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Management of Pradip Lamp Works Vs. Pradip Lamp Workers' Karmachari Sangh & Another | a party is entitled to an adjournment for producing its evidence is a matter of discretion and the exercise of discretion cannot be assailed on appeal under Art. 136 of the Constitution.8. The second point strongly urged by Shri Gokhale relates to the grant of full wages to the workmen for the remaining period of the lock-out. If the blame for the lock-out was apportionable to both the parties then, according to the submission, full wages could not be awarded. I such cases the normal practice, argued the learned Advocate, us to award half of their wages. In support of this submission reference was, to begin with made to a decision of this Court as India General Navigation and Railway Co. v. Their Workmen (1960) 2 S.C.R. 1. At page 31 of the report this Court said :"As regards the remaining workmen the question is whether the Tribunal was entirely correct in ordering their reinstatement with full back wages and allowances on and from August 20, 1955. till reinstatement. This would amount to wholly condoning the illegal act of the strikes. On the findings arrived at before us, the workmen were guilty of having participated in an illegal strike, for which they were liable to be dealt with by their employers. It is also clear that the inquiry held by the appellants was not wholly regular as individual charge-sheets had not been delivered to the workmen proceeded against. When the blame attaches to both the parties, we think that they should divide the loss half and half between them. We, therefore, direct that those workmen whose reinstatement by the Tribunal is up held by us, should be entitled only to half of their wages during the period between the date of the cessation of the illegal strike (i.e., from August 20, 1955) and the date the award became enforceable. After that date they will be entitled to their full wages on reinstatement".9. The other decision cited on this point is reported as India marine Service Private Ltd. v. Their Workmen (1963) 3 S.C.R. 575. At page 583 of the report it was observed thus :"It is true that the strike was intended to be a token one. But the object of that strike being to circumvent settlement in an amicable manner, even though the company was ready for such settlement. We have no doubt that strike was unjustified. It is in the light of this finding that the lock-out has to be judged. In our opinion, while the strike was unjustified the lock-out when it was ordered on November 13, 1968 was justified. It seems to us, however, that though the lock-out was justified at its commencement its continuance for 53 days was wholly unreasonable and, therefore, unjustified. In a case where a strike is unjustified and is followed by a lock-out which has because of its long duration, become unjustified it would not be proper course for an industrial tribunal to direct the payment of the whole of the wages for the period of the lock-out. We would like to make it clear that in a case where the strike is unjustified and the lock-out is justified the workmen would not be entitled to any wages at all. Similarly where the strike is justified and the lock-out is unjustified the workmen would be entitled to the entire wages for the period of strike and lock-out. Where, however, a strike is unjustified and is followed by a lock-out which becomes unjustified a case for apportionment of blame arises".10. In that case also the blame for the situation was apportioned roughly half and half between the company and the workmen with the result that the workmen were given half of their wages for the period in question.11. The respondents learned Advocate submitted in reply that the management had been adopting dilatory tactics and there was a very trivial instance of slapping a workman which had led to a demand by the workmen for an apology from the offending party and this had led to the strike and the lock-out. In the background of this situation, the learned Advocate contended, the order giving full wages to the workmen was fully justified. It was emphasised that for one day when the strike was held to be illegal, the workmen have been deprived of their wages completely. Thereafter they were always willing to work but the management declared a lock-out and continued the same without any justification. The learned Advocate referred us to a decision of the Labour Appellate Tribunal in Jeypore Sugar Company Ltd. v. Their Employees [1955 - II L.L.J. 444] in support of his submission that the assault on a workman was not a matter of such a serious nature as would justify the management to declare the lockout, more particularly to continue it for such a long duration.12. In our opinion, it was incumbent on the Tribunal to apply its mind to the question of apportionment of blame on the two parties and to its effect on the amount of wages to be awarded to the workmen for the period of the lock-out after February 28, 1964. The order of the Tribunal ignoring this important aspect is infirm and is difficult to sustain. In so far as the first question is concerned, prima facie, the order of the Tribunal does appear to be somewhat arbitrary and injudicious and it would have been more appropriate exercise of judicial discretion to adjourn the case to the following day for the production of the appellants evidence, if necessary, on payment of costs. Had we decided to remit the case back to the Tribunal for considering the question of the effect of both parties being blameworthy for the lock-out on the amount of wages to be awarded, we would have perhaps thought it proper also to direct the Tribunal to permit the appellant to adduce evidence. This evidence, we were informed, was only sought to be adduced on the question of apportionment of blame. | 1[ds]In this connection our attention made by the appellant to the Tribunal on September 29, 1966 seeking an opportunity for producing the witnesses named therein, but the prayer was disallowed by the Tribunal. The order of the Tribunal disallowing the prayer was described by the learned Advocate to be discriminatory and violative of the recognised standards of judicial impartiality. Had the Sangh been compelled to start its evidence, then, so proceeded the augment, the appellants oral evidence could not be closed because the case was adjourned to the following day without concluding the recording of the evidence of the Union and on that day the remaining evidence of the management could be produced in the normal course.In our opinion, it was incumbent on the Tribunal to apply its mind to the question of apportionment of blame on the two parties and to its effect on the amount of wages to be awarded to the workmen for the period of the lock-out after February 28, 1964. The order of the Tribunal ignoring this important aspect is infirm and is difficult to sustain. In so far as the first question is concerned, prima facie, the order of the Tribunal does appear to be somewhat arbitrary and injudicious and it would have been more appropriate exercise of judicial discretion to adjourn the case to the following day for the production of the appellants evidence, if necessary, on payment of costs. Had we decided to remit the case back to the Tribunal for considering the question of the effect of both parties being blameworthy for the lock-out on the amount of wages to be awarded, we would have perhaps thought it proper also to direct the Tribunal to permit the appellant to adduce evidence. This evidence, we were informed, was only sought to be adduced on the question of apportionment of blame. | 1 | 2,019 | 333 | ### Instruction:
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a party is entitled to an adjournment for producing its evidence is a matter of discretion and the exercise of discretion cannot be assailed on appeal under Art. 136 of the Constitution.8. The second point strongly urged by Shri Gokhale relates to the grant of full wages to the workmen for the remaining period of the lock-out. If the blame for the lock-out was apportionable to both the parties then, according to the submission, full wages could not be awarded. I such cases the normal practice, argued the learned Advocate, us to award half of their wages. In support of this submission reference was, to begin with made to a decision of this Court as India General Navigation and Railway Co. v. Their Workmen (1960) 2 S.C.R. 1. At page 31 of the report this Court said :"As regards the remaining workmen the question is whether the Tribunal was entirely correct in ordering their reinstatement with full back wages and allowances on and from August 20, 1955. till reinstatement. This would amount to wholly condoning the illegal act of the strikes. On the findings arrived at before us, the workmen were guilty of having participated in an illegal strike, for which they were liable to be dealt with by their employers. It is also clear that the inquiry held by the appellants was not wholly regular as individual charge-sheets had not been delivered to the workmen proceeded against. When the blame attaches to both the parties, we think that they should divide the loss half and half between them. We, therefore, direct that those workmen whose reinstatement by the Tribunal is up held by us, should be entitled only to half of their wages during the period between the date of the cessation of the illegal strike (i.e., from August 20, 1955) and the date the award became enforceable. After that date they will be entitled to their full wages on reinstatement".9. The other decision cited on this point is reported as India marine Service Private Ltd. v. Their Workmen (1963) 3 S.C.R. 575. At page 583 of the report it was observed thus :"It is true that the strike was intended to be a token one. But the object of that strike being to circumvent settlement in an amicable manner, even though the company was ready for such settlement. We have no doubt that strike was unjustified. It is in the light of this finding that the lock-out has to be judged. In our opinion, while the strike was unjustified the lock-out when it was ordered on November 13, 1968 was justified. It seems to us, however, that though the lock-out was justified at its commencement its continuance for 53 days was wholly unreasonable and, therefore, unjustified. In a case where a strike is unjustified and is followed by a lock-out which has because of its long duration, become unjustified it would not be proper course for an industrial tribunal to direct the payment of the whole of the wages for the period of the lock-out. We would like to make it clear that in a case where the strike is unjustified and the lock-out is justified the workmen would not be entitled to any wages at all. Similarly where the strike is justified and the lock-out is unjustified the workmen would be entitled to the entire wages for the period of strike and lock-out. Where, however, a strike is unjustified and is followed by a lock-out which becomes unjustified a case for apportionment of blame arises".10. In that case also the blame for the situation was apportioned roughly half and half between the company and the workmen with the result that the workmen were given half of their wages for the period in question.11. The respondents learned Advocate submitted in reply that the management had been adopting dilatory tactics and there was a very trivial instance of slapping a workman which had led to a demand by the workmen for an apology from the offending party and this had led to the strike and the lock-out. In the background of this situation, the learned Advocate contended, the order giving full wages to the workmen was fully justified. It was emphasised that for one day when the strike was held to be illegal, the workmen have been deprived of their wages completely. Thereafter they were always willing to work but the management declared a lock-out and continued the same without any justification. The learned Advocate referred us to a decision of the Labour Appellate Tribunal in Jeypore Sugar Company Ltd. v. Their Employees [1955 - II L.L.J. 444] in support of his submission that the assault on a workman was not a matter of such a serious nature as would justify the management to declare the lockout, more particularly to continue it for such a long duration.12. In our opinion, it was incumbent on the Tribunal to apply its mind to the question of apportionment of blame on the two parties and to its effect on the amount of wages to be awarded to the workmen for the period of the lock-out after February 28, 1964. The order of the Tribunal ignoring this important aspect is infirm and is difficult to sustain. In so far as the first question is concerned, prima facie, the order of the Tribunal does appear to be somewhat arbitrary and injudicious and it would have been more appropriate exercise of judicial discretion to adjourn the case to the following day for the production of the appellants evidence, if necessary, on payment of costs. Had we decided to remit the case back to the Tribunal for considering the question of the effect of both parties being blameworthy for the lock-out on the amount of wages to be awarded, we would have perhaps thought it proper also to direct the Tribunal to permit the appellant to adduce evidence. This evidence, we were informed, was only sought to be adduced on the question of apportionment of blame.
### Response:
1
### Explanation:
In this connection our attention made by the appellant to the Tribunal on September 29, 1966 seeking an opportunity for producing the witnesses named therein, but the prayer was disallowed by the Tribunal. The order of the Tribunal disallowing the prayer was described by the learned Advocate to be discriminatory and violative of the recognised standards of judicial impartiality. Had the Sangh been compelled to start its evidence, then, so proceeded the augment, the appellants oral evidence could not be closed because the case was adjourned to the following day without concluding the recording of the evidence of the Union and on that day the remaining evidence of the management could be produced in the normal course.In our opinion, it was incumbent on the Tribunal to apply its mind to the question of apportionment of blame on the two parties and to its effect on the amount of wages to be awarded to the workmen for the period of the lock-out after February 28, 1964. The order of the Tribunal ignoring this important aspect is infirm and is difficult to sustain. In so far as the first question is concerned, prima facie, the order of the Tribunal does appear to be somewhat arbitrary and injudicious and it would have been more appropriate exercise of judicial discretion to adjourn the case to the following day for the production of the appellants evidence, if necessary, on payment of costs. Had we decided to remit the case back to the Tribunal for considering the question of the effect of both parties being blameworthy for the lock-out on the amount of wages to be awarded, we would have perhaps thought it proper also to direct the Tribunal to permit the appellant to adduce evidence. This evidence, we were informed, was only sought to be adduced on the question of apportionment of blame.
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K.T. Palanisamy Vs. State of Tamil Nadu | out. Be that as it may, when the offence is said to have been committed and the circumstantial evidence is made the basis for establishing the charge against the appellant, indisputably all the links must be completed to form the basis for his conviction. 12. It is now well settled that in a case where an offence is said to have been established on circumstantial evidence alone, indisputably all the links in the chain must be found to be complete as has been held in Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622 ] in the following terms : “A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra where the following observations were made:certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions.(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.(3) the circumstances should be of a conclusive nature and tendency.(4) they should exclude every possible hypothesis except the one to be proved, and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 13. In this case, corpus delicti has not been proved. The same need not be but the death as a fact must be proved. Even death has not been proved in this case. No piece of mortal remains of the deceased was found. If the prosecution witnesses are to be believed they had no reason to suspect the appellant herein at the relevant point of time. They knew that the deceased was to attend another function. We fail to understand as to why the deceased would take all the accused to the shop of PW2 or allowed to be found in their company by all of his relations and partners. None of the witnesses testified that they were seen near the place of worship. None said that they were found to be performing any pooja. No evidence was adduced to show that any pooja was performed in a temple. 14. In a situation of this nature, it is difficult to hold that a judgment of conviction can be founded on the sole circumstance of the deceaseds having been last seen with the appellant by the prosecution witnesses who are all interested and partisan witnesses. More significant is the conduct of the prosecution witnesses. On the day of the alleged crime, they did not suspect the appellant in any manner whatsoever. They did not even go to the place of the occurrence. Despite the fact that he was missing, the purported explanation of the appellant was taken for granted. Even no missing report was lodged. It was expected that such missing report should have been lodged immediately and that details of his wearing apparels as also the fact that he had two rings on his finger and one gold chain would have been mentioned.The fact that the deceased was last seen with the appellant should have been specifically disclosed in the first information report. Suspicion was raised about the involvement of the appellant only because three other dead bodies were recovered. We do not know the nature of evidence that has been adduced in that case. We need not enter into any surmise in this behalf. 15. In any event, the circumstancial evidence which formed part of the records of SC 100 of 1997 could not be relied upon for arriving at the conclusion that the appellant herein is guilty of commission of the said offence. 16. The only other circumstance is recovery of the golden chain. It was allegedly sold to PW8. He, however, has denied his involvement. Even assuming that golden chain was recovered at the instance of the appellant herein, the same by itself, in our considered view, would be sufficient for upholding the judgment and conviction under Section 302 of the IPC. 17. Mr. V.Kanakaraj, learned senior counsel appearing on behalf of the respondent, has placed strong reliance on a decision of this Court in Sevaka Perumal and Anr. V. State of Tamil Nadu reported in [1991 (3) SCC 471 ]. Therein also it was held that the fact of the death of the deceased must be established like any other fact. In that case it was not done. This Court in that case gave an instance where a corpus delicti is not possible to be traced or recovered. The same being that the murder was committed and the dead body was thrown into the river, stream or burnt out. Even such is not the case here. As indicated herein before, the fact that the river was a tidal one had not been proved. There is, thus, no reliable or acceptable evidence that the offence has been committed by the appellant. Neither any direct nor circumstantial evidence had been brought on record to establish the guilt on the part of the appellant herein.18. We, therefore, | 1[ds]In a situation of this nature, it is difficult to hold that a judgment of conviction can be founded on the sole circumstance of the deceaseds having been last seen with the appellant by the prosecution witnesses who are all interested and partisan witnesses. More significant is the conduct of the prosecution witnesses. On the day of the alleged crime, they did not suspect the appellant in any manner whatsoever. They did not even go to the place of the occurrence. Despite the fact that he was missing, the purported explanation of the appellant was taken for granted. Even no missing report was lodged. It was expected that such missing report should have been lodged immediately and that details of his wearing apparels as also the fact that he had two rings on his finger and one gold chain would have been mentioned.The fact that the deceased was last seen with the appellant should have been specifically disclosed in the first information report. Suspicion was raised about the involvement of the appellant only because three other dead bodies were recovered. We do not know the nature of evidence that has been adduced in that case. We need not enter into any surmise in thisany event, the circumstancial evidence which formed part of the records of SC 100 of 1997 could not be relied upon for arriving at the conclusion that the appellant herein is guilty of commission of the saidonly other circumstance is recovery of the golden chain. It was allegedly sold to PW8. He, however, has denied his involvement. Even assuming that golden chain was recovered at the instance of the appellant herein, the same by itself, in our considered view, would be sufficient for upholding the judgment and conviction under Section 302 of thetherefore, are of the opinion that the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. The appellant is in jail. He is directed to be set at liberty unless wanted in connection with any other case | 1 | 2,839 | 368 | ### Instruction:
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out. Be that as it may, when the offence is said to have been committed and the circumstantial evidence is made the basis for establishing the charge against the appellant, indisputably all the links must be completed to form the basis for his conviction. 12. It is now well settled that in a case where an offence is said to have been established on circumstantial evidence alone, indisputably all the links in the chain must be found to be complete as has been held in Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622 ] in the following terms : “A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra where the following observations were made:certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions.(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.(3) the circumstances should be of a conclusive nature and tendency.(4) they should exclude every possible hypothesis except the one to be proved, and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 13. In this case, corpus delicti has not been proved. The same need not be but the death as a fact must be proved. Even death has not been proved in this case. No piece of mortal remains of the deceased was found. If the prosecution witnesses are to be believed they had no reason to suspect the appellant herein at the relevant point of time. They knew that the deceased was to attend another function. We fail to understand as to why the deceased would take all the accused to the shop of PW2 or allowed to be found in their company by all of his relations and partners. None of the witnesses testified that they were seen near the place of worship. None said that they were found to be performing any pooja. No evidence was adduced to show that any pooja was performed in a temple. 14. In a situation of this nature, it is difficult to hold that a judgment of conviction can be founded on the sole circumstance of the deceaseds having been last seen with the appellant by the prosecution witnesses who are all interested and partisan witnesses. More significant is the conduct of the prosecution witnesses. On the day of the alleged crime, they did not suspect the appellant in any manner whatsoever. They did not even go to the place of the occurrence. Despite the fact that he was missing, the purported explanation of the appellant was taken for granted. Even no missing report was lodged. It was expected that such missing report should have been lodged immediately and that details of his wearing apparels as also the fact that he had two rings on his finger and one gold chain would have been mentioned.The fact that the deceased was last seen with the appellant should have been specifically disclosed in the first information report. Suspicion was raised about the involvement of the appellant only because three other dead bodies were recovered. We do not know the nature of evidence that has been adduced in that case. We need not enter into any surmise in this behalf. 15. In any event, the circumstancial evidence which formed part of the records of SC 100 of 1997 could not be relied upon for arriving at the conclusion that the appellant herein is guilty of commission of the said offence. 16. The only other circumstance is recovery of the golden chain. It was allegedly sold to PW8. He, however, has denied his involvement. Even assuming that golden chain was recovered at the instance of the appellant herein, the same by itself, in our considered view, would be sufficient for upholding the judgment and conviction under Section 302 of the IPC. 17. Mr. V.Kanakaraj, learned senior counsel appearing on behalf of the respondent, has placed strong reliance on a decision of this Court in Sevaka Perumal and Anr. V. State of Tamil Nadu reported in [1991 (3) SCC 471 ]. Therein also it was held that the fact of the death of the deceased must be established like any other fact. In that case it was not done. This Court in that case gave an instance where a corpus delicti is not possible to be traced or recovered. The same being that the murder was committed and the dead body was thrown into the river, stream or burnt out. Even such is not the case here. As indicated herein before, the fact that the river was a tidal one had not been proved. There is, thus, no reliable or acceptable evidence that the offence has been committed by the appellant. Neither any direct nor circumstantial evidence had been brought on record to establish the guilt on the part of the appellant herein.18. We, therefore,
### Response:
1
### Explanation:
In a situation of this nature, it is difficult to hold that a judgment of conviction can be founded on the sole circumstance of the deceaseds having been last seen with the appellant by the prosecution witnesses who are all interested and partisan witnesses. More significant is the conduct of the prosecution witnesses. On the day of the alleged crime, they did not suspect the appellant in any manner whatsoever. They did not even go to the place of the occurrence. Despite the fact that he was missing, the purported explanation of the appellant was taken for granted. Even no missing report was lodged. It was expected that such missing report should have been lodged immediately and that details of his wearing apparels as also the fact that he had two rings on his finger and one gold chain would have been mentioned.The fact that the deceased was last seen with the appellant should have been specifically disclosed in the first information report. Suspicion was raised about the involvement of the appellant only because three other dead bodies were recovered. We do not know the nature of evidence that has been adduced in that case. We need not enter into any surmise in thisany event, the circumstancial evidence which formed part of the records of SC 100 of 1997 could not be relied upon for arriving at the conclusion that the appellant herein is guilty of commission of the saidonly other circumstance is recovery of the golden chain. It was allegedly sold to PW8. He, however, has denied his involvement. Even assuming that golden chain was recovered at the instance of the appellant herein, the same by itself, in our considered view, would be sufficient for upholding the judgment and conviction under Section 302 of thetherefore, are of the opinion that the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. The appellant is in jail. He is directed to be set at liberty unless wanted in connection with any other case
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Nirmal Chand Vs. Vidya Wanti (Deceased) Through L.Rs | appellant and Subhrai Bai under a registered document, dated September 3, 1945. As per that document one portion of the agricultural property was allotted to Amin Chand, another to the appellant and the 3rd to Subhrai Bai. That document provided that Subhrai Bai "will be entitled only to the user of this land. She will have on right to alienate it in any manner. She Will have only life interest in it". At about the time of entering into the (Iced Amin Chand was heavily indebted. To discharge his debts the appellant paid a sum of Rs. 66, 000/-. Consequently Amin Chand was allotted 90 Kanals, the appellant 671 Kanals and Subhrai Bai 358 Kanals of land. On the creation of Pakistan in the year 1947, the entire family shifted to India leaving behind their agricultural property in Pakistan. In this country they were separately allotted agricultural lands in lieu of the lands left by them in Pakistan. Subhrai Bai bequeathed the property got by her under the deed of September 3, 1945 to her daughter Vidya Wanti as per her Will of June 18, 1957. Sometime thereafter she died and the properties in question were mutuated in the name of Vidya Wanti on December 19, 1958. At this stage it may be noted that the Hindu Succession Act (Act XXX of 1956) came into force on June 17, 1956. The suit from which this appeal has arisen was instituted on March 5, 1959.3. The only contention advanced in this appeal is that when the parties were residing in Pakistan they were governed by the customary Hindu Law under which Subhrai Bai had no right to any portion of the agricultural properties which was the subject-matter of the partition under the deed, dated September 3, 1945. She obtained a right to the suit properties only under that deed and therefore it must be held that she got that property subject to the conditions prescribed in that deed. Hence it was urged that the present case falls within sub-section (2) of the Hindu Succession Act and consequently she had no right to bequeath the suit properties to her daughter.4. Before examining the above contention we must dispose of the preliminary objection taken by the respondents to the maintainability of this appeal. It was contended on their behalf that this appeal had abated as the legal representatives of Vidya Wanti who died on December 27, 1967 had not been brought on record within the period of limitation. It is true that there was some confusion in the matter of bringing on record the legal representatives of the original respondent. An application to bring on record the legal representatives was filed in this Court on February 6, 1968 well within the time prescribed, but then under the relevant rule that had to be filed in the High Court. An application in the High Court was made oil March 12, 1968 and the required certificate was issued on September 20, 1968. Thereafter a second application to bring on record the legal representatives of the deceased respondent was made in this Court oil November 12, 1968. The application made on February 6, 1968 was not pressed and accordingly it was dismissed. The learned Chamber judge allowed the application made on November 12, 1968 "subject to just exceptions". On the facts set out above, it is true that the application for bringing on record the legal representatives of the original respondent was made beyond the time prescribed but in the circumstances of this case and particularly in view of the changes effected in the rules of this Court which appear to have mis-led the appellant we are of opinion that this is a fit case where we should condone the delay in making the application. We order accordingly.5. Now coming to the merits of the case, the contention taken on behalf of the appellant and noticed earlier, had not been taken either in the Trial Court or in the first Appellate Court. It was taken for the first time in the second appeal. The High Court summarily dismissed that appeal. Evidently it was not willing to entertain the new plea taken. We are unable to agree with Mr. Mehta learned counsel for the appellant that the plea ill question raises a pure question of law on the basis of the admitted facts. There is no material before us from which we can conclude that Subhrai Bai had been given any share in the non-agricultural properties owned by her husband. Admittedly she was entitled to a share in the same. It is possible that the suit properties were given to her in lieu of her share in the non-agricultural properties. Further we do not know whether the customary law prevailing at the place where the parties were residing applied to the family and whether under it Subhrai Bai was entitled to a share in the agricultural properties left behind by her husband. Under these circumstances it is not proper to entertain the new plea.6. If Subhrai Bai was entitled to a share in her husbands properties then the suit properties must be held to have been allotted to her in accordance with law. As the law then stood she had only a life interest in the properties taken by her. Therefore the recital in the deed in question that she would have only a life interest in the properties allotted to her share is merely recording the true legal position. Hence it is not possible to conclude that the properties in question were given to her subject to the condition of her enjoying it for a life time. Therefore the Trial Court as well as the first Appellate Court were right in holding that the facts of the case do not fall within Section 14(2) of the Hindu Succession Act, 1956. Consequently Subhrai Bai must be held to have had an absolute right in the suit properties, in view of Section 14(1) of the Hindu Succession Act. | 0[ds]It is true that there was some confusion in the matter of bringing on record the legal representatives of the original respondent. An application to bring on record the legal representatives was filed in this Court on February 6, 1968 well within the time prescribed, but then under the relevant rule that had to be filed in the High Court. An application in the High Court was made oil March 12, 1968 and the required certificate was issued on September 20, 1968. Thereafter a second application to bring on record the legal representatives of the deceased respondent was made in this Court oil November 12, 1968. The application made on February 6, 1968 was not pressed and accordingly it was dismissed. The learned Chamber judge allowed the application made on November 12, 1968 "subject to just exceptions". On the facts set out above, it is true that the application for bringing on record the legal representatives of the original respondent was made beyond the time prescribed but in the circumstances of this case and particularly in view of the changes effected in the rules of this Court which appear to have mis-led the appellant we are of opinion that this is a fit case where we should condone the delay in making the application. We order accordingly.If Subhrai Bai was entitled to a share in her husbands properties then the suit properties must be held to have been allotted to her in accordance with law. As the law then stood she had only a life interest in the properties taken by her. Therefore the recital in the deed in question that she would have only a life interest in the properties allotted to her share is merely recording the true legal position. Hence it is not possible to conclude that the properties in question were given to her subject to the condition of her enjoying it for a life time. Therefore the Trial Court as well as the first Appellate Court were right in holding that the facts of the case do not fall within Section 14(2) of the Hindu Succession Act, 1956. Consequently Subhrai Bai must be held to have had an absolute right in the suit properties, in view of Section 14(1) of the Hindu Successionare unable to agree with Mr. Mehta learned counsel for the appellant that the plea ill question raises a pure question of law on the basis of the admitted facts. There is no material before us from which we can conclude that Subhrai Bai had been given any share in the non-agricultural properties owned by her husband. Admittedly she was entitled to a share in the same. It is possible that the suit properties were given to her in lieu of her share in the non-agricultural properties. Further we do not know whether the customary law prevailing at the place where the parties were residing applied to the family and whether under it Subhrai Bai was entitled to a share in the agricultural properties left behind by her husband. Under these circumstances it is not proper to entertain the new plea. | 0 | 1,249 | 558 | ### Instruction:
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appellant and Subhrai Bai under a registered document, dated September 3, 1945. As per that document one portion of the agricultural property was allotted to Amin Chand, another to the appellant and the 3rd to Subhrai Bai. That document provided that Subhrai Bai "will be entitled only to the user of this land. She will have on right to alienate it in any manner. She Will have only life interest in it". At about the time of entering into the (Iced Amin Chand was heavily indebted. To discharge his debts the appellant paid a sum of Rs. 66, 000/-. Consequently Amin Chand was allotted 90 Kanals, the appellant 671 Kanals and Subhrai Bai 358 Kanals of land. On the creation of Pakistan in the year 1947, the entire family shifted to India leaving behind their agricultural property in Pakistan. In this country they were separately allotted agricultural lands in lieu of the lands left by them in Pakistan. Subhrai Bai bequeathed the property got by her under the deed of September 3, 1945 to her daughter Vidya Wanti as per her Will of June 18, 1957. Sometime thereafter she died and the properties in question were mutuated in the name of Vidya Wanti on December 19, 1958. At this stage it may be noted that the Hindu Succession Act (Act XXX of 1956) came into force on June 17, 1956. The suit from which this appeal has arisen was instituted on March 5, 1959.3. The only contention advanced in this appeal is that when the parties were residing in Pakistan they were governed by the customary Hindu Law under which Subhrai Bai had no right to any portion of the agricultural properties which was the subject-matter of the partition under the deed, dated September 3, 1945. She obtained a right to the suit properties only under that deed and therefore it must be held that she got that property subject to the conditions prescribed in that deed. Hence it was urged that the present case falls within sub-section (2) of the Hindu Succession Act and consequently she had no right to bequeath the suit properties to her daughter.4. Before examining the above contention we must dispose of the preliminary objection taken by the respondents to the maintainability of this appeal. It was contended on their behalf that this appeal had abated as the legal representatives of Vidya Wanti who died on December 27, 1967 had not been brought on record within the period of limitation. It is true that there was some confusion in the matter of bringing on record the legal representatives of the original respondent. An application to bring on record the legal representatives was filed in this Court on February 6, 1968 well within the time prescribed, but then under the relevant rule that had to be filed in the High Court. An application in the High Court was made oil March 12, 1968 and the required certificate was issued on September 20, 1968. Thereafter a second application to bring on record the legal representatives of the deceased respondent was made in this Court oil November 12, 1968. The application made on February 6, 1968 was not pressed and accordingly it was dismissed. The learned Chamber judge allowed the application made on November 12, 1968 "subject to just exceptions". On the facts set out above, it is true that the application for bringing on record the legal representatives of the original respondent was made beyond the time prescribed but in the circumstances of this case and particularly in view of the changes effected in the rules of this Court which appear to have mis-led the appellant we are of opinion that this is a fit case where we should condone the delay in making the application. We order accordingly.5. Now coming to the merits of the case, the contention taken on behalf of the appellant and noticed earlier, had not been taken either in the Trial Court or in the first Appellate Court. It was taken for the first time in the second appeal. The High Court summarily dismissed that appeal. Evidently it was not willing to entertain the new plea taken. We are unable to agree with Mr. Mehta learned counsel for the appellant that the plea ill question raises a pure question of law on the basis of the admitted facts. There is no material before us from which we can conclude that Subhrai Bai had been given any share in the non-agricultural properties owned by her husband. Admittedly she was entitled to a share in the same. It is possible that the suit properties were given to her in lieu of her share in the non-agricultural properties. Further we do not know whether the customary law prevailing at the place where the parties were residing applied to the family and whether under it Subhrai Bai was entitled to a share in the agricultural properties left behind by her husband. Under these circumstances it is not proper to entertain the new plea.6. If Subhrai Bai was entitled to a share in her husbands properties then the suit properties must be held to have been allotted to her in accordance with law. As the law then stood she had only a life interest in the properties taken by her. Therefore the recital in the deed in question that she would have only a life interest in the properties allotted to her share is merely recording the true legal position. Hence it is not possible to conclude that the properties in question were given to her subject to the condition of her enjoying it for a life time. Therefore the Trial Court as well as the first Appellate Court were right in holding that the facts of the case do not fall within Section 14(2) of the Hindu Succession Act, 1956. Consequently Subhrai Bai must be held to have had an absolute right in the suit properties, in view of Section 14(1) of the Hindu Succession Act.
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It is true that there was some confusion in the matter of bringing on record the legal representatives of the original respondent. An application to bring on record the legal representatives was filed in this Court on February 6, 1968 well within the time prescribed, but then under the relevant rule that had to be filed in the High Court. An application in the High Court was made oil March 12, 1968 and the required certificate was issued on September 20, 1968. Thereafter a second application to bring on record the legal representatives of the deceased respondent was made in this Court oil November 12, 1968. The application made on February 6, 1968 was not pressed and accordingly it was dismissed. The learned Chamber judge allowed the application made on November 12, 1968 "subject to just exceptions". On the facts set out above, it is true that the application for bringing on record the legal representatives of the original respondent was made beyond the time prescribed but in the circumstances of this case and particularly in view of the changes effected in the rules of this Court which appear to have mis-led the appellant we are of opinion that this is a fit case where we should condone the delay in making the application. We order accordingly.If Subhrai Bai was entitled to a share in her husbands properties then the suit properties must be held to have been allotted to her in accordance with law. As the law then stood she had only a life interest in the properties taken by her. Therefore the recital in the deed in question that she would have only a life interest in the properties allotted to her share is merely recording the true legal position. Hence it is not possible to conclude that the properties in question were given to her subject to the condition of her enjoying it for a life time. Therefore the Trial Court as well as the first Appellate Court were right in holding that the facts of the case do not fall within Section 14(2) of the Hindu Succession Act, 1956. Consequently Subhrai Bai must be held to have had an absolute right in the suit properties, in view of Section 14(1) of the Hindu Successionare unable to agree with Mr. Mehta learned counsel for the appellant that the plea ill question raises a pure question of law on the basis of the admitted facts. There is no material before us from which we can conclude that Subhrai Bai had been given any share in the non-agricultural properties owned by her husband. Admittedly she was entitled to a share in the same. It is possible that the suit properties were given to her in lieu of her share in the non-agricultural properties. Further we do not know whether the customary law prevailing at the place where the parties were residing applied to the family and whether under it Subhrai Bai was entitled to a share in the agricultural properties left behind by her husband. Under these circumstances it is not proper to entertain the new plea.
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Sk. Abdul Munnaf Vs. The State of W.B | Khanna, J.1. Abdul Munnaf petitioner was ordered to be detained under Section 3 of the Maintenance of Internal Security Act, 1971 (Act XXVI of 1971) by the District Magistrate, Howrah with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. The order for detention was made on March 6, 1972 and in pursuance thereof the petitioner was arrested on March 23, 1972. The petitioner thereupon sent this petition for issue of a writ of habeas corpus through jail.2. Notice of the petition was issued to the State of West Bengal and the affidavit of Shri Sukumar Sen, Deputy Secretary Home (Special) Department, Government of West Bengal has been filed in opposition to the petition.3. We have heard Mr. Sukumar Ghosh, who has argued the case amicus curiae on behalf of the petitioner, and Mr. P. K. Chatterjee on behalf of the State, and are of opinion that the order for the detention of the petitioner should be quashed on the short ground that there was inordinate delay and no proximity in point of time between the alleged prejudicial activity of the petitioner and the order of detention.4. According to the grounds of detention, the petitioner was being detained because on June 7, 1971, he and his associates committed theft of navigational lamp from Achipore Buoy in river Hooghly as a result of which the movement of vessels carrying essential commodities was disrupted. When the petition came up for hearing on February 26, 1974, we found that a period of nine months had elapsed between the incident of June 7, 1971 and the order of detention which was made on March 6, 1972. As the delay of nine months in the making of the order for detention after the alleged incident had not been explained, the case was adjourned for three weeks to enable the respondent State to file an affidavit has, however, been filed on behalf of the respondent State to explain the delay. It would therefore follow that the delay of nine months between the date of the incident about the theft of navigational lamp and the making of the order of detention remain unexplained.5. The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed largely from prior events showing tendencies or inclinations of a person that an inference can be drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order or to the maintenance of supplies and services essential to the community. But in order to justify such an inference it is necessary to bear in mind that such past conduct or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary (see Nagen Murmu v. State of West Bengal, (1973) 3 SCC 63 = (AIR 1973 SC 844 = 1973 Cri LJ 667).No doubt, it is both inexpedient and undesirable to lay down any inflexible test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion that the person concerned if not detained may indulge in prejudicial activities. If in a given case the time lag between the prejudicial activity of a detenu and the detention order made because of that activity is ex facie long, the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the prejudicial activity and the detention order. If the detaining authority fails to do so, in spite of an opportunity having been afforded to it, a serious infirmity would creep into the detention order. | 1[ds]3. We have heard Mr. Sukumar Ghosh, who has argued the case amicus curiae on behalf of the petitioner, and Mr. P. K. Chatterjee on behalf of the State, and are of opinion that the order for the detention of the petitioner should be quashed on the short ground that there was inordinate delay and no proximity in point of time between the alleged prejudicial activity of the petitioner and the order of detention.4. According to the grounds of detention, the petitioner was being detained because on June 7, 1971, he and his associates committed theft of navigational lamp from Achipore Buoy in river Hooghly as a result of which the movement of vessels carrying essential commodities was disrupted. When the petition came up for hearing on February 26, 1974, we found that a period of nine months had elapsed between the incident of June 7, 1971 and the order of detention which was made on March 6, 1972. As the delay of nine months in the making of the order for detention after the alleged incident had not been explained, the case was adjourned for three weeks to enable the respondent State to file an affidavit has, however, been filed on behalf of the respondent State to explain the delay. It would therefore follow that the delay of nine months between the date of the incident about the theft of navigational lamp and the making of the order of detention remain unexplained.5. The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed largely from prior events showing tendencies or inclinations of a person that an inference can be drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order or to the maintenance of supplies and services essential to the community. But in order to justify such an inference it is necessary to bear in mind that such past conduct or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary (see Nagen Murmu v. State of West Bengal, (1973) 3 SCC 63 = (AIR 1973 SC 844 = 1973 Cri LJ 667).No doubt, it is both inexpedient and undesirable to lay down any inflexible test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion that the person concerned if not detained may indulge in prejudicial activities. If in a given case the time lag between the prejudicial activity of a detenu and the detention order made because of that activity is ex facie long, the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the prejudicial activity and the detention order. If the detaining authority fails to do so, in spite of an opportunity having been afforded to it, a serious infirmity would creep into the detention order. | 1 | 691 | 554 | ### Instruction:
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Khanna, J.1. Abdul Munnaf petitioner was ordered to be detained under Section 3 of the Maintenance of Internal Security Act, 1971 (Act XXVI of 1971) by the District Magistrate, Howrah with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. The order for detention was made on March 6, 1972 and in pursuance thereof the petitioner was arrested on March 23, 1972. The petitioner thereupon sent this petition for issue of a writ of habeas corpus through jail.2. Notice of the petition was issued to the State of West Bengal and the affidavit of Shri Sukumar Sen, Deputy Secretary Home (Special) Department, Government of West Bengal has been filed in opposition to the petition.3. We have heard Mr. Sukumar Ghosh, who has argued the case amicus curiae on behalf of the petitioner, and Mr. P. K. Chatterjee on behalf of the State, and are of opinion that the order for the detention of the petitioner should be quashed on the short ground that there was inordinate delay and no proximity in point of time between the alleged prejudicial activity of the petitioner and the order of detention.4. According to the grounds of detention, the petitioner was being detained because on June 7, 1971, he and his associates committed theft of navigational lamp from Achipore Buoy in river Hooghly as a result of which the movement of vessels carrying essential commodities was disrupted. When the petition came up for hearing on February 26, 1974, we found that a period of nine months had elapsed between the incident of June 7, 1971 and the order of detention which was made on March 6, 1972. As the delay of nine months in the making of the order for detention after the alleged incident had not been explained, the case was adjourned for three weeks to enable the respondent State to file an affidavit has, however, been filed on behalf of the respondent State to explain the delay. It would therefore follow that the delay of nine months between the date of the incident about the theft of navigational lamp and the making of the order of detention remain unexplained.5. The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed largely from prior events showing tendencies or inclinations of a person that an inference can be drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order or to the maintenance of supplies and services essential to the community. But in order to justify such an inference it is necessary to bear in mind that such past conduct or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary (see Nagen Murmu v. State of West Bengal, (1973) 3 SCC 63 = (AIR 1973 SC 844 = 1973 Cri LJ 667).No doubt, it is both inexpedient and undesirable to lay down any inflexible test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion that the person concerned if not detained may indulge in prejudicial activities. If in a given case the time lag between the prejudicial activity of a detenu and the detention order made because of that activity is ex facie long, the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the prejudicial activity and the detention order. If the detaining authority fails to do so, in spite of an opportunity having been afforded to it, a serious infirmity would creep into the detention order.
### Response:
1
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3. We have heard Mr. Sukumar Ghosh, who has argued the case amicus curiae on behalf of the petitioner, and Mr. P. K. Chatterjee on behalf of the State, and are of opinion that the order for the detention of the petitioner should be quashed on the short ground that there was inordinate delay and no proximity in point of time between the alleged prejudicial activity of the petitioner and the order of detention.4. According to the grounds of detention, the petitioner was being detained because on June 7, 1971, he and his associates committed theft of navigational lamp from Achipore Buoy in river Hooghly as a result of which the movement of vessels carrying essential commodities was disrupted. When the petition came up for hearing on February 26, 1974, we found that a period of nine months had elapsed between the incident of June 7, 1971 and the order of detention which was made on March 6, 1972. As the delay of nine months in the making of the order for detention after the alleged incident had not been explained, the case was adjourned for three weeks to enable the respondent State to file an affidavit has, however, been filed on behalf of the respondent State to explain the delay. It would therefore follow that the delay of nine months between the date of the incident about the theft of navigational lamp and the making of the order of detention remain unexplained.5. The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed largely from prior events showing tendencies or inclinations of a person that an inference can be drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order or to the maintenance of supplies and services essential to the community. But in order to justify such an inference it is necessary to bear in mind that such past conduct or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary (see Nagen Murmu v. State of West Bengal, (1973) 3 SCC 63 = (AIR 1973 SC 844 = 1973 Cri LJ 667).No doubt, it is both inexpedient and undesirable to lay down any inflexible test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion that the person concerned if not detained may indulge in prejudicial activities. If in a given case the time lag between the prejudicial activity of a detenu and the detention order made because of that activity is ex facie long, the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the prejudicial activity and the detention order. If the detaining authority fails to do so, in spite of an opportunity having been afforded to it, a serious infirmity would creep into the detention order.
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Karnani Properties Ltd Vs. Commissioner Of Income Tax, West Bengal | to constitute the relation of landlord and tenants, and the owners remained in possession and occupation of their property. The receipts derived from hiring out their premises along with various movable fittings, and affording services in the way of heating, lighting and attendance were receipts of an enterprise quite distinct from the ordinary receipts which a landlord derives from letting his property. Consequently the owners of the premises were rightly held to be engaged in the carrying on of a trade or business in their premises, "the trade or business" in Lord Shaws language at p. 37 (Ibid at p. 593) of providing or providing for public entertainment. There is nothing to prevent a landlord who has been assessed under Schedule A in respect of his income as a property owner being also assessed under Schedule D in respect of a trade business or other enterprise carried on by him on his premises". 12. We are referring to these observations only to show that the activities of the assessee with which we are concerned in these appeals are business activities. We should not be understood as having laid down that in assessing the profits and gains of a business, the profits and gains arising from the several activities of that business can be separately computed or separately brought to tax.If the facts are as found by the Tribunal we must assume for the purpose of this case that the facts were correctly found by the Tribunal as there was no challenge to the correctness of those findings in the question referred to the High Court, then it is quite clear that the assessee had two sources of income and not one source as found by the High Court. 13. Mr. Manchanda, learned Counsel for the Department contended with some emphasis that there was no justification for the Income-tax Officer, the Appellate Assistant Commissioner as well as the Tribunal for coming to the conclusion that the services rendered by the assessee was an activity independent of letting out the premises to the tenants. According to him the primary activity of the assessee was to let out the premises and the services rendered were merely incidental. In support of his contention he relied on the ratio of the decision of this Court in Commr. of Income Tax Bombay City v. National Storage Private Ltd. 66 ITR 596 = (AIR 1968 SC 70 ). He alternatively contended that the income said to have been realised as a result of rendering the services by the assessee should have been brought to tax under Section 12 (4). For that contention he relied on the decision of this Court in Sultan Bros. Pvt. Ltd. v. Commr. of Income-tax, Bombay City II. (51 ITR 353 = (AIR 1964 SC 1389 )).The High Court after reassessing the evidence on record has also taken the view that there was only one source of income and that source was of letting out the premises to the tenants. Mr. Manchanda contended, and the High Court has accepted that contention that the authorities under the Act have not properly construed the lease deeds nor have they properly appreciated the evidence on record. It may well be so. We say nothing about it as it is not within our province to reappreciate the evidence on record. The question as to the correctness of the facts found by the Tribunal was not before the High Court nor is it before us. When the question referred to the High Court speaks of "on the facts and the circumstances of the case", it means on the facts and circumstances found by the Tribunal and not about the facts and circumstances that may be found by the High Court. We have earlier referred to the facts found and the circumstances relied on by the Tribunal, the final fact finding authority. It is for the Tribunal to find facts and it is for the High Court and this Court to lay down the law applicable to the facts found. Neither the High Court nor this Court has jurisdiction to go behind or to question the statements of facts made by the Tribunal. The statement of the case is binding on the parties and they are not entitled to go behind the facts found by the Tribunal in the Statement -See Kshetra Mohan Sannyasi Charan Sadhukhan v. Commr. of Excess Profits Tax. West Bengal, (24 ITR 488 = (AIR 1963 SC 516 )). 14. Mr. Manchanda was apprehensive that our decision in this case may have far reaching effect inasmuch as that the same may be considered as having laid down the rule that whenever a premises is let out with fixtures and furniture for a consolidated rent or when the landlord in addition to providing fixtures and furniture also renders services incidental to the letting out of the premises and charges a consolidated rent, it may be considered that the rent realised would have to be split up and assessed separately partly under Section 9 and partly under some other provision. There is no basis for this apprehension. Herein we are not considering any abstract proposition of law. We are only laying down the law applicable to the facts found. 15. It was next urged by Mr. Manchanda that our decision in this case may preclude the Department from reconsidering the correctness of the findings reached by the Income-tax Officer. Appellate Assistant Commissioner and the Tribunal in the assessees case in the subsequent years. This apprehension may again be not well founded. Generally speaking the rule of res judicata does not apply to taxation proceedings. We have not gone into the correctness of the findings of fact reached by the Tribunal. Therefore whether those facts and circumstances were correctly found or not may still be a matter for consideration in any future assessment. We do not wish to say anything more on this aspect as we do not want to pronounce on questions which are not before us. | 1[ds]10. From the facts found by the Tribunal it follows that the services rendered by the assessee to its tenants were the result of its activities carried on continuously in an organized manner with a set purpose and with a view to earn profits. Hence those activities have to be considered as business activitiesWhen the question referred to the High Court speaks of "on the facts and the circumstances of the case", it means on the facts and circumstances found by the Tribunal and not about the facts and circumstances that may be found by the High Court. We have earlier referred to the facts found and the circumstances relied on by the Tribunal, the final fact finding authority. It is for the Tribunal to find facts and it is for the High Court and this Court to lay down the law applicable to the facts found. Neither the High Court nor this Court has jurisdiction to go behind or to question the statements of facts made by the Tribunal. The statement of the case is binding on the parties and they are not entitled to go behind the facts found by the Tribunal in the Statement -See Kshetra Mohan Sannyasi Charan Sadhukhan v. Commr. of Excess Profits Tax. West Bengal, (24 ITR 488 = (AIR 1963 SC 516 ))14. Mr. Manchanda was apprehensive that our decision in this case may have far reaching effect inasmuch as that the same may be considered as having laid down the rule that whenever a premises is let out with fixtures and furniture for a consolidated rent or when the landlord in addition to providing fixtures and furniture also renders services incidental to the letting out of the premises and charges a consolidated rent, it may be considered that the rent realised would have to be split up and assessed separately partly under Section 9 and partly under some other provision. There is no basis for this apprehension. Herein we are not considering any abstract proposition of law. We are only laying down the law applicable to the facts foundAppellate Assistant Commissioner and the Tribunal in the assessees case in the subsequent years. This apprehension may again be not well founded. Generally speaking the rule of res judicata does not apply to taxation proceedings. We have not gone into the correctness of the findings of fact reached by the Tribunal. Therefore whether those facts and circumstances were correctly found or not may still be a matter for consideration in any future assessment. We do not wish to say anything more on this aspect as we do not want to pronounce on questions which are not before usProperty is regarded as yielding income from the exercise by the proprietor of the right either of himself with the possession by letting his property to tenants. The owner of property may make profit out of it in other ways and by doing so he may render himself liable to taxation under Sch. D. The case ofs of the Rotunda Hospital, Dublin v. Coman. (1921) I.A.C.1, is an excellent example. There as Lord Chancellor Lord Birkenhead pointed out at page 8 (7 Tax Cases 517 at page 576) the arrangements between the owners of the premises and the persons who paid for their use for the purpose of entertainments were not such as to constitute the relation of landlord and tenants, and the owners remained in possession and occupation of their propertyThe receipts derived from hiring out their premises along with various movable fittings, and affording services in the way of heating, lighting and attendance were receipts of an enterprise quite distinct from the ordinary receipts which a landlord derives from letting his propertyConsequently the owners of the premises were rightly held to be engaged in the carrying on of a trade or business in their premises, "the trade or business" in Lord Shaws language at p. 37 (Ibid at p. 593) of providing or providing for public entertainment. There is nothing to prevent a landlord who has been assessed under Schedule A in respect of his income as a property owner being also assessed under Schedule D in respect of a trade business or other enterprise carried on by him on his premises"12. We are referring to these observations only to show that the activities of the assessee with which we are concerned in these appeals are business activities. We should not be understood as having laid down that in assessing the profits and gains of a business, the profits and gains arising from the several activities of that business can be separately computed or separately brought to tax.If the facts are as found by the Tribunal we must assume for the purpose of this case that the facts were correctly found by the Tribunal as there was no challenge to the correctness of those findings in the question referred to the High Court, then it is quite clear that the assessee had two sources of income and not one source as found by the High Court. | 1 | 3,048 | 898 | ### Instruction:
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to constitute the relation of landlord and tenants, and the owners remained in possession and occupation of their property. The receipts derived from hiring out their premises along with various movable fittings, and affording services in the way of heating, lighting and attendance were receipts of an enterprise quite distinct from the ordinary receipts which a landlord derives from letting his property. Consequently the owners of the premises were rightly held to be engaged in the carrying on of a trade or business in their premises, "the trade or business" in Lord Shaws language at p. 37 (Ibid at p. 593) of providing or providing for public entertainment. There is nothing to prevent a landlord who has been assessed under Schedule A in respect of his income as a property owner being also assessed under Schedule D in respect of a trade business or other enterprise carried on by him on his premises". 12. We are referring to these observations only to show that the activities of the assessee with which we are concerned in these appeals are business activities. We should not be understood as having laid down that in assessing the profits and gains of a business, the profits and gains arising from the several activities of that business can be separately computed or separately brought to tax.If the facts are as found by the Tribunal we must assume for the purpose of this case that the facts were correctly found by the Tribunal as there was no challenge to the correctness of those findings in the question referred to the High Court, then it is quite clear that the assessee had two sources of income and not one source as found by the High Court. 13. Mr. Manchanda, learned Counsel for the Department contended with some emphasis that there was no justification for the Income-tax Officer, the Appellate Assistant Commissioner as well as the Tribunal for coming to the conclusion that the services rendered by the assessee was an activity independent of letting out the premises to the tenants. According to him the primary activity of the assessee was to let out the premises and the services rendered were merely incidental. In support of his contention he relied on the ratio of the decision of this Court in Commr. of Income Tax Bombay City v. National Storage Private Ltd. 66 ITR 596 = (AIR 1968 SC 70 ). He alternatively contended that the income said to have been realised as a result of rendering the services by the assessee should have been brought to tax under Section 12 (4). For that contention he relied on the decision of this Court in Sultan Bros. Pvt. Ltd. v. Commr. of Income-tax, Bombay City II. (51 ITR 353 = (AIR 1964 SC 1389 )).The High Court after reassessing the evidence on record has also taken the view that there was only one source of income and that source was of letting out the premises to the tenants. Mr. Manchanda contended, and the High Court has accepted that contention that the authorities under the Act have not properly construed the lease deeds nor have they properly appreciated the evidence on record. It may well be so. We say nothing about it as it is not within our province to reappreciate the evidence on record. The question as to the correctness of the facts found by the Tribunal was not before the High Court nor is it before us. When the question referred to the High Court speaks of "on the facts and the circumstances of the case", it means on the facts and circumstances found by the Tribunal and not about the facts and circumstances that may be found by the High Court. We have earlier referred to the facts found and the circumstances relied on by the Tribunal, the final fact finding authority. It is for the Tribunal to find facts and it is for the High Court and this Court to lay down the law applicable to the facts found. Neither the High Court nor this Court has jurisdiction to go behind or to question the statements of facts made by the Tribunal. The statement of the case is binding on the parties and they are not entitled to go behind the facts found by the Tribunal in the Statement -See Kshetra Mohan Sannyasi Charan Sadhukhan v. Commr. of Excess Profits Tax. West Bengal, (24 ITR 488 = (AIR 1963 SC 516 )). 14. Mr. Manchanda was apprehensive that our decision in this case may have far reaching effect inasmuch as that the same may be considered as having laid down the rule that whenever a premises is let out with fixtures and furniture for a consolidated rent or when the landlord in addition to providing fixtures and furniture also renders services incidental to the letting out of the premises and charges a consolidated rent, it may be considered that the rent realised would have to be split up and assessed separately partly under Section 9 and partly under some other provision. There is no basis for this apprehension. Herein we are not considering any abstract proposition of law. We are only laying down the law applicable to the facts found. 15. It was next urged by Mr. Manchanda that our decision in this case may preclude the Department from reconsidering the correctness of the findings reached by the Income-tax Officer. Appellate Assistant Commissioner and the Tribunal in the assessees case in the subsequent years. This apprehension may again be not well founded. Generally speaking the rule of res judicata does not apply to taxation proceedings. We have not gone into the correctness of the findings of fact reached by the Tribunal. Therefore whether those facts and circumstances were correctly found or not may still be a matter for consideration in any future assessment. We do not wish to say anything more on this aspect as we do not want to pronounce on questions which are not before us.
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10. From the facts found by the Tribunal it follows that the services rendered by the assessee to its tenants were the result of its activities carried on continuously in an organized manner with a set purpose and with a view to earn profits. Hence those activities have to be considered as business activitiesWhen the question referred to the High Court speaks of "on the facts and the circumstances of the case", it means on the facts and circumstances found by the Tribunal and not about the facts and circumstances that may be found by the High Court. We have earlier referred to the facts found and the circumstances relied on by the Tribunal, the final fact finding authority. It is for the Tribunal to find facts and it is for the High Court and this Court to lay down the law applicable to the facts found. Neither the High Court nor this Court has jurisdiction to go behind or to question the statements of facts made by the Tribunal. The statement of the case is binding on the parties and they are not entitled to go behind the facts found by the Tribunal in the Statement -See Kshetra Mohan Sannyasi Charan Sadhukhan v. Commr. of Excess Profits Tax. West Bengal, (24 ITR 488 = (AIR 1963 SC 516 ))14. Mr. Manchanda was apprehensive that our decision in this case may have far reaching effect inasmuch as that the same may be considered as having laid down the rule that whenever a premises is let out with fixtures and furniture for a consolidated rent or when the landlord in addition to providing fixtures and furniture also renders services incidental to the letting out of the premises and charges a consolidated rent, it may be considered that the rent realised would have to be split up and assessed separately partly under Section 9 and partly under some other provision. There is no basis for this apprehension. Herein we are not considering any abstract proposition of law. We are only laying down the law applicable to the facts foundAppellate Assistant Commissioner and the Tribunal in the assessees case in the subsequent years. This apprehension may again be not well founded. Generally speaking the rule of res judicata does not apply to taxation proceedings. We have not gone into the correctness of the findings of fact reached by the Tribunal. Therefore whether those facts and circumstances were correctly found or not may still be a matter for consideration in any future assessment. We do not wish to say anything more on this aspect as we do not want to pronounce on questions which are not before usProperty is regarded as yielding income from the exercise by the proprietor of the right either of himself with the possession by letting his property to tenants. The owner of property may make profit out of it in other ways and by doing so he may render himself liable to taxation under Sch. D. The case ofs of the Rotunda Hospital, Dublin v. Coman. (1921) I.A.C.1, is an excellent example. There as Lord Chancellor Lord Birkenhead pointed out at page 8 (7 Tax Cases 517 at page 576) the arrangements between the owners of the premises and the persons who paid for their use for the purpose of entertainments were not such as to constitute the relation of landlord and tenants, and the owners remained in possession and occupation of their propertyThe receipts derived from hiring out their premises along with various movable fittings, and affording services in the way of heating, lighting and attendance were receipts of an enterprise quite distinct from the ordinary receipts which a landlord derives from letting his propertyConsequently the owners of the premises were rightly held to be engaged in the carrying on of a trade or business in their premises, "the trade or business" in Lord Shaws language at p. 37 (Ibid at p. 593) of providing or providing for public entertainment. There is nothing to prevent a landlord who has been assessed under Schedule A in respect of his income as a property owner being also assessed under Schedule D in respect of a trade business or other enterprise carried on by him on his premises"12. We are referring to these observations only to show that the activities of the assessee with which we are concerned in these appeals are business activities. We should not be understood as having laid down that in assessing the profits and gains of a business, the profits and gains arising from the several activities of that business can be separately computed or separately brought to tax.If the facts are as found by the Tribunal we must assume for the purpose of this case that the facts were correctly found by the Tribunal as there was no challenge to the correctness of those findings in the question referred to the High Court, then it is quite clear that the assessee had two sources of income and not one source as found by the High Court.
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Controller Of Defence Accts.(Pen.)&Ors Vs. S. Balachandran Nair | will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease. Cases, in which it is established that service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. A disease which has led to an individuals discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of the individuals acceptance for service in the armed forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. (d) The question, whether a disability or death is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a medical board or by the medical officer who signs the death certificate. The medical board/medical officer will specify reasons for their/his opinion. The opinion of the medical board/medical officer, in so far as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regarded as final. The question whether the cause and the attendant circumstances can be attributed to service will, however, be decided by the pension sanctioning authority. (e) To assist the medical officer who signs the death certificate or the medical board in the case of an invalid, the C.O. unit will furnish a report on:- (i) AFMS F-81 in all cases other than those due to injuries. (i) IAFY-2006 in all cases of injuries other than battle injuries. (f) In cases where award of disability pension or reassessment of disabilities is concerned, a medical board is always necessary and the certificate of a single medical officer will not be accepted except in case of stations where it s not possible or feasible to assemble a regular medical board for such purposes. The certificate of a single medical officer in the latter case will be furnished on a medical board form and countersigned by the ADMS (Army)/DMS (Navy)/DMS (Air). 10. In Union of India and Anr. v. Baljit Singh (1996 (11) SCC 315 ) this Court had taken note of Rule 173 of the Pension Regulations. It was observed that where the Medical Board found that there was absence of proof of the injury/illness having been sustained due to military service or being attributable thereto, the High Courts direction to the Government to pay disability pension was not correct. It was inter alia observed as follows: "6......It is seen that various criteria have been prescribed in the guidelines under the Rules as to when the disease or injury is attributable to the military service. It is seen that under Rule 173 disability pension would be computed only when disability has occurred due to wound, injury or disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated during the military service. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension. This is made ample clear from clause (a) to (d) of para 7 which contemplates that in respect of a disease the Rules enumerated thereunder required to be observed. Clause (c) provides that if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. Unless these conditions satisfied, it cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of Doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In each case, when a disability pension is sought for made a claim, it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service". 11. The position was again re-iterated in Union of India and Ors. v. Dhir Singh China, Colonel (Retd.) (2003(2) SCC 382). In para 7 it was observed as follows: "7. That leaves for consideration Regulation 53. The said Regulation provides that on an officer being compulsorily retired on account of age or on completion of tenure, if suffering on retirement from a disability attributable to or aggravated by military service and recorded by service medical authority, he may be granted, in addition to retiring pension, a disability element as if he had been retired on account of disability. It is not in dispute that the respondent was compulsorily retired on attaining the age of superannuation. The question, therefore, which arises for consideration is whether he was suffering, on retirement, from a disability attributable to or aggravated by military service and recorded by service medical authority. We have already referred to the opinion of the Medical Board which found that the two disabilities from which the respondent was suffering were not attributable to or aggravated by military service. Clearly therefore, the opinion of the Medical Board ruled out the applicability of Regulation 53 to the case of the respondent. The diseases from which he was suffering were not found to be attributable to or aggravated by military service, and were in the nature of constitutional diseases. Such being the opinion of the Medical Board, in our view the respondent can derive no benefit from Regulation 53. The opinion of the Medical Board has not been assailed in this proceeding and, therefore, must be accepted." | 1[ds]10. In Union of India and Anr. v. Baljit Singh (1996 (11) SCC 315 ) this Court had taken note of Rule 173 of the Pension Regulations. It was observed that where the Medical Board found that there was absence of proof of the injury/illness having been sustained due to military service or being attributable thereto, the High Courts direction to the Government to pay disability pension was not correct.The position was again re-iterated in Union of India and Ors. v. Dhir Singh China, Colonel (Retd.) (2003(2) SCCwas inter alia observed asis seen that various criteria have been prescribed in the guidelines under the Rules as to when the disease or injury is attributable to the military service. It is seen that under Rule 173 disability pension would be computed only when disability has occurred due to wound, injury or disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated during the military service. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension. This is made ample clear from clause (a) to (d) of para 7 which contemplates that in respect of a disease the Rules enumerated thereunder required to be observed. Clause (c) provides that if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. Unless these conditions satisfied, it cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of Doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In each case, when a disability pension is sought for made a claim, it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service".That leaves for consideration Regulation 53. The said Regulation provides that on an officer being compulsorily retired on account of age or on completion of tenure, if suffering on retirement from a disability attributable to or aggravated by military service and recorded by service medical authority, he may be granted, in addition to retiring pension, a disability element as if he had been retired on account of disability. It is not in dispute that the respondent was compulsorily retired on attaining the age of superannuation. The question, therefore, which arises for consideration is whether he was suffering, on retirement, from a disability attributable to or aggravated by military service and recorded by service medical authority. We have already referred to the opinion of the Medical Board which found that the two disabilities from which the respondent was suffering were not attributable to or aggravated by military service. Clearly therefore, the opinion of the Medical Board ruled out the applicability of Regulation 53 to the case of the respondent. The diseases from which he was suffering were not found to be attributable to or aggravated by military service, and were in the nature of constitutional diseases. Such being the opinion of the Medical Board, in our view the respondent can derive no benefit from Regulation 53. The opinion of the Medical Board has not been assailed in this proceeding and, therefore, must be accepted." | 1 | 2,734 | 664 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease. Cases, in which it is established that service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. A disease which has led to an individuals discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of the individuals acceptance for service in the armed forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. (d) The question, whether a disability or death is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a medical board or by the medical officer who signs the death certificate. The medical board/medical officer will specify reasons for their/his opinion. The opinion of the medical board/medical officer, in so far as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regarded as final. The question whether the cause and the attendant circumstances can be attributed to service will, however, be decided by the pension sanctioning authority. (e) To assist the medical officer who signs the death certificate or the medical board in the case of an invalid, the C.O. unit will furnish a report on:- (i) AFMS F-81 in all cases other than those due to injuries. (i) IAFY-2006 in all cases of injuries other than battle injuries. (f) In cases where award of disability pension or reassessment of disabilities is concerned, a medical board is always necessary and the certificate of a single medical officer will not be accepted except in case of stations where it s not possible or feasible to assemble a regular medical board for such purposes. The certificate of a single medical officer in the latter case will be furnished on a medical board form and countersigned by the ADMS (Army)/DMS (Navy)/DMS (Air). 10. In Union of India and Anr. v. Baljit Singh (1996 (11) SCC 315 ) this Court had taken note of Rule 173 of the Pension Regulations. It was observed that where the Medical Board found that there was absence of proof of the injury/illness having been sustained due to military service or being attributable thereto, the High Courts direction to the Government to pay disability pension was not correct. It was inter alia observed as follows: "6......It is seen that various criteria have been prescribed in the guidelines under the Rules as to when the disease or injury is attributable to the military service. It is seen that under Rule 173 disability pension would be computed only when disability has occurred due to wound, injury or disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated during the military service. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension. This is made ample clear from clause (a) to (d) of para 7 which contemplates that in respect of a disease the Rules enumerated thereunder required to be observed. Clause (c) provides that if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. Unless these conditions satisfied, it cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of Doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In each case, when a disability pension is sought for made a claim, it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service". 11. The position was again re-iterated in Union of India and Ors. v. Dhir Singh China, Colonel (Retd.) (2003(2) SCC 382). In para 7 it was observed as follows: "7. That leaves for consideration Regulation 53. The said Regulation provides that on an officer being compulsorily retired on account of age or on completion of tenure, if suffering on retirement from a disability attributable to or aggravated by military service and recorded by service medical authority, he may be granted, in addition to retiring pension, a disability element as if he had been retired on account of disability. It is not in dispute that the respondent was compulsorily retired on attaining the age of superannuation. The question, therefore, which arises for consideration is whether he was suffering, on retirement, from a disability attributable to or aggravated by military service and recorded by service medical authority. We have already referred to the opinion of the Medical Board which found that the two disabilities from which the respondent was suffering were not attributable to or aggravated by military service. Clearly therefore, the opinion of the Medical Board ruled out the applicability of Regulation 53 to the case of the respondent. The diseases from which he was suffering were not found to be attributable to or aggravated by military service, and were in the nature of constitutional diseases. Such being the opinion of the Medical Board, in our view the respondent can derive no benefit from Regulation 53. The opinion of the Medical Board has not been assailed in this proceeding and, therefore, must be accepted."
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### Explanation:
10. In Union of India and Anr. v. Baljit Singh (1996 (11) SCC 315 ) this Court had taken note of Rule 173 of the Pension Regulations. It was observed that where the Medical Board found that there was absence of proof of the injury/illness having been sustained due to military service or being attributable thereto, the High Courts direction to the Government to pay disability pension was not correct.The position was again re-iterated in Union of India and Ors. v. Dhir Singh China, Colonel (Retd.) (2003(2) SCCwas inter alia observed asis seen that various criteria have been prescribed in the guidelines under the Rules as to when the disease or injury is attributable to the military service. It is seen that under Rule 173 disability pension would be computed only when disability has occurred due to wound, injury or disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated during the military service. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension. This is made ample clear from clause (a) to (d) of para 7 which contemplates that in respect of a disease the Rules enumerated thereunder required to be observed. Clause (c) provides that if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. Unless these conditions satisfied, it cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of Doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In each case, when a disability pension is sought for made a claim, it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service".That leaves for consideration Regulation 53. The said Regulation provides that on an officer being compulsorily retired on account of age or on completion of tenure, if suffering on retirement from a disability attributable to or aggravated by military service and recorded by service medical authority, he may be granted, in addition to retiring pension, a disability element as if he had been retired on account of disability. It is not in dispute that the respondent was compulsorily retired on attaining the age of superannuation. The question, therefore, which arises for consideration is whether he was suffering, on retirement, from a disability attributable to or aggravated by military service and recorded by service medical authority. We have already referred to the opinion of the Medical Board which found that the two disabilities from which the respondent was suffering were not attributable to or aggravated by military service. Clearly therefore, the opinion of the Medical Board ruled out the applicability of Regulation 53 to the case of the respondent. The diseases from which he was suffering were not found to be attributable to or aggravated by military service, and were in the nature of constitutional diseases. Such being the opinion of the Medical Board, in our view the respondent can derive no benefit from Regulation 53. The opinion of the Medical Board has not been assailed in this proceeding and, therefore, must be accepted."
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S.N. Pallegar Vs. State of Mysore | the Governor on 25th March, 1959 under Art. 309 of the Constitution validated the action of retiring Padmanabhacharya and certain other officers on their attaining the age of 55 years. The High Court rejected both these two contentions and allowed the petition. On appeal, this Court held with regard to the first contention that under Rule 294 (a) as it was before 29th April 1955, the normal age of retirement was 55 years for all including trained teachers but it gave discretion to the Government to extend the service of efficient of 55 years. The position, however, was changed in regard to trained teachers as a result of the addition of Note 4 to Rule 294 (a) which entitled them to continue in service till the age of 58 years unless the Government came to the conclusion that they did not have a good record of service and were not upto the mark. The net effect of this decision was that apart from trained teachers, the normal age of superannuation was 55 years unless Government decided to extend it upto 58 years on the ground of fitness. 5. This Court was called upon to construe the effect of Article 305 of the Seventh Edition of the Mysore Services Regulations in Civil Appeal Nos. 476 to 478 of 1969, D/- 15-7-1969 (SC). In that case Sadasiva Murthy was a "superior service" employee of the Mysore State Railways. After the merger of the State of Mysore with the Indian Union he became an employee of the Indian Railway Administration. On 5th January 1969 he received an order compulsorily retiring him from service. Sadasiva Murthy moved a writ petition in the High Court of Mysore in which he asked for a declaration that the Indian Railway Administration was bound to continue him in service till he attained the age of 60 years. His contention was upheld by the High Court and the order of compulsory retirement was quashed. Upon an appeal from that decision this Court confirmed the decision of the High Court. The appellant before us strongly relied on this latest decision of this Court. 6. Before the High Court an attempt was made on behalf of the State to explain the difference between the latest decision of this Court and the two earlier decisions by pointing out that Article 305 of the Seventh Edition contained a ruling of the Government which indicated that Article 305 and Article 428 should be read together. It was contended that Art. 428 suggests that an officer in the superior service could be retired before reaching 60 years only on the ground of inefficiency. The argument was that this Clause (c) which attracts the operation of Article 428 was omitted in the Eighth Edition and Article 294 of that Edition standing by itself indicated 55 years to be the age of superannuation. 7. In our opinion, it is not necessary for us to examine the question whether Art. 428 of the Seventh Edition which is essentially a rule regarding pension supports the contention that the normal age of superannuation is 60 years. 8. So far as the instant case is concerned, we consider the two earlier decisions to be more apposite for two reasons. First, it appears from the judgment of the High Court of Mysore that it was a common ground of the parties to the instant case that the conditions of service governing the services of the appellant are those contained in the Eighth Edition. Since in the two earlier decisions it was the rule of the Eighth Edition which was construed those are the decisions with which we are concerned directly in the instant case. Secondly, the decision in the latest case may be supported on an entirely different ground. Rule 2046 of the Indian Railway Fundamental Rules as amended on 11 January 1967 provided, inter alia, that if a ministerial railway servant, who entered Government service on or before 31 March 1938 and held on that date (i) a lien or a suspended lien on a permanent post, or (ii) a permanent post in a provisional substantive capacity and continued to hold the same without interruption until he was confirmed in that post, he was to be retained in service till he attains the age of 60 years. This rule was modified on 23rd December 1967 so that the expression "Government service" in that rule included service rendered in a former provincial Government and in ex-Company and ex-State Railway, if the rules of the Company or of the State had a similar / provision. In the facts of the case of Sadasiva Murthy, he, it appears, completely answered the description of a ministerial railway servant given in Rule 2047. Therefore he could claim 60 years to be his age of retirement. From that point of view the judgment in Sadasiva Murthys case, Civil Appeal Nos. 476 to 478 at 1969, D/- 15-7-1969 (SC) is unexceptionable. One facts, however, that case is entirely distinguishable from the facts of the present case in which the petitioner-appellant is not a Railway Officer and does not, therefore, claim the benefit of Rule 2046 of the Indian Railway Fundamental Rules. 9. Apart from the considerations we have just mentioned, in our opinion Art. 294 does not leave any room for doubt on this point. The discretion to retire an officer whether of the superior service or of the inferior service at 55 years has been given in clear unmistakable language to Government. All officers attaining that age "may be required to retire." It is clear that the officers themselves have no option in the matter. If Government decides to retire them, they must go out. At the same time, however, the Government has been given the discretion to retain them in service if the Government considers them to be fit and efficient. There is nothing in the language of Art. 294 which makes it incumbent on Government to give this extension after the age of 55 years. | 0[ds]6. Before the High Court an attempt was made on behalf of the State to explain the difference between the latest decision of this Court and the two earlier decisions by pointing out that Article 305 of the Seventh Edition contained a ruling of the Government which indicated that Article 305 and Article 428 should be read together. It was contended that Art. 428 suggests that an officer in the superior service could be retired before reaching 60 years only on the ground of inefficiency. The argument was that this Clause (c) which attracts the operation of Article 428 was omitted in the Eighth Edition and Article 294 of that Edition standing by itself indicated 55 years to be the age of superannuation7. In our opinion, it is not necessary for us to examine the question whether Art. 428 of the Seventh Edition which is essentially a rule regarding pension supports the contention that the normal age of superannuation is 60 years8. So far as the instant case is concerned, we consider the two earlier decisions to be more apposite for two reasons. First, it appears from the judgment of the High Court of Mysore that it was a common ground of the parties to the instant case that the conditions of service governing the services of the appellant are those contained in the Eighth Edition. Since in the two earlier decisions it was the rule of the Eighth Edition which was construed those are the decisions with which we are concerned directly in the instant case. Secondly, the decision in the latest case may be supported on an entirely different ground. Rule 2046 of the Indian Railway Fundamental Rules as amended on 11 January 1967 provided, inter alia, that if a ministerial railway servant, who entered Government service on or before 31 March 1938 and held on that date (i) a lien or a suspended lien on a permanent post, or (ii) a permanent post in a provisional substantive capacity and continued to hold the same without interruption until he was confirmed in that post, he was to be retained in service till he attains the age of 60 years. This rule was modified on 23rd December 1967 so that the expression "Government service" in that rule included service rendered in a former provincial Government and iny ande Railway, if the rules of the Company or of the State had a similar / provision. In the facts of the case of Sadasiva Murthy, he, it appears, completely answered the description of a ministerial railway servant given in Rule 2047. Therefore he could claim 60 years to be his age of retirement. From that point of view the judgment in Sadasiva Murthys case, Civil Appeal Nos. 476 to 478 at 1969, D/9 (SC) is unexceptionable. One facts, however, that case is entirely distinguishable from the facts of the present case in which thet is not a Railway Officer and does not, therefore, claim the benefit of Rule 2046 of the Indian Railway Fundamental Rules9. Apart from the considerations we have just mentioned, in our opinion Art. 294 does not leave any room for doubt on this point. The discretion to retire an officer whether of the superior service or of the inferior service at 55 years has been given in clear unmistakable language to Government. All officers attaining that age "may be required to retire." It is clear that the officers themselves have no option in the matter. If Government decides to retire them, they must go out. At the same time, however, the Government has been given the discretion to retain them in service if the Government considers them to be fit and efficient. There is nothing in the language of Art. 294 which makes it incumbent on Government to give this extension after the age of 55 years. | 0 | 2,735 | 706 | ### Instruction:
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the Governor on 25th March, 1959 under Art. 309 of the Constitution validated the action of retiring Padmanabhacharya and certain other officers on their attaining the age of 55 years. The High Court rejected both these two contentions and allowed the petition. On appeal, this Court held with regard to the first contention that under Rule 294 (a) as it was before 29th April 1955, the normal age of retirement was 55 years for all including trained teachers but it gave discretion to the Government to extend the service of efficient of 55 years. The position, however, was changed in regard to trained teachers as a result of the addition of Note 4 to Rule 294 (a) which entitled them to continue in service till the age of 58 years unless the Government came to the conclusion that they did not have a good record of service and were not upto the mark. The net effect of this decision was that apart from trained teachers, the normal age of superannuation was 55 years unless Government decided to extend it upto 58 years on the ground of fitness. 5. This Court was called upon to construe the effect of Article 305 of the Seventh Edition of the Mysore Services Regulations in Civil Appeal Nos. 476 to 478 of 1969, D/- 15-7-1969 (SC). In that case Sadasiva Murthy was a "superior service" employee of the Mysore State Railways. After the merger of the State of Mysore with the Indian Union he became an employee of the Indian Railway Administration. On 5th January 1969 he received an order compulsorily retiring him from service. Sadasiva Murthy moved a writ petition in the High Court of Mysore in which he asked for a declaration that the Indian Railway Administration was bound to continue him in service till he attained the age of 60 years. His contention was upheld by the High Court and the order of compulsory retirement was quashed. Upon an appeal from that decision this Court confirmed the decision of the High Court. The appellant before us strongly relied on this latest decision of this Court. 6. Before the High Court an attempt was made on behalf of the State to explain the difference between the latest decision of this Court and the two earlier decisions by pointing out that Article 305 of the Seventh Edition contained a ruling of the Government which indicated that Article 305 and Article 428 should be read together. It was contended that Art. 428 suggests that an officer in the superior service could be retired before reaching 60 years only on the ground of inefficiency. The argument was that this Clause (c) which attracts the operation of Article 428 was omitted in the Eighth Edition and Article 294 of that Edition standing by itself indicated 55 years to be the age of superannuation. 7. In our opinion, it is not necessary for us to examine the question whether Art. 428 of the Seventh Edition which is essentially a rule regarding pension supports the contention that the normal age of superannuation is 60 years. 8. So far as the instant case is concerned, we consider the two earlier decisions to be more apposite for two reasons. First, it appears from the judgment of the High Court of Mysore that it was a common ground of the parties to the instant case that the conditions of service governing the services of the appellant are those contained in the Eighth Edition. Since in the two earlier decisions it was the rule of the Eighth Edition which was construed those are the decisions with which we are concerned directly in the instant case. Secondly, the decision in the latest case may be supported on an entirely different ground. Rule 2046 of the Indian Railway Fundamental Rules as amended on 11 January 1967 provided, inter alia, that if a ministerial railway servant, who entered Government service on or before 31 March 1938 and held on that date (i) a lien or a suspended lien on a permanent post, or (ii) a permanent post in a provisional substantive capacity and continued to hold the same without interruption until he was confirmed in that post, he was to be retained in service till he attains the age of 60 years. This rule was modified on 23rd December 1967 so that the expression "Government service" in that rule included service rendered in a former provincial Government and in ex-Company and ex-State Railway, if the rules of the Company or of the State had a similar / provision. In the facts of the case of Sadasiva Murthy, he, it appears, completely answered the description of a ministerial railway servant given in Rule 2047. Therefore he could claim 60 years to be his age of retirement. From that point of view the judgment in Sadasiva Murthys case, Civil Appeal Nos. 476 to 478 at 1969, D/- 15-7-1969 (SC) is unexceptionable. One facts, however, that case is entirely distinguishable from the facts of the present case in which the petitioner-appellant is not a Railway Officer and does not, therefore, claim the benefit of Rule 2046 of the Indian Railway Fundamental Rules. 9. Apart from the considerations we have just mentioned, in our opinion Art. 294 does not leave any room for doubt on this point. The discretion to retire an officer whether of the superior service or of the inferior service at 55 years has been given in clear unmistakable language to Government. All officers attaining that age "may be required to retire." It is clear that the officers themselves have no option in the matter. If Government decides to retire them, they must go out. At the same time, however, the Government has been given the discretion to retain them in service if the Government considers them to be fit and efficient. There is nothing in the language of Art. 294 which makes it incumbent on Government to give this extension after the age of 55 years.
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6. Before the High Court an attempt was made on behalf of the State to explain the difference between the latest decision of this Court and the two earlier decisions by pointing out that Article 305 of the Seventh Edition contained a ruling of the Government which indicated that Article 305 and Article 428 should be read together. It was contended that Art. 428 suggests that an officer in the superior service could be retired before reaching 60 years only on the ground of inefficiency. The argument was that this Clause (c) which attracts the operation of Article 428 was omitted in the Eighth Edition and Article 294 of that Edition standing by itself indicated 55 years to be the age of superannuation7. In our opinion, it is not necessary for us to examine the question whether Art. 428 of the Seventh Edition which is essentially a rule regarding pension supports the contention that the normal age of superannuation is 60 years8. So far as the instant case is concerned, we consider the two earlier decisions to be more apposite for two reasons. First, it appears from the judgment of the High Court of Mysore that it was a common ground of the parties to the instant case that the conditions of service governing the services of the appellant are those contained in the Eighth Edition. Since in the two earlier decisions it was the rule of the Eighth Edition which was construed those are the decisions with which we are concerned directly in the instant case. Secondly, the decision in the latest case may be supported on an entirely different ground. Rule 2046 of the Indian Railway Fundamental Rules as amended on 11 January 1967 provided, inter alia, that if a ministerial railway servant, who entered Government service on or before 31 March 1938 and held on that date (i) a lien or a suspended lien on a permanent post, or (ii) a permanent post in a provisional substantive capacity and continued to hold the same without interruption until he was confirmed in that post, he was to be retained in service till he attains the age of 60 years. This rule was modified on 23rd December 1967 so that the expression "Government service" in that rule included service rendered in a former provincial Government and iny ande Railway, if the rules of the Company or of the State had a similar / provision. In the facts of the case of Sadasiva Murthy, he, it appears, completely answered the description of a ministerial railway servant given in Rule 2047. Therefore he could claim 60 years to be his age of retirement. From that point of view the judgment in Sadasiva Murthys case, Civil Appeal Nos. 476 to 478 at 1969, D/9 (SC) is unexceptionable. One facts, however, that case is entirely distinguishable from the facts of the present case in which thet is not a Railway Officer and does not, therefore, claim the benefit of Rule 2046 of the Indian Railway Fundamental Rules9. Apart from the considerations we have just mentioned, in our opinion Art. 294 does not leave any room for doubt on this point. The discretion to retire an officer whether of the superior service or of the inferior service at 55 years has been given in clear unmistakable language to Government. All officers attaining that age "may be required to retire." It is clear that the officers themselves have no option in the matter. If Government decides to retire them, they must go out. At the same time, however, the Government has been given the discretion to retain them in service if the Government considers them to be fit and efficient. There is nothing in the language of Art. 294 which makes it incumbent on Government to give this extension after the age of 55 years.
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Management of Rajendra Mills Limited Vs. Their Workmen | Das Gupta, J.1. Two common points arising for consideration in these three appeals by employers against the order of the Labour Appellate Tribunal of India directing payment of bonus are :- (1) whether the appellate Tribunal was justified in disallowing any amount on account of rehabilitation costs in the calculation of the available surplus and (2) even assuming the available surplus to have been correctly determined by the Appellate Tribunal whether the distribution thereof was fair. In all these three cases the Industrial Tribunal had allowed considerable sums on account of rehabilitation costs in consequence of the deduction of which as prior charges no available surplus remained for distribution of any further amount as bonus. The Appellate Tribunal being of opinion that a claim for rehabilitation costs has to be established by proper evidence as regards the several factors which enter into the computation of such costs held that as the employer in each of these cases had failed to adduce evidence on the point nothing could be allowed on account of rehabilitation costs in addition to what was already deductible as depreciation charges.The position in law is now well settled by a series of decisions of this Court that the burden of proving what amount, if any, should be allowed as rehabilitation costs is on the employer and this burden has to be discharged by adducing proper evidence and giving the other party an opportunity to test the correctness of the evidence by cross-examination. Admittedly that was not done in any of these cases. The mere fact that certain balance-sheets were placed on the record is of no assistance to the employer in discharging the burden.We must hold therefore that the Appellate Tribunal was right in its view that in the absence of proper evidence the claim for any deduction on account of rehabilitation costs must be rejected.2. This brings us to the question of distribution of the available surplus. On this matter it is necessary to consider the three appeals separately.Civil Appeal No. 294 of 1958 :3. In Appeal No. 294 of 1958 which is by the management of Jawahar Mills Ltd., the amount that remained available for distribution was admittedly Rs. 1,10,573; out of this a sum of Rs. 64,901 inclusive of the amount voluntarily paid goes to the share of workmen as a result of the Labour Appellate Tribunals award. This leaves to the employer a sum of Rs. 45,672 and on adding the amount available on income-tax rebate in respect of the bonus paid i.e. a sum of Rs. 28,394, the managements share for the shareholders as well as the industry comes to Rs. 74,066. On behalf of the appellant it is contended that the Company carries a considerable debenture loan in respect of which a sum of Rs. 40,000 was provided for, in the debenture redemption fund. It is rightly urged that the fact that provision has to be made for redeeming the debenture should properly be taken into account when distributing the available surplus between workmen and management. The Labour Appellate Tribunal has taken no account of this fact.4. We find, however, that the case that the requirement for provision for redemption of debentures should be taken into consideration while distributing the available surplus was not made on behalf of the appellant in the statement of case filed in this Court nor does any such case appear to have been made before the Appellate Tribunal. The appellant cannot therefore be allowed to make any such case before us now.5. If this is left out there remains no ground for saying that the distribution of the available surplus has been unduly favourable to workmen. It has to be mentioned that Shri Viswanatha Sastri also wanted to argue that the amount of Rs. 5,045-5-9 shown in the profit and loss account as receipts of profit on sale of motor vehicles and another sum of Rs. 3,952-1-0 received as rent should be left out of account in the distribution of bonus on the ground that the workmen did not contribute to the earning of these receipts. As no such case had, however, been made at any stage on behalf of the appellant before the learned counsel raised it in this Court we have refused to hear him on this point. | 0[ds]The position in law is now well settled by a series of decisions of this Court that the burden of proving what amount, if any, should be allowed as rehabilitation costs is on the employer and this burden has to be discharged by adducing proper evidence and giving the other party an opportunity to test the correctness of the evidence byAdmittedly that was not done in any of these cases. The mere fact that certainwere placed on the record is of no assistance to the employer in discharging the burden.We must hold therefore that the Appellate Tribunal was right in its view that in the absence of proper evidence the claim for any deduction on account of rehabilitation costs must bebehalf of the appellant it is contended that the Company carries a considerable debenture loan in respect of which a sum of Rs. 40,000 was provided for, in the debenture redemptionfund. It is rightly urged that the fact that provision has to be made for redeeming the debenture should properly be taken into account when distributing the available surplus between workmen and management. The Labour Appellate Tribunal has taken no account of this fact.4. We find, however, that the case that the requirement for provision for redemption of debentures should be taken into consideration while distributing the available surplus was not made on behalf of the appellant in the statement of case filed in this Court nor does any such case appear to have been made before the Appellate Tribunal. The appellant cannot therefore be allowed to make any such case before us now.5. If this is left out there remains no ground for saying that the distribution of the available surplus has been unduly favourable to workmen. It has to be mentioned that Shri Viswanatha Sastri also wanted to argue that the amount of Rs.shown in the profit and loss account as receipts of profit on sale of motor vehicles and another sum of Rs.received as rent should be left out of account in the distribution of bonus on the ground that the workmen did not contribute to the earning of these receipts. As no such case had, however, been made at any stage on behalf of the appellant before the learned counsel raised it in this Court we have refused to hear him on thismay be some force in the contention that where the employer has of his own acted liberally whether out of generosity or out of anxiety for a contended labour force industrial adjudicators should hesitate to do anything that might unnecessarily disturb such contentment. At the same time the Tribunal cannot omit to consider along with its consideration of the employers conduct other factors such as the ordinarily low wage structure and when a Tribunal whose decision is under appeal before us has in its discretion allowed something in addition to what was voluntarily paid this Court will not lightly interfere.In the present case, however, it seems to us on a consideration of all the circumstances that the interests of justice require some modification of the Appellate Tribunals award. While no inflexible rule can possibly be laid down as regards the proportion of distribution of the available surplus, a workable rule, where the surplus is not considerable, very often is that when no other evidence as regards the relevant factors is available the distribution should be such as to leave to the employer and the industry on the one hand and the workmen on the other approximately equal benefits.9. The distribution by the Appellate Tribunal cannot be said to have achieved this result even approximately. Though we should be slow to interfere with the distribution made by the Tribunals below in their discretion, if some indication could be had of what guided their exercise of such discretion, we cannot in the present case where no such indication is available ignore the apparent disparity in the distribution. It appears that if instead of 8 1/3% additional bonus granted by the Appellate Tribunal the workmen are granted an additional bonus of 2 1/2% of the yearly basic wages the total amount that will be received by workmen as bonus would stand at Rs. 39,930 while the management will get approximately a sum of Rs. 37,568 inclusive of the amount receivable asrebate. This will be a fairno evidence of any facts that may be relevant on the question of distribution of the surplus is available we think that here also a distribution which will secure approximately equal benefits to employer and workmen should be made.12. We find that if a sum equivalent to three months basic wages is given as bonus to the workmen the workmen will benefit to the extent of Rs. 60,000 while the management will get a sum of Rs. 632,312 inclusive of the rebate onin respect of bonus paid. In our opinion, this will be a fair distribution of the surplus. | 0 | 760 | 864 | ### Instruction:
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Das Gupta, J.1. Two common points arising for consideration in these three appeals by employers against the order of the Labour Appellate Tribunal of India directing payment of bonus are :- (1) whether the appellate Tribunal was justified in disallowing any amount on account of rehabilitation costs in the calculation of the available surplus and (2) even assuming the available surplus to have been correctly determined by the Appellate Tribunal whether the distribution thereof was fair. In all these three cases the Industrial Tribunal had allowed considerable sums on account of rehabilitation costs in consequence of the deduction of which as prior charges no available surplus remained for distribution of any further amount as bonus. The Appellate Tribunal being of opinion that a claim for rehabilitation costs has to be established by proper evidence as regards the several factors which enter into the computation of such costs held that as the employer in each of these cases had failed to adduce evidence on the point nothing could be allowed on account of rehabilitation costs in addition to what was already deductible as depreciation charges.The position in law is now well settled by a series of decisions of this Court that the burden of proving what amount, if any, should be allowed as rehabilitation costs is on the employer and this burden has to be discharged by adducing proper evidence and giving the other party an opportunity to test the correctness of the evidence by cross-examination. Admittedly that was not done in any of these cases. The mere fact that certain balance-sheets were placed on the record is of no assistance to the employer in discharging the burden.We must hold therefore that the Appellate Tribunal was right in its view that in the absence of proper evidence the claim for any deduction on account of rehabilitation costs must be rejected.2. This brings us to the question of distribution of the available surplus. On this matter it is necessary to consider the three appeals separately.Civil Appeal No. 294 of 1958 :3. In Appeal No. 294 of 1958 which is by the management of Jawahar Mills Ltd., the amount that remained available for distribution was admittedly Rs. 1,10,573; out of this a sum of Rs. 64,901 inclusive of the amount voluntarily paid goes to the share of workmen as a result of the Labour Appellate Tribunals award. This leaves to the employer a sum of Rs. 45,672 and on adding the amount available on income-tax rebate in respect of the bonus paid i.e. a sum of Rs. 28,394, the managements share for the shareholders as well as the industry comes to Rs. 74,066. On behalf of the appellant it is contended that the Company carries a considerable debenture loan in respect of which a sum of Rs. 40,000 was provided for, in the debenture redemption fund. It is rightly urged that the fact that provision has to be made for redeeming the debenture should properly be taken into account when distributing the available surplus between workmen and management. The Labour Appellate Tribunal has taken no account of this fact.4. We find, however, that the case that the requirement for provision for redemption of debentures should be taken into consideration while distributing the available surplus was not made on behalf of the appellant in the statement of case filed in this Court nor does any such case appear to have been made before the Appellate Tribunal. The appellant cannot therefore be allowed to make any such case before us now.5. If this is left out there remains no ground for saying that the distribution of the available surplus has been unduly favourable to workmen. It has to be mentioned that Shri Viswanatha Sastri also wanted to argue that the amount of Rs. 5,045-5-9 shown in the profit and loss account as receipts of profit on sale of motor vehicles and another sum of Rs. 3,952-1-0 received as rent should be left out of account in the distribution of bonus on the ground that the workmen did not contribute to the earning of these receipts. As no such case had, however, been made at any stage on behalf of the appellant before the learned counsel raised it in this Court we have refused to hear him on this point.
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The position in law is now well settled by a series of decisions of this Court that the burden of proving what amount, if any, should be allowed as rehabilitation costs is on the employer and this burden has to be discharged by adducing proper evidence and giving the other party an opportunity to test the correctness of the evidence byAdmittedly that was not done in any of these cases. The mere fact that certainwere placed on the record is of no assistance to the employer in discharging the burden.We must hold therefore that the Appellate Tribunal was right in its view that in the absence of proper evidence the claim for any deduction on account of rehabilitation costs must bebehalf of the appellant it is contended that the Company carries a considerable debenture loan in respect of which a sum of Rs. 40,000 was provided for, in the debenture redemptionfund. It is rightly urged that the fact that provision has to be made for redeeming the debenture should properly be taken into account when distributing the available surplus between workmen and management. The Labour Appellate Tribunal has taken no account of this fact.4. We find, however, that the case that the requirement for provision for redemption of debentures should be taken into consideration while distributing the available surplus was not made on behalf of the appellant in the statement of case filed in this Court nor does any such case appear to have been made before the Appellate Tribunal. The appellant cannot therefore be allowed to make any such case before us now.5. If this is left out there remains no ground for saying that the distribution of the available surplus has been unduly favourable to workmen. It has to be mentioned that Shri Viswanatha Sastri also wanted to argue that the amount of Rs.shown in the profit and loss account as receipts of profit on sale of motor vehicles and another sum of Rs.received as rent should be left out of account in the distribution of bonus on the ground that the workmen did not contribute to the earning of these receipts. As no such case had, however, been made at any stage on behalf of the appellant before the learned counsel raised it in this Court we have refused to hear him on thismay be some force in the contention that where the employer has of his own acted liberally whether out of generosity or out of anxiety for a contended labour force industrial adjudicators should hesitate to do anything that might unnecessarily disturb such contentment. At the same time the Tribunal cannot omit to consider along with its consideration of the employers conduct other factors such as the ordinarily low wage structure and when a Tribunal whose decision is under appeal before us has in its discretion allowed something in addition to what was voluntarily paid this Court will not lightly interfere.In the present case, however, it seems to us on a consideration of all the circumstances that the interests of justice require some modification of the Appellate Tribunals award. While no inflexible rule can possibly be laid down as regards the proportion of distribution of the available surplus, a workable rule, where the surplus is not considerable, very often is that when no other evidence as regards the relevant factors is available the distribution should be such as to leave to the employer and the industry on the one hand and the workmen on the other approximately equal benefits.9. The distribution by the Appellate Tribunal cannot be said to have achieved this result even approximately. Though we should be slow to interfere with the distribution made by the Tribunals below in their discretion, if some indication could be had of what guided their exercise of such discretion, we cannot in the present case where no such indication is available ignore the apparent disparity in the distribution. It appears that if instead of 8 1/3% additional bonus granted by the Appellate Tribunal the workmen are granted an additional bonus of 2 1/2% of the yearly basic wages the total amount that will be received by workmen as bonus would stand at Rs. 39,930 while the management will get approximately a sum of Rs. 37,568 inclusive of the amount receivable asrebate. This will be a fairno evidence of any facts that may be relevant on the question of distribution of the surplus is available we think that here also a distribution which will secure approximately equal benefits to employer and workmen should be made.12. We find that if a sum equivalent to three months basic wages is given as bonus to the workmen the workmen will benefit to the extent of Rs. 60,000 while the management will get a sum of Rs. 632,312 inclusive of the rebate onin respect of bonus paid. In our opinion, this will be a fair distribution of the surplus.
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Oriental Insurance Company Limited Vs. Santosh Satish Kumar Garg & Others | risk of the occupants in the jeep other than the driver.We have perused the policy at Exh. 67 and we have noted that in addition to the third party risk, there was extra premium paid of Rs. 150 so as to cover the passengers/occupants in the vehicle and in addition there was a separate premium amount paid for coverage of the driver. From the record it is clear that the insurance policy covered the third party liabilities as well as all the occupants, i.e., 1+5 in the said jeep. Opponent No. 2s witness No. 1, therefore, was right in stating that the insurance policy was covering the risk of occupants. The decision in the case of Meena Variyal, 2007 ACJ 1284 (SC), relied upon by Mrs. Agarwal clearly states that the object of Chapter XI of the Act has always been recognised as one intended to protect third parties as understood in the context of the Act, unless, of course, there is a special contract in respect of protection to others. In the instant case the insurance policy at Exh. 67 contains a special contract in respect of protection to all the occupants, i.e., driver as well as five occupants and, therefore, it cannot be said that the claim for compensation was not maintainable on account of the proviso below Section 147(1) of the Act.9. Issue No. 5 framed by the Claims Tribunal had cast the burden on the present appellant to prove that the risk of the deceased was not indemnified. No witness was examined by the insurer despite taking a plea that the deceased was not indemnified. It was imperative for the insurer to prove by examining one of its managers/officers as to how the insurance policy at Exh. 67 did not create a special contract so as to cover all the occupants of the jeep and further to show that the risk of the deceased was not indemnified. It was held in the case of National Insurance Co. Ltd. v. Swaran Singh, I (2004) ACC 1 (SC)=I (2004) SLT 345=109 (2004) DLT 304 (SC)=2004 ACJ 1 (SC), that the Insurance Company to avoid liability, must not only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the Insurance Company. Whether such a burden had been discharged, would depend upon the facts and circumstances of each case. Even when the insurer is able to prove breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident.It is, therefore, clear that the Insurance Company was required to prove in the instant case that the insurance policy at Exh. 67 did not indemnify the risk of the deceased or any one other than the driver. It is not the case of the Insurance Company that the deceased himself was driving the vehicle and, therefore, in the peculiar facts of this case the law laid down in the case of Meena Variyal, 2007 ACJ 1284 (SC), for denying compensation to the claimants of the deceased in that case would not be applicable in the present case. It is also not the case of the Insurance Company that deceased was a gratuitous passenger. It ought to be noted that the owner of the jeep was the company and obviously it would be used by its employees/officers. It was not a passenger vehicle as such like any other private jeep. The company had, therefore, taken enough precautions to ensure that the liability/risk in respect of the occupants was covered by a special contract by paying extra premium over and above required to be paid for covering the third party risk. The vehicle was insured as a company car and it was obviously allowed to carry occupants. It is fairly admitted across the Bar by the insurer that if there is additional premium amount paid so as to cover risks of the occupants of the private vehicle, other than the driver, the risk in respect of such passengers/occupants could be duly indemnified and the owners liability to pay compensation is required to be borne by the Insurance Company. The facts of this case are not similar to the facts in Meena Variyals case (supra), and hence that said decision does not apply.The evidence of witness No. 1 clearly goes to show that deceased was using the vehicle for the companys work (owner) and it was not being used for his personal work. Even otherwise, the risk for 1+5 occupants was covered by paying extra premium as is evident from the insurance policy at Exh. 67. Unless the Insurance Company had examined any of its officers to prove to the contrary, it cannot be held that the Tribunal committed any error in awarding compensation to the claimants.10. The impugned award has not been challenged on any other ground by the learned Counsel for the appellant. Even for calculating the compensation the Tribunal had taken into consideration that the deceased was 48 years of age. He left behind his widow and two minor children who were studying and deceased was the only bread earner. The retirement age was 58 years. The multiplier was fixed at 14 and there is no challenge to the monthly income assessed or to the multiplier fixed. It cannot be denied that the deceased would have achieved further promotions and he would have retired at the age of 58 in a higher position. He was a technically qualified person and the retirement at the age of 58 or 60 by itself would not put an end to his earning capacity and his prospects for acting as a consultant in post-retirement period could not be ruled out till the age of 70 years or so. | 0[ds]7. We have given our anxious considerations to the arguments advanced by Mrs. Agarwal and we are not impressed by the same. We set out our reasons in the following paras.8. C.V. Alexander was the witness examined by the claimants and he was the Secretary of theat the relevant time. Deceased was holding the post of Works Manager at Mahad which was one of the two factories of the company and the second factory was located at Belapur. He stated that jeep bearing registration No. MGR 7218 was owned by the company and it was for the use of the deceased for the companys work. The jeep was duly insured and he placed on record insurance policy, Exh. 67. He stated that the insurance policy covered the risk of the occupants in the jeep other than the driver.We have perused the policy at Exh. 67 and we have noted that in addition to the third party risk, there was extra premium paid of Rs. 150 so as to cover the passengers/occupants in the vehicle and in addition there was a separate premium amount paid for coverage of the driver. From the record it is clear that the insurance policy covered the third party liabilities as well as all the occupants, i.e., 1+5 in the said jeep. Opponent No. 2s witness No. 1, therefore, was right in stating that the insurance policy was covering the risk of occupants. The decision in the case of Meena Variyal, 2007 ACJ 1284 (SC), relied upon by Mrs. Agarwal clearly states that the object of Chapter XI of the Act has always been recognised as one intended to protect third parties as understood in the context of the Act, unless, of course, there is a special contract in respect of protection to others. In the instant case the insurance policy at Exh. 67 contains a special contract in respect of protection to all the occupants, i.e., driver as well as five occupants and, therefore, it cannot be said that the claim for compensation was not maintainable on account of the proviso below Section 147(1) of the Act.9. Issue No. 5 framed by the Claims Tribunal had cast the burden on the present appellant to prove that the risk of the deceased was not indemnified. No witness was examined by the insurer despite taking a plea that the deceased was not indemnified. It was imperative for the insurer to prove by examining one of its managers/officers as to how the insurance policy at Exh. 67 did not create a special contract so as to cover all the occupants of the jeep and further to show that the risk of the deceased was not indemnified. It was held in the case of National Insurance Co. Ltd. v. Swaran Singh, I (2004) ACC 1 (SC)=I (2004) SLT 345=109 (2004) DLT 304 (SC)=2004 ACJ 1 (SC), that the Insurance Company to avoid liability, must not only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the Insurance Company. Whether such a burden had been discharged, would depend upon the facts and circumstances of each case. Even when the insurer is able to prove breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident.It is, therefore, clear that the Insurance Company was required to prove in the instant case that the insurance policy at Exh. 67 did not indemnify the risk of the deceased or any one other than the driver. It is not the case of the Insurance Company that the deceased himself was driving the vehicle and, therefore, in the peculiar facts of this case the law laid down in the case of Meena Variyal, 2007 ACJ 1284 (SC), for denying compensation to the claimants of the deceased in that case would not be applicable in the present case. It is also not the case of the Insurance Company that deceased was a gratuitous passenger. It ought to be noted that the owner of the jeep was the company and obviously it would be used by its employees/officers. It was not a passenger vehicle as such like any other private jeep. The company had, therefore, taken enough precautions to ensure that the liability/risk in respect of the occupants was covered by a special contract by paying extra premium over and above required to be paid for covering the third party risk. The vehicle was insured as a company car and it was obviously allowed to carry occupants. It is fairly admitted across the Bar by the insurer that if there is additional premium amount paid so as to cover risks of the occupants of the private vehicle, other than the driver, the risk in respect of such passengers/occupants could be duly indemnified and the owners liability to pay compensation is required to be borne by the Insurance Company. The facts of this case are not similar to the facts in Meena Variyals case (supra), and hence that said decision does not apply.The evidence of witness No. 1 clearly goes to show that deceased was using the vehicle for the companys work (owner) and it was not being used for his personal work. Even otherwise, the risk for 1+5 occupants was covered by paying extra premium as is evident from the insurance policy at Exh. 67. Unless the Insurance Company had examined any of its officers to prove to the contrary, it cannot be held that the Tribunal committed any error in awarding compensation to the claimants.10. The impugned award has not been challenged on any other ground by the learned Counsel for the appellant. Even for calculating the compensation the Tribunal had taken into consideration that the deceased was 48 years of age. He left behind his widow and two minor children who were studying and deceased was the only bread earner. The retirement age was 58 years. The multiplier was fixed at 14 and there is no challenge to the monthly income assessed or to the multiplier fixed. It cannot be denied that the deceased would have achieved further promotions and he would have retired at the age of 58 in a higher position. He was a technically qualified person and the retirement at the age of 58 or 60 by itself would not put an end to his earning capacity and his prospects for acting as a consultant inperiod could not be ruled out till the age of 70 years or so. | 0 | 2,511 | 1,237 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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risk of the occupants in the jeep other than the driver.We have perused the policy at Exh. 67 and we have noted that in addition to the third party risk, there was extra premium paid of Rs. 150 so as to cover the passengers/occupants in the vehicle and in addition there was a separate premium amount paid for coverage of the driver. From the record it is clear that the insurance policy covered the third party liabilities as well as all the occupants, i.e., 1+5 in the said jeep. Opponent No. 2s witness No. 1, therefore, was right in stating that the insurance policy was covering the risk of occupants. The decision in the case of Meena Variyal, 2007 ACJ 1284 (SC), relied upon by Mrs. Agarwal clearly states that the object of Chapter XI of the Act has always been recognised as one intended to protect third parties as understood in the context of the Act, unless, of course, there is a special contract in respect of protection to others. In the instant case the insurance policy at Exh. 67 contains a special contract in respect of protection to all the occupants, i.e., driver as well as five occupants and, therefore, it cannot be said that the claim for compensation was not maintainable on account of the proviso below Section 147(1) of the Act.9. Issue No. 5 framed by the Claims Tribunal had cast the burden on the present appellant to prove that the risk of the deceased was not indemnified. No witness was examined by the insurer despite taking a plea that the deceased was not indemnified. It was imperative for the insurer to prove by examining one of its managers/officers as to how the insurance policy at Exh. 67 did not create a special contract so as to cover all the occupants of the jeep and further to show that the risk of the deceased was not indemnified. It was held in the case of National Insurance Co. Ltd. v. Swaran Singh, I (2004) ACC 1 (SC)=I (2004) SLT 345=109 (2004) DLT 304 (SC)=2004 ACJ 1 (SC), that the Insurance Company to avoid liability, must not only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the Insurance Company. Whether such a burden had been discharged, would depend upon the facts and circumstances of each case. Even when the insurer is able to prove breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident.It is, therefore, clear that the Insurance Company was required to prove in the instant case that the insurance policy at Exh. 67 did not indemnify the risk of the deceased or any one other than the driver. It is not the case of the Insurance Company that the deceased himself was driving the vehicle and, therefore, in the peculiar facts of this case the law laid down in the case of Meena Variyal, 2007 ACJ 1284 (SC), for denying compensation to the claimants of the deceased in that case would not be applicable in the present case. It is also not the case of the Insurance Company that deceased was a gratuitous passenger. It ought to be noted that the owner of the jeep was the company and obviously it would be used by its employees/officers. It was not a passenger vehicle as such like any other private jeep. The company had, therefore, taken enough precautions to ensure that the liability/risk in respect of the occupants was covered by a special contract by paying extra premium over and above required to be paid for covering the third party risk. The vehicle was insured as a company car and it was obviously allowed to carry occupants. It is fairly admitted across the Bar by the insurer that if there is additional premium amount paid so as to cover risks of the occupants of the private vehicle, other than the driver, the risk in respect of such passengers/occupants could be duly indemnified and the owners liability to pay compensation is required to be borne by the Insurance Company. The facts of this case are not similar to the facts in Meena Variyals case (supra), and hence that said decision does not apply.The evidence of witness No. 1 clearly goes to show that deceased was using the vehicle for the companys work (owner) and it was not being used for his personal work. Even otherwise, the risk for 1+5 occupants was covered by paying extra premium as is evident from the insurance policy at Exh. 67. Unless the Insurance Company had examined any of its officers to prove to the contrary, it cannot be held that the Tribunal committed any error in awarding compensation to the claimants.10. The impugned award has not been challenged on any other ground by the learned Counsel for the appellant. Even for calculating the compensation the Tribunal had taken into consideration that the deceased was 48 years of age. He left behind his widow and two minor children who were studying and deceased was the only bread earner. The retirement age was 58 years. The multiplier was fixed at 14 and there is no challenge to the monthly income assessed or to the multiplier fixed. It cannot be denied that the deceased would have achieved further promotions and he would have retired at the age of 58 in a higher position. He was a technically qualified person and the retirement at the age of 58 or 60 by itself would not put an end to his earning capacity and his prospects for acting as a consultant in post-retirement period could not be ruled out till the age of 70 years or so.
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covered the risk of the occupants in the jeep other than the driver.We have perused the policy at Exh. 67 and we have noted that in addition to the third party risk, there was extra premium paid of Rs. 150 so as to cover the passengers/occupants in the vehicle and in addition there was a separate premium amount paid for coverage of the driver. From the record it is clear that the insurance policy covered the third party liabilities as well as all the occupants, i.e., 1+5 in the said jeep. Opponent No. 2s witness No. 1, therefore, was right in stating that the insurance policy was covering the risk of occupants. The decision in the case of Meena Variyal, 2007 ACJ 1284 (SC), relied upon by Mrs. Agarwal clearly states that the object of Chapter XI of the Act has always been recognised as one intended to protect third parties as understood in the context of the Act, unless, of course, there is a special contract in respect of protection to others. In the instant case the insurance policy at Exh. 67 contains a special contract in respect of protection to all the occupants, i.e., driver as well as five occupants and, therefore, it cannot be said that the claim for compensation was not maintainable on account of the proviso below Section 147(1) of the Act.9. Issue No. 5 framed by the Claims Tribunal had cast the burden on the present appellant to prove that the risk of the deceased was not indemnified. No witness was examined by the insurer despite taking a plea that the deceased was not indemnified. It was imperative for the insurer to prove by examining one of its managers/officers as to how the insurance policy at Exh. 67 did not create a special contract so as to cover all the occupants of the jeep and further to show that the risk of the deceased was not indemnified. It was held in the case of National Insurance Co. Ltd. v. Swaran Singh, I (2004) ACC 1 (SC)=I (2004) SLT 345=109 (2004) DLT 304 (SC)=2004 ACJ 1 (SC), that the Insurance Company to avoid liability, must not only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the Insurance Company. Whether such a burden had been discharged, would depend upon the facts and circumstances of each case. Even when the insurer is able to prove breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident.It is, therefore, clear that the Insurance Company was required to prove in the instant case that the insurance policy at Exh. 67 did not indemnify the risk of the deceased or any one other than the driver. It is not the case of the Insurance Company that the deceased himself was driving the vehicle and, therefore, in the peculiar facts of this case the law laid down in the case of Meena Variyal, 2007 ACJ 1284 (SC), for denying compensation to the claimants of the deceased in that case would not be applicable in the present case. It is also not the case of the Insurance Company that deceased was a gratuitous passenger. It ought to be noted that the owner of the jeep was the company and obviously it would be used by its employees/officers. It was not a passenger vehicle as such like any other private jeep. The company had, therefore, taken enough precautions to ensure that the liability/risk in respect of the occupants was covered by a special contract by paying extra premium over and above required to be paid for covering the third party risk. The vehicle was insured as a company car and it was obviously allowed to carry occupants. It is fairly admitted across the Bar by the insurer that if there is additional premium amount paid so as to cover risks of the occupants of the private vehicle, other than the driver, the risk in respect of such passengers/occupants could be duly indemnified and the owners liability to pay compensation is required to be borne by the Insurance Company. The facts of this case are not similar to the facts in Meena Variyals case (supra), and hence that said decision does not apply.The evidence of witness No. 1 clearly goes to show that deceased was using the vehicle for the companys work (owner) and it was not being used for his personal work. Even otherwise, the risk for 1+5 occupants was covered by paying extra premium as is evident from the insurance policy at Exh. 67. Unless the Insurance Company had examined any of its officers to prove to the contrary, it cannot be held that the Tribunal committed any error in awarding compensation to the claimants.10. The impugned award has not been challenged on any other ground by the learned Counsel for the appellant. Even for calculating the compensation the Tribunal had taken into consideration that the deceased was 48 years of age. He left behind his widow and two minor children who were studying and deceased was the only bread earner. The retirement age was 58 years. The multiplier was fixed at 14 and there is no challenge to the monthly income assessed or to the multiplier fixed. It cannot be denied that the deceased would have achieved further promotions and he would have retired at the age of 58 in a higher position. He was a technically qualified person and the retirement at the age of 58 or 60 by itself would not put an end to his earning capacity and his prospects for acting as a consultant inperiod could not be ruled out till the age of 70 years or so.
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RAJ PAL SINGH Vs. COMMISSIONER OF INCOME TAX HARYANA, ROHTAK | the assessee was divested of the title to the property, that vested in the Government with effect from 04.09.1972, the date of taking over possession. Hence, the ITAT held that the capital gains arising from the said acquisition were not assessable for the accounting period relevant for the assessment year 1975-1976. 43.1. Learned counsel for the appellant has strenuously argued that the revenue is not entitled to take a different stand in the present case pertaining to the assessment year 1971–1972, after having accepted the said decision pertaining to the assessment year 1975–1976 where it was held that capital gains accrued on the date of taking over possession of the land under acquisition by the Government. The learned counsel has relied upon the following observations in Berger Paints India Ltd. (supra):- In view of the judgments of this court in Union of India v. Kaumudini Narayan Dalal [2001] 249 ITR 219 ; CIT v. Narendra Doshi [2002] 254 ITR 606 and CIT v. Shivsagar Estate [2002] 257 ITR 59 , the principle established is that if the Revenue has not challenged the correctness of the law laid down by the High Court and has accepted it in the case of one assessee, then it is not open to the Revenue to challenge its correctness in the case of other assessees, without just cause. 44. The question is whether the above-noted observations apply to the present case? In our view, the answer to this question is clearly in the negative for more than one reason. 44.1. In the first place, it is ex facie evident that the matter involved in the said case pertaining to the assessment year 1975-1976 was taken to be an acquisition under the urgency provision contained in Section 17 of the Act of 1894 whereas, the acquisition proceedings in the present case had not been of urgency acquisition but had been of ordinary process where possession could have been taken only under Section 16 after making of the award. As noticed, the very structure of the ordinary process leading to possession under Section 16 of the Act of 1894 has been different than that of the urgency process under Section 17; and the said decision pertaining to the proceedings under Section 17 of the Act of 1894 cannot be directly applied to the present case. 44.2. Secondly, the fact that the said case relating to the assessment year 1975-1976 was not akin to the present case was indicated by the ITAT itself. As noticed, both the cases, i.e., the present one relating to the assessment year 1971-1972 (in ITA No. 634/Chandi/84) and that relating to the assessment year 1975-1976 (in ITA No. 635/Chandi/84) were decided by ITAT on the same date i.e., 19.12.1985. While the answer in relation to the assessment year 1975-1976 was given by the ITAT in favour of assessee-appellant to the effect that possession having been taken on the specified date i.e., 04.09.1972, capital gains were not assessable for the assessment year 1975-1976 but, while deciding the appeal relating to the present case for the assessment year 1971-1972, the ITAT found that the date of taking over possession was not available and hence, the matter was restored to the file of the ITO to find out the actual date of possession. 44.3. Thirdly, even if we assume that the stand of revenue in the present case is not in conformity with the decision of ITAT in relation to the assessment year 1975-1976, it cannot be said that revenue has no just cause to take such a stand. As noticed, while rendering the decision in relation to the assessment year 1975-1976, the ITAT did not notice the principles available in various decisions including that of this Court in Avinash Sharma (supra) that even in the case of urgency acquisition under Section 17 of the Act of 1894, land was to vest in Government not on the date of taking over possession but, only on the expiration of fifteen days from the publication of the notice mentioned in Section 9(1). Looking to the facts of the present case and the law applicable, in our view, the revenue had every reason to question the correctness of the later decision of ITAT dated 29.06.1990 in the second round of proceedings pertaining to the assessment year 1971-1972. 44.4. Fourthly, the ITAT itself on being satisfied about the question of law involved in this case, made a reference by its order dated 15.07.1991 to the High Court. The High Court having dealt with the matter in the reference proceedings and having answered the reference in conformity with the applicable principles, the assessee cannot be heard to question the stand of the revenue with reference to the other order for the assessment year 1975-1976. In any case, it cannot be said that the decision in relation to the assessment year 1975-1976 had been of any such nature which would preclude the revenue from raising the issues which are germane to the present case. 45. Hence, the answer to Point No. 2 is also clearly in the negative i.e., against the assessee-appellant and in favour of the revenue that the fact situation of the present case relating to the assessment year 1971-1972 is not similar to that of the other case of the appellant relating to the assessment year 1975-1976 and the revenue is not precluded from taking the stand that the transfer of capital asset in the present case was complete only on the date of award i.e., on 29.09.1970. Conclusion 46. For what has been discussed hereinabove, we have not an iota of doubt that in the second round of proceeding, the AO had rightly assessed the tax liability of the appellant, on long-term capital gains arising on account of acquisition, on the basis of the amount of compensation allowed in the award dated 29.09.1970 as also the enhanced amount of compensation accrued finally to the appellant; and as regards interest income, had rightly made protective assessment on accrual basis. | 0[ds]29.1. As noticed, capital gains are those profits or gains which arise out of the transfer of capital asset. The expression capital asset is defined in Section 2(14) of the Act of 1961. In the present case, much dilation on this definition is not required because the subject land had indisputably been a capital asset of the assessee-appellant. We may, however, observe that such definition of capital asset is of wide amplitude, taking in its fold the property of any kind held by an assessee, except what has been expressively excluded therein, like stock-in-trade, consumables stores, personal effects, etc.29.2. The expression transfer in relation to a capital asset has been defined in Section 2(47) of the Act of 1961. The said definition has also been of substantially wide amplitude so as to include sale, exchange or relinquishment of a capital asset; or extinguishment of any rights therein; or compulsory acquisition thereof. It is also noteworthy that as per the fundamentals in the Act of 1882, transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons.29.3. Thus, the contents of the then existing Section 45 of the Act of 1961 read with the relevant definitions would make it clear that such profits or gains are chargeable to income-tax as capital gains that arise out of the transfer of a capital asset by any of the recognized modes, including sale, exchange, relinquishment and even compulsory acquisition; and, by fiction, it has been provided that such profits or gains shall be deemed to be the income of the previous year in which transfer took place. Differently put, capital gains of an assessee, arising from transfer of capital asset, are chargeable to tax as income of the previous year in which transfer had taken place.30. Applying the aforesaid concepts of transfer and transfer of property to the facts of the present case, it could be readily found that when the subject land has been compulsorily acquired, its transfer from the assessee-appellant to the Government is directly covered by Section 2(47) of the Act of 1961.30.1. Thus, the basic elements for chargeability of the gains, arising from compulsory acquisition of the subject land, to income-tax under the head capital gains, do exist in the present case. However, the gains so arising would be deemed to be the income of the previous year in which transfer took place.Ordinarily, in such matters of compulsory acquisition, there is a structured process prescribed by law, which is required to be complied with for a lawful acquisition and which has the legal effect of transfer of ownership of the property in question to the acquiring body, usually the appropriate Government. The controversy in the present matter has its genesis in the compulsory acquisition of the land of assessee-appellant under the Act of 1894 and hence, pertinent it would be to look at the processes contemplated by the said enactment.31.1. A brief overview of the scheme of the Act of 1894, as existing at the relevant point of time, makes it clear that publication of preliminary notification under Section 4 by itself did not vest the property in the Government; it only informed about the intention of the Government to acquire the land for a public purpose. After this notification, in the ordinary course, under Section 5A, the Land Acquisition Collector was required to examine the objection, if any, to the proposed acquisition; and after examining his report, if so made, the Government was to issue declaration under Section 6, signifying its satisfaction that the land was indeed required for public purpose. These steps were to be followed by notice under Section 9, stating that the Government intended to take possession of the land and inviting claims for compensation. Thereafter, the Collector was to make his award under Section 11. As noticed hereinbefore, as per Section 16 of the Act of 1894, the Land Acquisition Collector, after making the award, could have taken possession of the land under acquisition and thereupon, the land vested in the Government free from all encumbrances.31.2. A deviation from the process above-noted and a somewhat different process was permissible in Section 17 of the Act of 1894 whereunder, in cases of urgency and if the Government had so directed, the Collector could have taken possession of any waste or arable land after fifteen days from the publication of the notice mentioned in Section 9(1), even though the award had not been made; and thereupon, the land was to vest in the Government free from all encumbrances.31.5. The expositions aforesaid leave nothing for debate that in the matter of compulsory acquisition of land under the Act of 1894 for public purpose, the property was to vest absolutely in the Government (thereby divesting the owner of all his rights therein) only after taking of possession in either of the methods i.e., after making of award, as provided in Section 16; or earlier than making of award, as provided in Section 17. In other words, the owner was divested of the property and same vested in the Government in absolute terms only if, and after, the possession was taken by either of the processes envisaged in Sections 16 and 17. However, so long as possession was not taken, the mere fact of issuance of notification under Section 4 of the Act of 1894 or declaration under Section 6 thereof, did not divest the owner of his right in respect of the property in question.32.1. The features above-noticed, relating to completion of transfer by way of compulsory acquisition under the Act of 1894 upon taking of possession by the Government; and such event of taking possession being the relevant happening for the purpose of Section 45 of the Act of 1961, were duly applied by the Courts in various decisions related with taxing of capital gains.As an example, we may usefully refer to a decision of Karnataka High Court in the case of Buddaiah v. Commissioner of Income-Tax, Karnataka-2: (1985) 155 ITR 277 wherein, the High Court referred to the aforesaid decision of this Court in Fruit & Vegetable Merchants Union and held that since title of land passes to the Government on possession being taken by the Deputy Commissioner under Section 16 of the Act of 1894, such date of taking possession becomes relevant for the purposes of Section 45 of the Act of 1961. The High Court said (at p. 281 of ITR),-The assessees contention, therefore, is contrary to the provisions of s. 16 of the Land Acquisition Act. Since the title of the owner of the lands acquired under the Land Acquisition Act passes to the Government on possession being taken by the Deputy Commissioner under s. 16 of the Act, the date of taking possession becomes relevant for purposes of s. 45 of the I.T. Act, so far as transfer of title is concerned.(emphasis in bold supplied)33. However, the propositions aforesaid do not directly apply to a case where, for any reason, possession of the land had already been taken by the Government or delivered by the owner before completion of process envisaged by Section 16 or Section 17 of the Act of 1894. In such a case, the question, obviously, would be as to when has capital gain accrued? And this is the core of the present matter.33.1. Taking up the core question, as to when capital gains would accrue in a case of compulsory acquisition of land where possession had already been taken before reaching of the relevant stage for taking over possession in the structured process contemplated by the statute, we may usefully refer to the decision of Andhra Pradesh High Court in the case of S. Appala Narasamma v. Commissioner of Income-Tax: (1987) 168 ITR 17. Therein, the land of the assessee was acquired for the Town Planning Trust but, during the course of land acquisition proceedings, possession of the land was delivered voluntarily by the assessee to the Town Planning Trust on 25.03.1970. The award of compensation was made on 22.03.1971. In the assessment proceedings, the question arose, as to in which year did the capital gain arise? Thus, similar question was involved therein, i.e., as to whether the land must be deemed to have vested in the State on the date when the possession was taken with the consent of the landlord or on the date of award? The Tribunal took the view that the land vested in the Government on the date of making of the award and this conclusion was affirmed by the High Court. While dealing with the principles relating to vesting of title and examining the fact situation where possession was taken before making of award, the High Court held that vesting of title to the land was a matter of law and not a matter of inference; and in the given situation, the moment the award was made, possession from that moment onwards should be related to the award; and on that date, the land vested in the Government. The High Court said (at pp. 20 and 21 of ITR),-Vesting of title to the land is a matter of law, not a matter of inference. This is a case of transfer of property by operation of law and the relevant statute clearly provides the situations in which the land vests, viz., section 16, section 17(1) and section 17(2). According to these provisions, the taking of possession per se does not bring about vesting; the taking of possession must be consequent upon passing of an award (section 16) or an order contemplated by section 17(1), or in a situation contemplated by section 17(2). The Act does not provide for taking of possession before the passing of the award, except in situations contemplated by section 17 (1) and (2). The question is what is the reasonable view to take in such a situation? Should we relate back the award to the date of taking possession or should we relate the possession already taken to the date of the award? We think it more reasonable, and consistent with the provisions of the Act, to adopt the latter view. Since possession taken before the award continues to be with the Government, we must say that the moment the award is passed, possession from that moment onwards should be related to the award. It is on that date that the land vests in the Government.(emphasis in bold supplied)33.1.1. While affirming that in the given set of facts, the liability to tax for capital gains arose on the date of award, the High Court referred to various decisions on relating back, of the possession previously taken, to the date envisaged by the Act of 1894; and took guidance, inter alia, from the following enunciation by this Court in the case of Lt. Governor of Himachal Pradesh v. Avinash Sharma: (1971) 1 SCR 413 :-In the present case a notification under s. 17 (1) and (4) was issued by the State Government and possession which had previously been taken must, from the date of expiry of fifteen days from the publication of the notice under s. 9(1), be deemed to be the possession of the Government. We are unable to agree that where the Government has obtained possession illegally or under some unlawful transaction and a notification under s. 17(1) is issued the land does not vest in the Government free from all encumbrances. We are of the view that when a notification under s. 17(1) is issued, on the expiration of fifteen days from the publication of the notice mentioned in s. 9(1), the possession previously obtained will be deemed to be the possession of the Government under s. 17(1) of the Act and the land will vest in the Government free from all encumbrances.(emphasis in bold supplied)34. Before dilating on the principles aforesaid, we may refer to the decisions cited by the learned counsel for the parties but, while pointing out at once that the said decisions are not of direct application to the present case for, they essentially relate to the right to receive compensation and not about the date of vesting of the land, with which we are concerned in the present matter.34.1.3. The principles aforesaid, that the right to receive compensation comes into being the moment Government takes possession of the property acquired; and the right to receive interest also accrues at the point of time when the right to receive compensation accrues and runs day to day, do not correspondingly result in completion of transfer of the property under acquisition and accrual of such a gain that may classify as capital gain. As noticed, in the matters of compulsory acquisition, accrual of capital gain depends upon completion of transfer of property from the owner to the Government and not upon accrual of right to receive compensation. Therefore, reference to the decision in Peter John (supra) is entirely inapt in the present case.34.2. In the case of Rama Bai (supra), this Court dealt with a batch of appeals and references essentially involving the question regarding the point of time at which the interest payable under Sections 28 and 34 of the Act of 1894 accrues or arises, where such interest is paid on enhanced compensation awarded on a reference under Section 18 or on further appeal to the High Court and/or the Supreme Court. This Court found that the issue stood concluded by the decision in Commissioner of Income- Tax v. Govindrajulu Chetty (T.N.K.): [1987] 165 ITR 231 ; and it was held that the interest cannot be taken to have accrued on the date of the order granting enhanced compensation but has to be taken as having accrued year after year from the date of delivery of possession. This Court said as under:-. Obviously, the decision in Rama Bai (supra), does not relate to the questions at hand as regards completion of transfer so as to result in capital gains. In fact, the principles aforesaid are relevant only to the second part of the re-assessment order dated 25.01.1988, whereby, as regards interest income, the AO carried out protective assessment on accrual basis at the rate of 12% per annum for the previous year relevant to the assessment year in question i.e., for the period 01.04.1970 to 31.03.1971.34.3. Again, the decision of this Court cited by learned counsel for the revenue in the case of Joginder Singh (supra), which was followed by the Kerala High Court in Peter John (supra), relates to the right to receive compensation and the right to receive interest. In that case, the question was about the date from which interest had to be granted and arose in the circumstances that though the High Court enhanced the amount of compensation for acquisition and awarded 6% per annum as the rate of interest on the amount of compensation determined by the Land Acquisition Officer and the District Judge but, restricted such rate of interest on the amount of compensation enhanced by it at 4% per annum from the date of possession and 6% per annum from the date of its judgement. In that context, this Court held that the High Court erred in restricting the rate of interest on the enhanced amount of compensation because owner of the land was entitled to be paid the true value of land on the date of taking over of possession; and merely because the amount was determined later did not mean that the right to amount came into existence at a later date. This Court also observed that when the High Court held that the rate of interest at 6% per annum was applicable from the date of possession in relation to the component of compensation determined by the District Judge, there was no reason why the same rate should not be applied from the date of taking over possession in relation to the component of enhancement effected by the High Court. For the reasons already discussed, this judgement also does not directly relate with the question of completion of transfer for accrual of capital gain.34.4. The case of Bombay Burmah Trading Corpn. Ltd. (supra), is also inapplicable to the present case because therein, the questions basically related to the amount of damages received by the assessee due to the loss suffered during World War II. The observations therein, again, do not have bearing on the question as to when the transfer of land, in the matter of compulsory acquisition, be treated as complete so as to result in capital gains.35. Therefore, the aforesaid decisions cited by the learned counsel for parties, even if of guidance on the question relating to the right to receive compensation, do not directly assist us in determination of the core question involved in this matter because, income-tax on capital gains is not levied on the mere right to receive compensation. For chargeability of income-tax, the income ought to have either arrived or accrued. In the matter of acquisition of land under the Act of 1894, taking over of possession before arrival of relevant stage for such taking over may give rise to a potential right in the owner of the property to make a claim for compensation but, looking to the scheme of enactment, it cannot be said that transfer resulting in capital gains is complete with taking over of possession, even if such taking over had happened earlier than the point of time of vesting contemplated in the relevant provisions.35.1. The decision of this Court in the case of Avinash Sharma (supra), however, supports the view that in the case of urgency acquisition, even if possession of the land under acquisition is taken earlier, it should be related to the process contemplated by Section 17 (1) of the Act of 1894, and deemed to be effective from the date on which the period prescribed by Section 17 (1) would expire that is, fifteen days from the publication of the notice under Section 9(1) of the Act of 1894. In S. Appala Narasamma and Pandari Laxmaiah (supra), the Andhra Pradesh High Court applied these principles to the cases pertaining to ordinary process of acquisition and held that if possession had been taken earlier, it would relate to the award; and the date of award would be the relevant date for vesting of the land in the Government.35.2. In an overall conspectus of the matter, we are clearly of the view that the statements of law in the aforesaid decisions of Andhra Pradesh High Court, based on the enunciations by this Court in the case of Avinash Sharma (supra), are rather unquestionable and need to be given imprimatur for application to the controversy like the present one.36. For what has been discussed hereinabove, in our view, in the matters relating to compulsory acquisition of land under the Act of 1894, completion of transfer with vesting of land in the Government essentially correlates with taking over of possession of the land under acquisition by the Government. However, where possession is taken over before arriving of the relevant stage for such taking over, capital gains shall be deemed to have accrued upon arrival of the relevant stage and not before. To be more specific, in such cases, capital gains shall be deemed to have accrued: (a) upon making of the award, in the case of ordinary acquisition referable to Section 16; and (b) after expiration of fifteen days from the publication of the notice mentioned in Section 9 (1), in the case of urgency acquisition under Section 17.37. As per the facts-sheet noticed hereinbefore, in the present case, the land in question was subjected to acquisition under the Act of 1894 by adopting the ordinary process leading to award under Section 11. Therefore, ordinarily, capital gains would have accrued upon taking over of possession after making of the award. Consequently, capital gains to the assessee-appellant for the acquisition in question could not have accrued before the date of award i.e., 29.09.1970.38. However, on the strength of the submissions that the land in question had already been in possession of the beneficiary of acquisition, it has been suggested on behalf of the assessee-appellant that the land vested in the Government immediately upon issuance of notification under Section 4 of the Act of 1894 i.e., 15.05.1968 and capital gain accrued on that date. This suggestion and the contentions founded thereupon remain totally meritless for a variety of factors as indicated infra.38.1. Even if we keep all other aspects aside and assume that the land in question was, or came, in possession of the Government before passing of the award, the position of law stated in point (a) of paragraph 36 hereinabove would apply; and capital gains shall be deemed to have accrued upon arrival of the relevant stage of taking possession i.e., making of award and hence, capital gains cannot be taken to have accrued before the date of award i.e., 29.09.1970.38.2. In order to wriggle out of the above-mentioned plain operation of law, it has been desperately suggested on behalf of the appellant that it had been a case of urgency acquisition and hence, the process contemplated by Section 17 of the Act of 1894 would apply. This suggestion is also baseless and suffers from several infirmities.38.2.1. In the first place, it is evident on the face of the record that it had not been a matter of urgency acquisition and nowhere it appears that the process contemplated by Section 17 of the Act of 1894 was resorted to. Even the contents of the award dated 29.09.1970 make it clear that the learned Land Acquisition Collector only awarded interest from the date of initial notification for the reason that the land was in possession of the College but, it was nowhere stated that he had received any directions from the Government to take possession of the land before making of the award while acting under Section 17.38.2.2. Secondly, if at all the proceedings were taken under Section 17 of the Act of 1894, the land could have vested in the Government only after expiration of fifteen days from the date of publication of notice under Section 9(1); and, in any case, could not have vested in the Government on the date of publication of initial notification under Section 4 of the Act of 1894. Significantly, the assessee-appellant did not divulge the date of publication of notice under Section 9(1) of the Act of 1894 despite the queries of the Assessing Officer. The suggestion about application of the process contemplated by Section 17 of the Act of 1894 remains totally unfounded.39.1. Going back to the facts-sheet, it is not in dispute that a large part of the subject land was given on lease to the College and the said lease expired on 31.08.1967 but, the land continued in possession of the College.39.2. As noticed, where the time period of any lease of immovable property is limited, it determines by efflux of such time, as per Section 111(a) of the Act of 1882. Further, in terms of Section 108(q) of the Act of 1882, on determination of lease, the lessee is bound to put the lessor into possession of the leased property. In case where lessee does not deliver possession to the lessor after determination of the lease but the lessor accepts rent or otherwise assents to his continuing in possession, in the absence of an agreement to the contrary, the status of such lessee is that of tenant holding over, in terms of Section 116 of the Act of 1882. But, in the absence of acceptance of rent or otherwise assent by the lessor, the status of lessee is that of tenant at sufferance.39.3. The aforesaid aspects relating to the status of parties after expiry of the period of lease remain well settled and do not require much elaboration. However, for ready reference, we may point out that in the case of Nand Ram (D) through LRs. and Ors. v. Jagdish Prasad (D) through LRs.: 2020 (5) SCALE 723 , this Court has re-expounded the relevant principles in sufficient details, albeit in a different context. The relevant background of the said case had been that the land of plaintiff was taken on lease by the defendant where it was agreed that the plaintiff-lessor will not seek ejectment of defendant-lessee except in the case where the rent for one year remained in arrears. The entire leased land was acquired under the Act of 1894. The Land Acquisition Collector determined the amount of compensation but then, dispute arose with regard to apportionment between the plaintiff and the defendant for which, the matter went in reference. The Reference Court held that lessee having not paid rent for more than twelve months, the lease had come to end and, therefore, he had no right to claim any share in the compensation. Later on, a part of the land was de-notified from acquisition and that part remained in possession of the defendant-lessee. Thereafter, the plaintiff-lessor took up action claiming possession of the land by filing a suit against the defendant- lessee. The suit was decreed by the Trial Court and the decree was affirmed by the First Appellate Court. However, the High Court allowed the second appeal holding that the finding recorded in the award about the lease coming to an end operated as res judicata and the suit was filed beyond the period of limitation. In further appeal, this Court did not approve the decision of High Court and, in the course of allowing the appeal, exposited on the principles relating to the status of parties after expiry of the lease but retention of possession by the lessee, inter alia, in the following passage:-29. The Defendant was inducted as a lessee for a period of 20 years. The lease period expired on 23rd September, 1974. Even if the lessee had not paid rent, the status of the lessee would not change during the continuation of the period of lease. The lessor had a right to seek possession in terms of Clause 9 of the lease deed. The mere fact that the lessor had not chosen to exercise that right will not foreclose the rights of the lessor as owner of the property leased. After the expiry of lease period, and in the absence of payment of rent by the lessee, the status of the lessee will be that of tenant at sufferance and not a tenant holding over. Section 116 of the TP Act confers the status of a tenant holding over on a yearly or monthly basis keeping in view the purpose of the lease, only if the lessor accepts the payment of lease money. If the lessor does not accept the lease money, the status of the lessee would be that of tenant at sufferance. This Court in the judgments reported as Bhawanji Lakhamshi and Ors. v. Himatlal Jamnadas Dani and Ors. (1972) 1 SCC 388 , Badrilal v. Municipal Corp. of Indore : (1973) 2 SCC 388 and R.V. Bhupal Prasad v. State of A.P. and Ors.: (1995) 5 SCC 698 and also a judgment in Sevoke Properties Ltd. v. West Bengal State Electricity Distribution Co. Ltd. examined the scope of Section 116 of the TP Act and held that the lease would be renewed as a tenant holding over only if the lessor accepts the pay-ment of rent after the expiry of lease period. This Court in Bhawanji Lakhamshi held as under:9. The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. ……(emphasis in bold supplied)39.3.1. Further, in Nand Ram (supra), this Court also quoted with approval the principles stated by Delhi High Court in the case of MEC India Pvt. Ltd. v. Lt. Col. Inder Maira & Ors.: 80 (1999) Delhi Law Times 679 . A relevant part of such quotation from the decision of Delhi High Court may also be usefully noticed for the present purpose as under:-. The said principles, when applied to the present case, leave nothing to doubt that in relation to that part of the land in question which was given on lease, possession of the College, after determination of the lease on 31.08.1967, was only that of a tenant at sufferance because it has not been shown if the lessor i.e., the appellant accepted rent or otherwise assented to the continuation of lease. The possession of College over the part of land in question being only that of tenant at sufferance, had the corresponding acknowledgment of the title of the appellant and of the liability of the College to pay mesne profits for use and occupation. The same status of the parties qua the land under lease existed on the date of notification for acquisition i.e., 15.05.1968 and continued even until the date of award i.e., 29.09.1970. In other words, even until the date of award, the appellant-assessee continued to carry its status as owner of the land in question and that status was not lost only because a part of the land remained in possession of the College. In this view of the matter, the suggestion that the land vested in the Government on the date of initial notification remains totally baseless and could only be rejected.39.5. Apart from the above, the significant factor for which the entire case of the assessee-appellant is knocked to the ground is that neither on the date of notification i.e., 15.05.1968 nor until the date of award, the Government took over possession of the land in question. As noticed, the possession had been of the erstwhile lessee, the College. Even if the said College was going to be the ultimate beneficiary of the acquisition, it cannot be said that immediately upon issuance of notification under Section 4 of the Act of 1894, its possession became the possession of the Government. Its possession, as noticed, remained that of tenant at sufferance and not beyond.39.6. Viewed from any angle, it is clear that accrual of capital gains in the present case had not taken place on 15.05.1968. If at all possession of the College was to result in vesting of the land in the Government, such vesting happened only on the date of award i.e., 29.09.1970 and not before. In other words, the transfer of land from the assessee-appellant to the Government reached its completion not before 29.09.1970 and hence, the earliest date for accrual of capital gains because of this acquisition was the date of award i.e., 29.09.1970. Therefore, the assessment of capital gains as income of the appellant for the previous year relevant to the assessment year 1971-1972 does not suffer from any infirmity or error.40. An incidental aspect of the submissions on behalf of the appellant that interest and solatium accrued on 15.05.1968 as per the award and that being the income pertaining to the financial year 1968-1969 could not have been taxed in the assessment year 1971-1972, also deserves to be rejected for the reasons foregoing and for additionally the reason that in his order dated 25.01.1988, the AO has consciously made protective assessment on accrual basis on the interest component referable to the previous year 1970-1971, relevant for the assessment year 1971-72.40.1. We may also usefully observe that awarding of interest from 15.05.1968 in the award had only been just and equitable application of the provisions of law, including Section 28 of the Act of 1894 but that did not result in vesting of the land in Government on that date of notification.41. For what has been discussed hereinabove, the answer to Point No. 1 is clearly in the negative i.e., against the assessee-appellant and in favour of the revenue that on the facts and in the circumstances of the present case, transfer of the capital asset (land in question), for the purposes of Section 45 of the Act of 1961, was complete only on 29.09.1970, the date of award and not on 15.05.1968, the date of notification for acquisition under Section 4 of the Act of 1894; and hence, capital gains arising out of such acquisition have rightly been charged to tax with reference to the date of award i.e., 29.09.1970.42. Though we have found that vesting of land in question for the purpose of accrual of capital gains in this case was complete only on the date of award that falls within the previous year relevant for the assessment year 1971-72Admittedly, the said decision for the assessment year 1975- 1976 was not appealed against and had attained finality.43. We may gainfully recapitulate that in the case pertaining to the assessment year 1975-1976, the question of capital gains arose in the backdrop of the facts that another parcel of land of the appellant was acquired for the purpose of construction of warehouse of Ambala City. The notification under Section 4 of the Act of 1894 was issued on 26.06.1971 and the award of compensation was made on 27.06.1974 but, possession of the said land was taken by the Government on 04.09.1972 i.e., before making of the award. In the given set of facts and circumstances, in ITA No.635/Chandi/84, the ITAT accepted the contention that the case fell under the urgency provision contained in Section 17 of the Act of 1894 where the assessee was divested of the title to the property, that vested in the Government with effect from 04.09.1972, the date of taking over possession. Hence, the ITAT held that the capital gains arising from the said acquisition were not assessable for the accounting period relevant for the assessment year 1975-1976.The learned counsel has relied upon the following observations in Berger Paints India Ltd. (supra):-In view of the judgments of this court in Union of India v. Kaumudini Narayan Dalal [2001] 249 ITR 219 ; CIT v. Narendra Doshi [2002] 254 ITR 606 and CIT v. Shivsagar Estate [2002] 257 ITR 59 , the principle established is that if the Revenue has not challenged the correctness of the law laid down by the High Court and has accepted it in the case of one assessee, then it is not open to the Revenue to challenge its correctness in the case of other assessees, without just cause.. The question is whether the above-noted observations apply to the present case? In our view, the answer to this question is clearly in the negative for more than one reason.44.1. In the first place, it is ex facie evident that the matter involved in the said case pertaining to the assessment year 1975-1976 was taken to be an acquisition under the urgency provision contained in Section 17 of the Act of 1894 whereas, the acquisition proceedings in the present case had not been of urgency acquisition but had been of ordinary process where possession could have been taken only under Section 16 after making of the award. As noticed, the very structure of the ordinary process leading to possession under Section 16 of the Act of 1894 has been different than that of the urgency process under Section 17; and the said decision pertaining to the proceedings under Section 17 of the Act of 1894 cannot be directly applied to the present case.44.2. Secondly, the fact that the said case relating to the assessment year 1975-1976 was not akin to the present case was indicated by the ITAT itself. As noticed, both the cases, i.e., the present one relating to the assessment year 1971-1972 (in ITA No. 634/Chandi/84) and that relating to the assessment year 1975-1976 (in ITA No. 635/Chandi/84) were decided by ITAT on the same date i.e., 19.12.1985. While the answer in relation to the assessment year 1975-1976 was given by the ITAT in favour of assessee-appellant to the effect that possession having been taken on the specified date i.e., 04.09.1972, capital gains were not assessable for the assessment year 1975-1976 but, while deciding the appeal relating to the present case for the assessment year 1971-1972, the ITAT found that the date of taking over possession was not available and hence, the matter was restored to the file of the ITO to find out the actual date of possession.44.3. Thirdly, even if we assume that the stand of revenue in the present case is not in conformity with the decision of ITAT in relation to the assessment year 1975-1976, it cannot be said that revenue has no just cause to take such a stand. As noticed, while rendering the decision in relation to the assessment year 1975-1976, the ITAT did not notice the principles available in various decisions including that of this Court in Avinash Sharma (supra) that even in the case of urgency acquisition under Section 17 of the Act of 1894, land was to vest in Government not on the date of taking over possession but, only on the expiration of fifteen days from the publication of the notice mentioned in Section 9(1). Looking to the facts of the present case and the law applicable, in our view, the revenue had every reason to question the correctness of the later decision of ITAT dated 29.06.1990 in the second round of proceedings pertaining to the assessment year 1971-1972.44.4. Fourthly, the ITAT itself on being satisfied about the question of law involved in this case, made a reference by its order dated 15.07.1991 to the High Court. The High Court having dealt with the matter in the reference proceedings and having answered the reference in conformity with the applicable principles, the assessee cannot be heard to question the stand of the revenue with reference to the other order for the assessment year 1975-1976. In any case, it cannot be said that the decision in relation to the assessment year 1975-1976 had been of any such nature which would preclude the revenue from raising the issues which are germane to the present case.45. Hence, the answer to Point No. 2 is also clearly in the negative i.e., against the assessee-appellant and in favour of the revenue that the fact situation of the present case relating to the assessment year 1971-1972 is not similar to that of the other case of the appellant relating to the assessment year 1975-1976 and the revenue is not precluded from taking the stand that the transfer of capital asset in the present case was complete only on the date of award i.e., on 29.09.1970.46. For what has been discussed hereinabove, we have not an iota of doubt that in the second round of proceeding, the AO had rightly assessed the tax liability of the appellant, on long-term capital gains arising on account of acquisition, on the basis of the amount of compensation allowed in the award dated 29.09.1970 as also the enhanced amount of compensation accrued finally to the appellant; and as regards interest income, had rightly made protective assessment on accrual basis.27. Having regard to the relevant provisions of the Act of 1961 whereby and whereunder, capital gains essentially relate to the transfer of capital asset by the assessee; and the background aspects of the present case, where the capital asset of the assessee-appellant (land in question) was in possession of the beneficiary College even after expiry of the lease on 31.08.1967, it shall also be apposite to take note of a few provisions of the Transfer of Property Act, 1882 concerning the general connotation of transfer of property as also those relating to the transaction of lease of immovable property. | 0 | 22,728 | 7,509 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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the assessee was divested of the title to the property, that vested in the Government with effect from 04.09.1972, the date of taking over possession. Hence, the ITAT held that the capital gains arising from the said acquisition were not assessable for the accounting period relevant for the assessment year 1975-1976. 43.1. Learned counsel for the appellant has strenuously argued that the revenue is not entitled to take a different stand in the present case pertaining to the assessment year 1971–1972, after having accepted the said decision pertaining to the assessment year 1975–1976 where it was held that capital gains accrued on the date of taking over possession of the land under acquisition by the Government. The learned counsel has relied upon the following observations in Berger Paints India Ltd. (supra):- In view of the judgments of this court in Union of India v. Kaumudini Narayan Dalal [2001] 249 ITR 219 ; CIT v. Narendra Doshi [2002] 254 ITR 606 and CIT v. Shivsagar Estate [2002] 257 ITR 59 , the principle established is that if the Revenue has not challenged the correctness of the law laid down by the High Court and has accepted it in the case of one assessee, then it is not open to the Revenue to challenge its correctness in the case of other assessees, without just cause. 44. The question is whether the above-noted observations apply to the present case? In our view, the answer to this question is clearly in the negative for more than one reason. 44.1. In the first place, it is ex facie evident that the matter involved in the said case pertaining to the assessment year 1975-1976 was taken to be an acquisition under the urgency provision contained in Section 17 of the Act of 1894 whereas, the acquisition proceedings in the present case had not been of urgency acquisition but had been of ordinary process where possession could have been taken only under Section 16 after making of the award. As noticed, the very structure of the ordinary process leading to possession under Section 16 of the Act of 1894 has been different than that of the urgency process under Section 17; and the said decision pertaining to the proceedings under Section 17 of the Act of 1894 cannot be directly applied to the present case. 44.2. Secondly, the fact that the said case relating to the assessment year 1975-1976 was not akin to the present case was indicated by the ITAT itself. As noticed, both the cases, i.e., the present one relating to the assessment year 1971-1972 (in ITA No. 634/Chandi/84) and that relating to the assessment year 1975-1976 (in ITA No. 635/Chandi/84) were decided by ITAT on the same date i.e., 19.12.1985. While the answer in relation to the assessment year 1975-1976 was given by the ITAT in favour of assessee-appellant to the effect that possession having been taken on the specified date i.e., 04.09.1972, capital gains were not assessable for the assessment year 1975-1976 but, while deciding the appeal relating to the present case for the assessment year 1971-1972, the ITAT found that the date of taking over possession was not available and hence, the matter was restored to the file of the ITO to find out the actual date of possession. 44.3. Thirdly, even if we assume that the stand of revenue in the present case is not in conformity with the decision of ITAT in relation to the assessment year 1975-1976, it cannot be said that revenue has no just cause to take such a stand. As noticed, while rendering the decision in relation to the assessment year 1975-1976, the ITAT did not notice the principles available in various decisions including that of this Court in Avinash Sharma (supra) that even in the case of urgency acquisition under Section 17 of the Act of 1894, land was to vest in Government not on the date of taking over possession but, only on the expiration of fifteen days from the publication of the notice mentioned in Section 9(1). Looking to the facts of the present case and the law applicable, in our view, the revenue had every reason to question the correctness of the later decision of ITAT dated 29.06.1990 in the second round of proceedings pertaining to the assessment year 1971-1972. 44.4. Fourthly, the ITAT itself on being satisfied about the question of law involved in this case, made a reference by its order dated 15.07.1991 to the High Court. The High Court having dealt with the matter in the reference proceedings and having answered the reference in conformity with the applicable principles, the assessee cannot be heard to question the stand of the revenue with reference to the other order for the assessment year 1975-1976. In any case, it cannot be said that the decision in relation to the assessment year 1975-1976 had been of any such nature which would preclude the revenue from raising the issues which are germane to the present case. 45. Hence, the answer to Point No. 2 is also clearly in the negative i.e., against the assessee-appellant and in favour of the revenue that the fact situation of the present case relating to the assessment year 1971-1972 is not similar to that of the other case of the appellant relating to the assessment year 1975-1976 and the revenue is not precluded from taking the stand that the transfer of capital asset in the present case was complete only on the date of award i.e., on 29.09.1970. Conclusion 46. For what has been discussed hereinabove, we have not an iota of doubt that in the second round of proceeding, the AO had rightly assessed the tax liability of the appellant, on long-term capital gains arising on account of acquisition, on the basis of the amount of compensation allowed in the award dated 29.09.1970 as also the enhanced amount of compensation accrued finally to the appellant; and as regards interest income, had rightly made protective assessment on accrual basis.
