is that this case related to the valuation for the purposes of relief sought. 28. In the present case, the respondent has not given a separate valuation for relief sought and rightly so, as it had no liberty and right to give different valuation than what was being actually claimed. As a matter of fact, in para 11 of the plaint it is clearly stated that the valuation is the same for Court-fees and jurisdiction. 29. The valuation for the purposes of jurisdiction and relief has to be the same in the money suits falling under category 7(i). It was only in category of suits covered by Clause (iv) of Section 7 that there could be two different valuations for the purposes of jurisdiction and for relief sought. 30. Ms Babbar referred to two judgments of the Punjab and Haryana High Court in support of her submissions, namely, Ranjit Kaur (supra) (2006) and Manjeet Singh (supra) (2012). Manjeet Singh (supra) had relied upon Ranjit Kaur (supra) which had clearly held that in a suit for damages, ad valorem Court-fees would be payable on the amount of the damages claimed. 31. Ms. Babbar also pointed out that the judgment in the case of Ranjit Kaur (supra) dealt with the case laws on the point not only of this Court but also of different High Courts. It specifically noted that the judgments in the case of Subhash Chander Goel (supra), Jagdip Singh Chowhan (supra) and Hemraj (supra) did not notice the statutory provisions and other binding precedents. 32. The High Court in the impugned judgment had also placed reliance upon a judgment in the case of Jagdip Singh Chowhan (supra) which again was a case for damages. This was carried to this Court by the State. The said judgment has since been set aside by this Court vide order dated 29.05.2012 passed in Civil Appeal No.3987 of 2006, State of Punjab vs. Jagdip Singh Chowhan. A copy of the said order has been provided by Ms.Babbar, learned counsel for the appellants. This Court observed that there can be no dispute that in a suit for malicious prosecution, ad valorem Court-fees is payable. The Court proceeded to grant liberty to the counsel for the plaintiff- respondent to take appropriate steps for amendment of the plaint or to make good the Court-fees. The said order is reproduced hereunder: The present appeal is directed against the order dated 14.10.2004 passed by the learned Single Judge of the High Court of Punjab and Haryana in C.R.No.2933/2004 whereby the High Court has permitted the plaintiffs- (respondent herein) to pay the court fee on the tentative valuation of the suit for the purpose of court fees. It is worth noting, for the said purpose the suit was valued at Rs.1,43,000/- though a decree was sought for Rs.two crores approximately. There can be no dispute that in a suit for malicious prosecution, ad valorem court fee is payable. Faced with this situation, the learned counsel for the respondent No.1 could only state that he will file an application for amendment before the trial Court either restricting his claim to the amount on which the court fee has been paid or may enhance the claim beyond the said amount and will pay the ad valorem court fee on the same. Recording such statement of respondent No.1, we set aside the order passed by the learned Single Judge and grant him liberty to file the requisite amendment to bring the plaint in order. The appeal is accordingly disposed of with no order as to costs. 33. On behalf of the respondent, a submission was raised relating to the final determination of issue No.3 by the Trial Court vide judgment and order dated 28.02.2020 where the Trial Court decided the issue against the defendants and in favour of the plaintiff. 34. The said submission has no legs to stand for two reasons: firstly, the said judgment had come subsequent to the filing of the present appeal @ Special Leave Petition as the judgment of the High Court is dated 11.08.2017 and secondly, the Trial Court had dismissed the suit vide judgment dated 28.02.2020 as such the State was not required to challenge the finding on issue No.3. At the time when Trial Court took the suit for final determination, the subject-matter of issue No.3 was covered by the impugned order of the High Court. As such, no other decision could have been taken by the Trial Court. Moreover, for the reason that the issue was already pending before this Court since 2018, much before the dismissal of the suit as such it was not necessary for the State to challenge the said finding. Any decision taken by the Trial Court would always remain subject to final outcome of the appeal@ Special Leave Petition which was pending since prior in point of time. To say that the decision of present appeal would be purely academic is therefore not acceptable. As such we find no applicability of the two judgments in the case of M.P. Shreevastava (supra) and Shanbhagakannu Bhattar (supra) relied upon by the respondent. Apart from the above, the finding on issue No.3 could also be questioned by the State in its capacity as respondent during the hearing of the appeal. 35. We are not going into the other questions raised by Ms. Babbar regarding the institution of suit being abuse of the process of law and we leave it open for the Appellate Court to decide the said issue, if raised by the State. 36. The High Court, therefore, fell in error in setting aside the order passed by Trial Court whereby it had granted time to the plaintiff-respondent to make good the Court-fees within a particular period failing which the plaint would stand rejected.