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Hence, the ITAT held that the capital gains arising from the said acquisition were not assessable for the accounting period relevant for the assessment year 1975-1976.The learned counsel has relied upon the following observations in Berger Paints India Ltd. (supra):-In view of the judgments of this court in Union of India v. Kaumudini Narayan Dalal [2001] 249 ITR 219 ; CIT v. Narendra Doshi [2002] 254 ITR 606 and CIT v. Shivsagar Estate [2002] 257 ITR 59 , the principle established is that if the Revenue has not challenged the correctness of the law laid down by the High Court and has accepted it in the case of one assessee, then it is not open to the Revenue to challenge its correctness in the case of other assessees, without just cause.. The question is whether the above-noted observations apply to the present case? In our view, the answer to this question is clearly in the negative for more than one reason.44.1. In the first place, it is ex facie evident that the matter involved in the said case pertaining to the assessment year 1975-1976 was taken to be an acquisition under the urgency provision contained in Section 17 of the Act of 1894 whereas, the acquisition proceedings in the present case had not been of urgency acquisition but had been of ordinary process where possession could have been taken only under Section 16 after making of the award. As noticed, the very structure of the ordinary process leading to possession under Section 16 of the Act of 1894 has been different than that of the urgency process under Section 17; and the said decision pertaining to the proceedings under Section 17 of the Act of 1894 cannot be directly applied to the present case.44.2. Secondly, the fact that the said case relating to the assessment year 1975-1976 was not akin to the present case was indicated by the ITAT itself. As noticed, both the cases, i.e., the present one relating to the assessment year 1971-1972 (in ITA No. 634/Chandi/84) and that relating to the assessment year 1975-1976 (in ITA No. 635/Chandi/84) were decided by ITAT on the same date i.e., 19.12.1985. While the answer in relation to the assessment year 1975-1976 was given by the ITAT in favour of assessee-appellant to the effect that possession having been taken on the specified date i.e., 04.09.1972, capital gains were not assessable for the assessment year 1975-1976 but, while deciding the appeal relating to the present case for the assessment year 1971-1972, the ITAT found that the date of taking over possession was not available and hence, the matter was restored to the file of the ITO to find out the actual date of possession.44.3. Thirdly, even if we assume that the stand of revenue in the present case is not in conformity with the decision of ITAT in relation to the assessment year 1975-1976, it cannot be said that revenue has no just cause to take such a stand. As noticed, while rendering the decision in relation to the assessment year 1975-1976, the ITAT did not notice the principles available in various decisions including that of this Court in Avinash Sharma (supra) that even in the case of urgency acquisition under Section 17 of the Act of 1894, land was to vest in Government not on the date of taking over possession but, only on the expiration of fifteen days from the publication of the notice mentioned in Section 9(1). Looking to the facts of the present case and the law applicable, in our view, the revenue had every reason to question the correctness of the later decision of ITAT dated 29.06.1990 in the second round of proceedings pertaining to the assessment year 1971-1972.44.4. Fourthly, the ITAT itself on being satisfied about the question of law involved in this case, made a reference by its order dated 15.07.1991 to the High Court. The High Court having dealt with the matter in the reference proceedings and having answered the reference in conformity with the applicable principles, the assessee cannot be heard to question the stand of the revenue with reference to the other order for the assessment year 1975-1976. In any case, it cannot be said that the decision in relation to the assessment year 1975-1976 had been of any such nature which would preclude the revenue from raising the issues which are germane to the present case.45. Hence, the answer to Point No. 2 is also clearly in the negative i.e., against the assessee-appellant and in favour of the revenue that the fact situation of the present case relating to the assessment year 1971-1972 is not similar to that of the other case of the appellant relating to the assessment year 1975-1976 and the revenue is not precluded from taking the stand that the transfer of capital asset in the present case was complete only on the date of award i.e., on 29.09.1970.46. For what has been discussed hereinabove, we have not an iota of doubt that in the second round of proceeding, the AO had rightly assessed the tax liability of the appellant, on long-term capital gains arising on account of acquisition, on the basis of the amount of compensation allowed in the award dated 29.09.1970 as also the enhanced amount of compensation accrued finally to the appellant; and as regards interest income, had rightly made protective assessment on accrual basis.27. Having regard to the relevant provisions of the Act of 1961 whereby and whereunder, capital gains essentially relate to the transfer of capital asset by the assessee; and the background aspects of the present case, where the capital asset of the assessee-appellant (land in question) was in possession of the beneficiary College even after expiry of the lease on 31.08.1967, it shall also be apposite to take note of a few provisions of the Transfer of Property Act, 1882 concerning the general connotation of transfer of property as also those relating to the transaction of lease of immovable property.
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The State of T.N Vs. M/s. Lateef Hamid & Co | is a vested right, which cannot be interfered with or in any way impaired having regard to the specific provision of sec. 61 (1) of the Madras Act I of 1959. The order of the Appellate Assistant Commissioner only reduced the turnover to the benefit of the assessee, audit is clear that there was no violation of the vested right of the assessee by reason of the said order. The order of the Appellate Assistant Commissioner was passed after the coming into force of the 1959 Act and on that date the assessee had no vested right to prevent an enhancement of his assessment by the future appellate authority, namely the Tribunal. The Tribunal entertained an appeal at the instance of the assessee only under the new Act as the order appealed against was one passed after the coming into force of the new Act, and by a Tribunal which functioned under the new Act. It is impossible for the assessee to maintain the position that any order of the Appellate Tribunal enhancing the assessment made by the Appellate Assistant Commissioner would amount to deprivation of their vested rights or violation of the provisions of section 61(1) of the 1959 Act. 17. These observations appear to us to be some what incongruous. As seen earlier under the 1939 Act, the Revenue could not have appealed either against the order of the assessing authority or against that of the appellate authority. If the non-existence of the right of appeal on the part of the Department is considered as an immunity or protection and if that immunity or protection is considered as a vested right, the assessee will have that right both at the stage of appeal to the Appellate Assistant Commissioner as well as the stage of the appeal to the Tribunal. It is difficult to follow how the High Court was able to make a dichotomy as between the powers of the Appellate Assistant Commissioner and that of the Tribunal in that regard. If the new constituted Tribunal were clothed with wider and larger powers as opined by the High Court, the same would be the case with the Appellate Assistant Commissioner. In our opinion, the true test to be applied to the case was whether in fact any vested right of the assessee had been taken away under the 1959 Act because of the enlargement of the powers of the first appellate authority or that of the Tribunal. As seen earlier, no real right of the assessee was infringed by the 1959 Act because of the enlargement of the powers of those authorities. 18. This takes us to the decision in Balasundaram & Co.s case (supra). This case was decided by the same bench which decided Swami & Co.s case. Therein the assessee was assessed to sales tax under the 1939 Act. During the pendency of its appeal to the Commercial Tax Officer, the 1959 Act came into force. Its appeal was transferred to the Appellate Assistant Commissioner who enhanced the assessment. But on a further appeal, the Tribunal came to the conclusion that the Appellate Assistant Commissioner had no jurisdiction to enhance the assessment. As against that order, the Deputy Commissioner of Commercial Taxes went up in revision to the High Court. The High Court held that the assessee had a vested right at the time when the 1959 Act came into force to prevent the Commercial Tax Officer from enhancing the assessment in the course of the appeal preferred by him. However, there was always the peril of the Commercial Tax Officer, who was also the revising authority, revising the assessment to his prejudice in exercise of his revisional power, but that peril effectively disappeared when under the 1959 Act, the revisional power was conferred upon the Deputy Commissioner of Commercial Taxes and not upon the Appellate Commissioner. Thereafter the interference by the Appellate Assistant Commissioner with the assessment order passed by the Deputy Commercial Tax Officer to the prejudice of the assessee in the purported exercise of his appellate power, was clearly violative of the assessees vested rights. In our opinion this decision proceeded on a wrong basis. The question before the High Court was whether there was a vested right in the assessee not to have his assessment enhanced, under the 1939 Act and whether that vested right had been in any manner infringed by the 1959 Act. As seen earlier he had no such vested right under the 1939 Act. The fact that a different procedure is prescribed under the 1939 Act for enhancing the assessment cannot be said to be an infringement of a vested right. No one can have a vested right in a mere procedure. We are of opinion that Balasundarams case (supra) was wrongly decided and some of the observations in Swami & Cos case (supra) are not correct though the decision in that case is not open to question. 19. Mr. S. T. Desai, learned counsel for the Revenue placed strong reliance on the decision of a Division Bench of the Kerala High Court in Velukutty vs. Kerala Sales Tax Appellate Tribunal, Trivendrum and Ors. (3). Therein, interpreting provision similar to sec. 61(2) of Act, the High Court came to the conclusion that the clause be transferred to and disposed of by the officer or authority who would have jurisdiction to entertain such application, appeal, revision or other proceeding under this Act, if it had been in force on the date on which any application, appeal, revision or other proceeding was made or preferred conferred power on the appellate authority to enhance assessment. The correctness of this conclusion was contested by Mr. Shanker Das, learned counsel for the assessee. According to him that clause merely provided for transferance of the appeals pending before the authorities under the 1959 Act without enlarging their powers. In view of our conclusion that vested right of the assessee had been interfered with. It is not necessary for us to go into this controversy. | 1[ds]2. There is no merit in the second contention. Therefore it will be convenient to dispose it of even before going to the facts of the case. The assessing officer as well as the Appellate Assistant Commissioner of Commercial Taxes disallowed the two exemption asked for by the assessee on the ground that there was interpretation in the relative document covering the turnover. The Tribunal reversed that findings of those authorities and allowed the exemptions asked for. It appears from the order of the Tribunal that it proceeded on the basis that there was no interpolation. This finding of the Tribunal is essentially a finding of fact and hence we will not be justified in interferring with that finding and more so as the High Court has declined to interfere with that finding6. The turnover of the assessee during the year9 became charged with liability to payx under the 1939 Act as and when the assessee effected sales and the totalx liability of the assessee for that year became fixed under the same Act on March 31, 1959. Hence the charging section in the 1959 Act is not relevant for determining the liability of the assessee7. We shall now examine the relevant provisions of the 1939 Act and the 1959 Act. We shall first take up the material provisions in the 1939 Act. Sec.) defines the expression assessing authority as meaning any person authorised by the State Government to make any assessment under the Act. The expression Commercial Tax Officer is defined in sec) as meaning any person appointed to be a Commercial Tax Officer under sec. 2 B. The Deputy Commissioner is defined in sec.) as meaning any person appointed to be a Deputy Commissioner of Commercial Taxes under sec. 2B. Section 2B empowers the State Government to make appointments of as many Deputy Commissioner of Commercial Taxes and Commercial Tax Officers as they think fit for the purpose of performing the functions respectively conferred on them by or under the Act. The expression Appellate Tribunal is defined in sec. 2) as meaning the Tribunal appointed under sec., which empowered the Government to appoint a Tribunal consisting of three members to exercise the functions conferred on the Appellate Tribunal by or under the Act. Section 11 provided for appeal by the assessee objecting to an assessment made on him under sec. 9(2) within the prescribed period. Section 9 prescribed the procedure to be followed by the assessing authority. Section 12(1) conferred certain special powers on the Commercial Tax Officer. It said that the Commercial Tax Officer) suo moto or(ii) in cases in which an appeal does not lie to him under section 11, on application, call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of such proceeding, and may pass such order with respect thereto as he thinks fit8. The application under sec. 12 (1) (ii) could have been made even by the assessing authority. It may be also remembered that the Commercial Tax Officer was one of the authorities charged with the duty to see that no taxable turnover went untaxed. The power under sec. 12 (1) could have been exercised within three years from the date the assessee was served with assessment order. Power under sec. 12 (1) (ii) could have been exercised by the Commercial Tax Officer simultaneously with the exercise of his appellate power under sec. II(1)9. Section 12(2) conferred special powers on the Deputy Commissioner to call for and examine any order or proceeding recorded under the provisions of the Act satisfying himself as to the legality or propriety of that order or as to the regularity of such proceeding and may pass such order with respect thereto as he thinks fit. This power he could have exercised within four years from the date on which the assessment order was communicated to the assessee10. Section 12A provided for an appeal by an assessee objecting to an order relating to his assessment passed by the Commercial Tax Officer whether on appeal under sec. 11 or under sec. 12. (1) or by the Deputy Commissioner under sec. 12,. (2) subject to certain conditions with which we are not concerned in this case. The assessee as well as Deputy Commissioner were conferred with power to move the High Court under sec. 12B within the prescribed period against the order of the Appellate Tribunal on the ground that order either decided erroneously a question of law or it failed to decide the question of law arising for decision11. This takes us to the relevant provisions in the 1959 Act. Therein again the assessing authority is defined in sec. 2 (c) as meaning any person authorised by the Government or by any authority empowered by them to make assessment under the Act. Against the order of assessment made by the assessing authority an appeal by any person objecting to the assessment lies to the Appellate Assistant Commissioner appointed under sec. 28,. (3). Section 31 empowers the Appellate Assistant Commissioner to confirm, reduce, enhance or annul the assessment. The power to enhance the assessment was conferred on the Appellate Authority for the first time by the 1959 Act. Under this Act also the Deputy Commissioners power to suo moto revise the order of assessment is retained, subject to certain conditions. Any person objecting to the order made by the Appellate Assistant Commissioner under sec. 31 (3) or against the order made by the Deputy Commissioner under sec. 31 (1) can appeal to the Appellate Tribunal. Under sec. 38 the assessee or the Deputy Commissioner can take up a revision to the High Court either on the ground that the Tribunal has decided a question of law erroneously or it has failed to decide a question of law arising for decision12. In the matter of assessment, the purpose of the 1939 Act as well as the 1959 Act is identical. That purpose was and is to see that neither the assessee is over assessed nor the State is deprived of the Revenue to which it is entitled. Under the 1939 Act, an aggrieved assessee could first appeal to the Appellate Authority and then to Tribunal. Further he could on question of law go up in revision to the High Court. To protect the interest of the State, special powers were conferred on the Commercial Tax Officer as well as the Deputy Commissioner of Commercial Taxes. If the Deputy Commissioner was not satisfied with the decision of the Tribunal on questions of law, he could have gone up in revision to the High Court. Under the 1959 Act, the procedure was simplified to some extent. The Appellate Asstt. Commissioner who primarily took over the quasi judicial functions of the Commercial Tax Officer was conferred with power not only to confirm, vary or annul the assessment but also the power to enhance the assessment. The power conferred on him u/s. 31 of the 1959 Act combines to an extent both the appellate power as well as the special power the Commercial Tax Officer had under secs. 11 and 12(1) of the 1939 Act. Hence the changes effected by the 1959 Act in the machinery provisions do not touch the substance of the matter. Even as regards the time with in which the enhancement of assessment can be made the change excepting in exceptional cases is in favour of the assessee. The Commercial Tax Officer could have exercised his special powers under sec. 12 (1) of the 1939 Act within three years from the date the assessment order was served on the assessee. Under the 1959 Act, he can enhance the assessment only during the pendency of the appeal and not thereafter. Herein we are not concerned with the special powers of the Deputy Commissioner nor with the powers of the Tribunal or the High Court. In our opinion there is no basis for saying that the provisions of the 1959 Act relating to the determination of the assessment are more onerous than those in the 1939 Act. The 1959 Act in our opinion merely simplified the procedure without touching the substance of the right of the parties. No benefit that was available to an assessee as regards the procedure was taken away by the 1959 Act, if we ignore the remote possibility of an appeal pending before an Appellate Assistant Commissioner for more than three years and that authority falling to exercise his power to enhance the tax within that period. The assessee before us cannot even have the benefit of such a contingency because the order of assessment in this case was made on March 24, 1961 and the appellate order was passed on August 16, 1922. In this case it cannot be said that any vested right of the assessee had been in fact affected by the 1959 ActHence the 1959 Act does not adversely effect in any manner the right of appeal an assessee had under the 1939 Act. If one probes into the grievance of the assessee before us, it would be obvious that it is wholly imaginary. No assessee has any vested right in the procedure prescribed under the 1939 Act. So long as the new procedure laid down in the 1959 Act does not interfere with any of his vested rights, an assessee has no right to claim that his case must be dealt with under the provisions of the repealed Act. It is well settled that the new procedure prescribed by law governs all pending cases. As seen earlier, the assessee filed its appeal under sec. 31 of the 1959 Act and not sec. 11 of the 1939 Act. But that is a minor aspect. What is of the assence is that his right of appeal under the 1959 Act does not take away in any manner any of his vested rights under the 1939 Act15. In view of what we have said hereinbefore, it is not necessary for us to consider the meaning of the words any right, privilege ...... accrued ...... under the Act in sec. 61 (1) (ii) (c). We repeat that no right of the assessee was infringed by the provisions of the 1959 Act. In this view, it is not necessary to examine the scope of 61 (2) of the 1959 Act about which there was considerable argument before us17. These observations appear to us to be some what incongruous. As seen earlier under the 1939 Act, the Revenue could not have appealed either against the order of the assessing authority or against that of the appellate authority. If thee of the right of appeal on the part of the Department is considered as an immunity or protection and if that immunity or protection is considered as a vested right, the assessee will have that right both at the stage of appeal to the Appellate Assistant Commissioner as well as the stage of the appeal to the Tribunal. It is difficult to follow how the High Court was able to make a dichotomy as between the powers of the Appellate Assistant Commissioner and that of the Tribunal in that regard. If the new constituted Tribunal were clothed with wider and larger powers as opined by the High Court, the same would be the case with the Appellate Assistant Commissioner. In our opinion, the true test to be applied to the case was whether in fact any vested right of the assessee had been taken away under the 1959 Act because of the enlargement of the powers of the first appellate authority or that of the Tribunal. As seen earlier, no real right of the assessee was infringed by the 1959 Act because of the enlargement of the powers of those authorities18. This takes us to the decision in Balasundaram & Co.s case (supra). This case was decided by the same bench which decided Swami & Co.s case. Therein the assessee was assessed to sales tax under the 1939 Act. During the pendency of its appeal to the Commercial Tax Officer, the 1959 Act came into force. Its appeal was transferred to the Appellate Assistant Commissioner who enhanced the assessment. But on a further appeal, the Tribunal came to the conclusion that the Appellate Assistant Commissioner had no jurisdiction to enhance the assessment. As against that order, the Deputy Commissioner of Commercial Taxes went up in revision to the High Court. The High Court held that the assessee had a vested right at the time when the 1959 Act came into force to prevent the Commercial Tax Officer from enhancing the assessment in the course of the appeal preferred by him. However, there was always the peril of the Commercial Tax Officer, who was also the revising authority, revising the assessment to his prejudice in exercise of his revisional power, but that peril effectively disappeared when under the 1959 Act, the revisional power was conferred upon the Deputy Commissioner of Commercial Taxes and not upon the Appellate Commissioner. Thereafter the interference by the Appellate Assistant Commissioner with the assessment order passed by the Deputy Commercial Tax Officer to the prejudice of the assessee in the purported exercise of his appellate power, was clearly violative of the assessees vested rights. In our opinion this decision proceeded on a wrong basis. The question before the High Court was whether there was a vested right in the assessee not to have his assessment enhanced, under the 1939 Act and whether that vested right had been in any manner infringed by the 1959 Act. As seen earlier he had no such vested right under the 1939 Act. The fact that a different procedure is prescribed under the 1939 Act for enhancing the assessment cannot be said to be ant of a vested right. No one can have a vested right in a mere procedure. We are of opinion that Balasundarams case (supra) was wrongly decided and some of the observations in Swami & Cos case (supra) are not correct though the decision in that case is not open to questionIn view of our conclusion that vested right of the assessee had been interfered with. It is not necessary for us to go into this controversy. | 1 | 4,873 | 2,624 | ### Instruction:
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is a vested right, which cannot be interfered with or in any way impaired having regard to the specific provision of sec. 61 (1) of the Madras Act I of 1959. The order of the Appellate Assistant Commissioner only reduced the turnover to the benefit of the assessee, audit is clear that there was no violation of the vested right of the assessee by reason of the said order. The order of the Appellate Assistant Commissioner was passed after the coming into force of the 1959 Act and on that date the assessee had no vested right to prevent an enhancement of his assessment by the future appellate authority, namely the Tribunal. The Tribunal entertained an appeal at the instance of the assessee only under the new Act as the order appealed against was one passed after the coming into force of the new Act, and by a Tribunal which functioned under the new Act. It is impossible for the assessee to maintain the position that any order of the Appellate Tribunal enhancing the assessment made by the Appellate Assistant Commissioner would amount to deprivation of their vested rights or violation of the provisions of section 61(1) of the 1959 Act. 17. These observations appear to us to be some what incongruous. As seen earlier under the 1939 Act, the Revenue could not have appealed either against the order of the assessing authority or against that of the appellate authority. If the non-existence of the right of appeal on the part of the Department is considered as an immunity or protection and if that immunity or protection is considered as a vested right, the assessee will have that right both at the stage of appeal to the Appellate Assistant Commissioner as well as the stage of the appeal to the Tribunal. It is difficult to follow how the High Court was able to make a dichotomy as between the powers of the Appellate Assistant Commissioner and that of the Tribunal in that regard. If the new constituted Tribunal were clothed with wider and larger powers as opined by the High Court, the same would be the case with the Appellate Assistant Commissioner. In our opinion, the true test to be applied to the case was whether in fact any vested right of the assessee had been taken away under the 1959 Act because of the enlargement of the powers of the first appellate authority or that of the Tribunal. As seen earlier, no real right of the assessee was infringed by the 1959 Act because of the enlargement of the powers of those authorities. 18. This takes us to the decision in Balasundaram & Co.s case (supra). This case was decided by the same bench which decided Swami & Co.s case. Therein the assessee was assessed to sales tax under the 1939 Act. During the pendency of its appeal to the Commercial Tax Officer, the 1959 Act came into force. Its appeal was transferred to the Appellate Assistant Commissioner who enhanced the assessment. But on a further appeal, the Tribunal came to the conclusion that the Appellate Assistant Commissioner had no jurisdiction to enhance the assessment. As against that order, the Deputy Commissioner of Commercial Taxes went up in revision to the High Court. The High Court held that the assessee had a vested right at the time when the 1959 Act came into force to prevent the Commercial Tax Officer from enhancing the assessment in the course of the appeal preferred by him. However, there was always the peril of the Commercial Tax Officer, who was also the revising authority, revising the assessment to his prejudice in exercise of his revisional power, but that peril effectively disappeared when under the 1959 Act, the revisional power was conferred upon the Deputy Commissioner of Commercial Taxes and not upon the Appellate Commissioner. Thereafter the interference by the Appellate Assistant Commissioner with the assessment order passed by the Deputy Commercial Tax Officer to the prejudice of the assessee in the purported exercise of his appellate power, was clearly violative of the assessees vested rights. In our opinion this decision proceeded on a wrong basis. The question before the High Court was whether there was a vested right in the assessee not to have his assessment enhanced, under the 1939 Act and whether that vested right had been in any manner infringed by the 1959 Act. As seen earlier he had no such vested right under the 1939 Act. The fact that a different procedure is prescribed under the 1939 Act for enhancing the assessment cannot be said to be an infringement of a vested right. No one can have a vested right in a mere procedure. We are of opinion that Balasundarams case (supra) was wrongly decided and some of the observations in Swami & Cos case (supra) are not correct though the decision in that case is not open to question. 19. Mr. S. T. Desai, learned counsel for the Revenue placed strong reliance on the decision of a Division Bench of the Kerala High Court in Velukutty vs. Kerala Sales Tax Appellate Tribunal, Trivendrum and Ors. (3). Therein, interpreting provision similar to sec. 61(2) of Act, the High Court came to the conclusion that the clause be transferred to and disposed of by the officer or authority who would have jurisdiction to entertain such application, appeal, revision or other proceeding under this Act, if it had been in force on the date on which any application, appeal, revision or other proceeding was made or preferred conferred power on the appellate authority to enhance assessment. The correctness of this conclusion was contested by Mr. Shanker Das, learned counsel for the assessee. According to him that clause merely provided for transferance of the appeals pending before the authorities under the 1959 Act without enlarging their powers. In view of our conclusion that vested right of the assessee had been interfered with. It is not necessary for us to go into this controversy.
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to an assessee as regards the procedure was taken away by the 1959 Act, if we ignore the remote possibility of an appeal pending before an Appellate Assistant Commissioner for more than three years and that authority falling to exercise his power to enhance the tax within that period. The assessee before us cannot even have the benefit of such a contingency because the order of assessment in this case was made on March 24, 1961 and the appellate order was passed on August 16, 1922. In this case it cannot be said that any vested right of the assessee had been in fact affected by the 1959 ActHence the 1959 Act does not adversely effect in any manner the right of appeal an assessee had under the 1939 Act. If one probes into the grievance of the assessee before us, it would be obvious that it is wholly imaginary. No assessee has any vested right in the procedure prescribed under the 1939 Act. So long as the new procedure laid down in the 1959 Act does not interfere with any of his vested rights, an assessee has no right to claim that his case must be dealt with under the provisions of the repealed Act. It is well settled that the new procedure prescribed by law governs all pending cases. As seen earlier, the assessee filed its appeal under sec. 31 of the 1959 Act and not sec. 11 of the 1939 Act. But that is a minor aspect. What is of the assence is that his right of appeal under the 1959 Act does not take away in any manner any of his vested rights under the 1939 Act15. In view of what we have said hereinbefore, it is not necessary for us to consider the meaning of the words any right, privilege ...... accrued ...... under the Act in sec. 61 (1) (ii) (c). We repeat that no right of the assessee was infringed by the provisions of the 1959 Act. In this view, it is not necessary to examine the scope of 61 (2) of the 1959 Act about which there was considerable argument before us17. These observations appear to us to be some what incongruous. As seen earlier under the 1939 Act, the Revenue could not have appealed either against the order of the assessing authority or against that of the appellate authority. If thee of the right of appeal on the part of the Department is considered as an immunity or protection and if that immunity or protection is considered as a vested right, the assessee will have that right both at the stage of appeal to the Appellate Assistant Commissioner as well as the stage of the appeal to the Tribunal. It is difficult to follow how the High Court was able to make a dichotomy as between the powers of the Appellate Assistant Commissioner and that of the Tribunal in that regard. If the new constituted Tribunal were clothed with wider and larger powers as opined by the High Court, the same would be the case with the Appellate Assistant Commissioner. In our opinion, the true test to be applied to the case was whether in fact any vested right of the assessee had been taken away under the 1959 Act because of the enlargement of the powers of the first appellate authority or that of the Tribunal. As seen earlier, no real right of the assessee was infringed by the 1959 Act because of the enlargement of the powers of those authorities18. This takes us to the decision in Balasundaram & Co.s case (supra). This case was decided by the same bench which decided Swami & Co.s case. Therein the assessee was assessed to sales tax under the 1939 Act. During the pendency of its appeal to the Commercial Tax Officer, the 1959 Act came into force. Its appeal was transferred to the Appellate Assistant Commissioner who enhanced the assessment. But on a further appeal, the Tribunal came to the conclusion that the Appellate Assistant Commissioner had no jurisdiction to enhance the assessment. As against that order, the Deputy Commissioner of Commercial Taxes went up in revision to the High Court. The High Court held that the assessee had a vested right at the time when the 1959 Act came into force to prevent the Commercial Tax Officer from enhancing the assessment in the course of the appeal preferred by him. However, there was always the peril of the Commercial Tax Officer, who was also the revising authority, revising the assessment to his prejudice in exercise of his revisional power, but that peril effectively disappeared when under the 1959 Act, the revisional power was conferred upon the Deputy Commissioner of Commercial Taxes and not upon the Appellate Commissioner. Thereafter the interference by the Appellate Assistant Commissioner with the assessment order passed by the Deputy Commercial Tax Officer to the prejudice of the assessee in the purported exercise of his appellate power, was clearly violative of the assessees vested rights. In our opinion this decision proceeded on a wrong basis. The question before the High Court was whether there was a vested right in the assessee not to have his assessment enhanced, under the 1939 Act and whether that vested right had been in any manner infringed by the 1959 Act. As seen earlier he had no such vested right under the 1939 Act. The fact that a different procedure is prescribed under the 1939 Act for enhancing the assessment cannot be said to be ant of a vested right. No one can have a vested right in a mere procedure. We are of opinion that Balasundarams case (supra) was wrongly decided and some of the observations in Swami & Cos case (supra) are not correct though the decision in that case is not open to questionIn view of our conclusion that vested right of the assessee had been interfered with. It is not necessary for us to go into this controversy.
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Municipal Corporation Of Delhi Vs. Tek Chand Bhatia | an article of food is sold in the same condition in which it was purchased from the manufacturer or dealer, the vendor i.e., the retailer, like the respondent will not lose the protection of sub-section (2) of Section 19 particularly when it is certified to be of good quality. We are afraid we cannot appreciate this line of reasoning. The two decisions in Ranganatha Reddiars case and in Andhra Pradesh Grain & Seed Merchants case are clearly distinguishable. In the former case, the cash memo contained the words quality is up to the mark which meant that the quality of the article supplied was upto the standard required by the Act and the vendee. It was observed. : It must be remembered that it is not a document drafted by a solicitor; it is a document using the language of a tradesman. Any tradesman, when he is assured that the quality of the article is up to the mark will readily conclude that he is being assured that the article is not adulterated. In the latter case, it was a branded article of food, and it was said : If the article of food is sold in the same condition in which it was from a licensed manufacturer or dealer, or was purchased with a warranty, the vendor will not lose the protection of sub-section (2) of Section 19 merely because he opened the container. If the vendor has obtained the article from a licenced manufacturer, distributor or dealer or from a manufacturer, distributor or dealer with a warranty, he is protected, provided he has properly stored the article and sells it in the same state as he purchased the article, even if it turns out that the article was adulterated or misbranded. In the absence of any evidence that the respondent had purchased the cashew nuts under warranty, these authorities are of no. avail. 19. Part IX of the Prevention of Food Adulteration Rules 1855 deals with the condition of sale and licence. Rule 50 stated that no. person shall manufacture, sell, stock, distribute or exhibit for sale the articles of food mentioned therein except under a licence. nuts is one of the articles mentioned therein. It is wide enough to include cashew nuts. Originally the rules did not prescribe the standards of the quality or purity in relation to dry-fruits. That lacuna has, however, now been removed by the insertion of Rule 48-B, which is in these terms : 48-B. Sale of insect-damaged dry fruits and nuts. - The dry fruits and nuts like raisins, currents, figs, cashewnuts, apricots, almonds may contain not more than 5 per cent of insect-damaged fruits and nuts, by count. 20. Rule 12A which deals with warranty reads thus : Rule 12-A. Warranty - Every trader selling an article of food to a vendor shall, if the vendor so requires, deliver to the vendor a warranty in Form VI-A : Provided that no. warranty in such form shall be necessary if the lable on the article of food or the cash memo delivered by the trader to the vendor in respect of that article contains a warranty certifying that the food contained in the package or container or mentioned in the cash memo is the same in nature, substance and quality as demanded by the vendor. Explanation : The term trader shall mean an importer, manufacturer, wholesale dealer or an authorised agent of such importer, manufacturer or wholesale dealer. Admittedly, there was no. warranty in the prescribed form in the instant case. The testimony of the two Food Inspector, S. L. Mehra, PW 1, and H. K. Bhanot, PW 3, no. doubt show that they bought the samples out of the sealed tins, but there is nothing to show that they were tins bearing the manufacturers lable guaranteeing purity. 20A. In R. G. Pamnani v. State of Maharashtra (1975) 2 SCR 886 this Court after distinguishing Andhra Pradesh Grain & Seed Merchants case observed : The reason why a warranty is required in both the cases contemplated in Section 19 (2) (a) (i) and (ii) is that if waranty were not to be insisted upon by the statute and if a vendor would be permitted to have a defence merely by stating that the vendor purchased the goods from a licenced manufacturer, distributor or dealer adulterated or misbranded articles would be marketed by manufacturers, distributors, dealers as well as purchasers from them with impunity. That is why a written warranty is enjoined in both the case in Section 19 (2) (a) (i) and (ii). Sec. 19 (2) (a) of the Act will provide a defence where a vendor purchases articles of food from a licensed manufacturer, distributor or dealer with a written warranty in the prescribed form. Again, a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased the article from any manufacturer, distributor or dealer with a written warranty in the prescribed form. These salutary provisions are designed for the health of the nation. Therefore, a warranty is enjoined. No. laxity should be permitted. (Emphasis supplied). 21. That, in our opinion, really concludes the matter. In the instant case, there is no. proof that the samples were taken from tins bearing the manufacturers label guaranteeing purity of goods, nor is there any such warranty in the invoice Ext. DW 3/A. It is, however, urged that the tins bore the imprint Good. There is nothing to substantiate this fact, and even if it were so, it is of little consequence. The word Good on which great emphasis is placed merely contains a description of the goods. At the most it amounts to puffing of goods. The word Good is not a warranty as to quality. The respondent is, therefore, not protected under Section 19 (2) of the Prevention of Food Adulteration Act, 1954 read with Rule 12A of the rules framed under the Act. | 1[ds]7. We are of the opinion that the High Court was clearly wrong in its interpretation of Section 2 (1) (f). On the plain language of the definition section, it is quite apparent that the words or is otherwise unfit for human consumption are disjunctive of the rest of the words preceding them. It relates to a distinct and separate class altogether. # It seems to us that the last clause or is otherwise unfit for human consumption is residuary provision which would apply to a case not covered by or falling squarely within the clauses preceding it. # If the phrase is to be read disjunctively the mere proof of the article of food beings filthy, putrid, rotten, decomposed.....or insect infested would be per se sufficient to bring the case within the purview of the word adulterated as defined in sub-clause (f) and it would not be necessary in such a case to prove further that the article of food was unfit for human consumptionAdmittedly, there was no. warranty in the prescribed form in the instant case. The testimony of the two Food Inspector, S. L. Mehra, PW 1, and H. K. Bhanot, PW 3, no. doubt show that they bought the samples out of the sealed tins, but there is nothing to show that they were tins bearing the manufacturers lable guaranteeing purity20A. In R. G. Pamnani v. State of Maharashtra (1975) 2 SCR 886 this Court after distinguishing Andhra Pradesh Grain & Seed Merchants case observed :The reason why a warranty is required in both the cases contemplated in Section 19 (2) (a) (i) and (ii) is that if waranty were not to be insisted upon by the statute and if a vendor would be permitted to have a defence merely by stating that the vendor purchased the goods from a licenced manufacturer, distributor or dealer adulterated or misbranded articles would be marketed by manufacturers, distributors, dealers as well as purchasers from them with impunity. That is why a written warranty is enjoined in both the case in Section 19 (2) (a) (i) and (ii). Sec. 19 (2) (a) of the Act will provide a defence where a vendor purchases articles of food from a licensed manufacturer, distributor or dealer with a written warranty in the prescribed form. Again, a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased the article from any manufacturer, distributor or dealer with a written warranty in the prescribed form. These salutary provisions are designed for the health of the nation. Therefore, a warranty is enjoined. No. laxity should be permitted. (Emphasis supplied)21. That, in our opinion, really concludes the matter. In the instant case, there is no. proof that the samples were taken from tins bearing the manufacturers label guaranteeing purity of goods, nor is there any such warranty in the invoice Ext. DW 3/A. It is, however, urged that the tins bore the imprint Good. There is nothing to substantiate this fact, and even if it were so, it is of little consequence. The word Good on which great emphasis is placed merely contains a description of the goods. At the most it amounts to puffing of goods. The word Good is not a warranty as to quality. The respondent is, therefore, not protected under Section 19 (2) ofthe Prevention of Food Adulteration Act, 1954 read with Rule 12A of the rules framed under the Act. | 1 | 4,168 | 683 | ### 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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an article of food is sold in the same condition in which it was purchased from the manufacturer or dealer, the vendor i.e., the retailer, like the respondent will not lose the protection of sub-section (2) of Section 19 particularly when it is certified to be of good quality. We are afraid we cannot appreciate this line of reasoning. The two decisions in Ranganatha Reddiars case and in Andhra Pradesh Grain & Seed Merchants case are clearly distinguishable. In the former case, the cash memo contained the words quality is up to the mark which meant that the quality of the article supplied was upto the standard required by the Act and the vendee. It was observed. : It must be remembered that it is not a document drafted by a solicitor; it is a document using the language of a tradesman. Any tradesman, when he is assured that the quality of the article is up to the mark will readily conclude that he is being assured that the article is not adulterated. In the latter case, it was a branded article of food, and it was said : If the article of food is sold in the same condition in which it was from a licensed manufacturer or dealer, or was purchased with a warranty, the vendor will not lose the protection of sub-section (2) of Section 19 merely because he opened the container. If the vendor has obtained the article from a licenced manufacturer, distributor or dealer or from a manufacturer, distributor or dealer with a warranty, he is protected, provided he has properly stored the article and sells it in the same state as he purchased the article, even if it turns out that the article was adulterated or misbranded. In the absence of any evidence that the respondent had purchased the cashew nuts under warranty, these authorities are of no. avail. 19. Part IX of the Prevention of Food Adulteration Rules 1855 deals with the condition of sale and licence. Rule 50 stated that no. person shall manufacture, sell, stock, distribute or exhibit for sale the articles of food mentioned therein except under a licence. nuts is one of the articles mentioned therein. It is wide enough to include cashew nuts. Originally the rules did not prescribe the standards of the quality or purity in relation to dry-fruits. That lacuna has, however, now been removed by the insertion of Rule 48-B, which is in these terms : 48-B. Sale of insect-damaged dry fruits and nuts. - The dry fruits and nuts like raisins, currents, figs, cashewnuts, apricots, almonds may contain not more than 5 per cent of insect-damaged fruits and nuts, by count. 20. Rule 12A which deals with warranty reads thus : Rule 12-A. Warranty - Every trader selling an article of food to a vendor shall, if the vendor so requires, deliver to the vendor a warranty in Form VI-A : Provided that no. warranty in such form shall be necessary if the lable on the article of food or the cash memo delivered by the trader to the vendor in respect of that article contains a warranty certifying that the food contained in the package or container or mentioned in the cash memo is the same in nature, substance and quality as demanded by the vendor. Explanation : The term trader shall mean an importer, manufacturer, wholesale dealer or an authorised agent of such importer, manufacturer or wholesale dealer. Admittedly, there was no. warranty in the prescribed form in the instant case. The testimony of the two Food Inspector, S. L. Mehra, PW 1, and H. K. Bhanot, PW 3, no. doubt show that they bought the samples out of the sealed tins, but there is nothing to show that they were tins bearing the manufacturers lable guaranteeing purity. 20A. In R. G. Pamnani v. State of Maharashtra (1975) 2 SCR 886 this Court after distinguishing Andhra Pradesh Grain & Seed Merchants case observed : The reason why a warranty is required in both the cases contemplated in Section 19 (2) (a) (i) and (ii) is that if waranty were not to be insisted upon by the statute and if a vendor would be permitted to have a defence merely by stating that the vendor purchased the goods from a licenced manufacturer, distributor or dealer adulterated or misbranded articles would be marketed by manufacturers, distributors, dealers as well as purchasers from them with impunity. That is why a written warranty is enjoined in both the case in Section 19 (2) (a) (i) and (ii). Sec. 19 (2) (a) of the Act will provide a defence where a vendor purchases articles of food from a licensed manufacturer, distributor or dealer with a written warranty in the prescribed form. Again, a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased the article from any manufacturer, distributor or dealer with a written warranty in the prescribed form. These salutary provisions are designed for the health of the nation. Therefore, a warranty is enjoined. No. laxity should be permitted. (Emphasis supplied). 21. That, in our opinion, really concludes the matter. In the instant case, there is no. proof that the samples were taken from tins bearing the manufacturers label guaranteeing purity of goods, nor is there any such warranty in the invoice Ext. DW 3/A. It is, however, urged that the tins bore the imprint Good. There is nothing to substantiate this fact, and even if it were so, it is of little consequence. The word Good on which great emphasis is placed merely contains a description of the goods. At the most it amounts to puffing of goods. The word Good is not a warranty as to quality. The respondent is, therefore, not protected under Section 19 (2) of the Prevention of Food Adulteration Act, 1954 read with Rule 12A of the rules framed under the Act.
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1
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7. We are of the opinion that the High Court was clearly wrong in its interpretation of Section 2 (1) (f). On the plain language of the definition section, it is quite apparent that the words or is otherwise unfit for human consumption are disjunctive of the rest of the words preceding them. It relates to a distinct and separate class altogether. # It seems to us that the last clause or is otherwise unfit for human consumption is residuary provision which would apply to a case not covered by or falling squarely within the clauses preceding it. # If the phrase is to be read disjunctively the mere proof of the article of food beings filthy, putrid, rotten, decomposed.....or insect infested would be per se sufficient to bring the case within the purview of the word adulterated as defined in sub-clause (f) and it would not be necessary in such a case to prove further that the article of food was unfit for human consumptionAdmittedly, there was no. warranty in the prescribed form in the instant case. The testimony of the two Food Inspector, S. L. Mehra, PW 1, and H. K. Bhanot, PW 3, no. doubt show that they bought the samples out of the sealed tins, but there is nothing to show that they were tins bearing the manufacturers lable guaranteeing purity20A. In R. G. Pamnani v. State of Maharashtra (1975) 2 SCR 886 this Court after distinguishing Andhra Pradesh Grain & Seed Merchants case observed :The reason why a warranty is required in both the cases contemplated in Section 19 (2) (a) (i) and (ii) is that if waranty were not to be insisted upon by the statute and if a vendor would be permitted to have a defence merely by stating that the vendor purchased the goods from a licenced manufacturer, distributor or dealer adulterated or misbranded articles would be marketed by manufacturers, distributors, dealers as well as purchasers from them with impunity. That is why a written warranty is enjoined in both the case in Section 19 (2) (a) (i) and (ii). Sec. 19 (2) (a) of the Act will provide a defence where a vendor purchases articles of food from a licensed manufacturer, distributor or dealer with a written warranty in the prescribed form. Again, a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased the article from any manufacturer, distributor or dealer with a written warranty in the prescribed form. These salutary provisions are designed for the health of the nation. Therefore, a warranty is enjoined. No. laxity should be permitted. (Emphasis supplied)21. That, in our opinion, really concludes the matter. In the instant case, there is no. proof that the samples were taken from tins bearing the manufacturers label guaranteeing purity of goods, nor is there any such warranty in the invoice Ext. DW 3/A. It is, however, urged that the tins bore the imprint Good. There is nothing to substantiate this fact, and even if it were so, it is of little consequence. The word Good on which great emphasis is placed merely contains a description of the goods. At the most it amounts to puffing of goods. The word Good is not a warranty as to quality. The respondent is, therefore, not protected under Section 19 (2) ofthe Prevention of Food Adulteration Act, 1954 read with Rule 12A of the rules framed under the Act.
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ACC Limited (Formerly known as the Associated Cement Co. Ltd) Vs. Global Cements Ltd | Generally, this stands out as an exception and that should be discernible from the language of the arbitration clause and the intention of the parties. In the absence of such debarment or prohibition of appointment of a substitute arbitrator, the court’s duty is to give effect to the policy of law that is to promote efficacy of arbitration. 19. We are of the view that the time factor mentioned in the arbitration clause “at any time” is a clear indication of the intention of the parties and is used in various statutory provisions as well and the meaning of the same has been interpreted by this Court in various judgments. In Situ Sahu and Others v. State of Jharkhand and Others [(2004) 8 SCC 340] , this Court dealt with Sections 71-A and 71-B of the Chota Nagpur Tenancy Act, 1908 wherein the power was given to the Deputy Commissioner to restore - possession of “raiyat” belonging to Scheduled Tribes transferred in contravention of the provisions of the Act or fraudulently. Section 71-A provides that “if at any time it comes to the notice of the Deputy Commissioner that transfer of land belonging to a raiyat……. who is a member of the Scheduled Tribes has taken plea in contravention of……….. any other provisions of this Act or by any fraudulent method…..” This Court took the view that the words “at any time” in Section 71-A is evidence of the legislative intent to give sufficient flexibility to the Deputy Commissioner to implement the socio-economic policy of the Act, namely to prevent inroads upon the rights of the ignorant, illiterate and backward citizens. Certainly, the expression of the words “at any time” used in Clause 21 of the Arbitration Agreement is to give effect to the policy of the Act which is to promote efficacy of arbitration. 20. In Ibrahimpatnam Taluk Vyavasaya Coolie Sanghem v. K. Suresh Reddy and Others AIR [2003 SC 3592 ], this Court examined the scope of Section 50-B of the Andhra Pradesh (Talangana Area) Tenancy and Agricultural Lands Act, 1950. The Court, while interpreting the words “at any time”, took the view that - the use of the words “at any time” in sub-section (4) of Section 50-B of the Act cannot be rigidly read letter by letter. It must be read and construed contextually and reasonably. The Court also opined that the words “at any time” must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation. In New Delhi Municipal Committee v. Life Insurance Corporation of India and Others (1977) 4 SCC 84 , this Court was interpreting the expression of the words “at any time” which finds its place in Section 67 of the Punjab Municipal Act, 1911 read with Section 68A which gave power to the Municipal authorities to amend the assessment list. The Court held that the term “at any time” implies that the list may be amended retrospectively. Stating otherwise would amount to denying to the expression “at any time” even its plain, grammatical meaning, quite apart from ignoring the context in which it occurs and the beneficent purpose of its incorporation. The Court held that the expression must be given its full force and effect, which requires the recognition of the committee’s power to amend an assessment list even after the expiry of the year following the one in which the list was finalized by due authentication. - These decisions are, therefore, to the effect that the expression “at any time” has to be interpreted contextually and reasonably taking note of the intention of the parties. 21. We have carefully gone through the arbitration clause in the Agreement dated 16.12.1989 and, in our view, the words “at any time” which appear in Clause 21, is of considerable importance. “At any time” expresses a time when an event takes place expressing a particular state or condition that is when the dispute or difference arises. The arbitration clause 21 has no nexus with the life time of the named arbitrator. The expression “at any time” used in the arbitration clause has nexus only to the time frame within which the question or dispute or difference arises between the parties be resolved. Those disputes and differences could be resolved during the life time of the named arbitrators or beyond their life time. The incident of the death of the named arbitrators has no nexus or linkage with the expression “at any time” used in clause 21 of the Agreement. The time factor mentioned therein is the time within which the question or dispute or difference between the parties is resolved as per the Agreement. Arbitration clause would have life - so long as any question or dispute or difference between the parties exists unless the language of the clause clearly expresses an intention to the contrary. The question may also arise in a given case that the named arbitrators may refuse to arbitrate disputes, in such a situation also, it is possible for the parties to appoint a substitute arbitrator unless the clause provides to the contrary. Objection can be raised by the parties only if there is a clear prohibition or debarment in resolving the question or dispute or difference between the parties in case of death of the named arbitrator or their non-availability, by a substitute arbitrator.22. We are of the view clause 21 does not prohibit or debar the parties in appointing a substitute arbitrator in place of the named arbitrators and, in the absence of any prohibition or debarment, parties can persuade the court for appointment of an arbitrator under clause 21 of the agreement.23. The High Court in our view was justified in entertaining such an application and appointing a former Judge of this Court as a - sole arbitrator under the Arbitration and Conciliation Act, 1996 to adjudicate the dispute and difference between the parties.24. In view of the above mentioned reasons, we | 1[ds]21. We have carefully gone through the arbitration clause in the Agreement dated 16.12.1989 and, in our view, the wordswhich appear in Clause 21, is of considerable importance.expresses a time when an event takes place expressing a particular state or condition that is when the dispute or difference arises. The arbitration clause 21 has no nexus with the life time of the named arbitrator. The expressionused in the arbitration clause has nexus only to the time frame within which the question or dispute or difference arises between the parties be resolved. Those disputes and differences could be resolved during the life time of the named arbitrators or beyond their life time. The incident of the death of the named arbitrators has no nexus or linkage with the expressionused in clause 21 of the Agreement. The time factor mentioned therein is the time within which the question or dispute or difference between the parties is resolved as per the Agreement. Arbitration clause would have life - so long as any question or dispute or difference between the parties exists unless the language of the clause clearly expresses an intention to the contrary. The question may also arise in a given case that the named arbitrators may refuse to arbitrate disputes, in such a situation also, it is possible for the parties to appoint a substitute arbitrator unless the clause provides to the contrary. Objection can be raised by the parties only if there is a clear prohibition or debarment in resolving the question or dispute or difference between the parties in case of death of the named arbitrator or their non-availability, by a substitute arbitrator.22. We are of the view clause 21 does not prohibit or debar the parties in appointing a substitute arbitrator in place of the named arbitrators and, in the absence of any prohibition or debarment, parties can persuade the court for appointment of an arbitrator under clause 21 of the agreement.23. The High Court in our view wasjustified in entertainingn application and appointing a formerJudge of thisCourt as a- sole arbitrator under the Arbitration and Conciliation Act, 1996 to adjudicate the dispute and difference between the parties. | 1 | 3,327 | 385 | ### 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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Generally, this stands out as an exception and that should be discernible from the language of the arbitration clause and the intention of the parties. In the absence of such debarment or prohibition of appointment of a substitute arbitrator, the court’s duty is to give effect to the policy of law that is to promote efficacy of arbitration. 19. We are of the view that the time factor mentioned in the arbitration clause “at any time” is a clear indication of the intention of the parties and is used in various statutory provisions as well and the meaning of the same has been interpreted by this Court in various judgments. In Situ Sahu and Others v. State of Jharkhand and Others [(2004) 8 SCC 340] , this Court dealt with Sections 71-A and 71-B of the Chota Nagpur Tenancy Act, 1908 wherein the power was given to the Deputy Commissioner to restore - possession of “raiyat” belonging to Scheduled Tribes transferred in contravention of the provisions of the Act or fraudulently. Section 71-A provides that “if at any time it comes to the notice of the Deputy Commissioner that transfer of land belonging to a raiyat……. who is a member of the Scheduled Tribes has taken plea in contravention of……….. any other provisions of this Act or by any fraudulent method…..” This Court took the view that the words “at any time” in Section 71-A is evidence of the legislative intent to give sufficient flexibility to the Deputy Commissioner to implement the socio-economic policy of the Act, namely to prevent inroads upon the rights of the ignorant, illiterate and backward citizens. Certainly, the expression of the words “at any time” used in Clause 21 of the Arbitration Agreement is to give effect to the policy of the Act which is to promote efficacy of arbitration. 20. In Ibrahimpatnam Taluk Vyavasaya Coolie Sanghem v. K. Suresh Reddy and Others AIR [2003 SC 3592 ], this Court examined the scope of Section 50-B of the Andhra Pradesh (Talangana Area) Tenancy and Agricultural Lands Act, 1950. The Court, while interpreting the words “at any time”, took the view that - the use of the words “at any time” in sub-section (4) of Section 50-B of the Act cannot be rigidly read letter by letter. It must be read and construed contextually and reasonably. The Court also opined that the words “at any time” must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation. In New Delhi Municipal Committee v. Life Insurance Corporation of India and Others (1977) 4 SCC 84 , this Court was interpreting the expression of the words “at any time” which finds its place in Section 67 of the Punjab Municipal Act, 1911 read with Section 68A which gave power to the Municipal authorities to amend the assessment list. The Court held that the term “at any time” implies that the list may be amended retrospectively. Stating otherwise would amount to denying to the expression “at any time” even its plain, grammatical meaning, quite apart from ignoring the context in which it occurs and the beneficent purpose of its incorporation. The Court held that the expression must be given its full force and effect, which requires the recognition of the committee’s power to amend an assessment list even after the expiry of the year following the one in which the list was finalized by due authentication. - These decisions are, therefore, to the effect that the expression “at any time” has to be interpreted contextually and reasonably taking note of the intention of the parties. 21. We have carefully gone through the arbitration clause in the Agreement dated 16.12.1989 and, in our view, the words “at any time” which appear in Clause 21, is of considerable importance. “At any time” expresses a time when an event takes place expressing a particular state or condition that is when the dispute or difference arises. The arbitration clause 21 has no nexus with the life time of the named arbitrator. The expression “at any time” used in the arbitration clause has nexus only to the time frame within which the question or dispute or difference arises between the parties be resolved. Those disputes and differences could be resolved during the life time of the named arbitrators or beyond their life time. The incident of the death of the named arbitrators has no nexus or linkage with the expression “at any time” used in clause 21 of the Agreement. The time factor mentioned therein is the time within which the question or dispute or difference between the parties is resolved as per the Agreement. Arbitration clause would have life - so long as any question or dispute or difference between the parties exists unless the language of the clause clearly expresses an intention to the contrary. The question may also arise in a given case that the named arbitrators may refuse to arbitrate disputes, in such a situation also, it is possible for the parties to appoint a substitute arbitrator unless the clause provides to the contrary. Objection can be raised by the parties only if there is a clear prohibition or debarment in resolving the question or dispute or difference between the parties in case of death of the named arbitrator or their non-availability, by a substitute arbitrator.22. We are of the view clause 21 does not prohibit or debar the parties in appointing a substitute arbitrator in place of the named arbitrators and, in the absence of any prohibition or debarment, parties can persuade the court for appointment of an arbitrator under clause 21 of the agreement.23. The High Court in our view was justified in entertaining such an application and appointing a former Judge of this Court as a - sole arbitrator under the Arbitration and Conciliation Act, 1996 to adjudicate the dispute and difference between the parties.24. In view of the above mentioned reasons, we
### Response:
1
### Explanation:
21. We have carefully gone through the arbitration clause in the Agreement dated 16.12.1989 and, in our view, the wordswhich appear in Clause 21, is of considerable importance.expresses a time when an event takes place expressing a particular state or condition that is when the dispute or difference arises. The arbitration clause 21 has no nexus with the life time of the named arbitrator. The expressionused in the arbitration clause has nexus only to the time frame within which the question or dispute or difference arises between the parties be resolved. Those disputes and differences could be resolved during the life time of the named arbitrators or beyond their life time. The incident of the death of the named arbitrators has no nexus or linkage with the expressionused in clause 21 of the Agreement. The time factor mentioned therein is the time within which the question or dispute or difference between the parties is resolved as per the Agreement. Arbitration clause would have life - so long as any question or dispute or difference between the parties exists unless the language of the clause clearly expresses an intention to the contrary. The question may also arise in a given case that the named arbitrators may refuse to arbitrate disputes, in such a situation also, it is possible for the parties to appoint a substitute arbitrator unless the clause provides to the contrary. Objection can be raised by the parties only if there is a clear prohibition or debarment in resolving the question or dispute or difference between the parties in case of death of the named arbitrator or their non-availability, by a substitute arbitrator.22. We are of the view clause 21 does not prohibit or debar the parties in appointing a substitute arbitrator in place of the named arbitrators and, in the absence of any prohibition or debarment, parties can persuade the court for appointment of an arbitrator under clause 21 of the agreement.23. The High Court in our view wasjustified in entertainingn application and appointing a formerJudge of thisCourt as a- sole arbitrator under the Arbitration and Conciliation Act, 1996 to adjudicate the dispute and difference between the parties.
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Seshasayee Paper & Boards Limited, Erode Vs. Collector Of Central Excise, Coimbatore | to the purchaser in accordance with the normal practice of the trade. The appellant has engaged several dealers with a view to promote its sales. A specimen of the usual agreements entered into by the appellant with its dealers has been taken on record. The opening part of the said agreement shows that appellant is referred to in the agreement as the company and the contracting dealers is referred to as the Indentor. We propose to refer to the dealers engaged by the appellant to promote the sales of its products as "Indentors" for the sake of convenience. Clause (3) of the agreement shows that the Indentor agreed to purchase in his own name or procure acceptable indents from third parties for paper and paper boards manufactured by the company (sic) of such quantities and varieties as set out in the Schedule A to the agreement. The Indentors agreed to deposit with the company a certain amount of money as security. Clause (8) of the agreement shows that the Indentors held themselves responsible for the immediate clearance of the documents relating to the supply of paper on presentation by the bankers and that all bank charges other than discounting charges would be on the consignees account. 4. It is common ground that in the invoices in respect of the paper and paper boards supplied and sold pursuant to the aforesaid agreement with the Indentors, in most cases the name of the dealer concerned was shown as the Indentor and the names of the parties to whom the goods were to be delivered were shown as the purchasers but in some cases the Indentors were themselves shown as purchasers. It was urged by Dr. Gauri Shanker, learned counsel for the appellant, that although the discount allowed to the Indentors in respect of some of the aforesaid sales might have been described as service charge discount that name could not govern the real nature of the translation and the discount was really a trade discount. It was submitted by him that this discount should have been allowed a deduction in the determination of the normal price of the aforesaid goods for the purpose of levy of excise duty. He relied upon the decision of the court in Union of India v. Bombay Tyres International Pvt. Ltd. ((1983) 4 SCC 210 : 1882 SCC (Tax) 315 : (1984) 17 ELT 329 ) and submitted that the nomenclature given to the discount could not be regarded as decisive of the real nature of the discount. There can be no quarrel with this proposition. But it is equally well settled that in the determination of the national price for the purposes of levy of excise duty, it is only a normal trade discount which is paid to the purchaser which can be allowed as a deduction and commission paid to selling agents for services rendered by them as agents cannot be regarded as a trade discount qualifying for deduction (Coromandel Fertilizers Limited v. Union of India (1984 Supp SCC 457 : 1984 SCC (Tax) 225 : (1984) 17 ELT 607 )). The correctness of this proposed was not disputed by learned counsel for the appellant but it was submitted by him that in several cases where supplies had been effected pursuant to the aforesaid agreements, the Indentors were really themselves the purchasers and hence, the normal trade discount paid to them should have been allowed a deduction in the determination of the normal price for the purpose of levy of excise duty. We find from the judgment of the Tribunal and the lower authorities that there is no dispute that wherever the indentors are shown as the purchasers in the respective invoices, the trade discount given to them has been allowed as a deduction. Moreover, to obviate any controversy in this regard, learned Attorney General who appears for the respondent fairly states that when the matter goes back to the Tribunal, the respondent is agreeable that the normal trade discount may be allowed in those cases where the Indentors is also shown as the purchaser in the concerned invoice. It is, however, submitted by learned counsel for the appellant that although in some of the cases the indentor might not be shown as the purchaser and the purchaser shown is a different party, yet the real nature of the transaction was that the Indentor purchased the goods referred to in the said invoice and in turn sold it to a customer whose name was shown as the purchaser in the invoice for the sake of convenience so that delivery could be directly effected to him. We are of the view that it is not open to the appellant to raise this contention at this stage. No case ever been made out right up to the Tribunal and even before the Tribunal that in respect of any particulars invoice although the name of the purchase was other than that of the Indentor, it was really the Indentor who was the purchaser and he in turn has sold the goods to the third party whose name was shown as purchaser or even that the Indentor had entered into transaction as the agent of the purchaser. If such a contention had been raised the factual position could have been examined and different considerations might have been applied. But it is certainly not open to the appellant to raise this contention at this stage, in this appeal, particularly keeping in mind that the Tribunal is the final fact-finding authority. No other contention has been raised before us. 5. In our opinion, there is no merit in the appeal. There will, however, be one clarification that, as agreed to by learned Attorney General, if in any case the purchaser named in the invoice is the same as the Indentor, normal trade discount given to the Indentor will be allowed as a deduction in the determination of the normal price for the levy of excise duty subject to other relevant considerations. | 0[ds]t is common ground that in the invoices in respect of the paper and paper boards supplied and sold pursuant to the aforesaid agreement with the Indentors, in most cases the name of the dealer concerned was shown as the Indentor and the names of the parties to whom the goods were to be delivered were shown as the purchasers but in some cases the Indentors were themselves shown ascan be no quarrel with this proposition. But it is equally well settled that in the determination of the national price for the purposes of levy of excise duty, it is only a normal trade discount which is paid to the purchaser which can be allowed as a deduction and commission paid to selling agents for services rendered by them as agents cannot be regarded as a trade discount qualifying forfind from the judgment of the Tribunal and the lower authorities that there is no dispute that wherever the indentors are shown as the purchasers in the respective invoices, the trade discount given to them has been allowed as aare of the view that it is not open to the appellant to raise this contention at this stage. No case ever been made out right up to the Tribunal and even before the Tribunal that in respect of any particulars invoice although the name of the purchase was other than that of the Indentor, it was really the Indentor who was the purchaser and he in turn has sold the goods to the third party whose name was shown as purchaser or even that the Indentor had entered into transaction as the agent of the purchaser. If such a contention had been raised the factual position could have been examined and different considerations might have been applied. But it is certainly not open to the appellant to raise this contention at this stage, in this appeal, particularly keeping in mind that the Tribunal is the finalIn our opinion, there is no merit in the appeal. There will, however, be one clarification that, as agreed to by learned Attorney General, if in any case the purchaser named in the invoice is the same as the Indentor, normal trade discount given to the Indentor will be allowed as a deduction in the determination of the normal price for the levy of excise duty subject to other relevant considerations. | 0 | 1,448 | 418 | ### 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:
to the purchaser in accordance with the normal practice of the trade. The appellant has engaged several dealers with a view to promote its sales. A specimen of the usual agreements entered into by the appellant with its dealers has been taken on record. The opening part of the said agreement shows that appellant is referred to in the agreement as the company and the contracting dealers is referred to as the Indentor. We propose to refer to the dealers engaged by the appellant to promote the sales of its products as "Indentors" for the sake of convenience. Clause (3) of the agreement shows that the Indentor agreed to purchase in his own name or procure acceptable indents from third parties for paper and paper boards manufactured by the company (sic) of such quantities and varieties as set out in the Schedule A to the agreement. The Indentors agreed to deposit with the company a certain amount of money as security. Clause (8) of the agreement shows that the Indentors held themselves responsible for the immediate clearance of the documents relating to the supply of paper on presentation by the bankers and that all bank charges other than discounting charges would be on the consignees account. 4. It is common ground that in the invoices in respect of the paper and paper boards supplied and sold pursuant to the aforesaid agreement with the Indentors, in most cases the name of the dealer concerned was shown as the Indentor and the names of the parties to whom the goods were to be delivered were shown as the purchasers but in some cases the Indentors were themselves shown as purchasers. It was urged by Dr. Gauri Shanker, learned counsel for the appellant, that although the discount allowed to the Indentors in respect of some of the aforesaid sales might have been described as service charge discount that name could not govern the real nature of the translation and the discount was really a trade discount. It was submitted by him that this discount should have been allowed a deduction in the determination of the normal price of the aforesaid goods for the purpose of levy of excise duty. He relied upon the decision of the court in Union of India v. Bombay Tyres International Pvt. Ltd. ((1983) 4 SCC 210 : 1882 SCC (Tax) 315 : (1984) 17 ELT 329 ) and submitted that the nomenclature given to the discount could not be regarded as decisive of the real nature of the discount. There can be no quarrel with this proposition. But it is equally well settled that in the determination of the national price for the purposes of levy of excise duty, it is only a normal trade discount which is paid to the purchaser which can be allowed as a deduction and commission paid to selling agents for services rendered by them as agents cannot be regarded as a trade discount qualifying for deduction (Coromandel Fertilizers Limited v. Union of India (1984 Supp SCC 457 : 1984 SCC (Tax) 225 : (1984) 17 ELT 607 )). The correctness of this proposed was not disputed by learned counsel for the appellant but it was submitted by him that in several cases where supplies had been effected pursuant to the aforesaid agreements, the Indentors were really themselves the purchasers and hence, the normal trade discount paid to them should have been allowed a deduction in the determination of the normal price for the purpose of levy of excise duty. We find from the judgment of the Tribunal and the lower authorities that there is no dispute that wherever the indentors are shown as the purchasers in the respective invoices, the trade discount given to them has been allowed as a deduction. Moreover, to obviate any controversy in this regard, learned Attorney General who appears for the respondent fairly states that when the matter goes back to the Tribunal, the respondent is agreeable that the normal trade discount may be allowed in those cases where the Indentors is also shown as the purchaser in the concerned invoice. It is, however, submitted by learned counsel for the appellant that although in some of the cases the indentor might not be shown as the purchaser and the purchaser shown is a different party, yet the real nature of the transaction was that the Indentor purchased the goods referred to in the said invoice and in turn sold it to a customer whose name was shown as the purchaser in the invoice for the sake of convenience so that delivery could be directly effected to him. We are of the view that it is not open to the appellant to raise this contention at this stage. No case ever been made out right up to the Tribunal and even before the Tribunal that in respect of any particulars invoice although the name of the purchase was other than that of the Indentor, it was really the Indentor who was the purchaser and he in turn has sold the goods to the third party whose name was shown as purchaser or even that the Indentor had entered into transaction as the agent of the purchaser. If such a contention had been raised the factual position could have been examined and different considerations might have been applied. But it is certainly not open to the appellant to raise this contention at this stage, in this appeal, particularly keeping in mind that the Tribunal is the final fact-finding authority. No other contention has been raised before us. 5. In our opinion, there is no merit in the appeal. There will, however, be one clarification that, as agreed to by learned Attorney General, if in any case the purchaser named in the invoice is the same as the Indentor, normal trade discount given to the Indentor will be allowed as a deduction in the determination of the normal price for the levy of excise duty subject to other relevant considerations.
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t is common ground that in the invoices in respect of the paper and paper boards supplied and sold pursuant to the aforesaid agreement with the Indentors, in most cases the name of the dealer concerned was shown as the Indentor and the names of the parties to whom the goods were to be delivered were shown as the purchasers but in some cases the Indentors were themselves shown ascan be no quarrel with this proposition. But it is equally well settled that in the determination of the national price for the purposes of levy of excise duty, it is only a normal trade discount which is paid to the purchaser which can be allowed as a deduction and commission paid to selling agents for services rendered by them as agents cannot be regarded as a trade discount qualifying forfind from the judgment of the Tribunal and the lower authorities that there is no dispute that wherever the indentors are shown as the purchasers in the respective invoices, the trade discount given to them has been allowed as aare of the view that it is not open to the appellant to raise this contention at this stage. No case ever been made out right up to the Tribunal and even before the Tribunal that in respect of any particulars invoice although the name of the purchase was other than that of the Indentor, it was really the Indentor who was the purchaser and he in turn has sold the goods to the third party whose name was shown as purchaser or even that the Indentor had entered into transaction as the agent of the purchaser. If such a contention had been raised the factual position could have been examined and different considerations might have been applied. But it is certainly not open to the appellant to raise this contention at this stage, in this appeal, particularly keeping in mind that the Tribunal is the finalIn our opinion, there is no merit in the appeal. There will, however, be one clarification that, as agreed to by learned Attorney General, if in any case the purchaser named in the invoice is the same as the Indentor, normal trade discount given to the Indentor will be allowed as a deduction in the determination of the normal price for the levy of excise duty subject to other relevant considerations.
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Tata Global Beverages Limited (Formerly Known As Tata Tea Limited) Vs. Tata Tea Employees Union A Trade Union & Another | of service. In the circumstances, it has to be held that the act of the company of withdrawing the Pension Scheme after coming into force of the Payment of Gratuity Act was proprietyless.28. The point now remains to be considered is that of limitation. According to the Industrial Tribunal, the dispute raised by the Union after 11 years cannot be said to be within the reasonable time. Relying on the judgment in the case of Nedungadi Bank Limited Vs. K.P.Madhavantutty and ors., (2002) Supreme Court Cases 455 and the other in the case of Haryana State Co-operative Land Development Bank vs. Neelam, 2005 II CLR 45, it was vehemently argued by the learned Counsel for the company that the Industrial Tribunal was right in rejecting the Reference, holding the same to be not filed within the reasonable time. It was also argued that not raising of any dispute by the Union for the period of 10 years, though there was a cause of action for raising such dispute would lead to an inference that Union had accepted the decision of the company and it shall be held that the Union has acquiesced to the withdrawal of the Pension Scheme by its conduct of remaining silent on the issue for the period of 10 years.29. Our attention was invited by the learned counsel for the company to some of the observations made by the learned Single Judge in paragraph No.26 of the impugned order, to the effect that in the examination-in-chief the witness examined by the Union had stated that four employees from the Bombay office had received pensionary benefits upto 26th May, 1984. The learned Counsel took us through the evidence of the witnesses examined by the Union to show that none of the witnesses has stated any such fact. The learned counsel submitted that the finding recorded by the learned Single Judge on the basis of non existing evidence is unsustainable. The learned Counsel asserted that the Reference was liable to be rejected on the ground of limitation also.30. It is true that though the Pension Scheme was withdrawn by the company by a circular dated 22nd May, 1974, the dispute in that regard was raised in the year 1983. It is also true that in the period between 1974 to 1983 four employees got retired and none of them or the Union raised any dispute, though the benefit of pension was not extended to the said employees. Ostensibly, it may, therefore, appear that the dispute was raised after about 9 years which certainly cannot be said to be within reasonable time. However, it was rightly pointed out by the learned Counsel for the Union that though the circular, whereby the Pension Scheme was withdrawn, was issued on 22nd May, 1974, the first retirement thereafter took place in the year 1980, when an employee by name Shri J.R.Redkar got retired. The other three employees got retired thereafter in the year 1981 and in 1982. Thereafter, one Shri P.S.Manian was issued with the notice dated 29th February, 1983 informing him that he will be retiring on attaining the age of superannuation with effect from 29th February 1984. When the request of Shri P.S.Manian to process his case for pension was refused, the Union immediately raised the dispute. It, therefore, cannot be said that there was delay in raising the dispute by the Union. Even if it is assumed that the cause of action had arisen in 1980 when first retirement took place after issuance of the notice of 1974 and Pension Scheme was not made applicable to the retiring employee viz. Shri Redkar, the delay caused, at the most was of three years, which cannot be held to be inordinate or unreasonable and the dispute so raised cannot be held to be a stale or belated claim.31. In the case of Nedungadi Bank Limited Vs. K.P.Madhavantutty and ors., the workman was dismissed after lawfully and properly conducting the disciplinary proceedings against him. His dismissal was upheld in the appeal and the benefits legally due to him were paid to him. The said workman, after seven long years, raised a dispute against his dismissal on the ground that two other employees dismissed in similar situation, were reinstated. In these circumstances, it was held by the Honourable Apex Court that reference of the said dispute after about seven and half years was bad; both on the grounds of delay as well as non existence of an industrial dispute. Moreover, as observed by the Honble Apex court under what circumstances the said two employees were dismissed and subsequently reinstated was nowhere mentioned by the concerned workman. It is evident that the observations made and the law laid down in the aforesaid judgment cannot be made applicable to the facts of the present case.32. In the case of Haryana State Co.op. Land Development Bank V/s Neelam, 2005 II CLR 45, the conduct of the appellant therein in approaching the Labour Court after more than seven years, was considered to be a relevant factor by the Labour Court for refusing to grant any relief to her. Such a consideration on the part of the Labour Court was justified by the Honourable Apex Court observing that the Labour Court in the afore mentioned situation cannot be said to have exercised its discretionary jurisdiction injudiciously, arbitrarily or capriciously. The facts of the present case are quite different and, as such, the law laid down in the aforesaid judgment also would not apply to the present case.33. We reiterate that the dispute raised by the union against withdrawal of the pension scheme cannot be said to have raised belatedly. The learned Industrial Tribunal was wrong in holding that the union did not raise the dispute within reasonable time. Though some of the observations made by the learned Single Judge are factually incorrect, we affirm the conclusion recorded by the learned Single Judge that the dispute so raised was not liable to be rejected on the point of limitation. | 0[ds]8. The observations made by the Tribunal reveal that it has held the document of 2nd March, 1948 to be a settlement relying upon the opening sentence used in the said Circular that The Directors have agreed, giving an interpretation to the same that there was a demand from the workmen for Pension Scheme and the same was agreed and accordingly, the Circular of 2nd March, 1948 was issued to that effect and benefits were extended, which the workers availed till its withdrawal i.e. upto May, 1974. Before the learned Single Judge similar submission was made that the words The Directors have agreed indicate that the Directors had agreed with the workers that from 1st January, 1948 pension would be payable to the retiring employees on certain terms and conditions. The learned Single Judge however, has rejected the contention so raised, observing that it would be a complete misreading of the document to interpret it to mean that the Directors had agreed with the Union, when there is no other corroborative evidence on record. It is further observed that there is no material on record to establish that the pensionary benefits payable under the said document were extended to the workers due to an agreement arrived at between the Union and the Directors of the company. It is further observed that the aforesaid words will have to be therefore, construed in the context that they appear, meaning thereby, that the Directors had agreed amongst themselves that pensionary benefits should be paid to the retiring employees. The learned Single Judge has therefore, held that the document of 1948, cannot be construed, as a settlement or as an agreement, but was a charter for payment of pension. The learned Single Judge has also observed that, had it been a bilateral document, there would be no room for such a clause in the said agreement, giving full discretion to the Directors to withdraw the said scheme. We do not see any infirmity in the finding recorded by the learned Single Judge.9. It was also sought to be canvassed by the learned Counsel for the company that the Bilgrami award had transformed the unilateral act of the company into an Award and when the company became statutorily liable to pay gratuity the company was entitled to withdraw the benefit of pension, without giving any notice of change in that regard in as much as the change was pursuant to anaforesaid observations were made by the learned Tribunal while dealing with demand No. 8(b), whereby it was demanded that an employee entitled to receive pension under the Companys Pension Scheme shall have the option to claim gratuity in lieu of pension. The demand was accepted by the Tribunal and the clerical staff entitled to pension on retirement was provided with an option to claim gratuity, in lieu of pension. It was contended by the learned Counsel for the company that the Pension Scheme introduced by the company vide circular dated 2nd March, 1948 was thus approved in the Bilgrami award as an Agreement between the company and its employees. The learned Counsel further contended that, the Bilgrami award has been referred in all subsequent settlements arrived at between the Company and its employees and in all those subsequent settlements, it has been clearly averred that the service conditions not expressly altered as laid down in the award of the Industrial Tribunal of Mr. Bilgrami dated 15th January, 1964, as amended by the Agreement dated 1st July, 1965, shall remain unaltered. According to the learned Counsel, the learned Industrial Tribunal was right in holding that the circular dated 2nd March 1948 had become an award or settlement and since the pension scheme was withdrawn by the Company, according to the agreed terms incorporated in the said circular, the company was not required to give notice under Section 9A of the Industrial Disputes Act.10. We are, however, unable to agree with the preposition so canvassed. Similar such argument was advanced before the learned Single Judge on behalf of the Company that, the proviso to Section 9A must be interpreted purposively and the word agreement should be read into the said proviso. It was further sought to be canvassed that as observed in the Bilgrami award the document of 1948 was bilateral document giving the Company the right to withdraw the benefit unilaterally and any bilateral document would attract the proviso of Section 9A. The learned Single Judge, however, rejected the said contention stating that, the Industrial Disputes Act recognizes only the term settlement which is defined in Section 2(p) of the Act. The learned Single Judge has further observed that the term Agreement which has not been defined cannot be read into the proviso to Section 9A, as the term Settlement has a different connotation under the Industrial Disputes Act. The learned Single Judge has further observed that, every agreement between the parties need not be a settlement. The legislature has therefore with some purpose excluded the word agreement from the proviso. The learned Single Judge has also said that to read into the proviso the word agreement would be doing violence to the proviso. The learned Single Judge has further in clear terms held that, the document of 1948 is neither a settlement nor an agreement, but is a charter of the Company, unilaterally extending the pensionary benefits to the workmen. We fully subscribe the observations made and the conclusions recorded by the learned Singlethe ratio laid down in the said judgment cannot be made applicable to the facts of the present case. In the said case, two workmen of the Tamilnadu Electricity Board were permitted to do trade union work on a full time basis and the said permission was subsequently withdrawn. A dispute was therefore raised claiming that, it was a privilege within the meaning of item 8 of Schedule 4 of the Industrial Disputes Act and could not have been withdrawn without following the procedure under Section 9A of the Act. Concession so granted in the said case cannot be in any way equated or compared with the Pension Scheme voluntarily introduced by the Company, which remained in force for long 24 years. As has been observed by the Madras High Court, the concession granted for a limited period and extended periodically cannot be claimed as of right. In the instant case, the well prepared Pension Scheme was offered to the employees and the same remained in force over the period of 24 years. The learned Single Judge, therefore held that the unilateral grant of pension had fructified into a privilege which could not have been withdrawn by the stroke of pen without following the mandatory requirement of notice of change under Section 9A.In our opinion, the aforesaid judgment does not have any application to the facts of the present case. Though it is true that the document of 1948 contains a clause permitting the withdrawal of the said benefit by the Directors of the company, at their discretion or on a contingency as mentioned therein, it is difficult to accept that the aforesaid clause was acquiesced by the union or workers. From the material on record, it is quite clear that there was no occasion in past for the Union to make any grievance in respect of the aforesaid provision. However, after the said clause was acted upon by the Company, the Union raised its objection. As against it, the benefit extended vide the said document was enjoyed by the employees over the period of 24 years and that was the reason that the learned Single Judge held that it had acquired the status of privilege enjoyed by the employees and consequently become the condition of service. We upheld the conclusion arrived at by the learned Single Judge.The fact apart that we have certain reservations as regards to the view taken by the Madras High Court, the endevour of the company to take support of the aforesaid judgment so as to hold its action of withdrawing Pension Scheme legal and valid must fail only on the count that in the said case the medical benefits scheme was not unilaterally withdrawn or it was not an unilateral change in conditions of service. The employer had issued notices consequent to the amendment of ESI notification before withdrawing the said scheme. Whereas in the instant matter the company without giving notice of change as envisaged under Section 9A of the I.D. Act, unilaterally withdrew the Pension Scheme. In the circumstances, the contention of the company that there was no illegality in its action has to be rejected.17. It was also sought to be canvassed by the learned counsel appearing for the company that the learned Single Judge assigned to itself the role of an Appellate Court and stepped into reappreciating and evaluating the evidence and substituted his own findings in place of those arrived at by the Industrial Tribunal. According to the learned counsel such course was not permissible in exercise of certiorari jurisdiction by the High Court. To buttress the said contention the learned counsel has relied upon the judgment of the Honble Supreme Court in case of Surya Deo Rai V/s Ram Chander Rai and ors., (2003)6 Supreme Court Cases 675 .18. We are however, not at all impressed with the submissions so made. The parameters for exercise of jurisdiction under Article 226 or 227 of the Constitution cannot be tied down in a straight jacket formula or rigid rules. The High Court may in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice, should occasion, can exercise its jurisdiction. In the instant case, it does not appear to us that the learned Single Judge has committed any error in exercising its jurisdiction to set aside the award passed by the Industrial Tribunal.19. In view of the foregoing discussion, we are of the clear opinion that the learned Single Judge has correctly held that the document of 1948 was neither a settlement nor an agreement. We also concur with the finding recorded by the learned Single Judge that the document of 1948, which originally was a voluntary benefit granted to the workers by the company had crystalized into privilege with the passage of time and the clause for withdrawal therein can not operate to the disadvantage of the workers, when the said benefit has become a privilege over the years. Apart from the justness in the action of the company to withdraw the Pension Scheme on the ground that payment of gratuity is made compulsorily payable, withdrawal of such privilege without a notice of change, in no case was permissible.20. In the Reference the Industrial Tribunal was to determine the `propriety, `validity and `legality of the companys circular dated 22nd May, 1974, whereby the company withdrew the Pension Scheme. In the award passed by the Tribunal it has not at all dealt with the aspect of propriety. The learned Single Judge, no doubt has held that, it was not open for the employer to contend that the workman would be entitled to only one benefit; either of gratuity or of pension on the ground that Payment of Gratuity has come into force. However, this issue has not been elaborated as it ought to have been. According to us, prime importance must have been given by the Tribunal to determine the Propriety of the circular dated 22nd May, 1974. However, it appears that legality and validity issues were focused more and propriety aspect lost sight of. The word Propriety is nowhere defined. It is capable of variety of meanings. In the context of the present matter the word `propriety would mean `Justness. The circular dated 22nd May, 1974 is to be thus tested on the anvil of justness and it has to be determined whether the action of the company to unilaterally withdraw the Pension Scheme, which was in existence for more than 24 years, can be held to be just on the ground that the payment of Gratuity Act had come intothe said matter also there was a private treaty between the parties i.e. employer and employee whereby the employees had agreed to deductions before coming into force of the beneficial enactment of Provident Fund and Gratuity. The Honble Apex Court in this context held that, even if it is assumed that by private treaty the parties have otherwise agreed to deductions before coming into force of these beneficial enactments they cannot now beTribunal held that, the Company could not have discontinued the existing pensionary benefits on the ground that payment of gratuity has been made compulsory by the Central Act. The Company challenged the award of the Central Tribunal before the Calcutta High Court. It was argued before the High Court on behalf of the Company that, under the settlement, payment of gratuity was alternative of pension. In other words, if an employee opted for pension, he was not entitled to gratuity. As gratuity was made compulsorily payable under the Central Act, according to the Company, it was justified in discontinuing the scheme for pension. The learned Single Judge of the High Court took a view that, on the basis of settlement, gratuity, although payable in a limited number of cases was clearly an alternative to pension. The learned Single Judge of the High Court, therefore, set aside the award of the Central Tribunal. The appeal was filed against the judgment of the learned Single Judge, which came to be allowed by the Division Bench. While allowing the appeal, the Division Bench has held that the employees of the respondent Company were entitled to the benefit of pension in accordance with the scheme for pension, besides the payment of gratuity which is compulsorily payable by virtue of Section 4 of the Payment of Gratuity Act, 1972. In the said case, it was argued on behalf of the employees that, as the employees were entitled to the benefit of the pension under the terms of settlement, the respondent Company cannot deprive them of the said benefit simply because the payment of gratuity has been made compulsory by Section 4 of the Central Act. Accepting the said argument it is observed by the Division Bench that, there is no provision in the payment of Gratuity Act divesting the employees of their vested right to get pension in terms of the agreement arrived at between the respondent Company and its employees. The Division Bench has further observed that, had it been the intention of the legislature to deprive the employees of the existing benefits of retirement, it would have made an express provision in that regard, at least, by necessary implication such intention could be gathered. It is further observed that, in a beneficial legislation, deprivation of an existing benefit cannot be inferred without a provision to that effect, either express or implied. The Division Bench has recorded a clear finding that, the employees of the respondent Company were entitled to the benefit of the pension in accordance with the scheme for pension, besides the payment of gratuity which is compulsorily payable by virtue of Section 4 of the Central Act.In view of the law laid down as above, the withdrawal of Pension Scheme by the company on the ground that the payment of gratuity is made compulsory after coming into force of the payment of Gratuity Act, in no case can be held to be just. Moreover, as has been observed by the learned Single Judge only those employees of the company, who were working in Mumbai were not being paid both the benefits, whereas the workmen in Calcutta were being paid gratuity, as per Gratuity Act and Pension under the 1948 document. The benefit of gratuity, which is payable statutorily does not substitute the benefits payable, as condition of service. In the circumstances, it has to be held that the act of the company of withdrawing the Pension Scheme after coming into force of the Payment of Gratuity Act wasto the Industrial Tribunal, the dispute raised by the Union after 11 years cannot be said to be within the reasonable time. Relying on the judgment in the case of Nedungadi Bank Limited Vs. K.P.Madhavantutty and ors., (2002) Supreme Court Cases 455 and the other in the case of Haryana StateLand Development Bank vs. Neelam, 2005 II CLR 45, it was vehemently argued by the learned Counsel for the company that the Industrial Tribunal was right in rejecting the Reference, holding the same to be not filed within the reasonable time. It was also argued that not raising of any dispute by the Union for the period of 10 years, though there was a cause of action for raising such dispute would lead to an inference that Union had accepted the decision of the company and it shall be held that the Union has acquiesced to the withdrawal of the Pension Scheme by its conduct of remaining silent on the issue for the period of 10 years.29. Our attention was invited by the learned counsel for the company to some of the observations made by the learned Single Judge in paragraph No.26 of the impugned order, to the effect that in thethe witness examined by the Union had stated that four employees from the Bombay office had received pensionary benefits upto 26th May, 1984. The learned Counsel took us through the evidence of the witnesses examined by the Union to show that none of the witnesses has stated any such fact. The learned counsel submitted that the finding recorded by the learned Single Judge on the basis of non existing evidence is unsustainable. The learned Counsel asserted that the Reference was liable to be rejected on the ground of limitation also.30. It is true that though the Pension Scheme was withdrawn by the company by a circular dated 22nd May, 1974, the dispute in that regard was raised in the year 1983. It is also true that in the period between 1974 to 1983 four employees got retired and none of them or the Union raised any dispute, though the benefit of pension was not extended to the said employees. Ostensibly, it may, therefore, appear that the dispute was raised after about 9 years which certainly cannot be said to be within reasonable time. However, it was rightly pointed out by the learned Counsel for the Union that though the circular, whereby the Pension Scheme was withdrawn, was issued on 22nd May, 1974, the first retirement thereafter took place in the year 1980, when an employee by name Shri J.R.Redkar got retired. The other three employees got retired thereafter in the year 1981 and in 1982. Thereafter, one Shri P.S.Manian was issued with the notice dated 29th February, 1983 informing him that he will be retiring on attaining the age of superannuation with effect from 29th February 1984. When the request of Shri P.S.Manian to process his case for pension was refused, the Union immediately raised the dispute. It, therefore, cannot be said that there was delay in raising the dispute by the Union. Even if it is assumed that the cause of action had arisen in 1980 when first retirement took place after issuance of the notice of 1974 and Pension Scheme was not made applicable to the retiring employee viz. Shri Redkar, the delay caused, at the most was of three years, which cannot be held to be inordinate or unreasonable and the dispute so raised cannot be held to be a stale or belated claim.We reiterate that the dispute raised by the union against withdrawal of the pension scheme cannot be said to have raised belatedly. The learned Industrial Tribunal was wrong in holding that the union did not raise the dispute within reasonable time. Though some of the observations made by the learned Single Judge are factually incorrect, we affirm the conclusion recorded by the learned Single Judge that the dispute so raised was not liable to be rejected on the point of limitation. | 0 | 8,291 | 3,621 | ### Instruction:
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of service. In the circumstances, it has to be held that the act of the company of withdrawing the Pension Scheme after coming into force of the Payment of Gratuity Act was proprietyless.28. The point now remains to be considered is that of limitation. According to the Industrial Tribunal, the dispute raised by the Union after 11 years cannot be said to be within the reasonable time. Relying on the judgment in the case of Nedungadi Bank Limited Vs. K.P.Madhavantutty and ors., (2002) Supreme Court Cases 455 and the other in the case of Haryana State Co-operative Land Development Bank vs. Neelam, 2005 II CLR 45, it was vehemently argued by the learned Counsel for the company that the Industrial Tribunal was right in rejecting the Reference, holding the same to be not filed within the reasonable time. It was also argued that not raising of any dispute by the Union for the period of 10 years, though there was a cause of action for raising such dispute would lead to an inference that Union had accepted the decision of the company and it shall be held that the Union has acquiesced to the withdrawal of the Pension Scheme by its conduct of remaining silent on the issue for the period of 10 years.29. Our attention was invited by the learned counsel for the company to some of the observations made by the learned Single Judge in paragraph No.26 of the impugned order, to the effect that in the examination-in-chief the witness examined by the Union had stated that four employees from the Bombay office had received pensionary benefits upto 26th May, 1984. The learned Counsel took us through the evidence of the witnesses examined by the Union to show that none of the witnesses has stated any such fact. The learned counsel submitted that the finding recorded by the learned Single Judge on the basis of non existing evidence is unsustainable. The learned Counsel asserted that the Reference was liable to be rejected on the ground of limitation also.30. It is true that though the Pension Scheme was withdrawn by the company by a circular dated 22nd May, 1974, the dispute in that regard was raised in the year 1983. It is also true that in the period between 1974 to 1983 four employees got retired and none of them or the Union raised any dispute, though the benefit of pension was not extended to the said employees. Ostensibly, it may, therefore, appear that the dispute was raised after about 9 years which certainly cannot be said to be within reasonable time. However, it was rightly pointed out by the learned Counsel for the Union that though the circular, whereby the Pension Scheme was withdrawn, was issued on 22nd May, 1974, the first retirement thereafter took place in the year 1980, when an employee by name Shri J.R.Redkar got retired. The other three employees got retired thereafter in the year 1981 and in 1982. Thereafter, one Shri P.S.Manian was issued with the notice dated 29th February, 1983 informing him that he will be retiring on attaining the age of superannuation with effect from 29th February 1984. When the request of Shri P.S.Manian to process his case for pension was refused, the Union immediately raised the dispute. It, therefore, cannot be said that there was delay in raising the dispute by the Union. Even if it is assumed that the cause of action had arisen in 1980 when first retirement took place after issuance of the notice of 1974 and Pension Scheme was not made applicable to the retiring employee viz. Shri Redkar, the delay caused, at the most was of three years, which cannot be held to be inordinate or unreasonable and the dispute so raised cannot be held to be a stale or belated claim.31. In the case of Nedungadi Bank Limited Vs. K.P.Madhavantutty and ors., the workman was dismissed after lawfully and properly conducting the disciplinary proceedings against him. His dismissal was upheld in the appeal and the benefits legally due to him were paid to him. The said workman, after seven long years, raised a dispute against his dismissal on the ground that two other employees dismissed in similar situation, were reinstated. In these circumstances, it was held by the Honourable Apex Court that reference of the said dispute after about seven and half years was bad; both on the grounds of delay as well as non existence of an industrial dispute. Moreover, as observed by the Honble Apex court under what circumstances the said two employees were dismissed and subsequently reinstated was nowhere mentioned by the concerned workman. It is evident that the observations made and the law laid down in the aforesaid judgment cannot be made applicable to the facts of the present case.32. In the case of Haryana State Co.op. Land Development Bank V/s Neelam, 2005 II CLR 45, the conduct of the appellant therein in approaching the Labour Court after more than seven years, was considered to be a relevant factor by the Labour Court for refusing to grant any relief to her. Such a consideration on the part of the Labour Court was justified by the Honourable Apex Court observing that the Labour Court in the afore mentioned situation cannot be said to have exercised its discretionary jurisdiction injudiciously, arbitrarily or capriciously. The facts of the present case are quite different and, as such, the law laid down in the aforesaid judgment also would not apply to the present case.33. We reiterate that the dispute raised by the union against withdrawal of the pension scheme cannot be said to have raised belatedly. The learned Industrial Tribunal was wrong in holding that the union did not raise the dispute within reasonable time. Though some of the observations made by the learned Single Judge are factually incorrect, we affirm the conclusion recorded by the learned Single Judge that the dispute so raised was not liable to be rejected on the point of limitation.
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respondent Company cannot deprive them of the said benefit simply because the payment of gratuity has been made compulsory by Section 4 of the Central Act. Accepting the said argument it is observed by the Division Bench that, there is no provision in the payment of Gratuity Act divesting the employees of their vested right to get pension in terms of the agreement arrived at between the respondent Company and its employees. The Division Bench has further observed that, had it been the intention of the legislature to deprive the employees of the existing benefits of retirement, it would have made an express provision in that regard, at least, by necessary implication such intention could be gathered. It is further observed that, in a beneficial legislation, deprivation of an existing benefit cannot be inferred without a provision to that effect, either express or implied. The Division Bench has recorded a clear finding that, the employees of the respondent Company were entitled to the benefit of the pension in accordance with the scheme for pension, besides the payment of gratuity which is compulsorily payable by virtue of Section 4 of the Central Act.In view of the law laid down as above, the withdrawal of Pension Scheme by the company on the ground that the payment of gratuity is made compulsory after coming into force of the payment of Gratuity Act, in no case can be held to be just. Moreover, as has been observed by the learned Single Judge only those employees of the company, who were working in Mumbai were not being paid both the benefits, whereas the workmen in Calcutta were being paid gratuity, as per Gratuity Act and Pension under the 1948 document. The benefit of gratuity, which is payable statutorily does not substitute the benefits payable, as condition of service. In the circumstances, it has to be held that the act of the company of withdrawing the Pension Scheme after coming into force of the Payment of Gratuity Act wasto the Industrial Tribunal, the dispute raised by the Union after 11 years cannot be said to be within the reasonable time. Relying on the judgment in the case of Nedungadi Bank Limited Vs. K.P.Madhavantutty and ors., (2002) Supreme Court Cases 455 and the other in the case of Haryana StateLand Development Bank vs. Neelam, 2005 II CLR 45, it was vehemently argued by the learned Counsel for the company that the Industrial Tribunal was right in rejecting the Reference, holding the same to be not filed within the reasonable time. It was also argued that not raising of any dispute by the Union for the period of 10 years, though there was a cause of action for raising such dispute would lead to an inference that Union had accepted the decision of the company and it shall be held that the Union has acquiesced to the withdrawal of the Pension Scheme by its conduct of remaining silent on the issue for the period of 10 years.29. Our attention was invited by the learned counsel for the company to some of the observations made by the learned Single Judge in paragraph No.26 of the impugned order, to the effect that in thethe witness examined by the Union had stated that four employees from the Bombay office had received pensionary benefits upto 26th May, 1984. The learned Counsel took us through the evidence of the witnesses examined by the Union to show that none of the witnesses has stated any such fact. The learned counsel submitted that the finding recorded by the learned Single Judge on the basis of non existing evidence is unsustainable. The learned Counsel asserted that the Reference was liable to be rejected on the ground of limitation also.30. It is true that though the Pension Scheme was withdrawn by the company by a circular dated 22nd May, 1974, the dispute in that regard was raised in the year 1983. It is also true that in the period between 1974 to 1983 four employees got retired and none of them or the Union raised any dispute, though the benefit of pension was not extended to the said employees. Ostensibly, it may, therefore, appear that the dispute was raised after about 9 years which certainly cannot be said to be within reasonable time. However, it was rightly pointed out by the learned Counsel for the Union that though the circular, whereby the Pension Scheme was withdrawn, was issued on 22nd May, 1974, the first retirement thereafter took place in the year 1980, when an employee by name Shri J.R.Redkar got retired. The other three employees got retired thereafter in the year 1981 and in 1982. Thereafter, one Shri P.S.Manian was issued with the notice dated 29th February, 1983 informing him that he will be retiring on attaining the age of superannuation with effect from 29th February 1984. When the request of Shri P.S.Manian to process his case for pension was refused, the Union immediately raised the dispute. It, therefore, cannot be said that there was delay in raising the dispute by the Union. Even if it is assumed that the cause of action had arisen in 1980 when first retirement took place after issuance of the notice of 1974 and Pension Scheme was not made applicable to the retiring employee viz. Shri Redkar, the delay caused, at the most was of three years, which cannot be held to be inordinate or unreasonable and the dispute so raised cannot be held to be a stale or belated claim.We reiterate that the dispute raised by the union against withdrawal of the pension scheme cannot be said to have raised belatedly. The learned Industrial Tribunal was wrong in holding that the union did not raise the dispute within reasonable time. Though some of the observations made by the learned Single Judge are factually incorrect, we affirm the conclusion recorded by the learned Single Judge that the dispute so raised was not liable to be rejected on the point of limitation.
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State Of Bihar & Anr Vs. Tata Engineering & Locomotive Co. Ltd | connected with the one immediately preceding it. The principle thus admits of no doubt, according to the decisions of this Court, that the sales to be exigible to tax under the Act (Central Sales Tax Act, 1956) must be shown to have occasioned the movement of the goods or articles from one State to another. The movement must be the result of a covenant or incident of the contract of sale."13. If we apply the principles enunciated by this Court in the decisions referred to above to the facts of this case, it is obvious that the sales with which we are concerned in this case are sales in the course of inter-State trade. The dealers were required to move the trucks, bus chassis and other spare parts purchased by them from the State of Bihar to places outside Bihar. They are so required by the terms of the contracts entered into by them with the assessee. They would have committed breach of their contracts and incurred the penalty prescribed in their dealership agreements, if they had failed to abide by the term requiring them to move the goods outside the State of Bihar.14. The decided cases establish that sales will be considered as sales in the course of export or import or sales in the course of inter-State trade and commerce under the following circumstances:(1) When goods which are in export or import stream are sold;(2) When the contract of sale or law under which goods are sold require those goods to be exported or imported to a foreign country or from a foreign country as the case may be or are required to be transported to a State other than the State in which the delivery of goods takes place; and(3) Where as a necessary incidence of the contract of sale goods sold are required to be exported or imported or transported out of the State in which the delivery of goods takes place.15. But Mr. A. K. Sen, learned Counsel for the State of Bihar contended that this Court has taken a different view of the law in Coffee Board, Bangalore v. Joint Commercial Tax Officer, Madras, (1970) 25 STC 528 (SC). According to him the ratio of that decision is that whenever goods are delivered in a State in pursuance of a contract of sale, the sale in question becomes exigible to tax in the State in which the goods are delivered unless they are taken out of the State for purposes of consumption and not resale, or the same is taken out of the State in pursuance of an already existing agreement to resell in the State to which it is taken. The decision in Coffee Boards case, (1970) 25 STC 528 (SC) (supra) does not, in our opinion, afford any basis for these contentions.16. We have earlier noticed that this Court in a series of decisions has pronounced in unambiguous terms that where under the terms of a contract of sale, the buyer is required to remove the goods from the State in which he purchased those goods to another State and when the goods are so moved, the sale in question must be considered as a sale in the course of inter-State trade or commerce. This is a well-established position in law. In the Coffee Boards case, (1970) 25 STC 528 (SC) this Court did not deviate from this position nor could it deviate as the earlier decisions were binding on it. Further in the course of his judgment, the learned Chief Justice who spoke for the Court referred with approval to the earlier decisions of this Court where distinction between the sales in the course of inter-State trade or commerce and sales for the purpose of inter-State trade and commerce were explained. On the basis of the facts in that case, his Lordship came to the conclusion that the export of the coffee in question was not integrated with the sales with which the Court was concerned and that there was no direct bond between the export and the sales. In the course of his judgment his Lordship observed:"Here there are two independent sales involved in the export programme. The first is a sale between the Coffee Board as seller to the export promoter. Then there is the sale by the export promoter to a foreign buyer. Of the latter sale, the Coffee Board does not have any inkling when the first sale takes place. The Coffee Boards sale is not in any way related to the second sale. Therefore, the first sale has no connection with the second sale which is in the course of export, that is to say, movement of goods between an exporter and an importer."17. This finding clearly brings out the distinction between the facts of the Coffee Boards case, (1970) 25 STC 528 (SC) (supra) and the facts of the cases wherein this Court held that the sales in question were sales in the course of export or import. In the Coffee Boards case, (1970) 25 STC 528 (SC:) this Court found that what was insisted on by the Coffee Board was that the coffee set apart for the purpose of the export must be exported it was not incumbent for the purchasers at the auction to export that coffee themselves; they may do it themselves or they may sell it to somebody who may export it outside India. On that basis, this Court came to the conclusion that the sales effected by the Coffee Board are not sales in the course of export, they are only sales for the purpose of export. The ratio of that decision does not bear on the acts before us. Herein, under the terms of the contracts of sale, the purchasers were required to remove the goods from the State of Bihar to other States. Hence the sales with which we are concerned in this case must be held to be sales in the course of inter-State trade or commerce. | 0[ds]17. This finding clearly brings out the distinction between the facts of the Coffee Boards case, (1970) 25 STC 528 (SC) (supra) and the facts of the cases wherein this Court held that the sales in question were sales in the course of export or import. In the Coffee Boards case, (1970) 25 STC 528 (SC:) this Court found that what was insisted on by the Coffee Board was that the coffee set apart for the purpose of the export must be exported it was not incumbent for the purchasers at the auction to export that coffee themselves; they may do it themselves or they may sell it to somebody who may export it outside India. On that basis, this Court came to the conclusion that the sales effected by the Coffee Board are not sales in the course of export, they are only sales for the purpose of export. The ratio of that decision does not bear on the acts before us. Herein, under the terms of the contracts of sale, the purchasers were required to remove the goods from the State of Bihar to other States. Hence the sales with which we are concerned in this case must be held to be sales in the course of inter-State trade or commerce. | 0 | 3,324 | 242 | ### 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:
connected with the one immediately preceding it. The principle thus admits of no doubt, according to the decisions of this Court, that the sales to be exigible to tax under the Act (Central Sales Tax Act, 1956) must be shown to have occasioned the movement of the goods or articles from one State to another. The movement must be the result of a covenant or incident of the contract of sale."13. If we apply the principles enunciated by this Court in the decisions referred to above to the facts of this case, it is obvious that the sales with which we are concerned in this case are sales in the course of inter-State trade. The dealers were required to move the trucks, bus chassis and other spare parts purchased by them from the State of Bihar to places outside Bihar. They are so required by the terms of the contracts entered into by them with the assessee. They would have committed breach of their contracts and incurred the penalty prescribed in their dealership agreements, if they had failed to abide by the term requiring them to move the goods outside the State of Bihar.14. The decided cases establish that sales will be considered as sales in the course of export or import or sales in the course of inter-State trade and commerce under the following circumstances:(1) When goods which are in export or import stream are sold;(2) When the contract of sale or law under which goods are sold require those goods to be exported or imported to a foreign country or from a foreign country as the case may be or are required to be transported to a State other than the State in which the delivery of goods takes place; and(3) Where as a necessary incidence of the contract of sale goods sold are required to be exported or imported or transported out of the State in which the delivery of goods takes place.15. But Mr. A. K. Sen, learned Counsel for the State of Bihar contended that this Court has taken a different view of the law in Coffee Board, Bangalore v. Joint Commercial Tax Officer, Madras, (1970) 25 STC 528 (SC). According to him the ratio of that decision is that whenever goods are delivered in a State in pursuance of a contract of sale, the sale in question becomes exigible to tax in the State in which the goods are delivered unless they are taken out of the State for purposes of consumption and not resale, or the same is taken out of the State in pursuance of an already existing agreement to resell in the State to which it is taken. The decision in Coffee Boards case, (1970) 25 STC 528 (SC) (supra) does not, in our opinion, afford any basis for these contentions.16. We have earlier noticed that this Court in a series of decisions has pronounced in unambiguous terms that where under the terms of a contract of sale, the buyer is required to remove the goods from the State in which he purchased those goods to another State and when the goods are so moved, the sale in question must be considered as a sale in the course of inter-State trade or commerce. This is a well-established position in law. In the Coffee Boards case, (1970) 25 STC 528 (SC) this Court did not deviate from this position nor could it deviate as the earlier decisions were binding on it. Further in the course of his judgment, the learned Chief Justice who spoke for the Court referred with approval to the earlier decisions of this Court where distinction between the sales in the course of inter-State trade or commerce and sales for the purpose of inter-State trade and commerce were explained. On the basis of the facts in that case, his Lordship came to the conclusion that the export of the coffee in question was not integrated with the sales with which the Court was concerned and that there was no direct bond between the export and the sales. In the course of his judgment his Lordship observed:"Here there are two independent sales involved in the export programme. The first is a sale between the Coffee Board as seller to the export promoter. Then there is the sale by the export promoter to a foreign buyer. Of the latter sale, the Coffee Board does not have any inkling when the first sale takes place. The Coffee Boards sale is not in any way related to the second sale. Therefore, the first sale has no connection with the second sale which is in the course of export, that is to say, movement of goods between an exporter and an importer."17. This finding clearly brings out the distinction between the facts of the Coffee Boards case, (1970) 25 STC 528 (SC) (supra) and the facts of the cases wherein this Court held that the sales in question were sales in the course of export or import. In the Coffee Boards case, (1970) 25 STC 528 (SC:) this Court found that what was insisted on by the Coffee Board was that the coffee set apart for the purpose of the export must be exported it was not incumbent for the purchasers at the auction to export that coffee themselves; they may do it themselves or they may sell it to somebody who may export it outside India. On that basis, this Court came to the conclusion that the sales effected by the Coffee Board are not sales in the course of export, they are only sales for the purpose of export. The ratio of that decision does not bear on the acts before us. Herein, under the terms of the contracts of sale, the purchasers were required to remove the goods from the State of Bihar to other States. Hence the sales with which we are concerned in this case must be held to be sales in the course of inter-State trade or commerce.
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### Explanation:
17. This finding clearly brings out the distinction between the facts of the Coffee Boards case, (1970) 25 STC 528 (SC) (supra) and the facts of the cases wherein this Court held that the sales in question were sales in the course of export or import. In the Coffee Boards case, (1970) 25 STC 528 (SC:) this Court found that what was insisted on by the Coffee Board was that the coffee set apart for the purpose of the export must be exported it was not incumbent for the purchasers at the auction to export that coffee themselves; they may do it themselves or they may sell it to somebody who may export it outside India. On that basis, this Court came to the conclusion that the sales effected by the Coffee Board are not sales in the course of export, they are only sales for the purpose of export. The ratio of that decision does not bear on the acts before us. Herein, under the terms of the contracts of sale, the purchasers were required to remove the goods from the State of Bihar to other States. Hence the sales with which we are concerned in this case must be held to be sales in the course of inter-State trade or commerce.
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Ghanshyam Sarda Vs. Shiv Shankar Trading Company | 30. We now deal with the decisions of the High Courts of Calcutta, Madras and Delhi. All these decisions were rendered while considering writ petitions under Article 226 of the Constitution of India. In the first of these three cases the High Court took the view that there is no express provision in the Act which indicates when the BIFR loses its jurisdiction with regard to a company which was once sick and proceeded to declare the company in question not amenable to the jurisdiction of the BIFR from and with effect from the date the Balance Sheet showed the Net Worth to be positive. In the second case the High Court was of the view that sickness of an industrial company is to be decided ex-facie on the basis of the audited balance sheet and when the Net Worth becomes positive the BIFR ceases to have any jurisdiction. The last case arose from the same BIFR matter and Delhi High Court followed the view taken by Madras High Court. Said decisions must now be read in the light of the above discussion and view that we have taken. 31. In the circumstances, we allow the present appeals and set aside the order dated 06.01.2014 passed by the High Court of Gauhati in FAO No.10 of 2013 and Writ Petition Nos.4303 of 2013 and 6286 of 2013. It is held that the Title Suit No.166 of 2013 pending on the file of the learned Civil Court at Kamroop, Gauhati is not maintainable insofar as it seeks declaration that the company was no longer a sick company within the meaning of the Act and that the BIFR ceased to have jurisdiction over the company and that all the proceedings in the BIFR after filing of the positive balance-sheet were without jurisdiction. Consequently the order of injunction passed by the Civil Court is set aside. Insofar as the said Suit pertains to the claim for recovery of money from the Company, the Suit could lie and be proceeded with only after express consent of the BIFR is received by the plaintiff. We direct that the company i.e., J.K. Jute Mills Company Ltd. having its registered office at Kanpur U.P. continues to be under the jurisdiction of the BIFR. We leave it to the BIFR to satisfy itself and determine the issues whether the net worth of the company has turned positive or not. If the BIFR is so satisfied, it shall de-register the company and upon such declaration the company will be out of the supervisory jurisdiction of the BIFR under the Act. Needless to say that if the BIFR is not satisfied that the net worth of the company has turned positive, it shall go ahead and consider the scheme for revival of the company. We direct the BIFR to complete this exercise within two months from date of receipt of this order. We have refrained from dealing with the matter concerning the merits or de-merits of the claim that the net worth has turned positive nor have we dealt with the report made by the State Bank of India in its Special Investigative Audit. We leave these issues to be considered by the BIFR at an appropriate stage. We have also not dealt with the submissions alleging bias as the matters in that behalf are still pending consideration before the authorities and we leave these issues to be dealt with at an appropriate stage. 32. Since in our view the company continues to be a sick company and it was not competent for anyone except the BIFR to determine whether the net worth of the company had turned positive, we hold the sale of Katihar property effected by the company without express leave or permission of the BIFR to be questionable. However, since the transferee of that property is not before this Court we relegate this matter for appropriate assessment by the BIFR after issuing due notice to the transferee. We also leave it to the BIFR to consider and assess whether there was any necessity or expediency to sell the property in question. If in its opinion such expediency and necessity are established, the BIFR may also consider whether the value that the property has fetched is adequate or not. If the value is adequate it may confirm the sale in favour of the transferee. However, if the value in its opinion is inadequate, it shall give offer and adequate time to the transferee to make good the deficit. In any case if the sale is held to be bad or if the transferee is not willing to make good the deficit, the entire consideration for the transaction be returned to the transferee. In such eventuality whatever the transferee has paid in excess of the consideration money towards stamp duty and registration shall be recovered from the Directors and persons responsible for effecting such sale on behalf of the company. 33. Now we turn to the filing of the civil suit in the instant case and its conduct. The original plaintiff had sought consent of the BIFR under Section 22(1) of the Act and was before the BIFR on 04.04.2013. However, he did not disclose either the factum that he had so sought such consent or that the BIFR was in seisin of the matter and considering whether the net worth of the company had turned positive. Non-disclosure of these two essential facts, in our view, was not accidental. We therefore impose costs of Rs.5 lacs on the original plaintiff which shall be deposited within three months from the date of this order, failing which action in contempt shall be initiated against the original plaintiff. The costs shall be deposited to the account of the Supreme Court Legal Services Authority. Though the conduct of the company as defendant before the Civil Court was of the same order, since it is a sick company we refrain from imposing any costs on the company. No other order as to costs. 34. | 1[ds]30. We now deal with the decisions of the High Courts of Calcutta, Madras and Delhi. All these decisions were rendered while considering writ petitions under Article 226 of the Constitution of India. In the first of these three cases the High Court took the view that there is no express provision in the Act which indicates when the BIFR loses its jurisdiction with regard to a company which was once sick and proceeded to declare the company in question not amenable to the jurisdiction of the BIFR from and with effect from the date the Balance Sheet showed the Net Worth to be positive. In the second case the High Court was of the view that sickness of an industrial company is to be decided ex-facie on the basis of the audited balance sheet and when the Net Worth becomes positive the BIFR ceases to have any jurisdiction. The last case arose from the same BIFR matter and Delhi High Court followed the view taken by Madras High Court. Said decisions must now be read in the light of the above discussion and view that we have taken31. In the circumstances, we allow the present appeals and set aside the order dated 06.01.2014 passed by the High Court of Gauhati in FAO No.10 of 2013 and Writ Petition Nos.4303 of 2013 and 6286 of 2013. It is held that the Title Suit No.166 of 2013 pending on the file of the learned Civil Court at Kamroop, Gauhati is not maintainable insofar as it seeks declaration that the company was no longer a sick company within the meaning of the Act and that the BIFR ceased to have jurisdiction over the company and that all the proceedings in the BIFR after filing of the positive balance-sheet were without jurisdiction. Consequently the order of injunction passed by the Civil Court is set aside. Insofar as the said Suit pertains to the claim for recovery of money from the Company, the Suit could lie and be proceeded with only after express consent of the BIFR is received by the plaintiff. We direct that the company i.e., J.K. Jute Mills Company Ltd. having its registered office at Kanpur U.P. continues to be under the jurisdiction of the BIFR. We leave it to the BIFR to satisfy itself and determine the issues whether the net worth of the company has turned positive or not. If the BIFR is so satisfied, it shall de-register the company and upon such declaration the company will be out of the supervisory jurisdiction of the BIFR under the Act. Needless to say that if the BIFR is not satisfied that the net worth of the company has turned positive, it shall go ahead and consider the scheme for revival of the company. We direct the BIFR to complete this exercise within two months from date of receipt of this order. We have refrained from dealing with the matter concerning the merits or de-merits of the claim that the net worth has turned positive nor have we dealt with the report made by the State Bank of India in its Special Investigative Audit. We leave these issues to be considered by the BIFR at an appropriate stage. We have also not dealt with the submissions alleging bias as the matters in that behalf are still pending consideration before the authorities and we leave these issues to be dealt with at an appropriate stage32. Since in our view the company continues to be a sick company and it was not competent for anyone except the BIFR to determine whether the net worth of the company had turned positive, we hold the sale of Katihar property effected by the company without express leave or permission of the BIFR to be questionable. However, since the transferee of that property is not before this Court we relegate this matter for appropriate assessment by the BIFR after issuing due notice to the transferee. We also leave it to the BIFR to consider and assess whether there was any necessity or expediency to sell the property in question. If in its opinion such expediency and necessity are established, the BIFR may also consider whether the value that the property has fetched is adequate or not. If the value is adequate it may confirm the sale in favour of the transferee. However, if the value in its opinion is inadequate, it shall give offer and adequate time to the transferee to make good the deficit. In any case if the sale is held to be bad or if the transferee is not willing to make good the deficit, the entire consideration for the transaction be returned to the transferee. In such eventuality whatever the transferee has paid in excess of the consideration money towards stamp duty and registration shall be recovered from the Directors and persons responsible for effecting such sale on behalf of the company33. Now we turn to the filing of the civil suit in the instant case and its conduct. The original plaintiff had sought consent of the BIFR under Section 22(1) of the Act and was before the BIFR on 04.04.2013. However, he did not disclose either the factum that he had so sought such consent or that the BIFR was in seisin of the matter and considering whether the net worth of the company had turned positive. Non-disclosure of these two essential facts, in our view, was not accidental. We therefore impose costs of Rs.5 lacs on the original plaintiff which shall be deposited within three months from the date of this order, failing which action in contempt shall be initiated against the original plaintiff. The costs shall be deposited to the account of the Supreme Court Legal Services Authority. Though the conduct of the company as defendant before the Civil Court was of the same order, since it is a sick company we refrain from imposing any costs on the company. No other order as to costs. | 1 | 9,472 | 1,057 | ### 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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30. We now deal with the decisions of the High Courts of Calcutta, Madras and Delhi. All these decisions were rendered while considering writ petitions under Article 226 of the Constitution of India. In the first of these three cases the High Court took the view that there is no express provision in the Act which indicates when the BIFR loses its jurisdiction with regard to a company which was once sick and proceeded to declare the company in question not amenable to the jurisdiction of the BIFR from and with effect from the date the Balance Sheet showed the Net Worth to be positive. In the second case the High Court was of the view that sickness of an industrial company is to be decided ex-facie on the basis of the audited balance sheet and when the Net Worth becomes positive the BIFR ceases to have any jurisdiction. The last case arose from the same BIFR matter and Delhi High Court followed the view taken by Madras High Court. Said decisions must now be read in the light of the above discussion and view that we have taken. 31. In the circumstances, we allow the present appeals and set aside the order dated 06.01.2014 passed by the High Court of Gauhati in FAO No.10 of 2013 and Writ Petition Nos.4303 of 2013 and 6286 of 2013. It is held that the Title Suit No.166 of 2013 pending on the file of the learned Civil Court at Kamroop, Gauhati is not maintainable insofar as it seeks declaration that the company was no longer a sick company within the meaning of the Act and that the BIFR ceased to have jurisdiction over the company and that all the proceedings in the BIFR after filing of the positive balance-sheet were without jurisdiction. Consequently the order of injunction passed by the Civil Court is set aside. Insofar as the said Suit pertains to the claim for recovery of money from the Company, the Suit could lie and be proceeded with only after express consent of the BIFR is received by the plaintiff. We direct that the company i.e., J.K. Jute Mills Company Ltd. having its registered office at Kanpur U.P. continues to be under the jurisdiction of the BIFR. We leave it to the BIFR to satisfy itself and determine the issues whether the net worth of the company has turned positive or not. If the BIFR is so satisfied, it shall de-register the company and upon such declaration the company will be out of the supervisory jurisdiction of the BIFR under the Act. Needless to say that if the BIFR is not satisfied that the net worth of the company has turned positive, it shall go ahead and consider the scheme for revival of the company. We direct the BIFR to complete this exercise within two months from date of receipt of this order. We have refrained from dealing with the matter concerning the merits or de-merits of the claim that the net worth has turned positive nor have we dealt with the report made by the State Bank of India in its Special Investigative Audit. We leave these issues to be considered by the BIFR at an appropriate stage. We have also not dealt with the submissions alleging bias as the matters in that behalf are still pending consideration before the authorities and we leave these issues to be dealt with at an appropriate stage. 32. Since in our view the company continues to be a sick company and it was not competent for anyone except the BIFR to determine whether the net worth of the company had turned positive, we hold the sale of Katihar property effected by the company without express leave or permission of the BIFR to be questionable. However, since the transferee of that property is not before this Court we relegate this matter for appropriate assessment by the BIFR after issuing due notice to the transferee. We also leave it to the BIFR to consider and assess whether there was any necessity or expediency to sell the property in question. If in its opinion such expediency and necessity are established, the BIFR may also consider whether the value that the property has fetched is adequate or not. If the value is adequate it may confirm the sale in favour of the transferee. However, if the value in its opinion is inadequate, it shall give offer and adequate time to the transferee to make good the deficit. In any case if the sale is held to be bad or if the transferee is not willing to make good the deficit, the entire consideration for the transaction be returned to the transferee. In such eventuality whatever the transferee has paid in excess of the consideration money towards stamp duty and registration shall be recovered from the Directors and persons responsible for effecting such sale on behalf of the company. 33. Now we turn to the filing of the civil suit in the instant case and its conduct. The original plaintiff had sought consent of the BIFR under Section 22(1) of the Act and was before the BIFR on 04.04.2013. However, he did not disclose either the factum that he had so sought such consent or that the BIFR was in seisin of the matter and considering whether the net worth of the company had turned positive. Non-disclosure of these two essential facts, in our view, was not accidental. We therefore impose costs of Rs.5 lacs on the original plaintiff which shall be deposited within three months from the date of this order, failing which action in contempt shall be initiated against the original plaintiff. The costs shall be deposited to the account of the Supreme Court Legal Services Authority. Though the conduct of the company as defendant before the Civil Court was of the same order, since it is a sick company we refrain from imposing any costs on the company. No other order as to costs. 34.
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### Explanation:
30. We now deal with the decisions of the High Courts of Calcutta, Madras and Delhi. All these decisions were rendered while considering writ petitions under Article 226 of the Constitution of India. In the first of these three cases the High Court took the view that there is no express provision in the Act which indicates when the BIFR loses its jurisdiction with regard to a company which was once sick and proceeded to declare the company in question not amenable to the jurisdiction of the BIFR from and with effect from the date the Balance Sheet showed the Net Worth to be positive. In the second case the High Court was of the view that sickness of an industrial company is to be decided ex-facie on the basis of the audited balance sheet and when the Net Worth becomes positive the BIFR ceases to have any jurisdiction. The last case arose from the same BIFR matter and Delhi High Court followed the view taken by Madras High Court. Said decisions must now be read in the light of the above discussion and view that we have taken31. In the circumstances, we allow the present appeals and set aside the order dated 06.01.2014 passed by the High Court of Gauhati in FAO No.10 of 2013 and Writ Petition Nos.4303 of 2013 and 6286 of 2013. It is held that the Title Suit No.166 of 2013 pending on the file of the learned Civil Court at Kamroop, Gauhati is not maintainable insofar as it seeks declaration that the company was no longer a sick company within the meaning of the Act and that the BIFR ceased to have jurisdiction over the company and that all the proceedings in the BIFR after filing of the positive balance-sheet were without jurisdiction. Consequently the order of injunction passed by the Civil Court is set aside. Insofar as the said Suit pertains to the claim for recovery of money from the Company, the Suit could lie and be proceeded with only after express consent of the BIFR is received by the plaintiff. We direct that the company i.e., J.K. Jute Mills Company Ltd. having its registered office at Kanpur U.P. continues to be under the jurisdiction of the BIFR. We leave it to the BIFR to satisfy itself and determine the issues whether the net worth of the company has turned positive or not. If the BIFR is so satisfied, it shall de-register the company and upon such declaration the company will be out of the supervisory jurisdiction of the BIFR under the Act. Needless to say that if the BIFR is not satisfied that the net worth of the company has turned positive, it shall go ahead and consider the scheme for revival of the company. We direct the BIFR to complete this exercise within two months from date of receipt of this order. We have refrained from dealing with the matter concerning the merits or de-merits of the claim that the net worth has turned positive nor have we dealt with the report made by the State Bank of India in its Special Investigative Audit. We leave these issues to be considered by the BIFR at an appropriate stage. We have also not dealt with the submissions alleging bias as the matters in that behalf are still pending consideration before the authorities and we leave these issues to be dealt with at an appropriate stage32. Since in our view the company continues to be a sick company and it was not competent for anyone except the BIFR to determine whether the net worth of the company had turned positive, we hold the sale of Katihar property effected by the company without express leave or permission of the BIFR to be questionable. However, since the transferee of that property is not before this Court we relegate this matter for appropriate assessment by the BIFR after issuing due notice to the transferee. We also leave it to the BIFR to consider and assess whether there was any necessity or expediency to sell the property in question. If in its opinion such expediency and necessity are established, the BIFR may also consider whether the value that the property has fetched is adequate or not. If the value is adequate it may confirm the sale in favour of the transferee. However, if the value in its opinion is inadequate, it shall give offer and adequate time to the transferee to make good the deficit. In any case if the sale is held to be bad or if the transferee is not willing to make good the deficit, the entire consideration for the transaction be returned to the transferee. In such eventuality whatever the transferee has paid in excess of the consideration money towards stamp duty and registration shall be recovered from the Directors and persons responsible for effecting such sale on behalf of the company33. Now we turn to the filing of the civil suit in the instant case and its conduct. The original plaintiff had sought consent of the BIFR under Section 22(1) of the Act and was before the BIFR on 04.04.2013. However, he did not disclose either the factum that he had so sought such consent or that the BIFR was in seisin of the matter and considering whether the net worth of the company had turned positive. Non-disclosure of these two essential facts, in our view, was not accidental. We therefore impose costs of Rs.5 lacs on the original plaintiff which shall be deposited within three months from the date of this order, failing which action in contempt shall be initiated against the original plaintiff. The costs shall be deposited to the account of the Supreme Court Legal Services Authority. Though the conduct of the company as defendant before the Civil Court was of the same order, since it is a sick company we refrain from imposing any costs on the company. No other order as to costs.
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Amrita Singh Vs. Ratan Singh & Another | A.K. Sikri, J. 1. Leave granted. 2. Marriage between appellant and Respondent No. 1 was solemnized on February 17.2006. In May, 2007, one son was born out of this wedlock. It is the case of the appellant that on account of cruel conduct of Respondent No. 1 towards her, she was constrained to leave her matrimonial home along with her child on January 04, 2008 and since she was living at her parental home and no maintenance amount was paid to her by her husband, she was constrained to file a petition under Section 125 Cr.P.C., claiming maintenance for herself and her minor child. 3. Both the parties led their evidence, the trial court found that Respondent No. 1 is a railway employee and is getting a salary of Rs. 16,000/- per month from the railway department. That fact is not in dispute. Keeping in view the aforesaid income of Respondent No. 1, the trial court awarded maintenance of Rs. 4,000/- for the appellant and Rs. 4,000/- for the child.4. Respondent No. 1 challenged the aforesaid order by filing criminal revision petition in the High Court and the High Court has allowed the said petition thereby quashing the order of the trial court granting maintenance. The reason given by the High Court is that the appellant has not made out any reasonable cause for not living with Respondent No. 1. Entire discussion on this aspect is contained in two paragraphs which are reproduced below: "5. The history of their marriage is that the petitioner submits that he was kidnapped for the purpose of marriage on a misconception that he was highly placed in the railway even though he belongs to parents, who come within the BPL category, and he himself was the 4th grade employee. Naturally, there was incompatibility between the spouses on account of wide economic difference between them. When the Opposite Party No. 2 left him, he filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Some kind of temporary arrangement was made at the behest of the Court but to no avail. In the meanwhile, the Opposite Party No. 2 filed a case under Section 498-A Indian Penal Code in which he and his father were behind the bar for a long period.6. It appears that the Opposite Party No. 2 has not made out any reasonable cause for not living with the petition. In such circumstances, evidently the application filed under Section 125 Cr.P.C. should not have been allowed by the Court below." 5. Two aspects are mentioned in the afore-quoted portion, i.e., application of Respondent No. 1 under Section 9 of the Hindu Marriage Act and filing of case by the appellant under Section 498-A of the Indian Penal Code. There is no discussion as to how the aforesaid two cases led to the conclusion that appellant did not have any reasonable cause for leaving Respondent No. 1. That apart, in any case it is abundantly clear from the record that the position that emerges from the aforesaid proceedings would blame Respondent No. 1 and not the appellant and the finding of the High Court is palpably erroneous. 6. It would be pertinent to note that Respondent No. 1 had, after filing the petition under Section 9 of the Hindu Marriage Act, filed another petition under Section 13 of the Hindu Marriage Act for dissolution of marriage alleging that the appellant had deserted her without any reasonable cause and also that the appellant had treated the respondent with cruelty. In defence, the appellant had pleaded that it is she who was treated with cruelty and there was demand of dowry as well. 7. It may be mentioned that in reply filed by Respondent No. 1, he had taken the plea that his wife-appellant had deserted him without any reasonable cause and he was ready to take her back even now. The rebuttal of the appellant was that she was treated with cruelty by her in-laws and there was persistent demand of dowry and she was ousted from the matrimonial home after torturing. She had even filed criminal complaint under Section 498-A of the Indian Penal Code in January, 2008 in which Respondent No. 1 and his father have been found guilty and convicted for the said offence. Their appeal against the judgment of the trial court was pending before the Appellate Court. It is for this reason she had lost trust in her husband as she feared that she would be tortured again if she goes back to her matrimonial house. In essence, she pleaded that there were valid reasons for not resuming the matrimonial alliance after she was thrown out of the house. The Family Court while dismissing the petition of Respondent No. 1 under Section 13 of the Hindu Marriage Act, gave a categorical finding that it is Respondent No. 1-husband who had treated the appellant with cruelty and she was ousted from the matrimonial home. Therefore, the appellant had reasonable apprehension in not joining back the company of her husband. 8. Insofar as case under Section 498-A, IPC is concerned, as already pointed out above, Respondent-1 and his family members have been convicted by Court of Sub-Divisional Judicial Magistrate, Munger vide judgment dated July 09, 2013. No doubt, Respondent No. 1 and his family members have filed appeal there against, which is pending before the appellate court. Fact remains that as per the finding of the trial court, the allegations of appellant that there was a demand of dowry and she was subjected to cruelty at the hands of her husband, stands proved, as of now. | 1[ds]5. Two aspects are mentioned in theportion, i.e., application of Respondent No. 1 under Section 9 of the Hindu Marriage Act and filing of case by the appellant under Sectionof the Indian Penal Code. There is no discussion as to how the aforesaid two cases led to the conclusion that appellant did not have any reasonable cause for leaving Respondent No. 1. That apart, in any case it is abundantly clear from the record that the position that emerges from the aforesaid proceedings would blame Respondent No. 1 and not the appellant and the finding of the High Court is palpablyappeal against the judgment of the trial court was pending before the Appellate Court. It is for this reason she had lost trust in her husband as she feared that she would be tortured again if she goes back to her matrimonial house. In essence, she pleaded that there were valid reasons for not resuming the matrimonial alliance after she was thrown out of the house.y Court while dismissing the petition of Respondent No. 1 under Section 13 of the Hindu Marriage Act, gave a categorical finding that it is Respondent No.o had treated the appellant with cruelty and she was ousted from the matrimonial home. Therefore, the appellant had reasonable apprehension in not joining back the company of her husband.Insofar as case under SectionIPC is concerned, as already pointed out above,and his family members have been convicted by Court ofJudicial Magistrate, Munger vide judgment dated July 09, 2013. No doubt, Respondent No. 1 and his family members have filed appeal there against, which is pending before the appellate court. Fact remains that as per the finding of the trial court, the allegations of appellant that there was a demand of dowry and she was subjected to cruelty at the hands of her husband, stands proved, as of now. | 1 | 1,044 | 343 | ### 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:
A.K. Sikri, J. 1. Leave granted. 2. Marriage between appellant and Respondent No. 1 was solemnized on February 17.2006. In May, 2007, one son was born out of this wedlock. It is the case of the appellant that on account of cruel conduct of Respondent No. 1 towards her, she was constrained to leave her matrimonial home along with her child on January 04, 2008 and since she was living at her parental home and no maintenance amount was paid to her by her husband, she was constrained to file a petition under Section 125 Cr.P.C., claiming maintenance for herself and her minor child. 3. Both the parties led their evidence, the trial court found that Respondent No. 1 is a railway employee and is getting a salary of Rs. 16,000/- per month from the railway department. That fact is not in dispute. Keeping in view the aforesaid income of Respondent No. 1, the trial court awarded maintenance of Rs. 4,000/- for the appellant and Rs. 4,000/- for the child.4. Respondent No. 1 challenged the aforesaid order by filing criminal revision petition in the High Court and the High Court has allowed the said petition thereby quashing the order of the trial court granting maintenance. The reason given by the High Court is that the appellant has not made out any reasonable cause for not living with Respondent No. 1. Entire discussion on this aspect is contained in two paragraphs which are reproduced below: "5. The history of their marriage is that the petitioner submits that he was kidnapped for the purpose of marriage on a misconception that he was highly placed in the railway even though he belongs to parents, who come within the BPL category, and he himself was the 4th grade employee. Naturally, there was incompatibility between the spouses on account of wide economic difference between them. When the Opposite Party No. 2 left him, he filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Some kind of temporary arrangement was made at the behest of the Court but to no avail. In the meanwhile, the Opposite Party No. 2 filed a case under Section 498-A Indian Penal Code in which he and his father were behind the bar for a long period.6. It appears that the Opposite Party No. 2 has not made out any reasonable cause for not living with the petition. In such circumstances, evidently the application filed under Section 125 Cr.P.C. should not have been allowed by the Court below." 5. Two aspects are mentioned in the afore-quoted portion, i.e., application of Respondent No. 1 under Section 9 of the Hindu Marriage Act and filing of case by the appellant under Section 498-A of the Indian Penal Code. There is no discussion as to how the aforesaid two cases led to the conclusion that appellant did not have any reasonable cause for leaving Respondent No. 1. That apart, in any case it is abundantly clear from the record that the position that emerges from the aforesaid proceedings would blame Respondent No. 1 and not the appellant and the finding of the High Court is palpably erroneous. 6. It would be pertinent to note that Respondent No. 1 had, after filing the petition under Section 9 of the Hindu Marriage Act, filed another petition under Section 13 of the Hindu Marriage Act for dissolution of marriage alleging that the appellant had deserted her without any reasonable cause and also that the appellant had treated the respondent with cruelty. In defence, the appellant had pleaded that it is she who was treated with cruelty and there was demand of dowry as well. 7. It may be mentioned that in reply filed by Respondent No. 1, he had taken the plea that his wife-appellant had deserted him without any reasonable cause and he was ready to take her back even now. The rebuttal of the appellant was that she was treated with cruelty by her in-laws and there was persistent demand of dowry and she was ousted from the matrimonial home after torturing. She had even filed criminal complaint under Section 498-A of the Indian Penal Code in January, 2008 in which Respondent No. 1 and his father have been found guilty and convicted for the said offence. Their appeal against the judgment of the trial court was pending before the Appellate Court. It is for this reason she had lost trust in her husband as she feared that she would be tortured again if she goes back to her matrimonial house. In essence, she pleaded that there were valid reasons for not resuming the matrimonial alliance after she was thrown out of the house. The Family Court while dismissing the petition of Respondent No. 1 under Section 13 of the Hindu Marriage Act, gave a categorical finding that it is Respondent No. 1-husband who had treated the appellant with cruelty and she was ousted from the matrimonial home. Therefore, the appellant had reasonable apprehension in not joining back the company of her husband. 8. Insofar as case under Section 498-A, IPC is concerned, as already pointed out above, Respondent-1 and his family members have been convicted by Court of Sub-Divisional Judicial Magistrate, Munger vide judgment dated July 09, 2013. No doubt, Respondent No. 1 and his family members have filed appeal there against, which is pending before the appellate court. Fact remains that as per the finding of the trial court, the allegations of appellant that there was a demand of dowry and she was subjected to cruelty at the hands of her husband, stands proved, as of now.
### Response:
1
### Explanation:
5. Two aspects are mentioned in theportion, i.e., application of Respondent No. 1 under Section 9 of the Hindu Marriage Act and filing of case by the appellant under Sectionof the Indian Penal Code. There is no discussion as to how the aforesaid two cases led to the conclusion that appellant did not have any reasonable cause for leaving Respondent No. 1. That apart, in any case it is abundantly clear from the record that the position that emerges from the aforesaid proceedings would blame Respondent No. 1 and not the appellant and the finding of the High Court is palpablyappeal against the judgment of the trial court was pending before the Appellate Court. It is for this reason she had lost trust in her husband as she feared that she would be tortured again if she goes back to her matrimonial house. In essence, she pleaded that there were valid reasons for not resuming the matrimonial alliance after she was thrown out of the house.y Court while dismissing the petition of Respondent No. 1 under Section 13 of the Hindu Marriage Act, gave a categorical finding that it is Respondent No.o had treated the appellant with cruelty and she was ousted from the matrimonial home. Therefore, the appellant had reasonable apprehension in not joining back the company of her husband.Insofar as case under SectionIPC is concerned, as already pointed out above,and his family members have been convicted by Court ofJudicial Magistrate, Munger vide judgment dated July 09, 2013. No doubt, Respondent No. 1 and his family members have filed appeal there against, which is pending before the appellate court. Fact remains that as per the finding of the trial court, the allegations of appellant that there was a demand of dowry and she was subjected to cruelty at the hands of her husband, stands proved, as of now.
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Manju Sarkar Vs. Mabish Miah | the FCI godown at Churaibari on 14.5.2005.8. Further case of respondent Nos.1 and 2 is that Sajal Sarkar was employed by them to drive the truck vehicle from Agartala to Dharmanagar FCI godown at Churaibari and on the truck reaching the godown, Sajal Sarkar ceased to be in their employment. This also appears to be an after thought and factually incorrect. As per the averments in the First Information Report lodged by helper Bikram Deb the truck reached Churaibari FCI godown on 14.5.2005 and Sajal Sarkar was to return back to Agartala with the truck laden with rice bags. According to the complainant, on reaching FCI godown in the afternoon on 14.5.2005, considering the delay of loading goods, Sajal Sarkar left the place by leaving the truck in his care and told him that he would return in the night and since he did not return during the night, he searched him the next morning and after coming to know about the accident and death, he lodged the complaint. If Sajal Sarkar was actually employed only for the trip from Agartala to FCI godown Churaibari there was no need for him to inform the helper that he would come back in the night to the godown for the return trip and in the same way there was no obligation on the part of the helper Bikram Deb to search for Sajal Sarkar the next day morning leading to lodging of the complaint. These circumstances clinch the issue and prove that Sajal Sarkar was employed to drive the truck from Agartala to FCI godown Churaibari and return back to Agartala with the truck laden with the rice bags. It is also relevant to point out that respondent Nos.1 and 2 neither examined themselves in the trial nor examined helper Bikram Deb or permanent driver Gopal Sharma to substantiate their plea.9. According to the appellants, Sajal Sarkar on reaching Dharmanagar noticed some mechanical trouble in the truck and he got down to make arrangement for repairing the same and in the night he met with an accident. Churaibari FCI godown is located in Dharmanagar. The Courts below have rejected the claim petition on the ground that there is contradiction in the claimants case since there was no mention of mechanical defect in the truck in the First Information Report. What is relevant is as to whether Sajal Sarkar continued to be in course of employment under respondent Nos.1 and 2 at the time of sustaining injuries in the accident culminating in his death. Sajal Sarkar was at Churaibari, Dharmanagar only on account of his employment as driver of the truck and there he met with the road accident. 10. This Court has in the celebrated decision in General Manager B.E.S.T. Undertaking, Bombay vs. Mrs. Agnes (AIR 1964 SC 193 ] laid down as follows: “Under Section 3(1) of the Act the injury must be caused to the workman by an accident arising out of and in the course of his employment. The question, when does an employment begin and when does it cease, depends upon the facts of each case. But the Courts have agreed that the employment does not necessarily end when the “down tool” signal is given or when the workman leaves the actual workshop where he is working. There is a notional extension at both the entry and exit by time and space. The scope of such extension must necessarily depend on the circumstances of a given case. As employment may end or may begin not only when the employee begins to work or leaves his tools but also when he used the means of access and, egress to and from the place of employment.” 11. As rightly contended by learned counsel appearing for the appellants there is a notional extension in the present case also and we would, therefore, hold that Sajal Sarkar met with the road accident in the course of his employment under respondent Nos.1 and 2. The Courts below have misdirected themselves while dealing with this question and the finding rendered by them is perverse and unsustainable.12. In the claim petition the appellants have stated that Sajal Sarkar at the time of death was aged about 22 years and used to get monthly wages of Rs. 4,500/- at the time of accident. The first appellant herein examined herself as PW1 in the trial and has reiterated the age and income of the deceased. Three documents were marked on her side. Her testimony deserves acceptance. As per Section 4 clause 1(a) of the Act where death results from the injury, 50% of the monthly wages of the deceased multiplied by the relevant factor would be the amount of compensation. In the present case the compensation would be a sum of Rs.2250 being 50% of the monthly wages multiplied by factor 221.37, which comes to Rs.4,98,082.50 and a further sum of Rs.10,000/- could be awarded towards funeral expenses as per Section 4 Clause (4). In the circumstances of the case we deem it just and proper to award interest at the rate of 9% per annum on the compensation from the date of claim petition.13. A contention was raised by the learned counsel for the Respondent No.3 Insurance Company that they are not liable to pay the interest component and reliance was placed on the decision of New India Assurances Co. Ltd. Vs. Harshad Bhai Amrut Bhai Modhiya and another [(2006) 5 SCC 192] In the facts of the case on which the said decision arose, the contract of insurance entered into between the parties contained a proviso that the insurance granted is not extended to include any interest. In the present case there is nothing on record to show that respondent No.3 Insurance Company either pleaded about existence of such a clause in the contract of insurance or led any evidence to the said effect and hence the said decision will not help respondent No.3 in any way and the contention raised is devoid of merit. | 1[ds]7. From the pleadings it is clear that Sajal Sarkar was employed by respondent Nos.1 and 2 to drive their truck at the relevant time. Though respondent Nos. 1 and 2 had stated in the counter that Sajal Sarkar was entrusted to drive the truck on 13.5.2005 and on the same day the said truck entered the godown complex of FCI at Churaibari, this statement about the date does not appear to be correct. It is categorically stated in the claim petition that Sajal Sarkar drove the truck vehicle on 14.5.2005 and the said fact is corroborated by the averments in the First Information Report as well as final report which specifically states that the truck reached the FCI godown at Churaibari on 14.5.2005.8. Further case of respondent Nos.1 and 2 is that Sajal Sarkar was employed by them to drive the truck vehicle from Agartala to Dharmanagar FCI godown at Churaibari and on the truck reaching the godown, Sajal Sarkar ceased to be in their employment. This also appears to be an after thought and factually incorrect. As per the averments in the First Information Report lodged by helper Bikram Deb the truck reached Churaibari FCI godown on 14.5.2005 and Sajal Sarkar was to return back to Agartala with the truck laden with rice bags. According to the complainant, on reaching FCI godown in the afternoon on 14.5.2005, considering the delay of loading goods, Sajal Sarkar left the place by leaving the truck in his care and told him that he would return in the night and since he did not return during the night, he searched him the next morning and after coming to know about the accident and death, he lodged the complaint. If Sajal Sarkar was actually employed only for the trip from Agartala to FCI godown Churaibari there was no need for him to inform the helper that he would come back in the night to the godown for the return trip and in the same way there was no obligation on the part of the helper Bikram Deb to search for Sajal Sarkar the next day morning leading to lodging of the complaint. These circumstances clinch the issue and prove that Sajal Sarkar was employed to drive the truck from Agartala to FCI godown Churaibari and return back to Agartala with the truck laden with the rice bags. It is also relevant to point out that respondent Nos.1 and 2 neither examined themselves in the trial nor examined helper Bikram Deb or permanent driver Gopal Sharma to substantiate their plea.9. According to the appellants, Sajal Sarkar on reaching Dharmanagar noticed some mechanical trouble in the truck and he got down to make arrangement for repairing the same and in the night he met with an accident. Churaibari FCI godown is located in Dharmanagar. The Courts below have rejected the claim petition on the ground that there is contradiction in the claimants case since there was no mention of mechanical defect in the truck in the First Information Report. What is relevant is as to whether Sajal Sarkar continued to be in course of employment under respondent Nos.1 and 2 at the time of sustaining injuries in the accident culminating in his death. Sajal Sarkar was at Churaibari, Dharmanagar only on account of his employment as driver of the truck and there he met with the road accident.As rightly contended by learned counsel appearing for the appellants there is a notional extension in the present case also and we would, therefore, hold that Sajal Sarkar met with the road accident in the course of his employment under respondent Nos.1 and 2. The Courts below have misdirected themselves while dealing with this question and the finding rendered by them is perverse and unsustainable.12. In the claim petition the appellants have stated that Sajal Sarkar at the time of death was aged about 22 years and used to get monthly wages of Rs. 4,500/- at the time of accident. The first appellant herein examined herself as PW1 in the trial and has reiterated the age and income of the deceased. Three documents were marked on her side. Her testimony deserves acceptance. As per Section 4 clause 1(a) of the Act where death results from the injury, 50% of the monthly wages of the deceased multiplied by the relevant factor would be the amount of compensation. In the present case the compensation would be a sum of Rs.2250 being 50% of the monthly wages multiplied by factor 221.37, which comes to Rs.4,98,082.50 and a further sum of Rs.10,000/- could be awarded towards funeral expenses as per Section 4 Clause (4). In the circumstances of the case we deem it just and proper to award interest at the rate of 9% per annum on the compensation from the date of claim petition.13. A contention was raised by the learned counsel for the Respondent No.3 Insurance Company that they are not liable to pay the interest component and reliance was placed on the decision of New India Assurances Co. Ltd. Vs. Harshad Bhai Amrut Bhai Modhiya and another [(2006) 5 SCC 192] In the facts of the case on which the said decision arose, the contract of insurance entered into between the parties contained a proviso that the insurance granted is not extended to include any interest. In the present case there is nothing on record to show that respondent No.3 Insurance Company either pleaded about existence of such a clause in the contract of insurance or led any evidence to the said effect and hence the said decision will not help respondent No.3 in any way and the contention raised is devoid of merit. | 1 | 2,103 | 1,004 | ### 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:
the FCI godown at Churaibari on 14.5.2005.8. Further case of respondent Nos.1 and 2 is that Sajal Sarkar was employed by them to drive the truck vehicle from Agartala to Dharmanagar FCI godown at Churaibari and on the truck reaching the godown, Sajal Sarkar ceased to be in their employment. This also appears to be an after thought and factually incorrect. As per the averments in the First Information Report lodged by helper Bikram Deb the truck reached Churaibari FCI godown on 14.5.2005 and Sajal Sarkar was to return back to Agartala with the truck laden with rice bags. According to the complainant, on reaching FCI godown in the afternoon on 14.5.2005, considering the delay of loading goods, Sajal Sarkar left the place by leaving the truck in his care and told him that he would return in the night and since he did not return during the night, he searched him the next morning and after coming to know about the accident and death, he lodged the complaint. If Sajal Sarkar was actually employed only for the trip from Agartala to FCI godown Churaibari there was no need for him to inform the helper that he would come back in the night to the godown for the return trip and in the same way there was no obligation on the part of the helper Bikram Deb to search for Sajal Sarkar the next day morning leading to lodging of the complaint. These circumstances clinch the issue and prove that Sajal Sarkar was employed to drive the truck from Agartala to FCI godown Churaibari and return back to Agartala with the truck laden with the rice bags. It is also relevant to point out that respondent Nos.1 and 2 neither examined themselves in the trial nor examined helper Bikram Deb or permanent driver Gopal Sharma to substantiate their plea.9. According to the appellants, Sajal Sarkar on reaching Dharmanagar noticed some mechanical trouble in the truck and he got down to make arrangement for repairing the same and in the night he met with an accident. Churaibari FCI godown is located in Dharmanagar. The Courts below have rejected the claim petition on the ground that there is contradiction in the claimants case since there was no mention of mechanical defect in the truck in the First Information Report. What is relevant is as to whether Sajal Sarkar continued to be in course of employment under respondent Nos.1 and 2 at the time of sustaining injuries in the accident culminating in his death. Sajal Sarkar was at Churaibari, Dharmanagar only on account of his employment as driver of the truck and there he met with the road accident. 10. This Court has in the celebrated decision in General Manager B.E.S.T. Undertaking, Bombay vs. Mrs. Agnes (AIR 1964 SC 193 ] laid down as follows: “Under Section 3(1) of the Act the injury must be caused to the workman by an accident arising out of and in the course of his employment. The question, when does an employment begin and when does it cease, depends upon the facts of each case. But the Courts have agreed that the employment does not necessarily end when the “down tool” signal is given or when the workman leaves the actual workshop where he is working. There is a notional extension at both the entry and exit by time and space. The scope of such extension must necessarily depend on the circumstances of a given case. As employment may end or may begin not only when the employee begins to work or leaves his tools but also when he used the means of access and, egress to and from the place of employment.” 11. As rightly contended by learned counsel appearing for the appellants there is a notional extension in the present case also and we would, therefore, hold that Sajal Sarkar met with the road accident in the course of his employment under respondent Nos.1 and 2. The Courts below have misdirected themselves while dealing with this question and the finding rendered by them is perverse and unsustainable.12. In the claim petition the appellants have stated that Sajal Sarkar at the time of death was aged about 22 years and used to get monthly wages of Rs. 4,500/- at the time of accident. The first appellant herein examined herself as PW1 in the trial and has reiterated the age and income of the deceased. Three documents were marked on her side. Her testimony deserves acceptance. As per Section 4 clause 1(a) of the Act where death results from the injury, 50% of the monthly wages of the deceased multiplied by the relevant factor would be the amount of compensation. In the present case the compensation would be a sum of Rs.2250 being 50% of the monthly wages multiplied by factor 221.37, which comes to Rs.4,98,082.50 and a further sum of Rs.10,000/- could be awarded towards funeral expenses as per Section 4 Clause (4). In the circumstances of the case we deem it just and proper to award interest at the rate of 9% per annum on the compensation from the date of claim petition.13. A contention was raised by the learned counsel for the Respondent No.3 Insurance Company that they are not liable to pay the interest component and reliance was placed on the decision of New India Assurances Co. Ltd. Vs. Harshad Bhai Amrut Bhai Modhiya and another [(2006) 5 SCC 192] In the facts of the case on which the said decision arose, the contract of insurance entered into between the parties contained a proviso that the insurance granted is not extended to include any interest. In the present case there is nothing on record to show that respondent No.3 Insurance Company either pleaded about existence of such a clause in the contract of insurance or led any evidence to the said effect and hence the said decision will not help respondent No.3 in any way and the contention raised is devoid of merit.
### Response:
1
### Explanation:
7. From the pleadings it is clear that Sajal Sarkar was employed by respondent Nos.1 and 2 to drive their truck at the relevant time. Though respondent Nos. 1 and 2 had stated in the counter that Sajal Sarkar was entrusted to drive the truck on 13.5.2005 and on the same day the said truck entered the godown complex of FCI at Churaibari, this statement about the date does not appear to be correct. It is categorically stated in the claim petition that Sajal Sarkar drove the truck vehicle on 14.5.2005 and the said fact is corroborated by the averments in the First Information Report as well as final report which specifically states that the truck reached the FCI godown at Churaibari on 14.5.2005.8. Further case of respondent Nos.1 and 2 is that Sajal Sarkar was employed by them to drive the truck vehicle from Agartala to Dharmanagar FCI godown at Churaibari and on the truck reaching the godown, Sajal Sarkar ceased to be in their employment. This also appears to be an after thought and factually incorrect. As per the averments in the First Information Report lodged by helper Bikram Deb the truck reached Churaibari FCI godown on 14.5.2005 and Sajal Sarkar was to return back to Agartala with the truck laden with rice bags. According to the complainant, on reaching FCI godown in the afternoon on 14.5.2005, considering the delay of loading goods, Sajal Sarkar left the place by leaving the truck in his care and told him that he would return in the night and since he did not return during the night, he searched him the next morning and after coming to know about the accident and death, he lodged the complaint. If Sajal Sarkar was actually employed only for the trip from Agartala to FCI godown Churaibari there was no need for him to inform the helper that he would come back in the night to the godown for the return trip and in the same way there was no obligation on the part of the helper Bikram Deb to search for Sajal Sarkar the next day morning leading to lodging of the complaint. These circumstances clinch the issue and prove that Sajal Sarkar was employed to drive the truck from Agartala to FCI godown Churaibari and return back to Agartala with the truck laden with the rice bags. It is also relevant to point out that respondent Nos.1 and 2 neither examined themselves in the trial nor examined helper Bikram Deb or permanent driver Gopal Sharma to substantiate their plea.9. According to the appellants, Sajal Sarkar on reaching Dharmanagar noticed some mechanical trouble in the truck and he got down to make arrangement for repairing the same and in the night he met with an accident. Churaibari FCI godown is located in Dharmanagar. The Courts below have rejected the claim petition on the ground that there is contradiction in the claimants case since there was no mention of mechanical defect in the truck in the First Information Report. What is relevant is as to whether Sajal Sarkar continued to be in course of employment under respondent Nos.1 and 2 at the time of sustaining injuries in the accident culminating in his death. Sajal Sarkar was at Churaibari, Dharmanagar only on account of his employment as driver of the truck and there he met with the road accident.As rightly contended by learned counsel appearing for the appellants there is a notional extension in the present case also and we would, therefore, hold that Sajal Sarkar met with the road accident in the course of his employment under respondent Nos.1 and 2. The Courts below have misdirected themselves while dealing with this question and the finding rendered by them is perverse and unsustainable.12. In the claim petition the appellants have stated that Sajal Sarkar at the time of death was aged about 22 years and used to get monthly wages of Rs. 4,500/- at the time of accident. The first appellant herein examined herself as PW1 in the trial and has reiterated the age and income of the deceased. Three documents were marked on her side. Her testimony deserves acceptance. As per Section 4 clause 1(a) of the Act where death results from the injury, 50% of the monthly wages of the deceased multiplied by the relevant factor would be the amount of compensation. In the present case the compensation would be a sum of Rs.2250 being 50% of the monthly wages multiplied by factor 221.37, which comes to Rs.4,98,082.50 and a further sum of Rs.10,000/- could be awarded towards funeral expenses as per Section 4 Clause (4). In the circumstances of the case we deem it just and proper to award interest at the rate of 9% per annum on the compensation from the date of claim petition.13. A contention was raised by the learned counsel for the Respondent No.3 Insurance Company that they are not liable to pay the interest component and reliance was placed on the decision of New India Assurances Co. Ltd. Vs. Harshad Bhai Amrut Bhai Modhiya and another [(2006) 5 SCC 192] In the facts of the case on which the said decision arose, the contract of insurance entered into between the parties contained a proviso that the insurance granted is not extended to include any interest. In the present case there is nothing on record to show that respondent No.3 Insurance Company either pleaded about existence of such a clause in the contract of insurance or led any evidence to the said effect and hence the said decision will not help respondent No.3 in any way and the contention raised is devoid of merit.
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State of Haryana Vs. M/s. Shiv Shankar Construction Co. & Anr | from Palwal Aligarh Road to the present road and the heavy traffic of 24418 PCUS per day was plying on the road as against the design of 3364 PCUS per day and therefore the contractor was required to incur additional expenditure at Rs.45,000/- per km per month. It is submitted that the amount awarded by the Arbitrator at Rs.45,000/- per km per month cannot be said to be rewriting the contract with respect to the amount payable than what was specified in the contract i.e. Rs.1,000/- per km per month. 7.3 However, Shri Ranjit Kumar, learned Senior Advocate appearing on behalf of the contractor is not in a position to justify the award by which the Arbitrator has awarded the payment at Rs.45,000/- per km per month even beyond the time period of additional traffic i.e. up to 31.05.2010 i.e. till the end of the contract. 8. We have heard the learned senior counsel appearing on behalf of the respective parties at length and given our thoughtful consideration. 9. That the contractor was awarded the contract for maintenance, etc. The contract amount was for Rs.5,26,59,688/-. The rate of maintenance of the road as accepted was Rs.12,000/- per km per annum or Rs.1,000/- per km per month. The maintenance contract was valid up to 31.07.2010. When the contract was entered into, the contract was meant for only 3364 PCUS per day. However, due to diversion of traffic from Palwal Aligarh Road to the present road, the contractor was required to incur additional expenditure on the maintenance due to increase in the traffic and plying the additional commercial vehicles. Therefore the contractor claimed the amount towards additional expenditure for maintenance which was due to increase in the traffic and plying more commercial vehicles. On appreciation of evidence the Arbitrator has determined the loss at Rs.45,000/- per km per month (claim Nos.1 and 8). 9.1 The case on behalf of the appellant that as in the statement of claim, the claimant claimed an amount of Rs.1,03,50,263/- under the claim Nos. 1 and 8 and the Arbitrator has awarded Rs.1,51,95,400/-, the same is in far excess of amount claimed and therefore the award is in excess of amount claimed has no substance. When the statement of claim submitted by the contractor is seen, it is specifically stated by the claimant that the amount of Rs.1,03,50,263/- has been worked out up to May, 2007 and the details of expenditure beyond May, 2007 will be submitted during the course of hearing. It is specifically stated that expenditure incurred up to May, 2007 works out to Rs.1,03,50,263/-. Therefore, the amount awarded by the Arbitrator cannot be said to be in excess of the claim. 9.2 Now so far as the submission on behalf of the appellant that the Arbitrator exceeded the scope of reference while awarding an amount beyond 19.05.2007 – the date on which the High Court appointed the sole Arbitrator is concerned, the same has no substance. The case on behalf of the appellant that the Arbitrator ought to have restricted the claim either up to 06.03.2006 – the date on which the contractor invoked the arbitration clause or 23.04.2007, the date on which the High Court appointed the sole Arbitrator or at least up to 19.05.2007 – the date on which the Arbitrator entered into reference, is concerned, it is required to be noted that the claim made by the Arbitrator was till the traffic was diverted which was up to January, 2008. Therefore, the Arbitrator was justified in awarding the amount beyond the aforesaid periods and till the additional traffic was diverted due to the closure of Palwal Aligarh Road. 9.3 Now the submission on behalf of the appellant is that by awarding Rs.45,000/- per km per month the Arbitrator has rewritten the contract with respect to the amount payable than what was specified in the contract. It is urged that under the contract mutually agreed contractual rate was Rs.1,000/- per km per month and therefore any amount higher than Rs.1,000/- per km per month is beyond the terms and conditions of the contract, is also without substance. It is noted that at the time when the contract was entered into the mutually agreed, the rate fixed was Rs.1,000/- per km per month and the estimated traffic was 3364 PCUS per day. The cause of action arose subsequently due to diversion of traffic from Palwal Aligarh Road and plying of more heavy vehicles due to which the contractor was required to incur additional expenditure for maintenance of the road. Therefore, the contractor was entitled to the loss on account of the additional expenditure incurred for maintenance of the road due to increase in the traffic because of the closure of the Palwal Aligarh Road and diversion of the traffic to the present road. Therefore, by no stretch of imagination it can be said that there was rewriting the terms of the contract as submitted on behalf of the appellant. 9.4 In view of the above findings, none of the decisions of this Court relied upon by the learned senior counsel appearing on behalf of the appellant are applicable to the facts of the case on hand as the same are not of any assistance to the appellant. 9.5 However, at the same time Shri Divan, learned Senior Advocate, appearing on behalf of the appellant is justified in submitting that the Arbitrator ought not to have awarded an amount of Rs.45,000/- per km per month beyond the time period of additional traffic. The Arbitrator has awarded the loss/amount at Rs.45,000/- per km per month up to 31.05.2010 i.e. till the end of the contract which is wholly impermissible diversion of the additional traffic ceased to exist w.e.f. January, 2008. Therefore, the Arbitrator ought not to have awarded any amount beyond the above time period beyond January, 2008. To that extent the award passed by the Arbitrator can be said to be perverse and to that extent the present appeals are required to be allowed. | 1[ds]9. That the contractor was awarded the contract for maintenance, etc. The contract amount was for Rs.5,26,59,688/-. The rate of maintenance of the road as accepted was Rs.12,000/- per km per annum or Rs.1,000/- per km per month. The maintenance contract was valid up to 31.07.2010. When the contract was entered into, the contract was meant for only 3364 PCUS per day. However, due to diversion of traffic from Palwal Aligarh Road to the present road, the contractor was required to incur additional expenditure on the maintenance due to increase in the traffic and plying the additional commercial vehicles. Therefore the contractor claimed the amount towards additional expenditure for maintenance which was due to increase in the traffic and plying more commercial vehicles. On appreciation of evidence the Arbitrator has determined the loss at Rs.45,000/- per km per month (claim Nos.1 and 8).9.1 The case on behalf of the appellant that as in the statement of claim, the claimant claimed an amount of Rs.1,03,50,263/- under the claim Nos. 1 and 8 and the Arbitrator has awarded Rs.1,51,95,400/-, the same is in far excess of amount claimed and therefore the award is in excess of amount claimed has no substance. When the statement of claim submitted by the contractor is seen, it is specifically stated by the claimant that the amount of Rs.1,03,50,263/- has been worked out up to May, 2007 and the details of expenditure beyond May, 2007 will be submitted during the course of hearing. It is specifically stated that expenditure incurred up to May, 2007 works out to Rs.1,03,50,263/-. Therefore, the amount awarded by the Arbitrator cannot be said to be in excess of the claim.9.2 Now so far as the submission on behalf of the appellant that the Arbitrator exceeded the scope of reference while awarding an amount beyond 19.05.2007 – the date on which the High Court appointed the sole Arbitrator is concerned, the same has no substance. The case on behalf of the appellant that the Arbitrator ought to have restricted the claim either up to 06.03.2006 – the date on which the contractor invoked the arbitration clause or 23.04.2007, the date on which the High Court appointed the sole Arbitrator or at least up to 19.05.2007 – the date on which the Arbitrator entered into reference, is concerned, it is required to be noted that the claim made by the Arbitrator was till the traffic was diverted which was up to January, 2008. Therefore, the Arbitrator was justified in awarding the amount beyond the aforesaid periods and till the additional traffic was diverted due to the closure of Palwal Aligarh Road.It is noted that at the time when the contract was entered into the mutually agreed, the rate fixed was Rs.1,000/- per km per month and the estimated traffic was 3364 PCUS per day. The cause of action arose subsequently due to diversion of traffic from Palwal Aligarh Road and plying of more heavy vehicles due to which the contractor was required to incur additional expenditure for maintenance of the road. Therefore, the contractor was entitled to the loss on account of the additional expenditure incurred for maintenance of the road due to increase in the traffic because of the closure of the Palwal Aligarh Road and diversion of the traffic to the present road. Therefore, by no stretch of imagination it can be said that there was rewriting the terms of the contract as submitted on behalf of the appellant.9.4 In view of the above findings, none of the decisions of this Court relied upon by the learned senior counsel appearing on behalf of the appellant are applicable to the facts of the case on hand as the same are not of any assistance to the appellant.9.5 However, at the same time Shri Divan, learned Senior Advocate, appearing on behalf of the appellant is justified in submitting that the Arbitrator ought not to have awarded an amount of Rs.45,000/- per km per month beyond the time period of additional traffic. The Arbitrator has awarded the loss/amount at Rs.45,000/- per km per month up to 31.05.2010 i.e. till the end of the contract which is wholly impermissible diversion of the additional traffic ceased to exist w.e.f. January, 2008. Therefore, the Arbitrator ought not to have awarded any amount beyond the above time period beyond January, 2008. To that extent the award passed by the Arbitrator can be said to be perverse and to that extent the present appeals are required to be allowed. | 1 | 3,021 | 807 | ### 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:
from Palwal Aligarh Road to the present road and the heavy traffic of 24418 PCUS per day was plying on the road as against the design of 3364 PCUS per day and therefore the contractor was required to incur additional expenditure at Rs.45,000/- per km per month. It is submitted that the amount awarded by the Arbitrator at Rs.45,000/- per km per month cannot be said to be rewriting the contract with respect to the amount payable than what was specified in the contract i.e. Rs.1,000/- per km per month. 7.3 However, Shri Ranjit Kumar, learned Senior Advocate appearing on behalf of the contractor is not in a position to justify the award by which the Arbitrator has awarded the payment at Rs.45,000/- per km per month even beyond the time period of additional traffic i.e. up to 31.05.2010 i.e. till the end of the contract. 8. We have heard the learned senior counsel appearing on behalf of the respective parties at length and given our thoughtful consideration. 9. That the contractor was awarded the contract for maintenance, etc. The contract amount was for Rs.5,26,59,688/-. The rate of maintenance of the road as accepted was Rs.12,000/- per km per annum or Rs.1,000/- per km per month. The maintenance contract was valid up to 31.07.2010. When the contract was entered into, the contract was meant for only 3364 PCUS per day. However, due to diversion of traffic from Palwal Aligarh Road to the present road, the contractor was required to incur additional expenditure on the maintenance due to increase in the traffic and plying the additional commercial vehicles. Therefore the contractor claimed the amount towards additional expenditure for maintenance which was due to increase in the traffic and plying more commercial vehicles. On appreciation of evidence the Arbitrator has determined the loss at Rs.45,000/- per km per month (claim Nos.1 and 8). 9.1 The case on behalf of the appellant that as in the statement of claim, the claimant claimed an amount of Rs.1,03,50,263/- under the claim Nos. 1 and 8 and the Arbitrator has awarded Rs.1,51,95,400/-, the same is in far excess of amount claimed and therefore the award is in excess of amount claimed has no substance. When the statement of claim submitted by the contractor is seen, it is specifically stated by the claimant that the amount of Rs.1,03,50,263/- has been worked out up to May, 2007 and the details of expenditure beyond May, 2007 will be submitted during the course of hearing. It is specifically stated that expenditure incurred up to May, 2007 works out to Rs.1,03,50,263/-. Therefore, the amount awarded by the Arbitrator cannot be said to be in excess of the claim. 9.2 Now so far as the submission on behalf of the appellant that the Arbitrator exceeded the scope of reference while awarding an amount beyond 19.05.2007 – the date on which the High Court appointed the sole Arbitrator is concerned, the same has no substance. The case on behalf of the appellant that the Arbitrator ought to have restricted the claim either up to 06.03.2006 – the date on which the contractor invoked the arbitration clause or 23.04.2007, the date on which the High Court appointed the sole Arbitrator or at least up to 19.05.2007 – the date on which the Arbitrator entered into reference, is concerned, it is required to be noted that the claim made by the Arbitrator was till the traffic was diverted which was up to January, 2008. Therefore, the Arbitrator was justified in awarding the amount beyond the aforesaid periods and till the additional traffic was diverted due to the closure of Palwal Aligarh Road. 9.3 Now the submission on behalf of the appellant is that by awarding Rs.45,000/- per km per month the Arbitrator has rewritten the contract with respect to the amount payable than what was specified in the contract. It is urged that under the contract mutually agreed contractual rate was Rs.1,000/- per km per month and therefore any amount higher than Rs.1,000/- per km per month is beyond the terms and conditions of the contract, is also without substance. It is noted that at the time when the contract was entered into the mutually agreed, the rate fixed was Rs.1,000/- per km per month and the estimated traffic was 3364 PCUS per day. The cause of action arose subsequently due to diversion of traffic from Palwal Aligarh Road and plying of more heavy vehicles due to which the contractor was required to incur additional expenditure for maintenance of the road. Therefore, the contractor was entitled to the loss on account of the additional expenditure incurred for maintenance of the road due to increase in the traffic because of the closure of the Palwal Aligarh Road and diversion of the traffic to the present road. Therefore, by no stretch of imagination it can be said that there was rewriting the terms of the contract as submitted on behalf of the appellant. 9.4 In view of the above findings, none of the decisions of this Court relied upon by the learned senior counsel appearing on behalf of the appellant are applicable to the facts of the case on hand as the same are not of any assistance to the appellant. 9.5 However, at the same time Shri Divan, learned Senior Advocate, appearing on behalf of the appellant is justified in submitting that the Arbitrator ought not to have awarded an amount of Rs.45,000/- per km per month beyond the time period of additional traffic. The Arbitrator has awarded the loss/amount at Rs.45,000/- per km per month up to 31.05.2010 i.e. till the end of the contract which is wholly impermissible diversion of the additional traffic ceased to exist w.e.f. January, 2008. Therefore, the Arbitrator ought not to have awarded any amount beyond the above time period beyond January, 2008. To that extent the award passed by the Arbitrator can be said to be perverse and to that extent the present appeals are required to be allowed.
### Response:
1
### Explanation:
9. That the contractor was awarded the contract for maintenance, etc. The contract amount was for Rs.5,26,59,688/-. The rate of maintenance of the road as accepted was Rs.12,000/- per km per annum or Rs.1,000/- per km per month. The maintenance contract was valid up to 31.07.2010. When the contract was entered into, the contract was meant for only 3364 PCUS per day. However, due to diversion of traffic from Palwal Aligarh Road to the present road, the contractor was required to incur additional expenditure on the maintenance due to increase in the traffic and plying the additional commercial vehicles. Therefore the contractor claimed the amount towards additional expenditure for maintenance which was due to increase in the traffic and plying more commercial vehicles. On appreciation of evidence the Arbitrator has determined the loss at Rs.45,000/- per km per month (claim Nos.1 and 8).9.1 The case on behalf of the appellant that as in the statement of claim, the claimant claimed an amount of Rs.1,03,50,263/- under the claim Nos. 1 and 8 and the Arbitrator has awarded Rs.1,51,95,400/-, the same is in far excess of amount claimed and therefore the award is in excess of amount claimed has no substance. When the statement of claim submitted by the contractor is seen, it is specifically stated by the claimant that the amount of Rs.1,03,50,263/- has been worked out up to May, 2007 and the details of expenditure beyond May, 2007 will be submitted during the course of hearing. It is specifically stated that expenditure incurred up to May, 2007 works out to Rs.1,03,50,263/-. Therefore, the amount awarded by the Arbitrator cannot be said to be in excess of the claim.9.2 Now so far as the submission on behalf of the appellant that the Arbitrator exceeded the scope of reference while awarding an amount beyond 19.05.2007 – the date on which the High Court appointed the sole Arbitrator is concerned, the same has no substance. The case on behalf of the appellant that the Arbitrator ought to have restricted the claim either up to 06.03.2006 – the date on which the contractor invoked the arbitration clause or 23.04.2007, the date on which the High Court appointed the sole Arbitrator or at least up to 19.05.2007 – the date on which the Arbitrator entered into reference, is concerned, it is required to be noted that the claim made by the Arbitrator was till the traffic was diverted which was up to January, 2008. Therefore, the Arbitrator was justified in awarding the amount beyond the aforesaid periods and till the additional traffic was diverted due to the closure of Palwal Aligarh Road.It is noted that at the time when the contract was entered into the mutually agreed, the rate fixed was Rs.1,000/- per km per month and the estimated traffic was 3364 PCUS per day. The cause of action arose subsequently due to diversion of traffic from Palwal Aligarh Road and plying of more heavy vehicles due to which the contractor was required to incur additional expenditure for maintenance of the road. Therefore, the contractor was entitled to the loss on account of the additional expenditure incurred for maintenance of the road due to increase in the traffic because of the closure of the Palwal Aligarh Road and diversion of the traffic to the present road. Therefore, by no stretch of imagination it can be said that there was rewriting the terms of the contract as submitted on behalf of the appellant.9.4 In view of the above findings, none of the decisions of this Court relied upon by the learned senior counsel appearing on behalf of the appellant are applicable to the facts of the case on hand as the same are not of any assistance to the appellant.9.5 However, at the same time Shri Divan, learned Senior Advocate, appearing on behalf of the appellant is justified in submitting that the Arbitrator ought not to have awarded an amount of Rs.45,000/- per km per month beyond the time period of additional traffic. The Arbitrator has awarded the loss/amount at Rs.45,000/- per km per month up to 31.05.2010 i.e. till the end of the contract which is wholly impermissible diversion of the additional traffic ceased to exist w.e.f. January, 2008. Therefore, the Arbitrator ought not to have awarded any amount beyond the above time period beyond January, 2008. To that extent the award passed by the Arbitrator can be said to be perverse and to that extent the present appeals are required to be allowed.
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M/s. A.T. Brij Paul Singh and Others Vs. State of Gujarat | by the learned civil Judge in computing the loss of profit at 15% on the value of the remaining work contract cannot be said to be unreasonable. In fact, the High Court had noticed that this computation was not seriously challenged by the State, yet in the judgment under appeal the High Court observed that actual loss of profit had to be proved and a mere percentage as deposed to by the partner of the appellant would not furnish adequate evidence to sustain the claim. In this connection the High Court referred to another judgment of the same High Court in First Appeal No. 89 of 1965 but did not refer to its own earlier judgment rendered by one of the Judges composing the Bench in First Appeal No. 384 of 1962 rendered on 3/6 July, 1970 between the same parties. When this was pointed out to Mr. Mehta, his only response was that the Court cannot look into the record of the cognate appeal. We find the response too technical and does not merit acceptance. We are not disposed to accept the contention of Mr. Mehta for two reasons : (1) that in an identical contract with regard to another portion of the same. Rajkot-Jamnagar road and for the same type of work, the High Court accepted that loss of profit at 15% of the price of the balance of works contract would provide a reasonable measure of damages if the State is guilty of breach of contract. The present appeal is concerned with the same type of work for a nearby portion of the same road which would permit an inference that the work was entirely identical. And the second reason to reject the contention is that ordinarily a contractor while submitting his tender in response to an invitation to tender for a works contract reasonably expects to make profits. What would be the measure of profit would depend upon facts and circumstances of each case. But that there shall be a reasonable expectation of profit is implicit in a works contract and its loss has to be compensated by way of damages if the other party to the contract is guilty of breach of contract cannot be gainsaid. In this case we have the additional reason for rejecting the contention that for the same type of work, the work site being in the vicinity of each other and for identical type of work between the same parties, a Division Bench of the same High Court has accepted 15% of the value of the balance of the works contract would not be an unreasonable measure of damages for low of profit. We are therefore, of the opinion that the High Court was in error in wholly rejecting the claim under this head. 11. Now if it is well-established that the respondent was guilty of breach of contract inasmuch as the rescission of contract by the respondent is held to be unjustified, and the plaintiff-contractor had executed a part of the works contract, the contractor would be entitled to damages by way of loss of profit. Adopting the measure accepted by the High Court ha the facts and circumstances of the case between the same parties and for the same type of work at 15% of the value of remaining parts of the works contract, the damages for loss of profit can be measured. 12. Mr. Aneja then attempted to take us through the maze of evidence and requested us that the claim under this head in the amount of Rs. 4, 30, 314/- is reasonable, fair and just. The value of the works contract was Rs. 16, 59, 900/- and the appellant had offered the rate at 71/2% less of the estimate made by the State. The appellant had executed some part of the contract. How much work he had completed and what was the balance of the works contract was attempted to be spelt out by a reference to Ext. 77/1 (Line Plan of Road) read with Exts. 77/2 and 77/3 showing the widening of the side strips near Kankawati Bridge as well as Longitudinal Sections of the Roads. In our opinion, while estimating the loss of profit that can be claimed for the breach of contract by the other side, it would be unnecessary to go into the minutest details of the work executed in relation to the value of the work contract. A broad evaluation would be sufficient. We in this connection, invited both Mr. Aneja, learned counsel for the appellant and Mr. T. U. Mehta, learned counsel for the respondent to give broad features of the work as well as the portion of the work executed by the appellant. Having heard them, we are satisfied that the appellant should be awarded Its. 2 lakhs under the head loss of estimated profit for breach of contract by the respondent. 13. Mr. Aneja next contended that the High Court was in error in substantially rejecting the claim in the amount of Rupees 1, 19, 686/- by way of compensation for loss sustained while executing the work and the claim of Rs. 1 lakh for extra items executed by the contractor while performing the contract. The High Court has examined the claim under both the heads. The items claimed under various sub-heads under each major head have been separately examined by the High Court bringing to bear upon each sub-head the detailed evaluation of the evidence. In the process the High Court had allowed an amount of Rs. 12, 055.90 p. under various sub-heads under major heads 2 and 3. While reaching this conclusion, the High Court minutely examined, the evidence and substantially rejected the claim. Having read the judgment we are not disposed to take a different view of the matter Therefore, the claim under these two heads except to the extent allowed by the High Court have been rightly rejected and we agree with the reasoning and conclusion of the High Court in this behalf. | 1[ds]We find the response too technical and does not merit acceptance. We are not disposed to accept the contention of Mr. Mehta for two reasons : (1) that in an identical contract with regard to another portion of the same.r road and for the same type of work, the High Court accepted that loss of profit at 15% of the price of the balance of works contract would provide a reasonable measure of damages if the State is guilty of breach of contract. The present appeal is concerned with the same type of work for a nearby portion of the same road which would permit an inference that the work was entirely identical. And the second reason to reject the contention is that ordinarily a contractor while submitting his tender in response to an invitation to tender for a works contract reasonably expects to make profits. What would be the measure of profit would depend upon facts and circumstances of each case. But that there shall be a reasonable expectation of profit is implicit in a works contract and its loss has to be compensated by way of damages if the other party to the contract is guilty of breach of contract cannot be gainsaid. In this case we have the additional reason for rejecting the contention that for the same type of work, the work site being in the vicinity of each other and for identical type of work between the same parties, a Division Bench of the same High Court has accepted 15% of the value of the balance of the works contract would not be an unreasonable measure of damages for low of profit. We are therefore, of the opinion that the High Court was in error in wholly rejecting the claim under this headHaving heard them, we are satisfied that the appellant should be awarded Its. 2 lakhs under the head loss of estimated profit for breach of contract by the respondent13. Mr. Aneja next contended that the High Court was in error in substantially rejecting the claim in the amount of Rupees 1, 19, 686/by way of compensation for loss sustained while executing the work and the claim of Rs. 1 lakh for extra items executed by the contractor while performing the contract. The High Court has examined the claim under both the heads. The items claimed under variouss under each major head have been separately examined by the High Court bringing to bear upon eachd the detailed evaluation of the evidence. In the process the High Court had allowed an amount of Rs. 12, 055.90 p. under variouss under major heads 2 and 3. While reaching this conclusion, the High Court minutely examined, the evidence and substantially rejected the claim. Having read the judgment we are not disposed to take a different view of the matter Therefore, the claim under these two heads except to the extent allowed by the High Court have been rightly rejected and we agree with the reasoning and conclusion of the High Court in this behalf. | 1 | 3,157 | 544 | ### 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:
by the learned civil Judge in computing the loss of profit at 15% on the value of the remaining work contract cannot be said to be unreasonable. In fact, the High Court had noticed that this computation was not seriously challenged by the State, yet in the judgment under appeal the High Court observed that actual loss of profit had to be proved and a mere percentage as deposed to by the partner of the appellant would not furnish adequate evidence to sustain the claim. In this connection the High Court referred to another judgment of the same High Court in First Appeal No. 89 of 1965 but did not refer to its own earlier judgment rendered by one of the Judges composing the Bench in First Appeal No. 384 of 1962 rendered on 3/6 July, 1970 between the same parties. When this was pointed out to Mr. Mehta, his only response was that the Court cannot look into the record of the cognate appeal. We find the response too technical and does not merit acceptance. We are not disposed to accept the contention of Mr. Mehta for two reasons : (1) that in an identical contract with regard to another portion of the same. Rajkot-Jamnagar road and for the same type of work, the High Court accepted that loss of profit at 15% of the price of the balance of works contract would provide a reasonable measure of damages if the State is guilty of breach of contract. The present appeal is concerned with the same type of work for a nearby portion of the same road which would permit an inference that the work was entirely identical. And the second reason to reject the contention is that ordinarily a contractor while submitting his tender in response to an invitation to tender for a works contract reasonably expects to make profits. What would be the measure of profit would depend upon facts and circumstances of each case. But that there shall be a reasonable expectation of profit is implicit in a works contract and its loss has to be compensated by way of damages if the other party to the contract is guilty of breach of contract cannot be gainsaid. In this case we have the additional reason for rejecting the contention that for the same type of work, the work site being in the vicinity of each other and for identical type of work between the same parties, a Division Bench of the same High Court has accepted 15% of the value of the balance of the works contract would not be an unreasonable measure of damages for low of profit. We are therefore, of the opinion that the High Court was in error in wholly rejecting the claim under this head. 11. Now if it is well-established that the respondent was guilty of breach of contract inasmuch as the rescission of contract by the respondent is held to be unjustified, and the plaintiff-contractor had executed a part of the works contract, the contractor would be entitled to damages by way of loss of profit. Adopting the measure accepted by the High Court ha the facts and circumstances of the case between the same parties and for the same type of work at 15% of the value of remaining parts of the works contract, the damages for loss of profit can be measured. 12. Mr. Aneja then attempted to take us through the maze of evidence and requested us that the claim under this head in the amount of Rs. 4, 30, 314/- is reasonable, fair and just. The value of the works contract was Rs. 16, 59, 900/- and the appellant had offered the rate at 71/2% less of the estimate made by the State. The appellant had executed some part of the contract. How much work he had completed and what was the balance of the works contract was attempted to be spelt out by a reference to Ext. 77/1 (Line Plan of Road) read with Exts. 77/2 and 77/3 showing the widening of the side strips near Kankawati Bridge as well as Longitudinal Sections of the Roads. In our opinion, while estimating the loss of profit that can be claimed for the breach of contract by the other side, it would be unnecessary to go into the minutest details of the work executed in relation to the value of the work contract. A broad evaluation would be sufficient. We in this connection, invited both Mr. Aneja, learned counsel for the appellant and Mr. T. U. Mehta, learned counsel for the respondent to give broad features of the work as well as the portion of the work executed by the appellant. Having heard them, we are satisfied that the appellant should be awarded Its. 2 lakhs under the head loss of estimated profit for breach of contract by the respondent. 13. Mr. Aneja next contended that the High Court was in error in substantially rejecting the claim in the amount of Rupees 1, 19, 686/- by way of compensation for loss sustained while executing the work and the claim of Rs. 1 lakh for extra items executed by the contractor while performing the contract. The High Court has examined the claim under both the heads. The items claimed under various sub-heads under each major head have been separately examined by the High Court bringing to bear upon each sub-head the detailed evaluation of the evidence. In the process the High Court had allowed an amount of Rs. 12, 055.90 p. under various sub-heads under major heads 2 and 3. While reaching this conclusion, the High Court minutely examined, the evidence and substantially rejected the claim. Having read the judgment we are not disposed to take a different view of the matter Therefore, the claim under these two heads except to the extent allowed by the High Court have been rightly rejected and we agree with the reasoning and conclusion of the High Court in this behalf.
### Response:
1
### Explanation:
We find the response too technical and does not merit acceptance. We are not disposed to accept the contention of Mr. Mehta for two reasons : (1) that in an identical contract with regard to another portion of the same.r road and for the same type of work, the High Court accepted that loss of profit at 15% of the price of the balance of works contract would provide a reasonable measure of damages if the State is guilty of breach of contract. The present appeal is concerned with the same type of work for a nearby portion of the same road which would permit an inference that the work was entirely identical. And the second reason to reject the contention is that ordinarily a contractor while submitting his tender in response to an invitation to tender for a works contract reasonably expects to make profits. What would be the measure of profit would depend upon facts and circumstances of each case. But that there shall be a reasonable expectation of profit is implicit in a works contract and its loss has to be compensated by way of damages if the other party to the contract is guilty of breach of contract cannot be gainsaid. In this case we have the additional reason for rejecting the contention that for the same type of work, the work site being in the vicinity of each other and for identical type of work between the same parties, a Division Bench of the same High Court has accepted 15% of the value of the balance of the works contract would not be an unreasonable measure of damages for low of profit. We are therefore, of the opinion that the High Court was in error in wholly rejecting the claim under this headHaving heard them, we are satisfied that the appellant should be awarded Its. 2 lakhs under the head loss of estimated profit for breach of contract by the respondent13. Mr. Aneja next contended that the High Court was in error in substantially rejecting the claim in the amount of Rupees 1, 19, 686/by way of compensation for loss sustained while executing the work and the claim of Rs. 1 lakh for extra items executed by the contractor while performing the contract. The High Court has examined the claim under both the heads. The items claimed under variouss under each major head have been separately examined by the High Court bringing to bear upon eachd the detailed evaluation of the evidence. In the process the High Court had allowed an amount of Rs. 12, 055.90 p. under variouss under major heads 2 and 3. While reaching this conclusion, the High Court minutely examined, the evidence and substantially rejected the claim. Having read the judgment we are not disposed to take a different view of the matter Therefore, the claim under these two heads except to the extent allowed by the High Court have been rightly rejected and we agree with the reasoning and conclusion of the High Court in this behalf.
|
M/S.Lokmat Newspaper Pvt Ltd Vs. Shankarprasad | of the Constitution, the respondent requested the High Court to call for the record and proceedings of Revision No. 70 of 1990 and after perusal thereof to be further pleased to quash and set aside the Order dated 30.1.1990 passed by the Second Labour Court, Nagpur in Complaint No. 262 of 1982 and order dated 20.11.1990 passed in Revision by the Industrial Court. 15. When we turn to the relevant paragraph of the Writ Petition, we find averments to the effect that the Courts below, while interpreting the provisions contained in Sections 9-A, 20 and 33 and other provisions of the I.D. Act, 1947 and the rules framed thereunder, had totally lost sight of the object and purpose of these provisions and had put an interpretation alien to industrial jurisprudence and had thus committed serious error of law apparent on the face of the record which resulted in serious miscarriage of justice and also in failure to exercise the jurisdiction vested in the courts below under the provisions of the Maharashtra Act. In para 9 of the Writ Petition, it was averred that the impugned orders of the Courts below had further resulted in infraction of his fundamental rights guaranteed to him under Articles 14, 21 and other Articles as enshrined in the Constitution of India. 16. It is, therefore, obvious that the Writ Petition invoking jurisdiction of the High Court both under Articles 226 and 227 of the Constitution had tried to make out a case for High Courts interference seeking issuance of an appropriate Writ of Certiorari under Article 226 of the Constitution of India. Basic averments for invoking such jurisdiction were already pleaded in the Writ Petition for High Courts consideration. It is true, as submitted by learned counsel for the appellant, that the order of the learned Single Judge nowhere stated that the Court was considering the Writ Petition under Article 226 of the Constitution of India. It is equally true that the learned Single Judge dismissed the Writ Petition by observing that the Courts below had appreciated the contentions and rejected the complaint. But the said observation of the learned Single Judge did not necessarily mean that the learned Judge did not inclined to interfere under Article 227 of the Constitution of India only. The said observation equally supports the conclusion that the learned Judge was not inclined to interfere under Articles 226 and 227. As seen earlier, that he was considering the aforesaid Writ Petition moved under Articles 226 as well as 227 of the Constitution of India. Under these circumstances, it is not possible to agree with the contention of learned counsel for the appellant that the learned Single Judge had refused to interfere only under Article 227 of the Constitution of India when he dismissed the Writ Petition of the respondent. In this connection, it is profitable to have a look at the decision of this Court in the case of Umaji Keshao Meshram and others v. Radhikabai, widow of Anandrao Banapurkar and Anr., 1986 Supp. SCC 401 . In that case O. Chinnappa Reddy and D.P. Madon, JJ., considered the very same question in the light of clause 15 of the Letters Patent Appeal of the Bombay High Court. Madon J., speaking for the Court in para 107 of the Report at page 473, made the following pertinent observations : "Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Hari Vishnu Kamath v. Syed Ahmad Ishaque before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that rule, they shall be heard and finally disposed of by a Single Judge. The question is whether an appeal would lie from the decision of the Single Judge in such a case. In our opinion, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Such was the view taken by the Allahabad High Court in Aidal Singh v. Karan Singh and by the Punjab High Court in Raj Kishan Jain v. Tulsi Das and Barbam Dutt v. Peoples Co-operative Transport Society Ltd., New Delhi and we are in agreement with it." The aforesaid decision squarely gets attracted on the facts of the present case. It was open to the respondent to invoke jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such jurisdiction was invoked and when his Writ Petition was dismissed on merits, it cannot be said that the learned Single Judge had exercised his jurisdiction only under Article 226 of the Constitution of India. This conclusion directly flows from the relevant averments made in the Writ Petition and the nature of jurisdiction invoked by the respondent as noted by the learned Single Judge in his Judgment, as seen earlier. Consequently, it could not be said that Clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of learned Single Judge. It is also necessary to note that the appellant being respondent in Letters Patent Appeal joined issues on merits and did not take up contention that Letters Patent Appeal was not maintainable. | 1[ds]Point No. 1aforesaid decision squarely gets attracted on the facts of the present case. It was open to the respondent to invoke jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such jurisdiction was invoked and when his Writ Petition was dismissed on merits, it cannot be said that the learned Single Judge had exercised his jurisdiction only under Article 226 of the Constitution of India. This conclusion directly flows from the relevant averments made in the Writ Petition and the nature of jurisdiction invoked by the respondent as noted by the learned Single Judge in his Judgment, as seen earlier. Consequently, it could not be said that Clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of learned Single Judge. It is also necessary to note that the appellant being respondent in Letters Patent Appeal joined issues on merits and did not take up contention that Letters Patent Appeal was not0. On the contrary, we find that the aforesaid decision has taken a correct view on the question posed for our consideration in the present case. In view of the aforesaid discussion, therefore, there was no escape from the conclusion to which the Division Bench in the impugned judgment reached that on 22.6.1982 when the order of retrenchment was passed against the respondent, the appellant-management had committed breach of Section 33(1) of the Act by not passing the said order after obtaining express previous permission in writing of the Conciliation Officer before whom the conciliation proceedings must be held to be pending in the evening ofnt No.In view of the aforesaid settled legal position, there is no escape from the conclusion that the impugned notice dated 25th March, 1982 under Section 9-A which was issued long after the actual installation of the photo composing machine had fallen foul on the touchstone of Section 9-A read with Schedule IV item No. 10. Such a notice in order to become valid and legal must have preceded introduction of such a machine and could not have followed the actual installation and effective commission of such a machine. The decision rendered by the Division Bench in this connection is found to be perfectly justified both on facts and in law. It must, therefore, be held that the impugned termination or discharge of the respondent was violative of the provisions of Section 9-A of the I.D. Act and he was discharged from service without the appellants following the mandatory requirements of Section 9-A of the I.D. Act. Effect of non-compliance of Section 9-A of the I.D. Act renders the change in conditions of service void ab1. We may also mention in this connection one another facet of this question. As the Conciliation Officer, after hearing the parties, had declared that investigation was over and settlement had not taken place, at least a few days were available after 22nd June, 1982 to the appellant for moving the Conciliation Officer to give the appellant permission to retrench the respondent. It is not possible to agree with the finding of the Labour Court that the Conciliation Officer could not have entertained such a request. He had not even drafted his report, much less submitted the same to the State Government at least within a few days after 22nd June, 1982. The very fact that the report reached the State Government on 13th August, 1982 shows that the conciliator would have despatched the same at least a couple of days after 22nd June, 1982, having complied with all the statutory requirements under Section 12(6) for preparation of such a report. Even on the next day of 22nd June, 1982 such a request could have been made by the appellant and the conciliator would not have felt any inhibition in recalling both the parties and hearing them on such a request on the part of the appellant to give permission to it to pass the impugned termination order as the conciliation had failed. Even by passing such a legally permissible and factually feasible course, and without waiting even for more than half an hour the impugned order was passed. It is easy to visualise that it was possible that if such a request was made by the appellant it could have been granted or it could have been rejected. If such a request was rejected by the conciliator then, of course, the impugned order could not have seen the light of the day and if thereafter the State Government had made the reference after reading the failure report, then the existing position regarding service condition of the respondent could have been continued by the reference Court pending the adjudication of such a dispute. The appellant with a view to avoid all these uncomfortable situations indulged in self help and passed the impugned order on the very evening of 22nd June, 1982. This is an additional facet of the deliberate undue haste resorted to by the appellant for short circuiting all possible inconvenient situations and to present the respondent with a fait accompli and also to placate the Conciliation Officer on the one hand and the State Government on the other and ultimately the reference Court also. Consequently it must be held that the impugned order was clearly a result of undue haste and, obviously amounted to `unfair labour practice on the part of the appellant as per Schedule IV item 1 clause (f) second2. So far as this point is concerned, we have already noted that the Labour Court itself has found that notice under Section 9-A was a belated one and should have been given at least by November, 1981 when the machine in question became fully operative resulting in displacement of workers in hand composing department. Still by curious reasoning, it has been held that there was nothing wrong with the notice though given belatedly and that the termination order was not offending Section 33(1) of the Act. These findings show patent errors of law and could not be sustained. The Industrial Court, on the other hand, came to an equally erroneous finding on the applicability of item 10 of Schedule IV of the I.D. Act when it held that the said item would apply not at the time when the rationalisation scheme was introduced, but at the time when the employer desired or decided to terminate the services of the employees. This reasoning of the Industrial Court is contrary to the very scheme of item 10 of Schedule IV of I.D. Act and totally ignores the term `likely to lead to retrenchment as found in the said item. The reasoning of the Industrial Court almost amounts to rewriting the said phrase as "decide to retrench the workmen". These patent errors of law committed by the Labour Court and the Industrial Court were totally bypassed by the learned Single Judge while he dismissed the Writ Petition. These patent errors of law, therefore, were rightly set aside by the Division Bench of the High Court in the Letters Patent Appeal. It could not, therefore, be said that the impugned judgment had tried to interfere with the pure findings of the fact reached by the authorities below on evidence against the respondent. It was perfectly open to the Appellate Court in the hierarchy of proceedings to interfere with such patent errors of law and to correct them, otherwise it could have been said that it had failed to discharge its duty and that would have also amounted to failure to exercise jurisdiction on itshe final order passed by the High Court in the impugned judgment has to be sustained. However, one aspect of the matter cannot be lost sight of while closing the present chapter. The respondents service were terminated on 22nd June, 1982 and that the termination is found to be amounting to `unfair labour practice as per the provisions of Section 30 of the Maharashtra Act. On this conclusion, the appellant has to be asked to withdraw such `unfair labour practice, meaning thereby, the impugned order has to be set aside and, thereafter, affirmative action including reinstatement of the employee with or without back-wages could be ordered by the Labour Court in these proceedings. However, as the High Court has noted that reinstatement is out of question as respondent has reached the age of superannuation, in the meantime, with effect from 3.5.1995, therefore, at the highest the respondent is entitled to back-wages for 13 years with gratuity and other retirement benefits. That is precisely what is ordered by the High Court in the impugned judgment. However, learned counsel for the appellant is right when he contends that even before the conciliator the respondents union on behalf of its members including the present respondent who were all facing retrenchment suggested that they were prepared to accept compensation @ 4 months wages per every completed year of service with a view to settle the dispute. This suggestion on behalf of the workmen by their union is noted by the conciliation officer in his report which reached the State Government on 13th August, 1982. It may be seen that by that time the impugned retrenchment order was only two months old as it was passed on 22nd June, 1982. It is also noted by the conciliation officer that this proposal did not find favour with the management. If it had been accepted by the management at that time the respondent-workman would have been satisfied by way of compensation amounting to only one-third of the back-wages for each year of service. It is, of course, true that years rolled by thereafter and the compromise did not go through. It is also true that the value of money in 1982 was much higher than what it is today. It is also true that the respondent has been denied not only back-wages but also interest on the said amount which would have been available to him years back. However, one aspect of the matter cannot be lost sight of. There is nothing on record to show that the respondent was gainfully employed or was not employed in any alternative avocation during all these years. It is, of course, true that it was for the appellant to point out as to how grant of back-wages should be reduced on account of the gainful employment of the respondent, in the meantime. Such an effort was made by the appellant. However, still one fact which stares in the face of the respondent is well established that the appellant has tried his best to accommodate the respondent in alternative employment at Jalgaon where hand composing department was working. If the respondent accepted the said offer he would have earned his full wages all throughout till retirement. Thus in a way the respondent also was responsible for the unfortunate situation in which he found himself during all these years. It is also to be noted that the complaint filed as early as on 25th June, 1982 remained dismissed in the hierarchy of proceedings from the Labour Court onwards up to the learned Single Judges decision in the High Court and it is only in the Letters Patent Appeal that he ultimately succeeded. Considering all these aspects, in our view, interest of the justice will be served if, while confirming the final order of the High Court impugned in this appeal, a modification is made regarding back-wages payable to the respondent. This is required also in view of the further fact that we disagree with the conclusion of the Division Bench of the High Court that the appellant was guilty of `unfair labour practice under item Nos. 1(a), (b) and (d) of Schedule IV of the Maharashtra Act and the decision of the High Court is being confirmed regarding `unfair labour practice of the appellant only under item 1(f) second part of Schedule IV of the said Act. While considering the grant of appropriate back-wages, we deem it fit to adopt the same yardstick which was suggested by the respondent-workmans union for all its members including the respondent that one-third of back wages for each completed year of service would be acceptable to them. We, accordingly, deem it fit to modify the final order of the High Court to the following extentappeal of the respondent before the High Court will be treated to be allowed by holding that the appellant management had indulged in `unfair labour practice only under item 1(f) second part of Schedule IV of the Maharashtra Act with the consequential direction that the appellant was not to indulge into and shall desist from indulging into such unfair labour practice. | 1 | 3,133 | 2,283 | ### 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:
of the Constitution, the respondent requested the High Court to call for the record and proceedings of Revision No. 70 of 1990 and after perusal thereof to be further pleased to quash and set aside the Order dated 30.1.1990 passed by the Second Labour Court, Nagpur in Complaint No. 262 of 1982 and order dated 20.11.1990 passed in Revision by the Industrial Court. 15. When we turn to the relevant paragraph of the Writ Petition, we find averments to the effect that the Courts below, while interpreting the provisions contained in Sections 9-A, 20 and 33 and other provisions of the I.D. Act, 1947 and the rules framed thereunder, had totally lost sight of the object and purpose of these provisions and had put an interpretation alien to industrial jurisprudence and had thus committed serious error of law apparent on the face of the record which resulted in serious miscarriage of justice and also in failure to exercise the jurisdiction vested in the courts below under the provisions of the Maharashtra Act. In para 9 of the Writ Petition, it was averred that the impugned orders of the Courts below had further resulted in infraction of his fundamental rights guaranteed to him under Articles 14, 21 and other Articles as enshrined in the Constitution of India. 16. It is, therefore, obvious that the Writ Petition invoking jurisdiction of the High Court both under Articles 226 and 227 of the Constitution had tried to make out a case for High Courts interference seeking issuance of an appropriate Writ of Certiorari under Article 226 of the Constitution of India. Basic averments for invoking such jurisdiction were already pleaded in the Writ Petition for High Courts consideration. It is true, as submitted by learned counsel for the appellant, that the order of the learned Single Judge nowhere stated that the Court was considering the Writ Petition under Article 226 of the Constitution of India. It is equally true that the learned Single Judge dismissed the Writ Petition by observing that the Courts below had appreciated the contentions and rejected the complaint. But the said observation of the learned Single Judge did not necessarily mean that the learned Judge did not inclined to interfere under Article 227 of the Constitution of India only. The said observation equally supports the conclusion that the learned Judge was not inclined to interfere under Articles 226 and 227. As seen earlier, that he was considering the aforesaid Writ Petition moved under Articles 226 as well as 227 of the Constitution of India. Under these circumstances, it is not possible to agree with the contention of learned counsel for the appellant that the learned Single Judge had refused to interfere only under Article 227 of the Constitution of India when he dismissed the Writ Petition of the respondent. In this connection, it is profitable to have a look at the decision of this Court in the case of Umaji Keshao Meshram and others v. Radhikabai, widow of Anandrao Banapurkar and Anr., 1986 Supp. SCC 401 . In that case O. Chinnappa Reddy and D.P. Madon, JJ., considered the very same question in the light of clause 15 of the Letters Patent Appeal of the Bombay High Court. Madon J., speaking for the Court in para 107 of the Report at page 473, made the following pertinent observations : "Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Hari Vishnu Kamath v. Syed Ahmad Ishaque before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that rule, they shall be heard and finally disposed of by a Single Judge. The question is whether an appeal would lie from the decision of the Single Judge in such a case. In our opinion, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Such was the view taken by the Allahabad High Court in Aidal Singh v. Karan Singh and by the Punjab High Court in Raj Kishan Jain v. Tulsi Das and Barbam Dutt v. Peoples Co-operative Transport Society Ltd., New Delhi and we are in agreement with it." The aforesaid decision squarely gets attracted on the facts of the present case. It was open to the respondent to invoke jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such jurisdiction was invoked and when his Writ Petition was dismissed on merits, it cannot be said that the learned Single Judge had exercised his jurisdiction only under Article 226 of the Constitution of India. This conclusion directly flows from the relevant averments made in the Writ Petition and the nature of jurisdiction invoked by the respondent as noted by the learned Single Judge in his Judgment, as seen earlier. Consequently, it could not be said that Clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of learned Single Judge. It is also necessary to note that the appellant being respondent in Letters Patent Appeal joined issues on merits and did not take up contention that Letters Patent Appeal was not maintainable.
### Response:
1
### Explanation:
reasoning of the Industrial Court almost amounts to rewriting the said phrase as "decide to retrench the workmen". These patent errors of law committed by the Labour Court and the Industrial Court were totally bypassed by the learned Single Judge while he dismissed the Writ Petition. These patent errors of law, therefore, were rightly set aside by the Division Bench of the High Court in the Letters Patent Appeal. It could not, therefore, be said that the impugned judgment had tried to interfere with the pure findings of the fact reached by the authorities below on evidence against the respondent. It was perfectly open to the Appellate Court in the hierarchy of proceedings to interfere with such patent errors of law and to correct them, otherwise it could have been said that it had failed to discharge its duty and that would have also amounted to failure to exercise jurisdiction on itshe final order passed by the High Court in the impugned judgment has to be sustained. However, one aspect of the matter cannot be lost sight of while closing the present chapter. The respondents service were terminated on 22nd June, 1982 and that the termination is found to be amounting to `unfair labour practice as per the provisions of Section 30 of the Maharashtra Act. On this conclusion, the appellant has to be asked to withdraw such `unfair labour practice, meaning thereby, the impugned order has to be set aside and, thereafter, affirmative action including reinstatement of the employee with or without back-wages could be ordered by the Labour Court in these proceedings. However, as the High Court has noted that reinstatement is out of question as respondent has reached the age of superannuation, in the meantime, with effect from 3.5.1995, therefore, at the highest the respondent is entitled to back-wages for 13 years with gratuity and other retirement benefits. That is precisely what is ordered by the High Court in the impugned judgment. However, learned counsel for the appellant is right when he contends that even before the conciliator the respondents union on behalf of its members including the present respondent who were all facing retrenchment suggested that they were prepared to accept compensation @ 4 months wages per every completed year of service with a view to settle the dispute. This suggestion on behalf of the workmen by their union is noted by the conciliation officer in his report which reached the State Government on 13th August, 1982. It may be seen that by that time the impugned retrenchment order was only two months old as it was passed on 22nd June, 1982. It is also noted by the conciliation officer that this proposal did not find favour with the management. If it had been accepted by the management at that time the respondent-workman would have been satisfied by way of compensation amounting to only one-third of the back-wages for each year of service. It is, of course, true that years rolled by thereafter and the compromise did not go through. It is also true that the value of money in 1982 was much higher than what it is today. It is also true that the respondent has been denied not only back-wages but also interest on the said amount which would have been available to him years back. However, one aspect of the matter cannot be lost sight of. There is nothing on record to show that the respondent was gainfully employed or was not employed in any alternative avocation during all these years. It is, of course, true that it was for the appellant to point out as to how grant of back-wages should be reduced on account of the gainful employment of the respondent, in the meantime. Such an effort was made by the appellant. However, still one fact which stares in the face of the respondent is well established that the appellant has tried his best to accommodate the respondent in alternative employment at Jalgaon where hand composing department was working. If the respondent accepted the said offer he would have earned his full wages all throughout till retirement. Thus in a way the respondent also was responsible for the unfortunate situation in which he found himself during all these years. It is also to be noted that the complaint filed as early as on 25th June, 1982 remained dismissed in the hierarchy of proceedings from the Labour Court onwards up to the learned Single Judges decision in the High Court and it is only in the Letters Patent Appeal that he ultimately succeeded. Considering all these aspects, in our view, interest of the justice will be served if, while confirming the final order of the High Court impugned in this appeal, a modification is made regarding back-wages payable to the respondent. This is required also in view of the further fact that we disagree with the conclusion of the Division Bench of the High Court that the appellant was guilty of `unfair labour practice under item Nos. 1(a), (b) and (d) of Schedule IV of the Maharashtra Act and the decision of the High Court is being confirmed regarding `unfair labour practice of the appellant only under item 1(f) second part of Schedule IV of the said Act. While considering the grant of appropriate back-wages, we deem it fit to adopt the same yardstick which was suggested by the respondent-workmans union for all its members including the respondent that one-third of back wages for each completed year of service would be acceptable to them. We, accordingly, deem it fit to modify the final order of the High Court to the following extentappeal of the respondent before the High Court will be treated to be allowed by holding that the appellant management had indulged in `unfair labour practice only under item 1(f) second part of Schedule IV of the Maharashtra Act with the consequential direction that the appellant was not to indulge into and shall desist from indulging into such unfair labour practice.
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Commissioner of Income Tax, Central, Calcutta Vs. Gold Mohore Investment Company Limited | judgment of the Calcutta High Court dated March 10, 1964, in Income-tax Reference No. 116 of 1960 The relevant assessment year is 1950-51 and the corresponding previous year ended on March 31, 1950. In respect of the said assessment year the Income-tax Officer made an order dated March 15, 1956, under section 23A(1) of the Income-tax Act, 1922 (hereinafter referred to as "the Act"). By the said order the Income-tax Officer held that Rs. 35, 476 should be deemed as having been distributed as dividends by the respondent and the proportionate share thereof of each shareholder should be included in the total income of such shareholder for the purpose of assessing his total income. The balance-sheet of the respondent disclosed past losses amounting to Rs. 45, 692 which had been brought forward. The Income-tax Officer held that such losses resulted from the failure of the respondent in not properly accounting for some bonus shares received by it. The Income-tax Officer recomputed the losses of the respondent in earlier years by valuing the bonus shares received by the respondent at nil and, accordingly, held that the losses amounted to Rs. 6, 509. The aforesaid computation was made mainly by disallowing Rs. 37, 500 from the debits in the share account and adding Rs. 10, 151 on account of grossing up of dividends and interest on securities. The sum of Rs. 37, 500 represented the cost of bonus shares at face value which had been debited in the share account by the respondent. The respondent took the matter in appeal to the Appellate Assistant Commissioner who, by his order dated May 11, 1957, cancelled the order of the Income-tax Officer under section 23A. The Appellate Assistant Commissioner took the view that the losses of the earlier accounting period amounted to Rs. 6, 509, the income-tax chargeable for the relevant assessment year amounted to Rs. 17, 829 and the subscribed capital of the respondent amounted to Rs. 6, 00, 000. The Appellate Assistant Commissioner therefore held that the profits of the respondent cannot be held to be adequate to justify the application of the provisions of section 23A of the Act. Thereafter, the Commissioner of Income-tax preferred an appeal to the Appellate Tribunal which set aside the order of the Appellate Assistant Commissioner and restored the order of the Income-tax Officer under section 23A. The Appellate Tribunal dealt with the question of past losses and the accounting of bonus shares and agreed with the findings of the Income-tax Officer and held that the past losses amounted to Rs. 6, 509. The Appellate Tribunal further held that the Appellate Assistant Commissioner should not have taken into consideration the actual tax liability of Rs. 17, 829. The Appellate Tribunal observed that the Appellate Assistant Commissioner was wrong in taking into consideration the subscribed and the paid up capital for the purpose of comparing it with the profits made in the year of account. Under section 66(1) of the Act the Appellate Tribunal drew up a statement of the case and referred the following questions of law for the opinion of the High Court"(1) Whether, on the facts and in the circumstances of the case, the profits made by the applicant in the year of account did not attract the application of section 23A(1) ? (2) Whether, on the facts and in the circumstances of the case, the tax liability for the assessment year under consideration, amounting to Rs. 17, 829 should be taken into consideration for the purpose of determining whether an order under section 23A(1) should be made on the applicant ?" 2. By its judgment dated March 10, 1964, the High Court answered the first question in the negative. As regards the second question, it was conceded by counsel on behalf of the respondent that the Appellate Assistant Commissioner should not have taken into consideration the tax liability of Rs. 17, 829 for his finding that no fund was available for payment of dividend. The High court answered question No. 2 also in the negative in view of the concession made by counsel on behalf of the respondent 3. The question presented for determination in this appeal is whether the High Court was right in holding that the bonus shares should have been valued at their face value and the loss of Rs. 35, 000 on the valuation of the shares as such should have been considered in determining the applicability of section 23A. It was argued by Mr. S. T. Desai on behalf of the appellant that the view expressed by the High Court must be taken to have been impliedly overruled by the judgment of this Court in Commissioner of Income-tax v. Dalmia Investment Co. Ltd. It was contended by counsel that there had to be recomputation of the value of the bonus shares on the principle enunciated in that case. In our opinion, the argument put forward on behalf of the appellant is well-founded and must be accepted as correct. In Commissioner of Income-tax v. Dalmia Investment Co. Ltd. it was held by this court that when bonus shares are issued in respect of ordinary shares held in a company by an assessee, their real cost to the assessee cannot be taken to be nil or their face value. The proper method of valuation is to spread the cost of the old shares over the old shares and the new issue (viz., the bonus shares) taken together if they rank pari passu, and if they do not, the price may have to be adjusted either in proportion of the face value they bear (if there is no other circumstance to differentiate them) or on equitable considerations based on the market price before and after issue. It is manifest that the question of application of section 23A(1) of the Act must be decided after recomputation of the value of the bonus shares on the basis of the principle expressed by this court in Commissioner of Income-tax v. Dalmia Investment Co. Ltd. | 1[ds]In our opinion, the argument put forward on behalf of the appellant isd and must be accepted as correct. In Commissioner ofx v. Dalmia Investment Co. Ltd. it was held by this court that when bonus shares are issued in respect of ordinary shares held in a company by an assessee, their real cost to the assessee cannot be taken to be nil or their face value. The proper method of valuation is to spread the cost of the old shares over the old shares and the new issue (viz., the bonus shares) taken together if they rank pari passu, and if they do not, the price may have to be adjusted either in proportion of the face value they bear (if there is no other circumstance to differentiate them) or on equitable considerations based on the market price before and after issue. It is manifest that the question of application of section 23A(1) of the Act must be decided after recomputation of the value of the bonus shares on the basis of the principle expressed by this court in Commissioner ofx v. Dalmia Investment Co. Ltd. | 1 | 1,126 | 208 | ### 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:
judgment of the Calcutta High Court dated March 10, 1964, in Income-tax Reference No. 116 of 1960 The relevant assessment year is 1950-51 and the corresponding previous year ended on March 31, 1950. In respect of the said assessment year the Income-tax Officer made an order dated March 15, 1956, under section 23A(1) of the Income-tax Act, 1922 (hereinafter referred to as "the Act"). By the said order the Income-tax Officer held that Rs. 35, 476 should be deemed as having been distributed as dividends by the respondent and the proportionate share thereof of each shareholder should be included in the total income of such shareholder for the purpose of assessing his total income. The balance-sheet of the respondent disclosed past losses amounting to Rs. 45, 692 which had been brought forward. The Income-tax Officer held that such losses resulted from the failure of the respondent in not properly accounting for some bonus shares received by it. The Income-tax Officer recomputed the losses of the respondent in earlier years by valuing the bonus shares received by the respondent at nil and, accordingly, held that the losses amounted to Rs. 6, 509. The aforesaid computation was made mainly by disallowing Rs. 37, 500 from the debits in the share account and adding Rs. 10, 151 on account of grossing up of dividends and interest on securities. The sum of Rs. 37, 500 represented the cost of bonus shares at face value which had been debited in the share account by the respondent. The respondent took the matter in appeal to the Appellate Assistant Commissioner who, by his order dated May 11, 1957, cancelled the order of the Income-tax Officer under section 23A. The Appellate Assistant Commissioner took the view that the losses of the earlier accounting period amounted to Rs. 6, 509, the income-tax chargeable for the relevant assessment year amounted to Rs. 17, 829 and the subscribed capital of the respondent amounted to Rs. 6, 00, 000. The Appellate Assistant Commissioner therefore held that the profits of the respondent cannot be held to be adequate to justify the application of the provisions of section 23A of the Act. Thereafter, the Commissioner of Income-tax preferred an appeal to the Appellate Tribunal which set aside the order of the Appellate Assistant Commissioner and restored the order of the Income-tax Officer under section 23A. The Appellate Tribunal dealt with the question of past losses and the accounting of bonus shares and agreed with the findings of the Income-tax Officer and held that the past losses amounted to Rs. 6, 509. The Appellate Tribunal further held that the Appellate Assistant Commissioner should not have taken into consideration the actual tax liability of Rs. 17, 829. The Appellate Tribunal observed that the Appellate Assistant Commissioner was wrong in taking into consideration the subscribed and the paid up capital for the purpose of comparing it with the profits made in the year of account. Under section 66(1) of the Act the Appellate Tribunal drew up a statement of the case and referred the following questions of law for the opinion of the High Court"(1) Whether, on the facts and in the circumstances of the case, the profits made by the applicant in the year of account did not attract the application of section 23A(1) ? (2) Whether, on the facts and in the circumstances of the case, the tax liability for the assessment year under consideration, amounting to Rs. 17, 829 should be taken into consideration for the purpose of determining whether an order under section 23A(1) should be made on the applicant ?" 2. By its judgment dated March 10, 1964, the High Court answered the first question in the negative. As regards the second question, it was conceded by counsel on behalf of the respondent that the Appellate Assistant Commissioner should not have taken into consideration the tax liability of Rs. 17, 829 for his finding that no fund was available for payment of dividend. The High court answered question No. 2 also in the negative in view of the concession made by counsel on behalf of the respondent 3. The question presented for determination in this appeal is whether the High Court was right in holding that the bonus shares should have been valued at their face value and the loss of Rs. 35, 000 on the valuation of the shares as such should have been considered in determining the applicability of section 23A. It was argued by Mr. S. T. Desai on behalf of the appellant that the view expressed by the High Court must be taken to have been impliedly overruled by the judgment of this Court in Commissioner of Income-tax v. Dalmia Investment Co. Ltd. It was contended by counsel that there had to be recomputation of the value of the bonus shares on the principle enunciated in that case. In our opinion, the argument put forward on behalf of the appellant is well-founded and must be accepted as correct. In Commissioner of Income-tax v. Dalmia Investment Co. Ltd. it was held by this court that when bonus shares are issued in respect of ordinary shares held in a company by an assessee, their real cost to the assessee cannot be taken to be nil or their face value. The proper method of valuation is to spread the cost of the old shares over the old shares and the new issue (viz., the bonus shares) taken together if they rank pari passu, and if they do not, the price may have to be adjusted either in proportion of the face value they bear (if there is no other circumstance to differentiate them) or on equitable considerations based on the market price before and after issue. It is manifest that the question of application of section 23A(1) of the Act must be decided after recomputation of the value of the bonus shares on the basis of the principle expressed by this court in Commissioner of Income-tax v. Dalmia Investment Co. Ltd.
### Response:
1
### Explanation:
In our opinion, the argument put forward on behalf of the appellant isd and must be accepted as correct. In Commissioner ofx v. Dalmia Investment Co. Ltd. it was held by this court that when bonus shares are issued in respect of ordinary shares held in a company by an assessee, their real cost to the assessee cannot be taken to be nil or their face value. The proper method of valuation is to spread the cost of the old shares over the old shares and the new issue (viz., the bonus shares) taken together if they rank pari passu, and if they do not, the price may have to be adjusted either in proportion of the face value they bear (if there is no other circumstance to differentiate them) or on equitable considerations based on the market price before and after issue. It is manifest that the question of application of section 23A(1) of the Act must be decided after recomputation of the value of the bonus shares on the basis of the principle expressed by this court in Commissioner ofx v. Dalmia Investment Co. Ltd.
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Sinnamani Vs. G. Vettivel | out that while invoking Section 49 of the Act the Court should not stick on to hyper technicalities in respect of forms and procedures, it is the duty of the principal civil court even to act suo motu whenever it is brought to the notice of the court that there is a misconduct or any other mal practice committed by the Trustees. Learned counsel also submitted that in the event of the Court coming to the conclusion that by some improper advice given, the appellants have misdirected themselves in filing the Trust O.P., the same can always be converted into a civil suit. 7. Shri Vijay Hansaria, learned senior counsel appearing for the respondents, on the other hand, supported the findings recorded by the courts below. Learned senior counsel also placed reliance on the judgment of this Court in P.A. Ahmad Ibrahim v. Food Corporation of India (1999) 7 SCC 39 and submitted that the Trust O.P. cannot be converted as a civil suit. 8. We have perused the Trust O.P. filed by the appellants in the lower court which is not in the nature of a plaint. The expression Original Petition as such is not defined either in the Trust Act or in the Code of Civil Procedure. However, Rule 3(9) of the Code of Civil Procedure defines Original Petition as follows: 3(9). Original petition means a petition whereby any proceeding other than a suit or appeal or a proceedings in execution of a decree or order, is instituted in a court. 9. Section 2(14) C.P.C. defines the term Order which reads as under: 2(14). Order means the formal expression of any decision of a civil court which is not a decree; 10. A comprehensive reading of the above-mentioned provisions will make it clear that the Trust O.P. filed by the appellants before the Principal District Judge cannot either be construed a suit or equated to be a suit. The final order passed in the Trust O.P. cannot also be construed as a decree as defined in Section 2(2) C.P.C. It can only be an order as defined in Section 2(14) C.P.C. The term suit, as such is not defined in the Code of Civil Procedure. However, Section 26, C.P.C. gives an indication as to the manner in which suit has to be instituted. Section 26 reads as under: 26. Institution of suits: 1) Every suit shall be instituted by the presentation of a plaint or in such other matter as may be prescribed. 2) In every plaint, facts shall be proved by affidavit. 11. A suit can be instituted by presentation of a plaint and Order IV and VII C.P.C. deals with the presentation of the plaint and the contents of the plaint. Chapter I of the Civil Rules of Practice deals with the form of a plaint. When the statutory provision clearly says as to how the suit has to be instituted, it can be instituted only in that manner alone, and no other manner. The Trust Act contains 9 chapters. Chapter 6 deals with the rights and liabilities of the beneficiaries, which would indicate that the beneficiaries of trust have been given various rights and those rights are enforceable under the law. Section 59 of the Act confers a right upon the beneficiaries to sue for execution of the trust which would indicate that the beneficiaries may institute a suit for execution of the trust. Therefore, the above-mentioned provisions would show that in order to execute the trust, the right is only to file a suit and not any original petition. Under the Trust Act also for certain other purposes original petitions can be filed. Section 72 of the Trust Act provides for a trustee to apply to a principal civil court of original jurisdiction by way of petition to get himself discharged from his office. Similarly, Section 73 of the Act empowers the principal civil court of original jurisdiction to appoint new trustees. Few of the provisions of the Act permit for filing of original petitions. The above facts would clearly indicate that the Trust Act provides for filing of a suit then suit alone can be filed and when it provides for original petition then original petition alone can be filed and there is no question of conversion of original petition to that of a civil suit or vice-versa, especially in the absence of a statutory provision under the Trust Act. A similar question came up for consideration before this Court in P.A. Ahmad Ibrahim v. Food Corporation of India (supra) wherein, while interpreting Section 20 C.P.C. the Court held as follows: Further, before applying the provisions of Order VI Rule 17, there must be institution of the suit. Any application filed under the provisions of different statutes cannot be treated as a suit or plaint unless otherwise provided in the said Act. In any case, the amendment would introduce a totally new cause of action and change the nature of the suit. It would also introduce a totally different case which is inconsistent with the prayer made in the application for referring the dispute to the arbitrator. Prima facie, such amendment would cause serious prejudice to the contention of the appellant that the claim of the respondent to recover the alleged amount was barred by the period of limitation as it was pointed out that cause of action for recovery of the said amount arose in the year 1975 and the amendment application was filed on 30.3.1986. Lastly, it is to be stated that in such cases, there is no question of invoking the inherent jurisdiction of the Court under Section 151 of the C.P.C. as it would nullify the procedure prescribed under the Code. 12. Certain legislations specifically provide for conversion of original petition into a suit. Section 295 of the Indian Succession Act is such a provision. The Trust Act, however, contains no such enabling provision to convert the original petition into a suit. 13. In the above facts situation, we | 1[ds]11. A suit can be instituted by presentation of a plaint and Order IV and VII C.P.C. deals with the presentation of the plaint and the contents of the plaint. Chapter I of the Civil Rules of Practice deals with the form of a plaint. When the statutory provision clearly says as to how the suit has to be instituted, it can be instituted only in that manner alone, and no other manner. The Trust Act contains 9 chapters. Chapter 6 deals with the rights and liabilities of the beneficiaries, which would indicate that the beneficiaries of trust have been given various rights and those rights are enforceable under the law. Section 59 of the Act confers a right upon the beneficiaries to sue for execution of the trust which would indicate that the beneficiaries may institute a suit for execution of the trust. Therefore, the above-mentioned provisions would show that in order to execute the trust, the right is only to file a suit and not any original petition. Under the Trust Act also for certain other purposes original petitions can be filed. Section 72 of the Trust Act provides for a trustee to apply to a principal civil court of original jurisdiction by way of petition to get himself discharged from his office. Similarly, Section 73 of the Act empowers the principal civil court of original jurisdiction to appoint new trustees. Few of the provisions of the Act permit for filing of original petitions. The above facts would clearly indicate that the Trust Act provides for filing of a suit then suit alone can be filed and when it provides for original petition then original petition alone can be filed and there is no question of conversion of original petition to that of a civil suit or vice-versa, especially in the absence of a statutory provision under the Trust Act. A similar question came up for consideration before this Court in P.A. Ahmad Ibrahim v. Food Corporation of India (supra) wherein, while interpreting Section 20 C.P.C. the Court held as follows:Further, before applying the provisions of Order VI Rule 17, there must be institution of the suit. Any application filed under the provisions of different statutes cannot be treated as a suit or plaint unless otherwise provided in the said Act. In any case, the amendment would introduce a totally new cause of action and change the nature of the suit. It would also introduce a totally different case which is inconsistent with the prayer made in the application for referring the dispute to the arbitrator. Prima facie, such amendment would cause serious prejudice to the contention of the appellant that the claim of the respondent to recover the alleged amount was barred by the period of limitation as it was pointed out that cause of action for recovery of the said amount arose in the year 1975 and the amendment application was filed on 30.3.1986. Lastly, it is to be stated that in such cases, there is no question of invoking the inherent jurisdiction of the Court under Section 151 of the C.P.C. as it would nullify the procedure prescribed under the Code12. Certain legislations specifically provide for conversion of original petition into a suit. Section 295 of the Indian Succession Act is such a provision. The Trust Act, however, contains no such enabling provision to convert the original petition into a suit | 1 | 1,840 | 616 | ### 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:
out that while invoking Section 49 of the Act the Court should not stick on to hyper technicalities in respect of forms and procedures, it is the duty of the principal civil court even to act suo motu whenever it is brought to the notice of the court that there is a misconduct or any other mal practice committed by the Trustees. Learned counsel also submitted that in the event of the Court coming to the conclusion that by some improper advice given, the appellants have misdirected themselves in filing the Trust O.P., the same can always be converted into a civil suit. 7. Shri Vijay Hansaria, learned senior counsel appearing for the respondents, on the other hand, supported the findings recorded by the courts below. Learned senior counsel also placed reliance on the judgment of this Court in P.A. Ahmad Ibrahim v. Food Corporation of India (1999) 7 SCC 39 and submitted that the Trust O.P. cannot be converted as a civil suit. 8. We have perused the Trust O.P. filed by the appellants in the lower court which is not in the nature of a plaint. The expression Original Petition as such is not defined either in the Trust Act or in the Code of Civil Procedure. However, Rule 3(9) of the Code of Civil Procedure defines Original Petition as follows: 3(9). Original petition means a petition whereby any proceeding other than a suit or appeal or a proceedings in execution of a decree or order, is instituted in a court. 9. Section 2(14) C.P.C. defines the term Order which reads as under: 2(14). Order means the formal expression of any decision of a civil court which is not a decree; 10. A comprehensive reading of the above-mentioned provisions will make it clear that the Trust O.P. filed by the appellants before the Principal District Judge cannot either be construed a suit or equated to be a suit. The final order passed in the Trust O.P. cannot also be construed as a decree as defined in Section 2(2) C.P.C. It can only be an order as defined in Section 2(14) C.P.C. The term suit, as such is not defined in the Code of Civil Procedure. However, Section 26, C.P.C. gives an indication as to the manner in which suit has to be instituted. Section 26 reads as under: 26. Institution of suits: 1) Every suit shall be instituted by the presentation of a plaint or in such other matter as may be prescribed. 2) In every plaint, facts shall be proved by affidavit. 11. A suit can be instituted by presentation of a plaint and Order IV and VII C.P.C. deals with the presentation of the plaint and the contents of the plaint. Chapter I of the Civil Rules of Practice deals with the form of a plaint. When the statutory provision clearly says as to how the suit has to be instituted, it can be instituted only in that manner alone, and no other manner. The Trust Act contains 9 chapters. Chapter 6 deals with the rights and liabilities of the beneficiaries, which would indicate that the beneficiaries of trust have been given various rights and those rights are enforceable under the law. Section 59 of the Act confers a right upon the beneficiaries to sue for execution of the trust which would indicate that the beneficiaries may institute a suit for execution of the trust. Therefore, the above-mentioned provisions would show that in order to execute the trust, the right is only to file a suit and not any original petition. Under the Trust Act also for certain other purposes original petitions can be filed. Section 72 of the Trust Act provides for a trustee to apply to a principal civil court of original jurisdiction by way of petition to get himself discharged from his office. Similarly, Section 73 of the Act empowers the principal civil court of original jurisdiction to appoint new trustees. Few of the provisions of the Act permit for filing of original petitions. The above facts would clearly indicate that the Trust Act provides for filing of a suit then suit alone can be filed and when it provides for original petition then original petition alone can be filed and there is no question of conversion of original petition to that of a civil suit or vice-versa, especially in the absence of a statutory provision under the Trust Act. A similar question came up for consideration before this Court in P.A. Ahmad Ibrahim v. Food Corporation of India (supra) wherein, while interpreting Section 20 C.P.C. the Court held as follows: Further, before applying the provisions of Order VI Rule 17, there must be institution of the suit. Any application filed under the provisions of different statutes cannot be treated as a suit or plaint unless otherwise provided in the said Act. In any case, the amendment would introduce a totally new cause of action and change the nature of the suit. It would also introduce a totally different case which is inconsistent with the prayer made in the application for referring the dispute to the arbitrator. Prima facie, such amendment would cause serious prejudice to the contention of the appellant that the claim of the respondent to recover the alleged amount was barred by the period of limitation as it was pointed out that cause of action for recovery of the said amount arose in the year 1975 and the amendment application was filed on 30.3.1986. Lastly, it is to be stated that in such cases, there is no question of invoking the inherent jurisdiction of the Court under Section 151 of the C.P.C. as it would nullify the procedure prescribed under the Code. 12. Certain legislations specifically provide for conversion of original petition into a suit. Section 295 of the Indian Succession Act is such a provision. The Trust Act, however, contains no such enabling provision to convert the original petition into a suit. 13. In the above facts situation, we
### Response:
1
### Explanation:
11. A suit can be instituted by presentation of a plaint and Order IV and VII C.P.C. deals with the presentation of the plaint and the contents of the plaint. Chapter I of the Civil Rules of Practice deals with the form of a plaint. When the statutory provision clearly says as to how the suit has to be instituted, it can be instituted only in that manner alone, and no other manner. The Trust Act contains 9 chapters. Chapter 6 deals with the rights and liabilities of the beneficiaries, which would indicate that the beneficiaries of trust have been given various rights and those rights are enforceable under the law. Section 59 of the Act confers a right upon the beneficiaries to sue for execution of the trust which would indicate that the beneficiaries may institute a suit for execution of the trust. Therefore, the above-mentioned provisions would show that in order to execute the trust, the right is only to file a suit and not any original petition. Under the Trust Act also for certain other purposes original petitions can be filed. Section 72 of the Trust Act provides for a trustee to apply to a principal civil court of original jurisdiction by way of petition to get himself discharged from his office. Similarly, Section 73 of the Act empowers the principal civil court of original jurisdiction to appoint new trustees. Few of the provisions of the Act permit for filing of original petitions. The above facts would clearly indicate that the Trust Act provides for filing of a suit then suit alone can be filed and when it provides for original petition then original petition alone can be filed and there is no question of conversion of original petition to that of a civil suit or vice-versa, especially in the absence of a statutory provision under the Trust Act. A similar question came up for consideration before this Court in P.A. Ahmad Ibrahim v. Food Corporation of India (supra) wherein, while interpreting Section 20 C.P.C. the Court held as follows:Further, before applying the provisions of Order VI Rule 17, there must be institution of the suit. Any application filed under the provisions of different statutes cannot be treated as a suit or plaint unless otherwise provided in the said Act. In any case, the amendment would introduce a totally new cause of action and change the nature of the suit. It would also introduce a totally different case which is inconsistent with the prayer made in the application for referring the dispute to the arbitrator. Prima facie, such amendment would cause serious prejudice to the contention of the appellant that the claim of the respondent to recover the alleged amount was barred by the period of limitation as it was pointed out that cause of action for recovery of the said amount arose in the year 1975 and the amendment application was filed on 30.3.1986. Lastly, it is to be stated that in such cases, there is no question of invoking the inherent jurisdiction of the Court under Section 151 of the C.P.C. as it would nullify the procedure prescribed under the Code12. Certain legislations specifically provide for conversion of original petition into a suit. Section 295 of the Indian Succession Act is such a provision. The Trust Act, however, contains no such enabling provision to convert the original petition into a suit
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M/S. Punjab Aromatics Vs. State Of Kerala | consumer has performed part of the final act of consumption, another portion of the final act of consumption may be performed by his heir or successor-in-interest, a transferee, or even one who has obtained possession by wrongful means. But the fact that there is for each commodity what may be considered ordinarily to be the final act of consumption, should not make us forget that in reaching the stage at which this final act of consumption takes place the commodity may pass through different stages of production and for such different stages, there would exist one or more intermediate acts of consumption............ In the absence of any words to limit the connotation of the word "consumption" to the final act of consumption, it will be proper to think that the constitution-makers used the word to connote any kind of user which is ordinarily spoken of as consumption of the particular commodity." 19. We are of the view that the judgment of this Court in Burmah-Shell (supra) has no application. Firstly, in that case the Court was concerned with the interpretation of Entries in the Legislative Lists. It is well-settled that Entries in the Legislative Lists have to be read in the widest possible sense. The Entries in the Legislative Lists demarcates an area/field within which the competent Legislature is entitled to enact laws. We are not concerned with interpretation of Entries in the Legislative Lists, therefore, the said judgment has no application to the facts of the present case. Secondly, as can be seen from para 20, this Court has itself clarified that the word "consumption" in the Explanation to Article 286 of the Constitution as it stood before the Constitution (Sixth Amendment) Act, 1956 has to be read in a manner different from the act of consumption in the generally understood sense. For both the aforestated reasons, the judgment of this Court in Burmah-Shell (supra) has no application to the present case. 20. Shri T.L.V. Iyer, learned counsel, also places heavy reliance on the judgment of this Court in the case of State of Karnataka v. B. Raghurama Shetty and Others (1981) 2 SCC 564. He places reliance on paragraphs 8 and 9 which are quoted hereinbelow: "8. There is no merit in the submission made on behalf of the assessees that they had not consumed paddy when they produced rice from it by merely carrying out the process of dehusking at their mills. Consumption in the true economic sense does not mean only use of goods in the production of consumers goods or final utilisation of consumers goods by consumers involving activities like eating of food, drinking of beverages, wearing of clothes or using of an automobile by its owner for domestic purposes manufacturer also consumes commodities which are ordinarily called raw materials when he produces semi-finished goods which have to undergo further processes of production before they can be transformed into consumers goods. At every such intermediate stage of production, some utility or value is added to goods which are used as raw materials and at every such stage the raw materials are consumed. Take the case of bread. It passes through the first stage of production when wheat is grown by the farmer, the second stage of production when wheat is converted into flour by the miller and the third stage of production when flour is utilised by the baker to manufacture bread out of it. The miller and the baker have consumed wheat and flour respectively in the course of their business. We have to understand the word consumes in Section 6(i) of the Act in this economic sense. It may be interesting to note that this is the basis of the levy of Value Added Tax, popularly called as VAT, which is levied as an alternative to tax on turnover in some Western countries. The difference between Value Added Tax, and tax on the turnover of sales or purchases is explained by Professor Paul A. Samuelson in his book entitled Economics (Tenth Edition, 1976) at page 168 thus :A turnover tax simply taxes every transaction made : wheat, flour, dough, bread, VAT is different because it does not include in the tax on the millers flour that part of its value which came from the wheat he bought from the farmer. Instead, it taxes him only on the wage and salary, cost of milling, and on the interest, rent, royalty, and profit cost of this milling stage of production. (That is, the raw material costs used from earlier stages are subtracted from the millers selling price in calculating his "value added" and the VAT tax on value added....)9. At every stage of production, it is obvious there is consumption of goods even though at the end of it there may not be final consumption of goods but only production of goods with higher utility which may be used in further productive processes." 21. In our view the said judgment has no application as in that case this Court came to the conclusion that paddy and rice are two different commodities. It was further held on facts that the assessee had consumed paddy in the manufacture of rice. It is in this context that after coming to the conclusion that paddy and rice are two different commodities that this Court has examined the word "consumption" in the economic sense. In the present case, as stated hereinabove, by adding of impurities sandalwood oil becomes red oil. Therefore, there was no consumption of red oil in the manufacture of sandalwood oil. Further, it may be noted that the Explanation to Article 286(1)(a) of the Constitution, as it stood prior to the Constitution (Sixth Amendment) Act, 1956, used the word "consumption" in the Explanation to the said Article.However, after the Constitution (Sixth Amendment) Act, 1956 w.e.f. 11.9.1956 the said Explanation to Article 286(1)(a) of the Constitution is omitted. For the aforestated reasons, the judgment of this Court in the case of B. Raghurama Shetty (supra) has no application. | 1[ds]8. We find merit in this civil appeal filed by the assessee. At the outset, it may be stated that process of purification is not in dispute. The entire process of purification has been discussed by the Tribunal in its judgment. The said process eliminates impurities. In the present case we are required to consider the words "consumes such goods (red oil) in the manufacture of other goods for sale or otherwise (sandalwood oil)". These words find place in Section 5A(1)(a) of the 1963 Act. When raw-material is converted into a final product one of the important tests to be applied to ascertain whether the process of conversion amounts to manufacture is: whether the raw-material is subsumed into the final product. In this case, the highest fact-finding body is Appellate Tribunal under the 1963 Act. After examining the process, it has come to the conclusion that sandalwood oil (final product) can be brought back to the original State, namely, red oil by adding impurities, therefore, the process is reversible. Therefore, red oil is not subsumed into sandalwood oil. Keeping in mind this basic test, it is clear that red oil is not consumed/used in the manufacture of sandalwood oil. Hence, Section 5A(1)(a) or (b) of the 1963 Act has no application.The "test of irreversibility" is an important criterion to ascertain as to when a given process amounts to manufacture. In the present case that test is not satisfied. In the present case, the Tribunal has examined the process and has come to the conclusion that by adding impurities to the sandalwood oil the product could become red oil once again. In the circumstances, it cannot be said that red oil and sandalwood oil are two separate and distinct products as held by the High Court overruling the judgment of the Tribunal.13. One more aspect needs to be mentioned. According to the impugned judgment of the High Court, even assuming for the sake of argument that Section 5A(1)(a) of the 1963 Act is not applicable still in any event alternatively Section 5A(1)(b) stood attracted.For the aforestated reasons, we are of the view that there is no infirmity in the judgment of the Tribunal and that the High Court had erred in interfering with the said judgment.To say the least, in tax matters courts have to keep in mind distinction between approach and principle. Courts have to go by the principle involved in the fiscal legislation. Keeping in mind the distinction between these two concepts, we are of the view that the High Court was not justified in making the observation which is underlying hereinabove. The decision of the Tribunal is objective. It is based on the correct formulation of the test of irreversibility involved in the process of manufacture and, therefore, the High Court was not justified in observing that the finding of the Tribunal was patently absurd and perverse.In our view the said judgment has no application as in that case this Court came to the conclusion that paddy and rice are two different commodities. It was further held on facts that the assessee had consumed paddy in the manufacture of rice. It is in this context that after coming to the conclusion that paddy and rice are two different commodities that this Court has examined the word "consumption" in the economic sense. In the present case, as stated hereinabove, by adding of impurities sandalwood oil becomes red oil. Therefore, there was no consumption of red oil in the manufacture of sandalwood oil. Further, it may be noted that the Explanation to Article 286(1)(a) of the Constitution, as it stood prior to the Constitution (Sixth Amendment) Act, 1956, used the word "consumption" in the Explanation to the said Article.However, after the Constitution (Sixth Amendment) Act, 1956 w.e.f. 11.9.1956 the said Explanation to Article 286(1)(a) of the Constitution is omitted. For the aforestated reasons, the judgment of this Court in the case of B. Raghurama Shetty (supra) has no application. | 1 | 4,510 | 780 | ### Instruction:
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consumer has performed part of the final act of consumption, another portion of the final act of consumption may be performed by his heir or successor-in-interest, a transferee, or even one who has obtained possession by wrongful means. But the fact that there is for each commodity what may be considered ordinarily to be the final act of consumption, should not make us forget that in reaching the stage at which this final act of consumption takes place the commodity may pass through different stages of production and for such different stages, there would exist one or more intermediate acts of consumption............ In the absence of any words to limit the connotation of the word "consumption" to the final act of consumption, it will be proper to think that the constitution-makers used the word to connote any kind of user which is ordinarily spoken of as consumption of the particular commodity." 19. We are of the view that the judgment of this Court in Burmah-Shell (supra) has no application. Firstly, in that case the Court was concerned with the interpretation of Entries in the Legislative Lists. It is well-settled that Entries in the Legislative Lists have to be read in the widest possible sense. The Entries in the Legislative Lists demarcates an area/field within which the competent Legislature is entitled to enact laws. We are not concerned with interpretation of Entries in the Legislative Lists, therefore, the said judgment has no application to the facts of the present case. Secondly, as can be seen from para 20, this Court has itself clarified that the word "consumption" in the Explanation to Article 286 of the Constitution as it stood before the Constitution (Sixth Amendment) Act, 1956 has to be read in a manner different from the act of consumption in the generally understood sense. For both the aforestated reasons, the judgment of this Court in Burmah-Shell (supra) has no application to the present case. 20. Shri T.L.V. Iyer, learned counsel, also places heavy reliance on the judgment of this Court in the case of State of Karnataka v. B. Raghurama Shetty and Others (1981) 2 SCC 564. He places reliance on paragraphs 8 and 9 which are quoted hereinbelow: "8. There is no merit in the submission made on behalf of the assessees that they had not consumed paddy when they produced rice from it by merely carrying out the process of dehusking at their mills. Consumption in the true economic sense does not mean only use of goods in the production of consumers goods or final utilisation of consumers goods by consumers involving activities like eating of food, drinking of beverages, wearing of clothes or using of an automobile by its owner for domestic purposes manufacturer also consumes commodities which are ordinarily called raw materials when he produces semi-finished goods which have to undergo further processes of production before they can be transformed into consumers goods. At every such intermediate stage of production, some utility or value is added to goods which are used as raw materials and at every such stage the raw materials are consumed. Take the case of bread. It passes through the first stage of production when wheat is grown by the farmer, the second stage of production when wheat is converted into flour by the miller and the third stage of production when flour is utilised by the baker to manufacture bread out of it. The miller and the baker have consumed wheat and flour respectively in the course of their business. We have to understand the word consumes in Section 6(i) of the Act in this economic sense. It may be interesting to note that this is the basis of the levy of Value Added Tax, popularly called as VAT, which is levied as an alternative to tax on turnover in some Western countries. The difference between Value Added Tax, and tax on the turnover of sales or purchases is explained by Professor Paul A. Samuelson in his book entitled Economics (Tenth Edition, 1976) at page 168 thus :A turnover tax simply taxes every transaction made : wheat, flour, dough, bread, VAT is different because it does not include in the tax on the millers flour that part of its value which came from the wheat he bought from the farmer. Instead, it taxes him only on the wage and salary, cost of milling, and on the interest, rent, royalty, and profit cost of this milling stage of production. (That is, the raw material costs used from earlier stages are subtracted from the millers selling price in calculating his "value added" and the VAT tax on value added....)9. At every stage of production, it is obvious there is consumption of goods even though at the end of it there may not be final consumption of goods but only production of goods with higher utility which may be used in further productive processes." 21. In our view the said judgment has no application as in that case this Court came to the conclusion that paddy and rice are two different commodities. It was further held on facts that the assessee had consumed paddy in the manufacture of rice. It is in this context that after coming to the conclusion that paddy and rice are two different commodities that this Court has examined the word "consumption" in the economic sense. In the present case, as stated hereinabove, by adding of impurities sandalwood oil becomes red oil. Therefore, there was no consumption of red oil in the manufacture of sandalwood oil. Further, it may be noted that the Explanation to Article 286(1)(a) of the Constitution, as it stood prior to the Constitution (Sixth Amendment) Act, 1956, used the word "consumption" in the Explanation to the said Article.However, after the Constitution (Sixth Amendment) Act, 1956 w.e.f. 11.9.1956 the said Explanation to Article 286(1)(a) of the Constitution is omitted. For the aforestated reasons, the judgment of this Court in the case of B. Raghurama Shetty (supra) has no application.
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8. We find merit in this civil appeal filed by the assessee. At the outset, it may be stated that process of purification is not in dispute. The entire process of purification has been discussed by the Tribunal in its judgment. The said process eliminates impurities. In the present case we are required to consider the words "consumes such goods (red oil) in the manufacture of other goods for sale or otherwise (sandalwood oil)". These words find place in Section 5A(1)(a) of the 1963 Act. When raw-material is converted into a final product one of the important tests to be applied to ascertain whether the process of conversion amounts to manufacture is: whether the raw-material is subsumed into the final product. In this case, the highest fact-finding body is Appellate Tribunal under the 1963 Act. After examining the process, it has come to the conclusion that sandalwood oil (final product) can be brought back to the original State, namely, red oil by adding impurities, therefore, the process is reversible. Therefore, red oil is not subsumed into sandalwood oil. Keeping in mind this basic test, it is clear that red oil is not consumed/used in the manufacture of sandalwood oil. Hence, Section 5A(1)(a) or (b) of the 1963 Act has no application.The "test of irreversibility" is an important criterion to ascertain as to when a given process amounts to manufacture. In the present case that test is not satisfied. In the present case, the Tribunal has examined the process and has come to the conclusion that by adding impurities to the sandalwood oil the product could become red oil once again. In the circumstances, it cannot be said that red oil and sandalwood oil are two separate and distinct products as held by the High Court overruling the judgment of the Tribunal.13. One more aspect needs to be mentioned. According to the impugned judgment of the High Court, even assuming for the sake of argument that Section 5A(1)(a) of the 1963 Act is not applicable still in any event alternatively Section 5A(1)(b) stood attracted.For the aforestated reasons, we are of the view that there is no infirmity in the judgment of the Tribunal and that the High Court had erred in interfering with the said judgment.To say the least, in tax matters courts have to keep in mind distinction between approach and principle. Courts have to go by the principle involved in the fiscal legislation. Keeping in mind the distinction between these two concepts, we are of the view that the High Court was not justified in making the observation which is underlying hereinabove. The decision of the Tribunal is objective. It is based on the correct formulation of the test of irreversibility involved in the process of manufacture and, therefore, the High Court was not justified in observing that the finding of the Tribunal was patently absurd and perverse.In our view the said judgment has no application as in that case this Court came to the conclusion that paddy and rice are two different commodities. It was further held on facts that the assessee had consumed paddy in the manufacture of rice. It is in this context that after coming to the conclusion that paddy and rice are two different commodities that this Court has examined the word "consumption" in the economic sense. In the present case, as stated hereinabove, by adding of impurities sandalwood oil becomes red oil. Therefore, there was no consumption of red oil in the manufacture of sandalwood oil. Further, it may be noted that the Explanation to Article 286(1)(a) of the Constitution, as it stood prior to the Constitution (Sixth Amendment) Act, 1956, used the word "consumption" in the Explanation to the said Article.However, after the Constitution (Sixth Amendment) Act, 1956 w.e.f. 11.9.1956 the said Explanation to Article 286(1)(a) of the Constitution is omitted. For the aforestated reasons, the judgment of this Court in the case of B. Raghurama Shetty (supra) has no application.
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International Airport Authority Of India Vs. K.D. Bali & Another | do so. In the instant case the petitioner itself agitated issue of jurisdiction before the arbitrator and by its conduct submitted the question of jurisdiction and other questions of law for determination of the arbitrator. Once having done so, it was not proper for the petitioner to ask the arbitrator to state a special case. This, in our opinion, is no ground for bias. 10. The fourth ground was that the first reference, where the claim involved was Rs. 85 lakhs, was heard for a considerable time, while the arguments in respect of second and third references, which covered the claim of Rs. 1.17 crores and Rs. 5.81 crores were concluded by respondent 2 within one and one fourth of a day. The length of the time taken is no indication either of speeding up or of any abuse of the proceedings. We agree with the learned Judge that there is no rule which requires that the length of argument should depend upon the magnitude of the claim made. 11. The other point sought to be urged by the petitioner was that the venue of the arbitration was changed from conference room at Santa Cruz Airport, Bombay, to the conference room at Indian Merchants Chambers at Churchgate, Bombay. It is the claim of the petitioner that this change of venue was without the consent of the petitioner. It appears from the affidavit filed before the High Court that the venue was changed because of disturbance at the conference room at Santa Cruz and this fact was known to the petitioner all along. Change of venue in no manner would indicate that the arbitrator was prejudiced against the petitioner and no prayer was made to the arbitrator not to change the venue. This is solely a fallacious ground to make out a case of alleged bias. The other ground was that the petitioner and respondent 2 used to share the costs of the air ticket of the arbitrator from Delhi to Bombay and back. It was submitted that since June 9, 1987 the petitioner has not paid for the ticket and also not provided for residential accommodation at Santa Cruz Airport. It was further submitted that respondent 2 must be providing the air ticket and also hotel accommodation to the arbitrator and the receipt of these facilities was enough, according to the petitioner, to establish that the arbitration was likely to be biased. It is said that the petitioner made these allegations because the petitioner declined to contribute for the costs of the air ticket and providing for the accommodation. The petitioner obstructed at all stages of the proceedings of arbitration, what the arbitrator did he did openly to the knowledge of the respondents. As the learned Judge has rightly pointed out the petitioner after June 9, 1987 seems to have decided that the arbitrator should not proceed to hear the reference and in order to frustrate the arbitration proceedings started raising all sorts of frivolous and unsustainable contentions. Having failed and realised that respondent 1 was not willing to submit to the dictates of the petitioner, the petitioner declined to contribute for the air ticket and providing for accommodation. No party should be allowed to throw out the arbitration proceeding by such tactics and if the arbitrator has not surrendered to pressure, in our opinion, the arbitrator cannot be faulted on that score nor the proceedings of the arbitrator be allowed to be defeated by such method. 12. There was another ground sought to be made before us that there was a loss of confidence. We find no reasonable ground for such loss of confidence. Every fancy of a party cannot be a ground for removal of the arbitrator. It was alleged that there were counter-claims made by the respondents. These counter-claims have not yet been dealt with by the arbitrator. Our attention was drawn to page 288 of volume 2 of the paper book where a counter-claim had been referred to. It appears that the petitioner has separately treated these counter-claims. These counter-claims have not yet been considered by the arbitrator. That is no ground for any apprehension of bias. An affidavit was filed before us that on March 6, 1988 a letter was served indicating the dates for hearing as March 7 to 10, 1988. It appears that the matter was adjourned thereafter but by merely making an application for adjournment and refusing to attend the arbitration proceeding, a party cannot forestall arbitration proceeding. 13. We are in agreement with the learned Judge of the High Court expressing unhappiness as to the manner in which attempts had been made to delay the proceeding. There is a great deal of legitimate protest at the delay in judicial and quasi-judicial proceeding. As a matter of fact delay in litigation in courts has reached such proportion that people are losing faith in the adjudicatory process. Having given our anxious consideration to the grounds alleged in this application, we find no ground to conclude that there could be any ground for reasonable apprehension in the mind of the petitioner for revocation of the authority of the arbitrator appointed by the petitioner itself. While indorsing and fully maintaining the integrity of the principle justice should not only be done, but should manifestly be seen to be done, it is important to remember that the principle should not be led to the erroneous impression that justice should appear to be done than it should in fact be done. See the observations of Slade, J. in R. v. Camborne Justice ex parte Pearce [(1954) 2 All ER 850, 855]. We are satisfied from the facts mentioned hereinbefore that there is no reasonable ground of any suspicion in the mind of the reasonable man of bias of the arbitrator. Instances of cases where bias can be found are given in Commercial Arbitration by Mustill and Boyd, 1982 Edn. The conduct of the present arbitrator does not fall within the examples given and the principles enunciated therein. | 0[ds]13. We are in agreement with the learned Judge of the High Court expressing unhappiness as to the manner in which attempts had been made to delay the proceeding. There is a great deal of legitimate protest at the delay in judicial and quasi-judicial proceeding. As a matter of fact delay in litigation in courts has reached such proportion that people are losing faith in the adjudicatory process. Having given our anxious consideration to the grounds alleged in this application, we find no ground to conclude that there could be any ground for reasonable apprehension in the mind of the petitioner for revocation of the authority of the arbitrator appointed by the petitioner itself. While indorsing and fully maintaining the integrity of the principle justice should not only be done, but should manifestly be seen to be done, it is important to remember that the principle should not be led to the erroneous impression that justice should appear to be done than it should in fact be done. See the observations of Slade, J. in R. v. Camborne Justice ex parte Pearce [(1954) 2 All ER 850, 855]. We are satisfied from the facts mentioned hereinbefore that there is no reasonable ground of any suspicion in the mind of the reasonable man of bias of the arbitrator. Instances of cases where bias can be found are given in Commercial Arbitration by Mustill and Boyd, 1982 Edn. The conduct of the present arbitrator does not fall within the examples given and the principles enunciated therein | 0 | 4,445 | 277 | ### Instruction:
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do so. In the instant case the petitioner itself agitated issue of jurisdiction before the arbitrator and by its conduct submitted the question of jurisdiction and other questions of law for determination of the arbitrator. Once having done so, it was not proper for the petitioner to ask the arbitrator to state a special case. This, in our opinion, is no ground for bias. 10. The fourth ground was that the first reference, where the claim involved was Rs. 85 lakhs, was heard for a considerable time, while the arguments in respect of second and third references, which covered the claim of Rs. 1.17 crores and Rs. 5.81 crores were concluded by respondent 2 within one and one fourth of a day. The length of the time taken is no indication either of speeding up or of any abuse of the proceedings. We agree with the learned Judge that there is no rule which requires that the length of argument should depend upon the magnitude of the claim made. 11. The other point sought to be urged by the petitioner was that the venue of the arbitration was changed from conference room at Santa Cruz Airport, Bombay, to the conference room at Indian Merchants Chambers at Churchgate, Bombay. It is the claim of the petitioner that this change of venue was without the consent of the petitioner. It appears from the affidavit filed before the High Court that the venue was changed because of disturbance at the conference room at Santa Cruz and this fact was known to the petitioner all along. Change of venue in no manner would indicate that the arbitrator was prejudiced against the petitioner and no prayer was made to the arbitrator not to change the venue. This is solely a fallacious ground to make out a case of alleged bias. The other ground was that the petitioner and respondent 2 used to share the costs of the air ticket of the arbitrator from Delhi to Bombay and back. It was submitted that since June 9, 1987 the petitioner has not paid for the ticket and also not provided for residential accommodation at Santa Cruz Airport. It was further submitted that respondent 2 must be providing the air ticket and also hotel accommodation to the arbitrator and the receipt of these facilities was enough, according to the petitioner, to establish that the arbitration was likely to be biased. It is said that the petitioner made these allegations because the petitioner declined to contribute for the costs of the air ticket and providing for the accommodation. The petitioner obstructed at all stages of the proceedings of arbitration, what the arbitrator did he did openly to the knowledge of the respondents. As the learned Judge has rightly pointed out the petitioner after June 9, 1987 seems to have decided that the arbitrator should not proceed to hear the reference and in order to frustrate the arbitration proceedings started raising all sorts of frivolous and unsustainable contentions. Having failed and realised that respondent 1 was not willing to submit to the dictates of the petitioner, the petitioner declined to contribute for the air ticket and providing for accommodation. No party should be allowed to throw out the arbitration proceeding by such tactics and if the arbitrator has not surrendered to pressure, in our opinion, the arbitrator cannot be faulted on that score nor the proceedings of the arbitrator be allowed to be defeated by such method. 12. There was another ground sought to be made before us that there was a loss of confidence. We find no reasonable ground for such loss of confidence. Every fancy of a party cannot be a ground for removal of the arbitrator. It was alleged that there were counter-claims made by the respondents. These counter-claims have not yet been dealt with by the arbitrator. Our attention was drawn to page 288 of volume 2 of the paper book where a counter-claim had been referred to. It appears that the petitioner has separately treated these counter-claims. These counter-claims have not yet been considered by the arbitrator. That is no ground for any apprehension of bias. An affidavit was filed before us that on March 6, 1988 a letter was served indicating the dates for hearing as March 7 to 10, 1988. It appears that the matter was adjourned thereafter but by merely making an application for adjournment and refusing to attend the arbitration proceeding, a party cannot forestall arbitration proceeding. 13. We are in agreement with the learned Judge of the High Court expressing unhappiness as to the manner in which attempts had been made to delay the proceeding. There is a great deal of legitimate protest at the delay in judicial and quasi-judicial proceeding. As a matter of fact delay in litigation in courts has reached such proportion that people are losing faith in the adjudicatory process. Having given our anxious consideration to the grounds alleged in this application, we find no ground to conclude that there could be any ground for reasonable apprehension in the mind of the petitioner for revocation of the authority of the arbitrator appointed by the petitioner itself. While indorsing and fully maintaining the integrity of the principle justice should not only be done, but should manifestly be seen to be done, it is important to remember that the principle should not be led to the erroneous impression that justice should appear to be done than it should in fact be done. See the observations of Slade, J. in R. v. Camborne Justice ex parte Pearce [(1954) 2 All ER 850, 855]. We are satisfied from the facts mentioned hereinbefore that there is no reasonable ground of any suspicion in the mind of the reasonable man of bias of the arbitrator. Instances of cases where bias can be found are given in Commercial Arbitration by Mustill and Boyd, 1982 Edn. The conduct of the present arbitrator does not fall within the examples given and the principles enunciated therein.