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court in computing the court fees payable in respect of the said relief. In the circumstances of this case it is unnecessary to consider whether, under the provisions of this section, the plaintiff has been given an absolute right or option to place any valuation whatever on his relief.27. In the case of Hem Raj (supra) and all other judgments referred to in the impugned judgment, reliance is placed upon the observations from the judgments of Commercial Aviation(supra) and Chettiar (supra) explaining the departure of difference carved out for the categories and suits covered by Section 7(iv) of the Act. They have erroneously proceeded to apply the same to the category of money suits mentioned in Section 7(i) of the Act. Neither in the case of M/s Commercial Aviation (supra) nor in the case of Chettiar (supra), this Court ever laid down that for the purposes of suits covered by clauses other than Section 7(iv), there could be separate valuation for the purposes of court fees and jurisdiction. On a completely erroneous approach, an erroneous interpretation of the judgments in the case of M/s. Commercial Aviation (supra) and Chettiar (supra), several orders were passed by the Punjab & Haryana High Court, which have been relied upon in the impugned judgment. What is important to note here is that this case related to the valuation for the purposes of relief sought.28. In the present case, the respondent has not given a separate valuation for relief sought and rightly so, as it had no liberty and right to give different valuation than what was being actually claimed. As a matter of fact, in para 11 of the plaint it is clearly stated that the valuation is the same for Court-fees and jurisdiction.29. The valuation for the purposes of jurisdiction and relief has to be the same in the money suits falling under category 7(i). It was only in category of suits covered by Clause (iv) of Section 7 that there could be two different valuations for the purposes of jurisdiction and for relief sought.32. The High Court in the impugned judgment had also placed reliance upon a judgment in the case of Jagdip Singh Chowhan (supra) which again was a case for damages. This was carried to this Court by the State. The said judgment has since been set aside by this Court vide order dated 29.05.2012 passed in Civil Appeal No.3987 of 2006, State of Punjab vs. Jagdip Singh Chowhan. A copy of the said order has been provided by Ms.Babbar, learned counsel for the appellants. This Court observed that there can be no dispute that in a suit for malicious prosecution, ad valorem Court-fees is payable. The Court proceeded to grant liberty to the counsel for the plaintiff- respondent to take appropriate steps for amendment of the plaint or to make good the Court-fees. The said order is reproduced hereunder:The present appeal is directed against the order dated 14.10.2004 passed by the learned Single Judge of the High Court of Punjab and Haryana in C.R.No.2933/2004 whereby the High Court has permitted the plaintiffs- (respondent herein) to pay the court fee on the tentative valuation of the suit for the purpose of court fees.It is worth noting, for the said purpose the suit was valued at Rs.1,43,000/- though a decree was sought for Rs.two crores approximately. There can be no dispute that in a suit for malicious prosecution, ad valorem court fee is payable. Faced with this situation, the learned counsel for the respondent No.1 could only state that he will file an application for amendment before the trial Court either restricting his claim to the amount on which the court fee has been paid or may enhance the claim beyond the said amount and will pay the ad valorem court fee on the same. Recording such statement of respondent No.1, we set aside the order passed by the learned Single Judge and grant him liberty to file the requisite amendment to bring the plaint in order.The appeal is accordingly disposed of with no order as to costs.34. The said submission has no legs to stand for two reasons: firstly, the said judgment had come subsequent to the filing of the present appeal @ Special Leave Petition as the judgment of the High Court is dated 11.08.2017 and secondly, the Trial Court had dismissed the suit vide judgment dated 28.02.2020 as such the State was not required to challenge the finding on issue No.3. At the time when Trial Court took the suit for final determination, the subject-matter of issue No.3 was covered by the impugned order of the High Court. As such, no other decision could have been taken by the Trial Court. Moreover, for the reason that the issue was already pending before this Court since 2018, much before the dismissal of the suit as such it was not necessary for the State to challenge the said finding. Any decision taken by the Trial Court would always remain subject to final outcome of the appeal@ Special Leave Petition which was pending since prior in point of time. To say that the decision of present appeal would be purely academic is therefore not acceptable. As such we find no applicability of the two judgments in the case of M.P. Shreevastava (supra) and Shanbhagakannu Bhattar (supra) relied upon by the respondent. Apart from the above, the finding on issue No.3 could also be questioned by the State in its capacity as respondent during the hearing of the appeal.35. We are not going into the other questions raised by Ms. Babbar regarding the institution of suit being abuse of the process of law and we leave it open for the Appellate Court to decide the said issue, if raised by the State.36. The High Court, therefore, fell in error in setting aside the order passed by Trial Court whereby it had granted time to the plaintiff-respondent to make good the Court-fees within a particular period failing which the plaint would stand rejected.
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Krishanlal Ishwarlal Desai Vs. Bai Vijkor And Others | is that when the possession is obtained in execution it must be followed by an act of occupation which must inevitably consist of some overt act in that behalf and this overt act was, on the finding of the District Court done by the appellant on October 24, 1957. That means that the appellant occupied the premises beyond the period of one month prescribed by S. 17 (l).7. Does the stipulation about the period of one month apply to the case of a decree passed under S. 13 (1) (g) ? That is the next question to consider. It would be noticed that the first clause of S. 17 (1) deals with decrees passed under S. 13 (1) (g) and (i) and reading the clause, there appears to be no difficulty in holding that the requirement as to one month applies to both categories of decrees. On a fair and reasonable construction of that clause, there appears to be no escape from the conclusion that the period of one month applies as much to the case of occupation as to the case of erection of the work contemplated by Cls. 13 (1) (g) and (i), respectively.8. Besides, the scheme of S. 17 (1) clearly supports this construction, S. 13 (l) has allowed the landlord to eject the tenants from the premises in their possession for specified reasons and S. 17 (l) affords a protection to the tenants where a decree for ejectment has been passed against them under Cls. (g) or (i) of S. 13 (1). If the legislature thought it necessary to require the landlord to commence the work of erection if he has obtained a decree for possession under S. 13 (1) within one month, there is no reason why the legislature should not have provided for the same or similar period in respect of occupation which is referable to the decree passed under S. 13 (1) (g). Mr. Setalvad contends that the occupation could be effected within a reasonable time, for he suggests that no limitation having been prescribed in that behalf, the general rule would be that it should be done within a reasonable time. We think this construction cannot be accepted because it is extremely unlikely that the legislature should have provided the period of one month for one category of decrees and should have made no specific provision in that behalf in respect of decrees of the other category. Besides, the construction of the clause according to the rules of ordinary grammar is decisively against the appellants contention.9. The second clause of S. 17 (1) refers to a case where the landlord re-lets the premises within one year of the date on which he obtains possession in execution proceedings to any person other than the original tenant. In other words, this clause covers cases where the landlord obtains a decree for possession and instead of using the premises for purposes pleaded by him and on proof of which a decree was passed in his favour he proceeds to re-let them to a stranger: and it provides that if this re-letting takes place within one year of the date specified by it, the original tenant is entitled to claim possession of the said premises. This clause also shows that Section 17 (1) is intended to afford protection to the rights of tenants who have been ejected under S. 13 (1) (g) and (i).10. Similarly, a period of limitation is prescribed for the exercise of the rights conferred on the tenants by the last clause of S. 17 (1). This clause provides that the tenants who want to claim the protection of S. 17 (1) must apply within 13 months of the date on which possession was delivered to the landlord-decree-holder. The scheme of S. 17 (1) thus clearly proves that all the relevant clauses have prescribed respective periods of limitation, and so, it would be idle to suggest that the liability imposed on the landlord to occupy the premises possession of which had been decreed in his favour under S. 13 (1) (g) is without any relevant limitation.11. There is another consideration which supports this conclusion Section 17 (2) provides for penalty against a landlord who contravenes the provisions of S. 17 (1). This provision lays down, inter alia, that any landlord who recovers possession on the grounds specified under Cl. (g) or (i) of S. 13 (1) and keeps the premises unoccupied or does not commence the work of erection without reasonable excuse within the period of one month from the date on which he recovers possession, shall on conviction be punishable in the manner specified in the said provision. Similar penalty is imposed on a landlord or other person in occupation of the premises who fails to comply with the order of the Court under S. 17 (1). It is obvious that when the first clause of S. 17 (2) refers to the failure of the landlord either to occupy or to commence erection of the work without reasonable excuse within the period of one month; absence of reasonable excuse and the period of one month apply as much to cases falling under Cl (g) as to cases falling