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13. We are in agreement with the learned Judge of the High Court expressing unhappiness as to the manner in which attempts had been made to delay the proceeding. There is a great deal of legitimate protest at the delay in judicial and quasi-judicial proceeding. As a matter of fact delay in litigation in courts has reached such proportion that people are losing faith in the adjudicatory process. Having given our anxious consideration to the grounds alleged in this application, we find no ground to conclude that there could be any ground for reasonable apprehension in the mind of the petitioner for revocation of the authority of the arbitrator appointed by the petitioner itself. While indorsing and fully maintaining the integrity of the principle justice should not only be done, but should manifestly be seen to be done, it is important to remember that the principle should not be led to the erroneous impression that justice should appear to be done than it should in fact be done. See the observations of Slade, J. in R. v. Camborne Justice ex parte Pearce [(1954) 2 All ER 850, 855]. We are satisfied from the facts mentioned hereinbefore that there is no reasonable ground of any suspicion in the mind of the reasonable man of bias of the arbitrator. Instances of cases where bias can be found are given in Commercial Arbitration by Mustill and Boyd, 1982 Edn. The conduct of the present arbitrator does not fall within the examples given and the principles enunciated therein
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Workmen Of The Straw Board Manufacturing Company Limited Vs. M/S. Straw Board Manufacturing Company Limited | operations, exhaustion of the minerals in the area in which such operations are carried on;shall not be deemed to be closed down on account of unavoidable circumstances beyond the control of the employer within the meaning of the proviso of this sub-section."30. Section 6-N of the U.P. Act is identical with S. 25-F of the Central Act except for some consequential additions in S. 25-F (c) in view of the scheme of the latter Act, which are not material for our purpose. It is, therefore, clear that on the finding that the S. Mill was closed as an independent unit it will fall for consideration whether the employees of the said Mill are entitled to compensation under S. 25-F which is the counterpart of S. 6-N of the U.P. Act by virtue of the provisions of S. 25-FFF(1) of the Central Act. The Tribunal was, therefore, not correct in holding that S. 25-FFF did not apply to the employees concerned. Indeed the management has paid, as already noted, compensation to their employees under S. 25-FFF (1) of the Act.31. Some controversy was raised at the bar with regard to the meaning of the word undertaking in S. 25-FFF. Without going into the question in detail we may only refer to a decision of this Court in Management of Hindustan Steel Ltd. v. Workmen, AIR 1973 SC 878 , where the following observation appears :"The word undertaking as used in Section 25-FFF seems to us to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is not intended to cover the entire industry or business of the employer as was suggested on behalf of the respondents. Even closure or stoppage of a part of the business or activities of the employer would seem to law to be covered by this sub-section."32. We may now deal with another submission of Mr. Chitaley. According to the learned counsel, the question of compensation cannot be gone into by the Tribunal on account of closure of the Mill as found by the Tribunal. We are not impressed by this argument.33. In the course of gradual development of the industrial law the legislature, by engrafting a provision like S. 25-FFF in the Central Act, has sought to wipe out the deleterious distinction in the consequential effect on labour upon retrenchment and upon closure except that in the latter case a restricted compensation under very specified circumstances is provided for under the proviso to S. 25-FFF(1) itself. It is no longer open to the employer to plead that there can be no industrial dispute with regard to the eligibility of workmen to compensation or to its quantum on closure of an establishment although the factum of a real and genuine or legitimate closure, admitted or proved, is outside the pale of industrial adjudication not partaking of or fulfilling the conduct of an industrial dispute within the meaning of S. 2(k) of the Central Act. If, however, the closure is a masquerade, the matter will stand on a different footing. That is not the case before us here.34.Besides, the reference has not been challenged as incompetent either before the Tribunal or in this appeal. Indeed on the explicit terms of the reference, it is not possible to contend that the subject-matter referred to is not an industrial dispute. Apart from that there is no legal bar to refer to the Tribunal to determine the compensation on closure of an undertaking. The scheme of Chapter V-A or even the language of S. 25-FFF, does not necessarily indicate that a claim under the said section can be made only under S. 33-C of the Central Act and that the Industrial Tribunal, in a reference, has no jurisdiction to grant appropriate relief in that behalf, as urged by the learned counsel. The submission of the learned counsel is devoid of substance.35. The claim, however, of the respondent-company before us is that the proviso to Section 25-FFF(1) is attracted in this case and the employees are not entitled to any compensation exceeding their average pay for three months as provided therein. The Tribunal, however, did not address itself to this aspect of the matter as according to it "since it was a legitimate closure the question of compensation could not be determined by it". The matter, therefore, was not at all considered by the Tribunal and the parties were also not allowed to adduce any evidence with regard to the applicability or otherwise of the said proviso before the Tribunal. Even after decision of the first issue in the reference holding that the closure of the S. Mill was legitimate, it was incumbent upon the Tribunal to adjudicate upon the second issue of the reference for granting appropriate relief as a necessary corollary to the result of the first issue. The Tribunal committed a clear error of jurisdiction in not undertaking that enquiry. Once it is found, as in this case, that there is a closure, the question of applicability of sub-section (1) of Section 25-FFF or the proviso thereto will automatically arise for consideration in determining the quantum of compensation. The proviso to Section 25-FFF (1) which limits the quantum of compensation under the conditions specified therein, will have to be carefully considered in order to arrive at a conclusion whether the onus in that behalf to justify a lesser amount of compensation has been discharged by the employer or not. A decision against the employer after considering all aspects of the matter in relation to the said proviso read with the Explanation will lead to granting of a higher compensation under sub-section (1) of Section 25-FFF by reason of the legal fiction contained therein for payment in accordance with Section 25-F of the Central Act. It will now, therefore, be the duty of the Tribunal to afford adequate opportunity to the parties to establish their respective pleas on the point, which appertains to the domain of the second issue in the reference. | 1[ds]7. With regard to the first submission, the appellants counsel took considerable pains, in the forefront of his argument, to demonstrate that there was no closure as such of the Company at all since only a part of a single establishment was sought to be shut down. It is also pointed out that there was in fact no closure of even the S. Mill on May 7, 1967 and that the same continued functioning until it was finally declared closed on July 28, 1967. Hence, it is submitted that 98 workmen concerned in this appeal should be held to be retrenched on May 7, 1967 and since the preconditions laid down under Section 6-N and the provisions of Section 6-P of the U. P. Act have not been complied with by the Company, the so described retrenchment should be held as invalid.After giving due consideration to all the aspects pointed out by the learned counsel for the appellants, we are unable to hold that the R. Mill is not an independently functioning unit and that there is any functional integrality as such between the R. Mill and the S. Mill. The fact of the unity of ownership, supervision and control and some other common features, which we have noticed above, do not justify a contrary conclusion on this aspect in the present case. There is considerable force in the submission of Mr. Chitaley that the R. Mill is a different line of business and the closure of the S. Mill has nothing to do with the functioning of the R. Mill. The matter may be absolutely different when in an otherwise going concern or a functioning unit some workmens services are terminated as being redundant or surplus to requirements. That most of the conditions of service of the two Mills were substantially identical can be easily explained by the fact that, being owned by the same employer and the two units being situated in close proximity, it will not be in the interest of the management and peace and well-being of the Company to treat the employees differently creating heart burning and discrimination. For the same reason, there is no particular significance in this case even in the application of the standing orders of the Company to the employees of the R. Mill which, because of the non-requisite number of employees employed in the latter, is not even required under the law to have separate standing orders. It is, in our opinion, a clear case of closure of an independent unit of a Company and not a closure of a part of an establishment. Even so, this kind of closure cannot be treated as lay-off or lock-out under the U. P. Act. The S. Mill was intended to be closed and was in fact closed and, therefore, the question of lay-off under Section 2-N of the U. P. Act does not arise. Similarly it is also not a case of lock-out within the meaning of Section 2-O of the U. P. Act. In both lay-off and lock-out the unit is not closed completely and there is also no intention of the employer to close the concern.18. The learned Counsel drew our attention to the fact that the Tribunal did not consider the effect of certain awards and of some material evidence. We have examined all the materials which according to the counsel, were not taken note of by the Tribunal. We are, however, not impressed by the argument that the Tribunal committed any manifest error of law by any significant omission to consider relevant materials in this case. To cite one or two instances, the appellants drew our attention to Exhibit E-69 which is a letter to the Chief Controller of Imports and Exports with an application dated 4th June, 1962, addressed by the Manager of the Company. We have gone through this document. We find that against Item A, while giving particulars of the applicant under column 1, the name of the applicant, "the Straw Board Manufacturing Company Ltd. (Abrasives Department), Saharanpur" is mentioned. Again, against Item B therein, regarding particulars of the industrial unit, the name of the industry has been given as "Coated Abrasives Industry". Against Item D, under column 1, in the said form viz., Date of establishment of business in India, what is mentioned is "Abrasives Department started production in the year 1940". It is true that the application has been put in for and on behalf of the Company but that, by itself, does not at all assist the appellants and this document would not help in coming to a contrary conclusion that the R. Mill is not an independent unit. Similarly, the learned counsel was referring to misreading of the evidence of the only witness, Raja Ram, on behalf of the workmen, with regard to the inter-transferability of the employees between the two units. Clear evidence has been given by the Director (E. W.1) that the four cases of transfer within the last eleven years were "done with their consent". Besides, as noted earlier, even the standing orders relied upon by the appellants do not provide for transfer from one unit to the other. There is, therefore, no merit in the submission of the appellants.It may not always be possible to immediately shut down in a mill or a concern even though a decision to close the same may at any rate at the time have irrevocably been taken. There is, therefore, nothing wrong in the employer arranging closure of the S. Mill in such a way as to guard against unnecessary inconvenience to both the management as well as to the labour and against possible avoidable wastage or loss to the concern, say, for not being able to complete some processes which have ultimately to be finished. Having decided to close down a unit on account of non-availability of raw materials the supply of which had stopped, it was necessary to go on with the unused stock of raw materials for some time for which a lesser number of workers would be necessary who would then naturally constitute the next batch or batches to go.We do not see anything wrong in law in electing such a step or mode in finally closing a unit or a concern. It may be in the nature of a business to take recourse to such a mode, which cannot ordinarily and per se be consider as unfair or illegitimate. In the circumstances of this case we are unable to hold that the termination of the services of the 98 workmen, on account of closure, as held by us, is unjustified having been the first batch selected to go while others were retained until the final closure of the S. Mill on 28th July, 1967. The counsel for the appellants very strenuously submits that there was no closure on 7th May, 1967, since the Mill had been functioning till 28th July, 1967 and, therefore, contends that the first batch of workmen must be held to have been retrenched on 7th May, 1967 and paid compensation as on retrenchment under Section 6-N of the U. P. Act. We are unable to accede to this submission. The timing of the termination of the 98 workmen which was about three months earlier is not at all relevant in the context of the present case which is one of closure of an independent unit with different processes of work for its end-product. What compensation they will get under the circumstances is of course a different matter to which we will referis now well established that, although the entire Civil Procedure Code is not applicable to industrial adjudication, the principles of res judicata laid down under Section 11 of theCode of Civil Procedure, however, are applicable, wherever possible, for very good reasons. This is so since multiplicity of litigation and agitation and re-agitation of the same dispute at issue between the same employer and his employees will not be conducive to industrial peace which is the principal object of all labour legislation bearing on industrial adjudication. But whether a matter in dispute in a subsequent case had earlier been directly and substantially in issue between the same parties and the same had been heard and finally decided by the Tribunal will be of pertinent consideration and will have to be determined before holding in a particular case that the principles of res judicata are attracted.26. The learned Counsel faced with the problem drew our attention to Rule 18 of the U.P. Industrial Tribunal and Labour Courts Rules of Procedure, 1967, which provides that after the written statements and rejoinders, if any, of both the parties are filed and after examination of parties, if any, the Industrial Tribunal or Labour Court may frame such other issues, if any, as may arise from the pleadings. It is clear that these issues are framed by the Tribunal to assist in adjudication. While it cannot be absolutely ruled out that in a given case such an additional issue may sometimes attract the principle of res judicata, the heart of the matter will always be : What was the substantial question that came up for decision in the earlier proceedings? Some additional issues may be framed in order to assist the Tribunal to better appreciate the case of the parties with reference to the principal issue which has been referred to for adjudication and on the basis of which, for example, as to whether it is an industrial dispute or not, the jurisdiction of the Tribunal will have to be determined. The reasons for the decision in connection with the adjudication of the principal issue cannot be considered as the decision itself to attract the plea of res judicata. The earlier question at issue must be relevant and germane in determining the question of res judicata in the subsequent proceedings. The real character of the controversy between the parties is the determining factor and in complex and manifold human relations between labour and capital giving rise to diverse kinds of ruptures of varying nuances no cast iron rule can be laidthe reference has not been challenged as incompetent either before the Tribunal or in this appeal. Indeed on the explicit terms of the reference, it is not possible to contend that the subject-matter referred to is not an industrial dispute. Apart from that there is no legal bar to refer to the Tribunal to determine the compensation on closure of an undertaking. The scheme of Chapter V-A or even the language of S. 25-FFF, does not necessarily indicate that a claim under the said section can be made only under S. 33-C of the Central Act and that the Industrial Tribunal, in a reference, has no jurisdiction to grant appropriate relief in that behalf, as urged by the learned counsel. The submission of the learned counsel is devoid of substance.35. The claim, however, of the respondent-company before us is that the proviso to Section 25-FFF(1) is attracted in this case and the employees are not entitled to any compensation exceeding their average pay for three months as provided therein. The Tribunal, however, did not address itself to this aspect of the matter as according to it "since it was a legitimate closure the question of compensation could not be determined by it". The matter, therefore, was not at all considered by the Tribunal and the parties were also not allowed to adduce any evidence with regard to the applicability or otherwise of the said proviso before the Tribunal. Even after decision of the first issue in the reference holding that the closure of the S. Mill was legitimate, it was incumbent upon the Tribunal to adjudicate upon the second issue of the reference for granting appropriate relief as a necessary corollary to the result of the first issue. The Tribunal committed a clear error of jurisdiction in not undertaking that enquiry. Once it is found, as in this case, that there is a closure, the question of applicability of sub-section (1) of Section 25-FFF or the proviso thereto will automatically arise for consideration in determining the quantum of compensation. The proviso to Section 25-FFF (1) which limits the quantum of compensation under the conditions specified therein, will have to be carefully considered in order to arrive at a conclusion whether the onus in that behalf to justify a lesser amount of compensation has been discharged by the employer or not. A decision against the employer after considering all aspects of the matter in relation to the said proviso read with the Explanation will lead to granting of a higher compensation under sub-section (1) of Section 25-FFF by reason of the legal fiction contained therein for payment in accordance with Section 25-F of the Central Act. It will now, therefore, be the duty of the Tribunal to afford adequate opportunity to the parties to establish their respective pleas on the point, which appertains to the domain of the second issue in the reference. | 1 | 8,631 | 2,356 | ### Instruction:
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operations, exhaustion of the minerals in the area in which such operations are carried on;shall not be deemed to be closed down on account of unavoidable circumstances beyond the control of the employer within the meaning of the proviso of this sub-section."30. Section 6-N of the U.P. Act is identical with S. 25-F of the Central Act except for some consequential additions in S. 25-F (c) in view of the scheme of the latter Act, which are not material for our purpose. It is, therefore, clear that on the finding that the S. Mill was closed as an independent unit it will fall for consideration whether the employees of the said Mill are entitled to compensation under S. 25-F which is the counterpart of S. 6-N of the U.P. Act by virtue of the provisions of S. 25-FFF(1) of the Central Act. The Tribunal was, therefore, not correct in holding that S. 25-FFF did not apply to the employees concerned. Indeed the management has paid, as already noted, compensation to their employees under S. 25-FFF (1) of the Act.31. Some controversy was raised at the bar with regard to the meaning of the word undertaking in S. 25-FFF. Without going into the question in detail we may only refer to a decision of this Court in Management of Hindustan Steel Ltd. v. Workmen, AIR 1973 SC 878 , where the following observation appears :"The word undertaking as used in Section 25-FFF seems to us to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is not intended to cover the entire industry or business of the employer as was suggested on behalf of the respondents. Even closure or stoppage of a part of the business or activities of the employer would seem to law to be covered by this sub-section."32. We may now deal with another submission of Mr. Chitaley. According to the learned counsel, the question of compensation cannot be gone into by the Tribunal on account of closure of the Mill as found by the Tribunal. We are not impressed by this argument.33. In the course of gradual development of the industrial law the legislature, by engrafting a provision like S. 25-FFF in the Central Act, has sought to wipe out the deleterious distinction in the consequential effect on labour upon retrenchment and upon closure except that in the latter case a restricted compensation under very specified circumstances is provided for under the proviso to S. 25-FFF(1) itself. It is no longer open to the employer to plead that there can be no industrial dispute with regard to the eligibility of workmen to compensation or to its quantum on closure of an establishment although the factum of a real and genuine or legitimate closure, admitted or proved, is outside the pale of industrial adjudication not partaking of or fulfilling the conduct of an industrial dispute within the meaning of S. 2(k) of the Central Act. If, however, the closure is a masquerade, the matter will stand on a different footing. That is not the case before us here.34.Besides, the reference has not been challenged as incompetent either before the Tribunal or in this appeal. Indeed on the explicit terms of the reference, it is not possible to contend that the subject-matter referred to is not an industrial dispute. Apart from that there is no legal bar to refer to the Tribunal to determine the compensation on closure of an undertaking. The scheme of Chapter V-A or even the language of S. 25-FFF, does not necessarily indicate that a claim under the said section can be made only under S. 33-C of the Central Act and that the Industrial Tribunal, in a reference, has no jurisdiction to grant appropriate relief in that behalf, as urged by the learned counsel. The submission of the learned counsel is devoid of substance.35. The claim, however, of the respondent-company before us is that the proviso to Section 25-FFF(1) is attracted in this case and the employees are not entitled to any compensation exceeding their average pay for three months as provided therein. The Tribunal, however, did not address itself to this aspect of the matter as according to it "since it was a legitimate closure the question of compensation could not be determined by it". The matter, therefore, was not at all considered by the Tribunal and the parties were also not allowed to adduce any evidence with regard to the applicability or otherwise of the said proviso before the Tribunal. Even after decision of the first issue in the reference holding that the closure of the S. Mill was legitimate, it was incumbent upon the Tribunal to adjudicate upon the second issue of the reference for granting appropriate relief as a necessary corollary to the result of the first issue. The Tribunal committed a clear error of jurisdiction in not undertaking that enquiry. Once it is found, as in this case, that there is a closure, the question of applicability of sub-section (1) of Section 25-FFF or the proviso thereto will automatically arise for consideration in determining the quantum of compensation. The proviso to Section 25-FFF (1) which limits the quantum of compensation under the conditions specified therein, will have to be carefully considered in order to arrive at a conclusion whether the onus in that behalf to justify a lesser amount of compensation has been discharged by the employer or not. A decision against the employer after considering all aspects of the matter in relation to the said proviso read with the Explanation will lead to granting of a higher compensation under sub-section (1) of Section 25-FFF by reason of the legal fiction contained therein for payment in accordance with Section 25-F of the Central Act. It will now, therefore, be the duty of the Tribunal to afford adequate opportunity to the parties to establish their respective pleas on the point, which appertains to the domain of the second issue in the reference.
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be held to have been retrenched on 7th May, 1967 and paid compensation as on retrenchment under Section 6-N of the U. P. Act. We are unable to accede to this submission. The timing of the termination of the 98 workmen which was about three months earlier is not at all relevant in the context of the present case which is one of closure of an independent unit with different processes of work for its end-product. What compensation they will get under the circumstances is of course a different matter to which we will referis now well established that, although the entire Civil Procedure Code is not applicable to industrial adjudication, the principles of res judicata laid down under Section 11 of theCode of Civil Procedure, however, are applicable, wherever possible, for very good reasons. This is so since multiplicity of litigation and agitation and re-agitation of the same dispute at issue between the same employer and his employees will not be conducive to industrial peace which is the principal object of all labour legislation bearing on industrial adjudication. But whether a matter in dispute in a subsequent case had earlier been directly and substantially in issue between the same parties and the same had been heard and finally decided by the Tribunal will be of pertinent consideration and will have to be determined before holding in a particular case that the principles of res judicata are attracted.26. The learned Counsel faced with the problem drew our attention to Rule 18 of the U.P. Industrial Tribunal and Labour Courts Rules of Procedure, 1967, which provides that after the written statements and rejoinders, if any, of both the parties are filed and after examination of parties, if any, the Industrial Tribunal or Labour Court may frame such other issues, if any, as may arise from the pleadings. It is clear that these issues are framed by the Tribunal to assist in adjudication. While it cannot be absolutely ruled out that in a given case such an additional issue may sometimes attract the principle of res judicata, the heart of the matter will always be : What was the substantial question that came up for decision in the earlier proceedings? Some additional issues may be framed in order to assist the Tribunal to better appreciate the case of the parties with reference to the principal issue which has been referred to for adjudication and on the basis of which, for example, as to whether it is an industrial dispute or not, the jurisdiction of the Tribunal will have to be determined. The reasons for the decision in connection with the adjudication of the principal issue cannot be considered as the decision itself to attract the plea of res judicata. The earlier question at issue must be relevant and germane in determining the question of res judicata in the subsequent proceedings. The real character of the controversy between the parties is the determining factor and in complex and manifold human relations between labour and capital giving rise to diverse kinds of ruptures of varying nuances no cast iron rule can be laidthe reference has not been challenged as incompetent either before the Tribunal or in this appeal. Indeed on the explicit terms of the reference, it is not possible to contend that the subject-matter referred to is not an industrial dispute. Apart from that there is no legal bar to refer to the Tribunal to determine the compensation on closure of an undertaking. The scheme of Chapter V-A or even the language of S. 25-FFF, does not necessarily indicate that a claim under the said section can be made only under S. 33-C of the Central Act and that the Industrial Tribunal, in a reference, has no jurisdiction to grant appropriate relief in that behalf, as urged by the learned counsel. The submission of the learned counsel is devoid of substance.35. The claim, however, of the respondent-company before us is that the proviso to Section 25-FFF(1) is attracted in this case and the employees are not entitled to any compensation exceeding their average pay for three months as provided therein. The Tribunal, however, did not address itself to this aspect of the matter as according to it "since it was a legitimate closure the question of compensation could not be determined by it". The matter, therefore, was not at all considered by the Tribunal and the parties were also not allowed to adduce any evidence with regard to the applicability or otherwise of the said proviso before the Tribunal. Even after decision of the first issue in the reference holding that the closure of the S. Mill was legitimate, it was incumbent upon the Tribunal to adjudicate upon the second issue of the reference for granting appropriate relief as a necessary corollary to the result of the first issue. The Tribunal committed a clear error of jurisdiction in not undertaking that enquiry. Once it is found, as in this case, that there is a closure, the question of applicability of sub-section (1) of Section 25-FFF or the proviso thereto will automatically arise for consideration in determining the quantum of compensation. The proviso to Section 25-FFF (1) which limits the quantum of compensation under the conditions specified therein, will have to be carefully considered in order to arrive at a conclusion whether the onus in that behalf to justify a lesser amount of compensation has been discharged by the employer or not. A decision against the employer after considering all aspects of the matter in relation to the said proviso read with the Explanation will lead to granting of a higher compensation under sub-section (1) of Section 25-FFF by reason of the legal fiction contained therein for payment in accordance with Section 25-F of the Central Act. It will now, therefore, be the duty of the Tribunal to afford adequate opportunity to the parties to establish their respective pleas on the point, which appertains to the domain of the second issue in the reference.
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Girdharilal Amratlal Shodan And Others Vs. State Of Gujarat And Others | land was needed to be acquired at the public expense for a public purpose, viz., for the housing scheme undertaken by Shri. Krishnakunj Government Servants Co-operative Housing Society, Ltd., Ahmedabad with the sanction of the Government. The appellants were thereupon allowed to amend the writ petition, and by the amended writ petition, they prayed for an order quashing the notification under S. 6, dated August 14, 1964 as also the notification under S. 4, dated August 3, 1960. On April 2, 1965, the High Court dismissed the application. The appellant now appeal to this Court on a certificate granted by the High Court. 2. Counsel for the appellants submitted that the power of the State Government to cancel a notification under S. 6 of the Act implied by S. 21of the General Clauses Act, 1897 is subject to the condition that the Government should withdraw from the acquisition as provided for in S. 48 of the Act, by cancelling the notification under S. 6 dated July 18, 1961 the Government must be taken to have withdrawn from the acquisition and cancelled the notification under S. 4, dated August 3, 1960 also and consequently the Government could not issue the notification under S. 6, dated August 14, 1964 without issuing a fresh notification under S. 4 and making a fresh enquiry under S. 5A Counsel for the respondents disputed the correctness of this submission. 3. It is to be noticed that the notification under S. 6, dated July 18, 1961 stated that the land was required for a public purpose at the expense of Shri Krishnakunj Government Servants. Co-operative Housing Society Ltd. The Government had no power to issue this notification. Having regard to the proviso to S. 6 of the Act, a declaration for acquisition of the land for a public purpose could only be made if the compensation to be awarded for it was to be paid wholly or partly out of public revenues or some fund controlled or managed by a local authority. The Government had no power to issue a notification for acquisition for a public purpose where the compensation was to be paid entirely by a company. The notification dated July 18, 1961 was, therefore, invalid and of no effect, see Shyam Behari v. State of Madhya Pradesh AIR 1965 SC 427 . The appellants filed the writ petition challenging the aforesaid notification on this ground. The challenge was justified and the notification was liable to be quashed by the Court. The State Government realised that the notification was invalid, and without waiting for an order of Court, cancelled the notification on April 28, 1964. The cancellation was in recognition of the invalidity of the notification. The Government had no intention of withdrawing from the acquisition. Soon after the cancellation the Government issued a fresh notification under S. 6. Where, as in this case, the notification under S. 6 is incompetent and invalid, the Government may treat it as ineffective and issue a fresh notification under S. 6. This is what, in substance, the Government did in this case. The cancellation on April 28, 1964 was no more than a recognition of the invalidity of the earlier notification. There is nothing in S. 48, which precluded the Government from treating the earlier invalid notification as ineffective and issuing in its place an effective notification under S. 6.Where the notification under S. 6 is lawful and valid, a question may well arise whether the Government can cancel it without withdrawing from the acquisition as provided for under S. 48. But no such question arises in this case, and we express no opinion on it. 4. Counsel for the appellants next submitted that on issuing the notification dated July 18, 1961 the power of the State Government to issue a notification under S. 6 was exhausted and the Government could not issue a fresh notification under S, 6. There is no substance in this contention. The notification dated July 18, 1961 was invalid. By the issue of this notification, the Government had no effectively exercised its power under S. 6 In the circumstances, the Government could well issue the fresh notification under S. 6, dated August 14, 1964. 5. Counsel for the appellants next submitted that the notification under S. 6 must be issued without unreasonable delay after the issue of the notification under S. 4 and consequently, the notification, dated August 14, 1964 is invalid, as it was issued after unreasonable delay. This contention was not raised in the High Court. On September 25, 1961, soon after the filing of the writ petition, the appellants obtained an injunction restraining the Government from proceeding with the acquisition. We are informed that this injunction continued for some time and was modified at a later date. Until the modification of the Injunction the Government could not take further steps in the acquisition. The question whether there was unreasonable delay in the issuing of the notification dated August 14, 1964 was not put in issue and was not investigated in the Court below. We, therefore, indicated in the course of the argument that the appellants cannot be allowed to urge this point for the first time in this Court. We express no opinion one way or the other whether the Government is bound to issue the notification under S. 6 without reasonable delay after the issue of the notification under S. 4. 6. In the High Court, the appellants contended that the public purpose set out in the notification dated August 14, 1964 was different from the public purpose set in the notification dated July 18, 1961 and the Government could not issue the notification dated August 14, 1964 without issuing a fresh notification under S. 4. The High Court repelled this contention. It found that the public purpose set out in the notification dated August 14, 1964 was identical with the public purpose set out in the notification dated July 18, 1961. This finding is no longer challenged before us. | 0[ds]3. It is to be noticed that the notification under S. 6, dated July 18, 1961 stated that the land was required for a public purpose at the expense of Shri Krishnakunj Government Servants. Co-operative Housing Society Ltd. The Government had no power to issue this notification. Having regard to the proviso to S. 6 of the Act, a declaration for acquisition of the land for a public purpose could only be made if the compensation to be awarded for it was to be paid wholly or partly out of public revenues or some fund controlled or managed by a local authority. The Government had no power to issue a notification for acquisition for a public purpose where the compensation was to be paid entirely by a company. The notification dated July 18, 1961 was, therefore, invalid and of no effect,The appellants filed the writ petition challenging the aforesaid notification on this ground. The challenge was justified and the notification was liable to be quashed by the Court. The State Government realised that the notification was invalid, and without waiting for an order of Court, cancelled the notification on April 28, 1964. The cancellation was in recognition of the invalidity of the notification. The Government had no intention of withdrawing from the acquisition. Soon after the cancellation the Government issued a fresh notification under S. 6. Where, as in this case, the notification under S. 6 is incompetent and invalid, the Government may treat it as ineffective and issue a fresh notification under S. 6. This is what, in substance, the Government did in this case. The cancellation on April 28, 1964 was no more than a recognition of the invalidity of the earlier notification. There is nothing in S. 48, which precluded the Government from treating the earlier invalid notification as ineffective and issuing in its place an effective notification under S. 6.Where the notification under S. 6 is lawful and valid, a question may well arise whether the Government can cancel it without withdrawing from the acquisition as provided for under S. 48. But no such question arises in this case, and we express no opinion on itThe notification dated July 18, 1961 was invalid. By the issue of this notification, the Government had no effectively exercised its power under S. 6 In the circumstances, the Government could well issue the fresh notification under S. 6, dated August 14, 1964We, therefore, indicated in the course of the argument that the appellants cannot be allowed to urge this point for the first time in this Court. We express no opinion one way or the other whether the Government is bound to issue the notification under S. 6 without reasonable delay after the issue of the notification under S. 46. In the High Court, the appellants contended that the public purpose set out in the notification dated August 14, 1964 was different from the public purpose set in the notification dated July 18, 1961 and the Government could not issue the notification dated August 14, 1964 without issuing a fresh notification under S. 4. The High Court repelled this contention. It found that the public purpose set out in the notification dated August 14, 1964 was identical with the public purpose set out in the notification dated July 18, 1961. This finding is no longer challenged before usThere is no substance in this contentionThis contention was not raised in the High Court. On September 25, 1961, soon after the filing of the writ petition, the appellants obtained an injunction restraining the Government from proceeding with the acquisition. We are informed that this injunction continued for some time and was modified at a later date. Until the modification of the Injunction the Government could not take further steps in the acquisition.The question whether there was unreasonable delay in the issuing of the notification dated August 14, 1964 was not put in issue and was not investigated in the Court | 0 | 1,387 | 725 | ### Instruction:
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land was needed to be acquired at the public expense for a public purpose, viz., for the housing scheme undertaken by Shri. Krishnakunj Government Servants Co-operative Housing Society, Ltd., Ahmedabad with the sanction of the Government. The appellants were thereupon allowed to amend the writ petition, and by the amended writ petition, they prayed for an order quashing the notification under S. 6, dated August 14, 1964 as also the notification under S. 4, dated August 3, 1960. On April 2, 1965, the High Court dismissed the application. The appellant now appeal to this Court on a certificate granted by the High Court. 2. Counsel for the appellants submitted that the power of the State Government to cancel a notification under S. 6 of the Act implied by S. 21of the General Clauses Act, 1897 is subject to the condition that the Government should withdraw from the acquisition as provided for in S. 48 of the Act, by cancelling the notification under S. 6 dated July 18, 1961 the Government must be taken to have withdrawn from the acquisition and cancelled the notification under S. 4, dated August 3, 1960 also and consequently the Government could not issue the notification under S. 6, dated August 14, 1964 without issuing a fresh notification under S. 4 and making a fresh enquiry under S. 5A Counsel for the respondents disputed the correctness of this submission. 3. It is to be noticed that the notification under S. 6, dated July 18, 1961 stated that the land was required for a public purpose at the expense of Shri Krishnakunj Government Servants. Co-operative Housing Society Ltd. The Government had no power to issue this notification. Having regard to the proviso to S. 6 of the Act, a declaration for acquisition of the land for a public purpose could only be made if the compensation to be awarded for it was to be paid wholly or partly out of public revenues or some fund controlled or managed by a local authority. The Government had no power to issue a notification for acquisition for a public purpose where the compensation was to be paid entirely by a company. The notification dated July 18, 1961 was, therefore, invalid and of no effect, see Shyam Behari v. State of Madhya Pradesh AIR 1965 SC 427 . The appellants filed the writ petition challenging the aforesaid notification on this ground. The challenge was justified and the notification was liable to be quashed by the Court. The State Government realised that the notification was invalid, and without waiting for an order of Court, cancelled the notification on April 28, 1964. The cancellation was in recognition of the invalidity of the notification. The Government had no intention of withdrawing from the acquisition. Soon after the cancellation the Government issued a fresh notification under S. 6. Where, as in this case, the notification under S. 6 is incompetent and invalid, the Government may treat it as ineffective and issue a fresh notification under S. 6. This is what, in substance, the Government did in this case. The cancellation on April 28, 1964 was no more than a recognition of the invalidity of the earlier notification. There is nothing in S. 48, which precluded the Government from treating the earlier invalid notification as ineffective and issuing in its place an effective notification under S. 6.Where the notification under S. 6 is lawful and valid, a question may well arise whether the Government can cancel it without withdrawing from the acquisition as provided for under S. 48. But no such question arises in this case, and we express no opinion on it. 4. Counsel for the appellants next submitted that on issuing the notification dated July 18, 1961 the power of the State Government to issue a notification under S. 6 was exhausted and the Government could not issue a fresh notification under S, 6. There is no substance in this contention. The notification dated July 18, 1961 was invalid. By the issue of this notification, the Government had no effectively exercised its power under S. 6 In the circumstances, the Government could well issue the fresh notification under S. 6, dated August 14, 1964. 5. Counsel for the appellants next submitted that the notification under S. 6 must be issued without unreasonable delay after the issue of the notification under S. 4 and consequently, the notification, dated August 14, 1964 is invalid, as it was issued after unreasonable delay. This contention was not raised in the High Court. On September 25, 1961, soon after the filing of the writ petition, the appellants obtained an injunction restraining the Government from proceeding with the acquisition. We are informed that this injunction continued for some time and was modified at a later date. Until the modification of the Injunction the Government could not take further steps in the acquisition. The question whether there was unreasonable delay in the issuing of the notification dated August 14, 1964 was not put in issue and was not investigated in the Court below. We, therefore, indicated in the course of the argument that the appellants cannot be allowed to urge this point for the first time in this Court. We express no opinion one way or the other whether the Government is bound to issue the notification under S. 6 without reasonable delay after the issue of the notification under S. 4. 6. In the High Court, the appellants contended that the public purpose set out in the notification dated August 14, 1964 was different from the public purpose set in the notification dated July 18, 1961 and the Government could not issue the notification dated August 14, 1964 without issuing a fresh notification under S. 4. The High Court repelled this contention. It found that the public purpose set out in the notification dated August 14, 1964 was identical with the public purpose set out in the notification dated July 18, 1961. This finding is no longer challenged before us.
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3. It is to be noticed that the notification under S. 6, dated July 18, 1961 stated that the land was required for a public purpose at the expense of Shri Krishnakunj Government Servants. Co-operative Housing Society Ltd. The Government had no power to issue this notification. Having regard to the proviso to S. 6 of the Act, a declaration for acquisition of the land for a public purpose could only be made if the compensation to be awarded for it was to be paid wholly or partly out of public revenues or some fund controlled or managed by a local authority. The Government had no power to issue a notification for acquisition for a public purpose where the compensation was to be paid entirely by a company. The notification dated July 18, 1961 was, therefore, invalid and of no effect,The appellants filed the writ petition challenging the aforesaid notification on this ground. The challenge was justified and the notification was liable to be quashed by the Court. The State Government realised that the notification was invalid, and without waiting for an order of Court, cancelled the notification on April 28, 1964. The cancellation was in recognition of the invalidity of the notification. The Government had no intention of withdrawing from the acquisition. Soon after the cancellation the Government issued a fresh notification under S. 6. Where, as in this case, the notification under S. 6 is incompetent and invalid, the Government may treat it as ineffective and issue a fresh notification under S. 6. This is what, in substance, the Government did in this case. The cancellation on April 28, 1964 was no more than a recognition of the invalidity of the earlier notification. There is nothing in S. 48, which precluded the Government from treating the earlier invalid notification as ineffective and issuing in its place an effective notification under S. 6.Where the notification under S. 6 is lawful and valid, a question may well arise whether the Government can cancel it without withdrawing from the acquisition as provided for under S. 48. But no such question arises in this case, and we express no opinion on itThe notification dated July 18, 1961 was invalid. By the issue of this notification, the Government had no effectively exercised its power under S. 6 In the circumstances, the Government could well issue the fresh notification under S. 6, dated August 14, 1964We, therefore, indicated in the course of the argument that the appellants cannot be allowed to urge this point for the first time in this Court. We express no opinion one way or the other whether the Government is bound to issue the notification under S. 6 without reasonable delay after the issue of the notification under S. 46. In the High Court, the appellants contended that the public purpose set out in the notification dated August 14, 1964 was different from the public purpose set in the notification dated July 18, 1961 and the Government could not issue the notification dated August 14, 1964 without issuing a fresh notification under S. 4. The High Court repelled this contention. It found that the public purpose set out in the notification dated August 14, 1964 was identical with the public purpose set out in the notification dated July 18, 1961. This finding is no longer challenged before usThere is no substance in this contentionThis contention was not raised in the High Court. On September 25, 1961, soon after the filing of the writ petition, the appellants obtained an injunction restraining the Government from proceeding with the acquisition. We are informed that this injunction continued for some time and was modified at a later date. Until the modification of the Injunction the Government could not take further steps in the acquisition.The question whether there was unreasonable delay in the issuing of the notification dated August 14, 1964 was not put in issue and was not investigated in the Court
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M/S Patel Enginnering Ltd Vs. Union Of India | loss to NHAI.” 20. The learned counsel for the petitioner argued that Clause 4 of the bid document stipulates blacklisting to be one of the actions that can be taken against a bidder or contractor, if the 2nd respondent comes to the conclusion that such a person is guilty of any one of the unacceptable practices, referred to earlier. Imposing the same penalty on a person, who is not guilty of any one of the unacceptable practices, though such a person is guilty of dereliction of some legal obligation, would amount to imposition of a punishment, which is disproportionate to the dereliction. In support of the submission, the learned counsel relied upon the Judgment of this Court in Teri Oat Estates (P) Ltd. v. U.T.Chandigarh and others, (2004) 2 SCC 130. 21. It was a case, where allotment of a piece of land, made under the Capital of Punjab (Development and Regulation) Act, 1952 and the Rules made thereunder, was cancelled on the ground that the allottee did not make the payment of the requisite instalments agreed upon. One of the submissions made by the allottee (appellant before this Court) was that the action of the Chandigarh administration, seeking to evict the appellant and resume the land, lacked proportionality in the background of the specific facts of that case. This Court explained the doctrine of proportionality at paras 45 and 46, as follows: “45. The said doctrine originated as far back as in the 19th century in Russia and was later adopted by Germany, France and other European countries as has been noticed by this Court in Om Kumar v. Union of India.46. By proportionality, it is meant that the question whether while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve”. 22. Tested in the light of the abovementioned principle, we are required to examine; (1) the purpose sought to be achieved by the impugned decision of the 2nd respondent to blacklist the petitioner; and (2) the adverse effects, the impugned action may have on the rights of the petitioner. 23. From the impugned order it appears that the 2nd respondent came to the conclusion that; (1) the petitioner is not reliable and trustworthy in the context of a commercial transaction; (2) by virtue of the dereliction of the petitioner, the 2nd respondent suffered a huge financial loss; and (3) the dereliction on the part of the petitioner warrants exemplary action to “curb any practice of ‘pooling’ and ‘mala fide’ in future”. 24. We do not find any illegality or irrationality in the conclusion reached by the 2nd respondent that the petitioner is not (commercially) reliable and trustworthy in the light of its conduct in the context of the transaction in question. We cannot find fault with the 2nd respondent’s conclusion because the petitioner chose to go back on its offer of paying a premium of Rs.190.53 crores per annum, after realizing that the next bidder quoted a much lower amount. Whether the decision of the petitioner is bona fide or mala fide, requires a further probe into the matter, but, the explanation offered by the petitioner does not appear to be a rational explanation. The 2nd respondent in the impugned order, while rejecting the explanation offered by the petitioner, recorded as follows: “Further the fact remains that clarification / amendments communicated by NHAI were ‘minor’ and cannot be attributed as a cause for occurrence of an ‘error’ of ‘major’ nature and magnitude. With project facilities clearly spelt out in the RFP document, the project cost gets frozen well in advance and similarly traffic assessment & projections, which largely impact the financial assessment, are also not expected to be left for last few days of bid submission. Therefore stating that an ‘error’ of this nature and magnitude occurred is neither correct nor justified……… “(Emphasis supplied) 25. We cannot say the reasoning adopted by the 2nd respondent either irrational or perverse. The dereliction, such as the one indulged in by the petitioner, if not handled firmly, is likely to result in recurrence of such activity not only on the part of the petitioner, but others also, who deal with public bodies, such as the 2nd respondent giving scope for unwholesome practices. No doubt, the fact that the petitioner is blacklisted (for some period) by the 2nd respondent is likely to have some adverse effect on its business prospects, but, as pointed out by this Court in Jagdish Mandal v. State of Orissa and others, (2007) 14 SCC 517: “Power of judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.” The prejudice to the commercial interests of the petitioner, as pointed out by the High Court, is brought about by his own making. Therefore, it cannot be said that the impugned decision of R-2 lacks proportionality.26. Coming to the submission that R-2 ought to have given an oral hearing before the impugned order was taken, we agree with the conclusion of the High Court that there is no inviolable rule that a personal hearing of the affected party must precede every decision of the State. This Court in Union of Indian and another v. Jesus Sales Corporation, (1996) 4 SCC 69 , held so even in the context of a quasi-judicial decision. We cannot, therefore, take a different opinion in the context of a commercial decision of State. The petitioner was given a reasonable opportunity to explain its case before the impugned decision was taken. | 0[ds]24. We do not find any illegality or irrationality in the conclusion reached by the 2nd respondent that the petitioner is not (commercially) reliable and trustworthy in the light of its conduct in the context of the transaction in question. We cannot find fault with the 2ndconclusion because the petitioner chose to go back on its offer of paying a premium of Rs.190.53 crores per annum, after realizing that the next bidder quoted a much lower amount. Whether the decision of the petitioner is bona fide or mala fide, requires a further probe into the matter, but, the explanation offered by the petitioner does not appear to be a rational explanation. The 2nd respondent in the impugned order, while rejecting the explanation offered by the petitioner, recorded asthe fact remains that clarification / amendments communicated by NHAI wereand cannot be attributed as a cause for occurrence of annature and magnitude. With project facilities clearly spelt out in the RFP document, the project cost gets frozen well in advance and similarly traffic assessment & projections, which largely impact the financial assessment, are also not expected to be left for last few days of bid submission. Therefore stating that anof this nature and magnitude occurred is neither correct nor justified………. We cannot say the reasoning adopted by the 2nd respondent either irrational or perverse. The dereliction, such as the one indulged in by the petitioner, if not handled firmly, is likely to result in recurrence of such activity not only on the part of the petitioner, but others also, who deal with public bodies, such as the 2nd respondent giving scope for unwholesome practices. No doubt, the fact that the petitioner is blacklisted (for some period) by the 2nd respondent is likely to have some adverse effect on its business prospects, but, as pointed out by this Court in Jagdish Mandal v. State of Orissa and others, (2007) 14 SCCof judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractualprejudice to the commercial interests of the petitioner, as pointed out by the High Court, is brought about by his own making. Therefore, it cannot be said that the impugned decision oflacks proportionality.26. Coming to the submission thatought to have given an oral hearing before the impugned order was taken, we agree with the conclusion of the High Court that there is no inviolable rule that a personal hearing of the affected party must precede every decision of the State. This Court in Union of Indian and another v. Jesus Sales Corporation, (1996) 4 SCC 69 , held so even in the context of adecision. We cannot, therefore, take a different opinion in the context of a commercial decision of State. The petitioner was given a reasonable opportunity to explain its case before the impugned decision was taken. | 0 | 5,086 | 534 | ### 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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loss to NHAI.” 20. The learned counsel for the petitioner argued that Clause 4 of the bid document stipulates blacklisting to be one of the actions that can be taken against a bidder or contractor, if the 2nd respondent comes to the conclusion that such a person is guilty of any one of the unacceptable practices, referred to earlier. Imposing the same penalty on a person, who is not guilty of any one of the unacceptable practices, though such a person is guilty of dereliction of some legal obligation, would amount to imposition of a punishment, which is disproportionate to the dereliction. In support of the submission, the learned counsel relied upon the Judgment of this Court in Teri Oat Estates (P) Ltd. v. U.T.Chandigarh and others, (2004) 2 SCC 130. 21. It was a case, where allotment of a piece of land, made under the Capital of Punjab (Development and Regulation) Act, 1952 and the Rules made thereunder, was cancelled on the ground that the allottee did not make the payment of the requisite instalments agreed upon. One of the submissions made by the allottee (appellant before this Court) was that the action of the Chandigarh administration, seeking to evict the appellant and resume the land, lacked proportionality in the background of the specific facts of that case. This Court explained the doctrine of proportionality at paras 45 and 46, as follows: “45. The said doctrine originated as far back as in the 19th century in Russia and was later adopted by Germany, France and other European countries as has been noticed by this Court in Om Kumar v. Union of India.46. By proportionality, it is meant that the question whether while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve”. 22. Tested in the light of the abovementioned principle, we are required to examine; (1) the purpose sought to be achieved by the impugned decision of the 2nd respondent to blacklist the petitioner; and (2) the adverse effects, the impugned action may have on the rights of the petitioner. 23. From the impugned order it appears that the 2nd respondent came to the conclusion that; (1) the petitioner is not reliable and trustworthy in the context of a commercial transaction; (2) by virtue of the dereliction of the petitioner, the 2nd respondent suffered a huge financial loss; and (3) the dereliction on the part of the petitioner warrants exemplary action to “curb any practice of ‘pooling’ and ‘mala fide’ in future”. 24. We do not find any illegality or irrationality in the conclusion reached by the 2nd respondent that the petitioner is not (commercially) reliable and trustworthy in the light of its conduct in the context of the transaction in question. We cannot find fault with the 2nd respondent’s conclusion because the petitioner chose to go back on its offer of paying a premium of Rs.190.53 crores per annum, after realizing that the next bidder quoted a much lower amount. Whether the decision of the petitioner is bona fide or mala fide, requires a further probe into the matter, but, the explanation offered by the petitioner does not appear to be a rational explanation. The 2nd respondent in the impugned order, while rejecting the explanation offered by the petitioner, recorded as follows: “Further the fact remains that clarification / amendments communicated by NHAI were ‘minor’ and cannot be attributed as a cause for occurrence of an ‘error’ of ‘major’ nature and magnitude. With project facilities clearly spelt out in the RFP document, the project cost gets frozen well in advance and similarly traffic assessment & projections, which largely impact the financial assessment, are also not expected to be left for last few days of bid submission. Therefore stating that an ‘error’ of this nature and magnitude occurred is neither correct nor justified……… “(Emphasis supplied) 25. We cannot say the reasoning adopted by the 2nd respondent either irrational or perverse. The dereliction, such as the one indulged in by the petitioner, if not handled firmly, is likely to result in recurrence of such activity not only on the part of the petitioner, but others also, who deal with public bodies, such as the 2nd respondent giving scope for unwholesome practices. No doubt, the fact that the petitioner is blacklisted (for some period) by the 2nd respondent is likely to have some adverse effect on its business prospects, but, as pointed out by this Court in Jagdish Mandal v. State of Orissa and others, (2007) 14 SCC 517: “Power of judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.” The prejudice to the commercial interests of the petitioner, as pointed out by the High Court, is brought about by his own making. Therefore, it cannot be said that the impugned decision of R-2 lacks proportionality.26. Coming to the submission that R-2 ought to have given an oral hearing before the impugned order was taken, we agree with the conclusion of the High Court that there is no inviolable rule that a personal hearing of the affected party must precede every decision of the State. This Court in Union of Indian and another v. Jesus Sales Corporation, (1996) 4 SCC 69 , held so even in the context of a quasi-judicial decision. We cannot, therefore, take a different opinion in the context of a commercial decision of State. The petitioner was given a reasonable opportunity to explain its case before the impugned decision was taken.
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24. We do not find any illegality or irrationality in the conclusion reached by the 2nd respondent that the petitioner is not (commercially) reliable and trustworthy in the light of its conduct in the context of the transaction in question. We cannot find fault with the 2ndconclusion because the petitioner chose to go back on its offer of paying a premium of Rs.190.53 crores per annum, after realizing that the next bidder quoted a much lower amount. Whether the decision of the petitioner is bona fide or mala fide, requires a further probe into the matter, but, the explanation offered by the petitioner does not appear to be a rational explanation. The 2nd respondent in the impugned order, while rejecting the explanation offered by the petitioner, recorded asthe fact remains that clarification / amendments communicated by NHAI wereand cannot be attributed as a cause for occurrence of annature and magnitude. With project facilities clearly spelt out in the RFP document, the project cost gets frozen well in advance and similarly traffic assessment & projections, which largely impact the financial assessment, are also not expected to be left for last few days of bid submission. Therefore stating that anof this nature and magnitude occurred is neither correct nor justified………. We cannot say the reasoning adopted by the 2nd respondent either irrational or perverse. The dereliction, such as the one indulged in by the petitioner, if not handled firmly, is likely to result in recurrence of such activity not only on the part of the petitioner, but others also, who deal with public bodies, such as the 2nd respondent giving scope for unwholesome practices. No doubt, the fact that the petitioner is blacklisted (for some period) by the 2nd respondent is likely to have some adverse effect on its business prospects, but, as pointed out by this Court in Jagdish Mandal v. State of Orissa and others, (2007) 14 SCCof judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractualprejudice to the commercial interests of the petitioner, as pointed out by the High Court, is brought about by his own making. Therefore, it cannot be said that the impugned decision oflacks proportionality.26. Coming to the submission thatought to have given an oral hearing before the impugned order was taken, we agree with the conclusion of the High Court that there is no inviolable rule that a personal hearing of the affected party must precede every decision of the State. This Court in Union of Indian and another v. Jesus Sales Corporation, (1996) 4 SCC 69 , held so even in the context of adecision. We cannot, therefore, take a different opinion in the context of a commercial decision of State. The petitioner was given a reasonable opportunity to explain its case before the impugned decision was taken.
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Sanwat Khan & Another Vs. State of Rajasthan | be stolen property, but it was inconclusive on the question of their having committed the murders. In our judgment, this contention has force.The unexplained possession of stolen property is the only circumstance appearing in the evidence against the accused charged with murder and theft, and they could not be convicted of murder unless their possession of the property could not no. be explained on any other hypothesis except that of murder.In the absence of any evidence whatsoever of the circumstances in which the murders or the robbery took place, it could easily be envisaged that the accused at some time or other seeing the Mahant and Ganpatia murdered, removed the articles produced by them from the temple or received them from the person or persons who had committed the murder.The prosecution led evidence to prove that Mangu Khan, the father of these two persons, was planning to murder the Mahant since a long time. Madari P. W. 7, who is an ex-convict, deposed that he was also being approached to join in the conspiracy to murder the Mahant. It is not improbable that any of these two or somebody else might have murdered the Mahant and some of the stolen property came into the possession of these two brothers.Be that as it may, in the absence of any direct or circumstantial evidence whatsoever, from the solitary circumstance of the unexplained recovery of the two articles from the houses of the two appellants the only inference that can be raised in view of illustration A to S. 114 of the Evidence Act is that they are either receivers of stolen property or were the persons who committed the theft, but it does not necessarily indicate that the theft and the murders took place at one and the same time.The accused produced these articles about a fortnight after the theft and the maximum that can be said against them is that they received these goods knowing them to be stolen or that they themselves stole them; but ion the absence of any other evidence, it is not possible to hold that they are guilty of murder as well.6. The learned counsel for the State in support of the view taken by the High Court placed reliance on a decision of the Madras High Court in - Queen-Empress v. Sami, 13 Mad 426 (A). The head-note of the report says that"Recent and unexplained possession of stolen property which would be presumptive evidence against the prisoners on the charge or robbery would similarly be evidence against them on the charge of murder."This head note, however, does not accurately represent the decision given by the learned Judges. In the particular circumstances of that case it was observed that in cases in which murder and robbery and shown to form parts of one transaction, recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder.Here, there is no. evidence, direct or circumstantial, that the robbery and murder formed parts of one transaction. It is not even known at what time of the night these events took place. It was only late next morning that it was discovered that the Mahant and Ganpatia had been murdered and looted. In our judgment, Beaumont, C. J., and Sen J. in - Bhikha Gober v Emperor, AIR 1943 Bom 458 (B) rightly held that the mere fact that an accused produced shortly after the murder ornaments which were on the murdered person is not enough to justify the inference that the accused must have committed the murder.There must be some further material to connect to accused with the murder in order to hold him guilty of that offence. Our attention was drawn to a number of decisions which have been summed up in a Bench decision of the Allahabad High Court in State v. Shankar Prasad AIR 1952 All 776 (C), in some of which a presumption was drawn of guilt from the circumstance of possession of stolen articles soon after a murder. We have examined these cases and it appears to us that each one of these decisions was given on the evidence and circumstances established in that particular case and no. general proposition of law can be deduced from them.In our judgment no. hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.7. For the reasons given above we cannot maintain the conviction of the appellants under S. 302, I.P.C. and we, therefore, acquit them of that offence. It is, however, clear that both the appellants either took part in the theft or received the stolen property with the knowledge that it had been stolen. The appellants were charged with having committed theft in a building armed with certain weapons. They can thus be convicted for having committed theft in a dwelling house.8. We, therefore, hold them guilty of the offence under S. 380, I.P.C. Learned counsel appearing for them urged that in view of the fact that they have been undergoing the sentence of transportation for life for the last three years, the appropriate sentence in their case should be the one they have already undergone. In our opinion, the contention that the punishment already suffered by the accused will meet the ends of justice in this case has force, and we accordingly sentence them under S. 380 I.P.C. to three years rigorous imprisonment and as they have already undergone it, we direct their release. The appeal is allowed to the extent above indicated. | 1[ds]In our judgment, this contention has force.The unexplained possession of stolen property is the only circumstance appearing in the evidence against the accused charged with murder and theft, and they could not be convicted of murder unless their possession of the property could not no. be explained on any other hypothesis except that of murder.In the absence of any evidence whatsoever of the circumstances in which the murders or the robbery took place, it could easily be envisaged that the accused at some time or other seeing the Mahant and Ganpatia murdered, removed the articles produced by them from the temple or received them from the person or persons who had committed the murder.The prosecution led evidence to prove that Mangu Khan, the father of these two persons, was planning to murder the Mahant since a long time. Madari P. W. 7, who is andeposed that he was also being approached to join in the conspiracy to murder the Mahant. It is not improbable that any of these two or somebody else might have murdered the Mahant and some of the stolen property came into the possession of these two brothers.Be that as it may, in the absence of any direct or circumstantial evidence whatsoever, from the solitary circumstance of the unexplained recovery of the two articles from the houses of the two appellants the only inference that can be raised in view of illustration A to S. 114 of the Evidence Act is that they are either receivers of stolen property or were the persons who committed the theft, but it does not necessarily indicate that the theft and the murders took place at one and the same time.The accused produced these articles about a fortnight after the theft and the maximum that can be said against them is that they received these goods knowing them to be stolen or that they themselves stole them; but ion the absence of any other evidence, it is not possible to hold that they are guilty of murder ashead note, however, does not accurately represent the decision given by the learned Judges. In the particular circumstances of that case it was observed that in cases in which murder and robbery and shown to form parts of one transaction, recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder.Here, there is no. evidence, direct or circumstantial, that the robbery and murder formed parts of one transaction. It is not even known at what time of the night these events took place. It was only late next morning that it was discovered that the Mahant and Ganpatia had been murdered and looted. In our judgment, Beaumont, C. J., and Sen J. inBhikha Gober v Emperor, AIR 1943 Bom 458 (B) rightly held that the mere fact that an accused produced shortly after the murder ornaments which were on the murdered person is not enough to justify the inference that the accused must have committed the murder.There must be some further material to connect to accused with the murder in order to hold him guilty of thathave examined these cases and it appears to us that each one of these decisions was given on the evidence and circumstances established in that particular case and no. general proposition of law can be deduced from them.In our judgment no. hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.7. For the reasons given above we cannot maintain the conviction of the appellants under S. 302, I.P.C. and we, therefore, acquit them of that offence. It is, however, clear that both the appellants either took part in the theft or received the stolen property with the knowledge that it had been stolen. The appellants were charged with having committed theft in a building armed with certain weapons. They can thus be convicted for having committed theft in a dwelling house.8. We, therefore, hold them guilty of the offence under S. 380, I.P.C. Learned counsel appearing for them urged that in view of the fact that they have been undergoing the sentence of transportation for life for the last three years, the appropriate sentence in their case should be the one they have already undergone. In our opinion, the contention that the punishment already suffered by the accused will meet the ends of justice in this case has force, and we accordingly sentence them under S. 380 I.P.C. to three years rigorous imprisonment and as they have already undergone it, we direct their release. The appeal is allowed to the extent above indicated. | 1 | 1,802 | 915 | ### 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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be stolen property, but it was inconclusive on the question of their having committed the murders. In our judgment, this contention has force.The unexplained possession of stolen property is the only circumstance appearing in the evidence against the accused charged with murder and theft, and they could not be convicted of murder unless their possession of the property could not no. be explained on any other hypothesis except that of murder.In the absence of any evidence whatsoever of the circumstances in which the murders or the robbery took place, it could easily be envisaged that the accused at some time or other seeing the Mahant and Ganpatia murdered, removed the articles produced by them from the temple or received them from the person or persons who had committed the murder.The prosecution led evidence to prove that Mangu Khan, the father of these two persons, was planning to murder the Mahant since a long time. Madari P. W. 7, who is an ex-convict, deposed that he was also being approached to join in the conspiracy to murder the Mahant. It is not improbable that any of these two or somebody else might have murdered the Mahant and some of the stolen property came into the possession of these two brothers.Be that as it may, in the absence of any direct or circumstantial evidence whatsoever, from the solitary circumstance of the unexplained recovery of the two articles from the houses of the two appellants the only inference that can be raised in view of illustration A to S. 114 of the Evidence Act is that they are either receivers of stolen property or were the persons who committed the theft, but it does not necessarily indicate that the theft and the murders took place at one and the same time.The accused produced these articles about a fortnight after the theft and the maximum that can be said against them is that they received these goods knowing them to be stolen or that they themselves stole them; but ion the absence of any other evidence, it is not possible to hold that they are guilty of murder as well.6. The learned counsel for the State in support of the view taken by the High Court placed reliance on a decision of the Madras High Court in - Queen-Empress v. Sami, 13 Mad 426 (A). The head-note of the report says that"Recent and unexplained possession of stolen property which would be presumptive evidence against the prisoners on the charge or robbery would similarly be evidence against them on the charge of murder."This head note, however, does not accurately represent the decision given by the learned Judges. In the particular circumstances of that case it was observed that in cases in which murder and robbery and shown to form parts of one transaction, recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder.Here, there is no. evidence, direct or circumstantial, that the robbery and murder formed parts of one transaction. It is not even known at what time of the night these events took place. It was only late next morning that it was discovered that the Mahant and Ganpatia had been murdered and looted. In our judgment, Beaumont, C. J., and Sen J. in - Bhikha Gober v Emperor, AIR 1943 Bom 458 (B) rightly held that the mere fact that an accused produced shortly after the murder ornaments which were on the murdered person is not enough to justify the inference that the accused must have committed the murder.There must be some further material to connect to accused with the murder in order to hold him guilty of that offence. Our attention was drawn to a number of decisions which have been summed up in a Bench decision of the Allahabad High Court in State v. Shankar Prasad AIR 1952 All 776 (C), in some of which a presumption was drawn of guilt from the circumstance of possession of stolen articles soon after a murder. We have examined these cases and it appears to us that each one of these decisions was given on the evidence and circumstances established in that particular case and no. general proposition of law can be deduced from them.In our judgment no. hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.7. For the reasons given above we cannot maintain the conviction of the appellants under S. 302, I.P.C. and we, therefore, acquit them of that offence. It is, however, clear that both the appellants either took part in the theft or received the stolen property with the knowledge that it had been stolen. The appellants were charged with having committed theft in a building armed with certain weapons. They can thus be convicted for having committed theft in a dwelling house.8. We, therefore, hold them guilty of the offence under S. 380, I.P.C. Learned counsel appearing for them urged that in view of the fact that they have been undergoing the sentence of transportation for life for the last three years, the appropriate sentence in their case should be the one they have already undergone. In our opinion, the contention that the punishment already suffered by the accused will meet the ends of justice in this case has force, and we accordingly sentence them under S. 380 I.P.C. to three years rigorous imprisonment and as they have already undergone it, we direct their release. The appeal is allowed to the extent above indicated.
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In our judgment, this contention has force.The unexplained possession of stolen property is the only circumstance appearing in the evidence against the accused charged with murder and theft, and they could not be convicted of murder unless their possession of the property could not no. be explained on any other hypothesis except that of murder.In the absence of any evidence whatsoever of the circumstances in which the murders or the robbery took place, it could easily be envisaged that the accused at some time or other seeing the Mahant and Ganpatia murdered, removed the articles produced by them from the temple or received them from the person or persons who had committed the murder.The prosecution led evidence to prove that Mangu Khan, the father of these two persons, was planning to murder the Mahant since a long time. Madari P. W. 7, who is andeposed that he was also being approached to join in the conspiracy to murder the Mahant. It is not improbable that any of these two or somebody else might have murdered the Mahant and some of the stolen property came into the possession of these two brothers.Be that as it may, in the absence of any direct or circumstantial evidence whatsoever, from the solitary circumstance of the unexplained recovery of the two articles from the houses of the two appellants the only inference that can be raised in view of illustration A to S. 114 of the Evidence Act is that they are either receivers of stolen property or were the persons who committed the theft, but it does not necessarily indicate that the theft and the murders took place at one and the same time.The accused produced these articles about a fortnight after the theft and the maximum that can be said against them is that they received these goods knowing them to be stolen or that they themselves stole them; but ion the absence of any other evidence, it is not possible to hold that they are guilty of murder ashead note, however, does not accurately represent the decision given by the learned Judges. In the particular circumstances of that case it was observed that in cases in which murder and robbery and shown to form parts of one transaction, recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder.Here, there is no. evidence, direct or circumstantial, that the robbery and murder formed parts of one transaction. It is not even known at what time of the night these events took place. It was only late next morning that it was discovered that the Mahant and Ganpatia had been murdered and looted. In our judgment, Beaumont, C. J., and Sen J. inBhikha Gober v Emperor, AIR 1943 Bom 458 (B) rightly held that the mere fact that an accused produced shortly after the murder ornaments which were on the murdered person is not enough to justify the inference that the accused must have committed the murder.There must be some further material to connect to accused with the murder in order to hold him guilty of thathave examined these cases and it appears to us that each one of these decisions was given on the evidence and circumstances established in that particular case and no. general proposition of law can be deduced from them.In our judgment no. hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.7. For the reasons given above we cannot maintain the conviction of the appellants under S. 302, I.P.C. and we, therefore, acquit them of that offence. It is, however, clear that both the appellants either took part in the theft or received the stolen property with the knowledge that it had been stolen. The appellants were charged with having committed theft in a building armed with certain weapons. They can thus be convicted for having committed theft in a dwelling house.8. We, therefore, hold them guilty of the offence under S. 380, I.P.C. Learned counsel appearing for them urged that in view of the fact that they have been undergoing the sentence of transportation for life for the last three years, the appropriate sentence in their case should be the one they have already undergone. In our opinion, the contention that the punishment already suffered by the accused will meet the ends of justice in this case has force, and we accordingly sentence them under S. 380 I.P.C. to three years rigorous imprisonment and as they have already undergone it, we direct their release. The appeal is allowed to the extent above indicated.
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Kalindi & Others Vs. Tata Locomotive & Engineering Co., Ltd | up on the basis of this finding and served on him after stating that he was found guilty of the first three charges stated that he was found guilty of threatening and intimidating Mr. Chakravarty, chargeman, who was compelled to stop work on 21-5-1958. On his behalf it has been urged that though the enquiry officers report says that he was guilty of "threatening and intimidating Charan Singh" the General Manager misled himself into thinking that he had threatened and intimidated Mr. Chakravarty, chargeman. There being no finding by the Enquiry Officer that Gurbux Singh was guilty of threatening and intimidating Mr. Chakravarty, chargeman, the General Manager was not entitled to take such a misconduct into consideration.16. On an examination of the Enquiry Officers report it is however obvious that there is a clerical error in the concluding portion of the report in stating the finding as regards the fourth charge as "threatening and intimidating Charan Singh was really one of the striking workers and there was no question of intimidating him. It is abundantly clear from the report that the case that was sought to be made as regards the fourth charge was that Chakravarty had been intimidated and that this allegation was found proved. There could not have been and was not any allegation of Charan Singh being intimidated. It is quite clear that name of Charan Singh was accidentally mentioned in the concluding portion of the report instead of the correct name Chakravarty. There is no justification for thinking that the General Manager who had gone through the evidence and report of the Enquiry Officer could possibly have been misled by this clerical mistake. The relevant charge was threatening and intimidating other workers, whether Charan Singh or Chakravarty was intimidated would not be of any consequence. In fact however the allegation against this appellant clearly was that Chakravarty had been intimidated by him. The body of the report shows that that was what the Enquiry Officer found proved. It is reasonable to think that that conclusion and not the wrong statement that Charan Singh was threatened and intimidated - which was nobodys case - weighed with the General Manager in determining the punishment. In our opinion, there is no substance in the contention urged on his behalf that the finding that Charan Singh was threatened and intimidated as an act of misconduct instead of Chakravarty was wrongly relied upon.17. On behalf of the appellant S. K. Dhanda it has been urged that in making the dismissal order the General Manager wrongly thought that he had been found guilty of all the four acts of misconduct which were against him in the charge-sheet though in fact he was found guilty only of three and the fourth charge was not proved. The four acts of misconduct alleged in the charge-sheet were :"1. Participation in an illegal strike;2. Leaving his place of duty without permission;3. Inciting other employees in the Paint Shop, Propeller Shaft Section, Rear Axle Section and Press Section of the Auto Division to Stop Work;4. Behaving in a riotous and disorderly manner and threatening and intimidating another co-worker.18. The formal order of dismissal that was drawn up stated that he had been found guilty of the following acts of misconduct :"1. Participation in an illegal strike;2. Leaving his place of duty without permission;3. Inciting other employees in the Paint Shop, Propeller Shaft Section, Rear Axle Section and Press Section of the Auto Division to stop work;4. Threatening and intimidating another employee by name Mr. T. S. N. Rao, T. No. 6610/60205/1, and stopping him from doing his work. He is therefore dismissed from the service of the company ......".19. The Enquiry Officers repot states the conclusions reached by him thus :"From the statement of the witnesses, it has been conclusively proved that Mr. Dhanda1. participated in an illegal strike;2. left his place of duty without permission;3. incited other employees to stop work.It can be said that the charge of threatening and intimidating has not been proved beyond doubt."20. If one looks at the formal order of dismissal only it seems that though the charge of threatening and intimidating other employees was not proved against him the order of dismissal was partially based on it. If there was nothing else this might be a serious infirmity in the order. We find however that the General Manager recorded his order on the formal Report itself in these words :"I have gone through the findings of the Enquiry Officer and the proceedings of the enquiry. Even though the charge of threatening and intimidating other workers has not been proved against Mr. Dhanda the other charges are also of a serious nature. In the circumstances, I order that he be dismissed from the service of the company with effect from the date of the charge-sheet."21. This was dated July 3, 1958, and the formal order also bears the same date. Reading the two together it is quite clear that the General manager in passing the order o dismissal proceeded on the basis that the charge of threatening and intimidating other employees had not been proved against Mr. Dhanda but a mistake crept into the formal order that was drawn up and among the acts of misconduct mentioned as those of which Dhanda had been found guilty and on which the dismissal order was based the fourth charge as regards threatening and intimidating other employees was also mentioned.It is proper to hold that this was an accidental clerical mistake and that in fact the General Manager did not proceed on the wrong basis that Dhanda had been found guilty on this fourth charge also.The mere fact that such a clerical error appears in the formal order does not affect the validity of the order in any way.22. We have therefore come to the conclusion that the separate contentions pressed on behalf of seven of the appellants that the Tribunals below did not consider certain infirmities in the order cannot also be sustained. | 0[ds]10. It is quite clear that the statement in the dismissal order as regards "entering the Works when not on duty" was really intended to state the manner and occasion in which the misconduct of "inciting other employees to strike work" was committed. The unnecessary and indeed slightly erroneous mention that he had been found guilty of "entering the works when not on duty" does not justify the conclusion that this fact of "entering the works when not on duty" played any part in the mind of the punishing authority in determining his punishment. A statement in the dismissal order "that he has been found guilty of entering the Works when not on duty as an act of misconduct is obviously erroneous. The act of misconduct of which this appellant was found guilty was "inciting other employees to strike work" and that is the only misconduct which weighed with the punishing authority. The contention that the mention in the dismissal order of "entering the Works when not on duty" as an act of misconduct of which he had been found guilty, vitiates the order of dismissal cannot therefore be accepted.The formal dismissal order that was drawn up on the basis of this finding and served on him after stating that he was found guilty of the first three charges stated that he was found guilty of threatening and intimidating Mr. Chakravarty, chargeman, who was compelled to stop work on 21-5-1958. On his behalf it has been urged that though the enquiry officers report says that he was guilty of "threatening and intimidating Charan Singh" the General Manager misled himself into thinking that he had threatened and intimidated Mr. Chakravarty, chargeman. There being no finding by the Enquiry Officer that Gurbux Singh was guilty of threatening and intimidating Mr. Chakravarty, chargeman, the General Manager was not entitled to take such a misconduct into consideration.16. On an examination of the Enquiry Officers report it is however obvious that there is a clerical error in the concluding portion of the report in stating the finding as regards the fourth charge as "threatening and intimidating Charan Singh was really one of the striking workers and there was no question of intimidating him. It is abundantly clear from the report that the case that was sought to be made as regards the fourth charge was that Chakravarty had been intimidated and that this allegation was found proved. There could not have been and was not any allegation of Charan Singh being intimidated. It is quite clear that name of Charan Singh was accidentally mentioned in the concluding portion of the report instead of the correct name Chakravarty. There is no justification for thinking that the General Manager who had gone through the evidence and report of the Enquiry Officer could possibly have been misled by this clerical mistake. The relevant charge was threatening and intimidating other workers, whether Charan Singh or Chakravarty was intimidated would not be of any consequence. In fact however the allegation against this appellant clearly was that Chakravarty had been intimidated by him. The body of the report shows that that was what the Enquiry Officer found proved. It is reasonable to think that that conclusion and not the wrong statement that Charan Singh was threatened and intimidated - which was nobodys case - weighed with the General Manager in determining the punishment. In our opinion, there is no substance in the contention urged on his behalf that the finding that Charan Singh was threatened and intimidated as an act of misconduct instead of Chakravarty was wrongly relied upon.This was dated July 3, 1958, and the formal order also bears the same date. Reading the two together it is quite clear that the General manager in passing the order o dismissal proceeded on the basis that the charge of threatening and intimidating other employees had not been proved against Mr. Dhanda but a mistake crept into the formal order that was drawn up and among the acts of misconduct mentioned as those of which Dhanda had been found guilty and on which the dismissal order was based the fourth charge as regards threatening and intimidating other employees was also mentioned.It is proper to hold that this was an accidental clerical mistake and that in fact the General Manager did not proceed on the wrong basis that Dhanda had been found guilty on this fourth charge also.The mere fact that such a clerical error appears in the formal order does not affect the validity of the order in any way.22. We have therefore come to the conclusion that the separate contentions pressed on behalf of seven of the appellants that the Tribunals below did not consider certain infirmities in the order cannot also be sustained. | 0 | 3,337 | 845 | ### 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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up on the basis of this finding and served on him after stating that he was found guilty of the first three charges stated that he was found guilty of threatening and intimidating Mr. Chakravarty, chargeman, who was compelled to stop work on 21-5-1958. On his behalf it has been urged that though the enquiry officers report says that he was guilty of "threatening and intimidating Charan Singh" the General Manager misled himself into thinking that he had threatened and intimidated Mr. Chakravarty, chargeman. There being no finding by the Enquiry Officer that Gurbux Singh was guilty of threatening and intimidating Mr. Chakravarty, chargeman, the General Manager was not entitled to take such a misconduct into consideration.16. On an examination of the Enquiry Officers report it is however obvious that there is a clerical error in the concluding portion of the report in stating the finding as regards the fourth charge as "threatening and intimidating Charan Singh was really one of the striking workers and there was no question of intimidating him. It is abundantly clear from the report that the case that was sought to be made as regards the fourth charge was that Chakravarty had been intimidated and that this allegation was found proved. There could not have been and was not any allegation of Charan Singh being intimidated. It is quite clear that name of Charan Singh was accidentally mentioned in the concluding portion of the report instead of the correct name Chakravarty. There is no justification for thinking that the General Manager who had gone through the evidence and report of the Enquiry Officer could possibly have been misled by this clerical mistake. The relevant charge was threatening and intimidating other workers, whether Charan Singh or Chakravarty was intimidated would not be of any consequence. In fact however the allegation against this appellant clearly was that Chakravarty had been intimidated by him. The body of the report shows that that was what the Enquiry Officer found proved. It is reasonable to think that that conclusion and not the wrong statement that Charan Singh was threatened and intimidated - which was nobodys case - weighed with the General Manager in determining the punishment. In our opinion, there is no substance in the contention urged on his behalf that the finding that Charan Singh was threatened and intimidated as an act of misconduct instead of Chakravarty was wrongly relied upon.17. On behalf of the appellant S. K. Dhanda it has been urged that in making the dismissal order the General Manager wrongly thought that he had been found guilty of all the four acts of misconduct which were against him in the charge-sheet though in fact he was found guilty only of three and the fourth charge was not proved. The four acts of misconduct alleged in the charge-sheet were :"1. Participation in an illegal strike;2. Leaving his place of duty without permission;3. Inciting other employees in the Paint Shop, Propeller Shaft Section, Rear Axle Section and Press Section of the Auto Division to Stop Work;4. Behaving in a riotous and disorderly manner and threatening and intimidating another co-worker.18. The formal order of dismissal that was drawn up stated that he had been found guilty of the following acts of misconduct :"1. Participation in an illegal strike;2. Leaving his place of duty without permission;3. Inciting other employees in the Paint Shop, Propeller Shaft Section, Rear Axle Section and Press Section of the Auto Division to stop work;4. Threatening and intimidating another employee by name Mr. T. S. N. Rao, T. No. 6610/60205/1, and stopping him from doing his work. He is therefore dismissed from the service of the company ......".19. The Enquiry Officers repot states the conclusions reached by him thus :"From the statement of the witnesses, it has been conclusively proved that Mr. Dhanda1. participated in an illegal strike;2. left his place of duty without permission;3. incited other employees to stop work.It can be said that the charge of threatening and intimidating has not been proved beyond doubt."20. If one looks at the formal order of dismissal only it seems that though the charge of threatening and intimidating other employees was not proved against him the order of dismissal was partially based on it. If there was nothing else this might be a serious infirmity in the order. We find however that the General Manager recorded his order on the formal Report itself in these words :"I have gone through the findings of the Enquiry Officer and the proceedings of the enquiry. Even though the charge of threatening and intimidating other workers has not been proved against Mr. Dhanda the other charges are also of a serious nature. In the circumstances, I order that he be dismissed from the service of the company with effect from the date of the charge-sheet."21. This was dated July 3, 1958, and the formal order also bears the same date. Reading the two together it is quite clear that the General manager in passing the order o dismissal proceeded on the basis that the charge of threatening and intimidating other employees had not been proved against Mr. Dhanda but a mistake crept into the formal order that was drawn up and among the acts of misconduct mentioned as those of which Dhanda had been found guilty and on which the dismissal order was based the fourth charge as regards threatening and intimidating other employees was also mentioned.It is proper to hold that this was an accidental clerical mistake and that in fact the General Manager did not proceed on the wrong basis that Dhanda had been found guilty on this fourth charge also.The mere fact that such a clerical error appears in the formal order does not affect the validity of the order in any way.22. We have therefore come to the conclusion that the separate contentions pressed on behalf of seven of the appellants that the Tribunals below did not consider certain infirmities in the order cannot also be sustained.
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10. It is quite clear that the statement in the dismissal order as regards "entering the Works when not on duty" was really intended to state the manner and occasion in which the misconduct of "inciting other employees to strike work" was committed. The unnecessary and indeed slightly erroneous mention that he had been found guilty of "entering the works when not on duty" does not justify the conclusion that this fact of "entering the works when not on duty" played any part in the mind of the punishing authority in determining his punishment. A statement in the dismissal order "that he has been found guilty of entering the Works when not on duty as an act of misconduct is obviously erroneous. The act of misconduct of which this appellant was found guilty was "inciting other employees to strike work" and that is the only misconduct which weighed with the punishing authority. The contention that the mention in the dismissal order of "entering the Works when not on duty" as an act of misconduct of which he had been found guilty, vitiates the order of dismissal cannot therefore be accepted.The formal dismissal order that was drawn up on the basis of this finding and served on him after stating that he was found guilty of the first three charges stated that he was found guilty of threatening and intimidating Mr. Chakravarty, chargeman, who was compelled to stop work on 21-5-1958. On his behalf it has been urged that though the enquiry officers report says that he was guilty of "threatening and intimidating Charan Singh" the General Manager misled himself into thinking that he had threatened and intimidated Mr. Chakravarty, chargeman. There being no finding by the Enquiry Officer that Gurbux Singh was guilty of threatening and intimidating Mr. Chakravarty, chargeman, the General Manager was not entitled to take such a misconduct into consideration.16. On an examination of the Enquiry Officers report it is however obvious that there is a clerical error in the concluding portion of the report in stating the finding as regards the fourth charge as "threatening and intimidating Charan Singh was really one of the striking workers and there was no question of intimidating him. It is abundantly clear from the report that the case that was sought to be made as regards the fourth charge was that Chakravarty had been intimidated and that this allegation was found proved. There could not have been and was not any allegation of Charan Singh being intimidated. It is quite clear that name of Charan Singh was accidentally mentioned in the concluding portion of the report instead of the correct name Chakravarty. There is no justification for thinking that the General Manager who had gone through the evidence and report of the Enquiry Officer could possibly have been misled by this clerical mistake. The relevant charge was threatening and intimidating other workers, whether Charan Singh or Chakravarty was intimidated would not be of any consequence. In fact however the allegation against this appellant clearly was that Chakravarty had been intimidated by him. The body of the report shows that that was what the Enquiry Officer found proved. It is reasonable to think that that conclusion and not the wrong statement that Charan Singh was threatened and intimidated - which was nobodys case - weighed with the General Manager in determining the punishment. In our opinion, there is no substance in the contention urged on his behalf that the finding that Charan Singh was threatened and intimidated as an act of misconduct instead of Chakravarty was wrongly relied upon.This was dated July 3, 1958, and the formal order also bears the same date. Reading the two together it is quite clear that the General manager in passing the order o dismissal proceeded on the basis that the charge of threatening and intimidating other employees had not been proved against Mr. Dhanda but a mistake crept into the formal order that was drawn up and among the acts of misconduct mentioned as those of which Dhanda had been found guilty and on which the dismissal order was based the fourth charge as regards threatening and intimidating other employees was also mentioned.It is proper to hold that this was an accidental clerical mistake and that in fact the General Manager did not proceed on the wrong basis that Dhanda had been found guilty on this fourth charge also.The mere fact that such a clerical error appears in the formal order does not affect the validity of the order in any way.22. We have therefore come to the conclusion that the separate contentions pressed on behalf of seven of the appellants that the Tribunals below did not consider certain infirmities in the order cannot also be sustained.
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Hiralal Vallabhram Vs. Kastorbhai Lalbhai & Ors | it has been urged on behalf of the respondents that on the determination of the tenancy by notice on November 30, 1956, the appellant became a tenant-in-chief under S. 14 of the Act, and reliance in this connection is placed on the decision of this Court in Anand Nivas (P) Ltd. v. Anandji Kalyanji Pedhi, (1964) 4 SCR 892 : (AIR 1965 SC 414 ). Section 14 is in these terms:-"Where the interest of a tenant of any premises is determined for any reason, any sub-tenant to whom the premises or any part thereof have been lawfully sub-let before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959, shall, subject to the provisions of this Act, he deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued." The argument is that S. 14 relates to contractual tenancy and the interest of a tenant is determined as soon as a notice determining the tenancy is given, and therefore immediately the period fixed in the notice expires, the contractual tenancy comes to an end, and if there is a sub-tenant he becomes the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued. It is therefore submitted that on the determination of the interest of the tenants-in-chief by notice on November 30, 1956 the appellant became a tenant by virtue of S. 14 and therefore it was unnecessary to order ejectment of the tenants-in-chief. Reliance in this connection is placed on the decision of this Court in Anand Nivas (P) Ltd., (1964) 4 SCR 892 : (AIR 1965 SC 414 ) where this Court held that S. 14 contemplated sub-tenancies created by a contractual tenant while the contractual tenancy was in existence, it did not take in the case of a sub-tenancy created by what may be called a statutory tenant who had only the right to remain in possession under S. 12 (1) of the Act after the determination of the contractual tenancy until ejected by suit on any of the grounds mentioned in S. 12 or S. 13. No further proposition is laid down in that case and it does not support the contention on behalf of the respondents that as soon as a notice is given determining a contractual tenancy, the sub-tenant of the contractual tenant who was there from before has to be deemed a tenant under S. 14 from the date the notice expires. If anything the following observation in the said case at p. 917 goes against the contention of the respondents, namely :-"The object of S. 14 is to protect subtenants. By that section forfeiture of the rights of the tenant in any of the contingencies set out in S. 13 does not in all cases destroy the protection to the sub-tenants. Learned counsel for the respondents however contends that the words "is determined used in S. 14 are analogous to the determination of tenancy by notice under S. 111 (h) of the Transfer of Property Act (No. 4 of 1882) and all that S. 14 requires is that there should be determination of the tenancy under S. 111 (h)of the Transfer of Property Act. We are of opinion that in the context of the Act this is not the meaning to be given to the words "is determined for any reason". These words in the context of the Act mean that where the interest of a tenant comes to an end completely, the pre-existing sub-tenant may, if the conditions of S. 14 are satisfied be deemed to be a tenant of the landlord. The interest of a tenant who for purposes of S. 14 is a contractual tenant comes to an end completely only when he is not only no longer a contractual tenant but also when he has lost the right to remain in possession which S. 12 has given to him and is no longer even a statutory tenant. In other words S. 14 would come into play in favour of the sub-tenant only after the tenancy of the contractual tenants has been determined by notice and the contractual tenant has been ordered to be ejected under S. 28 on any of the grounds in S. 12 or S. 13. Till that event happens or till he gives up the tenancy himself the interest of a tenant who may be a contractual tenant for purposes of S. 14 cannot be said to have determined i.e. come to an end completely in order to give rise to a tenancy between the pre-existing sub-tenant and the landlord. In the present case we have already indicated that the interest of the tenants-in-chief does not seem to have come to an end by their eviction for the appellate court does not seem to have ordered their eviction, nor have they given up the tenancy themselves. In that view the sub-tenant, namely, the present appellant, cannot be deemed to be tenant-in-chief of the landlord. Therefore, as the tenants-in-chief have not been ejected, the appellate court had no jurisdiction to eject merely the sub-tenant. Thus the judgment of the appellate court is without jurisdiction on this ground in the alternative and is liable to be set aside. 8. As to the ground on which the High Court upheld the judgment of the appellate court, though it did not agree with the reasons given by that court it is enough to say that there was a concurrent finding of the trial Court as well as the appellate court that no arrears were due. In the circumstances we do not see why the High Court should have interfered with a concurrent finding of fact. It is also remarkable that there is no decree even by the High Court against the tenants-in-chief, for all that the High Court did was to dismiss the revision petition. | 1[ds]6. We do not think it necessary to decide the question of jurisdiction of the High Court under S. 115 of theCode of Civil Procedure in the circumstances of this case, for we have come to the conclusion that though the question of jurisdiction had not been urged before the High Court it stares one in the face on the judgment of the appellate court. We are satisfied that the appellate court had no jurisdiction to pass a decree for ejectment against the present appellant in the manner in which it did so. We have already indicated that the appellate court took the curious view that the present appellant was a trespasser. Now this was no ones case in the present litigation. The respondents alleged that the present appellant was a sub-tenant. The present appellant contended that he was an assignee while two of the tenants-in-chief contended that he was their partner. In the circumstances it is curious that the appellate court came to the conclusion that he was a trespasser. But assuming that that finding, if correct, cannot be assailed in revision under S. 115 of theCode of Civil Procedure, a question of jurisdiction of the appellate court to pass a decree for ejectment immediately arises on the finding that the present appellant was a trespasser. The suit was brought in the court of the Judge Small Causes under S. 28 of the Act. The section gives power to the Small Cause Court to proceed to evict a tenant (along with whom a sub-tenant would also go) provided the provisions contained either in S. 12 or S. 13 of the Act are satisfied. But when the appellate court held that the present appellant was a trespasser, there was no jurisdiction under the Act to pass a decree for ejectment against a trespasser. Such a decree against a trespasser could only be passed by a regular civil court in a suit brought under theCode of Civil Procedure. It could not be passed by a Judge Small Cause Court before whom a suit for eviction as a special forum is maintainable under S. 28 of the Act. Therefore when the appellate court after holding that the appellant was a trespasser went on to order his eviction on that ground it had no jurisdiction to do so in a suit brought under S. 28 of the Act. It is true that the appellate court was the court of an Extra Assistant Judge, but its jurisdiction could not be wider than that of the trial Court and it would be equally circumscribed within the four comers of S. 28 of the Act. Though this point was not raised in the High Court, it is so obvious that we have permitted the appellant to raise it before us. We are of opinion that on the finding that the appellant was a trespasser, the appellate court had no jurisdiction to order his ejectment in a suit brought under S. 28 of the Act7. There is another aspect of the matter which equally affects the jurisdiction of the appellate court and which also does not seem to have been urged in the High Court. We have already indicated that there is nothing to show in the appellate court judgment that it ordered the ejectment of the tenants-in-chief. If it did not do so, it could not in a suit brought by the landlord order the ejectment of the sub-tenant, which the present appellant had been held to be by the trial Court. It is not disputed that a landlord cannot sue a sub-tenant alone for eviction, he has to sue the tenant, and if he, succeeds against the tenant, the sub-tenant would be ejected along with the tenant-in-chief unless he can take advantage of any provision of the Act. But if the tenant-in-chief is not ordered to he ejected and there is no such order by the appellate court, it follows that the appellate court had no jurisdiction to order the ejectment merely of the sub-tenant assuming that the appellant was a sub-tenantWe are of opinion that in the context of the Act this is not the meaning to be given to the words "is determined for any reason". These words in the context of the Act mean that where the interest of a tenant comes to an end completely, the pre-existing sub-tenant may, if the conditions of S. 14 are satisfied be deemed to be a tenant of the landlord. The interest of a tenant who for purposes of S. 14 is a contractual tenant comes to an end completely only when he is not only no longer a contractual tenant but also when he has lost the right to remain in possession which S. 12 has given to him and is no longer even a statutory tenant. In other words S. 14 would come into play in favour of the sub-tenant only after the tenancy of the contractual tenants has been determined by notice and the contractual tenant has been ordered to be ejected under S. 28 on any of the grounds in S. 12 or S. 13. Till that event happens or till he gives up the tenancy himself the interest of a tenant who may be a contractual tenant for purposes of S. 14 cannot be said to have determined i.e. come to an end completely in order to give rise to a tenancy between the pre-existing sub-tenant and the landlord. In the present case we have already indicated that the interest of the tenants-in-chief does not seem to have come to an end by their eviction for the appellate court does not seem to have ordered their eviction, nor have they given up the tenancy themselves. In that view the sub-tenant, namely, the present appellant, cannot be deemed to be tenant-in-chief of the landlord. Therefore, as the tenants-in-chief have not been ejected, the appellate court had no jurisdiction to eject merely the sub-tenant. Thus the judgment of the appellate court is without jurisdiction on this ground in the alternative and is liable to be set aside8. As to the ground on which the High Court upheld the judgment of the appellate court, though it did not agree with the reasons given by that court it is enough to say that there was a concurrent finding of the trial Court as well as the appellate court that no arrears were due. In the circumstances we do not see why the High Court should have interfered with a concurrent finding of fact. It is also remarkable that there is no decree even by the High Court against the tenants-in-chief, for all that the High Court did was to dismiss the revision petition. | 1 | 3,416 | 1,191 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
it has been urged on behalf of the respondents that on the determination of the tenancy by notice on November 30, 1956, the appellant became a tenant-in-chief under S. 14 of the Act, and reliance in this connection is placed on the decision of this Court in Anand Nivas (P) Ltd. v. Anandji Kalyanji Pedhi, (1964) 4 SCR 892 : (AIR 1965 SC 414 ). Section 14 is in these terms:-"Where the interest of a tenant of any premises is determined for any reason, any sub-tenant to whom the premises or any part thereof have been lawfully sub-let before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959, shall, subject to the provisions of this Act, he deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued." The argument is that S. 14 relates to contractual tenancy and the interest of a tenant is determined as soon as a notice determining the tenancy is given, and therefore immediately the period fixed in the notice expires, the contractual tenancy comes to an end, and if there is a sub-tenant he becomes the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued. It is therefore submitted that on the determination of the interest of the tenants-in-chief by notice on November 30, 1956 the appellant became a tenant by virtue of S. 14 and therefore it was unnecessary to order ejectment of the tenants-in-chief. Reliance in this connection is placed on the decision of this Court in Anand Nivas (P) Ltd., (1964) 4 SCR 892 : (AIR 1965 SC 414 ) where this Court held that S. 14 contemplated sub-tenancies created by a contractual tenant while the contractual tenancy was in existence, it did not take in the case of a sub-tenancy created by what may be called a statutory tenant who had only the right to remain in possession under S. 12 (1) of the Act after the determination of the contractual tenancy until ejected by suit on any of the grounds mentioned in S. 12 or S. 13. No further proposition is laid down in that case and it does not support the contention on behalf of the respondents that as soon as a notice is given determining a contractual tenancy, the sub-tenant of the contractual tenant who was there from before has to be deemed a tenant under S. 14 from the date the notice expires. If anything the following observation in the said case at p. 917 goes against the contention of the respondents, namely :-"The object of S. 14 is to protect subtenants. By that section forfeiture of the rights of the tenant in any of the contingencies set out in S. 13 does not in all cases destroy the protection to the sub-tenants. Learned counsel for the respondents however contends that the words "is determined used in S. 14 are analogous to the determination of tenancy by notice under S. 111 (h) of the Transfer of Property Act (No. 4 of 1882) and all that S. 14 requires is that there should be determination of the tenancy under S. 111 (h)of the Transfer of Property Act. We are of opinion that in the context of the Act this is not the meaning to be given to the words "is determined for any reason". These words in the context of the Act mean that where the interest of a tenant comes to an end completely, the pre-existing sub-tenant may, if the conditions of S. 14 are satisfied be deemed to be a tenant of the landlord. The interest of a tenant who for purposes of S. 14 is a contractual tenant comes to an end completely only when he is not only no longer a contractual tenant but also when he has lost the right to remain in possession which S. 12 has given to him and is no longer even a statutory tenant. In other words S. 14 would come into play in favour of the sub-tenant only after the tenancy of the contractual tenants has been determined by notice and the contractual tenant has been ordered to be ejected under S. 28 on any of the grounds in S. 12 or S. 13. Till that event happens or till he gives up the tenancy himself the interest of a tenant who may be a contractual tenant for purposes of S. 14 cannot be said to have determined i.e. come to an end completely in order to give rise to a tenancy between the pre-existing sub-tenant and the landlord. In the present case we have already indicated that the interest of the tenants-in-chief does not seem to have come to an end by their eviction for the appellate court does not seem to have ordered their eviction, nor have they given up the tenancy themselves. In that view the sub-tenant, namely, the present appellant, cannot be deemed to be tenant-in-chief of the landlord. Therefore, as the tenants-in-chief have not been ejected, the appellate court had no jurisdiction to eject merely the sub-tenant. Thus the judgment of the appellate court is without jurisdiction on this ground in the alternative and is liable to be set aside. 8. As to the ground on which the High Court upheld the judgment of the appellate court, though it did not agree with the reasons given by that court it is enough to say that there was a concurrent finding of the trial Court as well as the appellate court that no arrears were due. In the circumstances we do not see why the High Court should have interfered with a concurrent finding of fact. It is also remarkable that there is no decree even by the High Court against the tenants-in-chief, for all that the High Court did was to dismiss the revision petition.
### Response:
1
### Explanation:
the present litigation. The respondents alleged that the present appellant was a sub-tenant. The present appellant contended that he was an assignee while two of the tenants-in-chief contended that he was their partner. In the circumstances it is curious that the appellate court came to the conclusion that he was a trespasser. But assuming that that finding, if correct, cannot be assailed in revision under S. 115 of theCode of Civil Procedure, a question of jurisdiction of the appellate court to pass a decree for ejectment immediately arises on the finding that the present appellant was a trespasser. The suit was brought in the court of the Judge Small Causes under S. 28 of the Act. The section gives power to the Small Cause Court to proceed to evict a tenant (along with whom a sub-tenant would also go) provided the provisions contained either in S. 12 or S. 13 of the Act are satisfied. But when the appellate court held that the present appellant was a trespasser, there was no jurisdiction under the Act to pass a decree for ejectment against a trespasser. Such a decree against a trespasser could only be passed by a regular civil court in a suit brought under theCode of Civil Procedure. It could not be passed by a Judge Small Cause Court before whom a suit for eviction as a special forum is maintainable under S. 28 of the Act. Therefore when the appellate court after holding that the appellant was a trespasser went on to order his eviction on that ground it had no jurisdiction to do so in a suit brought under S. 28 of the Act. It is true that the appellate court was the court of an Extra Assistant Judge, but its jurisdiction could not be wider than that of the trial Court and it would be equally circumscribed within the four comers of S. 28 of the Act. Though this point was not raised in the High Court, it is so obvious that we have permitted the appellant to raise it before us. We are of opinion that on the finding that the appellant was a trespasser, the appellate court had no jurisdiction to order his ejectment in a suit brought under S. 28 of the Act7. There is another aspect of the matter which equally affects the jurisdiction of the appellate court and which also does not seem to have been urged in the High Court. We have already indicated that there is nothing to show in the appellate court judgment that it ordered the ejectment of the tenants-in-chief. If it did not do so, it could not in a suit brought by the landlord order the ejectment of the sub-tenant, which the present appellant had been held to be by the trial Court. It is not disputed that a landlord cannot sue a sub-tenant alone for eviction, he has to sue the tenant, and if he, succeeds against the tenant, the sub-tenant would be ejected along with the tenant-in-chief unless he can take advantage of any provision of the Act. But if the tenant-in-chief is not ordered to he ejected and there is no such order by the appellate court, it follows that the appellate court had no jurisdiction to order the ejectment merely of the sub-tenant assuming that the appellant was a sub-tenantWe are of opinion that in the context of the Act this is not the meaning to be given to the words "is determined for any reason". These words in the context of the Act mean that where the interest of a tenant comes to an end completely, the pre-existing sub-tenant may, if the conditions of S. 14 are satisfied be deemed to be a tenant of the landlord. The interest of a tenant who for purposes of S. 14 is a contractual tenant comes to an end completely only when he is not only no longer a contractual tenant but also when he has lost the right to remain in possession which S. 12 has given to him and is no longer even a statutory tenant. In other words S. 14 would come into play in favour of the sub-tenant only after the tenancy of the contractual tenants has been determined by notice and the contractual tenant has been ordered to be ejected under S. 28 on any of the grounds in S. 12 or S. 13. Till that event happens or till he gives up the tenancy himself the interest of a tenant who may be a contractual tenant for purposes of S. 14 cannot be said to have determined i.e. come to an end completely in order to give rise to a tenancy between the pre-existing sub-tenant and the landlord. In the present case we have already indicated that the interest of the tenants-in-chief does not seem to have come to an end by their eviction for the appellate court does not seem to have ordered their eviction, nor have they given up the tenancy themselves. In that view the sub-tenant, namely, the present appellant, cannot be deemed to be tenant-in-chief of the landlord. Therefore, as the tenants-in-chief have not been ejected, the appellate court had no jurisdiction to eject merely the sub-tenant. Thus the judgment of the appellate court is without jurisdiction on this ground in the alternative and is liable to be set aside8. As to the ground on which the High Court upheld the judgment of the appellate court, though it did not agree with the reasons given by that court it is enough to say that there was a concurrent finding of the trial Court as well as the appellate court that no arrears were due. In the circumstances we do not see why the High Court should have interfered with a concurrent finding of fact. It is also remarkable that there is no decree even by the High Court against the tenants-in-chief, for all that the High Court did was to dismiss the revision petition.
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Hamida Sarfaraz Qureishi Vs. M. S. Kasbekar & Others | SARKARIA, J.-1. This is a petition for issue of a writ of habeas corpus. The petitioner is the wife of the detenu, Sarfaraz Maqbool Qureishi who has been detained under Section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act 7 of 1980) (for short, called PREBLACT).2. The order was issued by the Commissioner of Police, Bombay on May 28, 1980. It was served on the detenu on May 29, 1980 when, according to the averments in the writ petition, he was an indoor patient in the St. George Hospital, Lucknow, struggling for his life, due to a massive heart attack. The grounds of detention were also supplied to him on the same day.3. The detenu is a dealer in kerosene.4. M r. Jethmalani, appearing for the petitioner, has canvassed five points before us. The first point is that a representation dated June 27, 1980 was addressed to the detaining authority, Commissioner of Police, Bombay, but the latter refused to consider the same and this amounts to an infringement of the constitutional obligation implied under Article 22(5) of the Constitution as well as Section 4 of the Act. The second point urged by the learned counsel is that the detenu had in his representation, expressed a desire that he be heard in person by the Advisory Board; that this right was denied to him, in as much as on the day on which the Advisory Board was to hold its meeting, a police officer at about 1 p.m. came to t he Prince Ali Khan Hospital, and informed the detenus wife that the detenu could appear before the Advisory Board in the afternoon that the detenu was then in the Intensive Care Unit of the Hospital struggling to survive from a massive heart attack, and, as such, incapable of moving out and appearing before the Board. It is stressed that the detenu was in such a disabled condition that he could not even communicate with anybody5. We will take up the second point first, because the petition can be disposed of on this very ground.6. Clause (4)(a) of Article 22 of the Constitution mandates that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months, unless an Advisory Board consisting of persons possessing the qualifications specified therein, has reported before the expiry of the said period of three months that there is in its opinion sufficient cause for such detention. Clause (5) of the Article requires that the grounds of detention shall be communicated to the detenu "as soon as may be" and he shall be afforded "the earliest opportunity" of making a representation against the order of his detention. Clause (7) (c) of the Article empowers Parliament to prescribe by law the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4). In exercise of its power under Entry 3 of List III of Schedule VII Parliament has enacted the PREBLACT (Act 7 of 1980). In compliance with the mandate in clause 4(a) of Article 22, Section 9 of the Act provides for the Constitution of Advisory Board and matters connected therewith. In accordance with clause 7(C) of Article 22, Section 11 of the Act prescribes the procedure of Advisory Boards. Sub-section (1) of the Section, inter alia, provides that if in any particular case, the person concerned (detenu) desires to be heard in person, the Advisory Board shall, after hearing in person, submit its report to the appropriate Government within seven weeks from the date of detention.7. Section 12(2) of the Act provides that in any case where the Advisory Board has reported that the re is in its opinion no sufficient cause for the detention, the appropriate Government shall revoke the detention order and cause the detenu to be released forthwith.In the instant case, the detenu had through his representation dated June 27, 1980 to the detaining authority, expressed a desire to appear before the Advisory Board and be heard in person. Under Section 11(1) of the PREBLACT therefore, the authority concerned was peremptorily required to afford to the detenu a proper opportunity to be heard in person by the Advisory Board. But in the instant case, such an opportunity was not given to the detenu, despite request. Firstly, no reasonable notice about the date of meeting of the Advisory Board was given to the detenu. It was only about one or two hours before the scheduled time of the meeting of the Advisory Board that a police officer went to the Hospital in which the detenu was confined, to inform about the meeting of the Boar d. Even that information was given only to the wife of the detenu for further transmission to the detenu who was then precariously ill and disabled from doing anything. Thus, the so-called opportunity of being heard in person by the Advisory Board, was a farce, and amounted to a negation of the right conferred on him under Section 11(1) of the Act.8. Mr. Mridul appearing for the Respondent contended that the detenu should have asked for extension of the date of hearing and for a short adjournment of hearing by the Advisory Board, but he made no such request. The argument is devoid of merit. The detenu was in the Intensive Care Unit of the Hospital under heart attack and was in the circumstances, physically incapable of doing anything of the kind.9. | 1[ds]The detenu was in the Intensive Care Unit of the Hospital under heart attack and was in the circumstances, physically incapable of doing anything of the kind.We will take up the second point first, because the petition can be disposed of on this very ground.6. Clause (4)(a) of Article 22 of the Constitution mandates that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months, unless an Advisory Board consisting of persons possessing the qualifications specified therein, has reported before the expiry of the said period of three months that there is in its opinion sufficient cause for such detention. Clause (5) of the Article requires that the grounds of detention shall be communicated to the detenu "as soon as may be" and he shall be afforded "the earliest opportunity" of making a representation against the order of his detention. Clause (7) (c) of the Article empowers Parliament to prescribe by law the procedure to be followed by an Advisory Board in an inquiry under(a) of clause (4). In exercise of its power under Entry 3 of List III of Schedule VII Parliament has enacted the PREBLACT (Act 7 of 1980). In compliance with the mandate in clause 4(a) of Article 22, Section 9 of the Act provides for the Constitution of Advisory Board and matters connected therewith. In accordance with clause 7(C) of Article 22, Section 11 of the Act prescribes the procedure of Advisory Boards.(1) of the Section, inter alia, provides that if in any particular case, the person concerned (detenu) desires to be heard in person, the Advisory Board shall, after hearing in person, submit its report to the appropriate Government within seven weeks from the date of detention.7. Section 12(2) of the Act provides that in any case where the Advisory Board has reported that the re is in its opinion no sufficient cause for the detention, the appropriate Government shall revoke the detention order and cause the detenu to be released forthwith.In the instant case, the detenu had through his representation dated June 27, 1980 to the detaining authority, expressed a desire to appear before the Advisory Board and be heard in person. Under Section 11(1) of the PREBLACT therefore, the authority concerned was peremptorily required to afford to the detenu a proper opportunity to be heard in person by the Advisory Board. But in the instant case, such an opportunity was not given to the detenu, despite request. Firstly, no reasonable notice about the date of meeting of the Advisory Board was given to the detenu. It was only about one or two hours before the scheduled time of the meeting of the Advisory Board that a police officer went to the Hospital in which the detenu was confined, to inform about the meeting of the Boar d. Even that information was given only to the wife of the detenu for further transmission to the detenu who was then precariously ill and disabled from doing anything. Thus, theopportunity of being heard in person by the Advisory Board, was a farce, and amounted to a negation of the right conferred on him under Section 11(1) of theargument is devoid of merit.The detenu was in the Intensive Care Unit of the Hospital under heart attack and was in the circumstances, physically incapable of doing anything of the kind. | 1 | 1,043 | 647 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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SARKARIA, J.-1. This is a petition for issue of a writ of habeas corpus. The petitioner is the wife of the detenu, Sarfaraz Maqbool Qureishi who has been detained under Section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act 7 of 1980) (for short, called PREBLACT).2. The order was issued by the Commissioner of Police, Bombay on May 28, 1980. It was served on the detenu on May 29, 1980 when, according to the averments in the writ petition, he was an indoor patient in the St. George Hospital, Lucknow, struggling for his life, due to a massive heart attack. The grounds of detention were also supplied to him on the same day.3. The detenu is a dealer in kerosene.4. M r. Jethmalani, appearing for the petitioner, has canvassed five points before us. The first point is that a representation dated June 27, 1980 was addressed to the detaining authority, Commissioner of Police, Bombay, but the latter refused to consider the same and this amounts to an infringement of the constitutional obligation implied under Article 22(5) of the Constitution as well as Section 4 of the Act. The second point urged by the learned counsel is that the detenu had in his representation, expressed a desire that he be heard in person by the Advisory Board; that this right was denied to him, in as much as on the day on which the Advisory Board was to hold its meeting, a police officer at about 1 p.m. came to t he Prince Ali Khan Hospital, and informed the detenus wife that the detenu could appear before the Advisory Board in the afternoon that the detenu was then in the Intensive Care Unit of the Hospital struggling to survive from a massive heart attack, and, as such, incapable of moving out and appearing before the Board. It is stressed that the detenu was in such a disabled condition that he could not even communicate with anybody5. We will take up the second point first, because the petition can be disposed of on this very ground.6. Clause (4)(a) of Article 22 of the Constitution mandates that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months, unless an Advisory Board consisting of persons possessing the qualifications specified therein, has reported before the expiry of the said period of three months that there is in its opinion sufficient cause for such detention. Clause (5) of the Article requires that the grounds of detention shall be communicated to the detenu "as soon as may be" and he shall be afforded "the earliest opportunity" of making a representation against the order of his detention. Clause (7) (c) of the Article empowers Parliament to prescribe by law the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4). In exercise of its power under Entry 3 of List III of Schedule VII Parliament has enacted the PREBLACT (Act 7 of 1980). In compliance with the mandate in clause 4(a) of Article 22, Section 9 of the Act provides for the Constitution of Advisory Board and matters connected therewith. In accordance with clause 7(C) of Article 22, Section 11 of the Act prescribes the procedure of Advisory Boards. Sub-section (1) of the Section, inter alia, provides that if in any particular case, the person concerned (detenu) desires to be heard in person, the Advisory Board shall, after hearing in person, submit its report to the appropriate Government within seven weeks from the date of detention.7. Section 12(2) of the Act provides that in any case where the Advisory Board has reported that the re is in its opinion no sufficient cause for the detention, the appropriate Government shall revoke the detention order and cause the detenu to be released forthwith.In the instant case, the detenu had through his representation dated June 27, 1980 to the detaining authority, expressed a desire to appear before the Advisory Board and be heard in person. Under Section 11(1) of the PREBLACT therefore, the authority concerned was peremptorily required to afford to the detenu a proper opportunity to be heard in person by the Advisory Board. But in the instant case, such an opportunity was not given to the detenu, despite request. Firstly, no reasonable notice about the date of meeting of the Advisory Board was given to the detenu. It was only about one or two hours before the scheduled time of the meeting of the Advisory Board that a police officer went to the Hospital in which the detenu was confined, to inform about the meeting of the Boar d. Even that information was given only to the wife of the detenu for further transmission to the detenu who was then precariously ill and disabled from doing anything. Thus, the so-called opportunity of being heard in person by the Advisory Board, was a farce, and amounted to a negation of the right conferred on him under Section 11(1) of the Act.8. Mr. Mridul appearing for the Respondent contended that the detenu should have asked for extension of the date of hearing and for a short adjournment of hearing by the Advisory Board, but he made no such request. The argument is devoid of merit. The detenu was in the Intensive Care Unit of the Hospital under heart attack and was in the circumstances, physically incapable of doing anything of the kind.9.
### Response:
1
### Explanation:
The detenu was in the Intensive Care Unit of the Hospital under heart attack and was in the circumstances, physically incapable of doing anything of the kind.We will take up the second point first, because the petition can be disposed of on this very ground.6. Clause (4)(a) of Article 22 of the Constitution mandates that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months, unless an Advisory Board consisting of persons possessing the qualifications specified therein, has reported before the expiry of the said period of three months that there is in its opinion sufficient cause for such detention. Clause (5) of the Article requires that the grounds of detention shall be communicated to the detenu "as soon as may be" and he shall be afforded "the earliest opportunity" of making a representation against the order of his detention. Clause (7) (c) of the Article empowers Parliament to prescribe by law the procedure to be followed by an Advisory Board in an inquiry under(a) of clause (4). In exercise of its power under Entry 3 of List III of Schedule VII Parliament has enacted the PREBLACT (Act 7 of 1980). In compliance with the mandate in clause 4(a) of Article 22, Section 9 of the Act provides for the Constitution of Advisory Board and matters connected therewith. In accordance with clause 7(C) of Article 22, Section 11 of the Act prescribes the procedure of Advisory Boards.(1) of the Section, inter alia, provides that if in any particular case, the person concerned (detenu) desires to be heard in person, the Advisory Board shall, after hearing in person, submit its report to the appropriate Government within seven weeks from the date of detention.7. Section 12(2) of the Act provides that in any case where the Advisory Board has reported that the re is in its opinion no sufficient cause for the detention, the appropriate Government shall revoke the detention order and cause the detenu to be released forthwith.In the instant case, the detenu had through his representation dated June 27, 1980 to the detaining authority, expressed a desire to appear before the Advisory Board and be heard in person. Under Section 11(1) of the PREBLACT therefore, the authority concerned was peremptorily required to afford to the detenu a proper opportunity to be heard in person by the Advisory Board. But in the instant case, such an opportunity was not given to the detenu, despite request. Firstly, no reasonable notice about the date of meeting of the Advisory Board was given to the detenu. It was only about one or two hours before the scheduled time of the meeting of the Advisory Board that a police officer went to the Hospital in which the detenu was confined, to inform about the meeting of the Boar d. Even that information was given only to the wife of the detenu for further transmission to the detenu who was then precariously ill and disabled from doing anything. Thus, theopportunity of being heard in person by the Advisory Board, was a farce, and amounted to a negation of the right conferred on him under Section 11(1) of theargument is devoid of merit.The detenu was in the Intensive Care Unit of the Hospital under heart attack and was in the circumstances, physically incapable of doing anything of the kind.
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M/S. SOUTH EASTERN COALFIELDS LTD Vs. COMMNR. OF CENTRAL EXCISE,TRICHY/MADURAI | months] shall not apply where any duty has been paid under protest.(2) If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund :Provided that the amount of duty of excise as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to –(a)…..(b)….(c)….(d)….(e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person;(f)….(3) ….(4) …(5) For the removal of any notification issued under clause (f) of doubts, it is hereby declared that the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.][Explanation. — For the purposes of this section, -(A) ….(B) ?relevant date? means, -(a) …(i) …(ii) …(iii) ….(b) ….(c) ….(d)….(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;] in the case of goods which are exempt from payment of duty(eb) ….(ec) ….(f) ….?11. It is not disputed that the excise duty was paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in M/s. Fenner India?s case(supra) and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time. The appellant herein is the buyer and purchased conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20 th July, 1988 to 15 th January, 1994 indicated in Civil Appeal No. 7625 of 2005. The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act.12. Section 11B deals with the claim of refund of duty as paid on his own accord by any person for refund of such duty to the competent authority before the expiry of six months from the relevant date as prescribed but where the duty was paid under protest in terms of the 2 nd proviso to Section 11B(1), the period of limitation may not apply. Although the buyer can also apply for refund provided the duty of excise is borne by the buyer and he had not passed on the incidence of such duty to any other person as referred to under Section 11B(2)(e) and the application has been moved within the period of six months from the relevant date of purchase of the goods by such person in terms of Section 11B(5)(B)(e) of the Act. The scheme of Section 11B makes a distinction between right of the manufacturer to claim refund from right of the buyer to claim refund treating them separate and distinct for making an application for refund exercising their right under Section 11B of the Act and it has been examined by the three-Judge Bench of this Court in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) as under:-"Therefore, Section 11-B(3) stated that no refund shall be made except in terms of Section 11-B(2). Section 11-B(2)( e ) conferred a right on the buyer to claim refund in cases where he proved that he had not passed on the duty to any other person. The entire scheme of Section 11-B showed the difference between the rights of a manufacturer to claim refund and the right of the buyer to claim refund as separate and distinct. Moreover, under Section 4 of the said Act, every payment by the manufacturer whether under protest or under provisional assessment was on his own account. The accounts of the manufacturer are different from the accounts of a buyer(distributor). Consequently, there is no merit in the argument advanced on behalf of the respondent that the distributor was entitled to claim refund of ?on-account? payment made under protest by the manufacturer without complying with Section 11-B of the Act.?It was further held as under:-?Having come to the conclusion that the respondent was bound to comply with Section 11B of the Act and having come to the conclusion that the refund application dated 11-2-1997 was time-barred in terms of Section 11B of the Act, we are not required to go into the merits of the claim for refund by the respondent who has alleged that it has not passed on the burden of duty to its dealers.?13. It may be appropriate to notice that the view earlier expressed by the two-Judge Bench of this Court in National Winder Vs. Commissioner of Central Excise, Allahabad 2003(11) SCC 361 was held to be per incuriam in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra).14. In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for in view of the judgment of this Court in Commissoiner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944. | 0[ds]11. It is not disputed that the excise duty was paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in M/s. Fenner India?s case(supra) and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time. The appellant herein is the buyer and purchased conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20 th July, 1988 to 15 th January, 1994 indicated in Civil Appeal No. 7625 of 2005. The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act.It may be appropriate to notice that the view earlier expressed by the two-Judge Bench of this Court in National Winder Vs. Commissioner of Central Excise, Allahabad 2003(11) SCC 361 was held to be per incuriam in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra).14. In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for in view of the judgment of this Court in Commissoiner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944. | 0 | 2,683 | 377 | ### Instruction:
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months] shall not apply where any duty has been paid under protest.(2) If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund :Provided that the amount of duty of excise as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to –(a)…..(b)….(c)….(d)….(e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person;(f)….(3) ….(4) …(5) For the removal of any notification issued under clause (f) of doubts, it is hereby declared that the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.][Explanation. — For the purposes of this section, -(A) ….(B) ?relevant date? means, -(a) …(i) …(ii) …(iii) ….(b) ….(c) ….(d)….(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;] in the case of goods which are exempt from payment of duty(eb) ….(ec) ….(f) ….?11. It is not disputed that the excise duty was paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in M/s. Fenner India?s case(supra) and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time. The appellant herein is the buyer and purchased conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20 th July, 1988 to 15 th January, 1994 indicated in Civil Appeal No. 7625 of 2005. The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act.12. Section 11B deals with the claim of refund of duty as paid on his own accord by any person for refund of such duty to the competent authority before the expiry of six months from the relevant date as prescribed but where the duty was paid under protest in terms of the 2 nd proviso to Section 11B(1), the period of limitation may not apply. Although the buyer can also apply for refund provided the duty of excise is borne by the buyer and he had not passed on the incidence of such duty to any other person as referred to under Section 11B(2)(e) and the application has been moved within the period of six months from the relevant date of purchase of the goods by such person in terms of Section 11B(5)(B)(e) of the Act. The scheme of Section 11B makes a distinction between right of the manufacturer to claim refund from right of the buyer to claim refund treating them separate and distinct for making an application for refund exercising their right under Section 11B of the Act and it has been examined by the three-Judge Bench of this Court in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) as under:-"Therefore, Section 11-B(3) stated that no refund shall be made except in terms of Section 11-B(2). Section 11-B(2)( e ) conferred a right on the buyer to claim refund in cases where he proved that he had not passed on the duty to any other person. The entire scheme of Section 11-B showed the difference between the rights of a manufacturer to claim refund and the right of the buyer to claim refund as separate and distinct. Moreover, under Section 4 of the said Act, every payment by the manufacturer whether under protest or under provisional assessment was on his own account. The accounts of the manufacturer are different from the accounts of a buyer(distributor). Consequently, there is no merit in the argument advanced on behalf of the respondent that the distributor was entitled to claim refund of ?on-account? payment made under protest by the manufacturer without complying with Section 11-B of the Act.?It was further held as under:-?Having come to the conclusion that the respondent was bound to comply with Section 11B of the Act and having come to the conclusion that the refund application dated 11-2-1997 was time-barred in terms of Section 11B of the Act, we are not required to go into the merits of the claim for refund by the respondent who has alleged that it has not passed on the burden of duty to its dealers.?13. It may be appropriate to notice that the view earlier expressed by the two-Judge Bench of this Court in National Winder Vs. Commissioner of Central Excise, Allahabad 2003(11) SCC 361 was held to be per incuriam in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra).14. In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for in view of the judgment of this Court in Commissoiner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944.
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0
### Explanation:
11. It is not disputed that the excise duty was paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in M/s. Fenner India?s case(supra) and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time. The appellant herein is the buyer and purchased conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20 th July, 1988 to 15 th January, 1994 indicated in Civil Appeal No. 7625 of 2005. The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act.It may be appropriate to notice that the view earlier expressed by the two-Judge Bench of this Court in National Winder Vs. Commissioner of Central Excise, Allahabad 2003(11) SCC 361 was held to be per incuriam in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra).14. In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for in view of the judgment of this Court in Commissoiner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944.
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Jagdish Chandra Nijhawan Vs. S. K. Saraf | the High Court 3. The High Court held that the material on record discloses a prim facie case under Section 630 of the Companies Act and, therefore, the learned Magistrate acted illegally in discharging the accused. As regards the charge under Sections 408 and 409 IPC, the High Court was of the view that prima facie, the Company has not made out any case of criminal misappropriation or criminal breach of trust, warranting frowning of a charge under Sections 406, 408 and 409 IPC. With this observation, it has left that question open for consideration by the learned Magistrate. Taking this view, the High Court allowed the revision application, quashed the order of discharge and remanded the case back to the learned Magistrate for disposal in accordance with law 4. Mr R. F. Nariman, learned Senior Counsel appearing for the appellant, contended that the High Court has misconstrued the nature of the allegation made in the complaint and it has wrongly held that the said complaint and the material on record prima facie disclose that the appellant is wrongly withholding the property of the complainant-Company. After going through the material on record and the judgment of the High Court, we are of the view that the High Court should not have interfered with the order of discharge passed by the learned Magistrate 5. It is not in dispute that the appellant was put in possession of the flat pursuant to the agreement dated 29-4-1983. The agreement discloses that the appellant joined ABC mainly because he was offered a flat in "Travail Court". That becomes apparent from the conditions contained in paras 6.1, 6.1.1, 7.2, 7.2.1 and 7.2.4 of the agreement and the assurance obtained by the appellant from ABC Consultants (P) Ltd. before joining. The relevant paragraphs of the agreement are as under "6.1 In case the date of termination be earlier than 30 months from the date of commencement, then (i) If such termination be at the instance of the Company, then the employee and/or the employees wife shall continue to enjoy rent-free accommodation during their respective lives but only until the employee takes up any other profession, vocation or business; (ii) If the termination be due to the resignation of the employee, then the employee shall within 30 days from the date of termination hand over to the Company vacant possession of the said flat together with all fixtures and fittings; (iii) In the event of the death of the employee or in case the termination be due to physical or mental disability of the employee, the employee and/or his wife shall continue to enjoy such rent-free accommodation on the same terms and conditions as contained in clause (i) hereinabove; 6.1.1 In case the date of termination be after 30 months from the date of commencement, then, irrespective of the reason of such termination, the employee and his wife shall be entitled to rent-free accommodation during the period of their natural lives; but only until the time the employee takes up any other employment, business, profession or vocation 7.2 Regarding the flat 7.2.1 It is clarified that extending accommodation by the Company as stipulated hereinabove is one of the primary considerations due to which the employee has agreed to take up the Companys employment and the same is and shall be the essence of the contract 7.2.4 In case, however, the Company loses the right of tenancy and/or occupancy of the said flat due to any reason whatever and the employee and/or his wife continue to be entitled to the benefit thereof in terms hereof, then in such event, the Company shall arrange an alternative accommodation of a similar nature, locality and covered area for the employee and/or his wife." * 6. Though the initial appointment of the appellant was as President of ABC, subsequently by mutual consent he was appointed as Managing Director of ABC. The appellants tenure as the Managing Director came to an end as the Company Law Board agreed to his appointment for a limited period only. The appellant had neither resigned nor taken up any employment elsewhere. It is also not alleged that he had started any business, profession or vocation. It was ABC which informed the appellant that his employment stood terminated with effect from 1-10-1984. Therefore, prima facie, sub-para (i) of para 6.1 would apply to the facts of this case. The contention raised on behalf of ABC that when the appellant became the Managing Director of ABC, he should be deemed to have resigned as the President of ABC does not prima facie appear to be correct. We are not dealing with this aspect any further as the civil suit filed by ABC against the appellant is still pending and we do not want our observations to prejudice the case of either party. We only say that the trial court was right in holding that the dispute between the parties is of a civil nature and that in view of the facts and circumstances of the case, it is not possible to say that the appellant has wrongfully withheld the property of ABC in his possession. An important circumstance which came into existence meanwhile is that the appellant purchased the flat from its owner on 12-11-1984 and has thus become an owner of it. It is also significant to note that ABC was not the lessee of the flat and except for the permission granted by ABC Consultants (P) Ltd. to it and the appellant, it has no right, title or interest in that flat. ABC Consultants (P) Ltd. has not chosen to revoke the licence in favour of the appellant or take any action against him. In case of the appellant ceasing to be entitled to occupy the flat, ABC has prima facie no right of occupying or using it independently. All these material aspects have not been properly appreciated by the High Court. Therefore, the judgment and order passed by the High Court deserves to be set aside | 1[ds]6. Though the initial appointment of the appellant was as President of ABC, subsequently by mutual consent he was appointed as Managing Director of ABC. The appellants tenure as the Managing Director came to an end as the Company Law Board agreed to his appointment for a limited period only. The appellant had neither resigned nor taken up any employment elsewhere. It is also not alleged that he had started any business, profession or vocation. It was ABC which informed the appellant that his employment stood terminated with effect from. Therefore, prima facie,a (i) of para 6.1 would apply to the facts of this case. The contention raised on behalf of ABC that when the appellant became the Managing Director of ABC, he should be deemed to have resigned as the President of ABC does not prima facie appear to be correct. We are not dealing with this aspect any further as the civil suit filed by ABC against the appellant is still pending and we do not want our observations to prejudice the case of either party. We only say that the trial court was right in holding that the dispute between the parties is of a civil nature and that in view of the facts and circumstances of the case, it is not possible to say that the appellant has wrongfully withheld the property of ABC in his possession. An important circumstance which came into existence meanwhile is that the appellant purchased the flat from its owner on4 and has thus become an owner of it. It is also significant to note that ABC was not the lessee of the flat and except for the permission granted by ABC Consultants (P) Ltd. to it and the appellant, it has no right, title or interest in thatflat.ABC Consultants (P) Ltd. has not chosen to revoke the licence in favour of the appellant or take any action against him. In case of the appellant ceasing to be entitled to occupy the flat, ABC has prima facie no right of occupying or using it independently. All these material aspects have not been properly appreciated by the High Court. Therefore, the judgment and order passed by the High Court deserves to be set aside | 1 | 1,634 | 407 | ### Instruction:
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the High Court 3. The High Court held that the material on record discloses a prim facie case under Section 630 of the Companies Act and, therefore, the learned Magistrate acted illegally in discharging the accused. As regards the charge under Sections 408 and 409 IPC, the High Court was of the view that prima facie, the Company has not made out any case of criminal misappropriation or criminal breach of trust, warranting frowning of a charge under Sections 406, 408 and 409 IPC. With this observation, it has left that question open for consideration by the learned Magistrate. Taking this view, the High Court allowed the revision application, quashed the order of discharge and remanded the case back to the learned Magistrate for disposal in accordance with law 4. Mr R. F. Nariman, learned Senior Counsel appearing for the appellant, contended that the High Court has misconstrued the nature of the allegation made in the complaint and it has wrongly held that the said complaint and the material on record prima facie disclose that the appellant is wrongly withholding the property of the complainant-Company. After going through the material on record and the judgment of the High Court, we are of the view that the High Court should not have interfered with the order of discharge passed by the learned Magistrate 5. It is not in dispute that the appellant was put in possession of the flat pursuant to the agreement dated 29-4-1983. The agreement discloses that the appellant joined ABC mainly because he was offered a flat in "Travail Court". That becomes apparent from the conditions contained in paras 6.1, 6.1.1, 7.2, 7.2.1 and 7.2.4 of the agreement and the assurance obtained by the appellant from ABC Consultants (P) Ltd. before joining. The relevant paragraphs of the agreement are as under "6.1 In case the date of termination be earlier than 30 months from the date of commencement, then (i) If such termination be at the instance of the Company, then the employee and/or the employees wife shall continue to enjoy rent-free accommodation during their respective lives but only until the employee takes up any other profession, vocation or business; (ii) If the termination be due to the resignation of the employee, then the employee shall within 30 days from the date of termination hand over to the Company vacant possession of the said flat together with all fixtures and fittings; (iii) In the event of the death of the employee or in case the termination be due to physical or mental disability of the employee, the employee and/or his wife shall continue to enjoy such rent-free accommodation on the same terms and conditions as contained in clause (i) hereinabove; 6.1.1 In case the date of termination be after 30 months from the date of commencement, then, irrespective of the reason of such termination, the employee and his wife shall be entitled to rent-free accommodation during the period of their natural lives; but only until the time the employee takes up any other employment, business, profession or vocation 7.2 Regarding the flat 7.2.1 It is clarified that extending accommodation by the Company as stipulated hereinabove is one of the primary considerations due to which the employee has agreed to take up the Companys employment and the same is and shall be the essence of the contract 7.2.4 In case, however, the Company loses the right of tenancy and/or occupancy of the said flat due to any reason whatever and the employee and/or his wife continue to be entitled to the benefit thereof in terms hereof, then in such event, the Company shall arrange an alternative accommodation of a similar nature, locality and covered area for the employee and/or his wife." * 6. Though the initial appointment of the appellant was as President of ABC, subsequently by mutual consent he was appointed as Managing Director of ABC. The appellants tenure as the Managing Director came to an end as the Company Law Board agreed to his appointment for a limited period only. The appellant had neither resigned nor taken up any employment elsewhere. It is also not alleged that he had started any business, profession or vocation. It was ABC which informed the appellant that his employment stood terminated with effect from 1-10-1984. Therefore, prima facie, sub-para (i) of para 6.1 would apply to the facts of this case. The contention raised on behalf of ABC that when the appellant became the Managing Director of ABC, he should be deemed to have resigned as the President of ABC does not prima facie appear to be correct. We are not dealing with this aspect any further as the civil suit filed by ABC against the appellant is still pending and we do not want our observations to prejudice the case of either party. We only say that the trial court was right in holding that the dispute between the parties is of a civil nature and that in view of the facts and circumstances of the case, it is not possible to say that the appellant has wrongfully withheld the property of ABC in his possession. An important circumstance which came into existence meanwhile is that the appellant purchased the flat from its owner on 12-11-1984 and has thus become an owner of it. It is also significant to note that ABC was not the lessee of the flat and except for the permission granted by ABC Consultants (P) Ltd. to it and the appellant, it has no right, title or interest in that flat. ABC Consultants (P) Ltd. has not chosen to revoke the licence in favour of the appellant or take any action against him. In case of the appellant ceasing to be entitled to occupy the flat, ABC has prima facie no right of occupying or using it independently. All these material aspects have not been properly appreciated by the High Court. Therefore, the judgment and order passed by the High Court deserves to be set aside
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1
### Explanation:
6. Though the initial appointment of the appellant was as President of ABC, subsequently by mutual consent he was appointed as Managing Director of ABC. The appellants tenure as the Managing Director came to an end as the Company Law Board agreed to his appointment for a limited period only. The appellant had neither resigned nor taken up any employment elsewhere. It is also not alleged that he had started any business, profession or vocation. It was ABC which informed the appellant that his employment stood terminated with effect from. Therefore, prima facie,a (i) of para 6.1 would apply to the facts of this case. The contention raised on behalf of ABC that when the appellant became the Managing Director of ABC, he should be deemed to have resigned as the President of ABC does not prima facie appear to be correct. We are not dealing with this aspect any further as the civil suit filed by ABC against the appellant is still pending and we do not want our observations to prejudice the case of either party. We only say that the trial court was right in holding that the dispute between the parties is of a civil nature and that in view of the facts and circumstances of the case, it is not possible to say that the appellant has wrongfully withheld the property of ABC in his possession. An important circumstance which came into existence meanwhile is that the appellant purchased the flat from its owner on4 and has thus become an owner of it. It is also significant to note that ABC was not the lessee of the flat and except for the permission granted by ABC Consultants (P) Ltd. to it and the appellant, it has no right, title or interest in thatflat.ABC Consultants (P) Ltd. has not chosen to revoke the licence in favour of the appellant or take any action against him. In case of the appellant ceasing to be entitled to occupy the flat, ABC has prima facie no right of occupying or using it independently. All these material aspects have not been properly appreciated by the High Court. Therefore, the judgment and order passed by the High Court deserves to be set aside
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Triveni Prasad Ramkaran Verma Vs. State of Maharashtra | gold and smuggled gold is outside their scope and ambit and hence acquisition of smuggled gold would not constitute an offence under the Gold Control Rules, 1963. This is an argument of despair and cannot be sustained even for a moment. Rule 126H(2)(d) provides, inter alia, that no person other than a licensed dealer shall buy or otherwise acquire or agree to buy or acquire gold, not being ornaments, except in accordance with a permit granted by the Administrator or in accordance with such authoriation as the Administrator may make in this behalf. The word gold is defined in clause (c) of the Explanation to Rule 126A to mean gold, including its alloy, whether virgin, melted, remelted, wrought or unwrought, in any shape or form, of a purity of not less than nine carats and include any gold coin (whether legal tender or not), any ornament and any other article of gold". This definition does not restrict the meaning of the word gold to legal or non-smuggled gold. It is wide enough to include any kind of gold, whether smuggled or non-smuggled. The restrictions imposed by the Gold Control Rules, 1963 could not have been intended merely to apply to legal gold. The object and purpose of the restrictions. would be frustrated by excluding from their ambit and coverage smuggled gold. The Gold Cont rol Rules, 1963 seek to control and regulate dealings in gold and gold within the meaning of these rules must include not only non-smuggled gold but also smuggled gold, We fail to see on what principle of construction can smuggled gold. which is gold within the meaning of the definition, be excluded from the operation of these Rules. There is no scope for inferring any such exclusion nor is there anything in the Rules which supports such exclusion. Take, for example, Rule 126 B which says that a dealer shall not make or manufacture any article of gold other than ornament. Can it be suggested for a moment that this Rule does not prohibit a dealer from making or manufacturing articles out of smuggled gold? Then again, look at Rule 126 C. It provides, inter alia, that no dealer shall make, manufacture or prepare any ornament having gold of a purity exceeding fourteen carats. Can a dealer make an ornament of smuggled gold having purity exceeding fourteen carats without committing a breach of this Rule? Rule 126-1 provides that every person shall make a declaration to the Administrator as to the quantity, description and other prescribed particulars of gold owned by him. How can a person, who has smuggled gold, say that he is not bound to make a declaration under this Rule? The object of requiring a declaration is that the Government should know what is the gold possessed by each person, so that dealings in gold can be controlled and regulated and this object would be thwarted if smuggled were not subject to the requirement of declaration. Then consider Rule 126 D which says that no person shall make advance or grant any loan to any other person on the hypothecation, pledge, mortgage or charge of any gold other than ornament, unless such gold has been included in a declaration. If smuggled gold were outside the scope of this rule, it would be open to a person to advance moneys on the security of smuggled gold without involving any violation of this rule. That surely could not have been the intention of the Government in making the Gold Control Rules, 1963. We are aware that there is a decision of the Calcutta High Court in Aravinda Mohan Sinha v. Prohlad Chand Samenta (A.I.R. 1970 Cal 437 ) where a Division Bench has taken the view that "declaration under Rule 126. P is in respect of legal gold as opposed to smuggled gold and no question of declaration in respect of smuggled gold can arise under Gold Control Rules, 1963, " but we do not think this decision represents the correct law on the point. We are of the view that the Gold Control Rules 1963 are applicable alike to smuggled gold as to non-smuggled gold, and the inhibition of Rule 126H(2) (d) that no person other than a licensed dealer shall acquire gold except in accordance with a permit or authorisation granted by the Administrator is not confined in its operation to non-smuggled gold but applies equally in relation to smuggled gold. The learned Presidency Magistrate and the High Court were, therefore, right in convicting the appellant under Rule 126 H(2)(d) read with Rule 126 P(2) (iv) of the Gold Control Rules, 1963.Since the appellant is convicted of the offence under Rule 126P (2) (iv) of the Gold Control Rules, 1963, the sentence of imprisonment to be imposed on him cannot be less than six months and the High Court was right in enhancing the sentence to six months imprisonment. But so far as the sentence of fine is concerned, we do not think that the f acts and circumstances of the case justify a heavy fine of Rs. 3, 000/- for each of the two offences for which the appellant is convicted. It appears from the statement of the appellant Ex. H that he was a carrier of gold for M/s Pannalal Durgaprasad of Kanpur and the purchase price of Gold was provided substantially by this Kanpur firm and the appellant was merely to receive some commission. The appellant was a goldsmith who had lost his business for the last six months and perhaps economic necessity drove him to carry on this nefarious activity. The sentence of imprisonment which has been imposed on the appellant would be sufficient deterrent to him and many others who indulge in this anti-social activity which is calculated to disrupt the economy of the country. We feel that in the circumstances, the ends of justice would be met if the sentence of fine is reduced from Rs. 3, 000/- to Rs. 500/- for each of the two offences.3. | 1[ds]We do not see any cogent reasons for taking a different view from that taken concurrently by the learned Presidency Magistrate and the High Court in regard to the evidence of Inspector Tilwe and we think this evidence is sufficient to found the conviction of the appellant.The appellant, however, contended that even if it be held that gold was found from the person of the appellant, as alleged by the prosecution, it was smuggled gold and hence not covered by the Gold Control Rules, 1963 and, in the circumstances, no offence under Rule 126H(2)(d) read with Rule 126P(2)(iv) could be said to have been committed by the appellant in acquiring such gold. The argument of the appellant was that the Gold Control Rules, 1963 apply only in relation to what may be called legal gold or non-smuggled gold and smuggled gold is outside their scope and ambit and hence acquisition of smuggled gold would not constitute an offence under the Gold Control Rules, 1963. This is an argument of despair and cannot be sustained even for a moment. Rule 126H(2)(d) provides, inter alia, that no person other than a licensed dealer shall buy or otherwise acquire or agree to buy or acquire gold, not being ornaments, except in accordance with a permit granted by the Administrator or in accordance with such authoriation as the Administrator may make in this behalf. The word gold is defined in clause (c) of the Explanation to Rule 126A to mean gold, including its alloy, whether virgin, melted, remelted, wrought or unwrought, in any shape or form, of a purity of not less than nine carats and include any gold coin (whether legal tender or not), any ornament and any other article of gold". This definition does not restrict the meaning of the word gold to legal or non-smuggled gold. It is wide enough to include any kind of gold, whether smuggled or non-smuggled. The restrictions imposed by the Gold Control Rules, 1963 could not have been intended merely to apply to legal gold. The object and purpose of the restrictions. would be frustrated by excluding from their ambit and coverage smuggled gold. The Gold Cont rol Rules, 1963 seek to control and regulate dealings in gold and gold within the meaning of these rules must include not only non-smuggled gold but also smuggled gold, We fail to see on what principle of construction can smuggled gold. which is gold within the meaning of the definition, be excluded from the operation of these Rules. There is no scope for inferring any such exclusion nor is there anything in the Rules which supports such exclusion. Take, for example, Rule 126 B which says that a dealer shall not make or manufacture any article of gold other than ornament. Can it be suggested for a moment that this Rule does not prohibit a dealer from making or manufacturing articles out of smuggled gold? Then again, look at Rule 126 C. It provides, inter alia, that no dealer shall make, manufacture or prepare any ornament having gold of a purity exceeding fourteen carats. Can a dealer make an ornament of smuggled gold having purity exceeding fourteen carats without committing a breach of this Rule? Rule 126-1 provides that every person shall make a declaration to the Administrator as to the quantity, description and other prescribed particulars of gold owned by him. How can a person, who has smuggled gold, say that he is not bound to make a declaration under this Rule? The object of requiring a declaration is that the Government should know what is the gold possessed by each person, so that dealings in gold can be controlled and regulated and this object would be thwarted if smuggled were not subject to the requirement of declaration. Then consider Rule 126 D which says that no person shall make advance or grant any loan to any other person on the hypothecation, pledge, mortgage or charge of any gold other than ornament, unless such gold has been included in a declaration. If smuggled gold were outside the scope of this rule, it would be open to a person to advance moneys on the security of smuggled gold without involving any violation of this rule. That surely could not have been the intention of the Government in making the Gold Control Rules, 1963. We are aware that there is a decision of the Calcutta High Court in Aravinda Mohan Sinha v. Prohlad Chand Samenta (A.I.R. 1970 Cal 437 ) where a Division Bench has taken the view that "declaration under Rule 126. P is in respect of legal gold as opposed to smuggled gold and no question of declaration in respect of smuggled gold can arise under Gold Control Rules, 1963, " but we do not think this decision represents the correct law on the point. We are of the view that the Gold Control Rules 1963 are applicable alike to smuggled gold as to non-smuggled gold, and the inhibition of Rule 126H(2) (d) that no person other than a licensed dealer shall acquire gold except in accordance with a permit or authorisation granted by the Administrator is not confined in its operation to non-smuggled gold but applies equally in relation to smuggled gold. The learned Presidency Magistrate and the High Court were, therefore, right in convicting the appellant under Rule 126 H(2)(d) read with Rule 126 P(2) (iv) of the Gold Control Rules, 1963.Since the appellant is convicted of the offence under Rule 126P (2) (iv) of the Gold Control Rules, 1963, the sentence of imprisonment to be imposed on him cannot be less than six months and the High Court was right in enhancing the sentence to six months imprisonment. But so far as the sentence of fine is concerned, we do not think that the f acts and circumstances of the case justify a heavy fine of Rs. 3, 000/- for each of the two offences for which the appellant is convicted. It appears from the statement of the appellant Ex. H that he was a carrier of gold for M/s Pannalal Durgaprasad of Kanpur and the purchase price of Gold was provided substantially by this Kanpur firm and the appellant was merely to receive some commission. The appellant was a goldsmith who had lost his business for the last six months and perhaps economic necessity drove him to carry on this nefarious activity. The sentence of imprisonment which has been imposed on the appellant would be sufficient deterrent to him and many others who indulge in this anti-social activity which is calculated to disrupt the economy of the country. We feel that in the circumstances, the ends of justice would be met if the sentence of fine is reduced from Rs. 3, 000/- to Rs. 500/- for each of the two offences. | 1 | 3,228 | 1,278 | ### 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:
gold and smuggled gold is outside their scope and ambit and hence acquisition of smuggled gold would not constitute an offence under the Gold Control Rules, 1963. This is an argument of despair and cannot be sustained even for a moment. Rule 126H(2)(d) provides, inter alia, that no person other than a licensed dealer shall buy or otherwise acquire or agree to buy or acquire gold, not being ornaments, except in accordance with a permit granted by the Administrator or in accordance with such authoriation as the Administrator may make in this behalf. The word gold is defined in clause (c) of the Explanation to Rule 126A to mean gold, including its alloy, whether virgin, melted, remelted, wrought or unwrought, in any shape or form, of a purity of not less than nine carats and include any gold coin (whether legal tender or not), any ornament and any other article of gold". This definition does not restrict the meaning of the word gold to legal or non-smuggled gold. It is wide enough to include any kind of gold, whether smuggled or non-smuggled. The restrictions imposed by the Gold Control Rules, 1963 could not have been intended merely to apply to legal gold. The object and purpose of the restrictions. would be frustrated by excluding from their ambit and coverage smuggled gold. The Gold Cont rol Rules, 1963 seek to control and regulate dealings in gold and gold within the meaning of these rules must include not only non-smuggled gold but also smuggled gold, We fail to see on what principle of construction can smuggled gold. which is gold within the meaning of the definition, be excluded from the operation of these Rules. There is no scope for inferring any such exclusion nor is there anything in the Rules which supports such exclusion. Take, for example, Rule 126 B which says that a dealer shall not make or manufacture any article of gold other than ornament. Can it be suggested for a moment that this Rule does not prohibit a dealer from making or manufacturing articles out of smuggled gold? Then again, look at Rule 126 C. It provides, inter alia, that no dealer shall make, manufacture or prepare any ornament having gold of a purity exceeding fourteen carats. Can a dealer make an ornament of smuggled gold having purity exceeding fourteen carats without committing a breach of this Rule? Rule 126-1 provides that every person shall make a declaration to the Administrator as to the quantity, description and other prescribed particulars of gold owned by him. How can a person, who has smuggled gold, say that he is not bound to make a declaration under this Rule? The object of requiring a declaration is that the Government should know what is the gold possessed by each person, so that dealings in gold can be controlled and regulated and this object would be thwarted if smuggled were not subject to the requirement of declaration. Then consider Rule 126 D which says that no person shall make advance or grant any loan to any other person on the hypothecation, pledge, mortgage or charge of any gold other than ornament, unless such gold has been included in a declaration. If smuggled gold were outside the scope of this rule, it would be open to a person to advance moneys on the security of smuggled gold without involving any violation of this rule. That surely could not have been the intention of the Government in making the Gold Control Rules, 1963. We are aware that there is a decision of the Calcutta High Court in Aravinda Mohan Sinha v. Prohlad Chand Samenta (A.I.R. 1970 Cal 437 ) where a Division Bench has taken the view that "declaration under Rule 126. P is in respect of legal gold as opposed to smuggled gold and no question of declaration in respect of smuggled gold can arise under Gold Control Rules, 1963, " but we do not think this decision represents the correct law on the point. We are of the view that the Gold Control Rules 1963 are applicable alike to smuggled gold as to non-smuggled gold, and the inhibition of Rule 126H(2) (d) that no person other than a licensed dealer shall acquire gold except in accordance with a permit or authorisation granted by the Administrator is not confined in its operation to non-smuggled gold but applies equally in relation to smuggled gold. The learned Presidency Magistrate and the High Court were, therefore, right in convicting the appellant under Rule 126 H(2)(d) read with Rule 126 P(2) (iv) of the Gold Control Rules, 1963.Since the appellant is convicted of the offence under Rule 126P (2) (iv) of the Gold Control Rules, 1963, the sentence of imprisonment to be imposed on him cannot be less than six months and the High Court was right in enhancing the sentence to six months imprisonment. But so far as the sentence of fine is concerned, we do not think that the f acts and circumstances of the case justify a heavy fine of Rs. 3, 000/- for each of the two offences for which the appellant is convicted. It appears from the statement of the appellant Ex. H that he was a carrier of gold for M/s Pannalal Durgaprasad of Kanpur and the purchase price of Gold was provided substantially by this Kanpur firm and the appellant was merely to receive some commission. The appellant was a goldsmith who had lost his business for the last six months and perhaps economic necessity drove him to carry on this nefarious activity. The sentence of imprisonment which has been imposed on the appellant would be sufficient deterrent to him and many others who indulge in this anti-social activity which is calculated to disrupt the economy of the country. We feel that in the circumstances, the ends of justice would be met if the sentence of fine is reduced from Rs. 3, 000/- to Rs. 500/- for each of the two offences.3.