under Cl. (i) of S. 13 (1). The plea open to the landlord that he failed to occupy the premises or he failed to commence the work of construction within the specified period because of a reasonable excuse is available to him in both categories of cases and so, absence of reasonable excuse applies equally to both the said categories. If that is so, the period of one month which is the crucial point must govern both the categories of cases. Therefore, in our opinion, the High Court was right in agreeing with the decision of the District Court that the appellant in the present case had failed to comply with the first part of S. 17 (1) and so, the respondents were entitled to an order for possession of the premises in question. | 0[ds]It is clear that when S. 17 (1) refers to the requirement that the premises must be occupied by the landlord, the occupation intended by the provision is different from possession because the first clause of Section 17 (1) makes a clear distinction between occupation and delivery of possession. The effect of this clause is that when a landlord who has obtained a decree for possession executes the decree and obtains possession of the premises in question he must occupy them in terms of the case made out by him under S. 13 (1) (g) and held proved at the trial. Whether or not the occupation by the landlord should be for the same purpose which he set out at the trial or can be for a different purpose, is a question which it is unnecessary to decide in the present appeal. What is, however, clear beyond any doubt is that when the possession is obtained in execution it must be followed by an act of occupation which must inevitably consist of some overt act in that behalf and this overt act was, on the finding of the District Court done by the appellant on October 24, 1957. That means that the appellant occupied the premises beyond the period of one month prescribed by S. 17 (l).The second clause of S. 17 (1) refers to a case where the landlord re-lets the premises within one year of the date on which he obtains possession in execution proceedings to any person other than the original tenant. In other words, this clause covers cases where the landlord obtains a decree for possession and instead of using the premises for purposes pleaded by him and on proof of which a decree was passed in his favour he proceeds to re-let them to a stranger: and it provides that if this re-letting takes place within one year of the date specified by it, the original tenant is entitled to claim possession of the said premises. This clause also shows that Section 17 (1) is intended to afford protection to the rights of tenants who have been ejected under S. 13 (1) (g) and (i).10. Similarly, a period of limitation is prescribed for the exercise of the rights conferred on the tenants by the last clause of S. 17 (1). This clause provides that the tenants who want to claim the protection of S. 17 (1) must apply within 13 months of the date on which possession was delivered to the landlord-decree-holder. The scheme of S. 17 (1) thus clearly proves that all the relevant clauses have prescribed respective periods of limitation, and so, it would be idle to suggest that the liability imposed on the landlord to occupy the premises possession of which had been decreed in his favour under S. 13 (1) (g) is without any relevant limitation.11. There is another consideration which supports this conclusion Section 17 (2) provides for penalty against a landlord who contravenes the provisions of S. 17 (1). This provision lays down, inter alia, that any landlord who recovers possession on the grounds specified under Cl. (g) or (i) of S. 13 (1) and keeps the premises unoccupied or does not commence the work of erection without reasonable excuse within the period of one month from the date on which he recovers possession, shall on conviction be punishable in the manner specified in the said provision. Similar penalty is imposed on a landlord or other person in occupation of the premises who fails to comply with the order of the Court under S. 17 (1). It is obvious that when the first clause of S. 17 (2) refers to the failure of the landlord either to occupy or to commence erection of the work without reasonable excuse within the period of one month; absence of reasonable excuse and the period of one month apply as much to cases falling under Cl (g) as to cases falling under Cl. (i) of S. 13 (1). The plea open to the landlord that he failed to occupy the premises or he failed to commence the work of construction within the specified period because of a reasonable excuse is available to him in both categories of cases and so, absence of reasonable excuse applies equally to both the said categories. If that is so, the period of one month which is the crucial point must govern both the categories of cases. Therefore, in our opinion, the High Court was right in agreeing with the decision of the District Court that the appellant in the present case had failed to comply with the first part of S. 17 (1) and so, the respondents were entitled to an order for possession of the premises in question. | 0 | 2,502 | 890 | ### Instruction:
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### Input:
is that when the possession is obtained in execution it must be followed by an act of occupation which must inevitably consist of some overt act in that behalf and this overt act was, on the finding of the District Court done by the appellant on October 24, 1957. That means that the appellant occupied the premises beyond the period of one month prescribed by S. 17 (l).7. Does the stipulation about the period of one month apply to the case of a decree passed under S. 13 (1) (g) ? That is the next question to consider. It would be noticed that the first clause of S. 17 (1) deals with decrees passed under S. 13 (1) (g) and (i) and reading the clause, there appears to be no difficulty in holding that the requirement as to one month applies to both categories of decrees. On a fair and reasonable construction of that clause, there appears to be no escape from the conclusion that the period of one month applies as much to the case of occupation as to the case of erection of the work contemplated by Cls. 13 (1) (g) and (i), respectively.8. Besides, the scheme of S. 17 (1) clearly supports this construction, S. 13 (l) has allowed the landlord to eject the tenants from the premises in their possession for specified reasons and S. 17 (l) affords a protection to the tenants where a decree for ejectment has been passed against them under Cls. (g) or (i) of S. 13 (1). If the legislature thought it necessary to require the landlord to commence the work of erection if he has obtained a decree for possession under S. 13 (1) within one month, there is no reason why the legislature should not have provided for the same or similar period in respect of occupation which is referable to the decree passed under S. 13 (1) (g). Mr. Setalvad contends that the occupation could be effected within a reasonable time, for he suggests that no limitation having been prescribed in that behalf, the general rule would be that it should be done within a reasonable time. We think this construction cannot be accepted because it is extremely unlikely that the legislature should have provided the period of one month for one category of decrees and should have made no specific provision in that behalf in respect of decrees of the other category. Besides, the construction of the clause according to the rules of ordinary grammar is decisively against the appellants contention.9. The second clause of S. 17 (1) refers to a case where the landlord re-lets the premises within one year of the date on which he obtains possession in execution proceedings to any person other than the original tenant. In other words, this clause covers cases where the landlord obtains a decree for possession and instead of using the premises for purposes pleaded by him and on proof of which a decree was passed in his favour he proceeds to re-let them to a stranger: and it provides that if this re-letting takes place within one year of the date specified by it, the original tenant is entitled to claim possession of the said premises. This clause also shows that Section 17 (1) is intended to afford protection to the rights of tenants who have been ejected under S. 13 (1) (g) and (i).10. Similarly, a period of limitation is prescribed for the exercise of the rights conferred on the tenants by the last clause of S. 17 (1). This clause provides that the tenants who want to claim the protection of S. 17 (1) must apply within 13 months of the date on which possession was delivered to the landlord-decree-holder. The scheme of S. 17 (1) thus clearly proves that all the relevant clauses have prescribed respective periods of limitation, and so, it would be idle to suggest that the liability imposed on the landlord to occupy the premises possession of which had been decreed in his favour under S. 13 (1) (g) is without any relevant limitation.11. There is another consideration which supports this conclusion Section 17 (2) provides for penalty against a landlord who contravenes the provisions of S. 17 (1). This provision lays down, inter alia, that any landlord who recovers possession on the grounds specified under Cl. (g) or (i) of S. 13 (1) and keeps the premises unoccupied or does not commence the work of erection without reasonable excuse within the period of one month from the date on which he recovers possession, shall on conviction be punishable in the manner specified in the said provision. Similar penalty is imposed on a landlord or other person in occupation of the premises who fails to comply with the order of the Court under S. 17 (1). It is obvious that when the first clause of S. 17 (2) refers to the failure of the landlord either to occupy or to commence erection of the work without reasonable excuse within the period of one month; absence of reasonable excuse and the period of one month apply as much to cases falling under Cl (g) as to cases falling under Cl. (i) of S. 13 (1). The plea open to the landlord that he failed to occupy the premises or he failed to commence the work of construction within the specified period because of a reasonable excuse is available to him in both categories of cases and so, absence of reasonable excuse applies equally to both the said categories. If that is so, the period of one month which is the crucial point must govern both the categories of cases. Therefore, in our opinion, the High Court was right in agreeing with the decision of the District Court that the appellant in the present case had failed to comply with the first part of S. 17 (1) and so, the respondents were entitled to an order for possession of the premises in question.