### Response:
1
### Explanation:
gold and smuggled gold is outside their scope and ambit and hence acquisition of smuggled gold would not constitute an offence under the Gold Control Rules, 1963. This is an argument of despair and cannot be sustained even for a moment. Rule 126H(2)(d) provides, inter alia, that no person other than a licensed dealer shall buy or otherwise acquire or agree to buy or acquire gold, not being ornaments, except in accordance with a permit granted by the Administrator or in accordance with such authoriation as the Administrator may make in this behalf. The word gold is defined in clause (c) of the Explanation to Rule 126A to mean gold, including its alloy, whether virgin, melted, remelted, wrought or unwrought, in any shape or form, of a purity of not less than nine carats and include any gold coin (whether legal tender or not), any ornament and any other article of gold". This definition does not restrict the meaning of the word gold to legal or non-smuggled gold. It is wide enough to include any kind of gold, whether smuggled or non-smuggled. The restrictions imposed by the Gold Control Rules, 1963 could not have been intended merely to apply to legal gold. The object and purpose of the restrictions. would be frustrated by excluding from their ambit and coverage smuggled gold. The Gold Cont rol Rules, 1963 seek to control and regulate dealings in gold and gold within the meaning of these rules must include not only non-smuggled gold but also smuggled gold, We fail to see on what principle of construction can smuggled gold. which is gold within the meaning of the definition, be excluded from the operation of these Rules. There is no scope for inferring any such exclusion nor is there anything in the Rules which supports such exclusion. Take, for example, Rule 126 B which says that a dealer shall not make or manufacture any article of gold other than ornament. Can it be suggested for a moment that this Rule does not prohibit a dealer from making or manufacturing articles out of smuggled gold? Then again, look at Rule 126 C. It provides, inter alia, that no dealer shall make, manufacture or prepare any ornament having gold of a purity exceeding fourteen carats. Can a dealer make an ornament of smuggled gold having purity exceeding fourteen carats without committing a breach of this Rule? Rule 126-1 provides that every person shall make a declaration to the Administrator as to the quantity, description and other prescribed particulars of gold owned by him. How can a person, who has smuggled gold, say that he is not bound to make a declaration under this Rule? The object of requiring a declaration is that the Government should know what is the gold possessed by each person, so that dealings in gold can be controlled and regulated and this object would be thwarted if smuggled were not subject to the requirement of declaration. Then consider Rule 126 D which says that no person shall make advance or grant any loan to any other person on the hypothecation, pledge, mortgage or charge of any gold other than ornament, unless such gold has been included in a declaration. If smuggled gold were outside the scope of this rule, it would be open to a person to advance moneys on the security of smuggled gold without involving any violation of this rule. That surely could not have been the intention of the Government in making the Gold Control Rules, 1963. We are aware that there is a decision of the Calcutta High Court in Aravinda Mohan Sinha v. Prohlad Chand Samenta (A.I.R. 1970 Cal 437 ) where a Division Bench has taken the view that "declaration under Rule 126. P is in respect of legal gold as opposed to smuggled gold and no question of declaration in respect of smuggled gold can arise under Gold Control Rules, 1963, " but we do not think this decision represents the correct law on the point. We are of the view that the Gold Control Rules 1963 are applicable alike to smuggled gold as to non-smuggled gold, and the inhibition of Rule 126H(2) (d) that no person other than a licensed dealer shall acquire gold except in accordance with a permit or authorisation granted by the Administrator is not confined in its operation to non-smuggled gold but applies equally in relation to smuggled gold. The learned Presidency Magistrate and the High Court were, therefore, right in convicting the appellant under Rule 126 H(2)(d) read with Rule 126 P(2) (iv) of the Gold Control Rules, 1963.Since the appellant is convicted of the offence under Rule 126P (2) (iv) of the Gold Control Rules, 1963, the sentence of imprisonment to be imposed on him cannot be less than six months and the High Court was right in enhancing the sentence to six months imprisonment. But so far as the sentence of fine is concerned, we do not think that the f acts and circumstances of the case justify a heavy fine of Rs. 3, 000/- for each of the two offences for which the appellant is convicted. It appears from the statement of the appellant Ex. H that he was a carrier of gold for M/s Pannalal Durgaprasad of Kanpur and the purchase price of Gold was provided substantially by this Kanpur firm and the appellant was merely to receive some commission. The appellant was a goldsmith who had lost his business for the last six months and perhaps economic necessity drove him to carry on this nefarious activity. The sentence of imprisonment which has been imposed on the appellant would be sufficient deterrent to him and many others who indulge in this anti-social activity which is calculated to disrupt the economy of the country. We feel that in the circumstances, the ends of justice would be met if the sentence of fine is reduced from Rs. 3, 000/- to Rs. 500/- for each of the two offences.
|
Gokak Patel Volkart Limited Vs. Dundayya Gurushiddaiah Hiremath & Others | continue after notice from the County Council. The court construed Section 85 to have laid down two offences; (1) building to a prohibited height, and (2) continuing such a structure already built after receiving a notice from the County Council. The latter offence was a continuing offence applying to anyone who was guilty of continuing the building at the prohibited height after notice from the County Council 23. State of Bihar v. Deokaran Nenshi ( 1972 (2) SCC 890 : 1973 SCC(Cri) 114 : 1973 (1) SCR 1004 ) was explained by this Court in Bhagirath Kanoria v. State of Madhya Pradesh ( 1984 (4) SCC 222 : 1984 SCC(Cri) 590 : 1985 (1) SCR 626). Therein, the Provident Fund Inspector filed complaints against the Directors, the Factory Manager and the respondent company charging them with non-payment of employers contribution under the Employees Provident Fund and Family Pension Fund Act, 19 of 1952, from February 1970 to June 1971. At the trial the accused contended that since the limitation prescribed by Section 468 of the Code of Criminal Procedure, 1973 had expired before the filing of the complaints, the court had no jurisdiction to take cognizance of the complaints. The trial court having held that the offences of which the accused were charged were continuing offences and, therefore, no question of limitation could arise, and that order having been upheld by the High Court in revision, the Directors in appeal to this Court contended that the offence of non-payment of the employers contribution could be committed once and for all on the expiry of 15 days after the close of every month and, therefore, prosecution of the offence should have been launched within the period of limitation provided in Section 468 of the Code. Rejecting the contention it was held by this Court that the offence of which the appellants were charged, namely, non-payment of the employers contribution to the Provident Fund before the due date, was a continuing offence and, therefore, the period of limitation prescribed by Section 468 of the Code could not have any application and it would be governed by Section 472 of the Code, according to which, a fresh period of limitation began to run at ever moment of the time during which the offence continued. It was accordingly held that each day the accused failed to comply with the obligation to pay their contribution to the fund, they committed fresh offence. Section 472 of the Code of Criminal Procedure deals with continuing offence and says "472. Continuing offence. - In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues." * 24. The concept of continuing offence does not wipe out the original guilt, but it keeps the contravention alive day by day. It may also be observed that the courts when confronted with provisions which lay down a rule of limitation governing prosecutions, in cases of this nature, should give due weight and consideration to the provisions of Section 473 of the Code which is in the nature of an overriding provision and according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code of Criminal Procedure any court may take cognizance of an offence after the expiration of a period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice 25. The expression continuing offence has not been defined in the Code. The question whether a particular offence is a continued offence or not must, therefore, necessarily depend upon the language of the statute which creates that offence, the nature of the offence and that purpose intended to be achieved by constituting the particular act as an offence 26. Applying the law enunciated above to the provisions of Section 630 of the Companies Act, we are of the view that the offence under this section is not such as can be said to have consummated once for all. Wrongful withholding, or wrongfully obtaining possession and wrongful application of the companys property, that is, for purposes other than those expressed or directed in the articles of the company and authorised by the Companies Act, cannot be said to be terminated by a single act or fact but would subsist for the period until the property in the offenders possession is delivered up or refunded. It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged. The offence consists of a course of conduct arising from a singleness of thought, purpose of refusal to deliver up or refund which may be deemed a single impulse. Considered from another angle, it consists of a continuous series of acts which endures after the period of consummation on refusal to deliver up or refund the property. It is not an instantaneous offence and limitation begins with the cessation of the criminal act, i.e. with the delivering up or refund of the propriety. It will be a recurring or continuing offence until the wrongful possession, wrongful withholding or wrongful application is vacated or put an end to. The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly misapplied is delivered up or refunded to the company. For failure to do so sub-section (2) prescribes the punishment. This, in our view, is sufficient ground for holding that the offence under Section 630 of the Companies Act is not one time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the instant complaints could not be said to have been barred by limitation. The submission that when the first respondent upon his retirement failed to vacate and deliver possession of the companys quarter to the company the offence must be taken to have been complete, has, therefore, to be rejected | 1[ds]8. The corresponding concept of continuity of a civil wrong is to be found in the Law of Torts. Trespass to land in the English law of torts (trespass quare clausum freight) consists in the act of (1) entering upon land in the possession of the plaintiff, or (2) remaining upon such land, or (3) placing or projecting any object upon itin each case without lawfulis significant that when entry into or upon property in possession of another is lawful then unlawfully remaining upon such property with the object of intimidating, insulting or annoying the person in possession of the property would be criminal trespass. The offence would be continuing so long as the trespass is not lifted or vacated and intimidation, insult or annoyance of the person legally in possession of the property is not stopped.Thus, both wrongfully obtaining and wrongfully withholding have been made offence punishable underion (2) knowingly misapplication has also been envisaged. The offence continues until the officer or employee delivers up or refunds any such property if ordered by the court to do so within a time fixed by the court, and in default to suffer the prescribed imprisonment. The idea of a continuing offence is implied in. The concept of continuing offence does not wipe out the original guilt, but it keeps the contravention alive day by day. It may also be observed that the courts when confronted with provisions which lay down a rule of limitation governing prosecutions, in cases of this nature, should give due weight and consideration to the provisions of Section 473 of the Code which is in the nature of an overriding provision and according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code of Criminal Procedure any court may take cognizance of an offence after the expiration of a period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest ofApplying the law enunciated above to the provisions of Section 630 of the Companies Act, we are of the view that the offence under this section is not such as can be said to have consummated once for all. Wrongful withholding, or wrongfully obtaining possession and wrongful application of the companys property, that is, for purposes other than those expressed or directed in the articles of the company and authorised by the Companies Act, cannot be said to be terminated by a single act or fact but would subsist for the period until the property in the offenders possession is delivered up or refunded. It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged. The offence consists of a course of conduct arising from a singleness of thought, purpose of refusal to deliver up or refund which may be deemed a single impulse. Considered from another angle, it consists of a continuous series of acts which endures after the period of consummation on refusal to deliver up or refund the property. It is not an instantaneous offence and limitation begins with the cessation of the criminal act, i.e. with the delivering up or refund of the propriety. It will be a recurring or continuing offence until the wrongful possession, wrongful withholding or wrongful application is vacated or put an end to. The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly misapplied is delivered up or refunded to the company. For failure to do so(2) prescribes the punishment. This, in our view, is sufficient ground for holding that the offence under Section 630 of the Companies Act is not one time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the instant complaints could not be said to have been barred by limitation. The submission that when the first respondent upon his retirement failed to vacate and deliver possession of the companys quarter to the company the offence must be taken to have been complete, has, therefore, to be rejected | 1 | 5,619 | 750 | ### 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:
continue after notice from the County Council. The court construed Section 85 to have laid down two offences; (1) building to a prohibited height, and (2) continuing such a structure already built after receiving a notice from the County Council. The latter offence was a continuing offence applying to anyone who was guilty of continuing the building at the prohibited height after notice from the County Council 23. State of Bihar v. Deokaran Nenshi ( 1972 (2) SCC 890 : 1973 SCC(Cri) 114 : 1973 (1) SCR 1004 ) was explained by this Court in Bhagirath Kanoria v. State of Madhya Pradesh ( 1984 (4) SCC 222 : 1984 SCC(Cri) 590 : 1985 (1) SCR 626). Therein, the Provident Fund Inspector filed complaints against the Directors, the Factory Manager and the respondent company charging them with non-payment of employers contribution under the Employees Provident Fund and Family Pension Fund Act, 19 of 1952, from February 1970 to June 1971. At the trial the accused contended that since the limitation prescribed by Section 468 of the Code of Criminal Procedure, 1973 had expired before the filing of the complaints, the court had no jurisdiction to take cognizance of the complaints. The trial court having held that the offences of which the accused were charged were continuing offences and, therefore, no question of limitation could arise, and that order having been upheld by the High Court in revision, the Directors in appeal to this Court contended that the offence of non-payment of the employers contribution could be committed once and for all on the expiry of 15 days after the close of every month and, therefore, prosecution of the offence should have been launched within the period of limitation provided in Section 468 of the Code. Rejecting the contention it was held by this Court that the offence of which the appellants were charged, namely, non-payment of the employers contribution to the Provident Fund before the due date, was a continuing offence and, therefore, the period of limitation prescribed by Section 468 of the Code could not have any application and it would be governed by Section 472 of the Code, according to which, a fresh period of limitation began to run at ever moment of the time during which the offence continued. It was accordingly held that each day the accused failed to comply with the obligation to pay their contribution to the fund, they committed fresh offence. Section 472 of the Code of Criminal Procedure deals with continuing offence and says "472. Continuing offence. - In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues." * 24. The concept of continuing offence does not wipe out the original guilt, but it keeps the contravention alive day by day. It may also be observed that the courts when confronted with provisions which lay down a rule of limitation governing prosecutions, in cases of this nature, should give due weight and consideration to the provisions of Section 473 of the Code which is in the nature of an overriding provision and according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code of Criminal Procedure any court may take cognizance of an offence after the expiration of a period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice 25. The expression continuing offence has not been defined in the Code. The question whether a particular offence is a continued offence or not must, therefore, necessarily depend upon the language of the statute which creates that offence, the nature of the offence and that purpose intended to be achieved by constituting the particular act as an offence 26. Applying the law enunciated above to the provisions of Section 630 of the Companies Act, we are of the view that the offence under this section is not such as can be said to have consummated once for all. Wrongful withholding, or wrongfully obtaining possession and wrongful application of the companys property, that is, for purposes other than those expressed or directed in the articles of the company and authorised by the Companies Act, cannot be said to be terminated by a single act or fact but would subsist for the period until the property in the offenders possession is delivered up or refunded. It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged. The offence consists of a course of conduct arising from a singleness of thought, purpose of refusal to deliver up or refund which may be deemed a single impulse. Considered from another angle, it consists of a continuous series of acts which endures after the period of consummation on refusal to deliver up or refund the property. It is not an instantaneous offence and limitation begins with the cessation of the criminal act, i.e. with the delivering up or refund of the propriety. It will be a recurring or continuing offence until the wrongful possession, wrongful withholding or wrongful application is vacated or put an end to. The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly misapplied is delivered up or refunded to the company. For failure to do so sub-section (2) prescribes the punishment. This, in our view, is sufficient ground for holding that the offence under Section 630 of the Companies Act is not one time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the instant complaints could not be said to have been barred by limitation. The submission that when the first respondent upon his retirement failed to vacate and deliver possession of the companys quarter to the company the offence must be taken to have been complete, has, therefore, to be rejected
### Response:
1
### Explanation:
8. The corresponding concept of continuity of a civil wrong is to be found in the Law of Torts. Trespass to land in the English law of torts (trespass quare clausum freight) consists in the act of (1) entering upon land in the possession of the plaintiff, or (2) remaining upon such land, or (3) placing or projecting any object upon itin each case without lawfulis significant that when entry into or upon property in possession of another is lawful then unlawfully remaining upon such property with the object of intimidating, insulting or annoying the person in possession of the property would be criminal trespass. The offence would be continuing so long as the trespass is not lifted or vacated and intimidation, insult or annoyance of the person legally in possession of the property is not stopped.Thus, both wrongfully obtaining and wrongfully withholding have been made offence punishable underion (2) knowingly misapplication has also been envisaged. The offence continues until the officer or employee delivers up or refunds any such property if ordered by the court to do so within a time fixed by the court, and in default to suffer the prescribed imprisonment. The idea of a continuing offence is implied in. The concept of continuing offence does not wipe out the original guilt, but it keeps the contravention alive day by day. It may also be observed that the courts when confronted with provisions which lay down a rule of limitation governing prosecutions, in cases of this nature, should give due weight and consideration to the provisions of Section 473 of the Code which is in the nature of an overriding provision and according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code of Criminal Procedure any court may take cognizance of an offence after the expiration of a period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest ofApplying the law enunciated above to the provisions of Section 630 of the Companies Act, we are of the view that the offence under this section is not such as can be said to have consummated once for all. Wrongful withholding, or wrongfully obtaining possession and wrongful application of the companys property, that is, for purposes other than those expressed or directed in the articles of the company and authorised by the Companies Act, cannot be said to be terminated by a single act or fact but would subsist for the period until the property in the offenders possession is delivered up or refunded. It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged. The offence consists of a course of conduct arising from a singleness of thought, purpose of refusal to deliver up or refund which may be deemed a single impulse. Considered from another angle, it consists of a continuous series of acts which endures after the period of consummation on refusal to deliver up or refund the property. It is not an instantaneous offence and limitation begins with the cessation of the criminal act, i.e. with the delivering up or refund of the propriety. It will be a recurring or continuing offence until the wrongful possession, wrongful withholding or wrongful application is vacated or put an end to. The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly misapplied is delivered up or refunded to the company. For failure to do so(2) prescribes the punishment. This, in our view, is sufficient ground for holding that the offence under Section 630 of the Companies Act is not one time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the instant complaints could not be said to have been barred by limitation. The submission that when the first respondent upon his retirement failed to vacate and deliver possession of the companys quarter to the company the offence must be taken to have been complete, has, therefore, to be rejected
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Pritam Singh Sidhu Vs. State Of Punjab | Leave granted. Heard learned counsel for the parties. 2. The second respondent is the wife of one Gurjant Singh. The appellant is the brother-in-law of the said Gurjant Singh. The second respondent filed a complaint under Section 406 and 498A of IPC in the Court of Sub Divisional Judicial Magistrate, Abohar against her husband (A1), father-in-law (A2), mother-in-law (A3), sister-in-law (A4) and the husband of the sister-in-law (A5) who is the appellant herein. The only reference to accused No.5 (appellant) in the said complaint reads thus:"One T.V., one fridge, one washing machine were handed over to the accused No.5 who is the brother-in-law of the complainant as a trust property."In the pre-summons statement recorded by the learned Magistrate, there is no reference to appellant. Learned Magistrate by order dated 26.4.2004 dismissed the complaint against A-4 and ordered summons to A-1, A-2, A-3 and A-5. Feeling aggrieved, the said four accused filed a petition under Section 482 before the High Court. However, subsequently, A-1, A-2 and A-3 did not press the said petition and the petition was rejected insofar as the said accused. Thus the petition under Section 482 Cr.P.C. that came up for consideration before the learned single Judge of the High Court was only by A5 - appellant herein. Learned single Judge by order dated 10.5.2007 dismissed the petition by the following order:"The effort of re-conciliation has failed. Though the wife is willing to join the company of the petitioner, but he is adamant. In my view, no ground for quashing is made out. Dismissed." We find that the High Court has totally misdirected itself and proceeded on the erroneous assumption that the petitioner before it was the husband of the complainant and that he had refused to take his wife back though she was willing to join him. But the petitioner in Section 482 petition was not the husband, but his brother-in-law. This has led to a wrong order being passed.3. We have examined the entire complaint and the statement given by the complainant. There is no reference to the appellant that will link him in regard to any offence under Sections 406 or 498A IPC. | 1[ds]We find that the High Court has totally misdirected itself and proceeded on the erroneous assumption that the petitioner before it was the husband of the complainant and that he had refused to take his wife back though she was willing to join him. But the petitioner in Section 482 petition was not the husband, but hisThis has led to a wrong order being passed.3. We have examined the entire complaint and the statement given by the complainant. There is no reference to the appellant that will link him in regard to any offence under Sections 406 or 498A IPC. | 1 | 417 | 109 | ### 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:
Leave granted. Heard learned counsel for the parties. 2. The second respondent is the wife of one Gurjant Singh. The appellant is the brother-in-law of the said Gurjant Singh. The second respondent filed a complaint under Section 406 and 498A of IPC in the Court of Sub Divisional Judicial Magistrate, Abohar against her husband (A1), father-in-law (A2), mother-in-law (A3), sister-in-law (A4) and the husband of the sister-in-law (A5) who is the appellant herein. The only reference to accused No.5 (appellant) in the said complaint reads thus:"One T.V., one fridge, one washing machine were handed over to the accused No.5 who is the brother-in-law of the complainant as a trust property."In the pre-summons statement recorded by the learned Magistrate, there is no reference to appellant. Learned Magistrate by order dated 26.4.2004 dismissed the complaint against A-4 and ordered summons to A-1, A-2, A-3 and A-5. Feeling aggrieved, the said four accused filed a petition under Section 482 before the High Court. However, subsequently, A-1, A-2 and A-3 did not press the said petition and the petition was rejected insofar as the said accused. Thus the petition under Section 482 Cr.P.C. that came up for consideration before the learned single Judge of the High Court was only by A5 - appellant herein. Learned single Judge by order dated 10.5.2007 dismissed the petition by the following order:"The effort of re-conciliation has failed. Though the wife is willing to join the company of the petitioner, but he is adamant. In my view, no ground for quashing is made out. Dismissed." We find that the High Court has totally misdirected itself and proceeded on the erroneous assumption that the petitioner before it was the husband of the complainant and that he had refused to take his wife back though she was willing to join him. But the petitioner in Section 482 petition was not the husband, but his brother-in-law. This has led to a wrong order being passed.3. We have examined the entire complaint and the statement given by the complainant. There is no reference to the appellant that will link him in regard to any offence under Sections 406 or 498A IPC.
### Response:
1
### Explanation:
We find that the High Court has totally misdirected itself and proceeded on the erroneous assumption that the petitioner before it was the husband of the complainant and that he had refused to take his wife back though she was willing to join him. But the petitioner in Section 482 petition was not the husband, but hisThis has led to a wrong order being passed.3. We have examined the entire complaint and the statement given by the complainant. There is no reference to the appellant that will link him in regard to any offence under Sections 406 or 498A IPC.
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Commissioner of Central Excise, Haldia Vs. Krishna Wax Ltd | his view point on all possible issues and only thereafter the determination or decision is arrived at. In the present case even before the response could be made by the respondent and the determination could be arrived at, the matter was carried in appeal against said Internal Order. The appellant was therefore, justified in submitting that the appeal itself was pre-mature. 12. It has been laid down by this Court that the excise law is a complete code in itself and it would normally not be appropriate for a Writ Court to entertain a petition under Article 226 of the Constitution and that the concerned person must first raise all the objections before the authority who had issued a show cause notice and the redressal in terms of the existing provisions of the law could be taken resort to if an adverse order was passed against such person. For example in Union of India and another vs. Guwahati Carbon Limited (2012) 11 SCC 651 , it was concluded; ?The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution? , while in Malladi Drugs and Pharma Ltd. vs. Union of India 2004 (166) ELT 153 (S.C.) , it was observed:-?…The High Court, has, by the impugned judgment held that the Appellant should first raise all the objections before the Authority who have issued the show cause notice and in case any adverse order is passed against the Appellant, then liberty has been granted to approach the High Court… …in our view, the High Court was absolutely right in dismissing the writ petition against a mere show cause notice.?It is thus well settled that writ petition should normally not be entertained against mere issuance of show cause notice. In the present case no show cause notice was even issued when the High Court had initially entertained the petition and directed the Department to prima facie consider whether there was material to proceed with the matter. 13. We now deal with the decisions relied upon by Ms. Jain, learned counsel for the appellant. The decision of this Court in GKN Driveshafts (India) Ltd. 2 was in the context of Section 148 of the Income Tax Act. Said Section 148 itself contemplates that the Assessing Officer shall, before issuing any notice under said Section 148, record his reasons for issuing such notice. In the backdrop of such requirement, this Court had observed:-?5. We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under Section 148 of the Income Tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years.?The decision of the Tribunal in the case of Reliance Industries Ltd. 3 was also in a completely different context. The order of the Collector dated 03.03.1986 which was subject matter of appeal in that case, was a record of a personal hearing in the course of the adjudication proceeding that was communicated to the assessee. It was therefore concluded that an appeal against such order would be maintainable. The point of distinction is that it was communicated by the Department during the course of adjudication proceedings whereas in the present matter there was no such communication by the Department on its own and the order dated 19.03.2016 was not a part of any adjudication proceedings. The proceedings would have begun only after the issuance of show cause notice under Section 11A of the Act. 14. We must at this stage refer to an aspect which was projected after the judgment was reserved in the matter. By filing an application for directions, attention of the Court was invited to Circular dated 22.08.2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell), the relevant portion of which is to the following effect:-?In exercise of the powers conferred by Section 35R of the Central Excise Act, 1944 and made applicable to Service Tax vide Section 83 of the Finance Act, 1994, the Central Board of indirect Taxes and Customs fixes the following monetary limits below which appeal shall not be filed in the CESTAT, High Courts and Supreme Court. TABLE 2. This instruction applies only to legacy issues i.e. matters relating to Central Excise and Service Tax, and will apply to pending cases as well. 3. Withdrawal process in respect of pending cases in above forums, as per the above revised limits, will follow the current practice that is being followed for the withdrawal of cases from the Supreme Court, High Courts and CESTAT. All other terms and conditions of concerned earlier instructions will continue to apply. 4. It may be noted that issues involving substantial questions of law as described in para1.3 of the instruction dt 17.08.2011 from F.No.390/Misc/163/2010-JC would be contested irrespective of the prescribed monetary limits.?15. In the present case, there was no assessment and computation of any duty element. The matter had not gone beyond the Show Cause Notice. The questions in the matter pertained to the correctness of the view whether there was any adjudication in the matter and whether the appeal at the instance of the Respondent was maintainable. In our view the issues involved in the matter do not strictly come within the confines of the aforesaid Circular. | 1[ds]Without going into other details regarding the period of limitations and the circumstances under which show cause notice can be issued, the crux of the matter is that such determination is after the issuance of show cause notice followed by affording of opportunity and consideration of representation, if any, made by the concerned person.The issuance of show cause notice under Section 11A also has some significance in the eyes of law. The day the show cause notice is issued, becomes the reckoning date for various issues including the issue of limitation. If we accept the submission of the respondent that a prima facie view entertained by the department whether the matter requires to be proceeded with or not is to be taken as a decision or determination, it will create an imbalance in the working of various provisions of Section 11A of the Act including periods of limitation. It will be difficult to reckon as to from which date the limitation has to be counted.In the present case, the respondent had not registered itself and was not paying any excise duty on the products that it was manufacturing. The search conducted by the Department at the registered office and the factory premises of the respondent led to the recovery of certain material on the basis of which the Department was considering the matter. At that stage, a writ petition was filed in which an order was passed by the High Court on 28.11.2005 directing the appellant to decide whether the Department had jurisdiction to proceed in the matter before deciding any other issues on merits. As stated above, the provisions of the Act do not contemplate any such prima facie determination to be arrived at and requiring that a copy of such determination to be submitted to the concerned person and only thereafter to proceed in the matter. Nonetheless, since a direction was issued by the High Court, the Department in deference to such direction did consider the matter and by an Internal Order dated 15.03.2006 prima facie recorded an opinion that the authorities under the Act had jurisdiction to proceed in the matter. Since the provisions of the Act do not contemplate any prima facie determination which must be communicated to the concerned person, the Department was justified in not communicating the Internal Order on its own. The matter was correctly assessed by the High Court on the next occasion when in spite of having directed that a copy of the Internal Order be supplied, it acknowledged that the remedy of the respondent lied in submitting reply to the show cause notice, in which reply it would be open to the respondent to take objections to the jurisdiction of the appellant to proceed against the respondent under the provisions of the Act.The communication of the Internal Order dated 15.03.2006 was only in deference to the order passed by the High Court. At the cost of repetition, it must be stated that neither the Act contemplates any such prima facie determination which must be communicated only whereafter the proceedings could be initiated nor was such course undertaken by the Department on its own. Therefore, merely because the Internal Order was communicated to the respondent, it would not afford the respondent a cause of action to file an appeal against said Internal Order. The communication of said Internal Order was only in obedience of the directions issued by the High Court. It was not a decision or determination which was arrived at in terms of sub-section 10 of Section 11A. The respondent therefore could not have preferred any appeal against said Internal Order dated 15.03.2006. The Appellate Authority as well as the Tribunal, in our view, completely failed to appreciate this basic distinction.It must be noted that while issuing a show cause notice under Section 11A of the Act, what is entertained by the Department is only a prima facie view, on the basis of which the show cause notice is issued. The determination comes only after a response or representation is preferred by the person to whom the show cause notice is addressed. As a part of his response, the concerned person may present his view point on all possible issues and only thereafter the determination or decision is arrived at. In the present case even before the response could be made by the respondent and the determination could be arrived at, the matter was carried in appeal against said Internal Order. The appellant was therefore, justified in submitting that the appeal itself wasis thus well settled that writ petition should normally not be entertained against mere issuance of show cause notice. In the present case no show cause notice was even issued when the High Court had initially entertained the petition and directed the Department to prima facie consider whether there was material to proceed with the matter.decision of the Tribunal in the case of Reliance Industries Ltd. 3 was also in a completely different context.In the present case, there was no assessment and computation of any duty element. The matter had not gone beyond the Show Cause Notice. The questions in the matter pertained to the correctness of the view whether there was any adjudication in the matter and whether the appeal at the instance of the Respondent was maintainable. In our view the issues involved in the matter do not strictly come within the confines of the aforesaid Circular. | 1 | 5,987 | 954 | ### 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:
his view point on all possible issues and only thereafter the determination or decision is arrived at. In the present case even before the response could be made by the respondent and the determination could be arrived at, the matter was carried in appeal against said Internal Order. The appellant was therefore, justified in submitting that the appeal itself was pre-mature. 12. It has been laid down by this Court that the excise law is a complete code in itself and it would normally not be appropriate for a Writ Court to entertain a petition under Article 226 of the Constitution and that the concerned person must first raise all the objections before the authority who had issued a show cause notice and the redressal in terms of the existing provisions of the law could be taken resort to if an adverse order was passed against such person. For example in Union of India and another vs. Guwahati Carbon Limited (2012) 11 SCC 651 , it was concluded; ?The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution? , while in Malladi Drugs and Pharma Ltd. vs. Union of India 2004 (166) ELT 153 (S.C.) , it was observed:-?…The High Court, has, by the impugned judgment held that the Appellant should first raise all the objections before the Authority who have issued the show cause notice and in case any adverse order is passed against the Appellant, then liberty has been granted to approach the High Court… …in our view, the High Court was absolutely right in dismissing the writ petition against a mere show cause notice.?It is thus well settled that writ petition should normally not be entertained against mere issuance of show cause notice. In the present case no show cause notice was even issued when the High Court had initially entertained the petition and directed the Department to prima facie consider whether there was material to proceed with the matter. 13. We now deal with the decisions relied upon by Ms. Jain, learned counsel for the appellant. The decision of this Court in GKN Driveshafts (India) Ltd. 2 was in the context of Section 148 of the Income Tax Act. Said Section 148 itself contemplates that the Assessing Officer shall, before issuing any notice under said Section 148, record his reasons for issuing such notice. In the backdrop of such requirement, this Court had observed:-?5. We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under Section 148 of the Income Tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years.?The decision of the Tribunal in the case of Reliance Industries Ltd. 3 was also in a completely different context. The order of the Collector dated 03.03.1986 which was subject matter of appeal in that case, was a record of a personal hearing in the course of the adjudication proceeding that was communicated to the assessee. It was therefore concluded that an appeal against such order would be maintainable. The point of distinction is that it was communicated by the Department during the course of adjudication proceedings whereas in the present matter there was no such communication by the Department on its own and the order dated 19.03.2016 was not a part of any adjudication proceedings. The proceedings would have begun only after the issuance of show cause notice under Section 11A of the Act. 14. We must at this stage refer to an aspect which was projected after the judgment was reserved in the matter. By filing an application for directions, attention of the Court was invited to Circular dated 22.08.2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell), the relevant portion of which is to the following effect:-?In exercise of the powers conferred by Section 35R of the Central Excise Act, 1944 and made applicable to Service Tax vide Section 83 of the Finance Act, 1994, the Central Board of indirect Taxes and Customs fixes the following monetary limits below which appeal shall not be filed in the CESTAT, High Courts and Supreme Court. TABLE 2. This instruction applies only to legacy issues i.e. matters relating to Central Excise and Service Tax, and will apply to pending cases as well. 3. Withdrawal process in respect of pending cases in above forums, as per the above revised limits, will follow the current practice that is being followed for the withdrawal of cases from the Supreme Court, High Courts and CESTAT. All other terms and conditions of concerned earlier instructions will continue to apply. 4. It may be noted that issues involving substantial questions of law as described in para1.3 of the instruction dt 17.08.2011 from F.No.390/Misc/163/2010-JC would be contested irrespective of the prescribed monetary limits.?15. In the present case, there was no assessment and computation of any duty element. The matter had not gone beyond the Show Cause Notice. The questions in the matter pertained to the correctness of the view whether there was any adjudication in the matter and whether the appeal at the instance of the Respondent was maintainable. In our view the issues involved in the matter do not strictly come within the confines of the aforesaid Circular.
### Response:
1
### Explanation:
Without going into other details regarding the period of limitations and the circumstances under which show cause notice can be issued, the crux of the matter is that such determination is after the issuance of show cause notice followed by affording of opportunity and consideration of representation, if any, made by the concerned person.The issuance of show cause notice under Section 11A also has some significance in the eyes of law. The day the show cause notice is issued, becomes the reckoning date for various issues including the issue of limitation. If we accept the submission of the respondent that a prima facie view entertained by the department whether the matter requires to be proceeded with or not is to be taken as a decision or determination, it will create an imbalance in the working of various provisions of Section 11A of the Act including periods of limitation. It will be difficult to reckon as to from which date the limitation has to be counted.In the present case, the respondent had not registered itself and was not paying any excise duty on the products that it was manufacturing. The search conducted by the Department at the registered office and the factory premises of the respondent led to the recovery of certain material on the basis of which the Department was considering the matter. At that stage, a writ petition was filed in which an order was passed by the High Court on 28.11.2005 directing the appellant to decide whether the Department had jurisdiction to proceed in the matter before deciding any other issues on merits. As stated above, the provisions of the Act do not contemplate any such prima facie determination to be arrived at and requiring that a copy of such determination to be submitted to the concerned person and only thereafter to proceed in the matter. Nonetheless, since a direction was issued by the High Court, the Department in deference to such direction did consider the matter and by an Internal Order dated 15.03.2006 prima facie recorded an opinion that the authorities under the Act had jurisdiction to proceed in the matter. Since the provisions of the Act do not contemplate any prima facie determination which must be communicated to the concerned person, the Department was justified in not communicating the Internal Order on its own. The matter was correctly assessed by the High Court on the next occasion when in spite of having directed that a copy of the Internal Order be supplied, it acknowledged that the remedy of the respondent lied in submitting reply to the show cause notice, in which reply it would be open to the respondent to take objections to the jurisdiction of the appellant to proceed against the respondent under the provisions of the Act.The communication of the Internal Order dated 15.03.2006 was only in deference to the order passed by the High Court. At the cost of repetition, it must be stated that neither the Act contemplates any such prima facie determination which must be communicated only whereafter the proceedings could be initiated nor was such course undertaken by the Department on its own. Therefore, merely because the Internal Order was communicated to the respondent, it would not afford the respondent a cause of action to file an appeal against said Internal Order. The communication of said Internal Order was only in obedience of the directions issued by the High Court. It was not a decision or determination which was arrived at in terms of sub-section 10 of Section 11A. The respondent therefore could not have preferred any appeal against said Internal Order dated 15.03.2006. The Appellate Authority as well as the Tribunal, in our view, completely failed to appreciate this basic distinction.It must be noted that while issuing a show cause notice under Section 11A of the Act, what is entertained by the Department is only a prima facie view, on the basis of which the show cause notice is issued. The determination comes only after a response or representation is preferred by the person to whom the show cause notice is addressed. As a part of his response, the concerned person may present his view point on all possible issues and only thereafter the determination or decision is arrived at. In the present case even before the response could be made by the respondent and the determination could be arrived at, the matter was carried in appeal against said Internal Order. The appellant was therefore, justified in submitting that the appeal itself wasis thus well settled that writ petition should normally not be entertained against mere issuance of show cause notice. In the present case no show cause notice was even issued when the High Court had initially entertained the petition and directed the Department to prima facie consider whether there was material to proceed with the matter.decision of the Tribunal in the case of Reliance Industries Ltd. 3 was also in a completely different context.In the present case, there was no assessment and computation of any duty element. The matter had not gone beyond the Show Cause Notice. The questions in the matter pertained to the correctness of the view whether there was any adjudication in the matter and whether the appeal at the instance of the Respondent was maintainable. In our view the issues involved in the matter do not strictly come within the confines of the aforesaid Circular.
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Aniyoth Kunhamina Umma Vs. Ministry Of Rehabilitation Andothers | of this Court in Mahomed Amirabbas Abbasi v. State of Madhya Bharat, 1960-3 SCR 138 : (AIR 1960 SC 768 ), and it is not necessary to consider, on merits the contentions urged on behalf of the petitioner. The position as we see it is this. This Court can exercise jurisdiction under Art. 32 of the Constitution only in enforcement of the fundamental rights guaranteed by Part III of the Constitution. In the present case, the appropriate authorities of competent jurisdiction under the Act have determined the two questions which fell for their decision, namely, (1) that Kunhi Moosa Haji was an evacuee within the meaning of S. 2 (d) of the Act and (2) that his property was evacuee property. It was open to the petitioner to challenge the decision of the Custodian-General, New Delhi by moving the appropriate High Court in respect thereof; it was also open to the petitioner to move this Court by way of special leave against the decision of the Custodian-General or of the other appropriate authorities under the Act. The petitioner did not, however, choose to do so. The result, therefore, is that the order of the Custodian-General has become final. Under S. 28 of the Act the order cannot be called in question in any court by way of an appeal or revision or in any original suit, application or execution proceeding. It is, indeed, true that S. 28 of the Act cannot affect the power of the High Court under Arts. 226 and 227 of the Constitution or of this Court under Arts. 136 and 32 of the Constitution. Where, however, on account of the decision of an authority of competent jurisdiction the right alleged by the petitioner has been found not to exist, it is difficult to see how any question of the infringement of that right can arise as a ground for a petition under Art. 32 of the Constitution, unless the decision of the authority of competent jurisdiction on the right alleged by the petitioner is held to be a nullity or can be otherwise got rid of. As long as that decision stands, the petitioner cannot complain of any infringement of a fundamental right. The alleged fundamental right of the petitioner is really dependent on whether Kunhi Moosa Haji was an evacuee and whether his property is evacuee property. If the decision of the appropriate authorities of competent jurisdiction on these questions has become final and cannot be treated as a nullity or cannot be otherwise got rid of, the petitioner cannot complain of any infringement of her fundamental right under Arts. 19 (1) (f) and 31 of the Constitution.5. It is worthy of note that the relevant provisions of the Act have not been challenged before us as unconstitutional, nor can it be seriously contended before us that the orders of the appropriate authorities under the Act can be treated as null and void for want of jurisdiction. What is contended before us is that the orders were incorrect on merits. That is a point which the petitioner should have agitated in an appropriate proceeding either by way of an appeal from the order of the Custodian-General with special leave of this Court or by an appropriate proceeding in the High Court having jurisdiction over the Custodian General. The petitioner did not take either of these steps, and we do not think that she can be permitted now to challenge the correctness on merits of the orders of the appropriate authorities under the Act on a writ petition under Art. 32 of the Constitution on the basis that her fundamental right has been infringed.6. In 1960-3 SCR 138 : (AIR 1960 SC 768 ), the facts were these. The petitioner who had migrated to West Pakistan applied to the High Court of Madhya Bharat for a writ of habeas corpus for directions to produce petitioners 2 and 3, his minor children, before the court on the allegation that they were wrongfully confined and, upon the dismissal of the said application, he applied to the District Judge of Ratlam under the Guardian and Wards Act for his appointment as guardian of the person and property of the said minors; the District Judge rejected the application and appointed another person as guardian; the petitioner then appealed to the High Court against the order of the District Judge and that appeal was dismissed. He applied for special leave to appeal to this Court and that application was also rejected. Thereafter he moved an application under Art. 32 of the Constitution and it was held that where on account of the decision of a court of competent jurisdiction, the right alleged by the petitioner does not exist and, therefore, its infringement cannot arise, this Court cannot entertain a petition under Art. 32 for protection of the alleged right. We are of the opinion that the principle of this decision also applies to the present case. The circumstance that in 1960-3 SCR 138 : (AIR 1960 SC 768 ), an application for special leave was made and rejected makes no difference to the application of the principle. So far as the principle is concerned the position is the same when an application is made and rejected and when no application is made. The result in both cases is that the decision becomes final and binding on the parties thereto. We must make it clear that we are not basing our decision on the circumstance that the High Court of Kerala rejected the application of the petitioner on the ground that it had no territorial jurisdiction. We are basing our decision on the ground that the competent authorities under the Act had come to a certain decision, which decision has now become final the petitioner not having moved against that decision in an appropriate court by an appropriate proceeding. As long as that decision stands the petitioner cannot complain of the infringement of a fundamental right, for she has no such right. | 0[ds]We do not, however think that any question of lack of jurisdiction is involved in this case. The petitioner appeared in response to the notice and raised no point of jurisdiction. In subsequent proceedings before the Deputy Custodian and the Custodian-General she contested the correctness of the orders passed on merits no question of jurisdiction was canvassed at any stage and we do not think that the notice suffered from any such defect as would attract the question of jurisdiction. We need only add that no question of the constitutionality of any law is raised by thethe present case, the appropriate authorities of competent jurisdiction under the Act have determined the two questions which fell for their decision, namely, (1) that Kunhi Moosa Haji was an evacuee within the meaning of S. 2 (d) of the Act and (2) that his property was evacuee property. It was open to the petitioner to challenge the decision of the Custodian-General, New Delhi by moving the appropriate High Court in respect thereof; it was also open to the petitioner to move this Court by way of special leave against the decision of the Custodian-General or of the other appropriate authorities under the Act. The petitioner did not, however, choose to do so. The result, therefore, is that the order of the Custodian-General has become final. Under S. 28 of the Act the order cannot be called in question in any court by way of an appeal or revision or in any original suit, application or execution proceeding. It is, indeed, true that S. 28 of the Act cannot affect the power of the High Court under Arts. 226 and 227 of the Constitution or of this Court under Arts. 136 and 32 of the Constitution. Where, however, on account of the decision of an authority of competent jurisdiction the right alleged by the petitioner has been found not to exist, it is difficult to see how any question of the infringement of that right can arise as a ground for a petition under Art. 32 of the Constitution, unless the decision of the authority of competent jurisdiction on the right alleged by the petitioner is held to be a nullity or can be otherwise got rid of. As long as that decision stands, the petitioner cannot complain of any infringement of a fundamental right. The alleged fundamental right of the petitioner is really dependent on whether Kunhi Moosa Haji was an evacuee and whether his property is evacuee property. If the decision of the appropriate authorities of competent jurisdiction on these questions has become final and cannot be treated as a nullity or cannot be otherwise got rid of, the petitioner cannot complain of any infringement of her fundamental right under Arts. 19 (1) (f) and 31 of theis a point which the petitioner should have agitated in an appropriate proceeding either by way of an appeal from the order of the Custodian-General with special leave of this Court or by an appropriate proceeding in the High Court having jurisdiction over the Custodian General. The petitioner did not take either of these steps, and we do not think that she can be permitted now to challenge the correctness on merits of the orders of the appropriate authorities under the Act on a writ petition under Art. 32 of the Constitution on the basis that her fundamental right has beenfar as the principle is concerned the position is the same when an application is made and rejected and when no application is made. The result in both cases is that the decision becomes final and binding on the parties thereto. We must make it clear that we are not basing our decision on the circumstance that the High Court of Kerala rejected the application of the petitioner on the ground that it had no territorial jurisdiction. We are basing our decision on the ground that the competent authorities under the Act had come to a certain decision, which decision has now become final the petitioner not having moved against that decision in an appropriate court by an appropriate proceeding. As long as that decision stands the petitioner cannot complain of the infringement of a fundamental right, for she has no such right. | 0 | 2,062 | 774 | ### Instruction:
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of this Court in Mahomed Amirabbas Abbasi v. State of Madhya Bharat, 1960-3 SCR 138 : (AIR 1960 SC 768 ), and it is not necessary to consider, on merits the contentions urged on behalf of the petitioner. The position as we see it is this. This Court can exercise jurisdiction under Art. 32 of the Constitution only in enforcement of the fundamental rights guaranteed by Part III of the Constitution. In the present case, the appropriate authorities of competent jurisdiction under the Act have determined the two questions which fell for their decision, namely, (1) that Kunhi Moosa Haji was an evacuee within the meaning of S. 2 (d) of the Act and (2) that his property was evacuee property. It was open to the petitioner to challenge the decision of the Custodian-General, New Delhi by moving the appropriate High Court in respect thereof; it was also open to the petitioner to move this Court by way of special leave against the decision of the Custodian-General or of the other appropriate authorities under the Act. The petitioner did not, however, choose to do so. The result, therefore, is that the order of the Custodian-General has become final. Under S. 28 of the Act the order cannot be called in question in any court by way of an appeal or revision or in any original suit, application or execution proceeding. It is, indeed, true that S. 28 of the Act cannot affect the power of the High Court under Arts. 226 and 227 of the Constitution or of this Court under Arts. 136 and 32 of the Constitution. Where, however, on account of the decision of an authority of competent jurisdiction the right alleged by the petitioner has been found not to exist, it is difficult to see how any question of the infringement of that right can arise as a ground for a petition under Art. 32 of the Constitution, unless the decision of the authority of competent jurisdiction on the right alleged by the petitioner is held to be a nullity or can be otherwise got rid of. As long as that decision stands, the petitioner cannot complain of any infringement of a fundamental right. The alleged fundamental right of the petitioner is really dependent on whether Kunhi Moosa Haji was an evacuee and whether his property is evacuee property. If the decision of the appropriate authorities of competent jurisdiction on these questions has become final and cannot be treated as a nullity or cannot be otherwise got rid of, the petitioner cannot complain of any infringement of her fundamental right under Arts. 19 (1) (f) and 31 of the Constitution.5. It is worthy of note that the relevant provisions of the Act have not been challenged before us as unconstitutional, nor can it be seriously contended before us that the orders of the appropriate authorities under the Act can be treated as null and void for want of jurisdiction. What is contended before us is that the orders were incorrect on merits. That is a point which the petitioner should have agitated in an appropriate proceeding either by way of an appeal from the order of the Custodian-General with special leave of this Court or by an appropriate proceeding in the High Court having jurisdiction over the Custodian General. The petitioner did not take either of these steps, and we do not think that she can be permitted now to challenge the correctness on merits of the orders of the appropriate authorities under the Act on a writ petition under Art. 32 of the Constitution on the basis that her fundamental right has been infringed.6. In 1960-3 SCR 138 : (AIR 1960 SC 768 ), the facts were these. The petitioner who had migrated to West Pakistan applied to the High Court of Madhya Bharat for a writ of habeas corpus for directions to produce petitioners 2 and 3, his minor children, before the court on the allegation that they were wrongfully confined and, upon the dismissal of the said application, he applied to the District Judge of Ratlam under the Guardian and Wards Act for his appointment as guardian of the person and property of the said minors; the District Judge rejected the application and appointed another person as guardian; the petitioner then appealed to the High Court against the order of the District Judge and that appeal was dismissed. He applied for special leave to appeal to this Court and that application was also rejected. Thereafter he moved an application under Art. 32 of the Constitution and it was held that where on account of the decision of a court of competent jurisdiction, the right alleged by the petitioner does not exist and, therefore, its infringement cannot arise, this Court cannot entertain a petition under Art. 32 for protection of the alleged right. We are of the opinion that the principle of this decision also applies to the present case. The circumstance that in 1960-3 SCR 138 : (AIR 1960 SC 768 ), an application for special leave was made and rejected makes no difference to the application of the principle. So far as the principle is concerned the position is the same when an application is made and rejected and when no application is made. The result in both cases is that the decision becomes final and binding on the parties thereto. We must make it clear that we are not basing our decision on the circumstance that the High Court of Kerala rejected the application of the petitioner on the ground that it had no territorial jurisdiction. We are basing our decision on the ground that the competent authorities under the Act had come to a certain decision, which decision has now become final the petitioner not having moved against that decision in an appropriate court by an appropriate proceeding. As long as that decision stands the petitioner cannot complain of the infringement of a fundamental right, for she has no such right.
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We do not, however think that any question of lack of jurisdiction is involved in this case. The petitioner appeared in response to the notice and raised no point of jurisdiction. In subsequent proceedings before the Deputy Custodian and the Custodian-General she contested the correctness of the orders passed on merits no question of jurisdiction was canvassed at any stage and we do not think that the notice suffered from any such defect as would attract the question of jurisdiction. We need only add that no question of the constitutionality of any law is raised by thethe present case, the appropriate authorities of competent jurisdiction under the Act have determined the two questions which fell for their decision, namely, (1) that Kunhi Moosa Haji was an evacuee within the meaning of S. 2 (d) of the Act and (2) that his property was evacuee property. It was open to the petitioner to challenge the decision of the Custodian-General, New Delhi by moving the appropriate High Court in respect thereof; it was also open to the petitioner to move this Court by way of special leave against the decision of the Custodian-General or of the other appropriate authorities under the Act. The petitioner did not, however, choose to do so. The result, therefore, is that the order of the Custodian-General has become final. Under S. 28 of the Act the order cannot be called in question in any court by way of an appeal or revision or in any original suit, application or execution proceeding. It is, indeed, true that S. 28 of the Act cannot affect the power of the High Court under Arts. 226 and 227 of the Constitution or of this Court under Arts. 136 and 32 of the Constitution. Where, however, on account of the decision of an authority of competent jurisdiction the right alleged by the petitioner has been found not to exist, it is difficult to see how any question of the infringement of that right can arise as a ground for a petition under Art. 32 of the Constitution, unless the decision of the authority of competent jurisdiction on the right alleged by the petitioner is held to be a nullity or can be otherwise got rid of. As long as that decision stands, the petitioner cannot complain of any infringement of a fundamental right. The alleged fundamental right of the petitioner is really dependent on whether Kunhi Moosa Haji was an evacuee and whether his property is evacuee property. If the decision of the appropriate authorities of competent jurisdiction on these questions has become final and cannot be treated as a nullity or cannot be otherwise got rid of, the petitioner cannot complain of any infringement of her fundamental right under Arts. 19 (1) (f) and 31 of theis a point which the petitioner should have agitated in an appropriate proceeding either by way of an appeal from the order of the Custodian-General with special leave of this Court or by an appropriate proceeding in the High Court having jurisdiction over the Custodian General. The petitioner did not take either of these steps, and we do not think that she can be permitted now to challenge the correctness on merits of the orders of the appropriate authorities under the Act on a writ petition under Art. 32 of the Constitution on the basis that her fundamental right has beenfar as the principle is concerned the position is the same when an application is made and rejected and when no application is made. The result in both cases is that the decision becomes final and binding on the parties thereto. We must make it clear that we are not basing our decision on the circumstance that the High Court of Kerala rejected the application of the petitioner on the ground that it had no territorial jurisdiction. We are basing our decision on the ground that the competent authorities under the Act had come to a certain decision, which decision has now become final the petitioner not having moved against that decision in an appropriate court by an appropriate proceeding. As long as that decision stands the petitioner cannot complain of the infringement of a fundamental right, for she has no such right.
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Life Insurance Corporation Of India Vs. Crown Life Insurance Co | which the appellant is contending there will be a clear inconsistency between cl. (d) and S. 35 of the Act. Section 35 permits a foreign insurer to take away what may be called excess assets but a foreign insurer is not bound to make an application under S. 35. Now take the case of the respondent. It is not in dispute that the respondent has taken away excess assets with the permission of the Central Government under S. 35, to the tune of about rupees fifteen or sixteen lakhs. But if the respondent had not chosen to make the application under S. 35, all his assets would have to be considered under Part B relating to compensation. If that was so, according to the contention put forward on behalf of the appellant as to the meaning of the words "life insurance fund" the total compensation under Part B of the First Schedule to which the respondent would have been entitled, would be Rs. 1,74,408. This means that as by making an application the respondent was able to take away Rs. 15,73,540 under S. 35(2) he would further get Rs. 1,11,466 as compensation under Part B of the First Schedule to the Act. But if he had not made the application under S. 35, he would only get Rs. 1,74,408 in all. There is no doubt that the legislature could not have intended such a result namely, that the insurer should get away with a much larger amount if he applies under S. 35 and should get a much smaller amount if he does not choose to apply under S. 35. On the other hand, if we accept the contention of the respondent as to the meaning of the words "life insurance fund" it would make no difference to the compensation whether the insurer applies under S. 35 or not. We must hold that the legislature intended that in either case an insurer would get the same amount whether it comes to him as compensation in one sum or comes to him as compensation in one sum or comes to him as compensation plus repatriation of excess assets. If the words "life insurance fund" are interpreted to mean what the respondent says, the result would be this. If it applies for repatriation it would get Rs. 15,73,540 as repatriation of excess assets and Rs. 27,86,658 as compensation under Part B; total Rs. 43,60,198. If it does not apply for repatriation and if cl. (d) has the meaning urged on behalf of the respondent, its total compensation would come to the same figure, namely, Rs. 43,60,198. This clearly shows that the legislature intended the words "life insurance fund" to mean what they meant in S. 10(2) for that would give in our opinion the same result whether an insurer applied under S. 35 or not. 17. We have already said that cl.(d) provides for past surplus in form I, the responsibility for which passes on to the Life Insurance Corporation when it takes over the life business of an insurer. So far as the future is concerned, cl. (b) of the aforesaid 4th paragraph provides for a higher valuation for with profits polities with the result that the liability which the insurer whose business is being taken over has to bear with respect to with profit policies is higher. The appellant apparently claimed an amount under cl.(d)on the ground that at future valuation the bonus payable to the policy holders would be reduced. Now cl. (d) in our opinion provides for cases where there have been surpluses in the past while the provisions for the future in respect of profit policies is to be found in cl. (b). The appellant therefore cannot be claim to anything under cl. (d) unless there were surplus in the past in form I of the Fourth Schedule to the Insurance Act. The contention that the appellant is likely to suffer if the meaning contended for by the respondent is given to the words "life insurance fund", particularly with respect to with profit policies has in the circumstances no force, for there is already a weightage in favour of calculating liability for with profit policies under cl. (b) of the 4th paragraph of Part B of the First Schedule to the Act. 18. Lastly there will be another curious result if the words "life insurance fund" in cl.(d) is given the meaning contended for on behalf of the appellant. Take the case of an Indian company which has shares but which has always been showing deficit in form I of the Fourth Schedule to the Insurance Act. If its life insurance fund for the purposes of cl. (d) is calculated in the manner contended for on behalf of the appellant the result would be that the share capital of such a company would also come into the assets and if as a result of the share capital going into assets the deficit in form I is converted into surplus such a company would in conceivable circumstances lose 96 per centum of its share capital as if it was part of the life insurance fund. It is obvious that the share capital of an insurance company cannot be a part of the life insurance fund; but on the interpretation urged on behalf of the appellant even 96 per cent, of the share capital may be lost to an insurance company, whose business is being taken over by the Life Insurance Corporation if the words "life insurance fund" are given the wide meaning for which the appellant is contending. We have therefore no doubt that the tribunal was right in its conclusion that the words "life insurance fund" as used in cl. (d) of the aforesaid 4th paragraph have the same meaning as that given to them in S. 10(2) of the Insurance Act read with S. 11 and form D of the Third Schedule to the Insurance Act. In this view of the matter, the appeal must fail. | 0[ds]13. In the first place we have to see what is the reason for the provision in cl. (d) of the aforesaid 4th paragraph. We have no doubt that the provision in cl. (d) is related to the provision in S. 49(1) of the Insurance Act. We have already referred to that section and it requires that 92 1/2 per cent of the surous in form I shill be kept for the policy-holders. Where therefore there is surplus in form 1, 92 1/2 per centum thereof is meant for the policy-holders under this provision. Secondly when transfer of life insurance business from the life insurance companies to the Life Insurance Corporation took place a provision had to be made to carry out the effect of S. 49(1) in connection with the transfer. That provision is to be found in clause (d). It lays down that where there is a surplus in the life insurance fund as a result of the actuarial valuation of policy liabilities made under cl. (b) of the aforesaid paragraph 4, 96 per centum of such surplus shall be shown as a liability. This means that just as under S. 49(1), 92 1/2 per centum of the surplus in form I was meant for the policy-holders so in the case of transfer, 96 per centum of that surplus shall go to the Life Insurance Corporation in order to meet the liabilities arising under S. 49(1) of the Insurance Act for past surplus and to that extent the compensation to be paid to the insurance company from which the Life Insurance Corporation was taking over business would have to be reduced. This was with reference to the past and could not be with reference to the future, for so far as the future was concerned, the Life Insurance Corporation alone was responsible. But if there was a deficit in form I of the insurance company which was being taken over by the Life Insurance Corporation there could be no allocation to the policy-holders under S. 49(1) of the Insurance Act and there would be no liability for the past. So there would be no liability for the past under cl.(d) on the insurer whose business was being taken over by the Life Insurance Corporation. In the present case admittedly there was no surplus in form I in the case of the respondent and therefore there would be no liability on the respondent under cl. (d) of the aforesaid 4th paragraph. This in our opinion is the rationale behind the provision in cl. (d) and as there was always a deficit in connection with the working of the respondent, there could be no liability on the respondent under cl. (d)14. But apart from this rational behind cl. (d) we find that the language of Part A and Part B of the First Schedule relating to principles for determining compensation also leads to the same inference. Part A provides that compensation to be given to an insurer having a share capital on which dividend or bonus is payable who has allocated as bonus to policy-holders the whole or any part of the surplus as disclosed in the abstracts prepared in accordance with Part II of the Fourth Schedule to the Insurance Act in respect of the last actuarial investigation relating to his controlled business as at a date earlier than January 1, 1955 shall be computed under that part. Clearly therefore this provision in Part A refers to surplus to be found by looking at form I of the Fourth Schedule to the Insurance Act. Part B of the First Schedule to the Act then speaks of compensation to be given to an insurer having a share capital on which dividend or bonus is payable but who has not made any such allocation as is referred to in Part A. This immediately brings in the opening words of Part A and shows that Part B applies also to those insurers who having a surplus in form I have not allocated the whole or any part of such surplus to policyholders. The surplus in form I is arrived at as already indicated when the life insurance fund is larger than the liabilities on the policies still to mature. Clearly, Part B provides how compensation is to be paid to companies who had no surplus as disclosed in form I of the Fourth Schedule to the Insurance Act or who if they had any surplus in that form had made no allocation to policyholders. Therefore when cl.(d) of the aforesaid 4th paragraph speaks of the life insurance fund being in surplus that surplus has to be determined in accordance with form I of the Fourth Schedule to the Insurance Act subject to modifications indicated in Part B in the matter of valuation under form H and not in the manner suggested on behalf o the appellant. The word "surplus" in cl.(d) cannot have a meaning different from what is has in the opening words of Part B which come therein from Part A. The context therefore instead of showing that there is any other meaning of the wards "life it insurance fund" in cl. (d) shows that they have the same meaning in that clause as in form I of the Fourth Schedule to the Insurance Act15. Another reason which points to the same conclusion, namely, that the words "life insurance fund" in cl. (d) have the same meaning as in form of the Fourth Schedule to the Insurance Act, is to be found in S. 35(1) and (2) of the Act. Section 35(1) permits a foreign insurer to repatriate certain assets. It says that an insurer incorporated outside India may, before the appointed day, make an application to the Central Government stating that among the assets appertaining to the controlled business of the insurer there are assets brought into India by him for the purpose of building up his life insurance business in India which should not be transferred to and vested in the Life Insurance Corporation. On receipt of such an application, the Central Government has to determine the value of the assets of the insurer appertaining to his controlled business in existence on December 31, 1955 in accordance with the provisions contained in paragraph of Part B of the First Schedule to the Act and deduct there from the total amount of the liabilities of the insurer appertaining to his controlled business as on December 31, 1955 computed in accordance with the provisions contained in the Second Schedule to the Act; and if there is any excess, the Central Government may direct that such assets equivalent in value to the excess shall not be transferred to or vested in the Life Insurance Corporation. It is obvious from these provisions that where the legislature intend to refer to all the assets and liabilities it said so in terms and did not use the words "life insurance fund". The use of the words "life insurance fund" in cl. (d) of the aforesaid 4th paragraph therefore must have the special significance assigned to these words in the Insurance Act and cannot be equated to the different between the total assets and liabilities apart from liabilities towards policies yet to mature16. Besides we are of opinion that if the words "life insurance fund" in cl.(d) are to be given the meaning for which the appellant is contending there will be a clear inconsistency between cl. (d) and S. 35 of the Act. Section 35 permits a foreign insurer to take away what may be called excess assets but a foreign insurer is not bound to make an application under S. 35. Now take the case of the respondent. It is not in dispute that the respondent has taken away excess assets with the permission of the Central Government under S. 35, to the tune of about rupees fifteen or sixteen lakhs. But if the respondent had not chosen to make the application under S. 35, all his assets would have to be considered under Part B relating to compensation. If that was so, according to the contention put forward on behalf of the appellant as to the meaning of the words "life insurance fund" the total compensation under Part B of the First Schedule to which the respondent would have been entitled, would be Rs. 1,74,408. This means that as by making an application the respondent was able to take away Rs. 15,73,540 under S. 35(2) he would further get Rs. 1,11,466 as compensation under Part B of the First Schedule to the Act. But if he had not made the application under S. 35, he would only get Rs. 1,74,408 in all. There is no doubt that the legislature could not have intended such a result namely, that the insurer should get away with a much larger amount if he applies under S. 35 and should get a much smaller amount if he does not choose to apply under S. 35. On the other hand, if we accept the contention of the respondent as to the meaning of the words "life insurance fund" it would make no difference to the compensation whether the insurer applies under S. 35 or not. We must hold that the legislature intended that in either case an insurer would get the same amount whether it comes to him as compensation in one sum or comes to him as compensation in one sum or comes to him as compensation plus repatriation of excess assets. If the words "life insurance fund" are interpreted to mean what the respondent says, the result would be this. If it applies for repatriation it would get Rs. 15,73,540 as repatriation of excess assets and Rs. 27,86,658 as compensation under Part B; total Rs. 43,60,198. If it does not apply for repatriation and if cl. (d) has the meaning urged on behalf of the respondent, its total compensation would come to the same figure, namely, Rs. 43,60,198. This clearly shows that the legislature intended the words "life insurance fund" to mean what they meant in S. 10(2) for that would give in our opinion the same result whether an insurer applied under S. 35 or not17. We have already said that cl.(d) provides for past surplus in form I, the responsibility for which passes on to the Life Insurance Corporation when it takes over the life business of an insurer. So far as the future is concerned, cl. (b) of the aforesaid 4th paragraph provides for a higher valuation for with profits polities with the result that the liability which the insurer whose business is being taken over has to bear with respect to with profit policies is higher. The appellant apparently claimed an amount under cl.(d)on the ground that at future valuation the bonus payable to the policy holders would be reduced. Now cl. (d) in our opinion provides for cases where there have been surpluses in the past while the provisions for the future in respect of profit policies is to be found in cl. (b). The appellant therefore cannot be claim to anything under cl. (d) unless there were surplus in the past in form I of the Fourth Schedule to the Insurance Act. The contention that the appellant is likely to suffer if the meaning contended for by the respondent is given to the words "life insurance fund", particularly with respect to with profit policies has in the circumstances no force, for there is already a weightage in favour of calculating liability for with profit policies under cl. (b) of the 4th paragraph of Part B of the First Schedule to the Act18. Lastly there will be another curious result if the words "life insurance fund" in cl.(d) is given the meaning contended for on behalf of the appellant. Take the case of an Indian company which has shares but which has always been showing deficit in form I of the Fourth Schedule to the Insurance Act. If its life insurance fund for the purposes of cl. (d) is calculated in the manner contended for on behalf of the appellant the result would be that the share capital of such a company would also come into the assets and if as a result of the share capital going into assets the deficit in form I is converted into surplus such a company would in conceivable circumstances lose 96 per centum of its share capital as if it was part of the life insurance fund. It is obvious that the share capital of an insurance company cannot be a part of the life insurance fund; but on the interpretation urged on behalf of the appellant even 96 per cent, of the share capital may be lost to an insurance company, whose business is being taken over by the Life Insurance Corporation if the words "life insurance fund" are given the wide meaning for which the appellant is contending. We have therefore no doubt that the tribunal was right in its conclusion that the words "life insurance fund" as used in cl. (d) of the aforesaid 4th paragraph have the same meaning as that given to them in S. 10(2) of the Insurance Act read with S. 11 and form D of the Third Schedule to the Insurance Act. In this view of the matter, the appeal must fail. | 0 | 7,335 | 2,488 | ### Instruction:
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which the appellant is contending there will be a clear inconsistency between cl. (d) and S. 35 of the Act. Section 35 permits a foreign insurer to take away what may be called excess assets but a foreign insurer is not bound to make an application under S. 35. Now take the case of the respondent. It is not in dispute that the respondent has taken away excess assets with the permission of the Central Government under S. 35, to the tune of about rupees fifteen or sixteen lakhs. But if the respondent had not chosen to make the application under S. 35, all his assets would have to be considered under Part B relating to compensation. If that was so, according to the contention put forward on behalf of the appellant as to the meaning of the words "life insurance fund" the total compensation under Part B of the First Schedule to which the respondent would have been entitled, would be Rs. 1,74,408. This means that as by making an application the respondent was able to take away Rs. 15,73,540 under S. 35(2) he would further get Rs. 1,11,466 as compensation under Part B of the First Schedule to the Act. But if he had not made the application under S. 35, he would only get Rs. 1,74,408 in all. There is no doubt that the legislature could not have intended such a result namely, that the insurer should get away with a much larger amount if he applies under S. 35 and should get a much smaller amount if he does not choose to apply under S. 35. On the other hand, if we accept the contention of the respondent as to the meaning of the words "life insurance fund" it would make no difference to the compensation whether the insurer applies under S. 35 or not. We must hold that the legislature intended that in either case an insurer would get the same amount whether it comes to him as compensation in one sum or comes to him as compensation in one sum or comes to him as compensation plus repatriation of excess assets. If the words "life insurance fund" are interpreted to mean what the respondent says, the result would be this. If it applies for repatriation it would get Rs. 15,73,540 as repatriation of excess assets and Rs. 27,86,658 as compensation under Part B; total Rs. 43,60,198. If it does not apply for repatriation and if cl. (d) has the meaning urged on behalf of the respondent, its total compensation would come to the same figure, namely, Rs. 43,60,198. This clearly shows that the legislature intended the words "life insurance fund" to mean what they meant in S. 10(2) for that would give in our opinion the same result whether an insurer applied under S. 35 or not. 17. We have already said that cl.(d) provides for past surplus in form I, the responsibility for which passes on to the Life Insurance Corporation when it takes over the life business of an insurer. So far as the future is concerned, cl. (b) of the aforesaid 4th paragraph provides for a higher valuation for with profits polities with the result that the liability which the insurer whose business is being taken over has to bear with respect to with profit policies is higher. The appellant apparently claimed an amount under cl.(d)on the ground that at future valuation the bonus payable to the policy holders would be reduced. Now cl. (d) in our opinion provides for cases where there have been surpluses in the past while the provisions for the future in respect of profit policies is to be found in cl. (b). The appellant therefore cannot be claim to anything under cl. (d) unless there were surplus in the past in form I of the Fourth Schedule to the Insurance Act. The contention that the appellant is likely to suffer if the meaning contended for by the respondent is given to the words "life insurance fund", particularly with respect to with profit policies has in the circumstances no force, for there is already a weightage in favour of calculating liability for with profit policies under cl. (b) of the 4th paragraph of Part B of the First Schedule to the Act. 18. Lastly there will be another curious result if the words "life insurance fund" in cl.(d) is given the meaning contended for on behalf of the appellant. Take the case of an Indian company which has shares but which has always been showing deficit in form I of the Fourth Schedule to the Insurance Act. If its life insurance fund for the purposes of cl. (d) is calculated in the manner contended for on behalf of the appellant the result would be that the share capital of such a company would also come into the assets and if as a result of the share capital going into assets the deficit in form I is converted into surplus such a company would in conceivable circumstances lose 96 per centum of its share capital as if it was part of the life insurance fund. It is obvious that the share capital of an insurance company cannot be a part of the life insurance fund; but on the interpretation urged on behalf of the appellant even 96 per cent, of the share capital may be lost to an insurance company, whose business is being taken over by the Life Insurance Corporation if the words "life insurance fund" are given the wide meaning for which the appellant is contending. We have therefore no doubt that the tribunal was right in its conclusion that the words "life insurance fund" as used in cl. (d) of the aforesaid 4th paragraph have the same meaning as that given to them in S. 10(2) of the Insurance Act read with S. 11 and form D of the Third Schedule to the Insurance Act. In this view of the matter, the appeal must fail.
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meaning for which the appellant is contending there will be a clear inconsistency between cl. (d) and S. 35 of the Act. Section 35 permits a foreign insurer to take away what may be called excess assets but a foreign insurer is not bound to make an application under S. 35. Now take the case of the respondent. It is not in dispute that the respondent has taken away excess assets with the permission of the Central Government under S. 35, to the tune of about rupees fifteen or sixteen lakhs. But if the respondent had not chosen to make the application under S. 35, all his assets would have to be considered under Part B relating to compensation. If that was so, according to the contention put forward on behalf of the appellant as to the meaning of the words "life insurance fund" the total compensation under Part B of the First Schedule to which the respondent would have been entitled, would be Rs. 1,74,408. This means that as by making an application the respondent was able to take away Rs. 15,73,540 under S. 35(2) he would further get Rs. 1,11,466 as compensation under Part B of the First Schedule to the Act. But if he had not made the application under S. 35, he would only get Rs. 1,74,408 in all. There is no doubt that the legislature could not have intended such a result namely, that the insurer should get away with a much larger amount if he applies under S. 35 and should get a much smaller amount if he does not choose to apply under S. 35. On the other hand, if we accept the contention of the respondent as to the meaning of the words "life insurance fund" it would make no difference to the compensation whether the insurer applies under S. 35 or not. We must hold that the legislature intended that in either case an insurer would get the same amount whether it comes to him as compensation in one sum or comes to him as compensation in one sum or comes to him as compensation plus repatriation of excess assets. If the words "life insurance fund" are interpreted to mean what the respondent says, the result would be this. If it applies for repatriation it would get Rs. 15,73,540 as repatriation of excess assets and Rs. 27,86,658 as compensation under Part B; total Rs. 43,60,198. If it does not apply for repatriation and if cl. (d) has the meaning urged on behalf of the respondent, its total compensation would come to the same figure, namely, Rs. 43,60,198. This clearly shows that the legislature intended the words "life insurance fund" to mean what they meant in S. 10(2) for that would give in our opinion the same result whether an insurer applied under S. 35 or not17. We have already said that cl.(d) provides for past surplus in form I, the responsibility for which passes on to the Life Insurance Corporation when it takes over the life business of an insurer. So far as the future is concerned, cl. (b) of the aforesaid 4th paragraph provides for a higher valuation for with profits polities with the result that the liability which the insurer whose business is being taken over has to bear with respect to with profit policies is higher. The appellant apparently claimed an amount under cl.(d)on the ground that at future valuation the bonus payable to the policy holders would be reduced. Now cl. (d) in our opinion provides for cases where there have been surpluses in the past while the provisions for the future in respect of profit policies is to be found in cl. (b). The appellant therefore cannot be claim to anything under cl. (d) unless there were surplus in the past in form I of the Fourth Schedule to the Insurance Act. The contention that the appellant is likely to suffer if the meaning contended for by the respondent is given to the words "life insurance fund", particularly with respect to with profit policies has in the circumstances no force, for there is already a weightage in favour of calculating liability for with profit policies under cl. (b) of the 4th paragraph of Part B of the First Schedule to the Act18. Lastly there will be another curious result if the words "life insurance fund" in cl.(d) is given the meaning contended for on behalf of the appellant. Take the case of an Indian company which has shares but which has always been showing deficit in form I of the Fourth Schedule to the Insurance Act. If its life insurance fund for the purposes of cl. (d) is calculated in the manner contended for on behalf of the appellant the result would be that the share capital of such a company would also come into the assets and if as a result of the share capital going into assets the deficit in form I is converted into surplus such a company would in conceivable circumstances lose 96 per centum of its share capital as if it was part of the life insurance fund. It is obvious that the share capital of an insurance company cannot be a part of the life insurance fund; but on the interpretation urged on behalf of the appellant even 96 per cent, of the share capital may be lost to an insurance company, whose business is being taken over by the Life Insurance Corporation if the words "life insurance fund" are given the wide meaning for which the appellant is contending. We have therefore no doubt that the tribunal was right in its conclusion that the words "life insurance fund" as used in cl. (d) of the aforesaid 4th paragraph have the same meaning as that given to them in S. 10(2) of the Insurance Act read with S. 11 and form D of the Third Schedule to the Insurance Act. In this view of the matter, the appeal must fail.
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Commissioner Of Income Tax, West Bengal Vs. Wesman Engg. Co. (P.) Ltd | and the High Court by order dated 8-9-1977 certified it to be a fit case for appeal to the Supreme Court under S.261 of the Income Tax Act. 1961 and issued a certificate accordingly. 8. We have heard Mr. S.C. Manchanda. Sr. Advocate for the appellant but nobody appeared for the respondent. The High Court in answering the reference placed reliance on its earlier judgment dated August 12.1970 but the copy of the said judgment has not been supplied in the paper book as such we were deprived to go through the reasoning given by the High Court in answering the reference in the affirmative and in favour of the assessee. 9. It was contended by Mr. Manchanda that the order passed by the Income Tax Officer under S.195 (2) of the Income Tax Act. 1961 (hereinafter referred to as the Act) was not appealable to AAC. under S.248 of the Act. His further contention was that the order passed by AAC. was totally without jurisdiction and the only remedy available to the assessee was to file a writ petition to High Court under Art.226 of the Constitution of India. In our opinion this question does not arise before us nor such question was raised in the reference before the High Court. The Commissioner of Income Tax only sought to refer the following question for the opinion of the High Court: "Whether. on the facts and circumstances of the case in appeal filed under S.248 Income Tax Act. 1961. the Appellate Assistant Commissioner had jurisdiction to deal with the quantum of the sum chargeable under the provision of the said Act from which the assessee was liable to deduct tax under S.195 thereof?" The above question does not contain the objection that no appeal was maintainable under S.248 of the Act against the order of the Income Tax Officer passed under S.195(2) of the Act. The High Court was not called upon to decide any question of jurisdiction as sought to be raised by Mr. Manchanda before us nor the High Court has granted any certificate in this regard. So far as the question referred to the High Court is concerned. its language shows that there was no controversy about the appeal filed under S.248 of the Aa and the only question raised was whether the AAC. had jurisdiction to deal with the quantum of the sum chargeable under the provisions of the said Act from which the assessee was liable to deduct tax under S.195 thereof. The argument thus raised by Mr. Manchanda before us that Order under S.195(2) was not appealable under S.248 of the Act. is not available. Even otherwise the language of S.248 of the Act is wide enough to cover any order passed under S.195 of the Act. The case Meteor Satellite Ltd. v. Income Tax Officer. Companies Circle-IX. Ahmedabad (1980) 121 ITR p. 311 cited in support of the above contention by Mr. Manchanda is of no relevance. 10. It was next contended by Mr. Manchanda that the AAC. was wrong in holding that the quantum of income could be determined in an appeal under S.248. It was also argued that the A AC. was also wrong in allowing the expenses as 75% of the remittance. It would be proper to reproduce S.248 of the Act which reads as under: Section 248: Appeal by Person Denying Liability to Deduct tax: "Any person having in accordance with the provisions of S.195 and 200 deducted and paid tax in respect of any sum chargeable under this Act. other than interest. who denies his liability to make such deduction. may appeal to the Deputy Commissioner (Appeals) or. as the case may be. the Commissioner (Appeals) to be declared not liable to make such deduction." 12. It was argued by Mr. Manchanda that under S.248 a person could deny his liability to make such deduction but there was ho power to determine the quantum and to say as to what extent the said remittance will be taxed. We find no force in the above contention. S.248 makes a mention of S.195 and 200 and it does not speak of the sub-clauses of S.195 either (1) or (2). When once an appeal has been preferred to the A.AC. on the matter of liability of the company to deduct taxes. the A.A.C. is well within his competence to pass an order on the quantum also. In our opinion the A.A.C. was also competent to pass an order with regard to quantum when once he is seized of the matter. Under S.248 a person having deducted and paid tax under S.195 may appeal to the A AC. denying his liability to make such deduction and for a declaration that he is not liable to make such deduction. It is thus difficult to accept the argument that total denial may enable an appeal to be filed but not a part denial with reference to part of the payment subjected to deduction of tax. The right of appeal given under S.248 is clear and we cannot accept the view sought to be propounded by Mr. Manchanda that such a right is restricted and the A.A.C was not competent to fix the quantum or to revise the proportion of the amount chargeable under the provisions of the Act as determined by the Income Tax Officer. S.251 of the Act provides with the powers of the Deputy Commissioner (Appeals) or. as the case may be. the Commissioner (Appeals) Clause (c) of Sub-Sec. (1) of S.251 reads as under: S.251 (1)(c): "In any other case. he may pass such orders in the appeal as he thinks fit." 13. The above provision gives full power to the Appellate authority to pass such orders in I the appeal as he thinks fit. There is no controversy before us that appeal could lie before A.A.C. under S.248 of the Act. We are thus in agreement with the view taken by the High Court and the Income Tax Appellate Tribunal. | 0[ds]In our opinion this question does not arise before us nor such question was raised in the reference before the High Court. The Commissioner of Income Tax only sought to refer the following question for the opinion of the Highon the facts and circumstances of the case in appeal filed under S.248 Income Tax Act. 1961. the Appellate Assistant Commissioner had jurisdiction to deal with the quantum of the sum chargeable under the provision of the said Act from which the assessee was liable to deduct tax under S.195above question does not contain the objection that no appeal was maintainable under S.248 of the Act against the order of the Income Tax Officer passed under S.195(2) of the Act. The High Court was not called upon to decide any question of jurisdiction as sought to be raised by Mr. Manchanda before us nor the High Court has granted any certificate in this regard. So far as the question referred to the High Courtis concerned. its language shows that there was no controversy about the appeal filed under S.248 of the Aa and the only question raised was whether the AAC. had jurisdiction to deal with the quantum of the sum chargeable under the provisions of the said Act from which the assessee was liable to deduct tax under S.195 thereof. The argument thus raised by Mr. Manchanda before us that Order under S.195(2) was not appealable under S.248 of the Act. is not available. Even otherwise the language of S.248 of the Act is wide enough to cover any order passed under S.195 of thecase Meteor Satellite Ltd. v. Income Tax Officer. CompaniesAhmedabad (1980) 121 ITR p. 311 cited in support of the above contention by Mr. Manchanda is of nofind no force in the above contention. S.248 makes a mention of S.195 and 200 and it does not speak of theof S.195 either (1) or (2). When once an appeal has been preferred to the A.AC. on the matter of liability of the company to deduct taxes. the A.A.C. is well within his competence to pass an order on the quantum also. In our opinion the A.A.C. was also competent to pass an order with regard to quantum when once he is seized of the matter. Under S.248 a person having deducted and paid tax under S.195 may appeal to the A AC. denying his liability to make such deduction and for a declaration that he is not liable to make such deduction. It is thus difficult to accept the argument that total denial may enable an appeal to be filed but not a part denial with reference to part of the payment subjected to deduction of tax. The right of appeal given under S.248 is clear and we cannot accept the view sought to be propounded by Mr. Manchanda that such a right is restricted and the A.A.C was not competent to fix the quantum or to revise the proportion of the amount chargeable under the provisions of the Act as determined by the Income Tax OfficerS.251 of the Act provides with the powers of the Deputy Commissioner (Appeals) or. as the case may be. the Commissioner (Appeals) Clause (c) of(1) of S.251 reads asn any other case. he may pass such orders in the appeal as he thinks fit.The above provision gives full power to the Appellate authority to pass such orders in I the appeal as he thinks fit. There is no controversy before us that appeal could lie before A.A.C. under S.248 of the Act. We are thus in agreement with the view taken by the High Court and the Income Tax Appellate Tribunal. | 0 | 2,629 | 663 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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and the High Court by order dated 8-9-1977 certified it to be a fit case for appeal to the Supreme Court under S.261 of the Income Tax Act. 1961 and issued a certificate accordingly. 8. We have heard Mr. S.C. Manchanda. Sr. Advocate for the appellant but nobody appeared for the respondent. The High Court in answering the reference placed reliance on its earlier judgment dated August 12.1970 but the copy of the said judgment has not been supplied in the paper book as such we were deprived to go through the reasoning given by the High Court in answering the reference in the affirmative and in favour of the assessee. 9. It was contended by Mr. Manchanda that the order passed by the Income Tax Officer under S.195 (2) of the Income Tax Act. 1961 (hereinafter referred to as the Act) was not appealable to AAC. under S.248 of the Act. His further contention was that the order passed by AAC. was totally without jurisdiction and the only remedy available to the assessee was to file a writ petition to High Court under Art.226 of the Constitution of India. In our opinion this question does not arise before us nor such question was raised in the reference before the High Court. The Commissioner of Income Tax only sought to refer the following question for the opinion of the High Court: "Whether. on the facts and circumstances of the case in appeal filed under S.248 Income Tax Act. 1961. the Appellate Assistant Commissioner had jurisdiction to deal with the quantum of the sum chargeable under the provision of the said Act from which the assessee was liable to deduct tax under S.195 thereof?" The above question does not contain the objection that no appeal was maintainable under S.248 of the Act against the order of the Income Tax Officer passed under S.195(2) of the Act. The High Court was not called upon to decide any question of jurisdiction as sought to be raised by Mr. Manchanda before us nor the High Court has granted any certificate in this regard. So far as the question referred to the High Court is concerned. its language shows that there was no controversy about the appeal filed under S.248 of the Aa and the only question raised was whether the AAC. had jurisdiction to deal with the quantum of the sum chargeable under the provisions of the said Act from which the assessee was liable to deduct tax under S.195 thereof. The argument thus raised by Mr. Manchanda before us that Order under S.195(2) was not appealable under S.248 of the Act. is not available. Even otherwise the language of S.248 of the Act is wide enough to cover any order passed under S.195 of the Act. The case Meteor Satellite Ltd. v. Income Tax Officer. Companies Circle-IX. Ahmedabad (1980) 121 ITR p. 311 cited in support of the above contention by Mr. Manchanda is of no relevance. 10. It was next contended by Mr. Manchanda that the AAC. was wrong in holding that the quantum of income could be determined in an appeal under S.248. It was also argued that the A AC. was also wrong in allowing the expenses as 75% of the remittance. It would be proper to reproduce S.248 of the Act which reads as under: Section 248: Appeal by Person Denying Liability to Deduct tax: "Any person having in accordance with the provisions of S.195 and 200 deducted and paid tax in respect of any sum chargeable under this Act. other than interest. who denies his liability to make such deduction. may appeal to the Deputy Commissioner (Appeals) or. as the case may be. the Commissioner (Appeals) to be declared not liable to make such deduction." 12. It was argued by Mr. Manchanda that under S.248 a person could deny his liability to make such deduction but there was ho power to determine the quantum and to say as to what extent the said remittance will be taxed. We find no force in the above contention. S.248 makes a mention of S.195 and 200 and it does not speak of the sub-clauses of S.195 either (1) or (2). When once an appeal has been preferred to the A.AC. on the matter of liability of the company to deduct taxes. the A.A.C. is well within his competence to pass an order on the quantum also. In our opinion the A.A.C. was also competent to pass an order with regard to quantum when once he is seized of the matter. Under S.248 a person having deducted and paid tax under S.195 may appeal to the A AC. denying his liability to make such deduction and for a declaration that he is not liable to make such deduction. It is thus difficult to accept the argument that total denial may enable an appeal to be filed but not a part denial with reference to part of the payment subjected to deduction of tax. The right of appeal given under S.248 is clear and we cannot accept the view sought to be propounded by Mr. Manchanda that such a right is restricted and the A.A.C was not competent to fix the quantum or to revise the proportion of the amount chargeable under the provisions of the Act as determined by the Income Tax Officer. S.251 of the Act provides with the powers of the Deputy Commissioner (Appeals) or. as the case may be. the Commissioner (Appeals) Clause (c) of Sub-Sec. (1) of S.251 reads as under: S.251 (1)(c): "In any other case. he may pass such orders in the appeal as he thinks fit." 13. The above provision gives full power to the Appellate authority to pass such orders in I the appeal as he thinks fit. There is no controversy before us that appeal could lie before A.A.C. under S.248 of the Act. We are thus in agreement with the view taken by the High Court and the Income Tax Appellate Tribunal.
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In our opinion this question does not arise before us nor such question was raised in the reference before the High Court. The Commissioner of Income Tax only sought to refer the following question for the opinion of the Highon the facts and circumstances of the case in appeal filed under S.248 Income Tax Act. 1961. the Appellate Assistant Commissioner had jurisdiction to deal with the quantum of the sum chargeable under the provision of the said Act from which the assessee was liable to deduct tax under S.195above question does not contain the objection that no appeal was maintainable under S.248 of the Act against the order of the Income Tax Officer passed under S.195(2) of the Act. The High Court was not called upon to decide any question of jurisdiction as sought to be raised by Mr. Manchanda before us nor the High Court has granted any certificate in this regard. So far as the question referred to the High Courtis concerned. its language shows that there was no controversy about the appeal filed under S.248 of the Aa and the only question raised was whether the AAC. had jurisdiction to deal with the quantum of the sum chargeable under the provisions of the said Act from which the assessee was liable to deduct tax under S.195 thereof. The argument thus raised by Mr. Manchanda before us that Order under S.195(2) was not appealable under S.248 of the Act. is not available. Even otherwise the language of S.248 of the Act is wide enough to cover any order passed under S.195 of thecase Meteor Satellite Ltd. v. Income Tax Officer. CompaniesAhmedabad (1980) 121 ITR p. 311 cited in support of the above contention by Mr. Manchanda is of nofind no force in the above contention. S.248 makes a mention of S.195 and 200 and it does not speak of theof S.195 either (1) or (2). When once an appeal has been preferred to the A.AC. on the matter of liability of the company to deduct taxes. the A.A.C. is well within his competence to pass an order on the quantum also. In our opinion the A.A.C. was also competent to pass an order with regard to quantum when once he is seized of the matter. Under S.248 a person having deducted and paid tax under S.195 may appeal to the A AC. denying his liability to make such deduction and for a declaration that he is not liable to make such deduction. It is thus difficult to accept the argument that total denial may enable an appeal to be filed but not a part denial with reference to part of the payment subjected to deduction of tax. The right of appeal given under S.248 is clear and we cannot accept the view sought to be propounded by Mr. Manchanda that such a right is restricted and the A.A.C was not competent to fix the quantum or to revise the proportion of the amount chargeable under the provisions of the Act as determined by the Income Tax OfficerS.251 of the Act provides with the powers of the Deputy Commissioner (Appeals) or. as the case may be. the Commissioner (Appeals) Clause (c) of(1) of S.251 reads asn any other case. he may pass such orders in the appeal as he thinks fit.The above provision gives full power to the Appellate authority to pass such orders in I the appeal as he thinks fit. There is no controversy before us that appeal could lie before A.A.C. under S.248 of the Act. We are thus in agreement with the view taken by the High Court and the Income Tax Appellate Tribunal.
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THE MANAGING DIRECTOR (SHRI GRISH BATRA) M/S.PADMINI INFRASTRUCTURE DEVELOPERS (I) LTD. Vs. THE GENERAL SECRETARY (SHRI AMOL MAHAPATRA) ROYAL GARDEN RESDIENTS WELFARE ASSOCIATION | claim of the complainant for maintenance charges, though the local Commissioner had nothing to do with the same. 22. The Commissioner appointed by the National Commission was an architect by name Amit Bahl. When he carried out the inspection, 4 persons representing the opposite party, which included the advocate of the opposite party and the deponent to the affidavit of objections were present. The architect examined each one of the items and not only found that they were not operational on date but also found, (i) that the equipment for the water softening plant was incomplete, ineffective and inadequate; (ii) that the fire-fighting equipments were not in operation due to incomplete commissioning of the system as a whole and that even the fire safety certificate dated 05.11.2001 noted down the same; (iii) that while the first health club in the basement of the Tower Blue Heaven-2 was fully furnished and functional, the second health club was not adequately furnished though the civil works are complete; (iv) that the second swimming pool was not complete and operational, as the filtration plant was non- functional and the pump was removed after installation and that even the change rooms and showers have not been provided for; and (v) that in so far as the club house in the basement of Eden tower is concerned it was kept under lock and key by the opposite party and found to have been used as a store for keeping various building materials. 23. In the light of the aforesaid findings by an independent architect appointed by the National Commission it is not open to the opposite party to create a façade as though all essential services and amenities were handed over in a fully functional state. If all the aforesaid services had been handed over in a fully functional state, the opposite party should have taken an acknowledgment in writing from the complainant. In the alternative, the opposite party should have insisted upon an appropriate provision in the Agreement dated 15.11.2003. 24. As noted by the Commissioner, even the fire safety certificate dated 05.11.2001 states that though the majority of the equipment have been satisfactorily installed, some equipment have been removed and stored for security purposes and that the inference therefore is that the system never got commissioned. 25. It is not impossible for an experienced architect to find out whether the condition in which the aforesaid amenities and services were found on the date of the inspection, was entirely due to lack of maintenance or due to non-commissioning or incomplete commissioning. 26. As noted by the National Commission, the affidavit of objections filed on behalf of the opposite party to the Report of the local Commissioner does not deal with the cost of estimates indicated by the Commissioner in his Report. In addition, the affidavit of objections does not even deal with the finding relating to the club house at Eden Tower, said to have been kept under lock and key by the opposite party for storing building materials. The very fact that at the time of inspection by the local Commissioner, the possession of the club house in Eden Tower was with the opposite party, goes to show that the opposite party was still retaining control of at least some part or certain services in the complex, perhaps due to the fact that there were about 45 unsold flats. 27. In view of the above, we are not convinced that the reliefs granted by the National commission in favour of the complainant warrant any interference. Therefore, the appeal in C.A. No.2998 of 2010 is liable to be dismissed. 28. But before we do that, we should take note of the fact that as per the operative portion of the order of the National Commission (which we have extracted elsewhere) the opposite party is obliged to make the systems/facilities at prayer clauses 2, 3, 4, 5 & 6 of the complaint, fully operational/complete and they are also obliged to obtain a certificate of completion from an independent architect. If the opposite party failed to do so within the time stipulated by the National Commission, the opposite party was obliged to pay the cost as estimated by the Commissioner in his Report dated 08.07.2008. 29. The costs estimated by the local Commissioner in his Report dated 08.07.2008 are as follows :- 1. Water softening plant Rs. 20,29,962 2. Fire fighting equipment Rs. 83,00,000 3. Second health club Rs. 7,60,000 4. Second swimming pool Rs. 2,70,000 5. Furnishing the club house in Eden Tower Rs. 2,75,000 Total Rs.1,16,34,962 30. While ordering notice in C.A.No.2998 of 2010, on 29.03.2010, this Court granted stay of operation of the impugned order on condition that the opposite party–builder deposit Rs.60,00,000/- within 8 weeks. Subsequently, the order was modified on 14.05.2010, permitting the opposite party to deposit the sum in two equal instalments, the first instalment before 22.05.2010 and 2nd instalment before 15.07.2010. It appears that the amount has been accordingly deposited and the amount has been invested in a Fixed Deposit which is renewed from time to time by the orders of this Court. 31. In view of the fact that the possession of the common amenities were handed over by the opposite party to the complainant Association 18 years ago (under the Agreement dated 15.11.2003), it may not be possible at this distance of time to compel the opposite party to make those facilities/systems at relief clauses 2, 3, 4, 5 and 6, fully operational now. The cost of estimate which works out to approximately Rs.1.16 crores, includes within itself the cost of fire fighting equipment and this constitutes the major component (it works out to Rs. 83 lakhs). As seen from the Commissioners Report, the mistake committed by the opposite party was in removing a part of the equipment but not putting them back. This finding is as per the fire safety certificate. Therefore, it may not be appropriate to ask the opposite party to bear the entire burden. | 0[ds]16. In the affidavit filed by the local Manager of the opposite party by way of evidence, it was admitted that certain works in relation to fire-fighting equipment continued up to the year 2005. In fact, the opposite party filed certain bills, which were dated 27.02.2005, 22.04.2005, 01.05.2005, 19.07.2005, 29.10.2005 and 12.12.2005, to show that the opposite party was honest and diligent in carrying out their obligations.17. The affidavit in evidence filed by the opposite party and the aforesaid bills establish that the cause of action continued at least till December, 2005. The complaint before the National Commission was filed in February, 2007. Therefore, the National Commission was right in rejecting the objection relating to limitation.19. The reliefs granted by the National Consumer Commission related to water softening plant, fire-fighting, second health club equipment, second swimming pool and space for club house in Eden Tower. These reliefs were granted by the National Commission on the basis of the Report of the local Commissioner.23. In the light of the aforesaid findings by an independent architect appointed by the National Commission it is not open to the opposite party to create a façade as though all essential services and amenities were handed over in a fully functional state. If all the aforesaid services had been handed over in a fully functional state, the opposite party should have taken an acknowledgment in writing from the complainant. In the alternative, the opposite party should have insisted upon an appropriate provision in the Agreement dated 15.11.2003.24. As noted by the Commissioner, even the fire safety certificate dated 05.11.2001 states that though the majority of the equipment have been satisfactorily installed, some equipment have been removed and stored for security purposes and that the inference therefore is that the system never got commissioned.25. It is not impossible for an experienced architect to find out whether the condition in which the aforesaid amenities and services were found on the date of the inspection, was entirely due to lack of maintenance or due to non-commissioning or incomplete commissioning.26. As noted by the National Commission, the affidavit of objections filed on behalf of the opposite party to the Report of the local Commissioner does not deal with the cost of estimates indicated by the Commissioner in his Report. In addition, the affidavit of objections does not even deal with the finding relating to the club house at Eden Tower, said to have been kept under lock and key by the opposite party for storing building materials. The very fact that at the time of inspection by the local Commissioner, the possession of the club house in Eden Tower was with the opposite party, goes to show that the opposite party was still retaining control of at least some part or certain services in the complex, perhaps due to the fact that there were about 45 unsold flats.27. In view of the above, we are not convinced that the reliefs granted by the National commission in favour of the complainant warrant any interference. Therefore, the appeal in C.A. No.2998 of 2010 is liable to be dismissed.28. But before we do that, we should take note of the fact that as per the operative portion of the order of the National Commission (which we have extracted elsewhere) the opposite party is obliged to make the systems/facilities at prayer clauses 2, 3, 4, 5 & 6 of the complaint, fully operational/complete and they are also obliged to obtain a certificate of completion from an independent architect. If the opposite party failed to do so within the time stipulated by the National Commission, the opposite party was obliged to pay the cost as estimated by the Commissioner in his Report dated 08.07.2008.30. While ordering notice in C.A.No.2998 of 2010, on 29.03.2010, this Court granted stay of operation of the impugned order on condition that the opposite party–builder deposit Rs.60,00,000/- within 8 weeks. Subsequently, the order was modified on 14.05.2010, permitting the opposite party to deposit the sum in two equal instalments, the first instalment before 22.05.2010 and 2nd instalment before 15.07.2010. It appears that the amount has been accordingly deposited and the amount has been invested in a Fixed Deposit which is renewed from time to time by the orders of this Court.31. In view of the fact that the possession of the common amenities were handed over by the opposite party to the complainant Association 18 years ago (under the Agreement dated 15.11.2003), it may not be possible at this distance of time to compel the opposite party to make those facilities/systems at relief clauses 2, 3, 4, 5 and 6, fully operational now. The cost of estimate which works out to approximately Rs.1.16 crores, includes within itself the cost of fire fighting equipment and this constitutes the major component (it works out to Rs. 83 lakhs). As seen from the Commissioners Report, the mistake committed by the opposite party was in removing a part of the equipment but not putting them back. This finding is as per the fire safety certificate. Therefore, it may not be appropriate to ask the opposite party to bear the entire burden.33. Now coming to the appeal CA No.4085 of 2010 filed by the complainant against the refusal of the reliefs in prayer clause nos.1, 7, 8, 9 and 10, we think that the National Commission was justified in rejecting those reliefs. The claim for monthly maintenance charges for the unsold flats, amounting to Rs.9,05,810/- sought as per prayer clause no.1, was made by the complainant on the basis of clause 10 of the Agreement dated 15.11.200335. Though the National Commission did not deal with the relief claimed at prayer clause No.1 in sufficient detail and the National Commission did not also provide cogent reasons for rejecting the relief, we find that the complainant may not be entitled to the said relief. There are two reasons as to why we say so. The first reason is that the complainant did not provide detailed calculations about the plinth area of the unsold flats, the period during which they remained unsold and the manner in which the amount indicated in para 16 of the complaint was arrived at. In any case the payments were to be made under clause 10 of the agreement, first within seven days of the agreement in respect of the advance payment for six months and thereafter by way of annual payments in advance. Therefore, a major portion of the claim for money was obviously barred by limitation when the complaint was filed. Moreover, the opposite party raised a dispute about the quantum and asserted in para 16 of their reply before the National Commission that what was due was only Rs.232750/-. Thus, the question became a disputed question of fact on which both parties did not lead sufficient evidence. Therefore, the rejection of the claim at prayer clause No.1 was legally correct.36. The relief claimed at prayer clause no.8 is to direct the opposite party not to sell or rent out the unsold flats till the facilities mentioned in prayer clause nos.2 to 6 are provided. By its very nature, this relief is in the nature of an interim relief and, hence, was rightly rejected by the National Commission in the final judgment.37. The relief claimed in prayer clause no.9 relates to stilt and open car parking. There was no evidence before the National Commission to grant such a relief and, hence, the refusal to grant the relief mentioned in prayer clause no.9 is in order.38. The claim for costs and damages for harassment, mental torture, agony etc., made in prayer clause no.10 was not granted by the National Commission, and rightly so, in view of the fact that after handing over the common amenities under the Agreement dated 15.11.2003, the opposite party continued to carry out at least some works. This is why the complaint was lodged in 2007. Therefore, we find no reason to grant the relief prayed for in prayer clause no.10.39. That leaves us with the relief claimed in prayer clause no.7. This was for a direction to the opposite party to vacate the tenant occupying the terrace of Tower Eden. According to the complainant, the terrace of Tower Eden was let out by the opposite party to a company, leaving the residents of Tower Eden without a terrace for common use. But the relief of eviction involves a third party and hence the National commission rightly left it to the complainant to pursue the remedy in an appropriate Forum.40. Thus, we find that the refusal of the National Commission to grant the reliefs mentioned in prayer clause nos.1, 7, 8, 9 and 10 warrant no interference. Therefore, the appeal of the complainant in CA No.4085 of 2010 is liable to be dismissed. | 0 | 2,988 | 1,605 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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claim of the complainant for maintenance charges, though the local Commissioner had nothing to do with the same. 22. The Commissioner appointed by the National Commission was an architect by name Amit Bahl. When he carried out the inspection, 4 persons representing the opposite party, which included the advocate of the opposite party and the deponent to the affidavit of objections were present. The architect examined each one of the items and not only found that they were not operational on date but also found, (i) that the equipment for the water softening plant was incomplete, ineffective and inadequate; (ii) that the fire-fighting equipments were not in operation due to incomplete commissioning of the system as a whole and that even the fire safety certificate dated 05.11.2001 noted down the same; (iii) that while the first health club in the basement of the Tower Blue Heaven-2 was fully furnished and functional, the second health club was not adequately furnished though the civil works are complete; (iv) that the second swimming pool was not complete and operational, as the filtration plant was non- functional and the pump was removed after installation and that even the change rooms and showers have not been provided for; and (v) that in so far as the club house in the basement of Eden tower is concerned it was kept under lock and key by the opposite party and found to have been used as a store for keeping various building materials. 23. In the light of the aforesaid findings by an independent architect appointed by the National Commission it is not open to the opposite party to create a façade as though all essential services and amenities were handed over in a fully functional state. If all the aforesaid services had been handed over in a fully functional state, the opposite party should have taken an acknowledgment in writing from the complainant. In the alternative, the opposite party should have insisted upon an appropriate provision in the Agreement dated 15.11.2003. 24. As noted by the Commissioner, even the fire safety certificate dated 05.11.2001 states that though the majority of the equipment have been satisfactorily installed, some equipment have been removed and stored for security purposes and that the inference therefore is that the system never got commissioned. 25. It is not impossible for an experienced architect to find out whether the condition in which the aforesaid amenities and services were found on the date of the inspection, was entirely due to lack of maintenance or due to non-commissioning or incomplete commissioning. 26. As noted by the National Commission, the affidavit of objections filed on behalf of the opposite party to the Report of the local Commissioner does not deal with the cost of estimates indicated by the Commissioner in his Report. In addition, the affidavit of objections does not even deal with the finding relating to the club house at Eden Tower, said to have been kept under lock and key by the opposite party for storing building materials. The very fact that at the time of inspection by the local Commissioner, the possession of the club house in Eden Tower was with the opposite party, goes to show that the opposite party was still retaining control of at least some part or certain services in the complex, perhaps due to the fact that there were about 45 unsold flats. 27. In view of the above, we are not convinced that the reliefs granted by the National commission in favour of the complainant warrant any interference. Therefore, the appeal in C.A. No.2998 of 2010 is liable to be dismissed. 28. But before we do that, we should take note of the fact that as per the operative portion of the order of the National Commission (which we have extracted elsewhere) the opposite party is obliged to make the systems/facilities at prayer clauses 2, 3, 4, 5 & 6 of the complaint, fully operational/complete and they are also obliged to obtain a certificate of completion from an independent architect. If the opposite party failed to do so within the time stipulated by the National Commission, the opposite party was obliged to pay the cost as estimated by the Commissioner in his Report dated 08.07.2008. 29. The costs estimated by the local Commissioner in his Report dated 08.07.2008 are as follows :- 1. Water softening plant Rs. 20,29,962 2. Fire fighting equipment Rs. 83,00,000 3. Second health club Rs. 7,60,000 4. Second swimming pool Rs. 2,70,000 5. Furnishing the club house in Eden Tower Rs. 2,75,000 Total Rs.1,16,34,962 30. While ordering notice in C.A.No.2998 of 2010, on 29.03.2010, this Court granted stay of operation of the impugned order on condition that the opposite party–builder deposit Rs.60,00,000/- within 8 weeks. Subsequently, the order was modified on 14.05.2010, permitting the opposite party to deposit the sum in two equal instalments, the first instalment before 22.05.2010 and 2nd instalment before 15.07.2010. It appears that the amount has been accordingly deposited and the amount has been invested in a Fixed Deposit which is renewed from time to time by the orders of this Court. 31. In view of the fact that the possession of the common amenities were handed over by the opposite party to the complainant Association 18 years ago (under the Agreement dated 15.11.2003), it may not be possible at this distance of time to compel the opposite party to make those facilities/systems at relief clauses 2, 3, 4, 5 and 6, fully operational now. The cost of estimate which works out to approximately Rs.1.16 crores, includes within itself the cost of fire fighting equipment and this constitutes the major component (it works out to Rs. 83 lakhs). As seen from the Commissioners Report, the mistake committed by the opposite party was in removing a part of the equipment but not putting them back. This finding is as per the fire safety certificate. Therefore, it may not be appropriate to ask the opposite party to bear the entire burden.
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the complex, perhaps due to the fact that there were about 45 unsold flats.27. In view of the above, we are not convinced that the reliefs granted by the National commission in favour of the complainant warrant any interference. Therefore, the appeal in C.A. No.2998 of 2010 is liable to be dismissed.28. But before we do that, we should take note of the fact that as per the operative portion of the order of the National Commission (which we have extracted elsewhere) the opposite party is obliged to make the systems/facilities at prayer clauses 2, 3, 4, 5 & 6 of the complaint, fully operational/complete and they are also obliged to obtain a certificate of completion from an independent architect. If the opposite party failed to do so within the time stipulated by the National Commission, the opposite party was obliged to pay the cost as estimated by the Commissioner in his Report dated 08.07.2008.30. While ordering notice in C.A.No.2998 of 2010, on 29.03.2010, this Court granted stay of operation of the impugned order on condition that the opposite party–builder deposit Rs.60,00,000/- within 8 weeks. Subsequently, the order was modified on 14.05.2010, permitting the opposite party to deposit the sum in two equal instalments, the first instalment before 22.05.2010 and 2nd instalment before 15.07.2010. It appears that the amount has been accordingly deposited and the amount has been invested in a Fixed Deposit which is renewed from time to time by the orders of this Court.31. In view of the fact that the possession of the common amenities were handed over by the opposite party to the complainant Association 18 years ago (under the Agreement dated 15.11.2003), it may not be possible at this distance of time to compel the opposite party to make those facilities/systems at relief clauses 2, 3, 4, 5 and 6, fully operational now. The cost of estimate which works out to approximately Rs.1.16 crores, includes within itself the cost of fire fighting equipment and this constitutes the major component (it works out to Rs. 83 lakhs). As seen from the Commissioners Report, the mistake committed by the opposite party was in removing a part of the equipment but not putting them back. This finding is as per the fire safety certificate. Therefore, it may not be appropriate to ask the opposite party to bear the entire burden.33. Now coming to the appeal CA No.4085 of 2010 filed by the complainant against the refusal of the reliefs in prayer clause nos.1, 7, 8, 9 and 10, we think that the National Commission was justified in rejecting those reliefs. The claim for monthly maintenance charges for the unsold flats, amounting to Rs.9,05,810/- sought as per prayer clause no.1, was made by the complainant on the basis of clause 10 of the Agreement dated 15.11.200335. Though the National Commission did not deal with the relief claimed at prayer clause No.1 in sufficient detail and the National Commission did not also provide cogent reasons for rejecting the relief, we find that the complainant may not be entitled to the said relief. There are two reasons as to why we say so. The first reason is that the complainant did not provide detailed calculations about the plinth area of the unsold flats, the period during which they remained unsold and the manner in which the amount indicated in para 16 of the complaint was arrived at. In any case the payments were to be made under clause 10 of the agreement, first within seven days of the agreement in respect of the advance payment for six months and thereafter by way of annual payments in advance. Therefore, a major portion of the claim for money was obviously barred by limitation when the complaint was filed. Moreover, the opposite party raised a dispute about the quantum and asserted in para 16 of their reply before the National Commission that what was due was only Rs.232750/-. Thus, the question became a disputed question of fact on which both parties did not lead sufficient evidence. Therefore, the rejection of the claim at prayer clause No.1 was legally correct.36. The relief claimed at prayer clause no.8 is to direct the opposite party not to sell or rent out the unsold flats till the facilities mentioned in prayer clause nos.2 to 6 are provided. By its very nature, this relief is in the nature of an interim relief and, hence, was rightly rejected by the National Commission in the final judgment.37. The relief claimed in prayer clause no.9 relates to stilt and open car parking. There was no evidence before the National Commission to grant such a relief and, hence, the refusal to grant the relief mentioned in prayer clause no.9 is in order.38. The claim for costs and damages for harassment, mental torture, agony etc., made in prayer clause no.10 was not granted by the National Commission, and rightly so, in view of the fact that after handing over the common amenities under the Agreement dated 15.11.2003, the opposite party continued to carry out at least some works. This is why the complaint was lodged in 2007. Therefore, we find no reason to grant the relief prayed for in prayer clause no.10.39. That leaves us with the relief claimed in prayer clause no.7. This was for a direction to the opposite party to vacate the tenant occupying the terrace of Tower Eden. According to the complainant, the terrace of Tower Eden was let out by the opposite party to a company, leaving the residents of Tower Eden without a terrace for common use. But the relief of eviction involves a third party and hence the National commission rightly left it to the complainant to pursue the remedy in an appropriate Forum.40. Thus, we find that the refusal of the National Commission to grant the reliefs mentioned in prayer clause nos.1, 7, 8, 9 and 10 warrant no interference. Therefore, the appeal of the complainant in CA No.4085 of 2010 is liable to be dismissed.
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Management of Shri Chalthan Vibhag Khan Udyog Sahakari Mandal Ltd Vs. B.S. Barot Member, Industrial Court, Gujarat and Another Etc | the manufacturing units. These amounts relate to ex pansion of the industry and should be shown in the capital account and cannot be claimed as deduction due to depreciation. The accounting of the sugar factories concerned is for the purpose of minimising the profits and showing loss for the purpose of depriving the workers their due. Such depreciation cannot be allowed. But as pointed out by us the actual depreciation which should be deducted in the interest of the industry can be taken into account. In the cases before us if the inflated figures should be left out of account we feel that the industry has the capacity to bear the additional burden.The High Court after referring to the decisions of this Court in Gramophone Co. and Indian Link Chain Manufacturers and the Shivraj Litho Works (supra) came to the conclusion that gross profits before allowance is made for depreciation has to be taken into account for the purpose of considering the paying capacity of the industry. The High Court added the amount of depreciation to the net profits as shown in the balance sheet and found that large profits were available as gross profits. The High Court was of the view that the position of the three factories in South Gujarat, namely Gandevi, Bardoli and Madhi is not at all gloomy so far as their financial prospects are concerned. The High Court found that though the price of sugarcane was fixed for delivery at the factory, it has paid the price to the growers ex-sugarcane field, thus bearing the charges for cutting sugarcane and for carrying it to the factory premises from the field. This payment was unjustified and was intended for the benefit of the members of the cooperative society and resulted in showing of a Paper Los s. We are unable to agree with the conclusion of the High Court that this payment is unjustified and is for the purpose of benefiting its own members. It is submitted on behalf of the factories that the sugar factories pay an extra amount t o the growers to induce them to cultivate sugarcane for a profit and thereby preventing them from cultivating other crops and reducing the area under sugarcane cultivation. The finding of the High Court that this extra payment is to benefit the members of the society itself is also not borne out as there are members who are not growers of sugarcane. The benefits by way of giving fertilizers at a discount etc. will not profit members who are not growers. The High Court has not estimated the likely increase in profits due to increase in the price of sugar levy along with the increase in expenditure due to the revision of the wage structure which it has estimated at about Rs. 5 lakhs. Further as pointed out by us earlier the High Court erred in adding back the depreciation and other reserves without determining as to what extent such allowances are permissible on the facts of the case. For the reasons stated we feel that the financial capacity of the industry has not been determined in the manner in which it ought to have been done.The wages are normally fixed on the basis of industry-cum-region. The U.P. Pattern was fixed by the Uttar Pradesh Government on an agreement between the parties under section 3(b) of the U.P. Industrial Disputes Act, 1947(U.P. Act No. 18 of 1947). The order under sec. 3 (b) is provisional in character. Section 3 (d) provides for fixing the wages after proper adjudication. No such adjudication took place in U.P. after the passing of the order under sec. 3(b). Even though normally the wages are fixed on the industry-cum-region basis it is open to the industry to plead that it has not the financial capacity to bear the increased burden. When such a plea is specifically raised it is the duty of the Industrial Court to determine whether the increased burden could be borne by the particular industry. The reason given by the Industrial Court and the High Court for following the U.P. Pattern is that it has been accepted by various sugar factories in the southern region and a neighbouring factory Kodinar Sugar Factory and hence there is no reason for not applying the same rates to the appellant factories. On behalf of the appellant it was ple aded that it is not admitted that all the sugar factories in the southern region have accepted the U.P. Pattern. It was submitted that the case of the Kodinar is different because it was established long time ago and is a flourishing concern. 22. In view of the order we propose to make we do not feel called upon to examine in detail the financial capacity of the various factories or to remit it to the Industrial Court for that purpose. We have found that the order of the Industrial Court and the High Court relating to the provision for variable dearness allowance of more than 100% neutralisation is not sustainable in law and will have to be set aside. Regarding the award relating to the retention allowance of the unskill ed workers at 10% of the basic wage and the dearness allowance payable during the crushing season, it was not challenged before the High Court. The only question therefore which is in dispute is the increase of graded dearness allowance from R s. 21 to Rs. 40 with effect from the date of the award. We do not think that the increase in burden under this head would be beyond the financial capacity of the factories especially as we are satisfied that the claim for depreciation is highly exaggerated. Taking all the circumstances relating to the financial capacity of the factories we are satisfied that the increase in the burden due to the increase in the graduated dearness allowance will be within the capacity of the industry. We therefore find no reason for remitting the matter back to the Industrial Court. | 1[ds]This plea cannot be accepted for the award of equalisation of more than 100% in these cases is not based on seasonal employment. To mitigate the hardship of unemployment during the off-season a retention allowance has been provided for the seasonal workers. The plea that the neutralisation of more than 100% is based on seasonal employment was not taken in the pleadings or raised before the courts below.Demand No. 7 relates to claim for payment of retaining allowance for the unskilled seasonal employees in the off- season at the rate of 10% of their basic wage and dearness allowance payable during the crushing season 1974-75. The Industrial Court as regards demand No.7 directed that the unskilled seasonal employees be paid retaining allowance for the season 1975 at the rate of 10% of t he basic wage and dearness allowance payable during the crushing season 1974- 75. The claim regarding the variable dearness allowance is demand No. 2(c) and 5(1) (a) (b). There is no reference in the proceedings before the Industrial Court or the High Court that the variable dearness allowance of more than 100% equalisation was awarded due to the seasonal employment of the workers. In the result we accept the contention of the appellants that variable dearness allowance cannot be more than 1 00% neutralisationRelying on the provisions of the section which requires that taxes and depreciation should be deducted from gross profits for arriving at net profits, it was submitted that in determining the financial capacity of the industry the net profits as prescribed in the section would have to be determined. We do not read the section as meaning that wages and dearness allowance could only be determined after the net profits are arrived at. The sub-section itself provides that contributions towards provident fund and g ratuity fund of its employees should all be deducted from the gross profits for arriving at the net profits. The provision for deducting depreciation occurs after providing for contribution towards provident fund and gratuity. The determination of the net profits under the section is for a different purpose, namely for appropriation of the net profits as provided for in the Act and does not in any way support the contention of the appellantsIt is settled law that in fixing fair wages or dearness allowance or for making contribution to provident fund or providing for gratuity the financial capacity of the industry to bear the additional burden will have to be taken into account. On principle of social justice with the development of industrial law it has now been accepted that when the industry can bear the burden provision should be m ade for provident fund and gratuity scheme. In determining the financial capacity of an industry all relevant facts will have to be taken into account. The principles followed in arriving at the profit and loss account for income-tax and other purposes may not be conclusive. The claim of the employer to a reasonable profit, that of the shareholders for a fair dividend and the interest of consumer and other relevant factors and circumstances will have to be taken into account. It is necessary to take into account all the facts and circumstances relating to the industry for determining the financial capacity of the industry to payIn view of the order we propose to make we do not feel called upon to examine in detail the financial capacity of the various factories or to remit it to the Industrial Court for that purpose. We have found that the order of the Industrial Court and the High Court relating to the provision for variable dearness allowance of more than 100% neutralisation is not sustainable in law and will have to be set aside. Regarding the award relating to the retention allowance of the unskill ed workers at 10% of the basic wage and the dearness allowance payable during the crushing season, it was not challenged before the High Court.The only question therefore which is in dispute is the increase of graded dearness allowance from R s. 21 to Rs. 40 with effect from the date of the award.We do not think that the increase in burden under this head would be beyond the financial capacity of the factories especially as we are satisfied that the claim for depreciation is highly exaggerated. Taking all the circumstances relating to the financial capacity of the factories we are satisfied that the increase in the burden due to the increase in the graduated dearness allowance will be within the capacity of the industry. We therefore find no reason for remitting the matter back to the Industrial Court. | 1 | 7,145 | 823 | ### 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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the manufacturing units. These amounts relate to ex pansion of the industry and should be shown in the capital account and cannot be claimed as deduction due to depreciation. The accounting of the sugar factories concerned is for the purpose of minimising the profits and showing loss for the purpose of depriving the workers their due. Such depreciation cannot be allowed. But as pointed out by us the actual depreciation which should be deducted in the interest of the industry can be taken into account. In the cases before us if the inflated figures should be left out of account we feel that the industry has the capacity to bear the additional burden.The High Court after referring to the decisions of this Court in Gramophone Co. and Indian Link Chain Manufacturers and the Shivraj Litho Works (supra) came to the conclusion that gross profits before allowance is made for depreciation has to be taken into account for the purpose of considering the paying capacity of the industry. The High Court added the amount of depreciation to the net profits as shown in the balance sheet and found that large profits were available as gross profits. The High Court was of the view that the position of the three factories in South Gujarat, namely Gandevi, Bardoli and Madhi is not at all gloomy so far as their financial prospects are concerned. The High Court found that though the price of sugarcane was fixed for delivery at the factory, it has paid the price to the growers ex-sugarcane field, thus bearing the charges for cutting sugarcane and for carrying it to the factory premises from the field. This payment was unjustified and was intended for the benefit of the members of the cooperative society and resulted in showing of a Paper Los s. We are unable to agree with the conclusion of the High Court that this payment is unjustified and is for the purpose of benefiting its own members. It is submitted on behalf of the factories that the sugar factories pay an extra amount t o the growers to induce them to cultivate sugarcane for a profit and thereby preventing them from cultivating other crops and reducing the area under sugarcane cultivation. The finding of the High Court that this extra payment is to benefit the members of the society itself is also not borne out as there are members who are not growers of sugarcane. The benefits by way of giving fertilizers at a discount etc. will not profit members who are not growers. The High Court has not estimated the likely increase in profits due to increase in the price of sugar levy along with the increase in expenditure due to the revision of the wage structure which it has estimated at about Rs. 5 lakhs. Further as pointed out by us earlier the High Court erred in adding back the depreciation and other reserves without determining as to what extent such allowances are permissible on the facts of the case. For the reasons stated we feel that the financial capacity of the industry has not been determined in the manner in which it ought to have been done.The wages are normally fixed on the basis of industry-cum-region. The U.P. Pattern was fixed by the Uttar Pradesh Government on an agreement between the parties under section 3(b) of the U.P. Industrial Disputes Act, 1947(U.P. Act No. 18 of 1947). The order under sec. 3 (b) is provisional in character. Section 3 (d) provides for fixing the wages after proper adjudication. No such adjudication took place in U.P. after the passing of the order under sec. 3(b). Even though normally the wages are fixed on the industry-cum-region basis it is open to the industry to plead that it has not the financial capacity to bear the increased burden. When such a plea is specifically raised it is the duty of the Industrial Court to determine whether the increased burden could be borne by the particular industry. The reason given by the Industrial Court and the High Court for following the U.P. Pattern is that it has been accepted by various sugar factories in the southern region and a neighbouring factory Kodinar Sugar Factory and hence there is no reason for not applying the same rates to the appellant factories. On behalf of the appellant it was ple aded that it is not admitted that all the sugar factories in the southern region have accepted the U.P. Pattern. It was submitted that the case of the Kodinar is different because it was established long time ago and is a flourishing concern. 22. In view of the order we propose to make we do not feel called upon to examine in detail the financial capacity of the various factories or to remit it to the Industrial Court for that purpose. We have found that the order of the Industrial Court and the High Court relating to the provision for variable dearness allowance of more than 100% neutralisation is not sustainable in law and will have to be set aside. Regarding the award relating to the retention allowance of the unskill ed workers at 10% of the basic wage and the dearness allowance payable during the crushing season, it was not challenged before the High Court. The only question therefore which is in dispute is the increase of graded dearness allowance from R s. 21 to Rs. 40 with effect from the date of the award. We do not think that the increase in burden under this head would be beyond the financial capacity of the factories especially as we are satisfied that the claim for depreciation is highly exaggerated. Taking all the circumstances relating to the financial capacity of the factories we are satisfied that the increase in the burden due to the increase in the graduated dearness allowance will be within the capacity of the industry. We therefore find no reason for remitting the matter back to the Industrial Court.
### Response:
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### Explanation:
This plea cannot be accepted for the award of equalisation of more than 100% in these cases is not based on seasonal employment. To mitigate the hardship of unemployment during the off-season a retention allowance has been provided for the seasonal workers. The plea that the neutralisation of more than 100% is based on seasonal employment was not taken in the pleadings or raised before the courts below.Demand No. 7 relates to claim for payment of retaining allowance for the unskilled seasonal employees in the off- season at the rate of 10% of their basic wage and dearness allowance payable during the crushing season 1974-75. The Industrial Court as regards demand No.7 directed that the unskilled seasonal employees be paid retaining allowance for the season 1975 at the rate of 10% of t he basic wage and dearness allowance payable during the crushing season 1974- 75. The claim regarding the variable dearness allowance is demand No. 2(c) and 5(1) (a) (b). There is no reference in the proceedings before the Industrial Court or the High Court that the variable dearness allowance of more than 100% equalisation was awarded due to the seasonal employment of the workers. In the result we accept the contention of the appellants that variable dearness allowance cannot be more than 1 00% neutralisationRelying on the provisions of the section which requires that taxes and depreciation should be deducted from gross profits for arriving at net profits, it was submitted that in determining the financial capacity of the industry the net profits as prescribed in the section would have to be determined. We do not read the section as meaning that wages and dearness allowance could only be determined after the net profits are arrived at. The sub-section itself provides that contributions towards provident fund and g ratuity fund of its employees should all be deducted from the gross profits for arriving at the net profits. The provision for deducting depreciation occurs after providing for contribution towards provident fund and gratuity. The determination of the net profits under the section is for a different purpose, namely for appropriation of the net profits as provided for in the Act and does not in any way support the contention of the appellantsIt is settled law that in fixing fair wages or dearness allowance or for making contribution to provident fund or providing for gratuity the financial capacity of the industry to bear the additional burden will have to be taken into account. On principle of social justice with the development of industrial law it has now been accepted that when the industry can bear the burden provision should be m ade for provident fund and gratuity scheme. In determining the financial capacity of an industry all relevant facts will have to be taken into account. The principles followed in arriving at the profit and loss account for income-tax and other purposes may not be conclusive. The claim of the employer to a reasonable profit, that of the shareholders for a fair dividend and the interest of consumer and other relevant factors and circumstances will have to be taken into account. It is necessary to take into account all the facts and circumstances relating to the industry for determining the financial capacity of the industry to payIn view of the order we propose to make we do not feel called upon to examine in detail the financial capacity of the various factories or to remit it to the Industrial Court for that purpose. We have found that the order of the Industrial Court and the High Court relating to the provision for variable dearness allowance of more than 100% neutralisation is not sustainable in law and will have to be set aside. Regarding the award relating to the retention allowance of the unskill ed workers at 10% of the basic wage and the dearness allowance payable during the crushing season, it was not challenged before the High Court.The only question therefore which is in dispute is the increase of graded dearness allowance from R s. 21 to Rs. 40 with effect from the date of the award.We do not think that the increase in burden under this head would be beyond the financial capacity of the factories especially as we are satisfied that the claim for depreciation is highly exaggerated. Taking all the circumstances relating to the financial capacity of the factories we are satisfied that the increase in the burden due to the increase in the graduated dearness allowance will be within the capacity of the industry. We therefore find no reason for remitting the matter back to the Industrial Court.
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R.S.R.T.C. Vs. Zakir Hussain | the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case. It is done only with a view to decide whether he is to be retained or continued in service. The provision is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is why is held in Sukh Raj Bahadur case and in Benjamin case. In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case the employer was entitled to say that he would not continue an employee against whom allegations were made in truth of which the employer was not interest to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive." (vii) In the matter of Jagdish Mittar vs. Union of India reported in 1964 (1) LLJ 418 , this Court has placed reliance on the judgment of Constitution Bench in the case reported in 1967 (1) LLJ 718 , Benjamin (A.G.) vs. Union of India [Constitution Bench] and the judgment of Champaklal mentioned above. It is settled law that where an Act creates an obligation and enforces the performance in a specified manner, the performance cannot be enforced in any other manner. 43. It is seen from para 11 of the written statement that the management has subsequently raised the jurisdiction of the Civil Court in deciding an industrial dispute. Learned District Munsiff has also framed an issue in regard to the jurisdiction of the Civil Court to hear the suit. The same issue was raised before the other forums. However, lower Courts and the High Court has miserably failed to advert to this issue and failed to render a satisfactory finding. As already noticed, the services of the respondent were terminated simpliciter and does not contain any stigma and, therefore, there was no requirement under the law to hold any enquiry before terminating the services. The Courts below have also committed serious error in granting back wages along with reinstatement. Even otherwise, the respondent has not led any evidence before the trial Court except his own ipsi dixit to show that his services were terminated on the ground of any alleged misconduct. Therefore, it was not obligatory on the part of the Corporation to hold an enquiry before terminating the services. It is also settled that the employees of the Corporation are not civil servants and, therefore, they are not entitled to protection under Article 311 of the Constitution of India. Their terms of appointment is governed by the letter of appointment and, therefore, the management was well within its right to terminate the services of the respondent-probationer during the period of probation if his services were not found to be satisfactory during the said period. The Courts below and the High Court have committed serious error in decreeing the suit as prayed for and for directing reinstatement with full back wages. 44. Learned counsel for the respondent placing strong reliance on the judgment in Rajasthan State Road Transport Corporation And Anr. v. Krishna Kant and Others reported in [1995] 3 SCR 1118 submitted that since the decree has been passed by the trial Court on 28.07.1989 and the appeal filed by the Corporation was dismissed on 27.09.1989 which was pending prior to the judgment reported in 1995 SCR (3) 1118, the respondent is right in approaching the civil court. This contention has no force. This Court has very explicitly summarised the principles flowing from the discussion in the judgment in para 35 and applying the above principles this Court has categorically held that the suits filed by the employees in those appeals were not maintainable in law. But, however, granted certain reliefs by reducing the back wages etc. etc. in the peculiar facts and circumstances of the case. Therefore, in our opinion, the above judgment will not be of any assistance or aid to the claim of the respondent. 45. For the foregoing reasons, we hold that the respondent ought to have approached the remedies provided under the Industrial Disputes Act. He has miserably failed to do so but approached the Civil Court, which on the facts and circumstances of the case has no jurisdiction to entertain and try the suit. The respondent has not acted bona fide in instituting the suit. It is seen from the order of the High Court that the respondent had been reinstated in service in the year 1990 and the back wages had also been paid to him. | 1[ds]14. Applying the above principles, this Court held that the suits filed by the employees of the Corporation were not maintainable in law. However, considering the peculiar facts and circumstances of the case, this Court declined to set aside the decree concerned in the appeals. This Court, having regard to the facts and circumstances of those matters, modified the decrees in those matters by reducing the back wages to half. This Court also has further observed that these orders are made in view of the fact that the position of law was not clear until now and it cannot be said that the respondents had not acted bona fide in instituting the suits and disposed of the appeals accordingly in the peculiar facts and circumstances of the case. We have already reproduced the principles laid down in para 35 (supra). Applying the above principles, this Court has categorically held that the suits filed by the respondents in the appeals were not maintainable in law17. In the present case, the nature of the employment of the workmen was in dispute. This was an issue which should have been resolved on the basis of evidence led. The Division Bench erred in rejecting the appellants submission summarily as also in placing the onus on the appellant to produce the appointment letters of the respondent workmen. There was also a dispute as to the nature of the absence of the respondent workmen. Significantly, the High Court has not relied upon the correspondence said to have been exchanged between the parties with regard to the demands raised by the respondent Union nor has it come to any decision on the question whether the strike in question was illegal or legal. In fact the High Court has proceeded on the basis that it was the accepted case that there was no notice given by the workmen that they were on strike. It cannot, therefore, be said, without more, that the absence of the respondent workmen from work was because they were on strike21. In so far as the appellant is concerned, the Industrial Disputes Act not only confers the right on a worker for reinstatement and back wages if the order of termination or dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief. Under these circumstances therefore there is an apparent implied exclusion of the jurisdiction of the civil court44. Learned counsel for the respondent placing strong reliance on the judgment in Rajasthan State Road Transport Corporation And Anr. v. Krishna Kant and Others reported in [1995] 3 SCR 1118 submitted that since the decree has been passed by the trial Court on 28.07.1989 and the appeal filed by the Corporation was dismissed on 27.09.1989 which was pending prior to the judgment reported in 1995 SCR (3) 1118, the respondent is right in approaching the civil court.This contention has no force. This Court has very explicitly summarised the principles flowing from the discussion in the judgment in para 35 and applying the above principles this Court has categorically held that the suits filed by the employees in those appeals were not maintainable in law. But, however, granted certain reliefs by reducing the back wages etc. etc. in the peculiar facts and circumstances of the case. Therefore, in our opinion, the above judgment will not be of any assistance or aid to the claim of the respondent43. It is seen from para 11 of the written statement that the management has subsequently raised the jurisdiction of the Civil Court in deciding an industrial dispute. Learned District Munsiff has also framed an issue in regard to the jurisdiction of the Civil Court to hear the suit. The same issue was raised before the other forums. However, lower Courts and the High Court has miserably failed to advert to this issue and failed to render a satisfactory finding. As already noticed, the services of the respondent were terminated simpliciter and does not contain any stigma and, therefore, there was no requirement under the law to hold any enquiry before terminating the services. The Courts below have also committed serious error in granting back wages along with reinstatement. Even otherwise, the respondent has not led any evidence before the trial Court except his own ipsi dixit to show that his services were terminated on the ground of any alleged misconduct. Therefore, it was not obligatory on the part of the Corporation to hold an enquiry before terminating the services. It is also settled that the employees of the Corporation are not civil servants and, therefore, they are not entitled to protection under Article 311 of the Constitution of India. Their terms of appointment is governed by the letter of appointment and, therefore, the management was well within its right to terminate the services of the respondent-probationer during the period of probation if his services were not found to be satisfactory during the said period. The Courts below and the High Court have committed serious error in decreeing the suit as prayed for and for directing reinstatement with full back wages45. For the foregoing reasons, we hold that the respondent ought to have approached the remedies provided under the Industrial Disputes Act. He has miserably failed to do so but approached the Civil Court, which on the facts and circumstances of the case has no jurisdiction to entertain and try the suit. The respondent has not acted bona fide in instituting the suit. It is seen from the order of the High Court that the respondent had been reinstated in service in the year 1990 and the back wages had also been paid to him. | 1 | 8,901 | 1,026 | ### 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:
the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case. It is done only with a view to decide whether he is to be retained or continued in service. The provision is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is why is held in Sukh Raj Bahadur case and in Benjamin case. In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case the employer was entitled to say that he would not continue an employee against whom allegations were made in truth of which the employer was not interest to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive." (vii) In the matter of Jagdish Mittar vs. Union of India reported in 1964 (1) LLJ 418 , this Court has placed reliance on the judgment of Constitution Bench in the case reported in 1967 (1) LLJ 718 , Benjamin (A.G.) vs. Union of India [Constitution Bench] and the judgment of Champaklal mentioned above. It is settled law that where an Act creates an obligation and enforces the performance in a specified manner, the performance cannot be enforced in any other manner. 43. It is seen from para 11 of the written statement that the management has subsequently raised the jurisdiction of the Civil Court in deciding an industrial dispute. Learned District Munsiff has also framed an issue in regard to the jurisdiction of the Civil Court to hear the suit. The same issue was raised before the other forums. However, lower Courts and the High Court has miserably failed to advert to this issue and failed to render a satisfactory finding. As already noticed, the services of the respondent were terminated simpliciter and does not contain any stigma and, therefore, there was no requirement under the law to hold any enquiry before terminating the services. The Courts below have also committed serious error in granting back wages along with reinstatement. Even otherwise, the respondent has not led any evidence before the trial Court except his own ipsi dixit to show that his services were terminated on the ground of any alleged misconduct. Therefore, it was not obligatory on the part of the Corporation to hold an enquiry before terminating the services. It is also settled that the employees of the Corporation are not civil servants and, therefore, they are not entitled to protection under Article 311 of the Constitution of India. Their terms of appointment is governed by the letter of appointment and, therefore, the management was well within its right to terminate the services of the respondent-probationer during the period of probation if his services were not found to be satisfactory during the said period. The Courts below and the High Court have committed serious error in decreeing the suit as prayed for and for directing reinstatement with full back wages. 44. Learned counsel for the respondent placing strong reliance on the judgment in Rajasthan State Road Transport Corporation And Anr. v. Krishna Kant and Others reported in [1995] 3 SCR 1118 submitted that since the decree has been passed by the trial Court on 28.07.1989 and the appeal filed by the Corporation was dismissed on 27.09.1989 which was pending prior to the judgment reported in 1995 SCR (3) 1118, the respondent is right in approaching the civil court. This contention has no force. This Court has very explicitly summarised the principles flowing from the discussion in the judgment in para 35 and applying the above principles this Court has categorically held that the suits filed by the employees in those appeals were not maintainable in law. But, however, granted certain reliefs by reducing the back wages etc. etc. in the peculiar facts and circumstances of the case. Therefore, in our opinion, the above judgment will not be of any assistance or aid to the claim of the respondent. 45. For the foregoing reasons, we hold that the respondent ought to have approached the remedies provided under the Industrial Disputes Act. He has miserably failed to do so but approached the Civil Court, which on the facts and circumstances of the case has no jurisdiction to entertain and try the suit. The respondent has not acted bona fide in instituting the suit. It is seen from the order of the High Court that the respondent had been reinstated in service in the year 1990 and the back wages had also been paid to him.
### Response:
1
### Explanation:
14. Applying the above principles, this Court held that the suits filed by the employees of the Corporation were not maintainable in law. However, considering the peculiar facts and circumstances of the case, this Court declined to set aside the decree concerned in the appeals. This Court, having regard to the facts and circumstances of those matters, modified the decrees in those matters by reducing the back wages to half. This Court also has further observed that these orders are made in view of the fact that the position of law was not clear until now and it cannot be said that the respondents had not acted bona fide in instituting the suits and disposed of the appeals accordingly in the peculiar facts and circumstances of the case. We have already reproduced the principles laid down in para 35 (supra). Applying the above principles, this Court has categorically held that the suits filed by the respondents in the appeals were not maintainable in law17. In the present case, the nature of the employment of the workmen was in dispute. This was an issue which should have been resolved on the basis of evidence led. The Division Bench erred in rejecting the appellants submission summarily as also in placing the onus on the appellant to produce the appointment letters of the respondent workmen. There was also a dispute as to the nature of the absence of the respondent workmen. Significantly, the High Court has not relied upon the correspondence said to have been exchanged between the parties with regard to the demands raised by the respondent Union nor has it come to any decision on the question whether the strike in question was illegal or legal. In fact the High Court has proceeded on the basis that it was the accepted case that there was no notice given by the workmen that they were on strike. It cannot, therefore, be said, without more, that the absence of the respondent workmen from work was because they were on strike21. In so far as the appellant is concerned, the Industrial Disputes Act not only confers the right on a worker for reinstatement and back wages if the order of termination or dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief. Under these circumstances therefore there is an apparent implied exclusion of the jurisdiction of the civil court44. Learned counsel for the respondent placing strong reliance on the judgment in Rajasthan State Road Transport Corporation And Anr. v. Krishna Kant and Others reported in [1995] 3 SCR 1118 submitted that since the decree has been passed by the trial Court on 28.07.1989 and the appeal filed by the Corporation was dismissed on 27.09.1989 which was pending prior to the judgment reported in 1995 SCR (3) 1118, the respondent is right in approaching the civil court.This contention has no force. This Court has very explicitly summarised the principles flowing from the discussion in the judgment in para 35 and applying the above principles this Court has categorically held that the suits filed by the employees in those appeals were not maintainable in law. But, however, granted certain reliefs by reducing the back wages etc. etc. in the peculiar facts and circumstances of the case. Therefore, in our opinion, the above judgment will not be of any assistance or aid to the claim of the respondent43. It is seen from para 11 of the written statement that the management has subsequently raised the jurisdiction of the Civil Court in deciding an industrial dispute. Learned District Munsiff has also framed an issue in regard to the jurisdiction of the Civil Court to hear the suit. The same issue was raised before the other forums. However, lower Courts and the High Court has miserably failed to advert to this issue and failed to render a satisfactory finding. As already noticed, the services of the respondent were terminated simpliciter and does not contain any stigma and, therefore, there was no requirement under the law to hold any enquiry before terminating the services. The Courts below have also committed serious error in granting back wages along with reinstatement. Even otherwise, the respondent has not led any evidence before the trial Court except his own ipsi dixit to show that his services were terminated on the ground of any alleged misconduct. Therefore, it was not obligatory on the part of the Corporation to hold an enquiry before terminating the services. It is also settled that the employees of the Corporation are not civil servants and, therefore, they are not entitled to protection under Article 311 of the Constitution of India. Their terms of appointment is governed by the letter of appointment and, therefore, the management was well within its right to terminate the services of the respondent-probationer during the period of probation if his services were not found to be satisfactory during the said period. The Courts below and the High Court have committed serious error in decreeing the suit as prayed for and for directing reinstatement with full back wages45. For the foregoing reasons, we hold that the respondent ought to have approached the remedies provided under the Industrial Disputes Act. He has miserably failed to do so but approached the Civil Court, which on the facts and circumstances of the case has no jurisdiction to entertain and try the suit. The respondent has not acted bona fide in instituting the suit. It is seen from the order of the High Court that the respondent had been reinstated in service in the year 1990 and the back wages had also been paid to him.
|
Cellular Operators Association Of India Vs. Telecom Regulatory Authority Of India | purpose. The agency must articulate a satisfactory explanation for its action, including a rational connection between the facts it found and the choices it made. Under some circumstance, agencies must identify specific studies or data that they rely upon in arriving at their decision to adopt a rule.Regulations which lack a statement of basis and purpose may be upheld if the basis and purpose and obvious. Moreover, the failure of an agency to incorporate the statement does not render a rule ineffective as to parties to litigation who had knowledge of the rule.Despite the statutory language mandating that the statement of basis of purposes be "incorporate[d] in the rules adopted," the statement of basis and purpose does not have to be published at precisely the same moment as the rules. Rather, the rules and statement need only be published close enough together in time so that there is no doubt that the statement accompanies, rather than rationalizes, the rules." 74. We find that, subject to certain well defined exceptions, it would be a healthy functioning of our democracy if all subordinate legislation were to be "transparent" in the manner pointed out above. Since it is beyond the scope of this judgment to deal with subordinate legislation generally, and in particular with statutes which provide for rule making and regulation making without any added requirement of transparency, we would exhort Parliament to take up this issue and frame a legislation along the lines of the U.S. Administrative Procedure Act (with certain well defined exceptions) by which all subordinate legislation is subject to a transparent process by which due consultations with all stakeholders are held, and the rule or regulation making power is exercised after due consideration of all stakeholders submissions, together with an explanatory memorandum which broadly takes into account what they have said and the reasons for agreeing or disagreeing with them. Not only would such legislation reduce arbitrariness in subordinate legislation making, but it would also conduce to openness in governance. It would also ensure the redressal, partial or otherwise, of grievances of the concerned stakeholders prior to the making of subordinate legislation. This would obviate, in many cases, the need for persons to approach courts to strike down subordinate legislation on the ground of such legislation being manifestly arbitrary or unreasonable. 75. In the present case, we find that the High Court judgment is flawed for several reasons. The judgment is not correct when it says that there can be no dispute that the Impugned Regulation has been made to ensure quality of service extended to consumers by service providers. As has been pointed out hereinabove, the Impugned Regulation does not lay down any quality of service - what it does is to penalise service providers even though they conform to the 2% standard laid down by the Quality of Service Regulations, 2009. In holding that the Impugned Regulation therefore conforms to Section 11(1)(b)(v), the judgment is plainly incorrect. Similarly, the finding that notional compensation is given, and that therefore no penalty is imposed, is also wrong and set aside for the reasons given by us hereinabove. The finding that a transparent process was followed by TRAI in making the Impugned Regulation is only partly correct. While it is true that all stakeholders were consulted, but unfortunately nothing is disclosed as to why service providers were incorrect when they said that call drops were due to various reasons, some of which cannot be said to be because of the fault of the service provider. Indeed, the Regulation, in assuming that every call drop is a deficiency of service on the part of the service provider, is plainly incorrect. Further, the High Court judgment, when it speaks of the technical paper of 13.11.2015, seems to have mixed it up with the consultation paper dated 4.9.2015 referred to in the Explanatory Memorandum to the Impugned Regulation. The judgment has entirely missed the fact that the technical paper of 13.11.2015 unequivocally states that the causes for call drops are many and are often beyond the control of service providers and attributable to the extent of 36.9% to the consumers themselves. The judgment is also incorrect when it says that 100% performance is not demanded from service providers when call drops are made. We have already pointed out that the 2% standard has admittedly been met by almost all the service providers, and this being so, even if the very first call drop and all other subsequent call drops are made within the network of a service provider and are within the parameters of 2%, yet the penal consequence of the amended regulation must follow. The judgment is also incorrect in stating that the Impugned Regulation has attempted to balance the interest of service providers by limiting call drops to be compensated to only three and by limiting compensation to only the calling and not the receiving consumer. We have already pointed out that a penalty that is imposed without any reason either as to the number of call drops made being three, and only to the calling consumer, far from balancing the interest of consumers and service providers, is manifestly arbitrary, not being based on any factual data or reason. We also find that when the service provider argued that it was being penalised despite being within the tolerance limit of 2%, the answer given by the High Court is disingenuous, to say the least, when the High Court says that 2% is a quality parameter for the entire network as opposed to payment of compensation to an individual consumer. We are unable to appreciate the aforesaid reasoning. As has been held by us above, the two sets of Regulations have to be considered together when the Impugned Regulation is being tested on the ground of violation of fundamental rights. Also, the High Court did not advert to a large number of other submissions made by the appellants before them and/or answer them correctly in law. As a result, therefore, we | 1[ds]75. In the present case, we find that the High Court judgment is flawed for several reasons. The judgment is not correct when it says that there can be no dispute that the Impugned Regulation has been made to ensure quality of service extended to consumers by service providers. As has been pointed out hereinabove, the Impugned Regulation does not lay down any quality of service - what it does is to penalise service providers even though they conform to the 2% standard laid down by the Quality of Service Regulations, 2009. In holding that the Impugned Regulation therefore conforms to Section 11(1)(b)(v), the judgment is plainly incorrect. Similarly, the finding that notional compensation is given, and that therefore no penalty is imposed, is also wrong and set aside for the reasons given by us hereinabove. The finding that a transparent process was followed by TRAI in making the Impugned Regulation is only partly correct. While it is true that all stakeholders were consulted, but unfortunately nothing is disclosed as to why service providers were incorrect when they said that call drops were due to various reasons, some of which cannot be said to be because of the fault of the service provider. Indeed, the Regulation, in assuming that every call drop is a deficiency of service on the part of the service provider, is plainly incorrect. Further, the High Court judgment, when it speaks of the technical paper of 13.11.2015, seems to have mixed it up with the consultation paper dated 4.9.2015 referred to in the Explanatory Memorandum to the Impugned Regulation. The judgment has entirely missed the fact that the technical paper of 13.11.2015 unequivocally states that the causes for call drops are many and are often beyond the control of service providers and attributable to the extent of 36.9% to the consumers themselves. The judgment is also incorrect when it says that 100% performance is not demanded from service providers when call drops are made. We have already pointed out that the 2% standard has admittedly been met by almost all the service providers, and this being so, even if the very first call drop and all other subsequent call drops are made within the network of a service provider and are within the parameters of 2%, yet the penal consequence of the amended regulation must follow. The judgment is also incorrect in stating that the Impugned Regulation has attempted to balance the interest of service providers by limiting call drops to be compensated to only three and by limiting compensation to only the calling and not the receiving consumer. We have already pointed out that a penalty that is imposed without any reason either as to the number of call drops made being three, and only to the calling consumer, far from balancing the interest of consumers and service providers, is manifestly arbitrary, not being based on any factual data or reason. We also find that when the service provider argued that it was being penalised despite being within the tolerance limit of 2%, the answer given by the High Court is disingenuous, to say the least, when the High Court says that 2% is a quality parameter for the entire network as opposed to payment of compensation to an individual consumer. We are unable to appreciate the aforesaid reasoning. As has been held by us above, the two sets of Regulations have to be considered together when the Impugned Regulation is being tested on the ground of violation of fundamental rights. Also, the High Court did not advert to a large number of other submissions made by the appellants before them and/or answer them correctly in law. | 1 | 23,678 | 679 | ### 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:
purpose. The agency must articulate a satisfactory explanation for its action, including a rational connection between the facts it found and the choices it made. Under some circumstance, agencies must identify specific studies or data that they rely upon in arriving at their decision to adopt a rule.Regulations which lack a statement of basis and purpose may be upheld if the basis and purpose and obvious. Moreover, the failure of an agency to incorporate the statement does not render a rule ineffective as to parties to litigation who had knowledge of the rule.Despite the statutory language mandating that the statement of basis of purposes be "incorporate[d] in the rules adopted," the statement of basis and purpose does not have to be published at precisely the same moment as the rules. Rather, the rules and statement need only be published close enough together in time so that there is no doubt that the statement accompanies, rather than rationalizes, the rules." 74. We find that, subject to certain well defined exceptions, it would be a healthy functioning of our democracy if all subordinate legislation were to be "transparent" in the manner pointed out above. Since it is beyond the scope of this judgment to deal with subordinate legislation generally, and in particular with statutes which provide for rule making and regulation making without any added requirement of transparency, we would exhort Parliament to take up this issue and frame a legislation along the lines of the U.S. Administrative Procedure Act (with certain well defined exceptions) by which all subordinate legislation is subject to a transparent process by which due consultations with all stakeholders are held, and the rule or regulation making power is exercised after due consideration of all stakeholders submissions, together with an explanatory memorandum which broadly takes into account what they have said and the reasons for agreeing or disagreeing with them. Not only would such legislation reduce arbitrariness in subordinate legislation making, but it would also conduce to openness in governance. It would also ensure the redressal, partial or otherwise, of grievances of the concerned stakeholders prior to the making of subordinate legislation. This would obviate, in many cases, the need for persons to approach courts to strike down subordinate legislation on the ground of such legislation being manifestly arbitrary or unreasonable. 75. In the present case, we find that the High Court judgment is flawed for several reasons. The judgment is not correct when it says that there can be no dispute that the Impugned Regulation has been made to ensure quality of service extended to consumers by service providers. As has been pointed out hereinabove, the Impugned Regulation does not lay down any quality of service - what it does is to penalise service providers even though they conform to the 2% standard laid down by the Quality of Service Regulations, 2009. In holding that the Impugned Regulation therefore conforms to Section 11(1)(b)(v), the judgment is plainly incorrect. Similarly, the finding that notional compensation is given, and that therefore no penalty is imposed, is also wrong and set aside for the reasons given by us hereinabove. The finding that a transparent process was followed by TRAI in making the Impugned Regulation is only partly correct. While it is true that all stakeholders were consulted, but unfortunately nothing is disclosed as to why service providers were incorrect when they said that call drops were due to various reasons, some of which cannot be said to be because of the fault of the service provider. Indeed, the Regulation, in assuming that every call drop is a deficiency of service on the part of the service provider, is plainly incorrect. Further, the High Court judgment, when it speaks of the technical paper of 13.11.2015, seems to have mixed it up with the consultation paper dated 4.9.2015 referred to in the Explanatory Memorandum to the Impugned Regulation. The judgment has entirely missed the fact that the technical paper of 13.11.2015 unequivocally states that the causes for call drops are many and are often beyond the control of service providers and attributable to the extent of 36.9% to the consumers themselves. The judgment is also incorrect when it says that 100% performance is not demanded from service providers when call drops are made. We have already pointed out that the 2% standard has admittedly been met by almost all the service providers, and this being so, even if the very first call drop and all other subsequent call drops are made within the network of a service provider and are within the parameters of 2%, yet the penal consequence of the amended regulation must follow. The judgment is also incorrect in stating that the Impugned Regulation has attempted to balance the interest of service providers by limiting call drops to be compensated to only three and by limiting compensation to only the calling and not the receiving consumer. We have already pointed out that a penalty that is imposed without any reason either as to the number of call drops made being three, and only to the calling consumer, far from balancing the interest of consumers and service providers, is manifestly arbitrary, not being based on any factual data or reason. We also find that when the service provider argued that it was being penalised despite being within the tolerance limit of 2%, the answer given by the High Court is disingenuous, to say the least, when the High Court says that 2% is a quality parameter for the entire network as opposed to payment of compensation to an individual consumer. We are unable to appreciate the aforesaid reasoning. As has been held by us above, the two sets of Regulations have to be considered together when the Impugned Regulation is being tested on the ground of violation of fundamental rights. Also, the High Court did not advert to a large number of other submissions made by the appellants before them and/or answer them correctly in law. As a result, therefore, we
### Response:
1
### Explanation:
75. In the present case, we find that the High Court judgment is flawed for several reasons. The judgment is not correct when it says that there can be no dispute that the Impugned Regulation has been made to ensure quality of service extended to consumers by service providers. As has been pointed out hereinabove, the Impugned Regulation does not lay down any quality of service - what it does is to penalise service providers even though they conform to the 2% standard laid down by the Quality of Service Regulations, 2009. In holding that the Impugned Regulation therefore conforms to Section 11(1)(b)(v), the judgment is plainly incorrect. Similarly, the finding that notional compensation is given, and that therefore no penalty is imposed, is also wrong and set aside for the reasons given by us hereinabove. The finding that a transparent process was followed by TRAI in making the Impugned Regulation is only partly correct. While it is true that all stakeholders were consulted, but unfortunately nothing is disclosed as to why service providers were incorrect when they said that call drops were due to various reasons, some of which cannot be said to be because of the fault of the service provider. Indeed, the Regulation, in assuming that every call drop is a deficiency of service on the part of the service provider, is plainly incorrect. Further, the High Court judgment, when it speaks of the technical paper of 13.11.2015, seems to have mixed it up with the consultation paper dated 4.9.2015 referred to in the Explanatory Memorandum to the Impugned Regulation. The judgment has entirely missed the fact that the technical paper of 13.11.2015 unequivocally states that the causes for call drops are many and are often beyond the control of service providers and attributable to the extent of 36.9% to the consumers themselves. The judgment is also incorrect when it says that 100% performance is not demanded from service providers when call drops are made. We have already pointed out that the 2% standard has admittedly been met by almost all the service providers, and this being so, even if the very first call drop and all other subsequent call drops are made within the network of a service provider and are within the parameters of 2%, yet the penal consequence of the amended regulation must follow. The judgment is also incorrect in stating that the Impugned Regulation has attempted to balance the interest of service providers by limiting call drops to be compensated to only three and by limiting compensation to only the calling and not the receiving consumer. We have already pointed out that a penalty that is imposed without any reason either as to the number of call drops made being three, and only to the calling consumer, far from balancing the interest of consumers and service providers, is manifestly arbitrary, not being based on any factual data or reason. We also find that when the service provider argued that it was being penalised despite being within the tolerance limit of 2%, the answer given by the High Court is disingenuous, to say the least, when the High Court says that 2% is a quality parameter for the entire network as opposed to payment of compensation to an individual consumer. We are unable to appreciate the aforesaid reasoning. As has been held by us above, the two sets of Regulations have to be considered together when the Impugned Regulation is being tested on the ground of violation of fundamental rights. Also, the High Court did not advert to a large number of other submissions made by the appellants before them and/or answer them correctly in law.
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BIHAR STATE ELECTRICITY BOARD ETC Vs. M/S ICEBERG INDUSTRIES LTD. AND OTHERS ETC. | we ought to interfere at this stage with such finding so far the same related to applicability and interpretation of the said circular. 17. As regards the provisions of clauses 9 (a) and (b) of the agreement, the first provision curb the right of a consumer to determine the agreement unless certain conditions are fulfilled. The circular relied upon by the Forum however has wider application and its applicability has not been disputed by the Board. Contention of the Board is that the Forum did not adhere to clause 6 (B) (i) of the circular, which according to the Board, constituted partial modification of general terms and conditions of supply. We do not accept this argument, particularly in the factual perspective of these appeals. The Board had agreed to instalments for clearing the dues and restored the supply. On that basis, an independent arrangement came into existence vis-a-vis the companys terms of supply in the given case. 18. The only point which now remains to be dealt with is as to whether the representation of the company after issue of notice of disconnection could absolve them from rigours of Section 56 of the 2003 Act which relates to disconnection of supply, on the ground that such representation demonstrated there was no negligence on the part of the consumer to pay any charge of electricity. Section 56 of the Act provides:- 56 Disconnection of supply in default of payment- (1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer: Provided that the supply of electricity shall not be cut off if such person deposits, under protest,- (a) an amount equal to the sum claimed from him, or (b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less, pending disposal of any dispute between him and the licensee. (2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity. 19. Under the aforesaid provision, disconnection of supply is special power given to the supplier in addition to the normal mode of recovery by instituting a suit. Both the Single Judge and the Appellate Bench of the High Court have held that the respondent company did not neglect to pay their dues, for which reason the supplier could have effected the harsher mode by disconnection supply. The Single Judge referred to two authorities, Corporation of the City of Nagpur Vs. Nagpur Electric Light and Power Company Limited – (AIR 1958 Bom. 498 ) and Amalgamated Commercial Traders Vs. A.C.K. Krishnaswami – (1995)(XXV) CC 454 in which it has been held that in the event there is bona fide dispute between the parties on the quantum of dues, non-payment of such sum would not amount to negligence to pay. The first authority relates to Section 24(1) of the Indian Electricity Act, 1910 having provision similar to that of Section 56 of the 2003 Act. The second case related to initiation of winding-up proceeding under the Companies Act, 1956. The other authority referred to was the case of Laxmikant Revchand Bhojwani and another Vs. Pratapsing Mohansingh Pardeshi – (1995) 6 SCC 576. In this case, one of the issues involved was default in payment of dues on account of rent, for which eviction could be asked for. The court found that the rent in that case was sought to be paid through money order within the specified period. It was held that it was not a case default to pay simpliciter and hence the rigours of the default provision leading to eviction under the applicable rent law stood diluted. 20. So far as the subject controversy is concerned, there is no dispute on obligation of the respondent company to pay the AMG charges, at least so far as first bill is concerned. Its representation for instalment was in the nature of a mercy plea. Going by that factor alone, we might not have had accepted the finding of the High Court that the consumer did not neglect to pay so as to warrant the disconnection provision contained in Section 56 of the Act. But in respect of respondent company, eventually instalment was granted subsequent to the period of disconnection. Once that plea for instalment payment was accepted and agreement was entered into for clearing the dues, it demonstrated willingness to pay on the part of the company of the dues in a manner acceptable to the appellant Board. Such plea of the company was accepted after keeping the matter pending for a long time. In such circumstances, in our opinion the High Court was right in giving its finding that the act of disconnection on 8 th September 2006 was arbitrary. Because of these reasons we do not want to disturb the finding of the Courts below. | 0[ds]9. But even if we proceed on the basis that concession on law made before a judicial forum against whose decision we are hearing these appeals would not bind a party to such concession, we do not find anything in law which barred the Redressal Forum from adjudicating the disputeBut we do not find any reason to denude the company of its locus to approach the forum. The object of use of electricity may be to produce items for sale, but use or consumption of electricity by them was for their own factoryWe have reproduced the passage from the judgment of the Division Bench dealing with that aspect of the controversy. We accept the finding of the Division Bench on that count. Board could not have had ignored the directive of a statutory forum and imported their own perception of what was legal to proceed against a consumer16. We thus find that the statutory Forum has come to a finding in dealing with certain circular issued by the Board. We do not think we ought to interfere at this stage with such finding so far the same related to applicability and interpretation of the said circular17. As regards the provisions of clauses 9 (a) and (b) of the agreement, the first provision curb the right of a consumer to determine the agreement unless certain conditions are fulfilled. The circular relied upon by the Forum however has wider application and its applicability has not been disputed by the BoardWe do not accept this argument, particularly in the factual perspective of these appeals. The Board had agreed to instalments for clearing the dues and restored the supply. On that basis, an independent arrangement came into existence vis-a-vis the companys terms of supply in the given case19. Under the aforesaid provision, disconnection of supply is special power given to the supplier in addition to the normal mode of recovery by instituting a suit. Both the Single Judge and the Appellate Bench of the High Court have held that the respondent company did not neglect to pay their dues, for which reason the supplier could have effected the harsher mode by disconnection supply. The Single Judge referred to two authorities, Corporation of the City of Nagpur Vs. Nagpur Electric Light and Power Company Limited – (AIR 1958 Bom. 498 ) and Amalgamated Commercial Traders Vs. A.C.K. Krishnaswami – (1995)(XXV) CC 454 in which it has been held that in the event there is bona fide dispute between the parties on the quantum of dues, non-payment of such sum would not amount to negligence to pay. The first authority relates to Section 24(1) of the Indian Electricity Act, 1910 having provision similar to that of Section 56 of the 2003 Act. The second case related to initiation of winding-up proceeding under the Companies Act, 1956. The other authority referred to was the case of Laxmikant Revchand Bhojwani and another Vs. Pratapsing Mohansingh Pardeshi – (1995) 6 SCC 576. In this case, one of the issues involved was default in payment of dues on account of rent, for which eviction could be asked for. The court found that the rent in that case was sought to be paid through money order within the specified period. It was held that it was not a case default to pay simpliciter and hence the rigours of the default provision leading to eviction under the applicable rent law stood diluted20. So far as the subject controversy is concerned, there is no dispute on obligation of the respondent company to pay the AMG charges, at least so far as first bill is concerned. Its representation for instalment was in the nature of a mercy plea. Going by that factor alone, we might not have had accepted the finding of the High Court that the consumer did not neglect to pay so as to warrant the disconnection provision contained in Section 56 of the Act. But in respect of respondent company, eventually instalment was granted subsequent to the period of disconnection. Once that plea for instalment payment was accepted and agreement was entered into for clearing the dues, it demonstrated willingness to pay on the part of the company of the dues in a manner acceptable to the appellant Board. Such plea of the company was accepted after keeping the matter pending for a long time. In such circumstances, in our opinion the High Court was right in giving its finding that the act of disconnection on 8 th September 2006 was arbitrary. Because of these reasons we do not want to disturb the finding of the Courts below. | 0 | 6,092 | 835 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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we ought to interfere at this stage with such finding so far the same related to applicability and interpretation of the said circular. 17. As regards the provisions of clauses 9 (a) and (b) of the agreement, the first provision curb the right of a consumer to determine the agreement unless certain conditions are fulfilled. The circular relied upon by the Forum however has wider application and its applicability has not been disputed by the Board. Contention of the Board is that the Forum did not adhere to clause 6 (B) (i) of the circular, which according to the Board, constituted partial modification of general terms and conditions of supply. We do not accept this argument, particularly in the factual perspective of these appeals. The Board had agreed to instalments for clearing the dues and restored the supply. On that basis, an independent arrangement came into existence vis-a-vis the companys terms of supply in the given case. 18. The only point which now remains to be dealt with is as to whether the representation of the company after issue of notice of disconnection could absolve them from rigours of Section 56 of the 2003 Act which relates to disconnection of supply, on the ground that such representation demonstrated there was no negligence on the part of the consumer to pay any charge of electricity. Section 56 of the Act provides:- 56 Disconnection of supply in default of payment- (1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer: Provided that the supply of electricity shall not be cut off if such person deposits, under protest,- (a) an amount equal to the sum claimed from him, or (b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less, pending disposal of any dispute between him and the licensee. (2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity. 19. Under the aforesaid provision, disconnection of supply is special power given to the supplier in addition to the normal mode of recovery by instituting a suit. Both the Single Judge and the Appellate Bench of the High Court have held that the respondent company did not neglect to pay their dues, for which reason the supplier could have effected the harsher mode by disconnection supply. The Single Judge referred to two authorities, Corporation of the City of Nagpur Vs. Nagpur Electric Light and Power Company Limited – (AIR 1958 Bom. 498 ) and Amalgamated Commercial Traders Vs. A.C.K. Krishnaswami – (1995)(XXV) CC 454 in which it has been held that in the event there is bona fide dispute between the parties on the quantum of dues, non-payment of such sum would not amount to negligence to pay. The first authority relates to Section 24(1) of the Indian Electricity Act, 1910 having provision similar to that of Section 56 of the 2003 Act. The second case related to initiation of winding-up proceeding under the Companies Act, 1956. The other authority referred to was the case of Laxmikant Revchand Bhojwani and another Vs. Pratapsing Mohansingh Pardeshi – (1995) 6 SCC 576. In this case, one of the issues involved was default in payment of dues on account of rent, for which eviction could be asked for. The court found that the rent in that case was sought to be paid through money order within the specified period. It was held that it was not a case default to pay simpliciter and hence the rigours of the default provision leading to eviction under the applicable rent law stood diluted. 20. So far as the subject controversy is concerned, there is no dispute on obligation of the respondent company to pay the AMG charges, at least so far as first bill is concerned. Its representation for instalment was in the nature of a mercy plea. Going by that factor alone, we might not have had accepted the finding of the High Court that the consumer did not neglect to pay so as to warrant the disconnection provision contained in Section 56 of the Act. But in respect of respondent company, eventually instalment was granted subsequent to the period of disconnection. Once that plea for instalment payment was accepted and agreement was entered into for clearing the dues, it demonstrated willingness to pay on the part of the company of the dues in a manner acceptable to the appellant Board. Such plea of the company was accepted after keeping the matter pending for a long time. In such circumstances, in our opinion the High Court was right in giving its finding that the act of disconnection on 8 th September 2006 was arbitrary. Because of these reasons we do not want to disturb the finding of the Courts below.
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9. But even if we proceed on the basis that concession on law made before a judicial forum against whose decision we are hearing these appeals would not bind a party to such concession, we do not find anything in law which barred the Redressal Forum from adjudicating the disputeBut we do not find any reason to denude the company of its locus to approach the forum. The object of use of electricity may be to produce items for sale, but use or consumption of electricity by them was for their own factoryWe have reproduced the passage from the judgment of the Division Bench dealing with that aspect of the controversy. We accept the finding of the Division Bench on that count. Board could not have had ignored the directive of a statutory forum and imported their own perception of what was legal to proceed against a consumer16. We thus find that the statutory Forum has come to a finding in dealing with certain circular issued by the Board. We do not think we ought to interfere at this stage with such finding so far the same related to applicability and interpretation of the said circular17. As regards the provisions of clauses 9 (a) and (b) of the agreement, the first provision curb the right of a consumer to determine the agreement unless certain conditions are fulfilled. The circular relied upon by the Forum however has wider application and its applicability has not been disputed by the BoardWe do not accept this argument, particularly in the factual perspective of these appeals. The Board had agreed to instalments for clearing the dues and restored the supply. On that basis, an independent arrangement came into existence vis-a-vis the companys terms of supply in the given case19. Under the aforesaid provision, disconnection of supply is special power given to the supplier in addition to the normal mode of recovery by instituting a suit. Both the Single Judge and the Appellate Bench of the High Court have held that the respondent company did not neglect to pay their dues, for which reason the supplier could have effected the harsher mode by disconnection supply. The Single Judge referred to two authorities, Corporation of the City of Nagpur Vs. Nagpur Electric Light and Power Company Limited – (AIR 1958 Bom. 498 ) and Amalgamated Commercial Traders Vs. A.C.K. Krishnaswami – (1995)(XXV) CC 454 in which it has been held that in the event there is bona fide dispute between the parties on the quantum of dues, non-payment of such sum would not amount to negligence to pay. The first authority relates to Section 24(1) of the Indian Electricity Act, 1910 having provision similar to that of Section 56 of the 2003 Act. The second case related to initiation of winding-up proceeding under the Companies Act, 1956. The other authority referred to was the case of Laxmikant Revchand Bhojwani and another Vs. Pratapsing Mohansingh Pardeshi – (1995) 6 SCC 576. In this case, one of the issues involved was default in payment of dues on account of rent, for which eviction could be asked for. The court found that the rent in that case was sought to be paid through money order within the specified period. It was held that it was not a case default to pay simpliciter and hence the rigours of the default provision leading to eviction under the applicable rent law stood diluted20. So far as the subject controversy is concerned, there is no dispute on obligation of the respondent company to pay the AMG charges, at least so far as first bill is concerned. Its representation for instalment was in the nature of a mercy plea. Going by that factor alone, we might not have had accepted the finding of the High Court that the consumer did not neglect to pay so as to warrant the disconnection provision contained in Section 56 of the Act. But in respect of respondent company, eventually instalment was granted subsequent to the period of disconnection. Once that plea for instalment payment was accepted and agreement was entered into for clearing the dues, it demonstrated willingness to pay on the part of the company of the dues in a manner acceptable to the appellant Board. Such plea of the company was accepted after keeping the matter pending for a long time. In such circumstances, in our opinion the High Court was right in giving its finding that the act of disconnection on 8 th September 2006 was arbitrary. Because of these reasons we do not want to disturb the finding of the Courts below.
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D.P. Kelkar Vs. Ambadas Keshav Bajaj | has made in Chapter III-A effect a radical departure. The Industries (Development and Regulation) Act makes a categorical declaration as to the expediency of control by the Union of certain industries and Section 2 thereof says thatit is hereby declared that it is expedient in the public interest that the Union should take under its control the industries specified in the First Schedule.The very purpose of the enactment therefore is a public purpose and not the purpose of the company or its shareholders. Since we have shown that the company is managed and controlled for the benefit of the share-holders it is clear that the very fundamental principle involved in the constitution and functioning of companies has been given a go-by by the provisions contained in Chapter III-A of direct management and control of industrial undertakings by the Central Government. It can hardly therefore be said that the company qua company continues to exist in its pristine form though the mere outward shell or legal form of it is by Sub-section (2) of Section 18-B made to continue. This itself illustrates powerfully that the company is not being carried on as a company but is carried on for a completely different purpose under the authority of a department of the Central Government. We hold that Section 32, Sub-clause (iv) applies to both these companies and that they would therefore be exempt under that provision from the provisions of the Payment of Bonus Act. Nothing contain-in the Act would therefore apply to them. The Payment of Wages Authority therefore went wrong in granting the claims of the workmen in both the cases.50. Some contentions raised on behalf of the employees may now be noticed. It was urged first of all that when Clause (iv) of Section 32 uses the expressionemployees employed by an establishment engaged in any industry carried on by or under the authority of any department of the Central Government what is implied is that the industry qua industry must be carried on by or under the authority of any department of the Central Government and not an establishment engaged in any industry. In other words, the contention is that the words carried on by or under the authority of any department of the Central Government qualify industry and not an establishment engaged in any industry. Upon this construction it was urged that the whole of the textile industry is not being carried on by or under the authority of any department of the Central Government and unless that happens Clause (iv) of Section 32 would not be attracted. The argument has only got to be stated to be rejected. In the first place if we were to place that construction upon Clause (iv) we would be depriving the words an establishment engaged in of all meaning, because if the words carried on by or under the authority of any department of the Central Government were held to qualify only the word industry then it will at once appear that the words by an establishment engaged in would become redundant. We cannot give that construction for we cannot hold that any words used in a statute are redundant unless necessity compels us to do so. In the present case we think that those words have a meaning. The Legislature has used a composite expression, though a somewhat cumbersome expression an establishment engaged in any industry to indicate the subject of the clause carried on by or under the authority of any department of the Central Government. In our opinion, an establishment engaged in any industry is a composite expression to which the clause carried on by or under the authority of any department of the Central Government is a qualification. Instead of using a more compendious expression establishment, the draftsman has in the interests of extra clarity used the expression establishment engaged in any industry. This construction is reinforced on a consideration of other provisions of the Act particularly the preamble to the Act, Sub-section (3) of Section 1 and Section 3, Section 4(b) read with Sch. 2 and Sections 5 and 6 read with Sch. 3. A perusal of these provisions of the Payment of Bonus Act will show that the Act never contemplated applying this provision to an industry but only to an establishment. It purports to be an Act for the payment of bonus to persons employed in certain establishment and for matters connected therewith and the main object and purpose of the Act also reinforces the construction which we have placed upon Clause (iv) of Section 32.51. In order to get out of the impact of Clause (iv) of Section 32 an attempt was further made to limit the applicability of Section 32, Clause (iv) by saying that the provisions of Chapter III-A, particularly Sections 18-A, 18-B and 18-E to which we have referred, were all provisions which confer powers which were merely supplementary to the normal powers under the Companies Act such as for instance, the power of the Central Government under Sections 408 and 409 of the Companies Act and that therefore the company qua company continues to have the normal powers of control enjoined by the Central Government. We cannot appreciate such an argument because the powers conferred upon the Central Government under Sections 408 and 409 of the Companies Act are in no way comparable to the powers assumed by the Central Government under Chapter III-A of the Industries (Development and Regulation) Act. It is unnecessary to deal in detail with these powers, but a mere perusal of Sections 408 and 409 will show that one gives power to the Central Government to appoint directors and the other to stay operation of any action taken detrimental to public limited companies. Such powers are powers of supervision and are in no way comparable to the powers of control and management given to the Central Government under Chapter III-A of the Industries (Development and Regulation) Act. We are unable to accept this contention. | 1[ds]9. By Section 12, no minimum or maximum bonus can be paid on salary in excess of Rs. 750/per month. To ensure this provision has been made for employees drawing a salary or wage of more than Rs. 750/per mensem in which case there is a special provision for calculation of bonus as if his salary or wage were seven hundred and fifty rupees per mensem only. Certain special cases are provided for in Section 13 and Section 14 provides for the computation of the number of working days. Then we come to the important provisions regarding set on and set off of allocable surplus contained in Section 15 of the Act. Where for any accounting year the allocable surplus exceeds the amount of maximum bonus payable to the employees in the establishment under Section 11, then, the excess shall, subject to a limit of twenty per cent of the total salary or wage of the employees employed in the establishment in that accounting year, be carried forward for being set on in the succeeding accounting year and so on up to and inclusive of the fourth accounting year to be utilised for the purpose of payment of bonus in the manner illustrated in the Fourth Schedule. Similarly where for any accounting year there is no available surplus or the allocable surplus in respect of that year falls short of the amount of minimum bonus payable to the employees and there is no amount or sufficient amount carried forward and set on under(1) of Section 15 which could be utilised for payment of the minimum bonus, then, such minimum amount or the deficiency, as the case may be, is to be carried forward for being set off in the succeeding accounting year and so on up to and inclusive of the fourth accounting year in the manner illustrated in the Fourth Schedule. The purpose of these provisions is clear. Where there are profits or allocable surplus, the allocable surplus must be set apart and utilised towards payment of the bonus under the Act subject to the limitations indicated. The balance has to be carried forward and when there are lean years and there is no available surplus or the allocable surplus falls short of the amount of minimum bonus, then the establishment can draw from the balance of the allocable surplus if any of the previous years. It is clear, however, that whether or not there is allocable surplus or available surplus, the minimum bonus has to be paid in any Case.We are unable to accept this contention because, in the first place as the definition of wages stands today there are no words of limitation in that definition limiting it to an agreement or contract between the employer and the employee. The definition says wages means all remuneration expressed in terms of money or capable of being so expressed which would, if the terms of employment express or implied, were fulfilled, be payable. Therefore every kind of remuneration would be included in this definition so long as it is payable to the employee if the terms of employment, express or implied, were fulfilled. The expression if the terms of employment, express or implied, were fulfilled would in the context in which it is found apply to the employee. The condition precedent for the application of the definition would therefore be if the terms of employment, express or implied, were fulfilled by the employee. These words cannot in the context in which they are found apply to an employer. With respect we are in agreement with the remarks made in a recent judgment of this court in Balaram Abaji Patil v. M.C. Ragojiwalla : (1960)IILLJ491Bom by Mr. Justice Tarkunde. He said that the expression if the terms of the contract of employment express or implied, were fulfilled refers only to such of the terms of the contract of employment as are required to be fulfilled by the employed person. The expression has no reference to the terms of the contract which are to be fulfilled by the employer.Therefore those words do not bring in the concept of contract or agreement of employment, so far as the employer is concerned.13. A reference to the decision in Balaram Abajis case, : (1960)IILLJ491Bom , also gives rise to another point which we would here emphasize. At the time when that decision was given the definition of wages was different. Prior to the amendment Of the definition introduced by Act 68 of 1957 the definition was wages means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable ...... to a person employed in respect of his employment or of work done in such employment..... (the underlining is ours). The words if the terms of the contract of employment were, however, dropped by Section 3(3) of the amendment Act 68 of 1957 and the words terms of employment were substituted. It seems to us that upon the point which has been argued, this amendment makes a crucial difference. Now the words the contract of having been dropped, we do not see how it can still be argued that the definition is limited only to remuneration payable under an agreement or contract. It is clear that the amended definition would apply to all kinds of remuneration whether arising from a contract, an award, a settlement or under a statute. As stated in Balaram Abajis case, : (1960)IILLJ491Bom , the definition as it now stands makes no reference to the origin of the employers obligation to pay the remuneration. When we consider the legislative history of the definition, the construction which we have put upon it is further reinforced.In the Act therefore there is a right created in favour of the employee on the one hand and a duty enjoined upon the employer on the other hand to pay the bonus. It is clear, therefore that by this legislation a term of the employment has been introduced binding on the employer and in favour of the employee. The expression term of employment or under the terms of employment used in(vi) of Section 2 of the Payment of Wages Act, cannot, in our opinion, be read to imply merely contractual terms of employment. As we have said there is nothing in the definition as it stands to show that it refers only to contractual payment and would in the ordinary meaning of that expression include payments which it is the duty of the employer to pay whether under a contract or a statute or an award or settlement. The effect of the Payment of Bonus Act therefore, is to introduce a further term of employment as regards the payment of bonus. The requirement of the section therefore that whatever remuneration is payable must be payable under the terms of employment, is therefore satisfied. We must hold under the circumstances that the bonus payable under the Payment of Bonus Act 1965 amounts to wages within the definition in Section 2(vi). We say this however subject to what we will indicate hereafter.As regards the first contention, we have already discussed the question whether the payments under the Bonus Act amount to wages and in our opinion, they do amount to wages and to that extent, therefore, we must hold that so far as this contention is concerned, the Payment of Wages Authority had jurisdiction and the two authorities were right in the decision which they took on this point.20. The same however cannot be said about the other two contentions on the question of jurisdiction. Section 15,(1) confers the jurisdiction upon the Payment of Wages Authority in the following wordsthe State Government may appoint one or more persons to be the authority or authorities to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages of persons employed or paid in that area.In the present case the dispute is not regarding deductions from wages but regarding delay in the payment of wages. The procedure prescribed for the trial of claims to wages is contained in(3) of Section 15 and a mere perusal of thatwould show that the procedure is a very summary procedure and enacted to ensure the speedy disposal of the employees claim and the prompt payment to him of his wages. The summary nature of these proceedings is indicated by the use of the words ..... and after such further inquiry (if any) as may be necessary. The Payment of Wages Authority has no doubt to give an opportunity to the employer of being heard but there is nothing like a formal hearing nor has evidence to be recorded in the manner in which it is recorded in a Civil Court nor is the other procedure to be followed as is normally followed in a Civil Court. In most of the cases which come before the Payment of Wages Authority, however, such a summary procedure would be suitable and expedient having regard to the purpose and object of the Act, but where a dispute arises and controversial and complicated questions of law are raised, involving a prolonged inquiry as in the present case it is clear that it was not intended by the Payment of Wages Act that such questions should also continue to be tried by the Payment of Wages Authority. The very nature of the jurisdiction conferred and the procedure prescribed preclude that being done.(3) itself makes this clear by the use of the words after such further inquiry (if any) as may be necessary, may ...... direct the payment of the wages deducted or delayed. Thus a discretion is given to the Authority in a given case not to decide the claim itself but to leave the parties to determine the claim by normal procedure. This was also the settled view of this court and has now received the imprimatur of the Supreme Court itself in its recent decision in Payment of Wages Inspector v. B.K.S.T. Co. : (1969)ILLJ762SC .The section in the first place applies only when a dispute arises between an employer and his employees with respect to the bonus payable under the Act. In making this provision the section, does not in any way affect or infringe any of the provisions of the Payment of Wages Act particularly Section 15 which confers jurisdiction upon the payment of Wages Authority. We have already shown that it was settled law that under Section 15 of the Payment of Wages Act, though no doubt all claims in respect of deductions from wages and delay in payment of wages are to be tried by the Payment of Wages Authority, where a dispute arises and there is a complicated question to be tried, that question should not ordinarily be tried by the Payment of Wages Authority. Section 22 of the Bonus Act says no more than this and to that extent would, in our opinion, be complementary to the law under the Payment of Wages Act. Any dispute arising between an employer and his employee with respect to the bonus payable under the Bonus Act would by Implication be taken out of the jurisdiction of the Payment of Wages Authority and be relegated to the jurisdiction of the Authority under the Industrial Disputes Act. There is nothing in the Payment of Wages Act, particularly in Section 15 of the Act, to exclude the operation of any other laws. On the other hand Section 34.(1) of the Bonus Act excludes the operation of the other laws. Section 34(1) sayssave as otherwise provided in this section, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the terms of any award, agreement, settlement or contract of service made before the 29th May, 1965.It was therefore intended that the Bonus Act should have effect notwithstanding anything contained in any other lawsTherefore even assuming that the Payment of Wages Act had provided for jurisdiction in a matter like this, we have held that it hasSection 34 would exclude the operation of the Payment of Wages Act, but we have already said that there is nothing in the Payment of Wages Act to indicate that the operation of any other law is excluded so far as the jurisdiction of the payment of wages authority iswords of Section 22 which we have quoted refer to any dispute with respect to the bonus payable and it seems to us that the language employed does not limit itself directly to the quantum of the bonus payable under the Act only. When the section says with respect to the bonus it means necessarily disputes in connection with the bonus or connected with the bonus payable under the Act. That would be the normal connotation of the words with respect to and it seems to us that when the employer raises an issue such has been raised in the present case, that the establishment itself has been exempted and therefore no bonus is payable, it is a dispute with respect) to the bonus payable under theis not exclusion from the provisions of the Act which had been canvassed on behalf of the employers but merely exemption as stated in the Act itself under this clause of Section 32. Therefore the dispute which the employers have raised in the present case will be a dispute under this Act and not de hors the Act. It seems to us therefore that the provisions of Section 22 would squarely apply to the dispute raised in the present case. That it is a dispute there can be no doubt, and indeed that has not been challenged in the present case. If so, it seems to us that for both the reasons which we have stated above that dispute would be beyond the jurisdiction of the Payment of Wages Authority. The first reason is that normally it is not a question which under the Payment of Wages Act itself ought to be decided by the Payment of Wages Authority because it raises a complicated question of law and secondly that in any event Section 22 indicates a forum where such a dispute ought to be tried and therefore by implication ousts the jurisdiction of the Authority under the Payment of Wages Act.The payment of Bonus Act is a special Act dealing with a special subject. It statutorily creates rights in favour of the employee and against the employer which the employee never enjoyed before namely the right to be paid what is called a bonus even though the establishment or undertaking may not be making profits at all. A bonus originally meant a boon or gift over and above what is normally due to the employee. It was in the nature of an extra dividend paid out of surplus profits. In the inception it was always paidby the employer but later legislation made the payment of bonus obligatory. Now the payment under this Act is also obligatory but it is payable whether there are profits in the accounting year or not (see Section 10). The payment has thus lost the essential characteristics of a bonus, yet it is called by that name in the Act. These are all steps taken by our legislatures within recent times in their attempts to remove economic imbalances and to restore social justice between employer and employee. It is also common knowledge that so far it was the Industrial Courts and Tribunals which adjudicated upon disputes regarding bonus and granted bonus to employees of a concern. No doubt they never granted bonus to employees of a concern which was being run at a loss ant under the present Act what is called bonus is for the first time in the history of industrial relations made payable to employees of an establishment even though that establishment is running at a loss, but it is understandable that the function of deciding disputes regarding the new payment and granting it would also be entrusted to Industrial Court and Tribunals. In the present case so far as the Indu Mills are concerned, they have specifically stated that in the year 1965 they incurred a loss of Rs. 1,79,00,000/and in the year 1966 a loss of RupeesThe Act, therefore, makes provision for the first time for an extraordinary right which was not within the contemplation of the Industrial Law before and was passed with the sole object of conferring only that right upon the employees and providing for it. When such a special statute containing special provisions also creates a special forum for the trial of disputes under the Act it is settled law that any dispute arising under that Act must go before the special Tribunal created under the Act. We hold for these reasons that the Payment of Wages Authority had no jurisdiction in the present case to try the dispute raised in these cases.With regard to the latter judgment (in Pratap Spinning. Weaving and Manufacturing Co.s case) we may say that the Authority gave some further reasons as can be seen from the following observations at the end of paragraph 16:Section 32 conceives of theof the Act to certain classes of employees. Certainly this is far removed from the question of application of the Act under Section 20.We have already dealt with this point but we must say that these observations amount to an incorrect reading of Section 32, Clause (iv). Section 32 does not conceive of anyof the Act to an employer. On the other hand, it is a provision of the Act itself and the Act itself creates an exemption. In other words it amounts to saying that the employer claims an exemption under the Act and not de hors the Act. The authority erred in observing that Section 32 conceives ofof the Act to certain classes of employees and because it took this incorrect view it also observed that the question was far removed from the question of application of the Act under Section 20. Any dispute raised under Section 32 would be a question governing the applicability of the Act. We are unable to sustain the reasoning of either authority.32. A further contention based upon the amendment to Section 15(1) of the Payment of Wages Act, by Amendment Act 53 of 1964 was advanced. Of the several amendments made by that Act at the end of(1) of Section 15 for the words of persons employed or paid in that area the following words were substituted, of persons employed or paid in that area, including all matters incidental to such claims, (the underlining is ours.) On the strength of the last clause which we have underlined it has been contended on behalf of the respondents that the jurisdiction of the Payment of Wages Authority after this amendment has been considerably enlarged. Whereas previously the Authority was only confined to hearing and deciding claims arising out of deductions from wages or delay in the payment of wages, now the authority has jurisdiction to decide all matters incidental to such claims. Therefore the points which have been raised on behalf of the employers and which we have dealt with above could have been dealt with by the Payment of Wages Authority in the present case.33. It seems to us that the amendment was brought in only for the purpose of clarifying what was already the law namely that the jurisdiction of the authority is confined to deciding all claims arising from deductions from wages or delay in the payment of wages and that would necessarily include, matters connected with the two questions and that is why it is referred to in the amendment as all matters incidental to such claims. The amendment refers only to mattersto the claims arising out of deductions from wages or delay in the payment of wages and we do not think that when the amendment speaks of matters incidental it meant to include within the ambit of the jurisdiction of the payment of wages authority substantial questions as to the applicability of the Act or as to the applicability of exemptions created under the Act and similar other questions especially where complicated questions of law or fact arise. Despite the amendment we think the decision of the Supreme Court in : (1969)ILLJ762SC and the principle laid down there would still govern the present case. So long as any complicated question of law or fact is likely to arise, even though incidental, the matter cannot be tried by the payment of wages Authority, See para 10 at p. 596 of the report. For these reasons we are of the opinion that the payment of wages authority would not have jurisdiction to try the question raised in these two petitions before us and that the decisions of the authorities overruling the objection as to jurisdiction raised by the employers, were incorrect.Such is the drastic effect and the vast power assumed by the Central Government and partially conferred upon the authorised controller functioning under the authority of the Central Government. It is clear that the principal officers of the company namely the manager and the director are wiped out of existence and the authorised controller substituted. The plenary body which usually has the plenary authority in a company, and appoints the directors viz. theis no doubt continued but it is an ineffective and powerless body offor they cannot discharge their main function namely of appointing directors through whom the company is usually managed and they cannot pass any effective resolutions without the consent of the Central Government. They are onlyin name and have none of the usual power and authority of theunder the Companies Act. What is worse, they cannot resolve that the companys business should be put an end to because they cannot pass a winding up resolution without the consent of the Central Government, nor can any proceeding for winding up lie without the consent of the Central Government.43. It is clear upon these provisions that the management and control is completely taken away from the directors and substantially from theand the effective management and control of the Central Government through the authorised controller substituted. It is impossible not to hold in a case like this that the industrial undertaking is being carried on under the authority of the CentralConsiderable stress was laid on behalf of the workers upon(2) of Sectionwhich is so to say a saving clause saving the powers of the undertaking which happens to be a company.(2) merely sayssubject to the provisions contained in(1), and to the other provisions contained in this Act and subject to such other exceptions, restrictions and limitations, if any, as the Central Government may, by notification in the official Gazette, specify in this behalf, the Indian Companies Act, 1913, shall continue to apply to such undertaking in the same manner as it applied thereto before the issue of the notified order under Sectiondoubt the Companies Act continues to apply but the conditions and limitations with which its operation is circumscribed are so numerous and drastic as to make the solemn statement thatthe Indian Companies Act shall continue to apply to such undertaking in the same manner as it applied thereto before the issue of the notified order under Sectionor less chimerical. As we have shown, every vestige and substance of power is taken away under the provisions of SectionsE. The directors cease to function, the shareholders cannot pass effective resolutions unless approved by the Central Government; thecannot appoint directors under any circumstances; the authorised controller is given the control and management in place of the directors, and no proceeding for winding up can lie even though resolutions are passed to that effect without the consent of the Central Government. What remains of the powers of the directors of the company after these provisions come into operation, it is difficult to envisage. The authorised controller is not fettered by limitations. On the other hand he enjoys all the powers under the Companies Act subject to the overriding powers of the Central Government to give powers or to create exceptions, restrictions or limitations upon those powers under the Companies Act. Three conclusions may be drawn from these provisions. Firstly that after the notifications and the operation of these sections come into force, what is left of the company is the mere outward shell of incorporation and every vestige of power to manage and control is taken away from the directors andSecondly the authorised controller becomes all powerful and enjoys all the authority under the Companies Act except to the extent that he is controlled by the Central Government. Thirdly the plenary and overriding power of the Central Government to give directions and to make exceptions, restrictions and limitations to the Indian Companies Act and thereby further to control the authorised controller and the company is absolute and unrestricted. We have no manner of doubt that under this dispensation the establishments of which the management and control were taken away in the cases before us, were carried on under the authority of a department of the Centralhave already referred to the two notifications and to the provisions of the law contained in Sectionsof the Industries (Development and Regulation) Act, 1951 and the authorised controller is in no sense appointed as an agent or representative of the Government. He is a controller authorised by the Central Government and has to comply with all directions issued from time to time by the Central Government. The management and control therefore, is directly under the department of the Central Government concerned and not under a person who has any independent authority of his own. In every matter and in every respect in which the authorised controller can act in the management of the company it is the Central Government who is the authority to issue directions or to control his actions. He is therefore the person authorised and not an agent of Government. The establishment therefore, it must be held, is being carried on directly under the authority of a department of the Central Government. The argument moreover ignores the distinction drawn by the section itself by the use of the words by and under in contradistinction to each other.47. The view we have taken is supported by the principles laid down in two of the cases which were referred to Abdul Rehman Abdul Gafur v. E. Paul : (1962)IILLJ693Bom (decision of a single Judge of this Court) and Secretary, Indian Naval Canteen Control Board, New Delhi v. Industrial Tribunal, Ernakulam : AIR1966Ker94 , though upon the facts a contrary conclusion was reached. In both these cases dealing with the identical phrase under the authority of the Central Government to be found in the definition of appropriate Government in Section 2(a)(i) of the Industrial Disputes Act, the Court held that the phrase means and is intended to apply to industries carried on directly under the authority of the Central Government. In our opinion, upon the circumstances we have set forth here and having regard to the provisions of the Industries (Development and Regulation) Act, it is amply established that both these undertakings were being directly run under a department of the Central Government. In the two cases that fact was negatived, but the circumstances in each of those two cases were quite different. In one case the Mazgaon Dock Limited was continuing as an incorporated public limited company and exercising all its powers through a board of directors although the capital belonged entirely to the Government. In the Kerala case the undertaking involved was the Indian Naval Canteen Service functioning under its own constitution created by a trust. The circumstances here are entirely different. We, however accept with respect, the interpretation put in these two decisions upon the words carried on under the authority of the Central Government as meaning carried on directly under the authority of the Central Government. While we have thus agreed with the principle laid down in these two authorities, we may say that we must not be understood to have accepted all that has been decided in the Kerala case. Particularly we refer to the observations in para 7 of that case thatthe question as to whether a particular industry is carried on by or under the authority of the Central Government is essentially a question of fact depending on the circumstances of each case.In our opinion, that observation in that case was hardly necessary and was casual observation, but we wish to make it clear that we are unable to accept that observation. In our opinion, the question whether a particular industry is carried on by or under the authority of the Central Government is a mixed question of law andcannot give that construction for we cannot hold that any words used in a statute are redundant unless necessity compels us to do so. In the present case we think that those words have a meaning. The Legislature has used a composite expression, though a somewhat cumbersome expression an establishment engaged in any industry to indicate the subject of the clause carried on by or under the authority of any department of the Central Government. In our opinion, an establishment engaged in any industry is a composite expression to which the clause carried on by or under the authority of any department of the Central Government is a qualification. Instead of using a more compendious expression establishment, the draftsman has in the interests of extra clarity used the expression establishment engaged in any industry. This construction is reinforced on a consideration of other provisions of the Act particularly the preamble to the Act,(3) of Section 1 and Section 3, Section 4(b) read with Sch. 2 and Sections 5 and 6 read with Sch. 3. A perusal of these provisions of the Payment of Bonus Act will show that the Act never contemplated applying this provision to an industry but only to an establishment. It purports to be an Act for the payment of bonus to persons employed in certain establishment and for matters connected therewith and the main object and purpose of the Act also reinforces the construction which we have placed upon Clause (iv) of Section 32.51. In order to get out of the impact of Clause (iv) of Section 32 an attempt was further made to limit the applicability of Section 32, Clause (iv) by saying that the provisions of ChapterB andto which we have referred, were all provisions which confer powers which were merely supplementary to the normal powers under the Companies Act such as for instance, the power of the Central Government under Sections 408 and 409 of the Companies Act and that therefore the company qua company continues to have the normal powers of control enjoined by the Central Government. We cannot appreciate such an argument because the powers conferred upon the Central Government under Sections 408 and 409 of the Companies Act are in no way comparable to the powers assumed by the Central Government under Chapterof the Industries (Development and Regulation) Act. It is unnecessary to deal in detail with these powers, but a mere perusal of Sections 408 and 409 will show that one gives power to the Central Government to appoint directors and the other to stay operation of any action taken detrimental to public limited companies. Such powers are powers of supervision and are in no way comparable to the powers of control and management given to the Central Government under Chapterof the Industries (Development and Regulation) Act. We are unable to accept this contention. | 1 | 16,165 | 5,690 | ### Instruction:
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has made in Chapter III-A effect a radical departure. The Industries (Development and Regulation) Act makes a categorical declaration as to the expediency of control by the Union of certain industries and Section 2 thereof says thatit is hereby declared that it is expedient in the public interest that the Union should take under its control the industries specified in the First Schedule.The very purpose of the enactment therefore is a public purpose and not the purpose of the company or its shareholders. Since we have shown that the company is managed and controlled for the benefit of the share-holders it is clear that the very fundamental principle involved in the constitution and functioning of companies has been given a go-by by the provisions contained in Chapter III-A of direct management and control of industrial undertakings by the Central Government. It can hardly therefore be said that the company qua company continues to exist in its pristine form though the mere outward shell or legal form of it is by Sub-section (2) of Section 18-B made to continue. This itself illustrates powerfully that the company is not being carried on as a company but is carried on for a completely different purpose under the authority of a department of the Central Government. We hold that Section 32, Sub-clause (iv) applies to both these companies and that they would therefore be exempt under that provision from the provisions of the Payment of Bonus Act. Nothing contain-in the Act would therefore apply to them. The Payment of Wages Authority therefore went wrong in granting the claims of the workmen in both the cases.50. Some contentions raised on behalf of the employees may now be noticed. It was urged first of all that when Clause (iv) of Section 32 uses the expressionemployees employed by an establishment engaged in any industry carried on by or under the authority of any department of the Central Government what is implied is that the industry qua industry must be carried on by or under the authority of any department of the Central Government and not an establishment engaged in any industry. In other words, the contention is that the words carried on by or under the authority of any department of the Central Government qualify industry and not an establishment engaged in any industry. Upon this construction it was urged that the whole of the textile industry is not being carried on by or under the authority of any department of the Central Government and unless that happens Clause (iv) of Section 32 would not be attracted. The argument has only got to be stated to be rejected. In the first place if we were to place that construction upon Clause (iv) we would be depriving the words an establishment engaged in of all meaning, because if the words carried on by or under the authority of any department of the Central Government were held to qualify only the word industry then it will at once appear that the words by an establishment engaged in would become redundant. We cannot give that construction for we cannot hold that any words used in a statute are redundant unless necessity compels us to do so. In the present case we think that those words have a meaning. The Legislature has used a composite expression, though a somewhat cumbersome expression an establishment engaged in any industry to indicate the subject of the clause carried on by or under the authority of any department of the Central Government. In our opinion, an establishment engaged in any industry is a composite expression to which the clause carried on by or under the authority of any department of the Central Government is a qualification. Instead of using a more compendious expression establishment, the draftsman has in the interests of extra clarity used the expression establishment engaged in any industry. This construction is reinforced on a consideration of other provisions of the Act particularly the preamble to the Act, Sub-section (3) of Section 1 and Section 3, Section 4(b) read with Sch. 2 and Sections 5 and 6 read with Sch. 3. A perusal of these provisions of the Payment of Bonus Act will show that the Act never contemplated applying this provision to an industry but only to an establishment. It purports to be an Act for the payment of bonus to persons employed in certain establishment and for matters connected therewith and the main object and purpose of the Act also reinforces the construction which we have placed upon Clause (iv) of Section 32.51. In order to get out of the impact of Clause (iv) of Section 32 an attempt was further made to limit the applicability of Section 32, Clause (iv) by saying that the provisions of Chapter III-A, particularly Sections 18-A, 18-B and 18-E to which we have referred, were all provisions which confer powers which were merely supplementary to the normal powers under the Companies Act such as for instance, the power of the Central Government under Sections 408 and 409 of the Companies Act and that therefore the company qua company continues to have the normal powers of control enjoined by the Central Government. We cannot appreciate such an argument because the powers conferred upon the Central Government under Sections 408 and 409 of the Companies Act are in no way comparable to the powers assumed by the Central Government under Chapter III-A of the Industries (Development and Regulation) Act. It is unnecessary to deal in detail with these powers, but a mere perusal of Sections 408 and 409 will show that one gives power to the Central Government to appoint directors and the other to stay operation of any action taken detrimental to public limited companies. Such powers are powers of supervision and are in no way comparable to the powers of control and management given to the Central Government under Chapter III-A of the Industries (Development and Regulation) Act. We are unable to accept this contention.
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and not under a person who has any independent authority of his own. In every matter and in every respect in which the authorised controller can act in the management of the company it is the Central Government who is the authority to issue directions or to control his actions. He is therefore the person authorised and not an agent of Government. The establishment therefore, it must be held, is being carried on directly under the authority of a department of the Central Government. The argument moreover ignores the distinction drawn by the section itself by the use of the words by and under in contradistinction to each other.47. The view we have taken is supported by the principles laid down in two of the cases which were referred to Abdul Rehman Abdul Gafur v. E. Paul : (1962)IILLJ693Bom (decision of a single Judge of this Court) and Secretary, Indian Naval Canteen Control Board, New Delhi v. Industrial Tribunal, Ernakulam : AIR1966Ker94 , though upon the facts a contrary conclusion was reached. In both these cases dealing with the identical phrase under the authority of the Central Government to be found in the definition of appropriate Government in Section 2(a)(i) of the Industrial Disputes Act, the Court held that the phrase means and is intended to apply to industries carried on directly under the authority of the Central Government. In our opinion, upon the circumstances we have set forth here and having regard to the provisions of the Industries (Development and Regulation) Act, it is amply established that both these undertakings were being directly run under a department of the Central Government. In the two cases that fact was negatived, but the circumstances in each of those two cases were quite different. In one case the Mazgaon Dock Limited was continuing as an incorporated public limited company and exercising all its powers through a board of directors although the capital belonged entirely to the Government. In the Kerala case the undertaking involved was the Indian Naval Canteen Service functioning under its own constitution created by a trust. The circumstances here are entirely different. We, however accept with respect, the interpretation put in these two decisions upon the words carried on under the authority of the Central Government as meaning carried on directly under the authority of the Central Government. While we have thus agreed with the principle laid down in these two authorities, we may say that we must not be understood to have accepted all that has been decided in the Kerala case. Particularly we refer to the observations in para 7 of that case thatthe question as to whether a particular industry is carried on by or under the authority of the Central Government is essentially a question of fact depending on the circumstances of each case.In our opinion, that observation in that case was hardly necessary and was casual observation, but we wish to make it clear that we are unable to accept that observation. In our opinion, the question whether a particular industry is carried on by or under the authority of the Central Government is a mixed question of law andcannot give that construction for we cannot hold that any words used in a statute are redundant unless necessity compels us to do so. In the present case we think that those words have a meaning. The Legislature has used a composite expression, though a somewhat cumbersome expression an establishment engaged in any industry to indicate the subject of the clause carried on by or under the authority of any department of the Central Government. In our opinion, an establishment engaged in any industry is a composite expression to which the clause carried on by or under the authority of any department of the Central Government is a qualification. Instead of using a more compendious expression establishment, the draftsman has in the interests of extra clarity used the expression establishment engaged in any industry. This construction is reinforced on a consideration of other provisions of the Act particularly the preamble to the Act,(3) of Section 1 and Section 3, Section 4(b) read with Sch. 2 and Sections 5 and 6 read with Sch. 3. A perusal of these provisions of the Payment of Bonus Act will show that the Act never contemplated applying this provision to an industry but only to an establishment. It purports to be an Act for the payment of bonus to persons employed in certain establishment and for matters connected therewith and the main object and purpose of the Act also reinforces the construction which we have placed upon Clause (iv) of Section 32.51. In order to get out of the impact of Clause (iv) of Section 32 an attempt was further made to limit the applicability of Section 32, Clause (iv) by saying that the provisions of ChapterB andto which we have referred, were all provisions which confer powers which were merely supplementary to the normal powers under the Companies Act such as for instance, the power of the Central Government under Sections 408 and 409 of the Companies Act and that therefore the company qua company continues to have the normal powers of control enjoined by the Central Government. We cannot appreciate such an argument because the powers conferred upon the Central Government under Sections 408 and 409 of the Companies Act are in no way comparable to the powers assumed by the Central Government under Chapterof the Industries (Development and Regulation) Act. It is unnecessary to deal in detail with these powers, but a mere perusal of Sections 408 and 409 will show that one gives power to the Central Government to appoint directors and the other to stay operation of any action taken detrimental to public limited companies. Such powers are powers of supervision and are in no way comparable to the powers of control and management given to the Central Government under Chapterof the Industries (Development and Regulation) Act. We are unable to accept this contention.
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State Of Madras Vs. P. Govindarajulu Naidu | of the enquiry and were eventually confirmed. But it is said that the fact that the minor inams were the subject-matter of the settlement but the village itself was not settled thereunder indicates that the village was a part of the zamindari. But, as we have pointed out earlier the village, subject to the subsisting tenure, was included in the zamindari and, therefore, there was no scope nor occasion for its being the subject-matter of inam settlement. 14. Exhibit A-2 is the title-deed granted to Narasimhachariar and 7 others by the Inam Commissioner, Madras, dated November 24, 1869. The title deed was issued to Narasimhachariar in respect of 2 acres and 39 cents of wet land pursuant to orders made in the Inam Register. But the said 2 acres and 39 cents of wet land is described as situated in the Jari inam village of Mothirambedu taluk of Sairapet District. According to Wilsons Glossary, "Jari inam" means "A grant of land or other endowment still in force, not resumed." This recital, therefore, supports the conclusion that the inam of the village of Mothirambedu taluk was still subsisting, though the right of ultimate reversion vested in the zamindar. 15. Exhibit B-6 is "B" Register of Sriperumbudur Taluk of Chingleput District. It contains a list of the inam villages. Mothirambedu minor inam is shown in the list as it should be. Mothirambedu village has no place in that list as it was included in the zamindari. 16. The respondent placed before the Court various sale deeds to support his title to the said village. Under Ex. A-6 a saledeed, dated September 2, 1919, Haji Usman Sahib sold the exclusive miras of Mothirambedu to Rangachariar. In the sale deed Mothirambedu is described in different places as Miras Mitta, zamin village, Mothirambedu zamin village and Mothirambedu Ega Bhoga Miras zamin. "Ega Bhogam" means in Tamil possession or tenure of village land by one person of family without any co-sharer. No doubt the word "zamin" is ordinarily used to denote the estate of a zamindar, that is the proprietor under the permanent settlement. But the expression "zamindar" is also adopted by some of the inamdars as an honorific term. A mere popular description of an under-tenure village as a zamin does not make it a zamin estate under the Act, if it is not one in fact. Indeed, the document shows that in some parts, for instance in Schedule A, Mothirambedu has been described as Ega Bhoga Miras Mothirambedu zamin village and in Schedule B, Melmanambedu village is described as Shrotriem Melmanambedu village, whereas in the preamble to the document Mothirambedu is described as Miras of Mothirambedu, and Melmanambedu, as Zamin Melmanambedu. This shows that the character of the village has not been described with any legal precision. What is more, the character of this village was in dispute in a suit between the zamindar and tenants in the year 1921. That suit ultimatch went up to the High Court and a Division Bench of the Madras High Court desposed of the appeal on November 23, 1927. The Judgment is marked as Ex. A-4. Therein the High Court pointed out that the zamindar who was the appellant did not produce the sannad nor did he file any old records relating to the zamindari on the ground that they were not available in the Collectors office. The only evidence adduced to support his contention was the fact that in regard to the village fixed assessment was paid from the year 1856 onwards, and that it was referred to in certain Government registers as zamin village. The High Court accepted the finding of the subordinate Judge that it was not a part of the zamindari. Except the certified copy of the Kamuliat executed by Venkiah, the then zamindar, which does not include this village and the unsigned statement alleged to have been filed in the permanent settlement proceedings, which is not proved, no further material evidence has been placed in the present proceeding. We do not see any justification to take a different view from that accepted by the High Court in the year 1927. 17. From the discussion of the aforesaid evidence, the following facts emerge: In 1796 Mr. Lionel Place, the then Collector of the Honourable Companys Jagheer. Granted a cowle to Rangaswamy Mudali, who was occupying the office of a Nattuvar, conferring on him the mirasi of Mothirambedu village and another village permanently, subject to his paying all just dues. At the time of the making of the permanent settlement in Chingleput District, which was then described as a Jagir, it was decided by the Company to maintain Shrotriem, i.e., grants made to Nattuvars, including those granted by Mr. Lionel Place, and realise their dues throught the instrumentality of the zamindar. This policy was implemented by including the shrotriems in the zamindari by transferring the Companys ultimate reversionary rights to the zamindar. The result was that the shrotriem tenure in the hands of the Nattuvars continued after the permanent settlement as it existed prior to it. That is the reason why sometimes the village was described as zamin village and sometimes as Jari Inam village. That is also why it was not the subject-matter of permanent inam settlement. But the fact remains that Shrotriem tenure continued in the hands of the Nattuvar and his successors-in-interest, after the permanent settlement as it was before the said settlement. The tenure under the Government became an under-tenure under the zamindar, as the zamindar intervened between the Government and the Nattuvar. As the village is held under a permanent under-tenure, it falls squarely under the definition of S. 3 (2) (e) of the Madras Estates Land Act and is, therefore, an estate there-under and hence it is an under-tenure estate. As the under-tenure estate is excluded from the definition of "zamin estate", the notification issued by the Government on the basis that it is a zamin estate is void and the High Court rightly declared it as void. | 0[ds]16. The respondent placed before the Court various sale deeds to support his title to the said village. Under Ex. A-6 a saledeed, dated September 2, 1919, Haji Usman Sahib sold the exclusive miras of Mothirambedu to Rangachariar. In the sale deed Mothirambedu is described in different places as Miras Mitta, zamin village, Mothirambedu zamin village and Mothirambedu Ega Bhoga Miras zamin. "Ega Bhogam" means in Tamil possession or tenure of village land by one person of family without any co-sharer. No doubt the word "zamin" is ordinarily used to denote the estate of a zamindar, that is the proprietor under the permanent settlement. But the expression "zamindar" is also adopted by some of the inamdars as an honorific term. A mere popular description of an under-tenure village as a zamin does not make it a zamin estate under the Act, if it is not one in fact. Indeed, the document shows that in some parts, for instance in Schedule A, Mothirambedu has been described as Ega Bhoga Miras Mothirambedu zamin village and in Schedule B, Melmanambedu village is described as Shrotriem Melmanambedu village, whereas in the preamble to the document Mothirambedu is described as Miras of Mothirambedu, and Melmanambedu, as Zamin Melmanambedu. This shows that the character of the village has not been described with any legal precision. What is more, the character of this village was in dispute in a suit between the zamindar and tenants in the year 1921. That suit ultimatch went up to the High Court and a Division Bench of the Madras High Court desposed of the appeal on November 23, 1927. The Judgment is marked as Ex. A-4. Therein the High Court pointed out that the zamindar who was the appellant did not produce the sannad nor did he file any old records relating to the zamindari on the ground that they were not available in the Collectors office. The only evidence adduced to support his contention was the fact that in regard to the village fixed assessment was paid from the year 1856 onwards, and that it was referred to in certain Government registers as zamin village. The High Court accepted the finding of the subordinate Judge that it was not a part of the zamindari. Except the certified copy of the Kamuliat executed by Venkiah, the then zamindar, which does not include this village and the unsigned statement alleged to have been filed in the permanent settlement proceedings, which is not proved, no further material evidence has been placed in the present proceeding. We do not see any justification to take a different view from that accepted by the High Court in the year 192717. From the discussion of the aforesaid evidence, the following facts emerge: In 1796 Mr. Lionel Place, the then Collector of the Honourable Companys Jagheer. Granted a cowle to Rangaswamy Mudali, who was occupying the office of a Nattuvar, conferring on him the mirasi of Mothirambedu village and another village permanently, subject to his paying all just dues. At the time of the making of the permanent settlement in Chingleput District, which was then described as a Jagir, it was decided by the Company to maintain Shrotriem, i.e., grants made to Nattuvars, including those granted by Mr. Lionel Place, and realise their dues throught the instrumentality of the zamindar. This policy was implemented by including the shrotriems in the zamindari by transferring the Companys ultimate reversionary rights to the zamindar. The result was that the shrotriem tenure in the hands of the Nattuvars continued after the permanent settlement as it existed prior to it. That is the reason why sometimes the village was described as zamin village and sometimes as Jari Inam village. That is also why it was not the subject-matter of permanent inam settlement. But the fact remains that Shrotriem tenure continued in the hands of the Nattuvar and his successors-in-interest, after the permanent settlement as it was before the said settlement. The tenure under the Government became an under-tenure under the zamindar, as the zamindar intervened between the Government and the Nattuvar. As the village is held under a permanent under-tenure, it falls squarely under the definition of S. 3 (2) (e) of the Madras Estates Land Act and is, therefore, an estate there-under and hence it is an under-tenure estate. As the under-tenure estate is excluded from the definition of "zamin estate", the notification issued by the Government on the basis that it is a zamin estate is void and the High Court rightly declared it as void. | 0 | 5,337 | 841 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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of the enquiry and were eventually confirmed. But it is said that the fact that the minor inams were the subject-matter of the settlement but the village itself was not settled thereunder indicates that the village was a part of the zamindari. But, as we have pointed out earlier the village, subject to the subsisting tenure, was included in the zamindari and, therefore, there was no scope nor occasion for its being the subject-matter of inam settlement. 14. Exhibit A-2 is the title-deed granted to Narasimhachariar and 7 others by the Inam Commissioner, Madras, dated November 24, 1869. The title deed was issued to Narasimhachariar in respect of 2 acres and 39 cents of wet land pursuant to orders made in the Inam Register. But the said 2 acres and 39 cents of wet land is described as situated in the Jari inam village of Mothirambedu taluk of Sairapet District. According to Wilsons Glossary, "Jari inam" means "A grant of land or other endowment still in force, not resumed." This recital, therefore, supports the conclusion that the inam of the village of Mothirambedu taluk was still subsisting, though the right of ultimate reversion vested in the zamindar. 15. Exhibit B-6 is "B" Register of Sriperumbudur Taluk of Chingleput District. It contains a list of the inam villages. Mothirambedu minor inam is shown in the list as it should be. Mothirambedu village has no place in that list as it was included in the zamindari. 16. The respondent placed before the Court various sale deeds to support his title to the said village. Under Ex. A-6 a saledeed, dated September 2, 1919, Haji Usman Sahib sold the exclusive miras of Mothirambedu to Rangachariar. In the sale deed Mothirambedu is described in different places as Miras Mitta, zamin village, Mothirambedu zamin village and Mothirambedu Ega Bhoga Miras zamin. "Ega Bhogam" means in Tamil possession or tenure of village land by one person of family without any co-sharer. No doubt the word "zamin" is ordinarily used to denote the estate of a zamindar, that is the proprietor under the permanent settlement. But the expression "zamindar" is also adopted by some of the inamdars as an honorific term. A mere popular description of an under-tenure village as a zamin does not make it a zamin estate under the Act, if it is not one in fact. Indeed, the document shows that in some parts, for instance in Schedule A, Mothirambedu has been described as Ega Bhoga Miras Mothirambedu zamin village and in Schedule B, Melmanambedu village is described as Shrotriem Melmanambedu village, whereas in the preamble to the document Mothirambedu is described as Miras of Mothirambedu, and Melmanambedu, as Zamin Melmanambedu. This shows that the character of the village has not been described with any legal precision. What is more, the character of this village was in dispute in a suit between the zamindar and tenants in the year 1921. That suit ultimatch went up to the High Court and a Division Bench of the Madras High Court desposed of the appeal on November 23, 1927. The Judgment is marked as Ex. A-4. Therein the High Court pointed out that the zamindar who was the appellant did not produce the sannad nor did he file any old records relating to the zamindari on the ground that they were not available in the Collectors office. The only evidence adduced to support his contention was the fact that in regard to the village fixed assessment was paid from the year 1856 onwards, and that it was referred to in certain Government registers as zamin village. The High Court accepted the finding of the subordinate Judge that it was not a part of the zamindari. Except the certified copy of the Kamuliat executed by Venkiah, the then zamindar, which does not include this village and the unsigned statement alleged to have been filed in the permanent settlement proceedings, which is not proved, no further material evidence has been placed in the present proceeding. We do not see any justification to take a different view from that accepted by the High Court in the year 1927. 17. From the discussion of the aforesaid evidence, the following facts emerge: In 1796 Mr. Lionel Place, the then Collector of the Honourable Companys Jagheer. Granted a cowle to Rangaswamy Mudali, who was occupying the office of a Nattuvar, conferring on him the mirasi of Mothirambedu village and another village permanently, subject to his paying all just dues. At the time of the making of the permanent settlement in Chingleput District, which was then described as a Jagir, it was decided by the Company to maintain Shrotriem, i.e., grants made to Nattuvars, including those granted by Mr. Lionel Place, and realise their dues throught the instrumentality of the zamindar. This policy was implemented by including the shrotriems in the zamindari by transferring the Companys ultimate reversionary rights to the zamindar. The result was that the shrotriem tenure in the hands of the Nattuvars continued after the permanent settlement as it existed prior to it. That is the reason why sometimes the village was described as zamin village and sometimes as Jari Inam village. That is also why it was not the subject-matter of permanent inam settlement. But the fact remains that Shrotriem tenure continued in the hands of the Nattuvar and his successors-in-interest, after the permanent settlement as it was before the said settlement. The tenure under the Government became an under-tenure under the zamindar, as the zamindar intervened between the Government and the Nattuvar. As the village is held under a permanent under-tenure, it falls squarely under the definition of S. 3 (2) (e) of the Madras Estates Land Act and is, therefore, an estate there-under and hence it is an under-tenure estate. As the under-tenure estate is excluded from the definition of "zamin estate", the notification issued by the Government on the basis that it is a zamin estate is void and the High Court rightly declared it as void.
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16. The respondent placed before the Court various sale deeds to support his title to the said village. Under Ex. A-6 a saledeed, dated September 2, 1919, Haji Usman Sahib sold the exclusive miras of Mothirambedu to Rangachariar. In the sale deed Mothirambedu is described in different places as Miras Mitta, zamin village, Mothirambedu zamin village and Mothirambedu Ega Bhoga Miras zamin. "Ega Bhogam" means in Tamil possession or tenure of village land by one person of family without any co-sharer. No doubt the word "zamin" is ordinarily used to denote the estate of a zamindar, that is the proprietor under the permanent settlement. But the expression "zamindar" is also adopted by some of the inamdars as an honorific term. A mere popular description of an under-tenure village as a zamin does not make it a zamin estate under the Act, if it is not one in fact. Indeed, the document shows that in some parts, for instance in Schedule A, Mothirambedu has been described as Ega Bhoga Miras Mothirambedu zamin village and in Schedule B, Melmanambedu village is described as Shrotriem Melmanambedu village, whereas in the preamble to the document Mothirambedu is described as Miras of Mothirambedu, and Melmanambedu, as Zamin Melmanambedu. This shows that the character of the village has not been described with any legal precision. What is more, the character of this village was in dispute in a suit between the zamindar and tenants in the year 1921. That suit ultimatch went up to the High Court and a Division Bench of the Madras High Court desposed of the appeal on November 23, 1927. The Judgment is marked as Ex. A-4. Therein the High Court pointed out that the zamindar who was the appellant did not produce the sannad nor did he file any old records relating to the zamindari on the ground that they were not available in the Collectors office. The only evidence adduced to support his contention was the fact that in regard to the village fixed assessment was paid from the year 1856 onwards, and that it was referred to in certain Government registers as zamin village. The High Court accepted the finding of the subordinate Judge that it was not a part of the zamindari. Except the certified copy of the Kamuliat executed by Venkiah, the then zamindar, which does not include this village and the unsigned statement alleged to have been filed in the permanent settlement proceedings, which is not proved, no further material evidence has been placed in the present proceeding. We do not see any justification to take a different view from that accepted by the High Court in the year 192717. From the discussion of the aforesaid evidence, the following facts emerge: In 1796 Mr. Lionel Place, the then Collector of the Honourable Companys Jagheer. Granted a cowle to Rangaswamy Mudali, who was occupying the office of a Nattuvar, conferring on him the mirasi of Mothirambedu village and another village permanently, subject to his paying all just dues. At the time of the making of the permanent settlement in Chingleput District, which was then described as a Jagir, it was decided by the Company to maintain Shrotriem, i.e., grants made to Nattuvars, including those granted by Mr. Lionel Place, and realise their dues throught the instrumentality of the zamindar. This policy was implemented by including the shrotriems in the zamindari by transferring the Companys ultimate reversionary rights to the zamindar. The result was that the shrotriem tenure in the hands of the Nattuvars continued after the permanent settlement as it existed prior to it. That is the reason why sometimes the village was described as zamin village and sometimes as Jari Inam village. That is also why it was not the subject-matter of permanent inam settlement. But the fact remains that Shrotriem tenure continued in the hands of the Nattuvar and his successors-in-interest, after the permanent settlement as it was before the said settlement. The tenure under the Government became an under-tenure under the zamindar, as the zamindar intervened between the Government and the Nattuvar. As the village is held under a permanent under-tenure, it falls squarely under the definition of S. 3 (2) (e) of the Madras Estates Land Act and is, therefore, an estate there-under and hence it is an under-tenure estate. As the under-tenure estate is excluded from the definition of "zamin estate", the notification issued by the Government on the basis that it is a zamin estate is void and the High Court rightly declared it as void.
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Bakshish Singh Vs. Darshan Engineering Works | service prescribed by the Statute have no right t o exist [vide Bijay Cotton Mills Ltd. v. State of Ajmerl, Crown Aluminium Works v. Workmen4 and U. Unichoyi v. State of Kerala 12]. 28. In Bijay Cotton Mills Ltd. case 3 it is observed as follows:It can scarcely be disputed that securing of living wages to labourers which ensure not only bare physical subsistence but also the maintenance of health and decency, is conducive to the general interest of the public. This is one of the Directive Principles of State Policy embodied in Article 43 of our Constitution. It is well known that in 1928 there was a Minimum Wages Fixing Machinery Convention held at Geneva and the resolutions passed in that convention were embodied in the International Labour Code. The Minimum Wages Act is said to have been passed with a view to give effect to these resolutions vide South India Estate Labour Relation Organisation v. State of Madras 15. If the labourers are to be secured in the enjoyment of minimum wages and they are to be protected against exploitation by their employers, it is absolutely necessary that restraints should be imposed upon their freedom of contract and such restrictions cannot in any sense be said to be unreasonable. On the other hand, the employer s cannot be heard to complain if they are compelled to pay minimum wages to their labourers even though the labourers, on account of their poverty and helplessness are willing to work on lesser wages. We could not really appreciate the argument of Mr Seervai that the provisions of the Act are bound to affect harshly and even oppressively a particular class of employers who for purely economic reasons are unable to pay the minimum wages fixed by the authorities but have ab solutely no dishonest intention of exploiting their labourers. If it is in the interest of the general public that the labourers should be secured adequate living wages, the intentions of the employers whether good or bad are really irrelevant. Individual employers might find it difficult to carry on the business on the basis of the minimum wages fixed under the Act but this must be due entirely to the economic conditions of these particular employers. That cannot be a reason f or the (sic) striking down the law itself as unreasonable. 29. In Crown Aluminum Works case14 the Court observed as under: There is, however, one principle which admits of no exceptions. No industry has a right to exist unless it is able to pay its workmen at least a bare minimum wage. It is quite likely that in under-developed countries, where unemployment prevails on a very large scale, unorganised labour may be available on starvation wages; but the employment of labour on starvation wages cannot be encouraged or favoured in a modem democratic welfare state. If an employer cannot maintain his enterprise without cutting down the wages of his employees below even a bare subsistence or minimum wage, he would have no right to conduct his enterprise on such terms. * 30. The present Act is of the genre of Minimum Wages Act, the Payment of Bonus Act, the Provident Funds Act, Employees State Insurance Act, and other like statutes. These statutes lay down the minimum relevant benefits which must be made available to the employees. We have solemnly resolved to constitute this country, among others, into a socialist republic and to secure to all its citizens, which, of course, include workmen, social and economic justice. Article 38 requires the State to strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which, among other things, social and economic justice shall inform all the institutions of the national life. Article 39 states that the State shall, in particular, direct its policy towards securing, among others, that the citizens have the right to an adequate means to livelihood and that the health and strength of workers are not abused. Article 41 of the Constitution directs the State to make effective provision, among others, for securing public assistance in old age and in other cases of undeserved want. Article 42 enjoins the State to make provision for securing just and humane conditions of work while Article 43 requires the State to endeavour to secure by suitable legislation to all workers a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. Article 47 requires that the State shall regard the raising of the level of nutrition and standard of living of its people and the improvement of publi c health as one of its primary duties. 31. Further, there is a restriction placed on the exercise of the Fundamental Right under Article 19(1)(g) by clause (6) of the said article. That clause states that nothing in sub-clause (g) of clause (1) shall affect the operation of any existing law or prevent the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by that sub-clause. It cannot be disputed that the present Act is a welfare measure introduced in the interest of the general public to secure social and economic justice to workmen to assist them in their old age and to ensure them a decent standard of life on their retirement. 32. On both grounds, therefore, viz. that the provisions for payment of gratuity contained in Section 4(1)(b) of the Act are one of the minimal service conditions which must be made available to the employees notwithstanding the financial capacity of the employer to bear its burden and that the said provisions are a reasonable restriction on the right of the employer to carry on his business within the meaning of Article 19(6) of the Constitution, the said provisions are both sustainable and valid. Hence the decision of the High Court has to be set aside. | 1[ds]16. The aforesaid survey of the relevant authorities shows that in labour jurisprudence the concept of gratuity has undergone a metamorphosis over the years. The dictionary meaning may suggest that gratuity is a gratuitous payment, a gift or a boon made by the employer to the employee as per his sweet will. It necessarily means that it is in the discretion of the employer whether to make the payment or not and also to choose the payee as well as the quantum of payment.However, in the industrial adjudication it was considered as a reward for a long and meritorious service and its payment, therefore, depended upon the duration and the quality of the service rendered by the employee. At a later stage, it came to be recognised as aretiral benefit in consideration of the service rendered and the employees could raise an industrial dispute for introducing it as a condition of service. The industrial adjudicators recognised it as such and granted it either in lieu of or in addition to other retiral benefit(s) such as pension or provident fund depending mainly upon the financial stability and capacity of the employer. The other factors which were taken into consideration while introducing gratuity scheme were the service conditions prevalent in the other units in the industry and the region, the availability or otherwise of the other retiral benefits, the standard of other service conditions etc. The quantum of gratuity was also determined by the said factors. The recognition of gratuity as a retiral benefit brought in its wake further modifications of the concept. It could be paid even if the employee resigned or voluntarily retired from service. The minimum qualifying service for entitlement to it, rate at which it was to be paid and the maximum amount payable was determined likewise on the basis of the said factors. It had also to be acknowledged that it could not be denied to the employee on account of his misconduct. He could be denied gratuity only to the extent of the financial loss caused by his misconduct, and no more. Thus even before the present Act was placed on the statute book, the courts had recognised gratuity as a legitimate retiral benefit earned by the employee on account of the service rendered by him. It became a service condition wherever it was introduced whether in lieu of or in addition to the other retrial benefit(s). The employees could also legitimately demand its introduction as such retiral benefit by raising an industrial dispute in that behalf, if necessary. The industrial adjudicators granted or rejected the demand on the basis of the factors indicated above17. It is true that while doing so, the industrial adjudicators insisted upon certain minimum years of qualifying service before an employee could claim it whether on superannuation or resignation or voluntary retirementThis was undoubtedly inconsistent with the concept of the gratuity being an earning for the services rendered. What is, however, necessary to remember in this connection is that there is no fixed concept of gratuity or of the method of its payment. Like all other service conditions, gratuity schemes may differ from establishment to establishment depending upon the various factors mentioned above, prominent among them being the financial capacity of the employer to bear the burden. There has commonly been one distinction between a retiral benefit like provident fund and gratuity, viz. the former generally consists of the contribution from the employee as well. It is, however, not a necessary ingredient and where the employee is required to make his contribution, there is no uniformity in the proportion of his share of contribution. Likewise, the gratuity schemes may also provide differing qualifying service for entitlement to gratuity. It is true that in the case of gratuity an additional factor weighed with the industrial adjudicators and courts, viz. that being entirely a payment made by the employer without there being a corresponding contribution from the employee, the gratuity scheme should not be so liberal as would induce the employees to change employment after employment after putting in the minimum service qualifying them to earn itBut as has been pointed out by this Court in the Straw Board Mfg. Co. Ltd. case in view of the constantly growing unemployment, the surplus labour and meager opportunities for employment, the premise on which a longer qualifying period of service was prescribed for entitlement to gratuity on voluntary retirement or resignation, was unsupported by reality. In the face of the dire prospects of unemployment, it was facile to assume that the labour would change or keep changing employment to secure the paltry benefit of gratuity18. Even assuming that the presumption that a longer period of service for entitlement to gratuity on voluntary retirement or resignation is necessary to prevent labour from changing employment frequently, that consideration has no bearing on the question whether a short period of qualifying service is violative of Article 19(1)(g) of the Constitution. That article comes into picture only if, among others, (a) it is shown that the short qualifying period of service throws on any particular employer such financial burden as would force him to close his establishment and (b) the provision is not one of the minimum service conditions which must be made available to the employees. Hence, the provision for a short qualifying period per se is not invalid and cannot be struck down generally as being violative of Article 19(1)(g) of the Constitution as is done by the High Court in the present case. The High Courts reliance on the decisions referred to by it, for the purpose of holding that the provision of a period of service of five years is violative of Article 19(1)(g) of the Constitution, is misplaced for the Court has failed to notice that the view taken by this Court was in a different factual context. In the first instance, at that time, gratuity had not come to be accepted as one of the minimum service conditions, much less any particular scheme of gratuity. Secondly, the courts in those cases were concerned with establishments of differing financial capacity in a particular industry and with evolving uniform service conditions for the industry as a whole for the maintenance of industrial peace. Further, except the decision of this Court in Express Newspaper case2 the other decisions which have laid down more than five years qualifying service, have not based their conclusion on the vulnerability of the shorter qualifying service on the anvil of Article 19(1)(g) of the Constitution19. On the other hand, in Wenger and Co. c ase8 this Court pointed out that in dealing with the financial obligations involved on account of the introduction of the gratuity scheme, it was necessary to bear in mind the actual rather than the theoretical impact of the scheme. Since not more than 3 to 4 per cent of the employees retired every year, the financial burden caused by the gratuity scheme was much less than what its theoretical enunciation would indicate. The Court there also held that the minimum qualifying period of five years service was reasonable20. In Delhi Cloth and General Mills Co. Ltd. case9 the Court was at pains to point out that in matters relating to the grant of gratuity and even generally in the settlement of disputes arising out of industrial relations, there were no fixed principles on the application of which the problems arising before the tribunals or the courts could be determined and often precedents of cases determined ad hoc were utilised to win the claims or to resist t hem. It was, therefore, futile to attempt to reduce the grounds of the decisions given by the courts to the dimensions of any recognised principle21. In Straw Board Mfg. Co. Ltd. case11 which was decided after the present statute came into operation, as pointed out above, the Court upheld the five years minimum qualifying period of service for entitlement to gratuity on voluntary retirement or resignation, by stating that the qualifying period of ten years service prescribed in British Paints case, was not meant to be laid down as a uniform standard to be followed in all cases. This is apart from the fact that the court also stated there that the premise underlying the reasons which impelled the said higher qualifying service was not in conformity with the current reality23. What is observed by this Court in relation to the award of the Wage Board with regard to thee in the Express Newspaper case2 applies equally to the gratuity scheme framed by the Wage Board under the said Act. The gratuity scheme introduced by the Wage Board was not a minimal service condition. This is apart from the fact that in that case the gratuity scheme which was held to be violative of Article 19(1)(g) was fixed not by any statute laying down minimum condition of service but by a Wage Board, constituted under an Act24. Coming now to the provisions of the present Act, it will be seen that the Act extends to the whole of India except to plantations and ports in the State of Jammu &Kashmir. The provisions of the Act apply uniformly to (a) every factory, mine, oil field, plantation, port and railway company; (b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months; and (c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf as provided in subsection (3) of Section 1 of the Act. It defines retirement under Section 2(q) to mean termination of the service of an employee otherwise than on superannuation. Section 2(s) defines wages to mean all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance26. As the object of the statute shows, it was enacted because there was no central Act to regulate the payment of gratuity to industrial workers except the Working Journalists (Conditions of Service) Miscellaneous Provisions Act, 1955 which had come up for consideration in the Express Newspaper case2. The Governments of Kerala and West Bengal had enacted their own statutes for payment of gratuity to workers employed in establishments in their States. Since the enactment of the Kerala and West Bengal Acts, some other State Governments had also voiced their intention to enact similar legislations in their States. It had, therefore, become necessary to have a central law on the subject so as to ensure a uniform pattern on payment of gratuity to the employees throughout the country. The enactment of a central law was also necessary to avoid different treatment to the employees of establishments having branches in more than one State particularly when under the conditions of their service, the employees were liable to be transferred from one State to another. The proposal for central legislation on gratuity was discussed in the Labour Ministers Conference and also in the Indian Labour Conference. There was general agreement in these conferences that the legislation on payment of gratuity be enacted as early as possible. While enacting the statute for West Bengal in August 1971, care had been taken to so design its provisions that they could serve, as far as possible, as norms for the central law. The bill had, therefore, been drafted on the lines of the West Bengal statute on the subject with some modifications which had been made in the light of the views expressed at the Indian Labour Conference. Hence, the present statute, which was also amended twice once in 1984 to correct the definition of continuous service under Section 2(c) of the Act and second time in 1987 to provide, among other things, for a timelimit for the payment of gratuity and for recovery of interest in cases where the payment was not made in time.The second amendment also made certain other changes in the Act including extension of its coverage to employees drawing salary upto Rs 2500 per month as against the earlier limit which was Rs 1600 per month27. It would thus be apparent both from its object as well as its provisions that the Act was placed on the statute book as a welfare measure to improve the service conditions of the employees. The provisions of the statute were applied uniformly throughout the country to all establishmentscovered by it. They applied to all employees drawing a monthly salary upto a particular limit in factories, shops and establishments etc. whether the employees were engaged to do any skilled,, unskilled, manual, supervisory, technical or clerical work. The provisions of the Act were thus meant for laying down gratuity as one of the minimal service conditions available to all employees covered by the Act. There is no provision in the Act for exempting any factory, shop etc. from the purview of the Act covered by it except those where, as pointed out above, the employees are in receipt of gratuity or pensionary benefits which are no less favourable than the benefit conferred under the Act. The payment of gratuity under the Act is thus obligatory being one of the minimum conditions of service. The noncompliance o f the provisions of the Act is made an offence punishable with imprisonment or fine. It is settled law that the establishments which have no capacity to give to their workmen the minimum conditions of service prescribed by the Statute have no right t o exist [vide Bijay Cotton Mills Ltd. v. State of Ajmerl, Crown Aluminium Works v. Workmen4 and U. Unichoyi v. State of Kerala 12]30. The present Act is of the genre of Minimum Wages Act, the Payment of Bonus Act, the Provident Funds Act, Employees State Insurance Act, and other like statutes. These statutes lay down the minimum relevant benefits which must be made available to the employees. We have solemnly resolved to constitute this country, among others, into a socialist republic and to secure to all its citizens, which, of course, include workmen, social and economic justice. Article 38 requires the State to strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which, among other things, social and economic justice shall inform all the institutions of the national life. Article 39 states that the State shall, in particular, direct its policy towards securing, among others, that the citizens have the right to an adequate means to livelihood and that the health and strength of workers are not abused. Article 41 of the Constitution directs the State to make effective provision, among others, for securing public assistance in old age and in other cases of undeserved want. Article 42 enjoins the State to make provision for securing just and humane conditions of work while Article 43 requires the State to endeavour to secure by suitable legislation to all workers a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. Article 47 requires that the State shall regard the raising of the level of nutrition and standard of living of its people and the improvement of publi c health as one of its primary duties31. Further, there is a restriction placed on the exercise of the Fundamental Right under Article 19(1)(g) by clause (6) of the said article. That clause states that nothing ine (g) of clause (1) shall affect the operation of any existing law or prevent the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by that. It cannot be disputed that the present Act is a welfare measure introduced in the interest of the general public to secure social and economic justice to workmen to assist them in their old age and to ensure them a decent standard of life on their retirement32. On both grounds, therefore, viz. that the provisions for payment of gratuity contained in Section 4(1)(b) of the Act are one of the minimal service conditions which must be made available to the employees notwithstanding the financial capacity of the employer to bear its burden and that the said provisions are a reasonable restriction on the right of the employer to carry on his business within the meaning of Article 19(6) of the Constitution, the said provisions are both sustainable and valid. Hence the decision of the High Court has to be set aside. | 1 | 9,506 | 3,117 | ### 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:
service prescribed by the Statute have no right t o exist [vide Bijay Cotton Mills Ltd. v. State of Ajmerl, Crown Aluminium Works v. Workmen4 and U. Unichoyi v. State of Kerala 12]. 28. In Bijay Cotton Mills Ltd. case 3 it is observed as follows:It can scarcely be disputed that securing of living wages to labourers which ensure not only bare physical subsistence but also the maintenance of health and decency, is conducive to the general interest of the public. This is one of the Directive Principles of State Policy embodied in Article 43 of our Constitution. It is well known that in 1928 there was a Minimum Wages Fixing Machinery Convention held at Geneva and the resolutions passed in that convention were embodied in the International Labour Code. The Minimum Wages Act is said to have been passed with a view to give effect to these resolutions vide South India Estate Labour Relation Organisation v. State of Madras 15. If the labourers are to be secured in the enjoyment of minimum wages and they are to be protected against exploitation by their employers, it is absolutely necessary that restraints should be imposed upon their freedom of contract and such restrictions cannot in any sense be said to be unreasonable. On the other hand, the employer s cannot be heard to complain if they are compelled to pay minimum wages to their labourers even though the labourers, on account of their poverty and helplessness are willing to work on lesser wages. We could not really appreciate the argument of Mr Seervai that the provisions of the Act are bound to affect harshly and even oppressively a particular class of employers who for purely economic reasons are unable to pay the minimum wages fixed by the authorities but have ab solutely no dishonest intention of exploiting their labourers. If it is in the interest of the general public that the labourers should be secured adequate living wages, the intentions of the employers whether good or bad are really irrelevant. Individual employers might find it difficult to carry on the business on the basis of the minimum wages fixed under the Act but this must be due entirely to the economic conditions of these particular employers. That cannot be a reason f or the (sic) striking down the law itself as unreasonable. 29. In Crown Aluminum Works case14 the Court observed as under: There is, however, one principle which admits of no exceptions. No industry has a right to exist unless it is able to pay its workmen at least a bare minimum wage. It is quite likely that in under-developed countries, where unemployment prevails on a very large scale, unorganised labour may be available on starvation wages; but the employment of labour on starvation wages cannot be encouraged or favoured in a modem democratic welfare state. If an employer cannot maintain his enterprise without cutting down the wages of his employees below even a bare subsistence or minimum wage, he would have no right to conduct his enterprise on such terms. * 30. The present Act is of the genre of Minimum Wages Act, the Payment of Bonus Act, the Provident Funds Act, Employees State Insurance Act, and other like statutes. These statutes lay down the minimum relevant benefits which must be made available to the employees. We have solemnly resolved to constitute this country, among others, into a socialist republic and to secure to all its citizens, which, of course, include workmen, social and economic justice. Article 38 requires the State to strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which, among other things, social and economic justice shall inform all the institutions of the national life. Article 39 states that the State shall, in particular, direct its policy towards securing, among others, that the citizens have the right to an adequate means to livelihood and that the health and strength of workers are not abused. Article 41 of the Constitution directs the State to make effective provision, among others, for securing public assistance in old age and in other cases of undeserved want. Article 42 enjoins the State to make provision for securing just and humane conditions of work while Article 43 requires the State to endeavour to secure by suitable legislation to all workers a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. Article 47 requires that the State shall regard the raising of the level of nutrition and standard of living of its people and the improvement of publi c health as one of its primary duties. 31. Further, there is a restriction placed on the exercise of the Fundamental Right under Article 19(1)(g) by clause (6) of the said article. That clause states that nothing in sub-clause (g) of clause (1) shall affect the operation of any existing law or prevent the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by that sub-clause. It cannot be disputed that the present Act is a welfare measure introduced in the interest of the general public to secure social and economic justice to workmen to assist them in their old age and to ensure them a decent standard of life on their retirement. 32. On both grounds, therefore, viz. that the provisions for payment of gratuity contained in Section 4(1)(b) of the Act are one of the minimal service conditions which must be made available to the employees notwithstanding the financial capacity of the employer to bear its burden and that the said provisions are a reasonable restriction on the right of the employer to carry on his business within the meaning of Article 19(6) of the Constitution, the said provisions are both sustainable and valid. Hence the decision of the High Court has to be set aside.
### Response:
1
### Explanation:
as to ensure a uniform pattern on payment of gratuity to the employees throughout the country. The enactment of a central law was also necessary to avoid different treatment to the employees of establishments having branches in more than one State particularly when under the conditions of their service, the employees were liable to be transferred from one State to another. The proposal for central legislation on gratuity was discussed in the Labour Ministers Conference and also in the Indian Labour Conference. There was general agreement in these conferences that the legislation on payment of gratuity be enacted as early as possible. While enacting the statute for West Bengal in August 1971, care had been taken to so design its provisions that they could serve, as far as possible, as norms for the central law. The bill had, therefore, been drafted on the lines of the West Bengal statute on the subject with some modifications which had been made in the light of the views expressed at the Indian Labour Conference. Hence, the present statute, which was also amended twice once in 1984 to correct the definition of continuous service under Section 2(c) of the Act and second time in 1987 to provide, among other things, for a timelimit for the payment of gratuity and for recovery of interest in cases where the payment was not made in time.The second amendment also made certain other changes in the Act including extension of its coverage to employees drawing salary upto Rs 2500 per month as against the earlier limit which was Rs 1600 per month27. It would thus be apparent both from its object as well as its provisions that the Act was placed on the statute book as a welfare measure to improve the service conditions of the employees. The provisions of the statute were applied uniformly throughout the country to all establishmentscovered by it. They applied to all employees drawing a monthly salary upto a particular limit in factories, shops and establishments etc. whether the employees were engaged to do any skilled,, unskilled, manual, supervisory, technical or clerical work. The provisions of the Act were thus meant for laying down gratuity as one of the minimal service conditions available to all employees covered by the Act. There is no provision in the Act for exempting any factory, shop etc. from the purview of the Act covered by it except those where, as pointed out above, the employees are in receipt of gratuity or pensionary benefits which are no less favourable than the benefit conferred under the Act. The payment of gratuity under the Act is thus obligatory being one of the minimum conditions of service. The noncompliance o f the provisions of the Act is made an offence punishable with imprisonment or fine. It is settled law that the establishments which have no capacity to give to their workmen the minimum conditions of service prescribed by the Statute have no right t o exist [vide Bijay Cotton Mills Ltd. v. State of Ajmerl, Crown Aluminium Works v. Workmen4 and U. Unichoyi v. State of Kerala 12]30. The present Act is of the genre of Minimum Wages Act, the Payment of Bonus Act, the Provident Funds Act, Employees State Insurance Act, and other like statutes. These statutes lay down the minimum relevant benefits which must be made available to the employees. We have solemnly resolved to constitute this country, among others, into a socialist republic and to secure to all its citizens, which, of course, include workmen, social and economic justice. Article 38 requires the State to strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which, among other things, social and economic justice shall inform all the institutions of the national life. Article 39 states that the State shall, in particular, direct its policy towards securing, among others, that the citizens have the right to an adequate means to livelihood and that the health and strength of workers are not abused. Article 41 of the Constitution directs the State to make effective provision, among others, for securing public assistance in old age and in other cases of undeserved want. Article 42 enjoins the State to make provision for securing just and humane conditions of work while Article 43 requires the State to endeavour to secure by suitable legislation to all workers a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. Article 47 requires that the State shall regard the raising of the level of nutrition and standard of living of its people and the improvement of publi c health as one of its primary duties31. Further, there is a restriction placed on the exercise of the Fundamental Right under Article 19(1)(g) by clause (6) of the said article. That clause states that nothing ine (g) of clause (1) shall affect the operation of any existing law or prevent the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by that. It cannot be disputed that the present Act is a welfare measure introduced in the interest of the general public to secure social and economic justice to workmen to assist them in their old age and to ensure them a decent standard of life on their retirement32. On both grounds, therefore, viz. that the provisions for payment of gratuity contained in Section 4(1)(b) of the Act are one of the minimal service conditions which must be made available to the employees notwithstanding the financial capacity of the employer to bear its burden and that the said provisions are a reasonable restriction on the right of the employer to carry on his business within the meaning of Article 19(6) of the Constitution, the said provisions are both sustainable and valid. Hence the decision of the High Court has to be set aside.
|
N.S. Mehta & Ors Vs. Union Of India & Ors | be regulated by their relative seniority as determined before that day.Provided that if t he seniority of any such officer had not been specifically deter- mined before the appointed day it shall be as determined by the Department of Personnel in the Cabinet Secretariat.MHA No. 6/2/67-CS-II dated 20.12.67.Provided further that the seniority of an officer referred to in the proviso to clause (a) of rule 2 shall be determined by the Department of Personnel in the Cabinet Secretariat by taking into account the continuous length of regular service rendered before the appointment day by such officer in the grade of lower Division or in any higher grade in the offices of the Central Government.(2) All permanent officers included in the initial constitution of a Grade under rule 7 shall rank senior to all persons substantively appointed to that Grade with effect from a date after the appointed day, and all temporary officers included in the initial constitution of a Grade under that rule shall rank senior to all temporary officers appoint- ed to that Grade after the appointed day.(3) Except as provided in sub-rules (4) and (5), the seniority of persons appointed to the two grades of the service after the appointed day shall be determined in the following manner, namely:1. UPPER DIVISION GRADE(i) Permanent Officers.--The seniority inter se of officers substantively appointed to the Grade after the appointed day shall be regulated by the order in which they are so appointed to the Grade.(ii) Temporary Officers.--The seniority inter se of temporary officers appointed to the Grade after the appointed day shall be regulated as follows, namely:(a) Persons included in the Select List for a Grade shall rank senior en bloc to those not included in the Select list.(b) The seniority inter se of person included in the Select List shall be in the order in which their names are included in the Select List.(c) The seniority inter se of persons no t included in the Select List shall be regulated by the order in which they are approved for long term appointment to the Grade.Rule 7 provides as follows"7. Initial Constitution of each cadre.--The permanent and temporary officers of each Grade in each cadre on the appointed day shall be as deter mined by the Deptt. of Personnel in the Cabinet Secretariat."6. We find that, acting under Rule 7 set out above, the Government of India had issued an order on 12-11-1962 allotting permanent and temporary officers of the Upper Division grade to the Central Secretariat Clerical Service. Apparently, that allotment also determined the order of seniority. In other words, the rule relating to the passing of a typing test had been followed for a long period and had actually been given effect to under the statutory rules in promotions made and lists drawn up. This explains the petitioners challenge to the validity of Rule 17.7. We are unable to see how a rule prescribing a typing test is unconnected with the duties of Clerks who desire a promotion to the next grade. We do not find that a discrimination made on such a ground could violate Articles 14 or 16 of the Constitution whatever also it may be said to violate. It is not necessary for us to hold that a violation of a statutory or other kind of rule in a particular case cannot amount to a violation of Articles 14 and 16 of the Constitution. There may also be cases in which a rule made is ultra vires form reasonableness or on any other ground and should not be deemed to exist. In such a case, if the rule is enforced, it may, on the facts of the particular case, amount to a violation of Articles 14 and 16 of the Constitution also. The case before us does not appear to be such a case at all. It seems to be covered by what this Court said in P.C. Sethi &Ors. v. Union of India &Ors., ([1975] 3 SCR 20.) with regard to the Office Memorandum of 22.6.1949 (at pp. 207-208):" .... the Office Memorandum of June 22, 1949, is no bar to the Government in making separate provisions for the mode of constitution and future maintenance of the service of Assistants. There is, there fore, no obligation under the aforesaid Office Memorandum on the part of the Government to enforce a rule of bald length of continuous service irrespective of other considerations than the service was sought to be reorganised and reinforced. As noticed earlier the service had to be reconstituted and the temporary Assistants properly observed keeping in view the question of quality and efficiency as well as at the same where regard being had to accommodate as large number as possible to gradual absorption. In doing so we are unable to hold that the Government has violated the provisions of articles 14 or 16 of the Constitution. The Classification under the instruction for the constitution of regular temporary establishment in the manner done cannot be characterised as unreasonable in view of the object for which these had to be introduced in reconstituting the service to ensure security of temporary employees assistant with efficiency in the Service. There is no discrimination whatsoever amongst the equals as such nor any arbitrary exercise of power by the Government."8. This Court has also explained in Joginder Nath &Ors. v. Union of India &Ors.([1975] 2 S.C.R. 553.) and Amrit Lal Berry v. Collector of Central Excise, New Delhi &Ors.([1975] 2 S.C.R. 960.) the principles on which this Court will interfere under Article 32 of the Constitution for an alleged violation of Articles 14 and 16 of the Constitution. It is also explained, there how delay in invoking the jurisdiction of the Court, which may create equitable rights of others, may give rational grounds for discrimination so that it would cease to be a case of any violation of Articles 14 and 16 at all. We think that the principles laid down in the cases mentioned above apply here.9. | 0[ds]We find that, acting under Rule 7 set out above, the Government of India had issued an order on 12-11-1962 allotting permanent and temporary officers of the Upper Division grade to the Central Secretariat Clerical Service. Apparently, that allotment also determined the order of seniority. In other words, the rule relating to the passing of a typing test had been followed for a long period and had actually been given effect to under the statutory rules in promotions made and lists drawn up. This explains the petitioners challenge to the validity of Ruleare unable to see how a rule prescribing a typing test is unconnected with the duties of Clerks who desire a promotion to the next grade. We do not find that a discrimination made on such a ground could violate Articles 14 or 16 of the Constitution whatever also it may be said to violate. It is not necessary for us to hold that a violation of a statutory or other kind of rule in a particular case cannot amount to a violation of Articles 14 and 16 of the Constitution. There may also be cases in which a rule made is ultra vires form reasonableness or on any other ground and should not be deemed to exist. In such a case, if the rule is enforced, it may, on the facts of the particular case, amount to a violation of Articles 14 and 16 of the Constitution also. The case before us does not appear to be such a case at all. It seems to be covered by what this Court said in P.C. Sethi &Ors. v. Union of India &Ors., ([1975] 3 SCR 20.) with regard to the Office Memorandum of 22.6.1949 (at pp. 207-208):" .... the Office Memorandum of June 22, 1949, is no bar to the Government in making separate provisions for the mode of constitution and future maintenance of the service of Assistants. There is, there fore, no obligation under the aforesaid Office Memorandum on the part of the Government to enforce a rule of bald length of continuous service irrespective of other considerations than the service was sought to be reorganised and reinforced. As noticed earlier the service had to be reconstituted and the temporary Assistants properly observed keeping in view the question of quality and efficiency as well as at the same where regard being had to accommodate as large number as possible to gradual absorption. In doing so we are unable to hold that the Government has violated the provisions of articles 14 or 16 of the Constitution. The Classification under the instruction for the constitution of regular temporary establishment in the manner done cannot be characterised as unreasonable in view of the object for which these had to be introduced in reconstituting the service to ensure security of temporary employees assistant with efficiency in the Service. There is no discrimination whatsoever amongst the equals as such nor any arbitrary exercise of power by theCourt has also explained in Joginder Nath &Ors. v. Union of India &Ors.([1975] 2 S.C.R. 553.) and Amrit Lal Berry v. Collector of Central Excise, New Delhi &Ors.([1975] 2 S.C.R. 960.) the principles on which this Court will interfere under Article 32 of the Constitution for an alleged violation of Articles 14 and 16 of the Constitution. It is also explained, there how delay in invoking the jurisdiction of the Court, which may create equitable rights of others, may give rational grounds for discrimination so that it would cease to be a case of any violation of Articles 14 and 16 at all. We think that the principles laid down in the cases mentioned above apply here. | 0 | 2,165 | 685 | ### 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:
be regulated by their relative seniority as determined before that day.Provided that if t he seniority of any such officer had not been specifically deter- mined before the appointed day it shall be as determined by the Department of Personnel in the Cabinet Secretariat.MHA No. 6/2/67-CS-II dated 20.12.67.Provided further that the seniority of an officer referred to in the proviso to clause (a) of rule 2 shall be determined by the Department of Personnel in the Cabinet Secretariat by taking into account the continuous length of regular service rendered before the appointment day by such officer in the grade of lower Division or in any higher grade in the offices of the Central Government.(2) All permanent officers included in the initial constitution of a Grade under rule 7 shall rank senior to all persons substantively appointed to that Grade with effect from a date after the appointed day, and all temporary officers included in the initial constitution of a Grade under that rule shall rank senior to all temporary officers appoint- ed to that Grade after the appointed day.(3) Except as provided in sub-rules (4) and (5), the seniority of persons appointed to the two grades of the service after the appointed day shall be determined in the following manner, namely:1. UPPER DIVISION GRADE(i) Permanent Officers.--The seniority inter se of officers substantively appointed to the Grade after the appointed day shall be regulated by the order in which they are so appointed to the Grade.(ii) Temporary Officers.--The seniority inter se of temporary officers appointed to the Grade after the appointed day shall be regulated as follows, namely:(a) Persons included in the Select List for a Grade shall rank senior en bloc to those not included in the Select list.(b) The seniority inter se of person included in the Select List shall be in the order in which their names are included in the Select List.(c) The seniority inter se of persons no t included in the Select List shall be regulated by the order in which they are approved for long term appointment to the Grade.Rule 7 provides as follows"7. Initial Constitution of each cadre.--The permanent and temporary officers of each Grade in each cadre on the appointed day shall be as deter mined by the Deptt. of Personnel in the Cabinet Secretariat."6. We find that, acting under Rule 7 set out above, the Government of India had issued an order on 12-11-1962 allotting permanent and temporary officers of the Upper Division grade to the Central Secretariat Clerical Service. Apparently, that allotment also determined the order of seniority. In other words, the rule relating to the passing of a typing test had been followed for a long period and had actually been given effect to under the statutory rules in promotions made and lists drawn up. This explains the petitioners challenge to the validity of Rule 17.7. We are unable to see how a rule prescribing a typing test is unconnected with the duties of Clerks who desire a promotion to the next grade. We do not find that a discrimination made on such a ground could violate Articles 14 or 16 of the Constitution whatever also it may be said to violate. It is not necessary for us to hold that a violation of a statutory or other kind of rule in a particular case cannot amount to a violation of Articles 14 and 16 of the Constitution. There may also be cases in which a rule made is ultra vires form reasonableness or on any other ground and should not be deemed to exist. In such a case, if the rule is enforced, it may, on the facts of the particular case, amount to a violation of Articles 14 and 16 of the Constitution also. The case before us does not appear to be such a case at all. It seems to be covered by what this Court said in P.C. Sethi &Ors. v. Union of India &Ors., ([1975] 3 SCR 20.) with regard to the Office Memorandum of 22.6.1949 (at pp. 207-208):" .... the Office Memorandum of June 22, 1949, is no bar to the Government in making separate provisions for the mode of constitution and future maintenance of the service of Assistants. There is, there fore, no obligation under the aforesaid Office Memorandum on the part of the Government to enforce a rule of bald length of continuous service irrespective of other considerations than the service was sought to be reorganised and reinforced. As noticed earlier the service had to be reconstituted and the temporary Assistants properly observed keeping in view the question of quality and efficiency as well as at the same where regard being had to accommodate as large number as possible to gradual absorption. In doing so we are unable to hold that the Government has violated the provisions of articles 14 or 16 of the Constitution. The Classification under the instruction for the constitution of regular temporary establishment in the manner done cannot be characterised as unreasonable in view of the object for which these had to be introduced in reconstituting the service to ensure security of temporary employees assistant with efficiency in the Service. There is no discrimination whatsoever amongst the equals as such nor any arbitrary exercise of power by the Government."8. This Court has also explained in Joginder Nath &Ors. v. Union of India &Ors.([1975] 2 S.C.R. 553.) and Amrit Lal Berry v. Collector of Central Excise, New Delhi &Ors.([1975] 2 S.C.R. 960.) the principles on which this Court will interfere under Article 32 of the Constitution for an alleged violation of Articles 14 and 16 of the Constitution. It is also explained, there how delay in invoking the jurisdiction of the Court, which may create equitable rights of others, may give rational grounds for discrimination so that it would cease to be a case of any violation of Articles 14 and 16 at all. We think that the principles laid down in the cases mentioned above apply here.9.
### Response:
0
### Explanation:
We find that, acting under Rule 7 set out above, the Government of India had issued an order on 12-11-1962 allotting permanent and temporary officers of the Upper Division grade to the Central Secretariat Clerical Service. Apparently, that allotment also determined the order of seniority. In other words, the rule relating to the passing of a typing test had been followed for a long period and had actually been given effect to under the statutory rules in promotions made and lists drawn up. This explains the petitioners challenge to the validity of Ruleare unable to see how a rule prescribing a typing test is unconnected with the duties of Clerks who desire a promotion to the next grade. We do not find that a discrimination made on such a ground could violate Articles 14 or 16 of the Constitution whatever also it may be said to violate. It is not necessary for us to hold that a violation of a statutory or other kind of rule in a particular case cannot amount to a violation of Articles 14 and 16 of the Constitution. There may also be cases in which a rule made is ultra vires form reasonableness or on any other ground and should not be deemed to exist. In such a case, if the rule is enforced, it may, on the facts of the particular case, amount to a violation of Articles 14 and 16 of the Constitution also. The case before us does not appear to be such a case at all. It seems to be covered by what this Court said in P.C. Sethi &Ors. v. Union of India &Ors., ([1975] 3 SCR 20.) with regard to the Office Memorandum of 22.6.1949 (at pp. 207-208):" .... the Office Memorandum of June 22, 1949, is no bar to the Government in making separate provisions for the mode of constitution and future maintenance of the service of Assistants. There is, there fore, no obligation under the aforesaid Office Memorandum on the part of the Government to enforce a rule of bald length of continuous service irrespective of other considerations than the service was sought to be reorganised and reinforced. As noticed earlier the service had to be reconstituted and the temporary Assistants properly observed keeping in view the question of quality and efficiency as well as at the same where regard being had to accommodate as large number as possible to gradual absorption. In doing so we are unable to hold that the Government has violated the provisions of articles 14 or 16 of the Constitution. The Classification under the instruction for the constitution of regular temporary establishment in the manner done cannot be characterised as unreasonable in view of the object for which these had to be introduced in reconstituting the service to ensure security of temporary employees assistant with efficiency in the Service. There is no discrimination whatsoever amongst the equals as such nor any arbitrary exercise of power by theCourt has also explained in Joginder Nath &Ors. v. Union of India &Ors.([1975] 2 S.C.R. 553.) and Amrit Lal Berry v. Collector of Central Excise, New Delhi &Ors.([1975] 2 S.C.R. 960.) the principles on which this Court will interfere under Article 32 of the Constitution for an alleged violation of Articles 14 and 16 of the Constitution. It is also explained, there how delay in invoking the jurisdiction of the Court, which may create equitable rights of others, may give rational grounds for discrimination so that it would cease to be a case of any violation of Articles 14 and 16 at all. We think that the principles laid down in the cases mentioned above apply here.
|
National Insurance Co. Ltd Vs. Sujir Ganesh Nayak & Co | Act, there is a specific article for filing a suit for damages due under the contract of insurance. Any clause in the contract of insurance curtailing the period of limitation will be hit by Section 28 of the Contract Act. If clause 19 of the contract of insurance is construed in such a way, it limits the period of limitation to twelve months from the date of happening of the loss or damage and it would seriously prejudice the rights of the insured. The insurer can very well defeat the claim of the insured by rejecting the claim after the period of 12 months from the date of happening of the loss." 21. The High Court started with the analysis as to whether the clause restricts the period of limitation or extinguishes the right but ultimately rests its conclusion on the finding that the contract is unconscionable - a ground which is not contended for by the parties. The High Court further proceeds to say : "Under Article 44 (b) of the Limitation Act, the period of limitation runs from the date of rejection of the claim. Thereafter, it is clear that clause 19 of the contract of insurance only prescribes the period during which the claim is to be preferred by the insured before the insurance company and it does not, in any way, curtail the period of limitation prescribed under the Limitation Act for filing a suit of that nature." 22. The clause before this Court in Food Corporations case (1994 AIR SCW 1827), extracted hereinbefore can instantly be compared with the clause in the present case. The contract in that case said that the right shall stand extinguished after six months from the termination of the contract. The clause was found valid because it did not proceed to say that to keep the right alive the suit was also required to be filed within six months. Accordingly, it was interpreted to mean that the right was required to be asserted during that period by making a claim to the Insurance Company. It was, therefore, held that the clause extinguished the right itself and was, therefore, not hit by Section 28 of the Contract Act. Such clauses are generally found in insurance contracts for the reason that undue delay in preferring a claim may open up possibilities of false claims which may be difficult of verification with reasonable exactitude since memories may have faded by then and even ground situation may have changed. Lapse of time in such cases may prove to be quite costly to the insurer and, therefore, it would not be surprising that the insurer would insist that if the claim is not made within a stipulated period, the right itself would stand extinguished. Such a clause would not be hit by Section 28 of the Contract (Act). 23. Keeping the above legal distinction in mind we may now consider the facts of the present case. The two insurance policies were both for a period of twelve months and bore a Riot and Strike endorsement covering damage caused by riot and strike to the property of the insured. On account of the strike in the unit from 26-3-1977, the production had come to a halt and as the management was not allowed to remove the goods the unit suffered heavy damage and loss for which a claim was made which claim was rejected by the insurer. The insured served notice and then filed a suit. One of the ground on which the suit was contested by the insurance company was based on the language of clauses 19 and 12 extracted earlier. 24. Clause 19 in terms said that in no case would the insurer be liable for any loss or damage after the expiration of twelve months from the happening of loss or damage unless the claim is subject of any pending action or arbitration. Here the claim was not subject to any action or arbitration proceedings. The clause says that if the claim is not pressed within twelve months from the happening of any loss or damage, the insurance company shall cease to be liable. There is no dispute that no claim was made nor was any arbitration proceeding pending during the said period of twelve months. The clause, therefore, has the effect of extinguishing the right itself and consequently the liability also. Notice the facts of the present case, the insurance company was informed about the strike by the letter of 28-4-1977 and by letter dated 10-5-1977. The insured was informed that under the policy it had no liability. This was reiterated by letter dated 22-9-1977. Even so more than twelve months after on 25-10-1978 the notice of demand was issued and the suit was filed on 2-6-1980. It is precisely to avoid such delays and to discourage such belated claims that such insurance policies contain a clause like clause 19. That is for the reason that if the claims are preferred with promptitude they can be easily verified and settled but if it is the other way round, we do not think it would be possible for the insurer to verify the same since evidence may not be fully and completely available and memories may have faded. The forfeiture Clause 12 also provides that if the claim is made but rejected, an action or suit must be commenced within three months after such rejection; failing which all benefits under the policy would stand forfeited. So, looked at from any point of view, the suit appears to be filed after the right stood extinguished. That is the reason why in Vulcan Insurance Case (AIR 1976 SC 287 ) (supra), while interpreting a clause couched in similar terms this Court said : "It has been separately held that such a clause is not hit by Section 28 of the Contract Act." Even if the observations made are in the nature of obiter dicta we think they proceed on a correct reading of the clause. | 1[ds]19. From the case law referred to above the legal position that emerges is that an agreement which in effect seeks to curtail the period of limitation and prescribes a shorter period than that prescribed by law would be void as offending Section 28 of the Contract Act. That is because such an agreement would seek to restrict the party from enforcing his right in Court after the period prescribed under the agreement expires even though the period prescribed by law for the enforcement of his right has yet not expired. But there could be agreements which do not seek to curtail the time for enforcement of the right but which provides for the forfeiture or waiver of the right itself if no action is commenced within the period stipulated by the agreement. Such a clause in the agreement would not fall within the mischief of Section 28 of the Contract Act. To put it differently, curtailment of the period of limitation is not permissible in view of Section 28 but extinction of the right itself unless exercised within a specified time is permissible and can be enforced. If the policy of insurance provides that if a claim is made and rejected and no action is commenced within the time stated in the policy, the benefits flowing from the policy shall stand extinguished and any subsequent action would be time-barred. Such a clause would fall outside the scope of Section 28 of the Contract Act. This, in brief, seems to be the settled legal position. We may now apply it to the facts of this case.Clause 19 in terms said that in no case would the insurer be liable for any loss or damage after the expiration of twelve months from the happening of loss or damage unless the claim is subject of any pending action or arbitration. Here the claim was not subject to any action or arbitration proceedings. The clause says that if the claim is not pressed within twelve months from the happening of any loss or damage, the insurance company shall cease to be liable. There is no dispute that no claim was made nor was any arbitration proceeding pending during the said period of twelve months. The clause, therefore, has the effect of extinguishing the right itself and consequently the liability also. Notice the facts of the present case, the insurance company was informed about the strike by the letter of 28-4-1977 and by letter dated 10-5-1977. The insured was informed that under the policy it had no liability. This was reiterated by letter dated 22-9-1977. Even so more than twelve months after on 25-10-1978 the notice of demand was issued and the suit was filed on 2-6-1980. It is precisely to avoid such delays and to discourage such belated claims that such insurance policies contain a clause like clause 19. That is for the reason that if the claims are preferred with promptitude they can be easily verified and settled but if it is the other way round, we do not think it would be possible for the insurer to verify the same since evidence may not be fully and completely available and memories may have faded. The forfeiture Clause 12 also provides that if the claim is made but rejected, an action or suit must be commenced within three months after such rejection; failing which all benefits under the policy would stand forfeited. So, looked at from any point of view, the suit appears to be filed after the right stood extinguished. That is the reason why in Vulcan Insurance Case (AIR 1976 SC 287 ) (supra), while interpreting a clause couched in similar terms this Court said : "It has been separately held that such a clause is not hit by Section 28 of the Contract Act." Even if the observations made are in the nature of obiter dicta we think they proceed on a correct reading of the clause. | 1 | 5,075 | 705 | ### 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:
Act, there is a specific article for filing a suit for damages due under the contract of insurance. Any clause in the contract of insurance curtailing the period of limitation will be hit by Section 28 of the Contract Act. If clause 19 of the contract of insurance is construed in such a way, it limits the period of limitation to twelve months from the date of happening of the loss or damage and it would seriously prejudice the rights of the insured. The insurer can very well defeat the claim of the insured by rejecting the claim after the period of 12 months from the date of happening of the loss." 21. The High Court started with the analysis as to whether the clause restricts the period of limitation or extinguishes the right but ultimately rests its conclusion on the finding that the contract is unconscionable - a ground which is not contended for by the parties. The High Court further proceeds to say : "Under Article 44 (b) of the Limitation Act, the period of limitation runs from the date of rejection of the claim. Thereafter, it is clear that clause 19 of the contract of insurance only prescribes the period during which the claim is to be preferred by the insured before the insurance company and it does not, in any way, curtail the period of limitation prescribed under the Limitation Act for filing a suit of that nature." 22. The clause before this Court in Food Corporations case (1994 AIR SCW 1827), extracted hereinbefore can instantly be compared with the clause in the present case. The contract in that case said that the right shall stand extinguished after six months from the termination of the contract. The clause was found valid because it did not proceed to say that to keep the right alive the suit was also required to be filed within six months. Accordingly, it was interpreted to mean that the right was required to be asserted during that period by making a claim to the Insurance Company. It was, therefore, held that the clause extinguished the right itself and was, therefore, not hit by Section 28 of the Contract Act. Such clauses are generally found in insurance contracts for the reason that undue delay in preferring a claim may open up possibilities of false claims which may be difficult of verification with reasonable exactitude since memories may have faded by then and even ground situation may have changed. Lapse of time in such cases may prove to be quite costly to the insurer and, therefore, it would not be surprising that the insurer would insist that if the claim is not made within a stipulated period, the right itself would stand extinguished. Such a clause would not be hit by Section 28 of the Contract (Act). 23. Keeping the above legal distinction in mind we may now consider the facts of the present case. The two insurance policies were both for a period of twelve months and bore a Riot and Strike endorsement covering damage caused by riot and strike to the property of the insured. On account of the strike in the unit from 26-3-1977, the production had come to a halt and as the management was not allowed to remove the goods the unit suffered heavy damage and loss for which a claim was made which claim was rejected by the insurer. The insured served notice and then filed a suit. One of the ground on which the suit was contested by the insurance company was based on the language of clauses 19 and 12 extracted earlier. 24. Clause 19 in terms said that in no case would the insurer be liable for any loss or damage after the expiration of twelve months from the happening of loss or damage unless the claim is subject of any pending action or arbitration. Here the claim was not subject to any action or arbitration proceedings. The clause says that if the claim is not pressed within twelve months from the happening of any loss or damage, the insurance company shall cease to be liable. There is no dispute that no claim was made nor was any arbitration proceeding pending during the said period of twelve months. The clause, therefore, has the effect of extinguishing the right itself and consequently the liability also. Notice the facts of the present case, the insurance company was informed about the strike by the letter of 28-4-1977 and by letter dated 10-5-1977. The insured was informed that under the policy it had no liability. This was reiterated by letter dated 22-9-1977. Even so more than twelve months after on 25-10-1978 the notice of demand was issued and the suit was filed on 2-6-1980. It is precisely to avoid such delays and to discourage such belated claims that such insurance policies contain a clause like clause 19. That is for the reason that if the claims are preferred with promptitude they can be easily verified and settled but if it is the other way round, we do not think it would be possible for the insurer to verify the same since evidence may not be fully and completely available and memories may have faded. The forfeiture Clause 12 also provides that if the claim is made but rejected, an action or suit must be commenced within three months after such rejection; failing which all benefits under the policy would stand forfeited. So, looked at from any point of view, the suit appears to be filed after the right stood extinguished. That is the reason why in Vulcan Insurance Case (AIR 1976 SC 287 ) (supra), while interpreting a clause couched in similar terms this Court said : "It has been separately held that such a clause is not hit by Section 28 of the Contract Act." Even if the observations made are in the nature of obiter dicta we think they proceed on a correct reading of the clause.