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It is clear that when S. 17 (1) refers to the requirement that the premises must be occupied by the landlord, the occupation intended by the provision is different from possession because the first clause of Section 17 (1) makes a clear distinction between occupation and delivery of possession. The effect of this clause is that when a landlord who has obtained a decree for possession executes the decree and obtains possession of the premises in question he must occupy them in terms of the case made out by him under S. 13 (1) (g) and held proved at the trial. Whether or not the occupation by the landlord should be for the same purpose which he set out at the trial or can be for a different purpose, is a question which it is unnecessary to decide in the present appeal. What is, however, clear beyond any doubt is that when the possession is obtained in execution it must be followed by an act of occupation which must inevitably consist of some overt act in that behalf and this overt act was, on the finding of the District Court done by the appellant on October 24, 1957. That means that the appellant occupied the premises beyond the period of one month prescribed by S. 17 (l).The second clause of S. 17 (1) refers to a case where the landlord re-lets the premises within one year of the date on which he obtains possession in execution proceedings to any person other than the original tenant. In other words, this clause covers cases where the landlord obtains a decree for possession and instead of using the premises for purposes pleaded by him and on proof of which a decree was passed in his favour he proceeds to re-let them to a stranger: and it provides that if this re-letting takes place within one year of the date specified by it, the original tenant is entitled to claim possession of the said premises. This clause also shows that Section 17 (1) is intended to afford protection to the rights of tenants who have been ejected under S. 13 (1) (g) and (i).10. Similarly, a period of limitation is prescribed for the exercise of the rights conferred on the tenants by the last clause of S. 17 (1). This clause provides that the tenants who want to claim the protection of S. 17 (1) must apply within 13 months of the date on which possession was delivered to the landlord-decree-holder. The scheme of S. 17 (1) thus clearly proves that all the relevant clauses have prescribed respective periods of limitation, and so, it would be idle to suggest that the liability imposed on the landlord to occupy the premises possession of which had been decreed in his favour under S. 13 (1) (g) is without any relevant limitation.11. There is another consideration which supports this conclusion Section 17 (2) provides for penalty against a landlord who contravenes the provisions of S. 17 (1). This provision lays down, inter alia, that any landlord who recovers possession on the grounds specified under Cl. (g) or (i) of S. 13 (1) and keeps the premises unoccupied or does not commence the work of erection without reasonable excuse within the period of one month from the date on which he recovers possession, shall on conviction be punishable in the manner specified in the said provision. Similar penalty is imposed on a landlord or other person in occupation of the premises who fails to comply with the order of the Court under S. 17 (1). It is obvious that when the first clause of S. 17 (2) refers to the failure of the landlord either to occupy or to commence erection of the work without reasonable excuse within the period of one month; absence of reasonable excuse and the period of one month apply as much to cases falling under Cl (g) as to cases falling under Cl. (i) of S. 13 (1). The plea open to the landlord that he failed to occupy the premises or he failed to commence the work of construction within the specified period because of a reasonable excuse is available to him in both categories of cases and so, absence of reasonable excuse applies equally to both the said categories. If that is so, the period of one month which is the crucial point must govern both the categories of cases. Therefore, in our opinion, the High Court was right in agreeing with the decision of the District Court that the appellant in the present case had failed to comply with the first part of S. 17 (1) and so, the respondents were entitled to an order for possession of the premises in question.