### Response:
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### Explanation:
19. From the case law referred to above the legal position that emerges is that an agreement which in effect seeks to curtail the period of limitation and prescribes a shorter period than that prescribed by law would be void as offending Section 28 of the Contract Act. That is because such an agreement would seek to restrict the party from enforcing his right in Court after the period prescribed under the agreement expires even though the period prescribed by law for the enforcement of his right has yet not expired. But there could be agreements which do not seek to curtail the time for enforcement of the right but which provides for the forfeiture or waiver of the right itself if no action is commenced within the period stipulated by the agreement. Such a clause in the agreement would not fall within the mischief of Section 28 of the Contract Act. To put it differently, curtailment of the period of limitation is not permissible in view of Section 28 but extinction of the right itself unless exercised within a specified time is permissible and can be enforced. If the policy of insurance provides that if a claim is made and rejected and no action is commenced within the time stated in the policy, the benefits flowing from the policy shall stand extinguished and any subsequent action would be time-barred. Such a clause would fall outside the scope of Section 28 of the Contract Act. This, in brief, seems to be the settled legal position. We may now apply it to the facts of this case.Clause 19 in terms said that in no case would the insurer be liable for any loss or damage after the expiration of twelve months from the happening of loss or damage unless the claim is subject of any pending action or arbitration. Here the claim was not subject to any action or arbitration proceedings. The clause says that if the claim is not pressed within twelve months from the happening of any loss or damage, the insurance company shall cease to be liable. There is no dispute that no claim was made nor was any arbitration proceeding pending during the said period of twelve months. The clause, therefore, has the effect of extinguishing the right itself and consequently the liability also. Notice the facts of the present case, the insurance company was informed about the strike by the letter of 28-4-1977 and by letter dated 10-5-1977. The insured was informed that under the policy it had no liability. This was reiterated by letter dated 22-9-1977. Even so more than twelve months after on 25-10-1978 the notice of demand was issued and the suit was filed on 2-6-1980. It is precisely to avoid such delays and to discourage such belated claims that such insurance policies contain a clause like clause 19. That is for the reason that if the claims are preferred with promptitude they can be easily verified and settled but if it is the other way round, we do not think it would be possible for the insurer to verify the same since evidence may not be fully and completely available and memories may have faded. The forfeiture Clause 12 also provides that if the claim is made but rejected, an action or suit must be commenced within three months after such rejection; failing which all benefits under the policy would stand forfeited. So, looked at from any point of view, the suit appears to be filed after the right stood extinguished. That is the reason why in Vulcan Insurance Case (AIR 1976 SC 287 ) (supra), while interpreting a clause couched in similar terms this Court said : "It has been separately held that such a clause is not hit by Section 28 of the Contract Act." Even if the observations made are in the nature of obiter dicta we think they proceed on a correct reading of the clause.
|
The Associated Cement Companies Ltd.,Dwarka Cement Works, Vs. Its Workmen & Another | we now propose to make in regard to the item of rehabilitation should not be taken to be binding on the parties in subsequent years. If, in the light of our decision on the principal points raised before us in the present appeals, the parties decide to settle their disputes about bonus for subsequent years there would be no occasion for the tribunal to deal with them on the merits. If, however, these disputes have to be settled by the tribunal, it would be open to the parties to lead evidence in support of their respective contentions. The tribunal also would be at liberty to consider the matter afresh and come to its own conclusion on the merits. 89. Let us now proceed to make the relevant calculations. The first step to take is to correct the figures in Ex. C-2 by excluding the cost of buildings, roads, bridges and railway-sidings from the total cost mentioned in it against the several blocks. This cost has been supplied to us by the appellant in Ex. F (a). This is how the corrections work out. In our calculations all figures are expressed in lakhs: Chart I Period Original cost of block Less Cost of buildings etc Balance (1) (2) (3) (4) Up to 1939 486.89 132.98 353.91 1940-44 59.91 22.38 37.53 1945-47 208.93 68.15 140.78 1948-54 1144.81 333.47 811.34 90. In Ex. F(a) the appellant has shown the respective average ratios in col. 5 in regard to items of property mentioned in col. 2. We think, in making our calculations, it would on the whole be fair to adopt 3.5 as a suitable multiplier up to 1939, 2 from 1940-47 and 1 from 1948-54 (as in C. 2) for replacement by part A. C. C. machinery. We have not disturbed the divisors taken by C. 2 though we feel inclined to hold that Mr. Tongaonkar has underestimated the probable life of machinery. The amount of yearly requirement for rehabilitation for the total block minus buildings etc., would then work out at Rs. 229.39. This does not take into account the available reserves; that aspect is considered later on. Chart II Period Original cost of Multiplier Total Less breakdown as in Ex. C. 2 Balance Life of Machiery (in Yrs.) Yearly requirement (1) (2) (3) (4) (5) (6) (7) (8) (approx.) Up to 1939 353.91x 3.5 1238.68 65.92 1172.76 7 167.54 1940-44 37.53x 2 75.06 4.66 70.40 13 5.41 1945-47 140.78x 2 281.56 11.19 270.37 15 18.02 1948-54 811.34x 1 811.34 42.84 768.50 20 38.42 Total ... 229-39 Then we would deal with the buildings, roads, bridges and railway-sidings. These may be given an average life of 30 years for all blocks in order to compensate for cases where they have to be demolished on account of modernisation. According to the previous statements of the appellant the life of factory buildings was about 35 years and residential areas 50 years. Even so we propose to take the average life of 30 years in making our calculations in respect of these blocks. The multipliers may be taken as 2.25 for pre-1939 blocks, 1.5 for 1940-47 blocks, 1 for 1948-54 blocks. The Bombay block has been taken as in Ex. C. 2: Chart III Period Cost Multiplier Total Less breakdown valued at 5% of costs Balance Life Yearly requirement (1) (2) (3) (4) (5) (6) (7) (8) Up to 1939 132.98x 2.25 299.20 6.65 292.55 20 14.63 1940-44 22.38x 1.5 33.57 1.12 32.45 25 1.29 1945-47 68.15x 1.5 102.22 3.40 98.82 25 3.95 1948-54 333.47x 1 333.47 16.67 316.80 30 10.56 Bombay Office block 40.83 50.28 .73 49.55 69 .71 Total ... 31.14 91. Thus the total yearly requirement for rehabilitation of this block would come to 31.14 lakhs. 92. The appellants claim for rehabilitation can now be calculated on the basis of Ex. C. 23 as corrected in the light of the three charts prepared by us. As the calculations in the chart show, we would hold that the appellant is entitled to an allowance of 216.10 lakhs for rehabilitation in the relevant year: Chart IV Cost of machinery (Chart II) 1172.76 Deduct reserves 311.00 Balance 861.76 divided by 7: 123.11 Add for buildings (Chart III) 14.63 Total 137.74 Replacement cost of 1940-44 block including buildings etc. (5.41 plus 1.29) 6.70 do for 1945-47 (18.02 plus 3.95) 21.97 do for 1948-54 (38.42 plus 10.56) 48.98 do for Bombay Office .71 Total 216.10 93. Having decided that the total claim for rehabilitation admissible to the appellant is 216.10 lakhs for the relevant year, we must now proceed to determine whether on the working of the formula any surplus profit is available. We have made the following calculations in the light of the principles laid down by us in this judgment: Chart V Total profit excluding Bhupendra Factory … 428.71 Less notional normal depreciation (p. 428, Pt. I.) ... 100.22 Less income-tax payable @ 7 as in the Rupee as per Note A below ... 115.16 Less 6% on paid-up capital ... 76.06 Less 4% on working capital ... 26.10 Total … 317.54 … 317.54 Balance … … 111.17 Less provision for rehabilitation .. … 115.88 Balance ... (-) 4.71 94. This is how we have calculated the income-tax payable for the relevant year: Note A Gross profits … 428.71 Less Statutory depreciation … 165.49 Balance … 263.22 Income-tax @ 7 as: in the Rupee … 115.16 *Provision for rehabilation (Vide chart V) : Total from Chart IV … 216.10 Less Notional normal depreciation 100.22 Balance *115.88 We ought to add that in our calculations we have not taken into account the Bhupendra Factory because the relevant material for working out the figures in regard to this factory is not adequate or satisfactory. However from such material as is available it appears that if the profits made by the said factory are include in the calculations and rehabilitation required by it is worked out it would not materially affect the figure rehabilitation amount determined by us. | 1[ds]It is for the first time since 1950 that, in the present appeals, we are called upon to examine the formula carefully and express our decision on the merits of its specific provisions. As we have already indicated, in dealing with the present dispute the tribunal has held that, in working out the formula, it could relax its provisions even though the proposed relaxation may mean a material variation of the formula itself22. It is true that, in the report submitted by the appellant before the Tariff Commission in April 1953, it had set out the details of its ten year programme which included, besides replacement, rehabilitation, modernisation and expansion, mechanisation of quarries as well as construction and improvement of houses for its labour staff. The report of the Tariff Commission (p. 30) shows that the cost of the programme was estimated at Rs. 18.36 crores, excluding the cost of a new plant at Sindri, or about Rs. 184 lakhs per annum. Subsequently in January 1954, when Mr. Tongaonkar gave evidence in the previous adjudication proceedings, he produced a statement (Ex. U. 8) according to which the appellants annual requirements for rehabilitation would be of the order of Rs. 192 or 193 lakhs, whereas in the present proceedings the said claim is made at Rs. 284 lakhs. A bare statement of these facts prima facie suggests that the appellants present claim for rehabilitation has been growing from stage to stage, and in its present form it is very much inflated; and that is what the tribunal has also assumed. In our opinion this assumption is not wholly correct. Mr. Tongaonkars evidence shows that in the report of the jobs submitted to the Tariff Comissission the appellant had not included all relevant items of rehabilitation, replacement and modernisation. The report merely gave a list of the jobs which the appellant had proposed to undertake during the ten year period ending July 31, 1962. It was in no sense an exhaustive statement about the appellants requirements in regard to the rehabilitation of all its blocks. In fact, having regard to the nature and scope of the enquiry before the Tariff Commission, the report made by the appellant had to be restricted to the urgent jobs which it wanted to undertake during the execution of its ten year programme; and so it would not be reasonable to hold that the figure of annual rehabilitation expenses which can be deduced from the said report has any relation to the claim for rehabilitation made by the appellant in terms of the working of the formulaEven so the Labour Appellate Tribunal found that the appellants contention that its workmen were not entitled to any additional bonus was not well-founded even if its claim for rehabilitation was confined to Rs. 192 or Rs. 193 lakhs. Besides, Mr. Tongaonkar has stated on oath that Ex. U. 8. was not among the documents originally submitted by the appellant to the tribunal in 1954. It was in fact prepared and submitted at a later stage at the instance of the tribunal itself. It is, therefore, clear that Ex. U. 8 was not intended to, and did not supply, the basis of the appellants claim in the earlier proceedings in accordance with the formulaIt is nevertheless clear that the items in Ex. U. 8 do not include a claim for rehabilitation for all the blocks of the appellant, and it is not surprising either, because a claim for the rehabilitation of all the blocks had been separately made by the appellant in the earlier proceedings under Ex. C- 3. Thus there can be no doubt that neither the report submitted by the appellant before the Tariff Commission nor the estimate given by Ex. U. 8 was prepared under the formula; and so any disparity in the amounts claimed in the two earlier documents cannot be seriously pressed into service against the appellant when it seeks to make a claim for rehabilitation strictly in accordance with the formula.We must, therefore hold that the tribunal was in error in coming to the conclusion that by reason of its previous conduct the appellant could not be allowed to place its claim for rehabilitation at a figure higher than Rs. 192 lakhs in the relevant year32. It may be conceded that there is some force in some of the arguments urged in support of the plea that the formula should be revised and its priorities should be readjusted and redefined; but, on the other hand, we cannot ignore the fact that on the whole the formula has worked satisfactorily in a large number of industries all over the country. Except for a few cases, particularly in Bombay, where some of the tribunals have taken the view that, in its rigid form, the formula has become unworkable from the point of view of labour, in a majority of cases industrial disputes arising between employers and their workmen in regard to bonus have been settled by tribunals on the basis of this formula; and it would not be unreasonable or inaccurate to say that by and large labours claim for bonus has been fairly and satisfactorily dealt with. The main source of contest in the working of the formula centres round the industrys claim for rehabilitation; but, as we shall presently point out, if this claim is carefully scrutinised and examined in the light of evidence which the employer has to produce in support of his claim, even the settlement of this item would, as it is intended to, invest the tribunal with sufficient discretion to make the working of the formula elastic enough to meet its two-fold object of doing justice both to industry and labour. | 1 | 25,559 | 1,043 | ### 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:
we now propose to make in regard to the item of rehabilitation should not be taken to be binding on the parties in subsequent years. If, in the light of our decision on the principal points raised before us in the present appeals, the parties decide to settle their disputes about bonus for subsequent years there would be no occasion for the tribunal to deal with them on the merits. If, however, these disputes have to be settled by the tribunal, it would be open to the parties to lead evidence in support of their respective contentions. The tribunal also would be at liberty to consider the matter afresh and come to its own conclusion on the merits. 89. Let us now proceed to make the relevant calculations. The first step to take is to correct the figures in Ex. C-2 by excluding the cost of buildings, roads, bridges and railway-sidings from the total cost mentioned in it against the several blocks. This cost has been supplied to us by the appellant in Ex. F (a). This is how the corrections work out. In our calculations all figures are expressed in lakhs: Chart I Period Original cost of block Less Cost of buildings etc Balance (1) (2) (3) (4) Up to 1939 486.89 132.98 353.91 1940-44 59.91 22.38 37.53 1945-47 208.93 68.15 140.78 1948-54 1144.81 333.47 811.34 90. In Ex. F(a) the appellant has shown the respective average ratios in col. 5 in regard to items of property mentioned in col. 2. We think, in making our calculations, it would on the whole be fair to adopt 3.5 as a suitable multiplier up to 1939, 2 from 1940-47 and 1 from 1948-54 (as in C. 2) for replacement by part A. C. C. machinery. We have not disturbed the divisors taken by C. 2 though we feel inclined to hold that Mr. Tongaonkar has underestimated the probable life of machinery. The amount of yearly requirement for rehabilitation for the total block minus buildings etc., would then work out at Rs. 229.39. This does not take into account the available reserves; that aspect is considered later on. Chart II Period Original cost of Multiplier Total Less breakdown as in Ex. C. 2 Balance Life of Machiery (in Yrs.) Yearly requirement (1) (2) (3) (4) (5) (6) (7) (8) (approx.) Up to 1939 353.91x 3.5 1238.68 65.92 1172.76 7 167.54 1940-44 37.53x 2 75.06 4.66 70.40 13 5.41 1945-47 140.78x 2 281.56 11.19 270.37 15 18.02 1948-54 811.34x 1 811.34 42.84 768.50 20 38.42 Total ... 229-39 Then we would deal with the buildings, roads, bridges and railway-sidings. These may be given an average life of 30 years for all blocks in order to compensate for cases where they have to be demolished on account of modernisation. According to the previous statements of the appellant the life of factory buildings was about 35 years and residential areas 50 years. Even so we propose to take the average life of 30 years in making our calculations in respect of these blocks. The multipliers may be taken as 2.25 for pre-1939 blocks, 1.5 for 1940-47 blocks, 1 for 1948-54 blocks. The Bombay block has been taken as in Ex. C. 2: Chart III Period Cost Multiplier Total Less breakdown valued at 5% of costs Balance Life Yearly requirement (1) (2) (3) (4) (5) (6) (7) (8) Up to 1939 132.98x 2.25 299.20 6.65 292.55 20 14.63 1940-44 22.38x 1.5 33.57 1.12 32.45 25 1.29 1945-47 68.15x 1.5 102.22 3.40 98.82 25 3.95 1948-54 333.47x 1 333.47 16.67 316.80 30 10.56 Bombay Office block 40.83 50.28 .73 49.55 69 .71 Total ... 31.14 91. Thus the total yearly requirement for rehabilitation of this block would come to 31.14 lakhs. 92. The appellants claim for rehabilitation can now be calculated on the basis of Ex. C. 23 as corrected in the light of the three charts prepared by us. As the calculations in the chart show, we would hold that the appellant is entitled to an allowance of 216.10 lakhs for rehabilitation in the relevant year: Chart IV Cost of machinery (Chart II) 1172.76 Deduct reserves 311.00 Balance 861.76 divided by 7: 123.11 Add for buildings (Chart III) 14.63 Total 137.74 Replacement cost of 1940-44 block including buildings etc. (5.41 plus 1.29) 6.70 do for 1945-47 (18.02 plus 3.95) 21.97 do for 1948-54 (38.42 plus 10.56) 48.98 do for Bombay Office .71 Total 216.10 93. Having decided that the total claim for rehabilitation admissible to the appellant is 216.10 lakhs for the relevant year, we must now proceed to determine whether on the working of the formula any surplus profit is available. We have made the following calculations in the light of the principles laid down by us in this judgment: Chart V Total profit excluding Bhupendra Factory … 428.71 Less notional normal depreciation (p. 428, Pt. I.) ... 100.22 Less income-tax payable @ 7 as in the Rupee as per Note A below ... 115.16 Less 6% on paid-up capital ... 76.06 Less 4% on working capital ... 26.10 Total … 317.54 … 317.54 Balance … … 111.17 Less provision for rehabilitation .. … 115.88 Balance ... (-) 4.71 94. This is how we have calculated the income-tax payable for the relevant year: Note A Gross profits … 428.71 Less Statutory depreciation … 165.49 Balance … 263.22 Income-tax @ 7 as: in the Rupee … 115.16 *Provision for rehabilation (Vide chart V) : Total from Chart IV … 216.10 Less Notional normal depreciation 100.22 Balance *115.88 We ought to add that in our calculations we have not taken into account the Bhupendra Factory because the relevant material for working out the figures in regard to this factory is not adequate or satisfactory. However from such material as is available it appears that if the profits made by the said factory are include in the calculations and rehabilitation required by it is worked out it would not materially affect the figure rehabilitation amount determined by us.
### Response:
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### Explanation:
It is for the first time since 1950 that, in the present appeals, we are called upon to examine the formula carefully and express our decision on the merits of its specific provisions. As we have already indicated, in dealing with the present dispute the tribunal has held that, in working out the formula, it could relax its provisions even though the proposed relaxation may mean a material variation of the formula itself22. It is true that, in the report submitted by the appellant before the Tariff Commission in April 1953, it had set out the details of its ten year programme which included, besides replacement, rehabilitation, modernisation and expansion, mechanisation of quarries as well as construction and improvement of houses for its labour staff. The report of the Tariff Commission (p. 30) shows that the cost of the programme was estimated at Rs. 18.36 crores, excluding the cost of a new plant at Sindri, or about Rs. 184 lakhs per annum. Subsequently in January 1954, when Mr. Tongaonkar gave evidence in the previous adjudication proceedings, he produced a statement (Ex. U. 8) according to which the appellants annual requirements for rehabilitation would be of the order of Rs. 192 or 193 lakhs, whereas in the present proceedings the said claim is made at Rs. 284 lakhs. A bare statement of these facts prima facie suggests that the appellants present claim for rehabilitation has been growing from stage to stage, and in its present form it is very much inflated; and that is what the tribunal has also assumed. In our opinion this assumption is not wholly correct. Mr. Tongaonkars evidence shows that in the report of the jobs submitted to the Tariff Comissission the appellant had not included all relevant items of rehabilitation, replacement and modernisation. The report merely gave a list of the jobs which the appellant had proposed to undertake during the ten year period ending July 31, 1962. It was in no sense an exhaustive statement about the appellants requirements in regard to the rehabilitation of all its blocks. In fact, having regard to the nature and scope of the enquiry before the Tariff Commission, the report made by the appellant had to be restricted to the urgent jobs which it wanted to undertake during the execution of its ten year programme; and so it would not be reasonable to hold that the figure of annual rehabilitation expenses which can be deduced from the said report has any relation to the claim for rehabilitation made by the appellant in terms of the working of the formulaEven so the Labour Appellate Tribunal found that the appellants contention that its workmen were not entitled to any additional bonus was not well-founded even if its claim for rehabilitation was confined to Rs. 192 or Rs. 193 lakhs. Besides, Mr. Tongaonkar has stated on oath that Ex. U. 8. was not among the documents originally submitted by the appellant to the tribunal in 1954. It was in fact prepared and submitted at a later stage at the instance of the tribunal itself. It is, therefore, clear that Ex. U. 8 was not intended to, and did not supply, the basis of the appellants claim in the earlier proceedings in accordance with the formulaIt is nevertheless clear that the items in Ex. U. 8 do not include a claim for rehabilitation for all the blocks of the appellant, and it is not surprising either, because a claim for the rehabilitation of all the blocks had been separately made by the appellant in the earlier proceedings under Ex. C- 3. Thus there can be no doubt that neither the report submitted by the appellant before the Tariff Commission nor the estimate given by Ex. U. 8 was prepared under the formula; and so any disparity in the amounts claimed in the two earlier documents cannot be seriously pressed into service against the appellant when it seeks to make a claim for rehabilitation strictly in accordance with the formula.We must, therefore hold that the tribunal was in error in coming to the conclusion that by reason of its previous conduct the appellant could not be allowed to place its claim for rehabilitation at a figure higher than Rs. 192 lakhs in the relevant year32. It may be conceded that there is some force in some of the arguments urged in support of the plea that the formula should be revised and its priorities should be readjusted and redefined; but, on the other hand, we cannot ignore the fact that on the whole the formula has worked satisfactorily in a large number of industries all over the country. Except for a few cases, particularly in Bombay, where some of the tribunals have taken the view that, in its rigid form, the formula has become unworkable from the point of view of labour, in a majority of cases industrial disputes arising between employers and their workmen in regard to bonus have been settled by tribunals on the basis of this formula; and it would not be unreasonable or inaccurate to say that by and large labours claim for bonus has been fairly and satisfactorily dealt with. The main source of contest in the working of the formula centres round the industrys claim for rehabilitation; but, as we shall presently point out, if this claim is carefully scrutinised and examined in the light of evidence which the employer has to produce in support of his claim, even the settlement of this item would, as it is intended to, invest the tribunal with sufficient discretion to make the working of the formula elastic enough to meet its two-fold object of doing justice both to industry and labour.
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State of Madhya Pradesh Vs. Binod Mills Company Ltd | of paying the tax himself, for if the tax is paid by the company the loss involved in the payment of the tax would fall on him only to the extent of his shareholding, being for the test shared by the other shareholders of the company. It is really difficult to understand the principle by which one could construe a rule of this nature as enabling a managing-agent who holds, say 51 per cent of the share capital of the company to visit 49 per cent of the burden of tax which normally one would expect to be paid by him, to be paid by the other shareholders of the company merely because he happens to be the managing-agent holding a controlling interest by the extent of his shareholding. We consider that the construction suggested by Mr. Sen which leads to such an unreasonable result and inflicts an unjust injury on the other shareholders is not any proper interpretation of the provision. Besides, there are other grounds why the meaning attributed to the words "is included as referring to "included by the managing-agent cannot be accepted. Suppose the managing-agent includes it in his return but the assessing authority does not include it in the computation of his return but prefers to disallow the deduction in the case of a company. Would that be "inclusion in his profits? Again, suppose the managing-agent does not include it in his return but the assessing authority does, and tax is paid by the managing-agent, would there be no exclusion? These illustrations serve to bring out the anomalies that would arise if it were held that the words "is included meant "is included in his return by the managing-agent.11. This leaves for consideration the meaning that "is included refers to the inclusion under the provisions of the Ordinance. If this meaning were accepted it would not matter whether the managing-agent has or has not included the sum in his return or whether the assessing authorities have or have not done their duty by having the remuneration included in the taxable profits of the managing-agent. If the managing-agent has not done so being under an obligation imposed by the law to include it, the return would be liable to be revised by the assessing officer and if the failure to include the sum was due to any suppression, the managing-agent would, besides having the sum included in his assessable profits, be liable to appropriate penalties for filing a wilfully incorrect return. Similarly, the assessing officer being under a statutory duty to include the sum in the assessment of the managing-agent would, if he failed to do so render the order liable to be revised. The remedy for the failure either of the managing-agent or of the assessing authorities to conform to the requirements of the law certainly cannot be the disallowance of the sum in the computation of the profits of the company.The entirety of this reasoning, it would be noted, proceeds on the basis that the managing agent was liable to include his remuneration in his assessable profits. In such a contingency it stands to reason that neither the default of the managing-agent as an assessee or of the assessing authority to include the sum in the profits of the managing-agent could prejudice the rights of the company in the matter of the computation of its income.12. Where the remuneration of the managing-agent was not under the Ordinance liable to be brought to tax the position would be different and that is just what is indicated as that which would render the proviso inapplicable. For instance S. 5(1) of the Ordinance enacts:Provided further that this Ordinance shall not apply to -(a)(b) profits from a business carried on wholly on behalf of a religious or charitable institution and the profits of which are applied solely to the purposes of the institution and enure for the benefit of the public, and -(i) the business is carried on in the course of the carrying out of a primary purpose of the institution, and(ii) the work in connection with the business is carried on by the beneficiaries of the institution."If for instance the business of the managing-agency was being carried on for or on behalf of a trust of the character indicated by the provision just now read, the remuneration of the managing-agent would not be liable to tax for the reason that it is outside the ambit of the Ordinance and to such a case the terms of proviso (b) to R. 4(1) would not be attracted, with the result that the managing-agent not being liable to tax under the Ordinance on the remuneration derived by him, the company, if it were a controlled company, would not be entitled to the deduction of that remuneration in the computation of its profits. Except in cases where the remuneration received by a managing-agent is not liable to tax under the Ordinance, it is the managing-agent that would be liable to pay tax on his remuneration and notwithstanding that the company is a controlled company the remuneration paid by it to the managing agent would be a permissible deduction by reason of the exception to the opening words of R. 4(1) contained in proviso (b).It is unnecessary for our present purpose to consider whether besides Section 5(1)(b), already referred to, there are other contingencies in which remuneration received by a Director could be held not to be "included" in the latters profits under the Ordinance, since in the case before us it is admitted that the remuneration received by the managing-agent was liable to be included in the computation of his profits for the purposes of the War Profits Tax and therefore neither the fact that the managing-agent did not "include" the sum in his return, nor the default of the assessing authority to correct this error by "including" the sum in his assessment, is any reason for depriving the respondent company of the benefit of proviso (b) to R. 4(1). | 1[ds]9. The theory propounded regarding the provision being one for avoidance of double taxation in the manner above indicated by vesting a discretion in the controlling-Director breaks even on a cursory examination. Let us assume that the managing-agent opts to have the company taxed and submits a return on behalf of the company in which no deduction is claimed in respect of this item and an assessment is made accepting that return. On the terms of the Ordinance this would not afford any relief to the managing agent in his personal assessment, for admittedly there is, as pointed our earlier, no provision in the Ordinance or in the Schedule exempting the managing agent from the inclusion of this remuneration in his taxable profits, and this must obviously be so, because for the purposes of the charging section he would be an independent unit of assessment. He would have to include in the computation of his personal income for the purpose of the War Profits. Tax the remuneration received by him. This might be expressed in a slightly different form by stating the proviso (b) to R. 4(1) does not operate in the reverse direction, that is by exempting the managing agent from tax on the remuneration derived by him, merely because the deduction of that item has been denied to the company. Obviously therefore R. 4(1)(b) is not a rule designed for the avoidance of double taxation in the sense in which learned counsel for the appeal suggests that it is.10. There are also other reasons why we find it unable to accept the submission of Mr. Sen that by the words "is included is meant the inclusion in the return by the managing-agent with the result that in cases where he does not so include, the company would not be entitled to the deduction. The option suggested by Mr. Sen to the Managing-agent was that he might either elect of pay the tax himself or get the company to pay it. Obviously it would always be in the interest of the managing-agent to have the tax paid by the company if by that means, as is suggested by Mr. Sen, he could obtain absolution from the obligation of paying the tax himself, for if the tax is paid by the company the loss involved in the payment of the tax would fall on him only to the extent of his shareholding, being for the test shared by the other shareholders of the company. It is really difficult to understand the principle by which one could construe a rule of this nature as enabling a managing-agent who holds, say 51 per cent of the share capital of the company to visit 49 per cent of the burden of tax which normally one would expect to be paid by him, to be paid by the other shareholders of the company merely because he happens to be the managing-agent holding a controlling interest by the extent of his shareholding. We consider that the construction suggested by Mr. Sen which leads to such an unreasonable result and inflicts an unjust injury on the other shareholders is not any proper interpretation of the provision. Besides, there are other grounds why the meaning attributed to the words "is included as referring to "included by the managing-agent cannot be accepted. Suppose the managing-agent includes it in his return but the assessing authority does not include it in the computation of his return but prefers to disallow the deduction in the case of a company. Would that be "inclusion in his profits? Again, suppose the managing-agent does not include it in his return but the assessing authority does, and tax is paid by the managing-agent, would there be no exclusion? These illustrations serve to bring out the anomalies that would arise if it were held that the words "is included meant "is included in his return by the managing-agent.11. This leaves for consideration the meaning that "is included refers to the inclusion under the provisions of the Ordinance. If this meaning were accepted it would not matter whether the managing-agent has or has not included the sum in his return or whether the assessing authorities have or have not done their duty by having the remuneration included in the taxable profits of the managing-agent. If the managing-agent has not done so being under an obligation imposed by the law to include it, the return would be liable to be revised by the assessing officer and if the failure to include the sum was due to any suppression, the managing-agent would, besides having the sum included in his assessable profits, be liable to appropriate penalties for filing a wilfully incorrect return. Similarly, the assessing officer being under a statutory duty to include the sum in the assessment of the managing-agent would, if he failed to do so render the order liable to be revised. The remedy for the failure either of the managing-agent or of the assessing authorities to conform to the requirements of the law certainly cannot be the disallowance of the sum in the computation of the profits of the company.The entirety of this reasoning, it would be noted, proceeds on the basis that the managing agent was liable to include his remuneration in his assessable profits. In such a contingency it stands to reason that neither the default of the managing-agent as an assessee or of the assessing authority to include the sum in the profits of the managing-agent could prejudice the rights of the company in the matter of the computation of itsfor instance the business of the managing-agency was being carried on for or on behalf of a trust of the character indicated by the provision just now read, the remuneration of the managing-agent would not be liable to tax for the reason that it is outside the ambit of the Ordinance and to such a case the terms of proviso (b) to R. 4(1) would not be attracted, with the result that the managing-agent not being liable to tax under the Ordinance on the remuneration derived by him, the company, if it were a controlled company, would not be entitled to the deduction of that remuneration in the computation of its profits. Except in cases where the remuneration received by a managing-agent is not liable to tax under the Ordinance, it is the managing-agent that would be liable to pay tax on his remuneration and notwithstanding that the company is a controlled company the remuneration paid by it to the managing agent would be a permissible deduction by reason of the exception to the opening words of R. 4(1) contained in proviso (b).It is unnecessary for our present purpose to consider whether besides Section 5(1)(b), already referred to, there are other contingencies in which remuneration received by a Director could be held not to be "included" in the latters profits under the Ordinance, since in the case before us it is admitted that the remuneration received by the managing-agent was liable to be included in the computation of his profits for the purposes of the War Profits Tax and therefore neither the fact that the managing-agent did not "include" the sum in his return, nor the default of the assessing authority to correct this error by "including" the sum in his assessment, is any reason for depriving the respondent company of the benefit of proviso (b) to R. 4(1). | 1 | 4,469 | 1,351 | ### Instruction:
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of paying the tax himself, for if the tax is paid by the company the loss involved in the payment of the tax would fall on him only to the extent of his shareholding, being for the test shared by the other shareholders of the company. It is really difficult to understand the principle by which one could construe a rule of this nature as enabling a managing-agent who holds, say 51 per cent of the share capital of the company to visit 49 per cent of the burden of tax which normally one would expect to be paid by him, to be paid by the other shareholders of the company merely because he happens to be the managing-agent holding a controlling interest by the extent of his shareholding. We consider that the construction suggested by Mr. Sen which leads to such an unreasonable result and inflicts an unjust injury on the other shareholders is not any proper interpretation of the provision. Besides, there are other grounds why the meaning attributed to the words "is included as referring to "included by the managing-agent cannot be accepted. Suppose the managing-agent includes it in his return but the assessing authority does not include it in the computation of his return but prefers to disallow the deduction in the case of a company. Would that be "inclusion in his profits? Again, suppose the managing-agent does not include it in his return but the assessing authority does, and tax is paid by the managing-agent, would there be no exclusion? These illustrations serve to bring out the anomalies that would arise if it were held that the words "is included meant "is included in his return by the managing-agent.11. This leaves for consideration the meaning that "is included refers to the inclusion under the provisions of the Ordinance. If this meaning were accepted it would not matter whether the managing-agent has or has not included the sum in his return or whether the assessing authorities have or have not done their duty by having the remuneration included in the taxable profits of the managing-agent. If the managing-agent has not done so being under an obligation imposed by the law to include it, the return would be liable to be revised by the assessing officer and if the failure to include the sum was due to any suppression, the managing-agent would, besides having the sum included in his assessable profits, be liable to appropriate penalties for filing a wilfully incorrect return. Similarly, the assessing officer being under a statutory duty to include the sum in the assessment of the managing-agent would, if he failed to do so render the order liable to be revised. The remedy for the failure either of the managing-agent or of the assessing authorities to conform to the requirements of the law certainly cannot be the disallowance of the sum in the computation of the profits of the company.The entirety of this reasoning, it would be noted, proceeds on the basis that the managing agent was liable to include his remuneration in his assessable profits. In such a contingency it stands to reason that neither the default of the managing-agent as an assessee or of the assessing authority to include the sum in the profits of the managing-agent could prejudice the rights of the company in the matter of the computation of its income.12. Where the remuneration of the managing-agent was not under the Ordinance liable to be brought to tax the position would be different and that is just what is indicated as that which would render the proviso inapplicable. For instance S. 5(1) of the Ordinance enacts:Provided further that this Ordinance shall not apply to -(a)(b) profits from a business carried on wholly on behalf of a religious or charitable institution and the profits of which are applied solely to the purposes of the institution and enure for the benefit of the public, and -(i) the business is carried on in the course of the carrying out of a primary purpose of the institution, and(ii) the work in connection with the business is carried on by the beneficiaries of the institution."If for instance the business of the managing-agency was being carried on for or on behalf of a trust of the character indicated by the provision just now read, the remuneration of the managing-agent would not be liable to tax for the reason that it is outside the ambit of the Ordinance and to such a case the terms of proviso (b) to R. 4(1) would not be attracted, with the result that the managing-agent not being liable to tax under the Ordinance on the remuneration derived by him, the company, if it were a controlled company, would not be entitled to the deduction of that remuneration in the computation of its profits. Except in cases where the remuneration received by a managing-agent is not liable to tax under the Ordinance, it is the managing-agent that would be liable to pay tax on his remuneration and notwithstanding that the company is a controlled company the remuneration paid by it to the managing agent would be a permissible deduction by reason of the exception to the opening words of R. 4(1) contained in proviso (b).It is unnecessary for our present purpose to consider whether besides Section 5(1)(b), already referred to, there are other contingencies in which remuneration received by a Director could be held not to be "included" in the latters profits under the Ordinance, since in the case before us it is admitted that the remuneration received by the managing-agent was liable to be included in the computation of his profits for the purposes of the War Profits Tax and therefore neither the fact that the managing-agent did not "include" the sum in his return, nor the default of the assessing authority to correct this error by "including" the sum in his assessment, is any reason for depriving the respondent company of the benefit of proviso (b) to R. 4(1).
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in the sense in which learned counsel for the appeal suggests that it is.10. There are also other reasons why we find it unable to accept the submission of Mr. Sen that by the words "is included is meant the inclusion in the return by the managing-agent with the result that in cases where he does not so include, the company would not be entitled to the deduction. The option suggested by Mr. Sen to the Managing-agent was that he might either elect of pay the tax himself or get the company to pay it. Obviously it would always be in the interest of the managing-agent to have the tax paid by the company if by that means, as is suggested by Mr. Sen, he could obtain absolution from the obligation of paying the tax himself, for if the tax is paid by the company the loss involved in the payment of the tax would fall on him only to the extent of his shareholding, being for the test shared by the other shareholders of the company. It is really difficult to understand the principle by which one could construe a rule of this nature as enabling a managing-agent who holds, say 51 per cent of the share capital of the company to visit 49 per cent of the burden of tax which normally one would expect to be paid by him, to be paid by the other shareholders of the company merely because he happens to be the managing-agent holding a controlling interest by the extent of his shareholding. We consider that the construction suggested by Mr. Sen which leads to such an unreasonable result and inflicts an unjust injury on the other shareholders is not any proper interpretation of the provision. Besides, there are other grounds why the meaning attributed to the words "is included as referring to "included by the managing-agent cannot be accepted. Suppose the managing-agent includes it in his return but the assessing authority does not include it in the computation of his return but prefers to disallow the deduction in the case of a company. Would that be "inclusion in his profits? Again, suppose the managing-agent does not include it in his return but the assessing authority does, and tax is paid by the managing-agent, would there be no exclusion? These illustrations serve to bring out the anomalies that would arise if it were held that the words "is included meant "is included in his return by the managing-agent.11. This leaves for consideration the meaning that "is included refers to the inclusion under the provisions of the Ordinance. If this meaning were accepted it would not matter whether the managing-agent has or has not included the sum in his return or whether the assessing authorities have or have not done their duty by having the remuneration included in the taxable profits of the managing-agent. If the managing-agent has not done so being under an obligation imposed by the law to include it, the return would be liable to be revised by the assessing officer and if the failure to include the sum was due to any suppression, the managing-agent would, besides having the sum included in his assessable profits, be liable to appropriate penalties for filing a wilfully incorrect return. Similarly, the assessing officer being under a statutory duty to include the sum in the assessment of the managing-agent would, if he failed to do so render the order liable to be revised. The remedy for the failure either of the managing-agent or of the assessing authorities to conform to the requirements of the law certainly cannot be the disallowance of the sum in the computation of the profits of the company.The entirety of this reasoning, it would be noted, proceeds on the basis that the managing agent was liable to include his remuneration in his assessable profits. In such a contingency it stands to reason that neither the default of the managing-agent as an assessee or of the assessing authority to include the sum in the profits of the managing-agent could prejudice the rights of the company in the matter of the computation of itsfor instance the business of the managing-agency was being carried on for or on behalf of a trust of the character indicated by the provision just now read, the remuneration of the managing-agent would not be liable to tax for the reason that it is outside the ambit of the Ordinance and to such a case the terms of proviso (b) to R. 4(1) would not be attracted, with the result that the managing-agent not being liable to tax under the Ordinance on the remuneration derived by him, the company, if it were a controlled company, would not be entitled to the deduction of that remuneration in the computation of its profits. Except in cases where the remuneration received by a managing-agent is not liable to tax under the Ordinance, it is the managing-agent that would be liable to pay tax on his remuneration and notwithstanding that the company is a controlled company the remuneration paid by it to the managing agent would be a permissible deduction by reason of the exception to the opening words of R. 4(1) contained in proviso (b).It is unnecessary for our present purpose to consider whether besides Section 5(1)(b), already referred to, there are other contingencies in which remuneration received by a Director could be held not to be "included" in the latters profits under the Ordinance, since in the case before us it is admitted that the remuneration received by the managing-agent was liable to be included in the computation of his profits for the purposes of the War Profits Tax and therefore neither the fact that the managing-agent did not "include" the sum in his return, nor the default of the assessing authority to correct this error by "including" the sum in his assessment, is any reason for depriving the respondent company of the benefit of proviso (b) to R. 4(1).
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Employees' State Insurance Corporation And Anr Vs. Tata Engineering & Co. Locomotive Co.Ltd. And Anr | apprenticeship was offering b y the employer an opportunity to learn the trade or craft and the other person to acquire such theoretical or practical knowledge that may be obtained in the course of the training. This is the primary feature that is obvious in the agreement.Now coming to the legislative history of our country on the subject, it is interesting to note that more than hundred years back we had the Apprentices Act, 1850 and its preamble says "For better enabling children, and especially orphans and poor children brought up by public charity, to learn trades, crafts and employments, by which, when they come to full age, they may gain a livelihood......". Learning of craft or trade was the essence of the said legislation. This Act was repealed by section 38 of the Apprentices Act, 1961. The object of 1961 Act is to provide for the regulation and control of training of Apprentices in trades and for matters connected therewith. By the definition clause under this Act , namely, section 2(a) "apprentice means a person who is undergoing apprenticeship training in a designated trade in pursuance of a contract of apprenticeship". It is, therefore, inherent in the word apprentice that there is no element of employment as such in a trade or industry but only an adequate well-guarded provision for training to enable the trainee after completion of his course to be suitably absorbed in earning employment as a regular worker. The fact that a trainee may have been absorbed in the company where he is undergoing the training, is not relevant for the purpose of comprehending the content of term.8. Again we find that where the legislature intends to include apprentice in the definition of a worker it has expressly done so. For example, the Industrial Disputes Act, 1947, which is a piece of beneficial labour welfare legislation of considerable amplitude defines workmen under section 2(s) of that Act and includes apprentice in express terms. It is significant that although the legislature was aware of this definition under section 2(s) under the Industrial Disputes Act, 1947, the very following year while passing the Employees State Insurance Act, 1948, it did not choose to include apprentice while defining the word employee under section 2(9) of the Employees State Insurance Act, 1948. Such a deliberate omission on the part of the legislature can be only attributed to the well-know n concept of apprenticeship which the legislature assumed and took note of for the purpose of the Act. This is not to say that if the legislature intended it could not have enlarged the definition of the word employee even to include the apprentice but the legislature did not choose to do so.Even then the question is whether such an apprentice is an employee within the meaning of the term under section 2(9) of the Act. If the answer is yes, he will be governed by the Act and the appellants claim for charging the company with liability for payment of special contribution under Chapter VA of the Act in respect of the apprentice will be justified.9. We may, therefore, turn to the definition of employee under section 2(9 ) of the Act. So far as is material, section 2(9) reads as follows:-" employee means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and-(i) who is directly employed by the principal employer in any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere....."10. It is clear that in order to be an employee a person must be employed for wages in the work of a factory or establishment or in connection with the work of a factory or establishment. Wages is defined under section 2(22) and "means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, were fulfillled and included any payment to an employee in respect of any period of authorised leave, lockout, strike which is not illegal or layoff and other additional remuneration, if any, paid at intervals not exceeding two months, but does not include.... .."11. From the terms of the agreement it is clear that apprentices are more trainees for a particular period or a distinct purpose and the employer is not bound to employ them in their works after the period of training is over. During the apprenticeship they cannot be said to be employed in the work of the company or in connection with the work of the company. That would have been so if they were employed in a regular way by the company. On the other hand the purpose of the engagement under the particular scheme is only to offer training under certain terms and conditions. Besides, the apprentices are not given wages within the meaning of that term under the Act. If they were regular employees under the Act, they would have been entitled to additional remuneration such as daily allowance and other allowances which are available to the regular employees. We are, therefore, unable to hold that the apprentice is an employee within the meaning of section 2 (9) of the Act.12. Incidentally we may note that section 18 of the Apprentices Act, 1961, provides that-"save as otherwise provided in this Act, every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker...."13. The concept of apprenticeship is, therefore, fairly known and has now been clearly recognised in the Apprentices Act. Apart from that, as we have noticed earlier, the terms and conditions under which these apprentices are engaged or not give any scope for holding that they are employed in the work of the company or in connection with its work for wages within the meaning of section 2(9) of the Act. | 0[ds]Without citing all the terms and conditions of the agreement, it is apparent that an apprentice is not in the regular employment of theattach no special significance to the use of the words "serve the company" in the aboveheart of the matter in apprenticeship is, therefore, the dominant object and intent to impart on the part of the employer and to accept on the part of the other person learning under certain agreed terms. That certain payment is made during the apprenticeship, by whatever name called, and that the apprentice has to be under certain rules of discipline do not convert the apprentice to a regular employee under the employer. Such a per son remains a learner and is not an employee. An examination of the provisions of the entire agreement leads us to the conclusion that the principal object with which the parties enter into an agreement of apprenticeship was offering b y the employer an opportunity to learn the trade or craft and the other person to acquire such theoretical or practical knowledge that may be obtained in the course of the training. This is the primary feature that is obvious in theis, therefore, inherent in the word apprentice that there is no element of employment as such in a trade or industry but only an adequate well-guarded provision for training to enable the trainee after completion of his course to be suitably absorbed in earning employment as a regular worker. The fact that a trainee may have been absorbed in the company where he is undergoing the training, is not relevant for the purpose of comprehending the content ofis clear that in order to be an employee a person must be employed for wages in the work of a factory or establishment or in connection with the work of a factory orthey were regular employees under the Act, they would have been entitled to additional remuneration such as daily allowance and other allowances which are available to the regular employees. We are, therefore, unable to hold that the apprentice is an employee within the meaning of section 2 (9) of theconcept of apprenticeship is, therefore, fairly known and has now been clearly recognised in the Apprentices Act. Apart from that, as we have noticed earlier, the terms and conditions under which these apprentices are engaged or not give any scope for holding that they are employed in the work of the company or in connection with its work for wages within the meaning of section 2(9) of the Act. | 0 | 2,306 | 456 | ### 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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apprenticeship was offering b y the employer an opportunity to learn the trade or craft and the other person to acquire such theoretical or practical knowledge that may be obtained in the course of the training. This is the primary feature that is obvious in the agreement.Now coming to the legislative history of our country on the subject, it is interesting to note that more than hundred years back we had the Apprentices Act, 1850 and its preamble says "For better enabling children, and especially orphans and poor children brought up by public charity, to learn trades, crafts and employments, by which, when they come to full age, they may gain a livelihood......". Learning of craft or trade was the essence of the said legislation. This Act was repealed by section 38 of the Apprentices Act, 1961. The object of 1961 Act is to provide for the regulation and control of training of Apprentices in trades and for matters connected therewith. By the definition clause under this Act , namely, section 2(a) "apprentice means a person who is undergoing apprenticeship training in a designated trade in pursuance of a contract of apprenticeship". It is, therefore, inherent in the word apprentice that there is no element of employment as such in a trade or industry but only an adequate well-guarded provision for training to enable the trainee after completion of his course to be suitably absorbed in earning employment as a regular worker. The fact that a trainee may have been absorbed in the company where he is undergoing the training, is not relevant for the purpose of comprehending the content of term.8. Again we find that where the legislature intends to include apprentice in the definition of a worker it has expressly done so. For example, the Industrial Disputes Act, 1947, which is a piece of beneficial labour welfare legislation of considerable amplitude defines workmen under section 2(s) of that Act and includes apprentice in express terms. It is significant that although the legislature was aware of this definition under section 2(s) under the Industrial Disputes Act, 1947, the very following year while passing the Employees State Insurance Act, 1948, it did not choose to include apprentice while defining the word employee under section 2(9) of the Employees State Insurance Act, 1948. Such a deliberate omission on the part of the legislature can be only attributed to the well-know n concept of apprenticeship which the legislature assumed and took note of for the purpose of the Act. This is not to say that if the legislature intended it could not have enlarged the definition of the word employee even to include the apprentice but the legislature did not choose to do so.Even then the question is whether such an apprentice is an employee within the meaning of the term under section 2(9) of the Act. If the answer is yes, he will be governed by the Act and the appellants claim for charging the company with liability for payment of special contribution under Chapter VA of the Act in respect of the apprentice will be justified.9. We may, therefore, turn to the definition of employee under section 2(9 ) of the Act. So far as is material, section 2(9) reads as follows:-" employee means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and-(i) who is directly employed by the principal employer in any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere....."10. It is clear that in order to be an employee a person must be employed for wages in the work of a factory or establishment or in connection with the work of a factory or establishment. Wages is defined under section 2(22) and "means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, were fulfillled and included any payment to an employee in respect of any period of authorised leave, lockout, strike which is not illegal or layoff and other additional remuneration, if any, paid at intervals not exceeding two months, but does not include.... .."11. From the terms of the agreement it is clear that apprentices are more trainees for a particular period or a distinct purpose and the employer is not bound to employ them in their works after the period of training is over. During the apprenticeship they cannot be said to be employed in the work of the company or in connection with the work of the company. That would have been so if they were employed in a regular way by the company. On the other hand the purpose of the engagement under the particular scheme is only to offer training under certain terms and conditions. Besides, the apprentices are not given wages within the meaning of that term under the Act. If they were regular employees under the Act, they would have been entitled to additional remuneration such as daily allowance and other allowances which are available to the regular employees. We are, therefore, unable to hold that the apprentice is an employee within the meaning of section 2 (9) of the Act.12. Incidentally we may note that section 18 of the Apprentices Act, 1961, provides that-"save as otherwise provided in this Act, every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker...."13. The concept of apprenticeship is, therefore, fairly known and has now been clearly recognised in the Apprentices Act. Apart from that, as we have noticed earlier, the terms and conditions under which these apprentices are engaged or not give any scope for holding that they are employed in the work of the company or in connection with its work for wages within the meaning of section 2(9) of the Act.
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Without citing all the terms and conditions of the agreement, it is apparent that an apprentice is not in the regular employment of theattach no special significance to the use of the words "serve the company" in the aboveheart of the matter in apprenticeship is, therefore, the dominant object and intent to impart on the part of the employer and to accept on the part of the other person learning under certain agreed terms. That certain payment is made during the apprenticeship, by whatever name called, and that the apprentice has to be under certain rules of discipline do not convert the apprentice to a regular employee under the employer. Such a per son remains a learner and is not an employee. An examination of the provisions of the entire agreement leads us to the conclusion that the principal object with which the parties enter into an agreement of apprenticeship was offering b y the employer an opportunity to learn the trade or craft and the other person to acquire such theoretical or practical knowledge that may be obtained in the course of the training. This is the primary feature that is obvious in theis, therefore, inherent in the word apprentice that there is no element of employment as such in a trade or industry but only an adequate well-guarded provision for training to enable the trainee after completion of his course to be suitably absorbed in earning employment as a regular worker. The fact that a trainee may have been absorbed in the company where he is undergoing the training, is not relevant for the purpose of comprehending the content ofis clear that in order to be an employee a person must be employed for wages in the work of a factory or establishment or in connection with the work of a factory orthey were regular employees under the Act, they would have been entitled to additional remuneration such as daily allowance and other allowances which are available to the regular employees. We are, therefore, unable to hold that the apprentice is an employee within the meaning of section 2 (9) of theconcept of apprenticeship is, therefore, fairly known and has now been clearly recognised in the Apprentices Act. Apart from that, as we have noticed earlier, the terms and conditions under which these apprentices are engaged or not give any scope for holding that they are employed in the work of the company or in connection with its work for wages within the meaning of section 2(9) of the Act.
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The National Insurance Company Limited Vs. Dayanand Margeppa Pedde & Others | all since it was subject to the endorsement 14(b). In view of the admitted position that an additional premium was paid by the insured, we have no hesitation in holding that the insurance company had undertaken the liability to pay compensation to authorised non fare paying passenger, such as the claimants, who was in the truck as the owner of the goods.38. In the course of arguments, when it transpired that the insurance policy on record has not been proved by the insurance company in accordance with law, we hinted to the learned counsel for the insurance company to consider whether he would like to apply for leading additional evidence in order to prove the insurance policy. The response of learned counsel for the insurance company was not positive. He, on the contrary, placed reliance upon the judgment of the High Court of Madhya Pradesh in Angoribais case to contend that it was not necessary for the insurance company to prove the policy. We have already considered the Angoribais case and held that the said judgment is of no avail to the insurance company. In our opinion, the insurance company cannot take or be allowed to take advantage/benefit of its own wrong. While dealing with the case arising from the motor accident claims petition, in fact, benefit of the wrong, if any, committed by the insurance company while conducting the case, whether procedural or otherwise, should be given to the claimant. The insurance company, in motor accident claims petitions, should be more diligent while dealing with claim petitions and in following the procedure as contemplated by law for proving the documents on which they seek to rely upon. In other words, the procedure contemplated by law should to be followed strictly and if there is any lapse on the part of insurance company in following the procedure laid down by the law, it should not, under any circumstances, be allowed to take benefit thereof.39. In the light of the observations made in the foregoing paragraph, we would now like to consider the submissions of Mr.Bhide that even if the insured had paid additional premium still the claimant cannot take benefit of the same to seek unlimited compensation from the insurance company. He submitted that the additional premium was taken for covering the risk only to the extent of Rs.20,000/- and it was subject to endorsement 14(b). He then submitted that as per the endorsement 14(b), on payment of additional premium, the insurance company had agreed to indemnify the insured against his legal liability other than liability under statute in respect of death or bodily injury to any person not being an employee of the insured or not carried for hire or reward, provided that such person is charterer of the truck. The endorsement 14(b) on which the insurance company is relying upon is not on record as admissible evidence. The endorsement 14(b) is a part of the insurance policy. The endorsement, therefore, cannot be looked into and/or relied upon since the policy itself is not admissible in evidence. In the circumstances the submission of Mr.Bhide that the claimant is at the most entitled for compensation to the extent of Rs.20,000/- or he is not entitled at all because he was not charterer of the truck must be rejected.40. In the present case admittedly the insurance company had agreed to indemnify the insured against his legal liability other than liability under section 147 of the Act of 1988, prior to 1994 by accepting the additional premium. The submission of Mr.Bhide, learned counsel for the insurance company that the claimant, who was travelling in the truck, in view of the judgment of the Supreme Court in Asha Ranis case (supra), is not entitled for any compensation from the insurance company, for the reasons recorded in the foregoing paragraphs must be rejected. The ratio laid down by the Supreme Court in Asha Ranis case cannot be disputed. However, in our opinion, it would not apply to the facts of the present case.41. It is well settled that the policy can always cover higher risk to third party on payment of additional premium. Prior to the amendment in 1994, the insurance company had every right to indemnify the insured against his legal liability other than the liability under section 147 of the Act of 1988 in respect of death or bodily injury to any person not being an employee including the driver and cleaner of the insured and not carried for hire or reward. In the present case, the insurance company had admittedly collected additional premium, and had thereby undertaken liability to non fare paying passenger, who was otherwise not covered by the provisions of section 147. Thus, the right of the claimant, in the present case, to seek compensation would not get affected by the provisions of section 147 of the Act, prior to the amendment of 1994 or by the judgment of the Supreme Court in Asha Ranis case.42. Once having taken this view of the matter it will have to be presumed that the liability of the insurance company is unlimited. It is not open to the insurance company, in such a situation, to contend that their liability is limited having failed to prove the policy in accordance with law or to contend that the claimant is not entitled for compensation since he was not charterer of the truck as contemplated by the endorsement 14(b).43. Insofar as the finding on the issue whether the driver was rash and negligent at the relevant time is concerned, though the learned counsel for the insurance company did not either challenge or address the court, from perusal of evidence and other material on record we are satisfied that the affirmative finding recorded by the Tribunal deserve no interference in the appeal. Insofar as injuries sustained and permanent disability suffered by the claimant is concerned, there is ample evidence on record, as discussed earlier, in support of the findings recorded by the Tribunal in respect thereof. | 0[ds]10. In support of the claim, the claimant also stated how much expenditure he had incurred till his evidence was recorded, and how much more expenditure he would require in future, to which we are not making reference in view of the fact that the learned counsel for the insurance company did not address us on the quantum of compensation. However, at this stage we observe that there is sufficient material on record which justify the total amount of compensation awarded by the Tribunal, and, in our opinion, it deserves to be confirmed. In the cross examination, it was stated that alongwith him there were 5 other persons in the truck including the driver. He, however, specifically denied the suggestion that he was not carrying any goods with him in the truck.The judgment of the Madhya Pradesh High Court in Angoribais case, in our opinion, is of no avail to the insurance company for more than one reason. In the present case, additional premium was paid by the insured to the insurance company for covering the risk of non fare paying passenger which was not the case in Angoribais case. Moreover, the claimant in the present case, for the reasons recorded in the judgment, was not traveling in the truck as gratuitous/unauthorised passenger. In Angoribais case the deceased was travelling in a goods carriage as a passenger, apart from the fact that no additional premium was paid by the insured. It is against this backdropof policy was held to be not fatal in that case. In our opinion, having regard to the facts of the present case, the judgment in Angoribais case, pressed into service is of no avail to the insurance company.The Claims Tribunal, as contemplated by section 169 of the Act of 1988, has all the powers of a civil court for the purpose of taking evidence, production of documents etc. In view thereof, we deem it appropriate to look into the relevant provisions of the Code of Civil Procedure (for short the Code). Rule 3 of Order 8 of the Code of Civil Procedure clearly provides that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal with specifically with each allegation of fact of which he does not admit the truth, except damages. Similarly, Rule 5(1) provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted. Thus, the defendant is bound to deal specifically with each allegation of fact not admitted by him; he must either deny or state definitely that the substance of each allegation is not admitted. It does not of course mean that every allegation in the plaint should be reproduced at length in the written statement for the purpose of denial. However, the main allegation which forms the foundation of the suit should be dealt with in that way and expressly denied. As a matter of fact, such denial should be taken up separately as far as possible and they should either admit or deny or state definitely that he does not admit. As provided under Order 8 Rule 5, the facts not specifically dealt with or denied will be otherwise taken to be admitted. Even where denial of fact is not specific but evasive or ambiguous or general in nature the said fact shall be taken to be admitted. In such event, the admission itself being proof, no other proof is necessary. (See Bodat and Co. Vs. East India Trading Co. AIR 1964 SC 538 (Para 11) and the judgment of this court in Sambhaji Laxmanrao Pawar Vs. Abdul Wahed s/o Rahmatullah (1995) 1 Mah.L.J.22, 27). In other words, where the denial is general, evasive, vague and not specific or where there is no denial, the allegations made in the plaint shall be taken to be admitted. (See Radhabai Krishnanand Vernekar Vs. Gourawwabai Sharnappa BukkaOthers 2001 (2) Bombay Law Reporter 241 (Bom.)). Thus, the law is well settled that if there is no specific denial of the fact/allegation, which forms foundation of the suit/claim petition, such fact/allegation shall be taken to be admitted and in that event there is no duty cast on the plaintiff to prove that allegation. (See Sushil Kumar Vs. Rakesh Kumar AIR 2004 SC 230 ). Keeping this position of law in view, the question raised by the insurance company in this appeal will have to be examined.30. In the present case the learned counsel for the insurance company submitted that even if the policy was not exhibited or contents thereof were proved still the insurance company can rely upon the policy in view of the judgment of the High Court of Madhya Pradesh in Angoribais case, wherein it was held that it was not necessary to prove the policy. The provisions of Rule 3 and 5 of Order 8 of the Code of Civil Procedure provide that the opponent/defendant is bound to deny/dealt with specifically in the written statement every allegation and more particularly the allegation which forms the foundation of the claim petition. In the present case, the claimant, in the claim petition, has specifically stated that he boarded the truck at Mumbai with the goods, which is a foundation of the claim. On the basis of this averment in the petition, he contends that he was authorised non fare paying passenger. Admittedly, there is no specific denial of this averment and/or it was not dealt with in the written statement. After the claimant amended his pleading the insurance company had ample opportunity to file its additional written statement but they fail to do so.Out of the three documents placed on record with the application atthe two documents i.e. serial no.(b) and (c) were admitted by the learned counsel for the insurance company. Therefore, in the margin of the application atthe Tribunal marked the documents at serial no.(b) and (c) asand 44 respectively. We have perused the statement of Gyanu Darekar dated 21.2.1990 which was marked asThis seems to be a certified copy of the FIR. In the FIR, Gyanu Darekar had stated that paper/card board boxes were there in the truck. The other document at serial no.(c) was a certified copy of the panchnama. When we perused the panchnama, we did not find any marking much less the marking asThere is a statement of the claimant dated 18.2.1980 on record. The said statement was marked asThe claimant was confronted with certain portions of that statement and they were marked as A to G. From the actual marking of the documents asand 44 and the marking made in the margin (asand 44) of the list of documents/application dated 12.1.2001it is clear that the learned Judge while marking the documents undoubtedly committed some error and seems to have wrongly marked the statement of the claimant asinstead of marking the panchnama aswhich was admitted by the advocate for the insurance company or the other way round. That apart, the learned member of the Tribunal in paragraph 10 of the impugned judgment has made reference only to the statement of the claimantand completely overlooked the other two documents, namely, the FIRand the panchnama. Both these documents, if read alongwith the statement of the claimant, in our opinion, would clearly show that the paper/card board boxes, as claimed/stated by the claimant, were there in the truck when it met with an accident. It is not the case of the insurance company, either in their written statement or in the cross of the claimant, that the goods were not of the claimant or they were of any other party. The learned Member of the Tribunal has not made any reference to these documents while recording the finding that the claimant was not travelling at the relevant time alongwith the goods.The learned member of the Tribunal in the judgment as well as while recording the evidence has used the expression paper cartons. The expression used in the FIRand in the panchnama, in Marathi, for describing the goods is Kagdi Puthyache Khokecartons or boxes). We have also perused the statement of the claimant dated 18.2.1990, which is marked asIt is a short statement, which, it seems, was recorded immediately after the occurrence. That could be the reason why it was not giving all the details. In any case, the omission on the part of the claimant in making reference to theboxes in this statement (dated 18.2.1990), in our opinion, looses its significance in view of thepleadings, and contents of the FIR and the panchnama, which clearly show that theboxes were there in the truck and they were of the claimant. In the circumstances we set aside the finding recorded by the tribunal in paragraph 10 of the judgment holding that there is no evidence to show that at the relevant time the claimant was travelling alongwith his goods. We are satisfied that the claimant was in the truck with his goods.34. Even if it is assumed that the claimant was not travelling in the truck alongwith his goods, as submitted by the learned counsel for the appellant, the case that he was to load 70 salt bags at Solapur for carrying them to Latur, as stated by the claimant in the claim petition and in his examination in chief, cannot be overlooked. As a matter of fact the case regarding salt bags had not been specifically challenged/denied in the cross/written statement by the insurance company. The claimant states that he boarded the truck as hirer with clear understanding and/or agreement with the driver of the truck that he would load 70 salt bags at Solapur for carrying them to Latur. Thus, it is clear that he entered into a contract of carriage of the goods in this manner, the contract was of composite character and hence it cannot be said that he was not travelling in the truck at the relevant time as the owner of the goods. At this stage it would be relevant to reproduce the observations made by this court in Nasibdar Suba Fakirs case (supra) wherein this court was considering somewhat similar situation and after considering the facts on record rejected the similar contention that the claimant was not accompanying the goods and must be treated to be one not being carried for reward. The relevant observations read thus:.... .... ....But deeper examination of law in general would show that this is not the correct analysis of the law. It is seen above that when the owner of the truck hires a vehicle for the transport of his goods, it is imperative, for him that someone should accompany the goods and go in the vehicle as a passenger along with the goods. Likewise, it becomes necessary that someone should go as passenger in the first instance for bringing the goods from some place and carrying them to some other place. This may be for loading or unloading of the goods or for many other purposes incidental to the transportation of the goods. For instance, owner of the goods X may be having his office in Bombay. He wants his goods to be transported. The goods may be lying in Thana. He would engage a truck in Bombay, but for loading the goods from Thana he would require some employees. He has employees in his office at Bombay. Naturally, he would take those employees to Thana. The goods would be loaded in the truck by the employees and the goods would be brought back to Bombay. While coming back, naturally the employees would accompany the goods as passengers in the truck. Their coming back would be necessary so that the goods may be unloaded in Bombay. When the owner of the goods enters into the contract of the carriage of goods in this manner the contract is of a composite character. The contract is not for carriage of the goods; the contract is for safe and convenient transport of the goods from the beginning till the end and the process of contract involves loading and unloading and safe carriage. For all this purpose, the accompaniment of some other persons, other than the driver of the vehicle, along with the vehicle is imperative. This is a matter of common knowledge and of everyday life. Elaborate evidence is unnecessary for such conclusion. The doctrine of judicial notice looks after the evidential requirement for such judicial conclusion. The point is that the consideration which is paid by the owner of the goods for the transport of the goods is a composite consideration. It is a consideration for the transport of goods as well as for the incidental transport of the passengers accompanying the goods or those going for fetching the goods. If this is so, then the owner of the goods can legitimately contend that though he was having his office in Bombay, he was going to Thana for bringing his own goods and he entered into a contract with the owner of the truck by agreeing to pay the composite consideration; consideration for carriage of the goods and consideration for carriage of the passenger necessary for supervision etc., of the goods. He can further legitimately contend that if his employees could be legitimate passengers of the vehicle for supervising the transport of the goods, he himself could as well be a passenger whose presence on the vehicle at the relevant time is as much necessary and as much part of a contract for which he paid the consideration. Once it is accepted that the consideration paid by him included the consideration for his own carriage, it cannot be said that he was not carried by the driver of the truck for reward at the relevant time.The plea that the claimant was not accompanying the goods and hence must be deemed to be one not being carried for reward need not detain us long. The plea is in fact answered by the above analytical discussion. When a vehicle is hired for bringing goods from a place away from the place of office or residence of the hirer, as also of the owner of the vehicle, it is natural that the hirer and/or his employees will, quite often, go by the vehicle to the place where the relevant goods are lying. Their transport to that place is as much a part of the contract and, hence, for reward or consideration.(emphasis supplied)35. The insurance company vide their application dated 10.2.2004 placed on record two documents, namely, the insurance policy and a photocopy of the statement of the claimant recorded by the police on 18.2.1990. The advocate for the claimant did not admit these documents and hence they were not marked as Exhibits. Mr.Bhide, learned counsel for the insurance company made a feeble attempt in submitting that though the documents were not exhibited by the court, the application dated 10.2.2004 itself was marked asIn the course of arguments, when it transpired that the insurance policy on record has not been proved by the insurance company in accordance with law, we hinted to the learned counsel for the insurance company to consider whether he would like to apply for leading additional evidence in order to prove the insurance policy. The response of learned counsel for the insurance company was not positive. He, on the contrary, placed reliance upon the judgment of the High Court of Madhya Pradesh in Angoribais case to contend that it was not necessary for the insurance company to prove the policy. We have already considered the Angoribais case and held that the said judgment is of no avail to the insurance company. In our opinion, the insurance company cannot take or be allowed to take advantage/benefit of its own wrong. While dealing with the case arising from the motor accident claims petition, in fact, benefit of the wrong, if any, committed by the insurance company while conducting the case, whether procedural or otherwise, should be given to the claimant. The insurance company, in motor accident claims petitions, should be more diligent while dealing with claim petitions and in following the procedure as contemplated by law for proving the documents on which they seek to rely upon. In other words, the procedure contemplated by law should to be followed strictly and if there is any lapse on the part of insurance company in following the procedure laid down by the law, it should not, under any circumstances, be allowed to take benefit thereof.39. In the light of the observations made in the foregoing paragraph, we would now like to consider the submissions of Mr.Bhide that even if the insured had paid additional premium still the claimant cannot take benefit of the same to seek unlimited compensation from the insurance company. He submitted that the additional premium was taken for covering the risk only to the extent of Rs.20,000/and it was subject to endorsement 14(b). He then submitted that as per the endorsement 14(b), on payment of additional premium, the insurance company had agreed to indemnify the insured against his legal liability other than liability under statute in respect of death or bodily injury to any person not being an employee of the insured or not carried for hire or reward, provided that such person is charterer of the truck. The endorsement 14(b) on which the insurance company is relying upon is not on record as admissible evidence. The endorsement 14(b) is a part of the insurance policy. The endorsement, therefore, cannot be looked into and/or relied upon since the policy itself is not admissible in evidence. In the circumstances the submission of Mr.Bhide that the claimant is at the most entitled for compensation to the extent of Rs.20,000/or he is not entitled at all because he was not charterer of the truck must be rejected.40. In the present case admittedly the insurance company had agreed to indemnify the insured against his legal liability other than liability under section 147 of the Act of 1988, prior to 1994 by accepting the additional premium. The submission of Mr.Bhide, learned counsel for the insurance company that the claimant, who was travelling in the truck, in view of the judgment of the Supreme Court in Asha Ranis case (supra), is not entitled for any compensation from the insurance company, for the reasons recorded in the foregoing paragraphs must be rejected. The ratio laid down by the Supreme Court in Asha Ranis case cannot be disputed. However, in our opinion, it would not apply to the facts of the present case.It is well settled that the policy can always cover higher risk to third party on payment of additional premium. Prior to the amendment in 1994, the insurance company had every right to indemnify the insured against his legal liability other than the liability under section 147 of the Act of 1988 in respect of death or bodily injury to any person not being an employee including the driver and cleaner of the insured and not carried for hire or reward. In the present case, the insurance company had admittedly collected additional premium, and had thereby undertaken liability to non fare paying passenger, who was otherwise not covered by the provisions of section 147. Thus, the right of the claimant, in the present case, to seek compensation would not get affected by the provisions of section 147 of the Act, prior to the amendment of 1994 or by the judgment of the Supreme Court in Asha Ranis case.42. Once having taken this view of the matter it will have to be presumed that the liability of the insurance company is unlimited. It is not open to the insurance company, in such a situation, to contend that their liability is limited having failed to prove the policy in accordance with law or to contend that the claimant is not entitled for compensation since he was not charterer of the truck as contemplated by the endorsement 14(b).43. Insofar as the finding on the issue whether the driver was rash and negligent at the relevant time is concerned, though the learned counsel for the insurance company did not either challenge or address the court, from perusal of evidence and other material on record we are satisfied that the affirmative finding recorded by the Tribunal deserve no interference in the appeal. Insofar as injuries sustained and permanent disability suffered by the claimant is concerned, there is ample evidence on record, as discussed earlier, in support of the findings recorded by the Tribunal in respect thereof. | 0 | 10,394 | 3,778 | ### 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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all since it was subject to the endorsement 14(b). In view of the admitted position that an additional premium was paid by the insured, we have no hesitation in holding that the insurance company had undertaken the liability to pay compensation to authorised non fare paying passenger, such as the claimants, who was in the truck as the owner of the goods.38. In the course of arguments, when it transpired that the insurance policy on record has not been proved by the insurance company in accordance with law, we hinted to the learned counsel for the insurance company to consider whether he would like to apply for leading additional evidence in order to prove the insurance policy. The response of learned counsel for the insurance company was not positive. He, on the contrary, placed reliance upon the judgment of the High Court of Madhya Pradesh in Angoribais case to contend that it was not necessary for the insurance company to prove the policy. We have already considered the Angoribais case and held that the said judgment is of no avail to the insurance company. In our opinion, the insurance company cannot take or be allowed to take advantage/benefit of its own wrong. While dealing with the case arising from the motor accident claims petition, in fact, benefit of the wrong, if any, committed by the insurance company while conducting the case, whether procedural or otherwise, should be given to the claimant. The insurance company, in motor accident claims petitions, should be more diligent while dealing with claim petitions and in following the procedure as contemplated by law for proving the documents on which they seek to rely upon. In other words, the procedure contemplated by law should to be followed strictly and if there is any lapse on the part of insurance company in following the procedure laid down by the law, it should not, under any circumstances, be allowed to take benefit thereof.39. In the light of the observations made in the foregoing paragraph, we would now like to consider the submissions of Mr.Bhide that even if the insured had paid additional premium still the claimant cannot take benefit of the same to seek unlimited compensation from the insurance company. He submitted that the additional premium was taken for covering the risk only to the extent of Rs.20,000/- and it was subject to endorsement 14(b). He then submitted that as per the endorsement 14(b), on payment of additional premium, the insurance company had agreed to indemnify the insured against his legal liability other than liability under statute in respect of death or bodily injury to any person not being an employee of the insured or not carried for hire or reward, provided that such person is charterer of the truck. The endorsement 14(b) on which the insurance company is relying upon is not on record as admissible evidence. The endorsement 14(b) is a part of the insurance policy. The endorsement, therefore, cannot be looked into and/or relied upon since the policy itself is not admissible in evidence. In the circumstances the submission of Mr.Bhide that the claimant is at the most entitled for compensation to the extent of Rs.20,000/- or he is not entitled at all because he was not charterer of the truck must be rejected.40. In the present case admittedly the insurance company had agreed to indemnify the insured against his legal liability other than liability under section 147 of the Act of 1988, prior to 1994 by accepting the additional premium. The submission of Mr.Bhide, learned counsel for the insurance company that the claimant, who was travelling in the truck, in view of the judgment of the Supreme Court in Asha Ranis case (supra), is not entitled for any compensation from the insurance company, for the reasons recorded in the foregoing paragraphs must be rejected. The ratio laid down by the Supreme Court in Asha Ranis case cannot be disputed. However, in our opinion, it would not apply to the facts of the present case.41. It is well settled that the policy can always cover higher risk to third party on payment of additional premium. Prior to the amendment in 1994, the insurance company had every right to indemnify the insured against his legal liability other than the liability under section 147 of the Act of 1988 in respect of death or bodily injury to any person not being an employee including the driver and cleaner of the insured and not carried for hire or reward. In the present case, the insurance company had admittedly collected additional premium, and had thereby undertaken liability to non fare paying passenger, who was otherwise not covered by the provisions of section 147. Thus, the right of the claimant, in the present case, to seek compensation would not get affected by the provisions of section 147 of the Act, prior to the amendment of 1994 or by the judgment of the Supreme Court in Asha Ranis case.42. Once having taken this view of the matter it will have to be presumed that the liability of the insurance company is unlimited. It is not open to the insurance company, in such a situation, to contend that their liability is limited having failed to prove the policy in accordance with law or to contend that the claimant is not entitled for compensation since he was not charterer of the truck as contemplated by the endorsement 14(b).43. Insofar as the finding on the issue whether the driver was rash and negligent at the relevant time is concerned, though the learned counsel for the insurance company did not either challenge or address the court, from perusal of evidence and other material on record we are satisfied that the affirmative finding recorded by the Tribunal deserve no interference in the appeal. Insofar as injuries sustained and permanent disability suffered by the claimant is concerned, there is ample evidence on record, as discussed earlier, in support of the findings recorded by the Tribunal in respect thereof.
### Response:
0
### Explanation:
insurance policy and a photocopy of the statement of the claimant recorded by the police on 18.2.1990. The advocate for the claimant did not admit these documents and hence they were not marked as Exhibits. Mr.Bhide, learned counsel for the insurance company made a feeble attempt in submitting that though the documents were not exhibited by the court, the application dated 10.2.2004 itself was marked asIn the course of arguments, when it transpired that the insurance policy on record has not been proved by the insurance company in accordance with law, we hinted to the learned counsel for the insurance company to consider whether he would like to apply for leading additional evidence in order to prove the insurance policy. The response of learned counsel for the insurance company was not positive. He, on the contrary, placed reliance upon the judgment of the High Court of Madhya Pradesh in Angoribais case to contend that it was not necessary for the insurance company to prove the policy. We have already considered the Angoribais case and held that the said judgment is of no avail to the insurance company. In our opinion, the insurance company cannot take or be allowed to take advantage/benefit of its own wrong. While dealing with the case arising from the motor accident claims petition, in fact, benefit of the wrong, if any, committed by the insurance company while conducting the case, whether procedural or otherwise, should be given to the claimant. The insurance company, in motor accident claims petitions, should be more diligent while dealing with claim petitions and in following the procedure as contemplated by law for proving the documents on which they seek to rely upon. In other words, the procedure contemplated by law should to be followed strictly and if there is any lapse on the part of insurance company in following the procedure laid down by the law, it should not, under any circumstances, be allowed to take benefit thereof.39. In the light of the observations made in the foregoing paragraph, we would now like to consider the submissions of Mr.Bhide that even if the insured had paid additional premium still the claimant cannot take benefit of the same to seek unlimited compensation from the insurance company. He submitted that the additional premium was taken for covering the risk only to the extent of Rs.20,000/and it was subject to endorsement 14(b). He then submitted that as per the endorsement 14(b), on payment of additional premium, the insurance company had agreed to indemnify the insured against his legal liability other than liability under statute in respect of death or bodily injury to any person not being an employee of the insured or not carried for hire or reward, provided that such person is charterer of the truck. The endorsement 14(b) on which the insurance company is relying upon is not on record as admissible evidence. The endorsement 14(b) is a part of the insurance policy. The endorsement, therefore, cannot be looked into and/or relied upon since the policy itself is not admissible in evidence. In the circumstances the submission of Mr.Bhide that the claimant is at the most entitled for compensation to the extent of Rs.20,000/or he is not entitled at all because he was not charterer of the truck must be rejected.40. In the present case admittedly the insurance company had agreed to indemnify the insured against his legal liability other than liability under section 147 of the Act of 1988, prior to 1994 by accepting the additional premium. The submission of Mr.Bhide, learned counsel for the insurance company that the claimant, who was travelling in the truck, in view of the judgment of the Supreme Court in Asha Ranis case (supra), is not entitled for any compensation from the insurance company, for the reasons recorded in the foregoing paragraphs must be rejected. The ratio laid down by the Supreme Court in Asha Ranis case cannot be disputed. However, in our opinion, it would not apply to the facts of the present case.It is well settled that the policy can always cover higher risk to third party on payment of additional premium. Prior to the amendment in 1994, the insurance company had every right to indemnify the insured against his legal liability other than the liability under section 147 of the Act of 1988 in respect of death or bodily injury to any person not being an employee including the driver and cleaner of the insured and not carried for hire or reward. In the present case, the insurance company had admittedly collected additional premium, and had thereby undertaken liability to non fare paying passenger, who was otherwise not covered by the provisions of section 147. Thus, the right of the claimant, in the present case, to seek compensation would not get affected by the provisions of section 147 of the Act, prior to the amendment of 1994 or by the judgment of the Supreme Court in Asha Ranis case.42. Once having taken this view of the matter it will have to be presumed that the liability of the insurance company is unlimited. It is not open to the insurance company, in such a situation, to contend that their liability is limited having failed to prove the policy in accordance with law or to contend that the claimant is not entitled for compensation since he was not charterer of the truck as contemplated by the endorsement 14(b).43. Insofar as the finding on the issue whether the driver was rash and negligent at the relevant time is concerned, though the learned counsel for the insurance company did not either challenge or address the court, from perusal of evidence and other material on record we are satisfied that the affirmative finding recorded by the Tribunal deserve no interference in the appeal. Insofar as injuries sustained and permanent disability suffered by the claimant is concerned, there is ample evidence on record, as discussed earlier, in support of the findings recorded by the Tribunal in respect thereof.
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Central Bank Of India Vs. Jagbir Singh | occurred, after the vehicle is purchased with loan sanctioned to the owner of the vehicle. In Pradeep Kumar Jain v. Citi Bank and another (1999) 6 SCC 361 ), discussing Section 146 of Motor Vehicles Act, 1988, this Court has held as under: - “5. Under Section 146 of the Act there is an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter XI of the Act. If any vehicle is driven without obtaining such an insurance policy it is punishable under Section 196 of the Act. The policy may be comprehensive or only covering third parties or liability may be limited. Thus when the obligation was upon the appellant to obtain such a policy, merely by passing of a cheque to be sent to the insurance company would not obviate his liability to obtain such policy. It is not clear on the record as to the nature of the policy that had been obtained by the appellant earlier when he purchased the vehicle and which was to be renewed from time to time. It is also not clear whether even in the case of renewal, a fresh application has to be made by the appellant or on the old policy itself an endorsement would have been made. In the absence of such material on record, and the nature of the insurance policy or any anxiety shown by the appellant in obtaining the policy as he could not ply such vehicle without such an insurance policy being obtained, he cannot claim that merely because he had passed on the cheques, the entire liability to pay all damages arising would be upon the first respondent.” 8. A Three-Judge Bench of this Court, in HDFC Bank Ltd. v. Kumari Reshma and others (AIR 2015 SC 290 ), has further explained the law relating to liability of the creditor bank, and it has been held that the liability of such bank to get the vehicle insured is only till the vehicle comes out on the road. In other words, the creditor bank is not liable to get renewed the insurance policy on behalf of the owner of the vehicle from time to time. Paragraphs 23, 24 and relevant part of paragraph 25 of that judgment are reproduced as under: - “23. In the present case, as the facts have been unfurled, the appellant bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the bank. The borrower had the initial obligation to insure the vehicle, but without insurance he plied the vehicle on the road and the accident took place. Had the vehicle been insured, the insurance company would have been liable and not the owner. There is no cavil over the fact that the vehicle was subject of an agreement of hypothecation and was in possession and control under the respondent no.2. The High Court has proceeded both in the main judgment as well as in the review that the financier steps into the shoes of the owner. Reliance placed on Mohan Benefit Pvt. Ltd. v. Kachraji Rayamalji & ors. [(1997) 9 SCC 103] , in our considered opinion, was inappropriate because in the instant case all the documents were filed by the bank. In the said case, two-Judge Bench of this Court had doubted the relationship between the appellant and the respondent therein from the hire-purchase agreement. Be that as it may, the said case rested on its own facts. The decision in Rajasthan State Road Transport Corporation v. Kailash Nath Kothari & others [(1997) 7 SCC 481] , the Court fastened the liability on the Corporation regard being had to the definition of the ‘owner’ who was in control and possession of the vehicle. Similar to the effect is the judgment in National Insurance Co. Ltd. v. Deepa Devi & ors. [(2008) 1 SCC 414] . Be it stated, in the said case the Court ruled that the State shall be liable to pay the amount of compensation to the claimant and not the registered owner of the vehicle and the insurance company. In the case of Godavari Finance Company v. Degala Satyanarayanamma and others [(2008) 5 SCC 107] , the learned Judges distinguished the ratio in Deepa Devi (supra) on the ground that it hinged on its special facts and fastened the liability on the insurer. In Uttar Pradesh State Road Transport Corporation v. Kulsum and others [(2011) 8 SCC 142] , the principle stated in Kailash Nath Kothari (supra) was distinguished and taking note of the fact that at the relevant time, the vehicle in question was insured with it and the policy was very much in force and hence, the insurer was liable to indemnify the owner.24. On a careful analysis of the principles stated in the foregoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is violation of the terms of the policy under which the insurer can seek exoneration.25. In Purnya Kala Devi v. State of Assam & Anr. [2014 (4) SCALE 586 ], a three-Judge Bench has categorically held that the person in control and possession of the vehicle under an agreement of hypothecation should be construed as the owner and not alone the registered owner and thereafter the Court has adverted to the legislative intention, and ruled that the registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control……..” 9. In view of the above discussion and the principle of law laid down by this Court, the impugned order passed by the NCDRC and the orders passed by the State Consumer Disputes Redressal Commission, Haryana and the District Consumer Disputes Redressal Forum, Jhajjar, are liable to be set aside. | 1[ds]In our opinion, the time taken by the appellant bank in seeking permission to file the revision petition, as the matter had to be processed at various levels, cannot be said to have been not sufficiently explained for the purpose of condonation of delay. Therefore, the impugned order dismissing the revision petition, in the present case, cannot be sustained.7. On the merits of the case, we find that none of the authorities under the Consumer Protection Act, 1986, in the case at hand has taken note of the law laid down by this Court on the issue of liability of the financer, in the cases of accident occurred, after the vehicle is purchased with loan sanctioned to the owner of the vehicle.In view of the above discussion and the principle of law laid down by this Court, the impugned order passed by the NCDRC and the orders passed by the State Consumer Disputes Redressal Commission, Haryana and the District Consumer Disputes Redressal Forum, Jhajjar, are liable to be set aside. | 1 | 1,930 | 194 | ### 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:
occurred, after the vehicle is purchased with loan sanctioned to the owner of the vehicle. In Pradeep Kumar Jain v. Citi Bank and another (1999) 6 SCC 361 ), discussing Section 146 of Motor Vehicles Act, 1988, this Court has held as under: - “5. Under Section 146 of the Act there is an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter XI of the Act. If any vehicle is driven without obtaining such an insurance policy it is punishable under Section 196 of the Act. The policy may be comprehensive or only covering third parties or liability may be limited. Thus when the obligation was upon the appellant to obtain such a policy, merely by passing of a cheque to be sent to the insurance company would not obviate his liability to obtain such policy. It is not clear on the record as to the nature of the policy that had been obtained by the appellant earlier when he purchased the vehicle and which was to be renewed from time to time. It is also not clear whether even in the case of renewal, a fresh application has to be made by the appellant or on the old policy itself an endorsement would have been made. In the absence of such material on record, and the nature of the insurance policy or any anxiety shown by the appellant in obtaining the policy as he could not ply such vehicle without such an insurance policy being obtained, he cannot claim that merely because he had passed on the cheques, the entire liability to pay all damages arising would be upon the first respondent.” 8. A Three-Judge Bench of this Court, in HDFC Bank Ltd. v. Kumari Reshma and others (AIR 2015 SC 290 ), has further explained the law relating to liability of the creditor bank, and it has been held that the liability of such bank to get the vehicle insured is only till the vehicle comes out on the road. In other words, the creditor bank is not liable to get renewed the insurance policy on behalf of the owner of the vehicle from time to time. Paragraphs 23, 24 and relevant part of paragraph 25 of that judgment are reproduced as under: - “23. In the present case, as the facts have been unfurled, the appellant bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the bank. The borrower had the initial obligation to insure the vehicle, but without insurance he plied the vehicle on the road and the accident took place. Had the vehicle been insured, the insurance company would have been liable and not the owner. There is no cavil over the fact that the vehicle was subject of an agreement of hypothecation and was in possession and control under the respondent no.2. The High Court has proceeded both in the main judgment as well as in the review that the financier steps into the shoes of the owner. Reliance placed on Mohan Benefit Pvt. Ltd. v. Kachraji Rayamalji & ors. [(1997) 9 SCC 103] , in our considered opinion, was inappropriate because in the instant case all the documents were filed by the bank. In the said case, two-Judge Bench of this Court had doubted the relationship between the appellant and the respondent therein from the hire-purchase agreement. Be that as it may, the said case rested on its own facts. The decision in Rajasthan State Road Transport Corporation v. Kailash Nath Kothari & others [(1997) 7 SCC 481] , the Court fastened the liability on the Corporation regard being had to the definition of the ‘owner’ who was in control and possession of the vehicle. Similar to the effect is the judgment in National Insurance Co. Ltd. v. Deepa Devi & ors. [(2008) 1 SCC 414] . Be it stated, in the said case the Court ruled that the State shall be liable to pay the amount of compensation to the claimant and not the registered owner of the vehicle and the insurance company. In the case of Godavari Finance Company v. Degala Satyanarayanamma and others [(2008) 5 SCC 107] , the learned Judges distinguished the ratio in Deepa Devi (supra) on the ground that it hinged on its special facts and fastened the liability on the insurer. In Uttar Pradesh State Road Transport Corporation v. Kulsum and others [(2011) 8 SCC 142] , the principle stated in Kailash Nath Kothari (supra) was distinguished and taking note of the fact that at the relevant time, the vehicle in question was insured with it and the policy was very much in force and hence, the insurer was liable to indemnify the owner.24. On a careful analysis of the principles stated in the foregoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is violation of the terms of the policy under which the insurer can seek exoneration.25. In Purnya Kala Devi v. State of Assam & Anr. [2014 (4) SCALE 586 ], a three-Judge Bench has categorically held that the person in control and possession of the vehicle under an agreement of hypothecation should be construed as the owner and not alone the registered owner and thereafter the Court has adverted to the legislative intention, and ruled that the registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control……..” 9. In view of the above discussion and the principle of law laid down by this Court, the impugned order passed by the NCDRC and the orders passed by the State Consumer Disputes Redressal Commission, Haryana and the District Consumer Disputes Redressal Forum, Jhajjar, are liable to be set aside.
### Response:
1
### Explanation:
In our opinion, the time taken by the appellant bank in seeking permission to file the revision petition, as the matter had to be processed at various levels, cannot be said to have been not sufficiently explained for the purpose of condonation of delay. Therefore, the impugned order dismissing the revision petition, in the present case, cannot be sustained.7. On the merits of the case, we find that none of the authorities under the Consumer Protection Act, 1986, in the case at hand has taken note of the law laid down by this Court on the issue of liability of the financer, in the cases of accident occurred, after the vehicle is purchased with loan sanctioned to the owner of the vehicle.In view of the above discussion and the principle of law laid down by this Court, the impugned order passed by the NCDRC and the orders passed by the State Consumer Disputes Redressal Commission, Haryana and the District Consumer Disputes Redressal Forum, Jhajjar, are liable to be set aside.
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N. Nagendra Rao & Co Vs. The State Of A.P | the right of the owner to demand the return of the property or the obligation of the Government to return it. 30. Similarly, in Smt. Basava Kom Dyamagouda Patil v. State of Mysore and another, AIR 1977 SC 1749 , the question arose regarding powers of the Court in indemnifying the owner of the property which is destroyed or lost whilst in the custody of the Court. The goods were seized from the possession of the accused. They were placed in the custody of the Court. When the appeal of the accused was allowed and the goods were directed to be returned it was found that they had been lost. The court, in the circumstance, held :- "It is common ground that these articles belonged to the complainant/ appellant and had been stolen from her house. It is, therefore, clear that the articles were the subject-matter of an offence. This fact, therefore, is sufficient to clothe the Magistrate with the power to pass an order for return of the property. Where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. We do not agree with the view of the High Court that once the articles are not available with the Court, the Court has no power to do anything in the matter and is utterly helpless. 31. Therefore, where the goods confiscated or seized are required to be returned either under orders of the Court or because of the provision in the Act, this Court has not countenanced the objection that the goods having been lost or destroyed the owner of the goods had no remedy in private law and the Court was not empowered to pass an order or grant decree for payment of the value of goods. Public policy requires the court to exercise the power in private law to compensate the owner where the damage or loss is suffered by the negligence of officers of the State in respect of cause of action for which suits are maintainable in civil court. Since the seizure and confiscation of appellants goods was not in exercise of power which could be considered to be act of State of which no cognizance could be taken by the civil court, the suit of the appellant could be dismissed. In either view of the matter, the judgment and order of the High Court cannot be upheld.32. Before parting with this case, the Court shall be failing in its duty, if it is not brought to the attention of the appropriate authority that for more than hundred years, the law of vicarious liability of the State for negligence of its officers has been swinging from one direction to other. Result of all this has been uncertainly of law, multiplication of litigation, waste of money of common man and energy and time of the courts. Federal of Torts Claims Act was enacted in America in 1946. Crown Proceedings Act was enacted in England in 1947. As far back as 1956 the First Law Commission in its Report on the liability of the State in tort, after exhaustive study of the law and legislations in England, America, Australia and France, concluded:- "In the context of a welfare State it is necessary to establish a just relation between the rights of the individual and the responsibilities of the State. While the responsibilities of the State have increased, the increase in its activities has led to a greater impact on the citizen. For the establishment of a just economic order industries are nationalised. Public utilities are taken over by the State. The State has launched huge irrigation and flood control schemes. The production of electricity has practically become a Government concern. The State has established and intends to establish big factorise and manage them. The State carries on works departmentally. The doctrine of laizzez faire - which leaves every one to look after himself to his best advantage has yielded place to the ideal of a welfare State - which implies that the State takes care of those who are unable to help themselves. The Commission after referring to various provisions in the Legislation of other countries observed :- "The old distinction between sovereign and non-sovereign functions or governmental and non-governmental functions should no longer be invoked to determine the liability of the State. As Professor Friendman observes :- "It is now increasingly necessary to abandon the lingering fiction of a legally indivisible State, and of a feudal conception of the Crown, and to substitute for it the principle of legal liability where the State, either directly or through incorporation public authorities engages in activities of a commercial, industrial or managerial character. The proper test is not an impracticable distinction between governmental and non-governmental functions, but the nature and form of the activity in question. Yet unfortunately the law has not seen the light of the day even though in wake of Kasturi Lal (supra), ``Govt. (Liability in Tort) Bill, 1965 was introduced but it was withdrawn and reintroduced in 1967 with certain modifications suggested in it by the Joint Committee of the Parliament but it lapsed. And the citizens of the independent nation who are governed by its own people and Constitution and not by the Crown are still faced, even after welling fifty years of independence, when they approach the court of law for redress against negligence of officers of the State in private law, with the question whether the East India Company would have been liable and, if so, to what extent for tortuous acts of its servants committed in course of its employment. Necessity to enact a law in keeping with the dignity of the country and to remove the uncertainty and dispel the misgiving, therefore, cannot be doubted. | 1[ds]28. In this case after conclusion of proceedings the authorities intimated the appellant to take the goods as they having not been confiscated, he was entitled for return of it. The appellant in response to the intimation went there but it refused to take delivery of it as, according to it, the commodity had deteriorated both in quality and quantity. This claim has been accepted by the lower courts. What was seized by the authority was an essential commodity within the meaning of clause (d) of sub-section (2). What the law requires under sub-section (2) of Section 6C to be returned is also the essential commodity. Any commodity continues to be so, so long as it retains its characteristics of being useful and serviceable. If the commodity ceased to be of any use or is rendered waste due to its deterioration or rusting, it ceases to be commodity much less essential commodity. Therefore, if the commodity of the appellant which was seized became useless due to negligence of the officers it ceased to be an essential commodity and the appellant was well within its rights to claim that since it was not possible for the authorities to return the essential commodity seized by them, it was entitled to be paid the price thereof as if the essential commodity had been sold to the Government. The fiction of sale which is incorporated in sub-section (2) is to protect the interest of the owner of the goods. It has to be construed liberally and in favour of the owner. The respondents were thus liable to pay the price of the fertilizer with interest, as directed by the trial court.29. In State of Gujarat v. Memon Mahomed Haji Hasam, AIR 1967 SC 1885 , where the confiscation by the Customs authorities was set aside in appeal and the goods were directed to be returned which order could not be complied as the goods had been disposed of under order of a Magistrate passed under Section 523 of Criminal Procedure Code, it was held by this Court that the suit for recovery of the goods or value thereof was maintainable and it was heldthe facts of the present case, the State Government no doubt seized the said vehicles pursuance to the power under the Customs Act. But the power to seize and confiscate was dependent upon a customs offence having been committed or a suspicion that such offence had been committed. The order of the Customs Officer was not final as it was subject to an appeal and if the appellate authority found that there was no good ground for the exercise of that power, the property could no longer be retained and had under the Act to be returned to the owner. That being the position and the property being liable to be returned there was not only a statutory obligation to return but until the order of confiscation became final an implied obligation to preserve the property intact and for that purpose to take such care of it as a reasonable person in like circumstances is expected to take. Just as a finder of property has to return it when its owner is found and demands it, so the State Government was bound to return the said vehicles once it was found that the seizure and confiscation were not sustainable. There being thus a legal obligation to preserve the property intact and also the obligation to take reasonable care of it so as to enable the Government to return it in the same condition in which it was seized, the position of the State Government until the order became final would be that of a bailee. If that is the correct position once the Revenue Tribunal set aside the order of the Customs Officer and the Government became liable to return the goods the owner had the right either to demand the property seized or its value, if in the meantime the State Government had precluded itself from returning the property either by its own act or that of its agents or servants. This was precisely the cause of action on which the respondents suit was grounded. The fact that an order for its disposal was passed by a Magistrate would not in any way interfere with or wipe away the right of the owner to demand the return of the property or the obligation of the Government to return it.Similarly, in Smt. Basava Kom Dyamagouda Patil v. State of Mysore and another, AIR 1977 SC 1749 , the question arose regarding powers of the Court in indemnifying the owner of the property which is destroyed or lost whilst in the custody of the Court. The goods were seized from the possession of the accused. They were placed in the custody of the Court. When the appeal of the accused was allowed and the goods were directed to be returned it was found that they had been lost. The court, in the circumstance, heldis common ground that these articles belonged to the complainant/ appellant and had been stolen from her house. It is, therefore, clear that the articles were the subject-matter of an offence. This fact, therefore, is sufficient to clothe the Magistrate with the power to pass an order for return of the property. Where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. We do not agree with the view of the High Court that once the articles are not available with the Court, the Court has no power to do anything in the matter and is utterly helpless.Therefore, where the goods confiscated or seized are required to be returned either under orders of the Court or because of the provision in the Act, this Court has not countenanced the objection that the goods having been lost or destroyed the owner of the goods had no remedy in private law and the Court was not empowered to pass an order or grant decree for payment of the value of goods. Public policy requires the court to exercise the power in private law to compensate the owner where the damage or loss is suffered by the negligence of officers of the State in respect of cause of action for which suits are maintainable in civil court. Since the seizure and confiscation of appellants goods was not in exercise of power which could be considered to be act of State of which no cognizance could be taken by the civil court, the suit of the appellant could be dismissed. In either view of the matter, the judgment and order of the High Court cannot be upheld.32. Before parting with this case, the Court shall be failing in its duty, if it is not brought to the attention of the appropriate authority that for more than hundred years, the law of vicarious liability of the State for negligence of its officers has been swinging from one direction to other. Result of all this has been uncertainly of law, multiplication of litigation, waste of money of common man and energy and time of the courts. Federal of Torts Claims Act was enacted in America in 1946. Crown Proceedings Act was enacted in England in 1947. As far back as 1956 the First Law Commission in its Report on the liability of the State in tort, after exhaustive study of the law and legislations in England, America, Australia and France,the context of a welfare State it is necessary to establish a just relation between the rights of the individual and the responsibilities of the State. While the responsibilities of the State have increased, the increase in its activities has led to a greater impact on the citizen. For the establishment of a just economic order industries are nationalised. Public utilities are taken over by the State. The State has launched huge irrigation and flood control schemes. The production of electricity has practically become a Government concern. The State has established and intends to establish big factorise and manage them. The State carries on works departmentally. The doctrine of laizzez faire - which leaves every one to look after himself to his best advantage has yielded place to the ideal of a welfare State - which implies that the State takes care of those who are unable to helpCommission after referring to various provisions in the Legislation of other countries observedold distinction between sovereign and non-sovereign functions or governmental and non-governmental functions should no longer be invoked to determine the liability of the State. As Professor Friendman observesis now increasingly necessary to abandon the lingering fiction of a legally indivisible State, and of a feudal conception of the Crown, and to substitute for it the principle of legal liability where the State, either directly or through incorporation public authorities engages in activities of a commercial, industrial or managerial character. The proper test is not an impracticable distinction between governmental and non-governmental functions, but the nature and form of the activity inunfortunately the law has not seen the light of the day even though in wake of Kasturi Lal (supra), ``Govt. (Liability in Tort) Bill, 1965 was introduced but it was withdrawn and reintroduced in 1967 with certain modifications suggested in it by the Joint Committee of the Parliament but it lapsed. And the citizens of the independent nation who are governed by its own people and Constitution and not by the Crown are still faced, even after welling fifty years of independence, when they approach the court of law for redress against negligence of officers of the State in private law, with the question whether the East India Company would have been liable and, if so, to what extent for tortuous acts of its servants committed in course of its employment. Necessity to enact a law in keeping with the dignity of the country and to remove the uncertainty and dispel the misgiving, therefore, cannot be doubted. | 1 | 16,248 | 1,824 | ### 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 right of the owner to demand the return of the property or the obligation of the Government to return it. 30. Similarly, in Smt. Basava Kom Dyamagouda Patil v. State of Mysore and another, AIR 1977 SC 1749 , the question arose regarding powers of the Court in indemnifying the owner of the property which is destroyed or lost whilst in the custody of the Court. The goods were seized from the possession of the accused. They were placed in the custody of the Court. When the appeal of the accused was allowed and the goods were directed to be returned it was found that they had been lost. The court, in the circumstance, held :- "It is common ground that these articles belonged to the complainant/ appellant and had been stolen from her house. It is, therefore, clear that the articles were the subject-matter of an offence. This fact, therefore, is sufficient to clothe the Magistrate with the power to pass an order for return of the property. Where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. We do not agree with the view of the High Court that once the articles are not available with the Court, the Court has no power to do anything in the matter and is utterly helpless. 31. Therefore, where the goods confiscated or seized are required to be returned either under orders of the Court or because of the provision in the Act, this Court has not countenanced the objection that the goods having been lost or destroyed the owner of the goods had no remedy in private law and the Court was not empowered to pass an order or grant decree for payment of the value of goods. Public policy requires the court to exercise the power in private law to compensate the owner where the damage or loss is suffered by the negligence of officers of the State in respect of cause of action for which suits are maintainable in civil court. Since the seizure and confiscation of appellants goods was not in exercise of power which could be considered to be act of State of which no cognizance could be taken by the civil court, the suit of the appellant could be dismissed. In either view of the matter, the judgment and order of the High Court cannot be upheld.32. Before parting with this case, the Court shall be failing in its duty, if it is not brought to the attention of the appropriate authority that for more than hundred years, the law of vicarious liability of the State for negligence of its officers has been swinging from one direction to other. Result of all this has been uncertainly of law, multiplication of litigation, waste of money of common man and energy and time of the courts. Federal of Torts Claims Act was enacted in America in 1946. Crown Proceedings Act was enacted in England in 1947. As far back as 1956 the First Law Commission in its Report on the liability of the State in tort, after exhaustive study of the law and legislations in England, America, Australia and France, concluded:- "In the context of a welfare State it is necessary to establish a just relation between the rights of the individual and the responsibilities of the State. While the responsibilities of the State have increased, the increase in its activities has led to a greater impact on the citizen. For the establishment of a just economic order industries are nationalised. Public utilities are taken over by the State. The State has launched huge irrigation and flood control schemes. The production of electricity has practically become a Government concern. The State has established and intends to establish big factorise and manage them. The State carries on works departmentally. The doctrine of laizzez faire - which leaves every one to look after himself to his best advantage has yielded place to the ideal of a welfare State - which implies that the State takes care of those who are unable to help themselves. The Commission after referring to various provisions in the Legislation of other countries observed :- "The old distinction between sovereign and non-sovereign functions or governmental and non-governmental functions should no longer be invoked to determine the liability of the State. As Professor Friendman observes :- "It is now increasingly necessary to abandon the lingering fiction of a legally indivisible State, and of a feudal conception of the Crown, and to substitute for it the principle of legal liability where the State, either directly or through incorporation public authorities engages in activities of a commercial, industrial or managerial character. The proper test is not an impracticable distinction between governmental and non-governmental functions, but the nature and form of the activity in question. Yet unfortunately the law has not seen the light of the day even though in wake of Kasturi Lal (supra), ``Govt. (Liability in Tort) Bill, 1965 was introduced but it was withdrawn and reintroduced in 1967 with certain modifications suggested in it by the Joint Committee of the Parliament but it lapsed. And the citizens of the independent nation who are governed by its own people and Constitution and not by the Crown are still faced, even after welling fifty years of independence, when they approach the court of law for redress against negligence of officers of the State in private law, with the question whether the East India Company would have been liable and, if so, to what extent for tortuous acts of its servants committed in course of its employment. Necessity to enact a law in keeping with the dignity of the country and to remove the uncertainty and dispel the misgiving, therefore, cannot be doubted.
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1
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fact that an order for its disposal was passed by a Magistrate would not in any way interfere with or wipe away the right of the owner to demand the return of the property or the obligation of the Government to return it.Similarly, in Smt. Basava Kom Dyamagouda Patil v. State of Mysore and another, AIR 1977 SC 1749 , the question arose regarding powers of the Court in indemnifying the owner of the property which is destroyed or lost whilst in the custody of the Court. The goods were seized from the possession of the accused. They were placed in the custody of the Court. When the appeal of the accused was allowed and the goods were directed to be returned it was found that they had been lost. The court, in the circumstance, heldis common ground that these articles belonged to the complainant/ appellant and had been stolen from her house. It is, therefore, clear that the articles were the subject-matter of an offence. This fact, therefore, is sufficient to clothe the Magistrate with the power to pass an order for return of the property. Where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. We do not agree with the view of the High Court that once the articles are not available with the Court, the Court has no power to do anything in the matter and is utterly helpless.Therefore, where the goods confiscated or seized are required to be returned either under orders of the Court or because of the provision in the Act, this Court has not countenanced the objection that the goods having been lost or destroyed the owner of the goods had no remedy in private law and the Court was not empowered to pass an order or grant decree for payment of the value of goods. Public policy requires the court to exercise the power in private law to compensate the owner where the damage or loss is suffered by the negligence of officers of the State in respect of cause of action for which suits are maintainable in civil court. Since the seizure and confiscation of appellants goods was not in exercise of power which could be considered to be act of State of which no cognizance could be taken by the civil court, the suit of the appellant could be dismissed. In either view of the matter, the judgment and order of the High Court cannot be upheld.32. Before parting with this case, the Court shall be failing in its duty, if it is not brought to the attention of the appropriate authority that for more than hundred years, the law of vicarious liability of the State for negligence of its officers has been swinging from one direction to other. Result of all this has been uncertainly of law, multiplication of litigation, waste of money of common man and energy and time of the courts. Federal of Torts Claims Act was enacted in America in 1946. Crown Proceedings Act was enacted in England in 1947. As far back as 1956 the First Law Commission in its Report on the liability of the State in tort, after exhaustive study of the law and legislations in England, America, Australia and France,the context of a welfare State it is necessary to establish a just relation between the rights of the individual and the responsibilities of the State. While the responsibilities of the State have increased, the increase in its activities has led to a greater impact on the citizen. For the establishment of a just economic order industries are nationalised. Public utilities are taken over by the State. The State has launched huge irrigation and flood control schemes. The production of electricity has practically become a Government concern. The State has established and intends to establish big factorise and manage them. The State carries on works departmentally. The doctrine of laizzez faire - which leaves every one to look after himself to his best advantage has yielded place to the ideal of a welfare State - which implies that the State takes care of those who are unable to helpCommission after referring to various provisions in the Legislation of other countries observedold distinction between sovereign and non-sovereign functions or governmental and non-governmental functions should no longer be invoked to determine the liability of the State. As Professor Friendman observesis now increasingly necessary to abandon the lingering fiction of a legally indivisible State, and of a feudal conception of the Crown, and to substitute for it the principle of legal liability where the State, either directly or through incorporation public authorities engages in activities of a commercial, industrial or managerial character. The proper test is not an impracticable distinction between governmental and non-governmental functions, but the nature and form of the activity inunfortunately the law has not seen the light of the day even though in wake of Kasturi Lal (supra), ``Govt. (Liability in Tort) Bill, 1965 was introduced but it was withdrawn and reintroduced in 1967 with certain modifications suggested in it by the Joint Committee of the Parliament but it lapsed. And the citizens of the independent nation who are governed by its own people and Constitution and not by the Crown are still faced, even after welling fifty years of independence, when they approach the court of law for redress against negligence of officers of the State in private law, with the question whether the East India Company would have been liable and, if so, to what extent for tortuous acts of its servants committed in course of its employment. Necessity to enact a law in keeping with the dignity of the country and to remove the uncertainty and dispel the misgiving, therefore, cannot be doubted.
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State Of Gujarat Vs. Patel Raghav Natha & Ors | Section 48 (2) where the land assessed for use, say for agricultural purposes, is used for industrial purposes, the assessment is liable to be altered and fixed at a different rate by such authority and subject to such rules as the state Government may prescribe in this behalf. The rates for non-agricultural assessment are fixed under Rules 81, 82, 82A 82AA, 84 and 85 of the Rules. Rule 87 (b) provides that where land is assessed under the provisions of Rules 81 to 85, a sanad shall be granted. Under the proviso to Rule 87 (b) it is obligatory for the sanad to be granted in form MI.8. Relying on Shri Mithoo Shahani v. Union of India, 1964-7 SCR 103 =(AIR 1964 SC 1586) the learned counsel contends that there is a distinction between an order granting permission under Section 65 and the agreement contained in the sanad which is issued under R. 87 (b). He urges that even if the sanad may not be revisable under Section 211 of the Code, the order granting permission under Section 65 is revisable under Section 211, and if this order is revised the sanad falls along with the order.9. We need not give our views on this alleged distinction for two reasons; first, that this point was not debated before the High Court in this case or in earlier cases,**and secondly, because we have come to the conclusion that the order of the Commissioner must be quashed on other grounds.*(1) The Government of the Province of Bombay v. Hormusji Manekji- (1940) LPA No. 40 of 1938, D/- 8-8-1940 (Bom).(2) Government of Bombay v. Mathurdas Laljibhai, 44 Bom LR 405 = (AIR 1942 Bom 256 ).(3) The State of Bombay v. Chhaganlal Gangaram Lavar, 56 Bom LR 1084= (AIR 1955 Bom 1 (FB)).(4) Government of Bombay v. Ahmedabad Sarangpur Mills Co., AIR 1944 Bom 244 .(5) Secretary of State v. Anant Nulkar, 36 Bom LR 242 (AIR 1934 PC 9 ).(6) Province of Bombay v. Hormusji Manekji, 50 Bom LR 524=(AIR 1947) PC 200 )10. Section 211 reads thus:"211. The State Government and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceed ings of any subordinate revenue officer for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer.The following officers may in the same manner call for and examine the proceedings of any officer subordinate to them in any matter in which neither a formal nor a summary inquiry has been held, namely,.. . . .. a Mamlatdar, a Mahalkari, an Assistant Superintendent of Survey and an Assistant Settlement Officer.If in any case it shall appear to the State Government or to such officer aforesaid that any decision or order or proceedings so called for should be modified, annulled or reversed, it or he may pass such order thereon as it or he deems fit:Provided that an Assistant or Deputy Collector shall not himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector, who shall pass such order thereon as he may deem fit."11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plan that this power must be exercised in reasonable time and the length of the reasonable time must be determined of the facts of the case and the nature of the order which is being revised.12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961, i. e., more than a year after the order, and it seems to us that this order was passed too late.13. We are also of the opinion that the order of the Commissioner should be quashed on the ground that he did not give any reasons for his conclusions. We have already extracted the passage above which shows that after reciting the various contentions he baldly stated his conclusions without disclosing his reasons. In a matter of this kind the Commissioner should indicate his reasons, however briefly, so that an aggrieved party may carry the matter further if so advised.14. We are also of the opinion that the Commissioner should not have gone into the question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent court and not to decide the question of title himself against the occupant. | 0[ds]9. We need not give our views on this alleged distinction for two reasons; first, that this point was not debated before the High Court in this case or in earlier cases,**and secondly, because we have come to the conclusion that the order of the Commissioner must be quashed on other grounds.The question arises whether the Commissioner can revise an order made under Section 65 at any time.It is true that there is no period of limitation prescribed under Section 211, but it seems to us plan that this power must be exercised in reasonable time and the length of the reasonable time must be determined of the facts of the case and the nature of the order which is being revised.12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961, i. e., more than a year after the order, and it seems to us that this order was passed too late.13. We are also of the opinion that the order of the Commissioner should be quashed on the ground that he did not give any reasons for his conclusions. We have already extracted the passage above which shows that after reciting the various contentions he baldly stated his conclusions without disclosing his reasons. In a matter of this kind the Commissioner should indicate his reasons, however briefly, so that an aggrieved party may carry the matter further if so advised.14. We are also of the opinion that the Commissioner should not have gone into the question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent court and not to decide the question of title himself against theis true that there is no period of limitation prescribed under Section 211, but it seems to us plan that this power must be exercised in reasonable time and the length of the reasonable time must be determined of the facts of the case and the nature of the order which is being revised. | 0 | 3,652 | 565 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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Section 48 (2) where the land assessed for use, say for agricultural purposes, is used for industrial purposes, the assessment is liable to be altered and fixed at a different rate by such authority and subject to such rules as the state Government may prescribe in this behalf. The rates for non-agricultural assessment are fixed under Rules 81, 82, 82A 82AA, 84 and 85 of the Rules. Rule 87 (b) provides that where land is assessed under the provisions of Rules 81 to 85, a sanad shall be granted. Under the proviso to Rule 87 (b) it is obligatory for the sanad to be granted in form MI.8. Relying on Shri Mithoo Shahani v. Union of India, 1964-7 SCR 103 =(AIR 1964 SC 1586) the learned counsel contends that there is a distinction between an order granting permission under Section 65 and the agreement contained in the sanad which is issued under R. 87 (b). He urges that even if the sanad may not be revisable under Section 211 of the Code, the order granting permission under Section 65 is revisable under Section 211, and if this order is revised the sanad falls along with the order.9. We need not give our views on this alleged distinction for two reasons; first, that this point was not debated before the High Court in this case or in earlier cases,**and secondly, because we have come to the conclusion that the order of the Commissioner must be quashed on other grounds.*(1) The Government of the Province of Bombay v. Hormusji Manekji- (1940) LPA No. 40 of 1938, D/- 8-8-1940 (Bom).(2) Government of Bombay v. Mathurdas Laljibhai, 44 Bom LR 405 = (AIR 1942 Bom 256 ).(3) The State of Bombay v. Chhaganlal Gangaram Lavar, 56 Bom LR 1084= (AIR 1955 Bom 1 (FB)).(4) Government of Bombay v. Ahmedabad Sarangpur Mills Co., AIR 1944 Bom 244 .(5) Secretary of State v. Anant Nulkar, 36 Bom LR 242 (AIR 1934 PC 9 ).(6) Province of Bombay v. Hormusji Manekji, 50 Bom LR 524=(AIR 1947) PC 200 )10. Section 211 reads thus:"211. The State Government and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceed ings of any subordinate revenue officer for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer.The following officers may in the same manner call for and examine the proceedings of any officer subordinate to them in any matter in which neither a formal nor a summary inquiry has been held, namely,.. . . .. a Mamlatdar, a Mahalkari, an Assistant Superintendent of Survey and an Assistant Settlement Officer.If in any case it shall appear to the State Government or to such officer aforesaid that any decision or order or proceedings so called for should be modified, annulled or reversed, it or he may pass such order thereon as it or he deems fit:Provided that an Assistant or Deputy Collector shall not himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector, who shall pass such order thereon as he may deem fit."11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plan that this power must be exercised in reasonable time and the length of the reasonable time must be determined of the facts of the case and the nature of the order which is being revised.12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961, i. e., more than a year after the order, and it seems to us that this order was passed too late.13. We are also of the opinion that the order of the Commissioner should be quashed on the ground that he did not give any reasons for his conclusions. We have already extracted the passage above which shows that after reciting the various contentions he baldly stated his conclusions without disclosing his reasons. In a matter of this kind the Commissioner should indicate his reasons, however briefly, so that an aggrieved party may carry the matter further if so advised.14. We are also of the opinion that the Commissioner should not have gone into the question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent court and not to decide the question of title himself against the occupant.
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9. We need not give our views on this alleged distinction for two reasons; first, that this point was not debated before the High Court in this case or in earlier cases,**and secondly, because we have come to the conclusion that the order of the Commissioner must be quashed on other grounds.The question arises whether the Commissioner can revise an order made under Section 65 at any time.It is true that there is no period of limitation prescribed under Section 211, but it seems to us plan that this power must be exercised in reasonable time and the length of the reasonable time must be determined of the facts of the case and the nature of the order which is being revised.12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961, i. e., more than a year after the order, and it seems to us that this order was passed too late.13. We are also of the opinion that the order of the Commissioner should be quashed on the ground that he did not give any reasons for his conclusions. We have already extracted the passage above which shows that after reciting the various contentions he baldly stated his conclusions without disclosing his reasons. In a matter of this kind the Commissioner should indicate his reasons, however briefly, so that an aggrieved party may carry the matter further if so advised.14. We are also of the opinion that the Commissioner should not have gone into the question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent court and not to decide the question of title himself against theis true that there is no period of limitation prescribed under Section 211, but it seems to us plan that this power must be exercised in reasonable time and the length of the reasonable time must be determined of the facts of the case and the nature of the order which is being revised.
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P.T. Munichikkanna Reddy Vs. Revamma | such a result could no doubt be justified as avoiding protracted uncertainty where the title to land lay. But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result, and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it. It is reassuring to learn that the Land Registration Act 2002 has addressed the risk that a registered owner may lose his title through inadvertence. But the main provisions of that Act have not yet been brought into effect, and even if they had it would not assist Pye, whose title had been lost before the passing of the Act. While I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friend, this is a conclusion which I (like the judge [Neuberger J]...) arrive at with no enthusiasm." 46. Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of Article 1 of Protocol No. 1 to Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It was contended by the applicants that they had been deprived of their land by the operation of the domestic law on adverse possession which is in contravention with Article 1 of Protocol No. 1 to Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"), which reads as under: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." 47. The European Council of Human Rights importantly laid down three pronged test to judge the interference of government with the right of "peaceful enjoyment of property". While referring to Beyeler v. Italy [GC], no. 33202/96, 108-14, ECHR 2000-I, it was held that the "interference" should comply with the principle of lawfulness pursue a legitimate aim (public interest) by means reasonably proportionate to the aim sought to be realized. 48. In fine the court observed: "The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorised possession struck a fair balance with any legitimate public interest served. In these circumstances, the Court concludes that the application of the provisions of the 1925 and 1980 Acts to deprive the applicant companies of their title to the registered land imposed on them an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and the applicants right to the peaceful enjoyment of their possessions on the other. There has therefore been a violation of Article 1 of Protocol No. 1." 49. The question of the application of Article 41 was referred for the Grand Chamber Hearing of the ECHR. This case sets the field of Adverse Possession and its interface with the right to peaceful enjoyment in all its complexity. 50. Therefore it will have to be kept in mind the Courts around the world are taking an unkind view toward statutes of limitation overriding property rights. THE PRESENT CASE 51. It is to be borne in mind that the respondent had already purchased 1 acre 21 guntas out of the 5 acres 25 guntas under a duly registered deed dated 1.9.1933. Appellant bought the entire chunk of 5 acres 23 guntas subsequent to the respondents transaction. The validity of such sale is not the question in the instant case but the transaction relating to 1 acre 23 Guntas remains an important surrounding circumstance to assess the nature of appellants possession. The question is whether it is a case of mistaken possession ignoramus of the previous sale or adverse possession having the mental element in the requisite degree to dispossess. Also much depends on the answer to the query regarding the starting point of adverse possession: when can the possession be considered to have become adverse? In the facts and circumstances of this case, the possession of appellant was effected through the sale deeds, dated 11.04.1934 and 5.07.1936. Therefore, the alleged fact of adverse possession bears a pronounced backdrop of 1933 sale deed passing 1 acre 21 Guntas to the respondent. Are we to say that it is a sale with doubtful antecedents (1 acre 23 Guntas) sought to be perfected or completed through adverse possession? But that aspect of the matter is not under consideration herein. As has already been mentioned, adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessors positive intent to dispossess. Therefore it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper-owner of the property. This test forms the basis of decision in the instant case.52. The argument for a more intrusive inquiry for adverse possession must not be taken to be against the law of limitations. Limitation statutes as statutes of repose have utility and convenience as their purpose. Nevertheless, there has been change on this front as well which have been noticed by us hereto before. | 0[ds]40. In the instant case the applicant company was the registered owner of a plot of 23 hectares of agricultural land. The owners of a property adjacent to the land, Mr. and Mrs. Graham ("the Grahams") occupied the land under a grazing agreement. After a brief exchange of documents in December 1983 a chartered surveyor acting for the applicants wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land.41. In essence, from September 1984 onwards until 1999 the Grahams continued to use the whole of the disputed land for farming without the permission of the applicants.42. In 1997, Mr. Graham moved the Local Land Registry against the applicant on the ground that he had obtained title by adverse possession. The applicant companies responded to the motion and importantly also issued further proceedings seeking possession of the disputed land.It is important to quote here the judgment pronounced in favour of the Grahams ([2000] Ch 676). The court held in favour of the Grahams but went on to observe the irony in law of adverse possession. According to the court, law which provides to oust an owner on the basis of inaction of 12 years is "illogical and disproportionate". The effect of such law would "seem draconian to the owner" and "a windfall for the squatter". The fact that just because "the owner had taken no step to evict a squatter for 12 years, the owner should lose 25 hectares of land to the squatter with no compensation whatsoever" would be disproportionate.45. The applicant companies appealed and the Court of Appeal reversed the High Court decision. The Grahams then appealed to the House of Lords, which, allowed their appeal and restored the order of the High Court. In J A Pye (Oxford) Ltd & Ors v Graham & Anor [2002] 3 All ER 865 House of Lords observed that the Grahams had possession of the land in the ordinary sense of the word, and therefore the applicant companies had been dispossessed of it within the meaning of the 1980 Act. There was no inconsistency between a squatter being willing to pay the paper owner if asked and his being in possession in the meantime.Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of Article 1 of Protocol No. 1 to Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention").The European Council of Human Rights importantly laid down three pronged test to judge the interference of government with the right of "peaceful enjoyment of property". While referring to Beyeler v. Italy [GC], no. 33202/96,I, it was held that the "interference" should comply with the principle of lawfulness pursue a legitimate aim (public interest) by means reasonably proportionate to the aim sought to be realized.It is to be borne in mind that the respondent had already purchased 1 acre 21 guntas out of the 5 acres 25 guntas under a duly registered deed dated 1.9.1933. Appellant bought the entire chunk of 5 acres 23 guntas subsequent to the respondents transaction. The validity of such sale is not the question in the instant case but the transaction relating to 1 acre 23 Guntas remains an important surrounding circumstance to assess the nature of appellants possession. The question is whether it is a case of mistaken possession ignoramus of the previous sale or adverse possession having the mental element in the requisite degree to dispossess. Also much depends on the answer to the query regarding the starting point of adverse possession: when can the possession be considered to have become adverse? In the facts and circumstances of this case, the possession of appellant was effected through the sale deeds, dated 11.04.1934 and 5.07.1936. Therefore, the alleged fact of adverse possession bears a pronounced backdrop of 1933 sale deed passing 1 acre 21 Guntas to the respondent. Are we to say that it is a sale with doubtful antecedents (1 acre 23 Guntas) sought to be perfected or completed through adverse possession? But that aspect of the matter is not under consideration herein. As has already been mentioned, adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessors positive intent to dispossess. Therefore it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of theof the property. This test forms the basis of decision in the instant case.52. The argument for a more intrusive inquiry for adverse possession must not be taken to be against the law of limitations. Limitation statutes as statutes of repose have utility and convenience as their purpose. Nevertheless, there has been change on this front as well which have been noticed by us hereto before. | 0 | 8,246 | 939 | ### Instruction:
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such a result could no doubt be justified as avoiding protracted uncertainty where the title to land lay. But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result, and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it. It is reassuring to learn that the Land Registration Act 2002 has addressed the risk that a registered owner may lose his title through inadvertence. But the main provisions of that Act have not yet been brought into effect, and even if they had it would not assist Pye, whose title had been lost before the passing of the Act. While I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friend, this is a conclusion which I (like the judge [Neuberger J]...) arrive at with no enthusiasm." 46. Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of Article 1 of Protocol No. 1 to Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It was contended by the applicants that they had been deprived of their land by the operation of the domestic law on adverse possession which is in contravention with Article 1 of Protocol No. 1 to Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"), which reads as under: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." 47. The European Council of Human Rights importantly laid down three pronged test to judge the interference of government with the right of "peaceful enjoyment of property". While referring to Beyeler v. Italy [GC], no. 33202/96, 108-14, ECHR 2000-I, it was held that the "interference" should comply with the principle of lawfulness pursue a legitimate aim (public interest) by means reasonably proportionate to the aim sought to be realized. 48. In fine the court observed: "The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorised possession struck a fair balance with any legitimate public interest served. In these circumstances, the Court concludes that the application of the provisions of the 1925 and 1980 Acts to deprive the applicant companies of their title to the registered land imposed on them an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and the applicants right to the peaceful enjoyment of their possessions on the other. There has therefore been a violation of Article 1 of Protocol No. 1." 49. The question of the application of Article 41 was referred for the Grand Chamber Hearing of the ECHR. This case sets the field of Adverse Possession and its interface with the right to peaceful enjoyment in all its complexity. 50. Therefore it will have to be kept in mind the Courts around the world are taking an unkind view toward statutes of limitation overriding property rights. THE PRESENT CASE 51. It is to be borne in mind that the respondent had already purchased 1 acre 21 guntas out of the 5 acres 25 guntas under a duly registered deed dated 1.9.1933. Appellant bought the entire chunk of 5 acres 23 guntas subsequent to the respondents transaction. The validity of such sale is not the question in the instant case but the transaction relating to 1 acre 23 Guntas remains an important surrounding circumstance to assess the nature of appellants possession. The question is whether it is a case of mistaken possession ignoramus of the previous sale or adverse possession having the mental element in the requisite degree to dispossess. Also much depends on the answer to the query regarding the starting point of adverse possession: when can the possession be considered to have become adverse? In the facts and circumstances of this case, the possession of appellant was effected through the sale deeds, dated 11.04.1934 and 5.07.1936. Therefore, the alleged fact of adverse possession bears a pronounced backdrop of 1933 sale deed passing 1 acre 21 Guntas to the respondent. Are we to say that it is a sale with doubtful antecedents (1 acre 23 Guntas) sought to be perfected or completed through adverse possession? But that aspect of the matter is not under consideration herein. As has already been mentioned, adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessors positive intent to dispossess. Therefore it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper-owner of the property. This test forms the basis of decision in the instant case.52. The argument for a more intrusive inquiry for adverse possession must not be taken to be against the law of limitations. Limitation statutes as statutes of repose have utility and convenience as their purpose. Nevertheless, there has been change on this front as well which have been noticed by us hereto before.
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40. In the instant case the applicant company was the registered owner of a plot of 23 hectares of agricultural land. The owners of a property adjacent to the land, Mr. and Mrs. Graham ("the Grahams") occupied the land under a grazing agreement. After a brief exchange of documents in December 1983 a chartered surveyor acting for the applicants wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land.41. In essence, from September 1984 onwards until 1999 the Grahams continued to use the whole of the disputed land for farming without the permission of the applicants.42. In 1997, Mr. Graham moved the Local Land Registry against the applicant on the ground that he had obtained title by adverse possession. The applicant companies responded to the motion and importantly also issued further proceedings seeking possession of the disputed land.It is important to quote here the judgment pronounced in favour of the Grahams ([2000] Ch 676). The court held in favour of the Grahams but went on to observe the irony in law of adverse possession. According to the court, law which provides to oust an owner on the basis of inaction of 12 years is "illogical and disproportionate". The effect of such law would "seem draconian to the owner" and "a windfall for the squatter". The fact that just because "the owner had taken no step to evict a squatter for 12 years, the owner should lose 25 hectares of land to the squatter with no compensation whatsoever" would be disproportionate.45. The applicant companies appealed and the Court of Appeal reversed the High Court decision. The Grahams then appealed to the House of Lords, which, allowed their appeal and restored the order of the High Court. In J A Pye (Oxford) Ltd & Ors v Graham & Anor [2002] 3 All ER 865 House of Lords observed that the Grahams had possession of the land in the ordinary sense of the word, and therefore the applicant companies had been dispossessed of it within the meaning of the 1980 Act. There was no inconsistency between a squatter being willing to pay the paper owner if asked and his being in possession in the meantime.Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of Article 1 of Protocol No. 1 to Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention").The European Council of Human Rights importantly laid down three pronged test to judge the interference of government with the right of "peaceful enjoyment of property". While referring to Beyeler v. Italy [GC], no. 33202/96,I, it was held that the "interference" should comply with the principle of lawfulness pursue a legitimate aim (public interest) by means reasonably proportionate to the aim sought to be realized.It is to be borne in mind that the respondent had already purchased 1 acre 21 guntas out of the 5 acres 25 guntas under a duly registered deed dated 1.9.1933. Appellant bought the entire chunk of 5 acres 23 guntas subsequent to the respondents transaction. The validity of such sale is not the question in the instant case but the transaction relating to 1 acre 23 Guntas remains an important surrounding circumstance to assess the nature of appellants possession. The question is whether it is a case of mistaken possession ignoramus of the previous sale or adverse possession having the mental element in the requisite degree to dispossess. Also much depends on the answer to the query regarding the starting point of adverse possession: when can the possession be considered to have become adverse? In the facts and circumstances of this case, the possession of appellant was effected through the sale deeds, dated 11.04.1934 and 5.07.1936. Therefore, the alleged fact of adverse possession bears a pronounced backdrop of 1933 sale deed passing 1 acre 21 Guntas to the respondent. Are we to say that it is a sale with doubtful antecedents (1 acre 23 Guntas) sought to be perfected or completed through adverse possession? But that aspect of the matter is not under consideration herein. As has already been mentioned, adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessors positive intent to dispossess. Therefore it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of theof the property. This test forms the basis of decision in the instant case.52. The argument for a more intrusive inquiry for adverse possession must not be taken to be against the law of limitations. Limitation statutes as statutes of repose have utility and convenience as their purpose. Nevertheless, there has been change on this front as well which have been noticed by us hereto before.
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Commissioner Of Wealth Tax, New Delhi Vs. P.N. Sikand | out of an amount receive d by him is an application of part of the amount which belongs to him or it is payment of an amount which is diverted before it reaches the assessee so that at the time of receipt, it belongs to the payee and not to the assessee, has been explained by Hidayatullah, J., in C. 1. T. v. Sitadas Tirathdas (41 I.T.R. 367.) in the following words:"In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt, there are in every case but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence, in l aw, does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of ones own income, which has been received-and is since applied. The first is a case in which the income never reaches the assessee, who, even if he were to collect it, does so, not as part of his income, but for and on , behalf of the person to whom it is payable. In our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own. The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of anothers income." 8. It is clear on the application of this test that in the present case, 50 per cent of the unearned increase iii the value of the land would be diverted to the lessor before it reaches the hands of the assessee as part of the price. The assessee holds the leasehold interest on condition that if he assigns it, 50 per cent of the unearned increase in the value of the land will be payable to the lessor. That is the condition on which he has acquired the leasehold interest arid hence 50 per cent of the unearned increase in the value of the land must be held to belong to the lessor at the time when it is received by the assessee and it would not be part of the net realisable worth of the leasehold interest in the hands of the assessee. If a question is asked as to what is the real wealth of the assessee in terms of money so far as the leasehold interest is concerned, the answer would inevitably be that it is the price less 50 per cent of the unearned increase in the value of the land. It is difficult to see how 50 per cent of the unearned increase in the value of the land which belongs to the lessor can be regarded as part of the wealth of the assessee. The position would undoubtedly be different where a payment is made by an assessee which is an application of a part of the price received by him. Where such is the case, the whole of the price would represent the net realisable worth of the asset in the hands of the assessee and what is paid out by the assessee would be merely a disbursement made after the price reaches the assessee as his own property. That was the position in Pardit Lakshi Kant Jha v. Commissioner of Wealth-Tax, Bihar(90 I.T.R. 97.) where the question arose whether the expenditure in connection with brokerage, commission or other expenses which would be liable to be incurred by the assessee in effectuating a sale would be deductible from the market value of the shares in determining their value for the purpose of assessment to wealth tax. This Court held that in computing the value of the shares, the assessee is not entitled to deduction of brokerage and commission from the valuation of the shares as given in, the Stock Exchange quotations or quotations furnished by well known brokers. It was pointed out by this Court that:"It is not... the amount which the vendor would receive after deduction of this expense, but the price which the asset would fetch when sold in the open market which would constitute the value of the asset for the purpose of section 7(1) of the Act". 9. Obviously, this view was taken because the entire price, when received, would belong to the assessee and payment of brokerage and commission would be merely application of part of the price in meeting expenditure necessary for effectuating the sale and hence it would not be deductible in ascertaining the net realisable worth of the shares in the bands of the assessee. 10. We are, therefore, of the view that the question referred by the Tribunal must be answered in the negative and it must be held that in determining the value of the leasehold interest of the assessee in the land for the purpose of assessment to wealth tax, the price which the leasehold interest would fetch in the open market were it not encumbered or affected by the burden or restriction contained in clause (13) of the lease deed, would have to be reduced by 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale on the valuation date. | 0[ds]The covenant in clause (13) is, therefore, clearly a covenant running with the land and it would bind whosoever is the holder of the leasehold interest for the time being. It is a Constituent part of the rights and liabilities and advantages and disadvantages which go to make up the leasehold interest and it is an incident which is in the nature of burden on the leasehold interest. Plainly and indisputably it has the effect of depressing the value which the leasehold interest would fetch if were free from this burden or disadvantage. Therefore, when the leasehold interest in the land has to b e valued, this burden or disadvantage attaching to the leasehold interest must be duly discounted in estimating the price which the leasehold interest would fetch. To value the leasehold interest on the basis that this burden or disadvantage were to be ignored would be to value an asset different in content and quality from that actually owned by the assessee.--This was the principle applied by the Judicial Committee in Corrie v. MacDemott, ([1914] A.C. 1056.) an appeal from Australia, where the question arose as to how certain land granted by the Government of Queensland to the trustees of the Acclimatisation Society of Queensland to be used only for the purpose of the Society should be valued on resumption by the Government. The trustees had no general power of sale but they were by statute authorised to sell any part of the land to the local authority and to the National Agricultural and Industrial Association. It was held by the judicial Committee that in view of this restriction on the nature of the interest of the trustees in the land, the trustees were not entitled, upon resumption of the land by the Government, to be paid unrestricted freehold value of the land but only the value of the land to the trustees under the conditions upon which they held it. T he Judicial Committee pointed out that if the owner holds the property subject to restrictions, "it is a necessary point of enquiry how far these restrictions affect the value" and the property cannot be valued as if it were "unrestricted in any way". The burden or limitation attaching to the leasehold interest in the present case must, therefore, be taken into account in arriving at the value of the leasehold interest and it cannot b e valued ignoring the burden or limitation.This problem can also be looked at from a slightly different angle and this approach too would throw some light on the true nature of the leasehold interest required to be valued. Let us approach the question from the point of view of the lessor. What is the nature of the lessors interest in the land ? The lessor has undoubtedly the reversion, but coupled with it is also the right to 50 per cent .of the unearned increase in the value of the land at the time of assignment of the leasehold interest by the lessee as also the pre-emptive right to the land after deducting 50 per cent of the unearned increase from the price obtainable by the lessee. This is the asset of the lessor which would have to be valued when the lessor is sought to be assessed to wealth tax. The right to 50 per cent of the unearned incre ase on assignment of the leasehold interest would certainly add to the value which the reversion would otherwise fetch in the open market. Now, once it is granted that under the lease deed the lessor has a bundle of rights, which includes something more than the reversion, that something would necessarily be subtracted from the inter- est of the lessee and to that extent, the interest of the lessee would stand reduced. Th e interest of the lessee would be the leasehold interest minus that something. What goes to augment the interest of the lessor would correspondingly reduce the interest of the lessee and it Cannot be taxed as th e wealth of both the lessor and the lessee. It would be includable in the net wealth of the lessor and hence it cannot at the same time form part of the wealth of the lessee and must be subtracted in determining the nature and extent of the interest of the lesseeIt is clear from the language of section 7, sub section (1 ) that what the Revenue is required to do for the purpose of determining the value of an asset is to assume that the asset which is to be valued is being sold in the open market and to fix its value for the purpose of wealth tax upon that hypothesis. Now, whenever the value of an asset has to be determined on the basis of a hypothetical sale, the court has necessarily to embark upon speculations which may be quite difficult and in some cases, even artificial. Here the asset to be valued is the leasehold interest in the land with the burden or restriction contained in clause (13) of the lease deed and the inquiry has, therefore, to be directed to the question as to what is the price which this asset would fetch if sold in the open market. What would be the realisable value of this asset ? It would indeed be difficult to speculate as to what the leasehold interest in the land would fetch in the open marker when it is affected by the burden or restriction contained in clause (13) of the lease deed. If the leasehold interest were free from this burden or restriction, it would be comparatively easy to determine its market value, for there are recognised methods of valuation of leasehold interest, but where. the leasehold interest is cut down by this burden or restriction and some right of interest is abstracted from it, the problem of valuation becomes a difficult one and some method has to be evolved for resolving it. The only way it can be done in a case of this kind is by taking the market value of the leasehold interest as if it were. unencumbered or unaffected by the burden or restriction of clause (13) and deducting from it, 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale, as representing the value of such burden or restriction.There is also one other consideration which reinforces the adoption of this method of valuation. When, for the purpose of valuation of the leasehold interest, it is assumed that the leasehold interest is sold in the open market, the pric e received does not in its entirety belong to the assessee. Fifty per cent of the unearned increase in the value of the land is diverted to the lessor by virtue of the paramount title contained in clause (13) and when received by the assessee, it belongs to the lessor. It is in truth and substance collected by the assessee on behalf of the lessor. What is received by the assessee on his own account is only the price less 50 per cent of the unearned increase in the value of the land and that represents the net realisable worth of the asset in the hands of the asses- see. The Revenue contended that payment of 50 per cent of the unearned increase in t he value of the land to the lessor is really an instance of application of the price received by the assessee and not diversion of a part of the price by paramount title and hence the whole of the price must be taken as the measure of the wealth of the assessee. But this contention is, in our opinion, not well founded and cannot be sustainedIt is clear on the application of this test that in the present case, 50 per cent of the unearned increase iii the value of the land would be diverted to the lessor before it reaches the hands of the assessee as part of the price. The assessee holds the leasehold interest on condition that if he assigns it, 50 per cent of the unearned increase in the value of the land will be payable to the lessor. That is the condition on which he has acquired the leasehold interest arid hence 50 per cent of the unearned increase in the value of the land must be held to belong to the lessor at the time when it is received by the assessee and it would not be part of the net realisable worth of the leasehold interest in the hands of the assessee. If a question is asked as to what is the real wealth of the assessee in terms of money so far as the leasehold interest is concerned, the answer would inevitably be that it is the price less 50 per cent of the unearned increase in the value of the land. It is difficult to see how 50 per cent of the unearned increase in the value of the land which belongs to the lessor can be regarded as part of the wealth of the assessee. The position would undoubtedly be different where a payment is made by an assessee which is an application of a part of the price received by him. Where such is the case, the whole of the price would represent the net realisable worth of the asset in the hands of the assessee and what is paid out by the assessee would be merely a disbursement made after the price reaches the assessee as his own property. That was the position in Pardit Lakshi Kant Jha v. Commissioner of Wealth-Tax, Bihar(90 I.T.R. 97.) where the question arose whether the expenditure in connection with brokerage, commission or other expenses which would be liable to be incurred by the assessee in effectuating a sale would be deductible from the market value of the shares in determining their value for the purpose of assessment to wealth tax. This Court held that in computing the value of the shares, the assessee is not entitled to deduction of brokerage and commission from the valuation of the shares as given in, the Stock Exchange quotations or quotations furnished by well known brokers. It was pointed out by this Courtt is not... the amount which the vendor would receive after deduction of this expense, but the price which the asset would fetch when sold in the open market which would constitute the value of the asset for the purpose of section 7(1) of the Act".Obviously, this view was taken because the entire price, when received, would belong to the assessee and payment of brokerage and commission would be merely application of part of the price in meeting expenditure necessary for effectuating the sale and hence it would not be deductible in ascertaining the net realisable worth of the shares in the bands of the assesseeWe are, therefore, of the view that the question referred by the Tribunal must be answered in the negative and it must be held that in determining the value of the leasehold interest of the assessee in the land for the purpose of assessment to wealth tax, the price which the leasehold interest would fetch in the open market were it not encumbered or affected by the burden or restriction contained in clause (13) of the lease deed, would have to be reduced by 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale on the valuation dateClause (13 ) would equally bind the assignee and if the assignee in his turn wants. to assign his leasehold interest in the land, he would have to obtain the prior approval in writing of the lessor to such assignment and the lessor would be entitled to claim 50 per cent of the unearned increase in the Value of the land. This indeed was not disputed on behalf of the Revenue. | 0 | 4,860 | 2,138 | ### Instruction:
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out of an amount receive d by him is an application of part of the amount which belongs to him or it is payment of an amount which is diverted before it reaches the assessee so that at the time of receipt, it belongs to the payee and not to the assessee, has been explained by Hidayatullah, J., in C. 1. T. v. Sitadas Tirathdas (41 I.T.R. 367.) in the following words:"In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt, there are in every case but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence, in l aw, does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of ones own income, which has been received-and is since applied. The first is a case in which the income never reaches the assessee, who, even if he were to collect it, does so, not as part of his income, but for and on , behalf of the person to whom it is payable. In our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own. The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of anothers income." 8. It is clear on the application of this test that in the present case, 50 per cent of the unearned increase iii the value of the land would be diverted to the lessor before it reaches the hands of the assessee as part of the price. The assessee holds the leasehold interest on condition that if he assigns it, 50 per cent of the unearned increase in the value of the land will be payable to the lessor. That is the condition on which he has acquired the leasehold interest arid hence 50 per cent of the unearned increase in the value of the land must be held to belong to the lessor at the time when it is received by the assessee and it would not be part of the net realisable worth of the leasehold interest in the hands of the assessee. If a question is asked as to what is the real wealth of the assessee in terms of money so far as the leasehold interest is concerned, the answer would inevitably be that it is the price less 50 per cent of the unearned increase in the value of the land. It is difficult to see how 50 per cent of the unearned increase in the value of the land which belongs to the lessor can be regarded as part of the wealth of the assessee. The position would undoubtedly be different where a payment is made by an assessee which is an application of a part of the price received by him. Where such is the case, the whole of the price would represent the net realisable worth of the asset in the hands of the assessee and what is paid out by the assessee would be merely a disbursement made after the price reaches the assessee as his own property. That was the position in Pardit Lakshi Kant Jha v. Commissioner of Wealth-Tax, Bihar(90 I.T.R. 97.) where the question arose whether the expenditure in connection with brokerage, commission or other expenses which would be liable to be incurred by the assessee in effectuating a sale would be deductible from the market value of the shares in determining their value for the purpose of assessment to wealth tax. This Court held that in computing the value of the shares, the assessee is not entitled to deduction of brokerage and commission from the valuation of the shares as given in, the Stock Exchange quotations or quotations furnished by well known brokers. It was pointed out by this Court that:"It is not... the amount which the vendor would receive after deduction of this expense, but the price which the asset would fetch when sold in the open market which would constitute the value of the asset for the purpose of section 7(1) of the Act". 9. Obviously, this view was taken because the entire price, when received, would belong to the assessee and payment of brokerage and commission would be merely application of part of the price in meeting expenditure necessary for effectuating the sale and hence it would not be deductible in ascertaining the net realisable worth of the shares in the bands of the assessee. 10. We are, therefore, of the view that the question referred by the Tribunal must be answered in the negative and it must be held that in determining the value of the leasehold interest of the assessee in the land for the purpose of assessment to wealth tax, the price which the leasehold interest would fetch in the open market were it not encumbered or affected by the burden or restriction contained in clause (13) of the lease deed, would have to be reduced by 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale on the valuation date.