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R.J. Singh Ahuluwalia Vs. State of Delhi | setting up projects for the manufacture of electronic and radio components. He reached that office on December 31, 1966, after 4 p.m. and presented his applications to the appellant who was working as assistant in Co-ordination III of the DGTD at Udyog Bhawan, New Delhi, the appellants duty being to attach performs of applications and send them on to the Electrical Directorate after obtaining the signatures of the Section Officer, Co-ordination Branch. The appellant demanded Rs. 1, 000 as illegal gratification for entertaining these applications. Shri Anand Singh Bawa told the appellant that he had no money with him at that time and that the appellant should contact him on Monday, other 2nd January, 1967, to collect he amount. Shri Bawa also gave to the appellant his telephone number, In the meantime Shri Bawa approached the Special Police Establishment and informed Shri V. N. Negi, Deputy Superintendent of Police, about the appellants demand of bribe. A trap was then organised and pursuant thereto the appellant was caught soon after receiving Rs. 1, 000 in currency notes. The appellant was as a result challaned under Section 5(2) of the Prevention of Corruption Act and under Section 161, I.P.C. The Special Judge trying he appellant convicted him under both the sections and imposed a sentence of rigorous imprisonment for four years and fine of Rs. 2, 000 under Section 5(2), read with Section 5(1)(d) of the Prevention of Corruption Act and three years rigorous imprisonment under Section 161, I.P.C. Both the sentences were, however, to run concurrently. Appeal to the High Court challenge to there was dismissed by a learned single Judge. In the High Court challenge to the validity of the sanction was based on the invalidity of its authentication. It was not disputed that the appellant was removable by the President of India.3. The sanction (Ex. PL) which has been held to be valid by the High court was signed by Shri K. Raja Ram, Deputy Secretary to the Government of India, and was granted on August 25, 1967, by the Ministry of Industrial Development and company Affairs (Department of Industrial Development). We consider it proper to reproduce this sanction at this stage :NO. 2(1)/67-VGovernment of IndiaMinistry of Industrial Development and Company Affairs(Department of Industrial Development)New Delhi,the 25th August, 1967.ORDERWhereas it is alleged that Shri R. J. Singh Ahuluwalia, while working as a public servant in the capacity of Assistant in Co-ordination Section (CD III), D.G.T.D, Udyog Bhawan, New Delhi, on 31-12-1966, demanded an illegal gratification of Rs. 1, 000/- from Shri A. S. Bawa, Director, Northern India Plywood Pvt. Ltd., Marshall House, Hanuman Road, New Delhi, for showing him favour in the acceptance of his own application No. NIP/2681/66, as well as application No. DSB/2682/66 of the firm of his father M/s. D. S. Bawa and Co., for setting up projects for the manufacture of Electronic and Radio Components;And whereas it is alleged that in pursuance of this demand the said Shri R. J. Singh Ahuluwalia, Assistant, phoned to Shri Bawa at about 12.15 p.m. at his office on 2-1-67 and repeated his demand of Rs. 1, 000/- by way of illegal gratification and whereas Shri R. J. Singh Ahuluwalia visited Shri A. S. Bawa in his office at Marshall House, Hanuman Road, on 2-1-67 at about 5.30 p.m. and obtained Rs. 1, 000/- by way of illegal gratification from the said Shri Bawa, as a motive or reward for having registered the above mentioned two applications for necessary action.And whereas the said acts of Shri R. J. Singh Ahuluwalia constitute offences under Section 161, I.P.C., and Section 5(2) of Prevention of Corruption Act read with Section 5(1)(d) of Prevention of Corruption Act II of 1947.And whereas I, after fully and carefully examining the material before me in regard to the abovementioned facts and the circumstances of the case consider that the said Shri R. J. Singh Ahuluwalia should be prosecuted in the court of law for the said offences.Now, therefore, I being the authority competent to remove the said R. J. Singh Ahuluwalia from office do hereby accord sanction under Section 6(1)(c) of the Prevention of Corruption Act for the prosecution of the said Shri R. J. Singh Ahuluwalia for the said offence and any other offences punishable under other provisions of law in respect of the acts aforesaid and for the taking of cognisance of the said offences by a court of competent jurisdiction.By order and in the name of the President.(sd.) K. Raja Ram25/8/87K. Raja RamDeputy Secretary to the Government of India.4. The appellants learned counsel asked for permission to raise a new point in challenge of this sanction. The new point sought to attack the sanction on two-fold grounds. In the first instance he contended that this sanction was granted for prosecution under Section 6(1)(c) of the Prevention of Corruption Act and not under Section 6(1)(a). Secondly, it was contended that in the case of the appellant it was only the Home Department of the Government of India which could sanction the prosecution. This argument was founded on the Gazette Notification No. S.G. 2494, dated August 3, 1965, which amended the Government of India (Allocation of Business) Rules, 1961 pursuant to the powers conferred on the President by Clause (3) of Article 77 of the Constitution. This ground of challenge had, of course, not been raised in either of the two courts below but since it went to the root of the case, being a jurisdictional point, we considered it just and proper to allow it to be raised. We accordingly adjourned the bearing on July 21, 1970, to enable the counsel for the State of obtain instructions on this point and to inquire whether the Home Ministry had sanctioned the appellants prosecution. On August 5, 1970, the next date of hearing, Shri Sachthey stated at the Bar that the home Ministry had not sanctioned the appellants prosecution and it was conceded before us that in the absence of such sanction the prosecution must fail. | 1[ds]4. The appellants learned counsel asked for permission to raise a new point in challenge of this sanction. The new point sought to attack the sanction on. In the first instance he contended that this sanction was granted for prosecution under Section 6(1)(c) of the Prevention of Corruption Act and not under Section 6(1)(a). Secondly, it was contended that in the case of the appellant it was only the Home Department of the Government of India which could sanction the prosecution. This argument was founded on the Gazette Notification No. S.G. 2494, dated August 3, 1965, which amended the Government of India (Allocation of Business) Rules, 1961 pursuant to the powers conferred on the President by Clause (3) of Article 77 of the Constitution.This ground of challenge had, of course, not been raised in either of the two courts below but since it went to the root of the case, being a jurisdictional point, we considered it just and proper to allow it to be raised. We accordingly adjourned the bearing on July 21, 1970, to enable the counsel for the State of obtain instructions on this point and to inquire whether the Home Ministry had sanctioned the appellants prosecution. On August 5, 1970, the next date of hearing, Shri Sachthey stated at the Bar that the home Ministry had not sanctioned the appellants prosecution and it was conceded before us that in the absence of such sanction the prosecution must fail. | 1 | 1,345 | 285 | ### 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:
setting up projects for the manufacture of electronic and radio components. He reached that office on December 31, 1966, after 4 p.m. and presented his applications to the appellant who was working as assistant in Co-ordination III of the DGTD at Udyog Bhawan, New Delhi, the appellants duty being to attach performs of applications and send them on to the Electrical Directorate after obtaining the signatures of the Section Officer, Co-ordination Branch. The appellant demanded Rs. 1, 000 as illegal gratification for entertaining these applications. Shri Anand Singh Bawa told the appellant that he had no money with him at that time and that the appellant should contact him on Monday, other 2nd January, 1967, to collect he amount. Shri Bawa also gave to the appellant his telephone number, In the meantime Shri Bawa approached the Special Police Establishment and informed Shri V. N. Negi, Deputy Superintendent of Police, about the appellants demand of bribe. A trap was then organised and pursuant thereto the appellant was caught soon after receiving Rs. 1, 000 in currency notes. The appellant was as a result challaned under Section 5(2) of the Prevention of Corruption Act and under Section 161, I.P.C. The Special Judge trying he appellant convicted him under both the sections and imposed a sentence of rigorous imprisonment for four years and fine of Rs. 2, 000 under Section 5(2), read with Section 5(1)(d) of the Prevention of Corruption Act and three years rigorous imprisonment under Section 161, I.P.C. Both the sentences were, however, to run concurrently. Appeal to the High Court challenge to there was dismissed by a learned single Judge. In the High Court challenge to the validity of the sanction was based on the invalidity of its authentication. It was not disputed that the appellant was removable by the President of India.3. The sanction (Ex. PL) which has been held to be valid by the High court was signed by Shri K. Raja Ram, Deputy Secretary to the Government of India, and was granted on August 25, 1967, by the Ministry of Industrial Development and company Affairs (Department of Industrial Development). We consider it proper to reproduce this sanction at this stage :NO. 2(1)/67-VGovernment of IndiaMinistry of Industrial Development and Company Affairs(Department of Industrial Development)New Delhi,the 25th August, 1967.ORDERWhereas it is alleged that Shri R. J. Singh Ahuluwalia, while working as a public servant in the capacity of Assistant in Co-ordination Section (CD III), D.G.T.D, Udyog Bhawan, New Delhi, on 31-12-1966, demanded an illegal gratification of Rs. 1, 000/- from Shri A. S. Bawa, Director, Northern India Plywood Pvt. Ltd., Marshall House, Hanuman Road, New Delhi, for showing him favour in the acceptance of his own application No. NIP/2681/66, as well as application No. DSB/2682/66 of the firm of his father M/s. D. S. Bawa and Co., for setting up projects for the manufacture of Electronic and Radio Components;And whereas it is alleged that in pursuance of this demand the said Shri R. J. Singh Ahuluwalia, Assistant, phoned to Shri Bawa at about 12.15 p.m. at his office on 2-1-67 and repeated his demand of Rs. 1, 000/- by way of illegal gratification and whereas Shri R. J. Singh Ahuluwalia visited Shri A. S. Bawa in his office at Marshall House, Hanuman Road, on 2-1-67 at about 5.30 p.m. and obtained Rs. 1, 000/- by way of illegal gratification from the said Shri Bawa, as a motive or reward for having registered the above mentioned two applications for necessary action.And whereas the said acts of Shri R. J. Singh Ahuluwalia constitute offences under Section 161, I.P.C., and Section 5(2) of Prevention of Corruption Act read with Section 5(1)(d) of Prevention of Corruption Act II of 1947.And whereas I, after fully and carefully examining the material before me in regard to the abovementioned facts and the circumstances of the case consider that the said Shri R. J. Singh Ahuluwalia should be prosecuted in the court of law for the said offences.Now, therefore, I being the authority competent to remove the said R. J. Singh Ahuluwalia from office do hereby accord sanction under Section 6(1)(c) of the Prevention of Corruption Act for the prosecution of the said Shri R. J. Singh Ahuluwalia for the said offence and any other offences punishable under other provisions of law in respect of the acts aforesaid and for the taking of cognisance of the said offences by a court of competent jurisdiction.By order and in the name of the President.(sd.) K. Raja Ram25/8/87K. Raja RamDeputy Secretary to the Government of India.4. The appellants learned counsel asked for permission to raise a new point in challenge of this sanction. The new point sought to attack the sanction on two-fold grounds. In the first instance he contended that this sanction was granted for prosecution under Section 6(1)(c) of the Prevention of Corruption Act and not under Section 6(1)(a). Secondly, it was contended that in the case of the appellant it was only the Home Department of the Government of India which could sanction the prosecution. This argument was founded on the Gazette Notification No. S.G. 2494, dated August 3, 1965, which amended the Government of India (Allocation of Business) Rules, 1961 pursuant to the powers conferred on the President by Clause (3) of Article 77 of the Constitution. This ground of challenge had, of course, not been raised in either of the two courts below but since it went to the root of the case, being a jurisdictional point, we considered it just and proper to allow it to be raised. We accordingly adjourned the bearing on July 21, 1970, to enable the counsel for the State of obtain instructions on this point and to inquire whether the Home Ministry had sanctioned the appellants prosecution. On August 5, 1970, the next date of hearing, Shri Sachthey stated at the Bar that the home Ministry had not sanctioned the appellants prosecution and it was conceded before us that in the absence of such sanction the prosecution must fail.
### Response:
1
### Explanation:
4. The appellants learned counsel asked for permission to raise a new point in challenge of this sanction. The new point sought to attack the sanction on. In the first instance he contended that this sanction was granted for prosecution under Section 6(1)(c) of the Prevention of Corruption Act and not under Section 6(1)(a). Secondly, it was contended that in the case of the appellant it was only the Home Department of the Government of India which could sanction the prosecution. This argument was founded on the Gazette Notification No. S.G. 2494, dated August 3, 1965, which amended the Government of India (Allocation of Business) Rules, 1961 pursuant to the powers conferred on the President by Clause (3) of Article 77 of the Constitution.This ground of challenge had, of course, not been raised in either of the two courts below but since it went to the root of the case, being a jurisdictional point, we considered it just and proper to allow it to be raised. We accordingly adjourned the bearing on July 21, 1970, to enable the counsel for the State of obtain instructions on this point and to inquire whether the Home Ministry had sanctioned the appellants prosecution. On August 5, 1970, the next date of hearing, Shri Sachthey stated at the Bar that the home Ministry had not sanctioned the appellants prosecution and it was conceded before us that in the absence of such sanction the prosecution must fail.
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H.V. Jayaram Vs. The Industrial Credit and Investment Corporation of India Ltd | situated as from that place the share certificates can be posted and are usually posted. If the addressee is available at the same locality where the registered office of the company is situated, it is reasonable to think that service of documents may be effected by personally delivering to him. But if the addressee is residing at a distant place it is unreasonable to expect the company to depute somebody to travel upto that distance to personally deliver it to him. The only usual mode which any company would then adopt is to send it to him by post. For such default, as contemplated under Section 113(1), there is no question of any cause of action arising at the place where complainant was to receive postal delivery. What is punishable under sub-section (2) of Section 113 is non-delivery, in accordance with the provision laid down under Section 53, of the certificates of shares within prescribed time. So, if the documents are posted within stipulated time, there would be compliance of Section 113 and that there would not be any offence. 7. In H.P. Gupta v. Hiralal, 1970(1) SCC 437, the Court considered a similar provision of Section 207 of the Companies Act, which provides for payment of divided within 42 days of its declaration by a company and its non- payment within stipulated period is punishable. Section inter alia provides that where dividend is declared by the company but has not been paid, or warrant in respect of thereof has not been posted within 42 days from the date of its declaration, to any shareholder entitled to the payment of dividend, then it would be an offence punishable under Section 207. In that case, Court also considered Section 205(5)(b), which is similar to Section 53, which inter alia provides that any dividend payable may be paid by cash or a cheque or a warrant sent by post directed to the registered address of the shareholder entitled to the payment of the dividend. The Court held that when the company posts the dividend warrant at the registered address of the shareholder, the post office becomes the agent of the shareholder and the loss of a dividend warrant during the transit thereafter is at the risk of the shareholder. The Court further held that the place where the dividend warrant would be posted is the place where the company has its registered office and the offence under Section 207 of the Act would also occur at the place where the failure to discharge that obligation arises, namely, the failure to post the dividend warrant within 42 days. In the facts of that case, the Court observed thus :- .....The venue of the offence, therefore, would be Delhi and not Meerut, and the Court competent to try the offence would be that Court within whose jurisdiction the offence takes place, i.e., Delhi. This should be so both in law and common-sense, for, if held otherwise, the directors of companies can be prosecuted at hundreds of places on an allegation by shareholders that they have not received the warrant. That cannot be the intention of the Legislature when it enacted Section 207 and made failure to pay or post a dividend warrant within 42 days from the declaration of the dividend an offence. 8. Same would be the position for the offence punishable under Section 113 of the Act. Cause of action for failure to deliver the share certificates or documents within prescribed time would arise where the registered office of the company is situated. 9. However, learned counsel for the appellant relied upon the decision of Rajasthan High Court in Ranbaxy Laboratories Ltd. v. Smt. Indra Kala, 1997(24) CLA 203 (Raj.). In the said case, complaint was filed before the Judicial Magistrate at Jaipur in Rajasthan for the offences punishable under Section 113 of the Act against the directors and officers of the company alleging that the complainant had purchased 200 shares of the Company and had duly sent such shares to the head office of the company for registration of the transfer in its books, but despite repeated requests, reminders and efforts made by her, the Company did not register the transfer of the shares in her name. Registered office of the company was at Delhi. The High Court negatived the contention of the company that Judicial Magistrate at Jaipur did not have jurisdiction to deal with the case by holding thus :- Company collects money from the public at large by selling its shares and transactions of sale and purchase are governed by the provisions of the Companies Act. Registration of the transferred shares is one of the duties of the company in the course of conducting its business according to the provisions of law. Therefore, the interest of the members of the public transacting such business cannot be allowed to be defeated on the plea that relief to the aggrieved persons can be granted only at the place where the office of the company is located. 10. In our view, it appears that the attention of the learned Judge was not drawn to the decision rendered by this Court in H.P. Gupta v. Hiralal, 1970(1) SCC 437 and also to Section 113 of the Act, which inter alia provides that company shall deliver the documents, such as, certificates of shares, debentures and certificates of debenture stocks allotted or transferred in accordance with the procedure laid down in Section 53. Section 53 prescribe the mode of delivery inter alia by sending the document by post at registered address and sub-section (2) is the deeming provision for delivery of such letter. In Upendra Kumar Joshi v. Manik Lal Chatterjee and others, 1982 (Vol. 52) Company Cases 177 (Patna), the Patna High Court has followed the decision rendered by this Court in the case of H.P. Gupta (supra) and has rightly arrived at the conclusion that the cause of action would arise at the place where registered office of the company is situated. | 0[ds]10. In our view, it appears that the attention of the learned Judge was not drawn to the decision rendered by this Court in H.P. Gupta v. Hiralal, 1970(1) SCC 437 and also to Section 113 of the Act, which inter alia provides that company shall deliver the documents, such as, certificates of shares, debentures and certificates of debenture stocks allotted or transferred in accordance with the procedure laid down in Section 53. Section 53 prescribe the mode of delivery inter alia by sending the document by post at registered address and sub-section (2) is the deeming provision for delivery of such letter. In Upendra Kumar Joshi v. Manik Lal Chatterjee and others, 1982 (Vol. 52) Company Cases 177 (Patna), the Patna High Court has followed the decision rendered by this Court in the case of H.P. Gupta (supra) and has rightly arrived at the conclusion that the cause of action would arise at the place where registered office of the company is situated. | 0 | 2,334 | 194 | ### 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:
situated as from that place the share certificates can be posted and are usually posted. If the addressee is available at the same locality where the registered office of the company is situated, it is reasonable to think that service of documents may be effected by personally delivering to him. But if the addressee is residing at a distant place it is unreasonable to expect the company to depute somebody to travel upto that distance to personally deliver it to him. The only usual mode which any company would then adopt is to send it to him by post. For such default, as contemplated under Section 113(1), there is no question of any cause of action arising at the place where complainant was to receive postal delivery. What is punishable under sub-section (2) of Section 113 is non-delivery, in accordance with the provision laid down under Section 53, of the certificates of shares within prescribed time. So, if the documents are posted within stipulated time, there would be compliance of Section 113 and that there would not be any offence. 7. In H.P. Gupta v. Hiralal, 1970(1) SCC 437, the Court considered a similar provision of Section 207 of the Companies Act, which provides for payment of divided within 42 days of its declaration by a company and its non- payment within stipulated period is punishable. Section inter alia provides that where dividend is declared by the company but has not been paid, or warrant in respect of thereof has not been posted within 42 days from the date of its declaration, to any shareholder entitled to the payment of dividend, then it would be an offence punishable under Section 207. In that case, Court also considered Section 205(5)(b), which is similar to Section 53, which inter alia provides that any dividend payable may be paid by cash or a cheque or a warrant sent by post directed to the registered address of the shareholder entitled to the payment of the dividend. The Court held that when the company posts the dividend warrant at the registered address of the shareholder, the post office becomes the agent of the shareholder and the loss of a dividend warrant during the transit thereafter is at the risk of the shareholder. The Court further held that the place where the dividend warrant would be posted is the place where the company has its registered office and the offence under Section 207 of the Act would also occur at the place where the failure to discharge that obligation arises, namely, the failure to post the dividend warrant within 42 days. In the facts of that case, the Court observed thus :- .....The venue of the offence, therefore, would be Delhi and not Meerut, and the Court competent to try the offence would be that Court within whose jurisdiction the offence takes place, i.e., Delhi. This should be so both in law and common-sense, for, if held otherwise, the directors of companies can be prosecuted at hundreds of places on an allegation by shareholders that they have not received the warrant. That cannot be the intention of the Legislature when it enacted Section 207 and made failure to pay or post a dividend warrant within 42 days from the declaration of the dividend an offence. 8. Same would be the position for the offence punishable under Section 113 of the Act. Cause of action for failure to deliver the share certificates or documents within prescribed time would arise where the registered office of the company is situated. 9. However, learned counsel for the appellant relied upon the decision of Rajasthan High Court in Ranbaxy Laboratories Ltd. v. Smt. Indra Kala, 1997(24) CLA 203 (Raj.). In the said case, complaint was filed before the Judicial Magistrate at Jaipur in Rajasthan for the offences punishable under Section 113 of the Act against the directors and officers of the company alleging that the complainant had purchased 200 shares of the Company and had duly sent such shares to the head office of the company for registration of the transfer in its books, but despite repeated requests, reminders and efforts made by her, the Company did not register the transfer of the shares in her name. Registered office of the company was at Delhi. The High Court negatived the contention of the company that Judicial Magistrate at Jaipur did not have jurisdiction to deal with the case by holding thus :- Company collects money from the public at large by selling its shares and transactions of sale and purchase are governed by the provisions of the Companies Act. Registration of the transferred shares is one of the duties of the company in the course of conducting its business according to the provisions of law. Therefore, the interest of the members of the public transacting such business cannot be allowed to be defeated on the plea that relief to the aggrieved persons can be granted only at the place where the office of the company is located. 10. In our view, it appears that the attention of the learned Judge was not drawn to the decision rendered by this Court in H.P. Gupta v. Hiralal, 1970(1) SCC 437 and also to Section 113 of the Act, which inter alia provides that company shall deliver the documents, such as, certificates of shares, debentures and certificates of debenture stocks allotted or transferred in accordance with the procedure laid down in Section 53. Section 53 prescribe the mode of delivery inter alia by sending the document by post at registered address and sub-section (2) is the deeming provision for delivery of such letter. In Upendra Kumar Joshi v. Manik Lal Chatterjee and others, 1982 (Vol. 52) Company Cases 177 (Patna), the Patna High Court has followed the decision rendered by this Court in the case of H.P. Gupta (supra) and has rightly arrived at the conclusion that the cause of action would arise at the place where registered office of the company is situated.
### Response:
0
### Explanation:
10. In our view, it appears that the attention of the learned Judge was not drawn to the decision rendered by this Court in H.P. Gupta v. Hiralal, 1970(1) SCC 437 and also to Section 113 of the Act, which inter alia provides that company shall deliver the documents, such as, certificates of shares, debentures and certificates of debenture stocks allotted or transferred in accordance with the procedure laid down in Section 53. Section 53 prescribe the mode of delivery inter alia by sending the document by post at registered address and sub-section (2) is the deeming provision for delivery of such letter. In Upendra Kumar Joshi v. Manik Lal Chatterjee and others, 1982 (Vol. 52) Company Cases 177 (Patna), the Patna High Court has followed the decision rendered by this Court in the case of H.P. Gupta (supra) and has rightly arrived at the conclusion that the cause of action would arise at the place where registered office of the company is situated.
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Harjeet Singh Vs. Raj Kishore and Others | 1. Special leave granted. 2. When the Second Appeal No. 1433171 preferred by the present appellant was pending before the High Court of Allahabad, it appears that respondent 3 died on July 6, 1976. An application for substitution was made on October 18, 1976. This is undoubtedly after ninety days from the date of death but before the expiry of sixty days within which an application to set aside abatement has to be mover. We have seen the application made by the appellant requesting the Court to condone the delay and grant substitution. This application was rejected by the order dated September 19, 1979. Surprisingly, the present appellant should have challenged that order. It however appears that he waited till the matter was formally on board. The High Court on July 2, 1980 disposed of the appeal by observing that the appeal the order dated July 2, 1980 but not the order dated September 19, 1979. 3. This is, of course technically improper. But when we are looking at the matter under Article 136 of the Constitution, these minor technicalities of procedural part should not come in our way from doing substantial justice. Therefore, at the oral request of the learned counsel, we treat this appeal as also against the order rejecting the application for substitution. 4. Having examined both the orders, we are satisfied that the High Court was in error in refusing substitution. There was delay of a few days and there was satisfactory explanation for the delay in seeking substitution. In the facts and circumstances of this case we, therefore, set aside the order dated September 19, 1976 and grant substitution. Once substitution is granted, the second order dated July 2, 1980 cannot survive and the appeal would not abate. Therefore the second order dated July 2, 1980 has to be set aside by us which hereby do. | 1[ds]4. Having examined both the orders, we are satisfied that the High Court was in error in refusing substitution. There was delay of a few days and there was satisfactory explanation for the delay in seeking substitution. In the facts and circumstances of this case we, therefore, set aside the order dated September 19, 1976 and grant substitution. Once substitution is granted, the second order dated July 2, 1980 cannot survive and the appeal would not abate. Therefore the second order dated July 2, 1980 has to be set aside by us which hereby do. | 1 | 353 | 113 | ### 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:
1. Special leave granted. 2. When the Second Appeal No. 1433171 preferred by the present appellant was pending before the High Court of Allahabad, it appears that respondent 3 died on July 6, 1976. An application for substitution was made on October 18, 1976. This is undoubtedly after ninety days from the date of death but before the expiry of sixty days within which an application to set aside abatement has to be mover. We have seen the application made by the appellant requesting the Court to condone the delay and grant substitution. This application was rejected by the order dated September 19, 1979. Surprisingly, the present appellant should have challenged that order. It however appears that he waited till the matter was formally on board. The High Court on July 2, 1980 disposed of the appeal by observing that the appeal the order dated July 2, 1980 but not the order dated September 19, 1979. 3. This is, of course technically improper. But when we are looking at the matter under Article 136 of the Constitution, these minor technicalities of procedural part should not come in our way from doing substantial justice. Therefore, at the oral request of the learned counsel, we treat this appeal as also against the order rejecting the application for substitution. 4. Having examined both the orders, we are satisfied that the High Court was in error in refusing substitution. There was delay of a few days and there was satisfactory explanation for the delay in seeking substitution. In the facts and circumstances of this case we, therefore, set aside the order dated September 19, 1976 and grant substitution. Once substitution is granted, the second order dated July 2, 1980 cannot survive and the appeal would not abate. Therefore the second order dated July 2, 1980 has to be set aside by us which hereby do.
### Response:
1
### Explanation:
4. Having examined both the orders, we are satisfied that the High Court was in error in refusing substitution. There was delay of a few days and there was satisfactory explanation for the delay in seeking substitution. In the facts and circumstances of this case we, therefore, set aside the order dated September 19, 1976 and grant substitution. Once substitution is granted, the second order dated July 2, 1980 cannot survive and the appeal would not abate. Therefore the second order dated July 2, 1980 has to be set aside by us which hereby do.
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Subsets and Splits