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can be done in a case of this kind is by taking the market value of the leasehold interest as if it were. unencumbered or unaffected by the burden or restriction of clause (13) and deducting from it, 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale, as representing the value of such burden or restriction.There is also one other consideration which reinforces the adoption of this method of valuation. When, for the purpose of valuation of the leasehold interest, it is assumed that the leasehold interest is sold in the open market, the pric e received does not in its entirety belong to the assessee. Fifty per cent of the unearned increase in the value of the land is diverted to the lessor by virtue of the paramount title contained in clause (13) and when received by the assessee, it belongs to the lessor. It is in truth and substance collected by the assessee on behalf of the lessor. What is received by the assessee on his own account is only the price less 50 per cent of the unearned increase in the value of the land and that represents the net realisable worth of the asset in the hands of the asses- see. The Revenue contended that payment of 50 per cent of the unearned increase in t he value of the land to the lessor is really an instance of application of the price received by the assessee and not diversion of a part of the price by paramount title and hence the whole of the price must be taken as the measure of the wealth of the assessee. But this contention is, in our opinion, not well founded and cannot be sustainedIt is clear on the application of this test that in the present case, 50 per cent of the unearned increase iii the value of the land would be diverted to the lessor before it reaches the hands of the assessee as part of the price. The assessee holds the leasehold interest on condition that if he assigns it, 50 per cent of the unearned increase in the value of the land will be payable to the lessor. That is the condition on which he has acquired the leasehold interest arid hence 50 per cent of the unearned increase in the value of the land must be held to belong to the lessor at the time when it is received by the assessee and it would not be part of the net realisable worth of the leasehold interest in the hands of the assessee. If a question is asked as to what is the real wealth of the assessee in terms of money so far as the leasehold interest is concerned, the answer would inevitably be that it is the price less 50 per cent of the unearned increase in the value of the land. It is difficult to see how 50 per cent of the unearned increase in the value of the land which belongs to the lessor can be regarded as part of the wealth of the assessee. The position would undoubtedly be different where a payment is made by an assessee which is an application of a part of the price received by him. Where such is the case, the whole of the price would represent the net realisable worth of the asset in the hands of the assessee and what is paid out by the assessee would be merely a disbursement made after the price reaches the assessee as his own property. That was the position in Pardit Lakshi Kant Jha v. Commissioner of Wealth-Tax, Bihar(90 I.T.R. 97.) where the question arose whether the expenditure in connection with brokerage, commission or other expenses which would be liable to be incurred by the assessee in effectuating a sale would be deductible from the market value of the shares in determining their value for the purpose of assessment to wealth tax. This Court held that in computing the value of the shares, the assessee is not entitled to deduction of brokerage and commission from the valuation of the shares as given in, the Stock Exchange quotations or quotations furnished by well known brokers. It was pointed out by this Courtt is not... the amount which the vendor would receive after deduction of this expense, but the price which the asset would fetch when sold in the open market which would constitute the value of the asset for the purpose of section 7(1) of the Act".Obviously, this view was taken because the entire price, when received, would belong to the assessee and payment of brokerage and commission would be merely application of part of the price in meeting expenditure necessary for effectuating the sale and hence it would not be deductible in ascertaining the net realisable worth of the shares in the bands of the assesseeWe are, therefore, of the view that the question referred by the Tribunal must be answered in the negative and it must be held that in determining the value of the leasehold interest of the assessee in the land for the purpose of assessment to wealth tax, the price which the leasehold interest would fetch in the open market were it not encumbered or affected by the burden or restriction contained in clause (13) of the lease deed, would have to be reduced by 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale on the valuation dateClause (13 ) would equally bind the assignee and if the assignee in his turn wants. to assign his leasehold interest in the land, he would have to obtain the prior approval in writing of the lessor to such assignment and the lessor would be entitled to claim 50 per cent of the unearned increase in the Value of the land. This indeed was not disputed on behalf of the Revenue.
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State of Punjab Vs. Nathu Ram | affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken.9. It is therefore, necessary to determine, on the facts of this case, whether the State appeal could proceed against Nathu Ram. The award of the arbitrator in each of these cases was a joint one, in favour of both the respondents, Labhu Ram and Nathu Ram. To illustrate the form of the award, we may quote the award for the year 1945-46 in the proceedings leading to Civil Appeal No. 635 of 1957. It is :"On the basis of the report of S. Lal Singh, Naib Tehsildar (Exhibit P.W. 9/1) and Sheikh Aziz Din, Tehsildar, Exhibit P.W. 9/2, the applicants are entitled to a sum of Rs. 4,140 on account of rent, plus Rs. 3,872/8/0 on account of Income-tax etc., due to the inclusion of Rs. 6,193/8/0 in their total income, plus such sum as the petitioners have to pay to the Income-tax Department on account of the inclusion of Rs. 4,140/- in their income as awarded by this award."The result of the abatement of the appeal against Labhu Ram is therefore that his legal representatives are entitled to get compensation on the basis of this award, even if they are to be paid separately on calculating their rightful share in the land acquired, for which this compensation is decreed. Such calculation is foreign to the appeal between the State of Punjab and Nathu Ram. The decree in the appeal will have to determine not what Nathu Rams share in this compensation is, but what is the correct amount of compensation with respect to the land acquired for which this compensation has been awarded by the arbitrator. The subject matter for which the compensation is to be calculated is one and the same. There cannot be different assessments of the amounts of compensation for the same parcel of land. The appeal before the High Court was an appeal against a decree jointly in favour of Labhu Ram and Nathu Ram. The appeal against Nathu Ram alone cannot be held to be properly constituted when the appeal against Labhu Ram had abated. To get rid of the joint decree, it was essential for the appellant, the State of Punjab, to implead both the joint decree-holders in the appeal. In the absence of one joint decree-holder, the appeal is not properly framed. It follows that the State appeal against Nathu Ran alone cannot proceed.10. It is however contended for the State that according to the entries in the village records, Labhu Ram and Nathu Ram had equal shares in the land acquired and that therefore the appeal against Nathu Ram alone can deal with half the amount of the award. We do not agree.The mere record of specific shares in the revenue records is no guarantee of their correctness. The appellate Court will have to determine the share of Nathu Ram and necessarily the share of Labhu Ram in the absence of his legal representatives. This is not permissible in law. Further, the entire case of Labhu Ram and Nathu Ram, in their application to the Government for the appointment of an arbitrator, was that the land jointly belonged to them and had been acquired for military purposes, that a certain amount had been paid to them as compensation, that they received that amount under protest and that they were entitled to a larger amount mentioned in the application and also for the income-tax they would have to pay on account of the compensation received being added to their income.Their claim was a joint claim based on the allegation that the land belonged to them jointly. The award and the joint decree are on this basis and the appellate Court cannot decide on the basis of the separate shares.11. The State objected before the arbitrator, and urges before us, that under the rules the joint application of Labhu Ram and Nathu Ram should have been treated as separate applications with respect to the correctness of the compensation payable to each of them respectively and that the arbitrator should have made separate awards with respect to such separate claims of Labhu Ram and Nathu Ram. The necessary corollary of such a contention for the State is that the abatement of the appeal against Labhu Ram will not make infructuous the appeal against Nathu Ram.12. The respondent urges that the Punjab Land Acquisition (Defence of India) Rules, do not contemplate separate applications by the persons interested in the compensation on account of the acquisition of a particular parcel of land.13. The arbitrator did not agree to deal with the claims of Labhu Ram and Nathu Ram separately. He, however, did not decide the question on the basis of the land belonging jointly to the two brothers as members of the joint Hindu family. He however held that the expression a person interested in R. 3, included all persons claiming an interest in the compensation to be paid on account of the acquisition of the land and that R. 18 permitted the joinder of applications for joint enquiry when each case rested on the same and similar basis and each of the applications included land included in a larger part of land acquired at one time. He also, took into consideration that the separation of the application of Labhu Ram and Nathu Ram would involve various difficulties in matters of income-tax. He therefore used his discretion and ordered the application to be proceeded with jointly.14. In view of our opinion on the main point, we do not consider it necessary to interpret the rules and decide whether the joint application was maintainable or not. The fact remains that Labhu Ram and Nathu Ram made a joint claim and got a joint decree against the State for compensation. The frame of the appeal is to be with reference to the nature of the decree challenged. | 0[ds]10. It is however contended for the State that according to the entries in the village records, Labhu Ram and Nathu Ram had equal shares in the land acquired and that therefore the appeal against Nathu Ram alone can deal with half the amount of the award.We do not agree.The mere record of specific shares in the revenue records is no guarantee of their correctness. The appellate Court will have to determine the share of Nathu Ram and necessarily the share of Labhu Ram in the absence of his legal representatives. This is not permissible in law. Further, the entire case of Labhu Ram and Nathu Ram, in their application to the Government for the appointment of an arbitrator, was that the land jointly belonged to them and had been acquired for military purposes, that a certain amount had been paid to them as compensation, that they received that amount under protest and that they were entitled to a larger amount mentioned in the application and also for the income-tax they would have to pay on account of the compensation received being added to their income.Their claim was a joint claim based on the allegation that the land belonged to them jointly. The award and the joint decree are on this basis and the appellate Court cannot decide on the basis of the separate shares.The State objected before the arbitrator, and urges before us, that under the rules the joint application of Labhu Ram and Nathu Ram should have been treated as separate applications with respect to the correctness of the compensation payable to each of them respectively and that the arbitrator should have made separate awards with respect to such separate claims of Labhu Ram and Nathu Ram. The necessary corollary of such a contention for the State is that the abatement of the appeal against Labhu Ram will not make infructuous the appeal against Nathu Ram.In view of our opinion on the main point, we do not consider it necessary to interpret the rules and decide whether the joint application was maintainable or not. The fact remains that Labhu Ram and Nathu Ram made a joint claim and got a joint decree against the State for compensation. The frame of the appeal is to be with reference to the nature of the decree challenged.It is not disputed that in view of O. 22, R. 4, Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not provide for the abatement of the appeal against the otherit to say that when O. 22, R. 4 does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal.There has been no divergence between the Courts about the Courts proceeding with the appeal between the respondents other than the deceased respondent, when the decree in appeal was not a joint decree in favour of all the respondents. The abatement of the appeal against the deceased respondent in such a case, would make the decree in his favour alone final, and this can, in no circumstances, have a repercussion on the decision of the controversy between the appellant and the other decree-holders or on the execution of the ultimate decree between them.8. The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal, against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate Court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree-holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot beresult of the abatement of the appeal against Labhu Ram is therefore that his legal representatives are entitled to get compensation on the basis of this award, even if they are to be paid separately on calculating their rightful share in the land acquired, for which this compensation is decreed. Such calculation is foreign to the appeal between the State of Punjab and Nathu Ram. The decree in the appeal will have to determine not what Nathu Rams share in this compensation is, but what is the correct amount of compensation with respect to the land acquired for which this compensation has been awarded by the arbitrator. The subject matter for which the compensation is to be calculated is one and the same. There cannot be different assessments of the amounts of compensation for the same parcel of land. The appeal before the High Court was an appeal against a decree jointly in favour of Labhu Ram and Nathu Ram. The appeal against Nathu Ram alone cannot be held to be properly constituted when the appeal against Labhu Ram had abated. To get rid of the joint decree, it was essential for the appellant, the State of Punjab, to implead both the joint decree-holders in the appeal. In the absence of one joint decree-holder, the appeal is not properly framed. It follows that the State appeal against Nathu Ran alone cannotdo not agree.The mere record of specific shares in the revenue records is no guarantee of their correctness. The appellate Court will have to determine the share of Nathu Ram and necessarily the share of Labhu Ram in the absence of his legal representatives. This is not permissible in law. Further, the entire case of Labhu Ram and Nathu Ram, in their application to the Government for the appointment of an arbitrator, was that the land jointly belonged to them and had been acquired for military purposes, that a certain amount had been paid to them as compensation, that they received that amount under protest and that they were entitled to a larger amount mentioned in the application and also for the income-tax they would have to pay on account of the compensation received being added to their income.Their claim was a joint claim based on the allegation that the land belonged to them jointly. The award and the joint decree are on this basis and the appellate Court cannot decide on the basis of the separate | 0 | 2,474 | 1,408 | ### Instruction:
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affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken.9. It is therefore, necessary to determine, on the facts of this case, whether the State appeal could proceed against Nathu Ram. The award of the arbitrator in each of these cases was a joint one, in favour of both the respondents, Labhu Ram and Nathu Ram. To illustrate the form of the award, we may quote the award for the year 1945-46 in the proceedings leading to Civil Appeal No. 635 of 1957. It is :"On the basis of the report of S. Lal Singh, Naib Tehsildar (Exhibit P.W. 9/1) and Sheikh Aziz Din, Tehsildar, Exhibit P.W. 9/2, the applicants are entitled to a sum of Rs. 4,140 on account of rent, plus Rs. 3,872/8/0 on account of Income-tax etc., due to the inclusion of Rs. 6,193/8/0 in their total income, plus such sum as the petitioners have to pay to the Income-tax Department on account of the inclusion of Rs. 4,140/- in their income as awarded by this award."The result of the abatement of the appeal against Labhu Ram is therefore that his legal representatives are entitled to get compensation on the basis of this award, even if they are to be paid separately on calculating their rightful share in the land acquired, for which this compensation is decreed. Such calculation is foreign to the appeal between the State of Punjab and Nathu Ram. The decree in the appeal will have to determine not what Nathu Rams share in this compensation is, but what is the correct amount of compensation with respect to the land acquired for which this compensation has been awarded by the arbitrator. The subject matter for which the compensation is to be calculated is one and the same. There cannot be different assessments of the amounts of compensation for the same parcel of land. The appeal before the High Court was an appeal against a decree jointly in favour of Labhu Ram and Nathu Ram. The appeal against Nathu Ram alone cannot be held to be properly constituted when the appeal against Labhu Ram had abated. To get rid of the joint decree, it was essential for the appellant, the State of Punjab, to implead both the joint decree-holders in the appeal. In the absence of one joint decree-holder, the appeal is not properly framed. It follows that the State appeal against Nathu Ran alone cannot proceed.10. It is however contended for the State that according to the entries in the village records, Labhu Ram and Nathu Ram had equal shares in the land acquired and that therefore the appeal against Nathu Ram alone can deal with half the amount of the award. We do not agree.The mere record of specific shares in the revenue records is no guarantee of their correctness. The appellate Court will have to determine the share of Nathu Ram and necessarily the share of Labhu Ram in the absence of his legal representatives. This is not permissible in law. Further, the entire case of Labhu Ram and Nathu Ram, in their application to the Government for the appointment of an arbitrator, was that the land jointly belonged to them and had been acquired for military purposes, that a certain amount had been paid to them as compensation, that they received that amount under protest and that they were entitled to a larger amount mentioned in the application and also for the income-tax they would have to pay on account of the compensation received being added to their income.Their claim was a joint claim based on the allegation that the land belonged to them jointly. The award and the joint decree are on this basis and the appellate Court cannot decide on the basis of the separate shares.11. The State objected before the arbitrator, and urges before us, that under the rules the joint application of Labhu Ram and Nathu Ram should have been treated as separate applications with respect to the correctness of the compensation payable to each of them respectively and that the arbitrator should have made separate awards with respect to such separate claims of Labhu Ram and Nathu Ram. The necessary corollary of such a contention for the State is that the abatement of the appeal against Labhu Ram will not make infructuous the appeal against Nathu Ram.12. The respondent urges that the Punjab Land Acquisition (Defence of India) Rules, do not contemplate separate applications by the persons interested in the compensation on account of the acquisition of a particular parcel of land.13. The arbitrator did not agree to deal with the claims of Labhu Ram and Nathu Ram separately. He, however, did not decide the question on the basis of the land belonging jointly to the two brothers as members of the joint Hindu family. He however held that the expression a person interested in R. 3, included all persons claiming an interest in the compensation to be paid on account of the acquisition of the land and that R. 18 permitted the joinder of applications for joint enquiry when each case rested on the same and similar basis and each of the applications included land included in a larger part of land acquired at one time. He also, took into consideration that the separation of the application of Labhu Ram and Nathu Ram would involve various difficulties in matters of income-tax. He therefore used his discretion and ordered the application to be proceeded with jointly.14. In view of our opinion on the main point, we do not consider it necessary to interpret the rules and decide whether the joint application was maintainable or not. The fact remains that Labhu Ram and Nathu Ram made a joint claim and got a joint decree against the State for compensation. The frame of the appeal is to be with reference to the nature of the decree challenged.
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appeal against Nathu Ram.In view of our opinion on the main point, we do not consider it necessary to interpret the rules and decide whether the joint application was maintainable or not. The fact remains that Labhu Ram and Nathu Ram made a joint claim and got a joint decree against the State for compensation. The frame of the appeal is to be with reference to the nature of the decree challenged.It is not disputed that in view of O. 22, R. 4, Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not provide for the abatement of the appeal against the otherit to say that when O. 22, R. 4 does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal.There has been no divergence between the Courts about the Courts proceeding with the appeal between the respondents other than the deceased respondent, when the decree in appeal was not a joint decree in favour of all the respondents. The abatement of the appeal against the deceased respondent in such a case, would make the decree in his favour alone final, and this can, in no circumstances, have a repercussion on the decision of the controversy between the appellant and the other decree-holders or on the execution of the ultimate decree between them.8. The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal, against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate Court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree-holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot beresult of the abatement of the appeal against Labhu Ram is therefore that his legal representatives are entitled to get compensation on the basis of this award, even if they are to be paid separately on calculating their rightful share in the land acquired, for which this compensation is decreed. Such calculation is foreign to the appeal between the State of Punjab and Nathu Ram. The decree in the appeal will have to determine not what Nathu Rams share in this compensation is, but what is the correct amount of compensation with respect to the land acquired for which this compensation has been awarded by the arbitrator. The subject matter for which the compensation is to be calculated is one and the same. There cannot be different assessments of the amounts of compensation for the same parcel of land. The appeal before the High Court was an appeal against a decree jointly in favour of Labhu Ram and Nathu Ram. The appeal against Nathu Ram alone cannot be held to be properly constituted when the appeal against Labhu Ram had abated. To get rid of the joint decree, it was essential for the appellant, the State of Punjab, to implead both the joint decree-holders in the appeal. In the absence of one joint decree-holder, the appeal is not properly framed. It follows that the State appeal against Nathu Ran alone cannotdo not agree.The mere record of specific shares in the revenue records is no guarantee of their correctness. The appellate Court will have to determine the share of Nathu Ram and necessarily the share of Labhu Ram in the absence of his legal representatives. This is not permissible in law. Further, the entire case of Labhu Ram and Nathu Ram, in their application to the Government for the appointment of an arbitrator, was that the land jointly belonged to them and had been acquired for military purposes, that a certain amount had been paid to them as compensation, that they received that amount under protest and that they were entitled to a larger amount mentioned in the application and also for the income-tax they would have to pay on account of the compensation received being added to their income.Their claim was a joint claim based on the allegation that the land belonged to them jointly. The award and the joint decree are on this basis and the appellate Court cannot decide on the basis of the separate
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G.Giridhar Prabhu Vs. Agricultural Produce Market Comtt | the subsequently action or inaction of the legislature for causes as to legislative approval or disapproval of judicial interpretation. It has been held that if the legislature by taking note of the judgment amends the statute appropriately by not giving any different meaning from the view taken by the Court, with some justification, it can be said that the legislature had accepted expressly or by implication the judicial interpretation. It was submitted that by amending the Schedule to include cashew kernel the State Government had accepted the fact that cashew nut and cashew kernel were two separate and distinct commodities and now they would be precluded from contending that these were not two separate and distinct commodities. 15. Reliance was next placed upon the case of Commissioner of Income Tax v. N.C. Budharaja and Co., reported in 1993(204) ITR 413. It was submitted that the word "production" has a wider connotation than the word "manufacture". In this case it is held that every manufacture would be characterised as production but every production would not amount to manufacture. It is held that when the word "production" or "produce" are used in juxtaposition with the word "manufacture", they may bringing into existence new goods by a process which may or may not amount to manufacture. It is held that these words also take in all the by-products, intermediate products and residual products which emerge in the course of manufacture of goods. 16. Respondents do not dispute that cashew nut and cashew kernel are two separate and distinct items/commodities. The respondents submission is that the appellant continue to be a trader even in the sale transaction as they had bought/imported for purpose of processing and then selling. Respondents contend that merely because, by a process or by manufacture, a different item comes into being does not make the processor or manufacturer a Producer. The contend that a "Producer" is one who produces the initial Notified Agricultural Produce. 17. We are unable to agree with the submissions of Mr. Sarangan. As can be seen from the Preamble the Act is to provide for better regulation of marketing of agricultural produce. In the Act certain exemptions have been given to producer which exemptions have not been either to importer or an Exporter or a Trader. These exemptions, therefore, have been given a producer because the Producer is the person who produces the main agricultural produce. The main agricultural produce, which may be a Notified Agricultural Produce, could then be converted into various other Notified Agricultural Produce/s by subjecting the same to a process or manufacture. The person who processes or manufactures a different Notified Agricultural Produce would not be a producer. To be noted that an importer imports or cause goods to be imported into the market area for the purpose of selling, processing, manufacturing or for any other purpose, except for ones own domestic consumption. Thus, it is clear that a person, who imports would not be a producer. The import would be for purpose of selling or processing or manufacturing or for any other purpose except for ones own domestic consumption. Similarly, the term "Exporter" makes it clear that an exporter is not a Producer. A trader is also is a person who buys Notified Agricultural Produce for the purpose of selling or processing or manufacturing or for any other purpose except for the purpose of domestic consumption. The definition of the term "Trader" is not a restrictive definition. It is not restricted to a person who only buys. If a person buys for domestic or personal consumption, then he would not be a trader. it is only when a person buys for the purpose of selling or processing or manufacturing that he would become a trader. Thus a person may buy, process or manufacture and then sell. When he processes or manufactures Notified Agricultural Produce which he had bought, it may change its character and become another Notified Agricultural Produce. Thus, by way of examples, a person may buy milk and through processes makes it into butter and/or cheese or a person may buy hides and skins and by a process make it into leather. However, merely because a distinct and separate Notified Agricultural Produce comes into existence does not mean that the person who bought, processed and sold ceases to be a Trader. The term "Trader" encumbrances not just the purchase transaction but the entire transaction of purchase, processing, manufacturing and selling. 18. In this behalf the case of Himachal Pradesh Marketing Board v. Shankar Trading Co. Pvt. Ltd., reported in 1997(2) SCC 496, is relevant. Under the Himachal Pradesh Agricultural Produce Markets Act, 1969, licences were required to be taken for purchase, sale, storage or processing of agricultural produce and market fee was also payable. Producers or growers however did not require a licence and did not have to any market fees. The respondent-Company (therein) was producing "Katha", a specified agricultural produce. They did this by processing Khairwood. They claimed (like the appellants in this case) that as producers they did not need a licence and market fees were not payable by them. This Court negatived this contention by holding that a person producing a Notified Agricultural Produce by processing a natural product does not fulfil the requirements of being producer/grower. It was held that the clause of the Act made it clear that only the actual grower/producer of the natural agricultural produce were to be befitted. Of course the definition of the terms in that Act are different. However in our view the basic principle is the same. It applies to this case also. 19. We also see no substance in the submission that if Section 65(2-A)(ii) did not apply, then Section 65(2-A)(iv) would apply. Section 65(2-A)(iv) is residuary clause. It would only that the appellants are Traders they squarely fall within Section 65(2-A)(iii). IN fact, they may also fall within Section 65(2-A(ia). As they fall within these two clauses there is no question of the residuary clause applying. | 0[ds]17. We are unable to agree with the submissions of Mr. Sarangan. As can be seen from the Preamble the Act is to provide for better regulation of marketing of agricultural produce. In the Act certain exemptions have been given to producer which exemptions have not been either to importer or an Exporter or a Trader. These exemptions, therefore, have been given a producer because the Producer is the person who produces the main agricultural produce. The main agricultural produce, which may be a Notified Agricultural Produce, could then be converted into various other Notified Agricultural Produce/s by subjecting the same to a process or manufacture. The person who processes or manufactures a different Notified Agricultural Produce would not be a producer. To be noted that an importer imports or cause goods to be imported into the market area for the purpose of selling, processing, manufacturing or for any other purpose, except for ones own domestic consumption. Thus, it is clear that a person, who imports would not be a producer. The import would be for purpose of selling or processing or manufacturing or for any other purpose except for ones own domestic consumption. Similarly, the term "Exporter" makes it clear that an exporter is not a Producer. A trader is also is a person who buys Notified Agricultural Produce for the purpose of selling or processing or manufacturing or for any other purpose except for the purpose of domestic consumption. The definition of the term "Trader" is not a restrictive definition. It is not restricted to a person who only buys. If a person buys for domestic or personal consumption, then he would not be a trader. it is only when a person buys for the purpose of selling or processing or manufacturing that he would become a trader. Thus a person may buy, process or manufacture and then sell. When he processes or manufactures Notified Agricultural Produce which he had bought, it may change its character and become another Notified Agricultural Produce. Thus, by way of examples, a person may buy milk and through processes makes it into butter and/or cheese or a person may buy hides and skins and by a process make it into leather. However, merely because a distinct and separate Notified Agricultural Produce comes into existence does not mean that the person who bought, processed and sold ceases to be a Trader. The term "Trader" encumbrances not just the purchase transaction but the entire transaction of purchase, processing, manufacturing and selling.We also see no substance in the submission that if Section 65(2-A)(ii) did not apply, then Section 65(2-A)(iv) would apply. Section 65(2-A)(iv) is residuary clause. It would only that the appellants are Traders they squarely fall within Section 65(2-A)(iii). IN fact, they may also fall within Section 65(2-A(ia). As they fall within these two clauses there is no question of the residuary clause applying. | 0 | 3,768 | 565 | ### Instruction:
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the subsequently action or inaction of the legislature for causes as to legislative approval or disapproval of judicial interpretation. It has been held that if the legislature by taking note of the judgment amends the statute appropriately by not giving any different meaning from the view taken by the Court, with some justification, it can be said that the legislature had accepted expressly or by implication the judicial interpretation. It was submitted that by amending the Schedule to include cashew kernel the State Government had accepted the fact that cashew nut and cashew kernel were two separate and distinct commodities and now they would be precluded from contending that these were not two separate and distinct commodities. 15. Reliance was next placed upon the case of Commissioner of Income Tax v. N.C. Budharaja and Co., reported in 1993(204) ITR 413. It was submitted that the word "production" has a wider connotation than the word "manufacture". In this case it is held that every manufacture would be characterised as production but every production would not amount to manufacture. It is held that when the word "production" or "produce" are used in juxtaposition with the word "manufacture", they may bringing into existence new goods by a process which may or may not amount to manufacture. It is held that these words also take in all the by-products, intermediate products and residual products which emerge in the course of manufacture of goods. 16. Respondents do not dispute that cashew nut and cashew kernel are two separate and distinct items/commodities. The respondents submission is that the appellant continue to be a trader even in the sale transaction as they had bought/imported for purpose of processing and then selling. Respondents contend that merely because, by a process or by manufacture, a different item comes into being does not make the processor or manufacturer a Producer. The contend that a "Producer" is one who produces the initial Notified Agricultural Produce. 17. We are unable to agree with the submissions of Mr. Sarangan. As can be seen from the Preamble the Act is to provide for better regulation of marketing of agricultural produce. In the Act certain exemptions have been given to producer which exemptions have not been either to importer or an Exporter or a Trader. These exemptions, therefore, have been given a producer because the Producer is the person who produces the main agricultural produce. The main agricultural produce, which may be a Notified Agricultural Produce, could then be converted into various other Notified Agricultural Produce/s by subjecting the same to a process or manufacture. The person who processes or manufactures a different Notified Agricultural Produce would not be a producer. To be noted that an importer imports or cause goods to be imported into the market area for the purpose of selling, processing, manufacturing or for any other purpose, except for ones own domestic consumption. Thus, it is clear that a person, who imports would not be a producer. The import would be for purpose of selling or processing or manufacturing or for any other purpose except for ones own domestic consumption. Similarly, the term "Exporter" makes it clear that an exporter is not a Producer. A trader is also is a person who buys Notified Agricultural Produce for the purpose of selling or processing or manufacturing or for any other purpose except for the purpose of domestic consumption. The definition of the term "Trader" is not a restrictive definition. It is not restricted to a person who only buys. If a person buys for domestic or personal consumption, then he would not be a trader. it is only when a person buys for the purpose of selling or processing or manufacturing that he would become a trader. Thus a person may buy, process or manufacture and then sell. When he processes or manufactures Notified Agricultural Produce which he had bought, it may change its character and become another Notified Agricultural Produce. Thus, by way of examples, a person may buy milk and through processes makes it into butter and/or cheese or a person may buy hides and skins and by a process make it into leather. However, merely because a distinct and separate Notified Agricultural Produce comes into existence does not mean that the person who bought, processed and sold ceases to be a Trader. The term "Trader" encumbrances not just the purchase transaction but the entire transaction of purchase, processing, manufacturing and selling. 18. In this behalf the case of Himachal Pradesh Marketing Board v. Shankar Trading Co. Pvt. Ltd., reported in 1997(2) SCC 496, is relevant. Under the Himachal Pradesh Agricultural Produce Markets Act, 1969, licences were required to be taken for purchase, sale, storage or processing of agricultural produce and market fee was also payable. Producers or growers however did not require a licence and did not have to any market fees. The respondent-Company (therein) was producing "Katha", a specified agricultural produce. They did this by processing Khairwood. They claimed (like the appellants in this case) that as producers they did not need a licence and market fees were not payable by them. This Court negatived this contention by holding that a person producing a Notified Agricultural Produce by processing a natural product does not fulfil the requirements of being producer/grower. It was held that the clause of the Act made it clear that only the actual grower/producer of the natural agricultural produce were to be befitted. Of course the definition of the terms in that Act are different. However in our view the basic principle is the same. It applies to this case also. 19. We also see no substance in the submission that if Section 65(2-A)(ii) did not apply, then Section 65(2-A)(iv) would apply. Section 65(2-A)(iv) is residuary clause. It would only that the appellants are Traders they squarely fall within Section 65(2-A)(iii). IN fact, they may also fall within Section 65(2-A(ia). As they fall within these two clauses there is no question of the residuary clause applying.
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17. We are unable to agree with the submissions of Mr. Sarangan. As can be seen from the Preamble the Act is to provide for better regulation of marketing of agricultural produce. In the Act certain exemptions have been given to producer which exemptions have not been either to importer or an Exporter or a Trader. These exemptions, therefore, have been given a producer because the Producer is the person who produces the main agricultural produce. The main agricultural produce, which may be a Notified Agricultural Produce, could then be converted into various other Notified Agricultural Produce/s by subjecting the same to a process or manufacture. The person who processes or manufactures a different Notified Agricultural Produce would not be a producer. To be noted that an importer imports or cause goods to be imported into the market area for the purpose of selling, processing, manufacturing or for any other purpose, except for ones own domestic consumption. Thus, it is clear that a person, who imports would not be a producer. The import would be for purpose of selling or processing or manufacturing or for any other purpose except for ones own domestic consumption. Similarly, the term "Exporter" makes it clear that an exporter is not a Producer. A trader is also is a person who buys Notified Agricultural Produce for the purpose of selling or processing or manufacturing or for any other purpose except for the purpose of domestic consumption. The definition of the term "Trader" is not a restrictive definition. It is not restricted to a person who only buys. If a person buys for domestic or personal consumption, then he would not be a trader. it is only when a person buys for the purpose of selling or processing or manufacturing that he would become a trader. Thus a person may buy, process or manufacture and then sell. When he processes or manufactures Notified Agricultural Produce which he had bought, it may change its character and become another Notified Agricultural Produce. Thus, by way of examples, a person may buy milk and through processes makes it into butter and/or cheese or a person may buy hides and skins and by a process make it into leather. However, merely because a distinct and separate Notified Agricultural Produce comes into existence does not mean that the person who bought, processed and sold ceases to be a Trader. The term "Trader" encumbrances not just the purchase transaction but the entire transaction of purchase, processing, manufacturing and selling.We also see no substance in the submission that if Section 65(2-A)(ii) did not apply, then Section 65(2-A)(iv) would apply. Section 65(2-A)(iv) is residuary clause. It would only that the appellants are Traders they squarely fall within Section 65(2-A)(iii). IN fact, they may also fall within Section 65(2-A(ia). As they fall within these two clauses there is no question of the residuary clause applying.
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Vishwamitra Ram Kumar Vs. M/S Vesta Time Company | Section 13(1)(f) of the Act for eviction of the tenants is not made out by the landlord.13. The landlord in his evidence has held out that he has the means to undertake the reconstruction. Before the Appellate Court, he has also produced some evidence in that regard. These are days when finances for such construction activity are more easily available as judicially noticed by one of the decisions. We see no justification for doubting the financial capacity of the landlord to rebuild. The landlord has shown that he has got the validity of the approved plan for rebuilding extended. The High Court, in our view, was not justified in not accepting the evidence produced by the landlord in appeal. We are satisfied that the landlord has made out the ground for eviction under Section 13(1)(f) of the Act on the facts and in the circumstances of the case. We reverse the finding of the High Court in that regard.14. Under Section 18A of the Act, the landlord in a case of eviction under Section 13(1)(f) of the Act has the obligation to put the tenants back in possession of rooms in the reconstructed building, that is an obligation attached to any decree for eviction that may be passed under Section 13(1)(f) of the Act. Certainly, any attempt to defeat that obligation under Section 18A of the Act cannot be encouraged and should be put down with an iron hand. In other words, the landlord will be pinned down to his obligations under Section 18A of the Act and would not be allowed to extricate himself from it or delay the performance of his obligations by resort to devious means. But, that is different from saying that because of the right available to the tenant under Section 18A of the Act, an order for eviction under Section 13(1)(f) of the Act cannot be passed unless the building is about to fall down over the head of the occupant.15. It is the case of the landlord that under the present Building Rules, he has to use the basement for providing parking space and construction can be made only in about 55% of the land available on demolition of the existing building. It is not shown that this claim is not true, or that it is unsustainable. No doubt, P.W. 5 was not instructed to prepare the plan with the obligation to the tenants in mind. It is the further case of the landlord that the landlord is in a position to provide the tenants, seven in number, only with areas roughly corresponding to 30% of the areas occupied by them. The landlord has offered that the area in its possession on the ground floor, could also be made available to the tenants. Even then, the area available to the tenants would fall short of the areas that are now in their possession or that may normally be allotted to them. When the new construction to be put up consists only of a plinth area of about 55% of the existing construction, it will be reasonable for the tenants to be expected to be put back in possession of at least 50% of the areas now in their occupation. According to the landlord, he proposes to provide all the tenants with rooms in the ground floor. It is seen that one of the rooms is occupied by a tenant who runs a Pan Shop therein and he is at present in occupation of an area of 5 square feet only. Two of the tenants are in occupation of only about 62 square feet; one of the tenants is in occupation of 184 square feet and another in occupation of 292 square feet. One of the tenants is in occupation of 315 square feet and the other is in occupation of 580 square feet. The landlord has also to provide a staircase or a lift well and for that reasonable space on the ground floor is required. We think that it will be appropriate to direct the landlord to slightly alter his plan so that after accommodating the tenant running a Pan Shop in a small area, the rest of the tenants could be provided with 50% of the areas now occupied by them, by accommodating, if need be, one or two or three of them (tenants holding the larger extents) on the first floor. For this, the landlord will seek a slightly modified plan from the concerned Authority which will grant it expeditiously in the interests of the tenants and will ensure that all the Building Laws are respected by the landlord while constructing. The modified plan will be produced by the landlord before the trial court so as to enable that court to pass formal decrees for eviction and consequential orders for the tenants being put back in possession in the reconstructed building as directed above in terms of Section 18A of the Act. We trust that the concerned Authority when approached in that behalf will take note of the fact that our direction is in the interests of the sitting tenants in the building and that the little modification needed in the Plan is permitted without violating any of the Building Laws. If the Plan as such does not require any alteration in the light of our directions as per the relevant Building laws treating it as only an internal adjustment of the space on the ground floor and on the first floor, it will be open to the landlord to adopt such stand before the trial court and seek decrees for eviction with consequential directions in terms of Section 18A of the Act. In that case, the trial court will satisfy itself on that aspect. We are sure that the trial court will expedite the passing of formal decrees for eviction in terms of Section 13(1)(f) of the Act in the context of Section 18A of the Act by imposing whatever conditions that are required in terms of the statute. | 1[ds]11. We find that the trial court and the High Court were, to a great extent, carried away by the fact that the landlord gave up his claim for eviction under Section 13(1)(ff) of the Act, even while attempting to pursue his claim for eviction under Section 13(1)(f) of the Act. No doubt, there is some confused pleading by the landlord in the plaint by mixing up the claim for eviction under Section 13(1)(ff) and Section 13(1)(f) of the Act. But all the same, by the time the matter came up for trial, both sides knew that the claim was based solely on the ground under Section 13(1)(f), namely, bona fide need for rebuilding after demolition of the existing structure. The landlord had realised his obligation to put the tenants back in possession in terms of Section 18A of the Act. Therefore, when the parties went to trial, the issue was really the claim for eviction under Section 13(1)(f) of the Act and it was so understood by both the parties.12. No doubt, the landlord still intends to occupy the floors other than the ground floor for residential purposes. But, so long as he is in a position to satisfy the requirement of Section 18A of the Act consistent with the building to be put up in terms of the relevant building laws, it could not be held that the claim for eviction on the ground of rebuilding is not bona fide. After all, the building is 100 years old. It is situated in a growing city like Calcutta and it is fetching a meagre income for the landlord by way of rents. Surely, an intention to put the building to better use by way of earning better income consistent with the developments in the locality, cannot be held to be not a bona fide intention, unless of course there is some clear material negativing the bona fides of such an intention. We do not see anything in the present case which would militate against the bona fides of that intention of the landlord. Coupled with this, is the fact that the landlord wants to occupy the upstair portions of the building after reconstruction. Clearly, he cannot do so now, by building over the existing structure, in view of its location and in view of the absence of a staircase to go upstairs and the age of the structure. It is no doubt true that a shop room is in possession of the landlord, the same having been vacated by a tenant and the claim for eviction relates to the other seven rooms in the possession of tenants. Even if a staircase is provided in that portion in the possession of the landlord, the question still remains whether he could be permitted to put up one or more floors in the building as proposed by him in view of the relevant Building Rules and their possible violation. Thus, viewed from these angles, which are relevant considerations as indicated by the decisions referred to by us earlier, it cannot be said that the need put forward by the landlord is not a bona fide one. We are therefore of the view that the High Court and the trial court were not justified in finding that the bona fides of the claim under Section 13(1)(f) of the Act for eviction of the tenants is not made out by the landlord.13. The landlord in his evidence has held out that he has the means to undertake the reconstruction. Before the Appellate Court, he has also produced some evidence in that regard. These are days when finances for such construction activity are more easily available as judicially noticed by one of the decisions. We see no justification for doubting the financial capacity of the landlord to rebuild. The landlord has shown that he has got the validity of the approved plan for rebuilding extended. The High Court, in our view, was not justified in not accepting the evidence produced by the landlord in appeal. We are satisfied that the landlord has made out the ground for eviction under Section 13(1)(f) of the Act on the facts and in the circumstances of the case. We reverse the finding of the High Court in that regard.14. Under Section 18A of the Act, the landlord in a case of eviction under Section 13(1)(f) of the Act has the obligation to put the tenants back in possession of rooms in the reconstructed building, that is an obligation attached to any decree for eviction that may be passed under Section 13(1)(f) of the Act. Certainly, any attempt to defeat that obligation under Section 18A of the Act cannot be encouraged and should be put down with an iron hand. In other words, the landlord will be pinned down to his obligations under Section 18A of the Act and would not be allowed to extricate himself from it or delay the performance of his obligations by resort to devious means. But, that is different from saying that because of the right available to the tenant under Section 18A of the Act, an order for eviction under Section 13(1)(f) of the Act cannot be passed unless the building is about to fall down over the head of the occupant.15. It is the case of the landlord that under the present Building Rules, he has to use the basement for providing parking space and construction can be made only in about 55% of the land available on demolition of the existing building. It is not shown that this claim is not true, or that it is unsustainable. No doubt, P.W. 5 was not instructed to prepare the plan with the obligation to the tenants in mind. It is the further case of the landlord that the landlord is in a position to provide the tenants, seven in number, only with areas roughly corresponding to 30% of the areas occupied by them. The landlord has offered that the area in its possession on the ground floor, could also be made available to the tenants. Even then, the area available to the tenants would fall short of the areas that are now in their possession or that may normally be allotted to them. When the new construction to be put up consists only of a plinth area of about 55% of the existing construction, it will be reasonable for the tenants to be expected to be put back in possession of at least 50% of the areas now in their occupation. According to the landlord, he proposes to provide all the tenants with rooms in the ground floor. It is seen that one of the rooms is occupied by a tenant who runs a Pan Shop therein and he is at present in occupation of an area of 5 square feet only. Two of the tenants are in occupation of only about 62 square feet; one of the tenants is in occupation of 184 square feet and another in occupation of 292 square feet. One of the tenants is in occupation of 315 square feet and the other is in occupation of 580 square feet. The landlord has also to provide a staircase or a lift well and for that reasonable space on the ground floor is required. We think that it will be appropriate to direct the landlord to slightly alter his plan so that after accommodating the tenant running a Pan Shop in a small area, the rest of the tenants could be provided with 50% of the areas now occupied by them, by accommodating, if need be, one or two or three of them (tenants holding the larger extents) on the first floor. For this, the landlord will seek a slightly modified plan from the concerned Authority which will grant it expeditiously in the interests of the tenants and will ensure that all the Building Laws are respected by the landlord while constructing. The modified plan will be produced by the landlord before the trial court so as to enable that court to pass formal decrees for eviction and consequential orders for the tenants being put back in possession in the reconstructed building as directed above in terms of Section 18A of the Act. We trust that the concerned Authority when approached in that behalf will take note of the fact that our direction is in the interests of the sitting tenants in the building and that the little modification needed in the Plan is permitted without violating any of the Building Laws. If the Plan as such does not require any alteration in the light of our directions as per the relevant Building laws treating it as only an internal adjustment of the space on the ground floor and on the first floor, it will be open to the landlord to adopt such stand before the trial court and seek decrees for eviction with consequential directions in terms of Section 18A of the Act. In that case, the trial court will satisfy itself on that aspect. We are sure that the trial court will expedite the passing of formal decrees for eviction in terms of Section 13(1)(f) of the Act in the context of Section 18A of the Act by imposing whatever conditions that are required in terms of the statute. | 1 | 5,371 | 1,741 | ### Instruction:
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Section 13(1)(f) of the Act for eviction of the tenants is not made out by the landlord.13. The landlord in his evidence has held out that he has the means to undertake the reconstruction. Before the Appellate Court, he has also produced some evidence in that regard. These are days when finances for such construction activity are more easily available as judicially noticed by one of the decisions. We see no justification for doubting the financial capacity of the landlord to rebuild. The landlord has shown that he has got the validity of the approved plan for rebuilding extended. The High Court, in our view, was not justified in not accepting the evidence produced by the landlord in appeal. We are satisfied that the landlord has made out the ground for eviction under Section 13(1)(f) of the Act on the facts and in the circumstances of the case. We reverse the finding of the High Court in that regard.14. Under Section 18A of the Act, the landlord in a case of eviction under Section 13(1)(f) of the Act has the obligation to put the tenants back in possession of rooms in the reconstructed building, that is an obligation attached to any decree for eviction that may be passed under Section 13(1)(f) of the Act. Certainly, any attempt to defeat that obligation under Section 18A of the Act cannot be encouraged and should be put down with an iron hand. In other words, the landlord will be pinned down to his obligations under Section 18A of the Act and would not be allowed to extricate himself from it or delay the performance of his obligations by resort to devious means. But, that is different from saying that because of the right available to the tenant under Section 18A of the Act, an order for eviction under Section 13(1)(f) of the Act cannot be passed unless the building is about to fall down over the head of the occupant.15. It is the case of the landlord that under the present Building Rules, he has to use the basement for providing parking space and construction can be made only in about 55% of the land available on demolition of the existing building. It is not shown that this claim is not true, or that it is unsustainable. No doubt, P.W. 5 was not instructed to prepare the plan with the obligation to the tenants in mind. It is the further case of the landlord that the landlord is in a position to provide the tenants, seven in number, only with areas roughly corresponding to 30% of the areas occupied by them. The landlord has offered that the area in its possession on the ground floor, could also be made available to the tenants. Even then, the area available to the tenants would fall short of the areas that are now in their possession or that may normally be allotted to them. When the new construction to be put up consists only of a plinth area of about 55% of the existing construction, it will be reasonable for the tenants to be expected to be put back in possession of at least 50% of the areas now in their occupation. According to the landlord, he proposes to provide all the tenants with rooms in the ground floor. It is seen that one of the rooms is occupied by a tenant who runs a Pan Shop therein and he is at present in occupation of an area of 5 square feet only. Two of the tenants are in occupation of only about 62 square feet; one of the tenants is in occupation of 184 square feet and another in occupation of 292 square feet. One of the tenants is in occupation of 315 square feet and the other is in occupation of 580 square feet. The landlord has also to provide a staircase or a lift well and for that reasonable space on the ground floor is required. We think that it will be appropriate to direct the landlord to slightly alter his plan so that after accommodating the tenant running a Pan Shop in a small area, the rest of the tenants could be provided with 50% of the areas now occupied by them, by accommodating, if need be, one or two or three of them (tenants holding the larger extents) on the first floor. For this, the landlord will seek a slightly modified plan from the concerned Authority which will grant it expeditiously in the interests of the tenants and will ensure that all the Building Laws are respected by the landlord while constructing. The modified plan will be produced by the landlord before the trial court so as to enable that court to pass formal decrees for eviction and consequential orders for the tenants being put back in possession in the reconstructed building as directed above in terms of Section 18A of the Act. We trust that the concerned Authority when approached in that behalf will take note of the fact that our direction is in the interests of the sitting tenants in the building and that the little modification needed in the Plan is permitted without violating any of the Building Laws. If the Plan as such does not require any alteration in the light of our directions as per the relevant Building laws treating it as only an internal adjustment of the space on the ground floor and on the first floor, it will be open to the landlord to adopt such stand before the trial court and seek decrees for eviction with consequential directions in terms of Section 18A of the Act. In that case, the trial court will satisfy itself on that aspect. We are sure that the trial court will expedite the passing of formal decrees for eviction in terms of Section 13(1)(f) of the Act in the context of Section 18A of the Act by imposing whatever conditions that are required in terms of the statute.
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Section 13(1)(f) of the Act for eviction of the tenants is not made out by the landlord.13. The landlord in his evidence has held out that he has the means to undertake the reconstruction. Before the Appellate Court, he has also produced some evidence in that regard. These are days when finances for such construction activity are more easily available as judicially noticed by one of the decisions. We see no justification for doubting the financial capacity of the landlord to rebuild. The landlord has shown that he has got the validity of the approved plan for rebuilding extended. The High Court, in our view, was not justified in not accepting the evidence produced by the landlord in appeal. We are satisfied that the landlord has made out the ground for eviction under Section 13(1)(f) of the Act on the facts and in the circumstances of the case. We reverse the finding of the High Court in that regard.14. Under Section 18A of the Act, the landlord in a case of eviction under Section 13(1)(f) of the Act has the obligation to put the tenants back in possession of rooms in the reconstructed building, that is an obligation attached to any decree for eviction that may be passed under Section 13(1)(f) of the Act. Certainly, any attempt to defeat that obligation under Section 18A of the Act cannot be encouraged and should be put down with an iron hand. In other words, the landlord will be pinned down to his obligations under Section 18A of the Act and would not be allowed to extricate himself from it or delay the performance of his obligations by resort to devious means. But, that is different from saying that because of the right available to the tenant under Section 18A of the Act, an order for eviction under Section 13(1)(f) of the Act cannot be passed unless the building is about to fall down over the head of the occupant.15. It is the case of the landlord that under the present Building Rules, he has to use the basement for providing parking space and construction can be made only in about 55% of the land available on demolition of the existing building. It is not shown that this claim is not true, or that it is unsustainable. No doubt, P.W. 5 was not instructed to prepare the plan with the obligation to the tenants in mind. It is the further case of the landlord that the landlord is in a position to provide the tenants, seven in number, only with areas roughly corresponding to 30% of the areas occupied by them. The landlord has offered that the area in its possession on the ground floor, could also be made available to the tenants. Even then, the area available to the tenants would fall short of the areas that are now in their possession or that may normally be allotted to them. When the new construction to be put up consists only of a plinth area of about 55% of the existing construction, it will be reasonable for the tenants to be expected to be put back in possession of at least 50% of the areas now in their occupation. According to the landlord, he proposes to provide all the tenants with rooms in the ground floor. It is seen that one of the rooms is occupied by a tenant who runs a Pan Shop therein and he is at present in occupation of an area of 5 square feet only. Two of the tenants are in occupation of only about 62 square feet; one of the tenants is in occupation of 184 square feet and another in occupation of 292 square feet. One of the tenants is in occupation of 315 square feet and the other is in occupation of 580 square feet. The landlord has also to provide a staircase or a lift well and for that reasonable space on the ground floor is required. We think that it will be appropriate to direct the landlord to slightly alter his plan so that after accommodating the tenant running a Pan Shop in a small area, the rest of the tenants could be provided with 50% of the areas now occupied by them, by accommodating, if need be, one or two or three of them (tenants holding the larger extents) on the first floor. For this, the landlord will seek a slightly modified plan from the concerned Authority which will grant it expeditiously in the interests of the tenants and will ensure that all the Building Laws are respected by the landlord while constructing. The modified plan will be produced by the landlord before the trial court so as to enable that court to pass formal decrees for eviction and consequential orders for the tenants being put back in possession in the reconstructed building as directed above in terms of Section 18A of the Act. We trust that the concerned Authority when approached in that behalf will take note of the fact that our direction is in the interests of the sitting tenants in the building and that the little modification needed in the Plan is permitted without violating any of the Building Laws. If the Plan as such does not require any alteration in the light of our directions as per the relevant Building laws treating it as only an internal adjustment of the space on the ground floor and on the first floor, it will be open to the landlord to adopt such stand before the trial court and seek decrees for eviction with consequential directions in terms of Section 18A of the Act. In that case, the trial court will satisfy itself on that aspect. We are sure that the trial court will expedite the passing of formal decrees for eviction in terms of Section 13(1)(f) of the Act in the context of Section 18A of the Act by imposing whatever conditions that are required in terms of the statute.
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State Of Bihar & Anr Vs. Dr. Asis Kumar Mukherjee & Ors | a direction. We leave the matter at that, for this reason.21. What do the alleged infirmities add up to? Shri Jagdish Swaroop rightly stressed that once the right to appoint belonged to Government the Court could not usurp it merely because it would have chosen a different person as better qualified or given a finer gloss or different construction to the regulation on the score of a set formula that relevant circumstances had been excluded, irrelevant factors bad influenced and such like grounds familiarly invented by parties to invoke the extraordinary jurisdiction under Art. 226. True, no speaking order need be made while appointing a government servant. Speaking in plaintitud inous terms these propositions may deserve serious reflection. The Administration should not be thwarted in the usual course of making appointments because some-bow it displeases judicial relish or the Court does not agree with its estimate of the relative worth of the candidates. Is there violation of a fundamental right, illegality or akin error of law which vitiates the appointment ? The overlooking of alleged superlative abilities claimed by Dr. Mukherjee is not of judicial concern but of public resentment and individual injustice, if wrongly discarded by an appointing authority-in the absence of proof of bad faith or oblique exercise or other error of law. Nor is the corrective judicial review but an appeal to other democratic processes which hold sanctions against misdoings of any Administration and its minions. The Court is not to evaluate comparatively but to adjudicate on legal flaws.22. Viewed in this perspective, was the High Court right in issuing a writ ? We are disposed to say yes. Undoubtedly, appointments to posts need not be accompanied by speaking orders or reasoned grounds. Then the wheels of Government will slow down to a grinding halt, tardy as it is even otherwise. And comity of constitutional instrumentalities forbids unfriendly interference where jurisdiction does not clearly exist. Granting this institutional modus vivendi, has the Court gone away? No, and we will give our grounds.23. While officious interference with every wrong government order is not right, here the 1st respondent has complained of violation of the regulations which bind State and citizen alike. Although the State need not always make a reasoned order of appointment, reasons relevant to the rules must animate the order. Moreover, an obligation to consider every qualified candidate is implicit in the equal opportunity right enshrined in Arts. 14 and 16 of the Constitution. Screening a candidate out of consideration altogether is il legal if the applicant has eligibility under the regulations. And for such a drastic step as refusal to evaluate comparatively, i.e., exclusion from the ring of a competitor manifest grounds must appear on the record. Such being the leg al perspective, let us test the present order of government by those canons.24. The explanatory affidavit of the appellant State and the records fairly produced by it before the Court disclose that Government has adopted a turbid attitude. Did it disregard Dr. Mukherjee out of band for want of Indian teaching experience in an Indian teaching institution ? Shri Jagdish Swaroops submission is that such experience is essential. If so, a violation of the regulation, as interpreted by us, has bee n committed. Failing in this the State falls back on another basis that his foreign experience is not shown to be from an approved teaching hospital, which may be clever but not straightforward. To be cute in Court may not correspond with being correct in administration. The 1st respondents case for the post has not been considered from the legal angle.26. It was the duty of Government to be satisfied, on reasonable materials, that (a) the U.K. hospitals relied on by the 1st respondent are teaching institutions an explained by us after a study of the spirit of the statute; (b) the posts of Registrar in which he worked for 3 years involved teaching functions, the question being looked at fairly, not by semantic hair-splitting and quibbling on words like participating in teaching; (c) the testimonials or written testimony from any British (or Indian, for that matter) Orthopaedics Professor will taken at its face value except where grave suspicion. taints such document, high-placed academic men being assumed to be veracious in the absence, of clear contrary indications; (d) Indian experience, if any, of the 1st respondent, will also be paid attention, provided it satisfied the dual tests contained in the regulation. We are satisfied that the State has made short shrift of Dr. Mukherjee by preliminary screening. The nothings and reports. and vacillating opinions entertained by Government, at various stages do not detain us as they are incidental to any administrative decision and cannot be espied with a suspicious eye by Court. Governmental ways may not In familiar for forensic processes but for that reason cannot be suspected.27. We have already observed that at the first flush the 1st respondent looks like eligible and highly qualified but there may be more than meets the eye. Government may investigate and be satisfied about the real qualifications. In the interests of justice and in view of the ambiguous thinking on this question at administrative levels we regard it as necessary to give the candidates time till the end of January, 1975 to produce evidence of the 1st respondents teaching experience in teaching institutions as interpreted by us. Government will give a fair consideration to the qualifications and relative worth of all the candidates. Length of teaching experience will certainly be a relevant not necessarily dominant-factor. The quality of their experience, their academic attainments and the intellectual ability to stimulate students in the specialty and the investigative curiosity likely to be imparted to the alumni these weighty considerations will promote public weal in a country hungering for talented doctors. Governments sole concern, we feel confident, will be to Get the most capable, in the public interest and in- the hope that this happy wish will not fail we proceed to issue the substantive declarations and directions. | 0[ds]Maybe such consideration will be pertinent when the appointing authority makes comparative evaluation among the candidates. The submission by Shri Jagdish Swaroop based on the dichotomy in the National Health Service Act, 1946(1) between teaching andhospitals has no substance. It is true that under s. 11 (8) of that Act the Minister of Health is authorised to designate as a teaching hospital any hospital or group of hospitals which appears to him to provide for any university facilities for undergraduate or post graduate clinical teaching. We have no material to find out whether hospitals not so designated do provide facilities for teaching nor the criteria and purpose guiding the Minister in exercising his power. Certainly it will be of great help to the 1st respondent to prove his case that he hospital he worked in was a teaching hospital bad it come under the notification of the Minister. The converse does not necessarily follow. We are concerned with an Indian situation and called upon to construe words which are not defined and therefore bear their natural meaning. In this view we do not proceed to examine whether the hospitals in which the 1st respondent claims to have gained teaching experience belong to the category designated under s. 11(8) of the British Act.12. Section 3 of the Indian Act makes it clear that the constitution and composition of a high powered Council of professional men vested with the responsibility to oversee the conduct of examinations and ensure minimum standards of medical education is among the , objects of the statute. The Council has vast powers including the role , of consultant in some vital matters and according recognition of medical qualifications granted by institutions in India (s. 11), in countries with which there is a scheme of reciprocity (s. 12) and of degrees etc. granted by certain other institutions (s. 13). These three categories of medical institutions are covered by Schedules One to Three of the Act. Section 14 relates to recognition by the Government of India of medical qualifications granted by some other countries abroad, after consulting the Council. Inspection. collection of information, granting and withdrawing of recognition and the like are also ancillary powers statutorily conferred on the Council. The regulation by the Council prescribing teaching experience for three Years in a teaching institutions have statutory status. The provisions of he Act form a conspectus and illumine the meaning of the subsidiary legislation. The Councils regulation under s. 33 must be read in this background.13. It may straightway be mentioned that while the expressions medical institution and approved institution are defined (vide s. 2), neither teaching experience nor teaching institution has been defined in the Act, rules or regulations. Simple Anglo Saxon, the framers must have presumed, must be capable of easy understanding and interpretation. Nevertheless, counsel have argued at learned length on the semantics of those words although we are inclined to take not a pedantic nor artificial view of the import of these words but a simple common sense idea of their meaning. Of course, it would be natural to expect any authority (like the Bihar Government in this case) called upon to construe these words used in the setting of a medical statute, if in doubt, to consult the high professional authority enjoying statutory status, viz., the Medical Council of India. It was faintly suggested at the bar that the Council had given a view once but modified it a little somewhat later. We do not find any deviation and are not disposed toourselves into such non germane issues. if it were true that national technical bodies were shaky on crucial occasions, (although we do not find anything like that has happened here). they lend themselves to the suspicion that pressure pays We are sure they will not expose themselves to this risk. In the present case the Government of Bihar is stated to have taken a policy decision not to consult the Medical Council of India. While the appointing authority is the State Government and the responsibility for final choice vests in it is reasonable to consult bodies or authorities of a high technical level when the points in dispute are of a technical nature. To consult another is not to surrender to that other, but merely to seek assistance in the careful exercise of public power. All that we mean to emphasize is that the plain words we have already referred to, about the meaning of which the two sides have betted, should be read having due regard to their normal import, statutory setting, professional object and insistence onapart, it is apparent from the Act that it has recognized medical institutions in Universities without India (vide s. 12 and s. 14) The question is not therefore so simple as to be solved by reference to the Indian map. This country, while rejecting colonial reverence for British institutions has continued to accept and respect advances made in medical specialities abroad, including the United Kingdom and the United States, as is reflected in the Act. Theconstruction is untenable. Equally extreme and unsustainable is the specious plea of Shri Desai that any teaching experience from any foreign teaching institution is good enough. Imagine teaching experience, acquired from some unmentionablycountry which is new to modern medicine being fobbed off on an Indian College Reputed institutions noted for their advanced courses of teaching and training cannot be ignored merely because they bear a foreign badge. What we have to look for is to find guidelines within the framework of the Act for fixing those foreign me dical institutions. Such a nexus once, discernible might light up the otherwise illicit expressions teaching experience and teaching institutions. We have therefore to look, at the outset, for indicators in the Act for deciding which foreign teaching institutions may safely fall within the scope of regulation. The whole object is to see that India gets highly qualified medical teachers and this is served neither by narrow swadeshi nor by neocolonialism. but by setting our sights on the lines of the statute. Indeed, the argument that the teaching institutions in India alone can be taken rote of had been urged andin the first round of litigation by the High Court and the State Government had virtually accepted that decision when it examined the case of Dr. Mukherjee in accordance with the direction in writ petition C.W.J.C. No. 754 of 1972. Teaching institutions abroad not being ruled out, we consider it right to reckon as competent and qualitatively acceptable those institutions which are linked with, or are recognised as teaching institutions by the Universities and organisations in Schedule 11 and Schedule III and recognised by the Central Government under s. 14. Teaching institutions as such may be too wide if extended all over the globe but viewed in the perspective ofthe Indian Medical Council Act, 1956 certainly they cover institutions expressly embraced by the provisions of the statute. If those institutions are good enough for the important purposes of ss. 12, 13 and 14, it is reasonable to infer they are good enough for the teaching experience gained therefrom being reckoned as satisfactory. In this view the problem is whether the institutions referred to in the testimonials of Dr. Mukherjee come within the above recognised categories. We have also to see whether Dr. Mukherjees service in those institutions as a Registrar, even if assumed in his favour, amount to teaching experience. We will deal with these two decisive questions presently.15. We agree that bald expressions teaching experience and teaching institutions with blurred contours have been at the root of the controversy but, as Denning, L.J., inSeaford Court Estates Ltd. v. Asher([1949] (2) All. E.R. 155,n a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament.... and then he must supplement the written words so as/to give force and life to the intention of legislature .... A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out thetake the cue from these observations in the construction we. have adopted above.16. The Indian teaching institutions plea having beenard persistence this time is unfortunate. Even so, the 1st respondent must make out that his institutions fall within the species we have already indicated. Prima facie they do and there is no reason to suspect that the testimonials produced by him are trumped up. Unless proved to the contrary they should be taken by a public authority acting bona fide at their face value.17. Teaching experience of the requisite period is another component of qualifications. A Registrar, the first respondent was, for three years. But did he teach during that term ? He did, if we read his certificates issued by professors like Dr. Robert Roaf and Dr. Geoffrey Osbrone. The appellants however have challenged their reliability. There are 6 certificates now on record and the 1st respondent is stated to have taken part in teaching work as Registrar. You cannot expect to produce those surgeons in Patna in proof and unless serious circumstances militating against veracity existadministrators may, after expert consultations, rely on them. We are sure Government will not depart from fair play in this case or stand on prestige on such an issue to stick to their earlieris nothing wrong in obtaining such testimonials to clarify the position and we see no unusual bias in these testimonials from such outstanding Professors of Orthopaedics in Britishthe language of those documents there is some marginal doubt, in the sense that he is stated to have participated or assisted in teaching. The contention of the other side naturally is that assisting or participating is different from actual teaching. While we are hesitant to swallow such a contention it is not for us to finally pronounce on it, the matter being essentially a technical one. Indeed we have restrained ourselves from finally stating whether the institutions in which Dr. Mukherjee has worked are teaching institutions and whether the Registrars post in which he worked gave him such teaching experience. These two matters have to be decided by the appointing authority. Courts cannot and do not appoint petitioners to posts they claim but lay down the legal criteria and give the correct directions, the Executive being the organ of State to exercise, the power to appoint but in conformity with the legal directions. The State Government being that authority has to take the ultimate decision.20.There is some force in the grievance of counsel for the State that the Court should not ordinarily call for Cabinet papers and start scrutinising the nothings and re ports of the various officers marely because a writ petition challenging the order has been made.When a writ of certiorari is moved, the Court has the power to call for the record, but in case where mala fides is not alleged or other special circumstances set out, sensitive materials in the possession of government may not routinely be sent for. The power of the Court is wide but will have to be exercised judicially and judiciously, having regard to the totality of circumstances, including the impropriety of every disgruntled party getting an opportunity to pry into the files of government. Of course, acts of public authorities must ordinarily be amenable to public scrutiny and not be hidden in suspicious secrecy. W.?, are not satisfied that the High Court in this, case should necessarily have lookedCabinet papers and back records, but the question has not been argued, except to the extent of mentioning that the Court was not in order although the State Government had produced the document on a direction. We leave the matter at that, for thisno speaking order need be made while appointing a government servant. Speaking in plaintitud inous terms these propositions may deserve serious reflection. The Administration should not be thwarted in the usual course of making appointments becauseit displeases judicial relish or the Court does not agree with its estimate of the relative worth of the candidates. Is there violation of a fundamental right, illegality or akin error of law which vitiates the appointment ? The overlooking of alleged superlative abilities claimed by Dr. Mukherjee is not of judicial concern but of public resentment and individual injustice, if wrongly discarded by an appointingthe absence of proof of bad faith or oblique exercise or other error of law. Nor is the corrective judicial review but an appeal to other democratic processes which hold sanctions against misdoings of any Administration and its minions. The Court is not to evaluate comparatively but to adjudicate on legal flaws.22. Viewed in this perspective, was the High Court right in issuing a writ ? We are disposed to say yes. Undoubtedly, appointments to posts need not be accompanied by speaking orders or reasoned grounds. Then the wheels of Government will slow down to a grinding halt, tardy as it is even otherwise. And comity of constitutional instrumentalities forbids unfriendly interference where jurisdiction does not clearly exist. Granting this institutional modus vivendi, has the Court gone away? No, and we will give our grounds.23. While officious interference with every wrong government order is not right, here the 1st respondent has complained of violation of the regulations which bind State and citizen alike. Although the State need not always make a reasoned order of appointment, reasons relevant to the rules must animate the order. Moreover, an obligation to consider every qualified candidate is implicit in the equal opportunity right enshrined in Arts. 14 and 16 of the Constitution. Screening a candidate out of consideration altogether is il legal if the applicant has eligibility under the regulations. And for such a drastic step as refusal to evaluate comparatively, i.e., exclusion from the ring of a competitor manifest grounds must appear on the record. Such being the leg al perspective, let us test the present order of government by those canons.24. The explanatory affidavit of the appellant State and the records fairly produced by it before the Court disclose that Government has adopted a turbid attitude. Did it disregard Dr. Mukherjee out of band for want of Indian teaching experience in an Indian teaching institution ? Shri Jagdish Swaroops submission is that such experience is essential. If so, a violation of the regulation, as interpreted by us, has bee n committed. Failing in this the State falls back on another basis that his foreign experience is not shown to be from an approved teaching hospital, which may be clever but not straightforward. To be cute in Court may not correspond with being correct in administration. The 1st respondents case for the post has not been considered from the legal angle.26. It was the duty of Government to be satisfied, on reasonable materials, that (a) the U.K. hospitals relied on by the 1st respondent are teaching institutions an explained by us after a study of the spirit of the statute; (b) the posts of Registrar in which he worked for 3 years involved teaching functions, the question being looked at fairly, not by semanticand quibbling on words like participating in teaching; (c) the testimonials or written testimony from any British (or Indian, for that matter) Orthopaedics Professor will taken at its face value except where grave suspicion. taints such document,academic men being assumed to be veracious in the absence, of clear contrary indications; (d) Indian experience, if any, of the 1st respondent, will also be paid attention, provided it satisfied the dual tests contained in the regulation. We are satisfied that the State has made short shrift of Dr. Mukherjee by preliminary screening. The nothings and reports. and vacillating opinions entertained by Government, at various stages do not detain us as they are incidental to any administrative decision and cannot be espied with a suspicious eye by Court. Governmental ways may not In familiar for forensic processes but for that reason cannot be suspected.27. We have already observed that at the first flush the 1st respondent looks like eligible and highly qualified but there may be more than meets the eye. Government may investigate and be satisfied about the real qualifications. In the interests of justice and in view of the ambiguous thinking on this question at administrative levels we regard it as necessary to give the candidates time till the end of January, 1975 to produce evidence of the 1st respondents teaching experience in teaching institutions as interpreted by us. Government will give a fair consideration to the qualifications and relative worth of all the candidates. Length of teaching experience will certainly be a relevant not necessarilyThe quality of their experience, their academic attainments and the intellectual ability to stimulate students in the specialty and the investigative curiosity likely to be imparted to the alumni these weighty considerations will promote public weal in a country hungering for talented doctors. Governments sole concern, we feel confident, will be to Get the most capable, in the public interest and inthe hope that this happy wish will not fail we proceed to issue the substantive declarations and directions. | 0 | 5,279 | 3,156 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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a direction. We leave the matter at that, for this reason.21. What do the alleged infirmities add up to? Shri Jagdish Swaroop rightly stressed that once the right to appoint belonged to Government the Court could not usurp it merely because it would have chosen a different person as better qualified or given a finer gloss or different construction to the regulation on the score of a set formula that relevant circumstances had been excluded, irrelevant factors bad influenced and such like grounds familiarly invented by parties to invoke the extraordinary jurisdiction under Art. 226. True, no speaking order need be made while appointing a government servant. Speaking in plaintitud inous terms these propositions may deserve serious reflection. The Administration should not be thwarted in the usual course of making appointments because some-bow it displeases judicial relish or the Court does not agree with its estimate of the relative worth of the candidates. Is there violation of a fundamental right, illegality or akin error of law which vitiates the appointment ? The overlooking of alleged superlative abilities claimed by Dr. Mukherjee is not of judicial concern but of public resentment and individual injustice, if wrongly discarded by an appointing authority-in the absence of proof of bad faith or oblique exercise or other error of law. Nor is the corrective judicial review but an appeal to other democratic processes which hold sanctions against misdoings of any Administration and its minions. The Court is not to evaluate comparatively but to adjudicate on legal flaws.22. Viewed in this perspective, was the High Court right in issuing a writ ? We are disposed to say yes. Undoubtedly, appointments to posts need not be accompanied by speaking orders or reasoned grounds. Then the wheels of Government will slow down to a grinding halt, tardy as it is even otherwise. And comity of constitutional instrumentalities forbids unfriendly interference where jurisdiction does not clearly exist. Granting this institutional modus vivendi, has the Court gone away? No, and we will give our grounds.23. While officious interference with every wrong government order is not right, here the 1st respondent has complained of violation of the regulations which bind State and citizen alike. Although the State need not always make a reasoned order of appointment, reasons relevant to the rules must animate the order. Moreover, an obligation to consider every qualified candidate is implicit in the equal opportunity right enshrined in Arts. 14 and 16 of the Constitution. Screening a candidate out of consideration altogether is il legal if the applicant has eligibility under the regulations. And for such a drastic step as refusal to evaluate comparatively, i.e., exclusion from the ring of a competitor manifest grounds must appear on the record. Such being the leg al perspective, let us test the present order of government by those canons.24. The explanatory affidavit of the appellant State and the records fairly produced by it before the Court disclose that Government has adopted a turbid attitude. Did it disregard Dr. Mukherjee out of band for want of Indian teaching experience in an Indian teaching institution ? Shri Jagdish Swaroops submission is that such experience is essential. If so, a violation of the regulation, as interpreted by us, has bee n committed. Failing in this the State falls back on another basis that his foreign experience is not shown to be from an approved teaching hospital, which may be clever but not straightforward. To be cute in Court may not correspond with being correct in administration. The 1st respondents case for the post has not been considered from the legal angle.26. It was the duty of Government to be satisfied, on reasonable materials, that (a) the U.K. hospitals relied on by the 1st respondent are teaching institutions an explained by us after a study of the spirit of the statute; (b) the posts of Registrar in which he worked for 3 years involved teaching functions, the question being looked at fairly, not by semantic hair-splitting and quibbling on words like participating in teaching; (c) the testimonials or written testimony from any British (or Indian, for that matter) Orthopaedics Professor will taken at its face value except where grave suspicion. taints such document, high-placed academic men being assumed to be veracious in the absence, of clear contrary indications; (d) Indian experience, if any, of the 1st respondent, will also be paid attention, provided it satisfied the dual tests contained in the regulation. We are satisfied that the State has made short shrift of Dr. Mukherjee by preliminary screening. The nothings and reports. and vacillating opinions entertained by Government, at various stages do not detain us as they are incidental to any administrative decision and cannot be espied with a suspicious eye by Court. Governmental ways may not In familiar for forensic processes but for that reason cannot be suspected.27. We have already observed that at the first flush the 1st respondent looks like eligible and highly qualified but there may be more than meets the eye. Government may investigate and be satisfied about the real qualifications. In the interests of justice and in view of the ambiguous thinking on this question at administrative levels we regard it as necessary to give the candidates time till the end of January, 1975 to produce evidence of the 1st respondents teaching experience in teaching institutions as interpreted by us. Government will give a fair consideration to the qualifications and relative worth of all the candidates. Length of teaching experience will certainly be a relevant not necessarily dominant-factor. The quality of their experience, their academic attainments and the intellectual ability to stimulate students in the specialty and the investigative curiosity likely to be imparted to the alumni these weighty considerations will promote public weal in a country hungering for talented doctors. Governments sole concern, we feel confident, will be to Get the most capable, in the public interest and in- the hope that this happy wish will not fail we proceed to issue the substantive declarations and directions.
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to be exercised judicially and judiciously, having regard to the totality of circumstances, including the impropriety of every disgruntled party getting an opportunity to pry into the files of government. Of course, acts of public authorities must ordinarily be amenable to public scrutiny and not be hidden in suspicious secrecy. W.?, are not satisfied that the High Court in this, case should necessarily have lookedCabinet papers and back records, but the question has not been argued, except to the extent of mentioning that the Court was not in order although the State Government had produced the document on a direction. We leave the matter at that, for thisno speaking order need be made while appointing a government servant. Speaking in plaintitud inous terms these propositions may deserve serious reflection. The Administration should not be thwarted in the usual course of making appointments becauseit displeases judicial relish or the Court does not agree with its estimate of the relative worth of the candidates. Is there violation of a fundamental right, illegality or akin error of law which vitiates the appointment ? The overlooking of alleged superlative abilities claimed by Dr. Mukherjee is not of judicial concern but of public resentment and individual injustice, if wrongly discarded by an appointingthe absence of proof of bad faith or oblique exercise or other error of law. Nor is the corrective judicial review but an appeal to other democratic processes which hold sanctions against misdoings of any Administration and its minions. The Court is not to evaluate comparatively but to adjudicate on legal flaws.22. Viewed in this perspective, was the High Court right in issuing a writ ? We are disposed to say yes. Undoubtedly, appointments to posts need not be accompanied by speaking orders or reasoned grounds. Then the wheels of Government will slow down to a grinding halt, tardy as it is even otherwise. And comity of constitutional instrumentalities forbids unfriendly interference where jurisdiction does not clearly exist. Granting this institutional modus vivendi, has the Court gone away? No, and we will give our grounds.23. While officious interference with every wrong government order is not right, here the 1st respondent has complained of violation of the regulations which bind State and citizen alike. Although the State need not always make a reasoned order of appointment, reasons relevant to the rules must animate the order. Moreover, an obligation to consider every qualified candidate is implicit in the equal opportunity right enshrined in Arts. 14 and 16 of the Constitution. Screening a candidate out of consideration altogether is il legal if the applicant has eligibility under the regulations. And for such a drastic step as refusal to evaluate comparatively, i.e., exclusion from the ring of a competitor manifest grounds must appear on the record. Such being the leg al perspective, let us test the present order of government by those canons.24. The explanatory affidavit of the appellant State and the records fairly produced by it before the Court disclose that Government has adopted a turbid attitude. Did it disregard Dr. Mukherjee out of band for want of Indian teaching experience in an Indian teaching institution ? Shri Jagdish Swaroops submission is that such experience is essential. If so, a violation of the regulation, as interpreted by us, has bee n committed. Failing in this the State falls back on another basis that his foreign experience is not shown to be from an approved teaching hospital, which may be clever but not straightforward. To be cute in Court may not correspond with being correct in administration. The 1st respondents case for the post has not been considered from the legal angle.26. It was the duty of Government to be satisfied, on reasonable materials, that (a) the U.K. hospitals relied on by the 1st respondent are teaching institutions an explained by us after a study of the spirit of the statute; (b) the posts of Registrar in which he worked for 3 years involved teaching functions, the question being looked at fairly, not by semanticand quibbling on words like participating in teaching; (c) the testimonials or written testimony from any British (or Indian, for that matter) Orthopaedics Professor will taken at its face value except where grave suspicion. taints such document,academic men being assumed to be veracious in the absence, of clear contrary indications; (d) Indian experience, if any, of the 1st respondent, will also be paid attention, provided it satisfied the dual tests contained in the regulation. We are satisfied that the State has made short shrift of Dr. Mukherjee by preliminary screening. The nothings and reports. and vacillating opinions entertained by Government, at various stages do not detain us as they are incidental to any administrative decision and cannot be espied with a suspicious eye by Court. Governmental ways may not In familiar for forensic processes but for that reason cannot be suspected.27. We have already observed that at the first flush the 1st respondent looks like eligible and highly qualified but there may be more than meets the eye. Government may investigate and be satisfied about the real qualifications. In the interests of justice and in view of the ambiguous thinking on this question at administrative levels we regard it as necessary to give the candidates time till the end of January, 1975 to produce evidence of the 1st respondents teaching experience in teaching institutions as interpreted by us. Government will give a fair consideration to the qualifications and relative worth of all the candidates. Length of teaching experience will certainly be a relevant not necessarilyThe quality of their experience, their academic attainments and the intellectual ability to stimulate students in the specialty and the investigative curiosity likely to be imparted to the alumni these weighty considerations will promote public weal in a country hungering for talented doctors. Governments sole concern, we feel confident, will be to Get the most capable, in the public interest and inthe hope that this happy wish will not fail we proceed to issue the substantive declarations and directions.
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G.K. Choksi and Company Vs. Commissioner of Income Tax, Gujarat | word "business" appearing in sub-section 32(1)(iv) to include "profession" as well. The legislature intended to have different scope for business and profession in Section 32(1). If the legislature had intended to include "profession" in the word "business", then there was no need to mention two different words, i.e., "business" or "profession" in Section 32(1) of the Act.13. Section 32(1) stipulates that on buildings, machinery, plant or furniture which is owned by an assessee and used for the purposes of "business or profession", depreciation shall be available by way of deduction. Section 32(1) uses the phrase "the following deductions shall", therefore it is apparent that the said sub-section is laying down general conditions or basic requirements, on fulfillment of which, an assessee shall become eligible for deductions as provided in the various clauses which follow. The learned counsel appearing for the Revenue has rightly contended that from the Scheme of the Section it is discernible that various clauses shall operate on further specific conditions laid down in each individual clause. Clause (i) deals with case of ships other than ships ordinarily plying on inland waters, clause (ii) pertains to buildings, machinery, plant or furniture, other than ships and is applicable to both business and profession in regard to the claim for depreciation in respect of the building , machinery, plant or furniture. In clause (iv) the legislature has used the word "business" only. It means that the legislature was conscious of the fact that the business and profession are different and separate and they cannot be used interchangeably. It is a pointer to the fact that the Legislature under clause (iv) intended to restrict the benefit to the assessees carrying on business only. In sub-clause (ii) the legislature has specifically extended the benefit of depreciation to the assessees carrying on "business" as well as "profession" whereas in sub-section (iv), the legislature has restricted the benefit to the asseessees carrying on "business" only. 14. This Court rendered the decision in Barendra Prasad Rays case (supra) in the context of Section 9(1), wherein the Court, after discussing the case laws, definitions, dictionary meanings, concluded as under: "The word "business" is one of wide import and it means an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income. We are of the view that in the context in which the expression "business connection" is used in s.9(1) of the Act, there is no warrant for giving a restricted meaning to it excluding "professional connections" from its scope." 15. In Barendra Prasad Rays case (supra), this Court was interpreting the expression "business connection" as used in Section 9(1) of the Act and held that there was no warrant for giving a restricted meaning to it to exclude "professional connections" from its scope. Section 9(1) deals with a different situation. It occurs in Chapter II of the Act, while Section 32 occurs in Part D of Chapter IV of the Act. This decision was rendered on the peculiar facts and circumstance of the said case and has to be restricted to the situation prevailing therein. It cannot be applied to every case irrespective of its facts. Section 32 finds place in Chapter IV, Part D of the Act which deals with "profits and gains of business or professions. The wording of two provisions, i.e., Section 9(1) and Section 32 of the Act are quite different and the interpretation put on the words "business connection" while interpreting Section 9(1), cannot be applied to a fact situation under Section 32(1)(iv) to hold that the expression "business" occurring in Section 32(1)(iv) would include "profession" as well. 16. As already observed, Section 32(1) lays down the general conditions or basic requirements on fulfillment of which an assessee shall become eligible for deduction as provided under various clauses which follow. Clauses (i), (ii) and (iv) operate in different fields and deal with different set of assessees for the purposes of claiming depreciation. In our opinion Barendra Prasad Rays case (supra) has no application in the present case. 17. Part D consists of Sections 28 to 43 of the Act which deals with profits and gains of business or profession. Though the phrase has been used in certain sections as "business or profession", but nowhere has the phrase been used as the "business and profession". In fact, wherever the legislature intended that the benefit of a particular provision should be for both business or profession, it has used the words "business or profession" and wherever it intended to restrict the benefit to either business or profession, then the legislature has used the word either "business" or "profession", meaning thereby that it intended to extend the benefit to either "business" or "profession", i.e., the one would not include the other. 18. We agree with the submission made by the counsel for the appellant that in view of the settled law, if two interpretations are possible, then the one in favour of the assessee should be adopted. But, we are of the view that in the present case two interpretations are not possible as the word "business" occurring in clause (iv) of Section 32(1), by no stretch of imagination, can be said to include "profession" as well. If the expression "business" is interpreted as including within its scope "profession", it would not mean that the lacuna has been made good by giving a wider interpretation to the word business. There is nothing in Section 32(1)(iv) which envisages the scope of word "business" to include in it "profession" as well. If the expression "business" is interpreted to include within its scope "profession" as well, it would be doing violence to the provisions of the Act. Such interpretation would amount to first creating an imaginative lacuna and then filling it up, which is not permissible in law. The contention of the counsel for the appellant that Section 32(1)(iv) should be given purposive interpretation to include "profession", has thus to be rejected. | 0[ds]12. We do not find much substance in the submissions advanced by the learned counsel for the appellant. Section 32(1) of the Act does not help the appellant in any way to construe the word "business" appearing in32(1)(iv) to include "profession" as well. The legislature intended to have different scope for business and profession in Section 32(1). If the legislature had intended to include "profession" in the word "business", then there was no need to mention two different words, i.e., "business" or "profession" in Section 32(1) of the Act.13. Section 32(1) stipulates that on buildings, machinery, plant or furniture which is owned by an assessee and used for the purposes of "business or profession", depreciation shall be available by way of deduction. Section 32(1) uses the phrase "the following deductions shall", therefore it is apparent that the saidis laying down general conditions or basic requirements, on fulfillment of which, an assessee shall become eligible for deductions as provided in the various clauses which follow. The learned counsel appearing for the Revenue has rightly contended that from the Scheme of the Section it is discernible that various clauses shall operate on further specific conditions laid down in each individual clause. Clause (i) deals with case of ships other than ships ordinarily plying on inland waters, clause (ii) pertains to buildings, machinery, plant or furniture, other than ships and is applicable to both business and profession in regard to the claim for depreciation in respect of the building , machinery, plant or furniture. In clause (iv) the legislature has used the word "business" only. It means that the legislature was conscious of the fact that the business and profession are different and separate and they cannot be used interchangeably. It is a pointer to the fact that the Legislature under clause (iv) intended to restrict the benefit to the assessees carrying on business only. In(ii) the legislature has specifically extended the benefit of depreciation to the assessees carrying on "business" as well as "profession" whereas in(iv), the legislature has restricted the benefit to the asseessees carrying on "business" only.We agree with the submission made by the counsel for the appellant that in view of the settled law, if two interpretations are possible, then the one in favour of the assessee should be adopted. But, we are of the view that in the present case two interpretations are not possible as the word "business" occurring in clause (iv) of Section 32(1), by no stretch of imagination, can be said to include "profession" as well. If the expression "business" is interpreted as including within its scope "profession", it would not mean that the lacuna has been made good by giving a wider interpretation to the word business. There is nothing in Section 32(1)(iv) which envisages the scope of word "business" to include in it "profession" as well. If the expression "business" is interpreted to include within its scope "profession" as well, it would be doing violence to the provisions of the Act. Such interpretation would amount to first creating an imaginative lacuna and then filling it up, which is not permissible in law. The contention of the counsel for the appellant that Section 32(1)(iv) should be given purposive interpretation to include "profession", has thus to be rejected. | 0 | 3,183 | 685 | ### Instruction:
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word "business" appearing in sub-section 32(1)(iv) to include "profession" as well. The legislature intended to have different scope for business and profession in Section 32(1). If the legislature had intended to include "profession" in the word "business", then there was no need to mention two different words, i.e., "business" or "profession" in Section 32(1) of the Act.13. Section 32(1) stipulates that on buildings, machinery, plant or furniture which is owned by an assessee and used for the purposes of "business or profession", depreciation shall be available by way of deduction. Section 32(1) uses the phrase "the following deductions shall", therefore it is apparent that the said sub-section is laying down general conditions or basic requirements, on fulfillment of which, an assessee shall become eligible for deductions as provided in the various clauses which follow. The learned counsel appearing for the Revenue has rightly contended that from the Scheme of the Section it is discernible that various clauses shall operate on further specific conditions laid down in each individual clause. Clause (i) deals with case of ships other than ships ordinarily plying on inland waters, clause (ii) pertains to buildings, machinery, plant or furniture, other than ships and is applicable to both business and profession in regard to the claim for depreciation in respect of the building , machinery, plant or furniture. In clause (iv) the legislature has used the word "business" only. It means that the legislature was conscious of the fact that the business and profession are different and separate and they cannot be used interchangeably. It is a pointer to the fact that the Legislature under clause (iv) intended to restrict the benefit to the assessees carrying on business only. In sub-clause (ii) the legislature has specifically extended the benefit of depreciation to the assessees carrying on "business" as well as "profession" whereas in sub-section (iv), the legislature has restricted the benefit to the asseessees carrying on "business" only. 14. This Court rendered the decision in Barendra Prasad Rays case (supra) in the context of Section 9(1), wherein the Court, after discussing the case laws, definitions, dictionary meanings, concluded as under: "The word "business" is one of wide import and it means an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income. We are of the view that in the context in which the expression "business connection" is used in s.9(1) of the Act, there is no warrant for giving a restricted meaning to it excluding "professional connections" from its scope." 15. In Barendra Prasad Rays case (supra), this Court was interpreting the expression "business connection" as used in Section 9(1) of the Act and held that there was no warrant for giving a restricted meaning to it to exclude "professional connections" from its scope. Section 9(1) deals with a different situation. It occurs in Chapter II of the Act, while Section 32 occurs in Part D of Chapter IV of the Act. This decision was rendered on the peculiar facts and circumstance of the said case and has to be restricted to the situation prevailing therein. It cannot be applied to every case irrespective of its facts. Section 32 finds place in Chapter IV, Part D of the Act which deals with "profits and gains of business or professions. The wording of two provisions, i.e., Section 9(1) and Section 32 of the Act are quite different and the interpretation put on the words "business connection" while interpreting Section 9(1), cannot be applied to a fact situation under Section 32(1)(iv) to hold that the expression "business" occurring in Section 32(1)(iv) would include "profession" as well. 16. As already observed, Section 32(1) lays down the general conditions or basic requirements on fulfillment of which an assessee shall become eligible for deduction as provided under various clauses which follow. Clauses (i), (ii) and (iv) operate in different fields and deal with different set of assessees for the purposes of claiming depreciation. In our opinion Barendra Prasad Rays case (supra) has no application in the present case. 17. Part D consists of Sections 28 to 43 of the Act which deals with profits and gains of business or profession. Though the phrase has been used in certain sections as "business or profession", but nowhere has the phrase been used as the "business and profession". In fact, wherever the legislature intended that the benefit of a particular provision should be for both business or profession, it has used the words "business or profession" and wherever it intended to restrict the benefit to either business or profession, then the legislature has used the word either "business" or "profession", meaning thereby that it intended to extend the benefit to either "business" or "profession", i.e., the one would not include the other. 18. We agree with the submission made by the counsel for the appellant that in view of the settled law, if two interpretations are possible, then the one in favour of the assessee should be adopted. But, we are of the view that in the present case two interpretations are not possible as the word "business" occurring in clause (iv) of Section 32(1), by no stretch of imagination, can be said to include "profession" as well. If the expression "business" is interpreted as including within its scope "profession", it would not mean that the lacuna has been made good by giving a wider interpretation to the word business. There is nothing in Section 32(1)(iv) which envisages the scope of word "business" to include in it "profession" as well. If the expression "business" is interpreted to include within its scope "profession" as well, it would be doing violence to the provisions of the Act. Such interpretation would amount to first creating an imaginative lacuna and then filling it up, which is not permissible in law. The contention of the counsel for the appellant that Section 32(1)(iv) should be given purposive interpretation to include "profession", has thus to be rejected.
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12. We do not find much substance in the submissions advanced by the learned counsel for the appellant. Section 32(1) of the Act does not help the appellant in any way to construe the word "business" appearing in32(1)(iv) to include "profession" as well. The legislature intended to have different scope for business and profession in Section 32(1). If the legislature had intended to include "profession" in the word "business", then there was no need to mention two different words, i.e., "business" or "profession" in Section 32(1) of the Act.13. Section 32(1) stipulates that on buildings, machinery, plant or furniture which is owned by an assessee and used for the purposes of "business or profession", depreciation shall be available by way of deduction. Section 32(1) uses the phrase "the following deductions shall", therefore it is apparent that the saidis laying down general conditions or basic requirements, on fulfillment of which, an assessee shall become eligible for deductions as provided in the various clauses which follow. The learned counsel appearing for the Revenue has rightly contended that from the Scheme of the Section it is discernible that various clauses shall operate on further specific conditions laid down in each individual clause. Clause (i) deals with case of ships other than ships ordinarily plying on inland waters, clause (ii) pertains to buildings, machinery, plant or furniture, other than ships and is applicable to both business and profession in regard to the claim for depreciation in respect of the building , machinery, plant or furniture. In clause (iv) the legislature has used the word "business" only. It means that the legislature was conscious of the fact that the business and profession are different and separate and they cannot be used interchangeably. It is a pointer to the fact that the Legislature under clause (iv) intended to restrict the benefit to the assessees carrying on business only. In(ii) the legislature has specifically extended the benefit of depreciation to the assessees carrying on "business" as well as "profession" whereas in(iv), the legislature has restricted the benefit to the asseessees carrying on "business" only.We agree with the submission made by the counsel for the appellant that in view of the settled law, if two interpretations are possible, then the one in favour of the assessee should be adopted. But, we are of the view that in the present case two interpretations are not possible as the word "business" occurring in clause (iv) of Section 32(1), by no stretch of imagination, can be said to include "profession" as well. If the expression "business" is interpreted as including within its scope "profession", it would not mean that the lacuna has been made good by giving a wider interpretation to the word business. There is nothing in Section 32(1)(iv) which envisages the scope of word "business" to include in it "profession" as well. If the expression "business" is interpreted to include within its scope "profession" as well, it would be doing violence to the provisions of the Act. Such interpretation would amount to first creating an imaginative lacuna and then filling it up, which is not permissible in law. The contention of the counsel for the appellant that Section 32(1)(iv) should be given purposive interpretation to include "profession", has thus to be rejected.
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Tata Advanced Materials Limited Vs. M/S. Tooltech Global Engineering Private Limited | that the dispute regarding the debt payable by the Respondent company to the Appellant is neither bona fide, nor substantial. There is no dispute that the Respondent company placed purchase orders upon the Appellant and the Appellant supplied goods in pursuance of the same. There is no dispute that the Appellant raised invoices from time to time aggregating to Rs.2,16,64,437/- out of which an amount of Rs.1,31,49,778/- was paid by the Respondent company to the Appellant without any demur. Even with regard to the balance, there was never any serious demur. In these circumstances, we are of the opinion that the dispute as regards the debt, belatedly raised is an afterthought and is neither bona fide, nor substantial.11. Mr. Kulkarni, however, submitted that the undertaking dated 29 July 2009 itself states that the amount stated therein is subject to reconciliation. Therefore, he submitted that the undertaking cannot be relied upon to establish any debt. We are unable to accept this contention for the following reasons:(i) The undertaking, which otherwise, clearly and unequivocally acknowledges the liability and assures payments as per stipulated schedule, very vaguely states:this amount due includes certain invoices which are under reconciliation for material cost.(ii) In the schedule of repayment contained in the undertaking, as against the amount of Rs.41,84,426/- repayable by 15 September 2009, there is the following endorsement:due after material cost reconciliation.(iii) Pitted against such vague endorsements are clear and unambiguous acknowledgements of debt and undertaking to pay total amount of Rs.81,84,426/- to the Appellant.(iv) The Respondent company, neither in its reply to the statutory notice, nor in its reply to the petition for winding up has placed any material on record to suggest that any reconciliation was in fact carried out and that upon such reconciliation any amount was found as not due and payable to the Appellant.(v) Much after the execution of the undertaking dated 29 July 2009, the Respondent company has made endorsements upon the balance confirmation letters dated 25 March 2010 and 7 March 2011 confirming that the Appellant is to receive from the Respondent company an amount of Rs.85,41,219.80 as on 28 February 2010 and 28 February 2011.12. Mr. Kulkarni, then contended that as per the agreement between the parties, payments were to be effected by the Respondent company within 3 to 5 working days on receipt of payment from Hindustan Aeronautical Limited (HAL) on a back to back basis. In this regard, Mr. Kulkarni referred to Clause 5.2 of the purchase order dated 17 July 2009, which reads as follows:5.2 Tooltech shall release to TAML all payments due to them (and provide all Reasonable documentation as proof, if required), within 3 to 5 working days on receipt of their (Tooltechs) payment from HAL on a back to back basis. However, Tooltech would do the best possible to release the payment within 45 days from the date of receipt of certified bills from TAML.The first part of the Clause 5.2 of the purchase order does make reference to payment within 3 to 5 working days from the company receiving payment from HAL on back to back basis. However, the second part provides that the Respondent company would do the best possible to release the payment within 45 days from the date of receipt of certified bills from the Appellant. The use of the word however makes it clear that though the Respondent company was bound to effect the payments within 3 to 5 working days upon receipt of payments from HAL, nevertheless if such payments were not forthcoming from HAL, the Respondent company would do the best possible to release payments within 45 days from the date of receipt of certified bills from the Appellant. The payments of amounts to the Appellant was therefore not dependant upon the Respondent company receiving payments from HAL. Further this is not a case where there was any form of tripartite agreement between the Appellant, Respondent company and HAL. In fact, there was no privity of contract between the Appellant and HAL. Such defence was never raised by the Respondent company either at the stage of executing the undertaking dated 29 July 2009 or at the stage of acknowledging the amount due in pursuance of the balance confirmation letters dated 25 March 2010 and 7 March 2011. In the circumstances, we find that the defence raised is neither a bona fide nor a substantial one.13. The third defence that an amount of Rs.25 Lakhs was paid in full and final settlement by the Respondent company has not been accepted by the learned Company Judge. Even otherwise the same is not at all borne from the records. The E-mail communication does not support any such conclusion.14. Mr. Kulkarni, finally submitted that the purchase orders which constitute a contract between the parties contained an arbitration clause and in view of the existence of such a clause a petition for winding up was not maintainable or in any case was rightly not entertained. This does not appear to be a defence raised by the Respondent company before the learned Company Judge.15. In any case, as observed by the Supreme Court in Haryana Telecom Ltd. Vs. Sterlite Industries (India) Ltd (1999) 5 Supreme Court Cases 688) ,a claim in a petition for winding up is not for money. The petition filed under the Companies Act in a matter like this, is to the effect, that the company has become commercially insolvent and, therefore, should be wound up. The power to order winding up of a company is contained under the Companies Act and is conferred on the Court. An Arbitrator, notwithstanding, any agreement between the parties, would have no jurisdiction to order winding up of a company.16. In the aforesaid circumstances, the objections as to maintainability of a petition for winding up on the ground that the contract between the parties contains an arbitration clause is liable to be rejected.17. In our judgment, therefore, the Appellant has made out a case for admission of Company Petition No.198 of 2012. | 0[ds]21. Where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt, See Re. A Company (94 SJ 369). Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantify the debt precisely see Re. Tweeds Garages Ltd (1962 Ch 406). The principles which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends.9. Applying aforesaid principles to the facts and circumstances of the present case, we have to determine whether the debt is bona fide disputed and whether the defence is a substantial one.10. The undertaking executed by the Respondent company on 29 July 209 and the unequivocal endorsement made upon the balance confirmation letters dated 25 March 2010 and 7 March 2011 establishes that the dispute regarding the debt payable by the Respondent company to the Appellant is neither bona fide, nor substantial. There is no dispute that the Respondent company placed purchase orders upon the Appellant and the Appellant supplied goods in pursuance of the same. There is no dispute that the Appellant raised invoices from time to time aggregating to Rs.2,16,64,437/out of which an amount of Rs.1,31,49,778/was paid by the Respondent company to the Appellant without any demur. Even with regard to the balance, there was never any serious demur. In these circumstances, we are of the opinion that the dispute as regards the debt, belatedly raised is an afterthought and is neither bona fide, nor substantial.In any case, as observed by the Supreme Court in Haryana Telecom Ltd. Vs. Sterlite Industries (India) Ltd (1999) 5 Supreme Court Cases 688) ,a claim in a petition for winding up is not for money. The petition filed under the Companies Act in a matter like this, is to the effect, that the company has become commercially insolvent and, therefore, should be wound up. The power to order winding up of a company is contained under the Companies Act and is conferred on the Court. An Arbitrator, notwithstanding, any agreement between the parties, would have no jurisdiction to order winding up of a company.16. In the aforesaid circumstances, the objections as to maintainability of a petition for winding up on the ground that the contract between the parties contains an arbitration clause is liable to be rejected.17. In our judgment, therefore, the Appellant has made out a case for admission of Company Petition No.198 of 2012. | 0 | 2,730 | 530 | ### Instruction:
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that the dispute regarding the debt payable by the Respondent company to the Appellant is neither bona fide, nor substantial. There is no dispute that the Respondent company placed purchase orders upon the Appellant and the Appellant supplied goods in pursuance of the same. There is no dispute that the Appellant raised invoices from time to time aggregating to Rs.2,16,64,437/- out of which an amount of Rs.1,31,49,778/- was paid by the Respondent company to the Appellant without any demur. Even with regard to the balance, there was never any serious demur. In these circumstances, we are of the opinion that the dispute as regards the debt, belatedly raised is an afterthought and is neither bona fide, nor substantial.11. Mr. Kulkarni, however, submitted that the undertaking dated 29 July 2009 itself states that the amount stated therein is subject to reconciliation. Therefore, he submitted that the undertaking cannot be relied upon to establish any debt. We are unable to accept this contention for the following reasons:(i) The undertaking, which otherwise, clearly and unequivocally acknowledges the liability and assures payments as per stipulated schedule, very vaguely states:this amount due includes certain invoices which are under reconciliation for material cost.(ii) In the schedule of repayment contained in the undertaking, as against the amount of Rs.41,84,426/- repayable by 15 September 2009, there is the following endorsement:due after material cost reconciliation.(iii) Pitted against such vague endorsements are clear and unambiguous acknowledgements of debt and undertaking to pay total amount of Rs.81,84,426/- to the Appellant.(iv) The Respondent company, neither in its reply to the statutory notice, nor in its reply to the petition for winding up has placed any material on record to suggest that any reconciliation was in fact carried out and that upon such reconciliation any amount was found as not due and payable to the Appellant.(v) Much after the execution of the undertaking dated 29 July 2009, the Respondent company has made endorsements upon the balance confirmation letters dated 25 March 2010 and 7 March 2011 confirming that the Appellant is to receive from the Respondent company an amount of Rs.85,41,219.80 as on 28 February 2010 and 28 February 2011.12. Mr. Kulkarni, then contended that as per the agreement between the parties, payments were to be effected by the Respondent company within 3 to 5 working days on receipt of payment from Hindustan Aeronautical Limited (HAL) on a back to back basis. In this regard, Mr. Kulkarni referred to Clause 5.2 of the purchase order dated 17 July 2009, which reads as follows:5.2 Tooltech shall release to TAML all payments due to them (and provide all Reasonable documentation as proof, if required), within 3 to 5 working days on receipt of their (Tooltechs) payment from HAL on a back to back basis. However, Tooltech would do the best possible to release the payment within 45 days from the date of receipt of certified bills from TAML.The first part of the Clause 5.2 of the purchase order does make reference to payment within 3 to 5 working days from the company receiving payment from HAL on back to back basis. However, the second part provides that the Respondent company would do the best possible to release the payment within 45 days from the date of receipt of certified bills from the Appellant. The use of the word however makes it clear that though the Respondent company was bound to effect the payments within 3 to 5 working days upon receipt of payments from HAL, nevertheless if such payments were not forthcoming from HAL, the Respondent company would do the best possible to release payments within 45 days from the date of receipt of certified bills from the Appellant. The payments of amounts to the Appellant was therefore not dependant upon the Respondent company receiving payments from HAL. Further this is not a case where there was any form of tripartite agreement between the Appellant, Respondent company and HAL. In fact, there was no privity of contract between the Appellant and HAL. Such defence was never raised by the Respondent company either at the stage of executing the undertaking dated 29 July 2009 or at the stage of acknowledging the amount due in pursuance of the balance confirmation letters dated 25 March 2010 and 7 March 2011. In the circumstances, we find that the defence raised is neither a bona fide nor a substantial one.13. The third defence that an amount of Rs.25 Lakhs was paid in full and final settlement by the Respondent company has not been accepted by the learned Company Judge. Even otherwise the same is not at all borne from the records. The E-mail communication does not support any such conclusion.14. Mr. Kulkarni, finally submitted that the purchase orders which constitute a contract between the parties contained an arbitration clause and in view of the existence of such a clause a petition for winding up was not maintainable or in any case was rightly not entertained. This does not appear to be a defence raised by the Respondent company before the learned Company Judge.15. In any case, as observed by the Supreme Court in Haryana Telecom Ltd. Vs. Sterlite Industries (India) Ltd (1999) 5 Supreme Court Cases 688) ,a claim in a petition for winding up is not for money. The petition filed under the Companies Act in a matter like this, is to the effect, that the company has become commercially insolvent and, therefore, should be wound up. The power to order winding up of a company is contained under the Companies Act and is conferred on the Court. An Arbitrator, notwithstanding, any agreement between the parties, would have no jurisdiction to order winding up of a company.16. In the aforesaid circumstances, the objections as to maintainability of a petition for winding up on the ground that the contract between the parties contains an arbitration clause is liable to be rejected.17. In our judgment, therefore, the Appellant has made out a case for admission of Company Petition No.198 of 2012.
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### Explanation:
21. Where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt, See Re. A Company (94 SJ 369). Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantify the debt precisely see Re. Tweeds Garages Ltd (1962 Ch 406). The principles which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends.9. Applying aforesaid principles to the facts and circumstances of the present case, we have to determine whether the debt is bona fide disputed and whether the defence is a substantial one.10. The undertaking executed by the Respondent company on 29 July 209 and the unequivocal endorsement made upon the balance confirmation letters dated 25 March 2010 and 7 March 2011 establishes that the dispute regarding the debt payable by the Respondent company to the Appellant is neither bona fide, nor substantial. There is no dispute that the Respondent company placed purchase orders upon the Appellant and the Appellant supplied goods in pursuance of the same. There is no dispute that the Appellant raised invoices from time to time aggregating to Rs.2,16,64,437/out of which an amount of Rs.1,31,49,778/was paid by the Respondent company to the Appellant without any demur. Even with regard to the balance, there was never any serious demur. In these circumstances, we are of the opinion that the dispute as regards the debt, belatedly raised is an afterthought and is neither bona fide, nor substantial.In any case, as observed by the Supreme Court in Haryana Telecom Ltd. Vs. Sterlite Industries (India) Ltd (1999) 5 Supreme Court Cases 688) ,a claim in a petition for winding up is not for money. The petition filed under the Companies Act in a matter like this, is to the effect, that the company has become commercially insolvent and, therefore, should be wound up. The power to order winding up of a company is contained under the Companies Act and is conferred on the Court. An Arbitrator, notwithstanding, any agreement between the parties, would have no jurisdiction to order winding up of a company.16. In the aforesaid circumstances, the objections as to maintainability of a petition for winding up on the ground that the contract between the parties contains an arbitration clause is liable to be rejected.17. In our judgment, therefore, the Appellant has made out a case for admission of Company Petition No.198 of 2012.
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Chhaganlal Keshavlal Mehta Vs. Patel Narandas Haribhai | surviving defendants. In the instant case the suit abated as against defendant No. 2 in respect of the common latrine. But there is no difficul ty in the suit proceeding against the surviving defendant No. 1 if the plaintiff is prepared to pay the entire mortgage consideration.It may, however, be pointed out that defendant No. 2 never contested the suit. He was impleaded as a party i t was incumbent on the plaintiff to have impleaded all the mortgagees as a party. But if the defendant did not contest the suit at any stage, will he be a necessary party in an appeal ? A person may be A a necessary party in a suit but he ma y not be a necessary party in the appeal. The Division Bench of the High Court was fully justified in holding that the suit against the surviving defendant No. I was maintainable despite the abatement of the suit against the 2nd defendant. We fully endorse the view taken by the Division Bench of the High Court. 13. This takes us to the second point. This contention is based on the aforesaid various endorsements made by Chimanrai. his widow Chhotiba and his daughter Taralaxmi bai on the notices sent by the mortgagee. The question is whether these endorsements amount to relinquishment of their rights and interest so as to estop them from transferring the property in suit ? The notice by Ganpatram to Chimanrai and the notices by his son Chhotalal to Chhotiba and Taralaxmibai and their respective endorsements thereon have been referred to in the earlier part of the judgment. Whether these endorsements amount to relinquishment of their rights and title an d if so whether the same amounts to estoppel within the meaning of section 115 of the Evidence Act ? In our opinion the endorsements have to be read not in isolation but with reference to the notices sent. So read, the endorsement only indicat e that the heirs of the mortgagor were not prepared to bear the expenses on repairs of the mortgaged property. The property cannot remain in vacuum even for a single moment. It must vest in somebody. Accordingly, after the death of Motibhai his property vested in his son who was the sole heir. The endorsement of Chimanrai, his widow Chhotiba and daughter Taralaxmibai on the notices at the most would amount to an admission. The contention raised on behalf of the defendant-appellan t is that he would not have purchased the mortgagee rights from Ganpatram if such a statement had not been made by Chimanrai, his widow Chhotiba and his daughter Taralaxmibai and, therefore, they would be estopped from taking up a differe nt stand from the one taken by them earlier. In substance, the question is whether the endorsements would amount to estoppel.The difference between admission and estoppel is a marked one. Admissions being declarations against an interest are good evidence but they are not conclusive and a party is always at liberty to withdraw admissions by proving that they are either mistaken or untrue. But estoppel creates an absolute bar. In this state of the legal position, if th e endorsement made by Chimanrai or by his widow, Chhotiba or his daughter Taralaxmibai amounts to an estoppel they or their transferees would be prevented from claiming the property. It may be pointed out that estoppel deals with questions of facts and not of rights. A man is not estopped from asserting a right which he had said that he will not assert. It is also a well-known principle that there can be no estoppel against a statute. After the death of Motibhai his son Chimanrai succeeded in law. 14. To bring the case within the scope of estoppel as defined in section 5 of the Evidence Act there must be a representation by a person or his authorised agent to another in any form a declaration, act or omission; (2 ) the representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract; (3) the representation must have been meant to be relied upon; (4) there must have been belie f on the part of the other party in its truth; (5) there must have been action on the faith of that declaration, act or omission, that is to say, the declaration, act or omission must have actually caused another to act on th e faith of it, and to alter his former position to his prejudice or detriment; (6) the misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (7) the person clai ming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel; (8) only the person to whom representation was made or for whom it was designed can avail himself of it. A person is entitled to plead estoppel in his own individual character and not as a representative of his assignee.None of these conditions have been satisfied in the instant case, for examp le, no representation was made to defendant No. 1. Therefore, he cannot plead estoppel. Secondly, the representation was not regarding a fact but regarding a right of which defendant No. I or his predecessor in interest had full k nowledge or could have known if he had cared to know. It is difficult to say that defendant No. I has moved his position on account of the representation made by the mortgagor or his heirs or assignees. On the facts and circumstances of thi s case it is not possible to hold that ingredients of section 115 of the Evidence Act have been fulfilled. The view taken by the Division Bench of the High Court is fully warranted by law. | 0[ds]A perusal of this provi sion indicates that a co-mortgagor cannot be permitted to redeem his own share of the mortgaged property only on payment of proportionate part of the amount remaining due. In other words the integrity of the mortgage cannot be broken. Order 34, rule I of theCode of Civil Procedure deals with the parties to suits for foreclosure, sale and redemptionIt has already been pointed out that defendant No. 2 was the purchaser of mortgagee rights in respect of common latrine while defendan t No. I is the purchaser of the mortgagee rights in respect of the remaining mortgaged property, viz., the houses. When the plaintiff filed the suit he impleaded both the mortgagees as defendants Nos. 1 and 2. Before the Assistant Judge a statement was made on behalf of the original plaintiff that he was prepared to pay the entire mortgage amount for redemption of the mortgaged property to the 1st defendant. A similar statement was made by Mr. Oza, counsel for the plaintiff in the H igh Court who further stated that in no event hereafter would the plaintiff seek any relief against the property in possession of defendant No. 2, viz., the right to the common latrine in which mortgagee rights had been transferred to defendant No . 2 by Ganpatram. Besides, the severance of the two properties by Ganpatram was recognised by the mortgagor and hence the severance was with the implied consent of the mortgagor. It is a well recognised principle that even if all the mortgagees are not before the court in a suit filed by the mortgagor for redemption of the property, but the mortgagor is prepared to pay the entire amount due at the foot of the mortgage to such mortgagees as are before the court and gives up his right u nder the mortgage as against those mortgagees who are not before the court, the court can pass a decree for redemption directing that the entire mortgage amount should be paid to the mortgagees who are actually before the court. This principle was recognised in a Full Bench decision in Motilal Yadav v Samal Bechar.(1) If one of the defendants in a suit dies and his heirs are not brought on record the suit certainly would abate as against that party. The suit, however, could not abate a s against the other surviving defendants. A question may arise whether the suit is maintainable against the surviving defendants. In the instant case the suit abated as against defendant No. 2 in respect of the common latrine. But there is no difficul ty in the suit proceeding against the surviving defendant No. 1 if the plaintiff is prepared to pay the entire mortgage consideration.It may, however, be pointed out that defendant No. 2 never contested the suit. He was impleaded as a party i t was incumbent on the plaintiff to have impleaded all the mortgagees as a party. But if the defendant did not contest the suit at any stage, will he be a necessary party in an appeal ? A person may be A a necessary party in a suit but he ma y not be a necessary party in the appeal. The Division Bench of the High Court was fully justified in holding that the suit against the surviving defendant No. I was maintainable despite the abatement of the suit against the 2nd defendant. We fully endorse the view taken by the Division Bench of the High CourtIn our opinion the endorsements have to be read not in isolation but with reference to the notices sent. So read, the endorsement only indicat e that the heirs of the mortgagor were not prepared to bear the expenses on repairs of the mortgaged property. The property cannot remain in vacuum even for a single moment. It must vest in somebody. Accordingly, after the death of Motibhai his property vested in his son who was the sole heir. The endorsement of Chimanrai, his widow Chhotiba and daughter Taralaxmibai on the notices at the most would amount to an admission. The contention raised on behalf of the defendant-appellan t is that he would not have purchased the mortgagee rights from Ganpatram if such a statement had not been made by Chimanrai, his widow Chhotiba and his daughter Taralaxmibai and, therefore, they would be estopped from taking up a differe nt stand from the one taken by them earlier. In substance, the question is whether the endorsements would amount to estoppel.The difference between admission and estoppel is a marked one. Admissions being declarations against an interest are good evidence but they are not conclusive and a party is always at liberty to withdraw admissions by proving that they are either mistaken or untrue. But estoppel creates an absolute bar. In this state of the legal position, if th e endorsement made by Chimanrai or by his widow, Chhotiba or his daughter Taralaxmibai amounts to an estoppel they or their transferees would be prevented from claiming the propertyIt may be pointed out that estoppel deals with questions of facts and not of rights. A man is not estopped from asserting a right which he had said that he will not assert. It is also a well-known principle that there can be no estoppel against a statute. After the death of Motibhai his son Chimanrai succeeded in lawTo bring the case within the scope of estoppel as defined in section5 of the Evidencet I) there mustbe a representation by a person or his authorised agent to another in any form a declaration, act or omission; (2 ) the representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract; (3) the representation must have been meant to be relied upon;) there musthave been belie f on the part of the other party in its truth;) there musthave been action on the faith of that declaration, act or omission, that is to say, the declaration, act or omission must have actually caused another to act on th e faith of it, and to alter his former position to his prejudice or detriment; (6) the misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (7) the person clai ming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel; (8) only the person to whom representation was made or for whom it was designed can avail himself of it. A person is entitled to plead estoppel in his own individual character and not as a representative of his assignee.None of these conditions have been satisfied in the instant case, for examp le, no representation was made to defendant No. 1. Therefore, he cannot plead estoppel. Secondly, the representation was not regarding a fact but regarding a right of which defendant No. I or his predecessor in interest had full k nowledge or could have known if he had cared to know. It is difficult to say that defendant No. I has moved his position on account of the representation made by the mortgagor or his heirs or assignees. On the facts and circumstances of thi s case it is not possible to hold that ingredients of section5 of the EvidenceAct have been fulfilled. The view taken by the Division Bench of the High Court is fully warranted by law. | 0 | 3,807 | 1,384 | ### Instruction:
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surviving defendants. In the instant case the suit abated as against defendant No. 2 in respect of the common latrine. But there is no difficul ty in the suit proceeding against the surviving defendant No. 1 if the plaintiff is prepared to pay the entire mortgage consideration.It may, however, be pointed out that defendant No. 2 never contested the suit. He was impleaded as a party i t was incumbent on the plaintiff to have impleaded all the mortgagees as a party. But if the defendant did not contest the suit at any stage, will he be a necessary party in an appeal ? A person may be A a necessary party in a suit but he ma y not be a necessary party in the appeal. The Division Bench of the High Court was fully justified in holding that the suit against the surviving defendant No. I was maintainable despite the abatement of the suit against the 2nd defendant. We fully endorse the view taken by the Division Bench of the High Court. 13. This takes us to the second point. This contention is based on the aforesaid various endorsements made by Chimanrai. his widow Chhotiba and his daughter Taralaxmi bai on the notices sent by the mortgagee. The question is whether these endorsements amount to relinquishment of their rights and interest so as to estop them from transferring the property in suit ? The notice by Ganpatram to Chimanrai and the notices by his son Chhotalal to Chhotiba and Taralaxmibai and their respective endorsements thereon have been referred to in the earlier part of the judgment. Whether these endorsements amount to relinquishment of their rights and title an d if so whether the same amounts to estoppel within the meaning of section 115 of the Evidence Act ? In our opinion the endorsements have to be read not in isolation but with reference to the notices sent. So read, the endorsement only indicat e that the heirs of the mortgagor were not prepared to bear the expenses on repairs of the mortgaged property. The property cannot remain in vacuum even for a single moment. It must vest in somebody. Accordingly, after the death of Motibhai his property vested in his son who was the sole heir. The endorsement of Chimanrai, his widow Chhotiba and daughter Taralaxmibai on the notices at the most would amount to an admission. The contention raised on behalf of the defendant-appellan t is that he would not have purchased the mortgagee rights from Ganpatram if such a statement had not been made by Chimanrai, his widow Chhotiba and his daughter Taralaxmibai and, therefore, they would be estopped from taking up a differe nt stand from the one taken by them earlier. In substance, the question is whether the endorsements would amount to estoppel.The difference between admission and estoppel is a marked one. Admissions being declarations against an interest are good evidence but they are not conclusive and a party is always at liberty to withdraw admissions by proving that they are either mistaken or untrue. But estoppel creates an absolute bar. In this state of the legal position, if th e endorsement made by Chimanrai or by his widow, Chhotiba or his daughter Taralaxmibai amounts to an estoppel they or their transferees would be prevented from claiming the property. It may be pointed out that estoppel deals with questions of facts and not of rights. A man is not estopped from asserting a right which he had said that he will not assert. It is also a well-known principle that there can be no estoppel against a statute. After the death of Motibhai his son Chimanrai succeeded in law. 14. To bring the case within the scope of estoppel as defined in section 5 of the Evidence Act there must be a representation by a person or his authorised agent to another in any form a declaration, act or omission; (2 ) the representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract; (3) the representation must have been meant to be relied upon; (4) there must have been belie f on the part of the other party in its truth; (5) there must have been action on the faith of that declaration, act or omission, that is to say, the declaration, act or omission must have actually caused another to act on th e faith of it, and to alter his former position to his prejudice or detriment; (6) the misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (7) the person clai ming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel; (8) only the person to whom representation was made or for whom it was designed can avail himself of it. A person is entitled to plead estoppel in his own individual character and not as a representative of his assignee.None of these conditions have been satisfied in the instant case, for examp le, no representation was made to defendant No. 1. Therefore, he cannot plead estoppel. Secondly, the representation was not regarding a fact but regarding a right of which defendant No. I or his predecessor in interest had full k nowledge or could have known if he had cared to know. It is difficult to say that defendant No. I has moved his position on account of the representation made by the mortgagor or his heirs or assignees. On the facts and circumstances of thi s case it is not possible to hold that ingredients of section 115 of the Evidence Act have been fulfilled. The view taken by the Division Bench of the High Court is fully warranted by law.
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of the property, but the mortgagor is prepared to pay the entire amount due at the foot of the mortgage to such mortgagees as are before the court and gives up his right u nder the mortgage as against those mortgagees who are not before the court, the court can pass a decree for redemption directing that the entire mortgage amount should be paid to the mortgagees who are actually before the court. This principle was recognised in a Full Bench decision in Motilal Yadav v Samal Bechar.(1) If one of the defendants in a suit dies and his heirs are not brought on record the suit certainly would abate as against that party. The suit, however, could not abate a s against the other surviving defendants. A question may arise whether the suit is maintainable against the surviving defendants. In the instant case the suit abated as against defendant No. 2 in respect of the common latrine. But there is no difficul ty in the suit proceeding against the surviving defendant No. 1 if the plaintiff is prepared to pay the entire mortgage consideration.It may, however, be pointed out that defendant No. 2 never contested the suit. He was impleaded as a party i t was incumbent on the plaintiff to have impleaded all the mortgagees as a party. But if the defendant did not contest the suit at any stage, will he be a necessary party in an appeal ? A person may be A a necessary party in a suit but he ma y not be a necessary party in the appeal. The Division Bench of the High Court was fully justified in holding that the suit against the surviving defendant No. I was maintainable despite the abatement of the suit against the 2nd defendant. We fully endorse the view taken by the Division Bench of the High CourtIn our opinion the endorsements have to be read not in isolation but with reference to the notices sent. So read, the endorsement only indicat e that the heirs of the mortgagor were not prepared to bear the expenses on repairs of the mortgaged property. The property cannot remain in vacuum even for a single moment. It must vest in somebody. Accordingly, after the death of Motibhai his property vested in his son who was the sole heir. The endorsement of Chimanrai, his widow Chhotiba and daughter Taralaxmibai on the notices at the most would amount to an admission. The contention raised on behalf of the defendant-appellan t is that he would not have purchased the mortgagee rights from Ganpatram if such a statement had not been made by Chimanrai, his widow Chhotiba and his daughter Taralaxmibai and, therefore, they would be estopped from taking up a differe nt stand from the one taken by them earlier. In substance, the question is whether the endorsements would amount to estoppel.The difference between admission and estoppel is a marked one. Admissions being declarations against an interest are good evidence but they are not conclusive and a party is always at liberty to withdraw admissions by proving that they are either mistaken or untrue. But estoppel creates an absolute bar. In this state of the legal position, if th e endorsement made by Chimanrai or by his widow, Chhotiba or his daughter Taralaxmibai amounts to an estoppel they or their transferees would be prevented from claiming the propertyIt may be pointed out that estoppel deals with questions of facts and not of rights. A man is not estopped from asserting a right which he had said that he will not assert. It is also a well-known principle that there can be no estoppel against a statute. After the death of Motibhai his son Chimanrai succeeded in lawTo bring the case within the scope of estoppel as defined in section5 of the Evidencet I) there mustbe a representation by a person or his authorised agent to another in any form a declaration, act or omission; (2 ) the representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract; (3) the representation must have been meant to be relied upon;) there musthave been belie f on the part of the other party in its truth;) there musthave been action on the faith of that declaration, act or omission, that is to say, the declaration, act or omission must have actually caused another to act on th e faith of it, and to alter his former position to his prejudice or detriment; (6) the misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (7) the person clai ming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel; (8) only the person to whom representation was made or for whom it was designed can avail himself of it. A person is entitled to plead estoppel in his own individual character and not as a representative of his assignee.None of these conditions have been satisfied in the instant case, for examp le, no representation was made to defendant No. 1. Therefore, he cannot plead estoppel. Secondly, the representation was not regarding a fact but regarding a right of which defendant No. I or his predecessor in interest had full k nowledge or could have known if he had cared to know. It is difficult to say that defendant No. I has moved his position on account of the representation made by the mortgagor or his heirs or assignees. On the facts and circumstances of thi s case it is not possible to hold that ingredients of section5 of the EvidenceAct have been fulfilled. The view taken by the Division Bench of the High Court is fully warranted by law.
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Killick Nixon Limited Vs. Killick & Allied Companies Employees Union | except to the lowest category of employees. In the view of the National Commission on Labour "the only purpose of dearness allowance is to enable a worker in the event of a rise in cost of living to purchase the same amount of goods of basic necessity as before. This purpose would be served by an equal amount of dearness allowance to all employees irrespective of differences in their emoluments" (page 243). It was strenuously submitted that this view of the Commission should be accepted by us. In other words we should first ascertain what is the minimum wage in this company at which a worker would require complete neutralisation of the cost of living and whatever amount is found to be necessary for him as a protection against his real wages should only be available to all other employees. We are not required to give our opinion about this submission for the simple reason that the management here has already introduced a scheme in which there is percentage system on salary slabs linked with the consumer price index and there is no dispute about it.33. All that the management wants in this case is that D.A. must not go on rising with the soaring price index and a limit should be imposed. We have already observed that in view of the status of the company the capacity to pay will not alone be of moment in favour of removal of the ceiling. The problem will have to be viewed from the following important aspects:(1) Condition of the wage scale prevalent in the company.(2) Condition of the wage level prevalent in the industry and the region.(3) The wage packet as a whole of each earner in the company with all amenities and benefits and its ability and potency to cope with the economic requirements of daily existence consistent with his status in society, responsibilities, efficiency at work and industrial peace.(4) The position of the company viewed in relation to other comparable concerns in the industry and the region.(5) Peremptive necessity for full neutralisation of the cost of living at the rock-bottom of wage scale if at or just above the subsistence level.(6) The rate of neutralisation which is being given to the employees in each salary slab.(7) Avoidance of huge distortion of wage differentials taking into reckoning all persons employed in the concern.(8) Degree of sacrifice necessary even on the part of workers in general interest.(9) The compulsive necessity of securing social and distributive justice to the workmen.(10) Capacity of the company to bear the additional burden.(11) Interest of national economy.(12) Repercussions in other industries and society as a whole.(13) The state of the consumer price index at the time of decision.(14) Forebodings and possibilities in the foreseeable future as far as can be envisaged.34. We should also add that revision of D.A. is not the same thing as revision of wages.35. Having given our anxious thought to all the above aspects, which are not exhaustive, we are unable to come to the conclusion that removal of the ceiling in the present context will be justified. The company has been able to make out a case for imposition of a ceiling.At what particular amount there should be a ceiling on D.A. is a matter which will have to be gone into by the Tribunal keeping in view the above principles. The financial capacity will have to be judged with regard to the commitment of the company as a whole towards all its employees.36.We are unable to agree with the contention of the workers that unless there is a ceiling on profits there cannot be a ceiling on D.A. The question of D.A. being intimately connected with the cost of living, the matter cannot be judged by the test of the aforesaid submission of the workmen.37. There is, however, one thing which we must point out, lest there should be some misconception about it and that is that so far as the lowest paid employees at or just above the subsistence level are concerned, they are entitled to 100 per cent or at any rate not less than 95 per cent neutralisation of the rise in the cost of living and hence there should be no ceiling on dearness allowance payable to employees within the slab of first Rs. 100, unless it can be shown by the management that the rate of neutralisation in their case is more than 100 per cent. So far as the employees in the higher slabs are concerned, it would be for the Tribunal to consider, having regard to the aforesaid principles, whether a ceiling should be imposed at the second slab of Rs. 100 or only at the last slab of Rs. 201 to Rs. 500.The manner in which the ceiling may be imposed would also have to be decided by the Tribunal in the exercise of its judicial discretion keeping in view the aforesaid principles. The ceiling may be fixed either by prescribing a certain amount as the outside limit of the dearness allowance or by reference to the quantum of dearness allowance payable at a certain wage level. We do not wish to lay down as an invariable rule that in all cases there should be ceiling on D.A. Whenever a case of this nature comes for industrial adjudication it will always be a delicate task for the Tribunal to strike a balance keeping in view the above principles, weightage of each one of which being variable according to conditions obtaining. Whether or not there should be a ceiling on dearness allowance in a given case must depend on the facts and circumstances of that case. There can be no inexorable rule in that respect. We have formulated the various principles which must be taken into account by the Tribunal in determining this question but the most dominant of these must always be that of social justice, for that is the ideal which we have resolved to achieve when we framed our constitution. | 1[ds]It will be seen that the minimum basic salary of a junior executive is Rs. 400 and maximum is Rs.With allowances the junior executive at the minimum gets a total of Rs. 700/and at intermediate stages, namely of Rs. 530 and Rs. 800, he gets a total of Rs. 830/and Rs. 1150/respectively. When he reaches the maximum the total with allowance is Rs.The clerical staff at the maximum grade which is Rs. 500/gets a total amount of Rs. 1230/inclusive of D.A. of Rs. 730/after removal of the ceiling at the C.P.1. 924. At the intermediate stage a clerk gets Rs. 874/in the same index (Rs. 300/basic salary plus Rupees 574/D.A.) At the minimum he gets Rs. 70/D.A. totalling Rs. 410/in the same index 924. The position is worse when the consumer price index touches 1194 as seen above. The absence of ceiling on D.A. can result in curious anomalous situations wherein the pay Packet of clerical staff would exceed the pay packet of junior executive staff. This is hardly conducive to discipline, efficiency and effective exercise of control.28. Although the change in the D.A. scheme imposing the ceiling was notified in May 1966, it could not have been then contemplated that the index would touch such a high mark; yet within these nearly nine years that the dispute unfortunately has dragged on, it has given the court an idea of the effect of removal of the ceiling.29. The management has submitted statements showing the actual working of the D.A. formula without the ceiling and tried to show that it would not be possible for it to bear the financial burden. The Tribunal went into this aspect, although at that time the figures of the actual working could not be there, and refused to accept the plea of incapacity to bear the burden. The main argument of the management was about the loss of Managing Agency which, according to it, resulted in shrinkage of income. The Tribunal went into the matter and came to the conclusion and, according to us, rightly, that the said plea had no substance.30. The company is one of the twenty big industrial houses in the country. Originally there were two companies, one Killick Industries Limited and another Killick Nixon and Co. Private Limited. Killick Industries Limited was incorporated as a Public Limited Company on November 14, 1947 and Killick Nixon and Co. Private Limited was incorporated as a Private Company on January 23, 1948. Some time in 1957 the Killick Industries Limited purchased all the shares of Killick Nixon and Co. Private Limited with the result that Killick Nixon and Co. Private Limited became a wholly owned subsidiary of Killick Industries Limited. Under Section 43A of the Companies Act, 1956, Killick Nixon and Co. Private Limited became a public Limited Company with effect from March 28, 1961 and by an order of the Bombay High Court of March 24, 1970, was amalgamated with Killick Industries Limited with effect from August 1, 1969. Following the amalgamation and with the approval of the Central Government the name of Killick Industries Limited was changed to Killick Nixon Limited (the appellant). The activities of the company are: manufacturing of engineering products, namely, Jhonson Vibrators, Udall Pressing equipments and E.F.C.C. Furnaces; Selling agency of engineering products such as Vibrators, drilling equipment, electric meters and dredgers; general selling agency in respect of snowcem cement paint and allied products, carbon papers, slotted angles, Hawkins pressure cookers; export of piecegoods; and agency of City Line and Hall Line of U.K. and clearing and forwarding work.31. The question, however, in this case may not be simply the financial capacity of the company alone. Ordinarily the capacity to bear the additional burden would certainly be a relevant factor. We are, however, not considering the matter from that aspect in the present case. We will assume that the company will be able to bear the additional financial burden if the ceiling is removed. We do not agree with the Tribunal that it is only if the company would be required to close down that such a demand should be rejected. That is an incorrect view to take in dealing with the problem with which we are concerned.32. We have, therefore, a company which is prosperous. The consumer price index has been soaring higher and higher. The employees have to get protection of their real wages. It is well settled that complete neutralisation of the rise of cost of living cannot be allowed except to the lowest category of employees. In the view of the National Commission on Labour "the only purpose of dearness allowance is to enable a worker in the event of a rise in cost of living to purchase the same amount of goods of basic necessity as before. This purpose would be served by an equal amount of dearness allowance to all employees irrespective of differences in their emoluments" (page 243). It was strenuously submitted that this view of the Commission should be accepted by us. In other words we should first ascertain what is the minimum wage in this company at which a worker would require complete neutralisation of the cost of living and whatever amount is found to be necessary for him as a protection against his real wages should only be available to all other employees. We are not required to give our opinion about this submission for the simple reason that the management here has already introduced a scheme in which there is percentage system on salary slabs linked with the consumer price index and there is no dispute about it.Having given our anxious thought to all the above aspects, which are not exhaustive, we are unable to come to the conclusion that removal of the ceiling in the present context will be justified. The company has been able to make out a case for imposition of a ceiling.At what particular amount there should be a ceiling on D.A. is a matter which will have to be gone into by the Tribunal keeping in view the above principles. The financial capacity will have to be judged with regard to the commitment of the company as a whole towards all its employees.36.We are unable to agree with the contention of the workers that unless there is a ceiling on profits there cannot be a ceiling on D.A. The question of D.A. being intimately connected with the cost of living, the matter cannot be judged by the test of the aforesaid submission of the workmen.37. There is, however, one thing which we must point out, lest there should be some misconception about it and that is that so far as the lowest paid employees at or just above the subsistence level are concerned, they are entitled to 100 per cent or at any rate not less than 95 per cent neutralisation of the rise in the cost of living and hence there should be no ceiling on dearness allowance payable to employees within the slab of first Rs. 100, unless it can be shown by the management that the rate of neutralisation in their case is more than 100 per cent. So far as the employees in the higher slabs are concerned, it would be for the Tribunal to consider, having regard to the aforesaid principles, whether a ceiling should be imposed at the second slab of Rs. 100 or only at the last slab of Rs. 201 to Rs. 500.The manner in which the ceiling may be imposed would also have to be decided by the Tribunal in the exercise of its judicial discretion keeping in view the aforesaid principles. The ceiling may be fixed either by prescribing a certain amount as the outside limit of the dearness allowance or by reference to the quantum of dearness allowance payable at a certain wage level. We do not wish to lay down as an invariable rule that in all cases there should be ceiling on D.A. Whenever a case of this nature comes for industrial adjudication it will always be a delicate task for the Tribunal to strike a balance keeping in view the above principles, weightage of each one of which being variable according to conditions obtaining. Whether or not there should be a ceiling on dearness allowance in a given case must depend on the facts and circumstances of that case. There can be no inexorable rule in that respect. We have formulated the various principles which must be taken into account by the Tribunal in determining this question but the most dominant of these must always be that of social justice, for that is the ideal which we have resolved to achieve when we framed ourare unable to accept that this Court was called upon to decide about the question of ceiling in that appeal which was at the instance of the employers and not of the employees nor against the imposition of ceiling. The management also drew our attention to a decision of this Court in Remington Rand of India v. Its Workmen (1962) 1 Lab L.J. 287 (SC) wherein the scheme of D.A. contained a maximum of Rs. 200/at the index figureand the maximum was not interfered with by this Court. It it sufficient to point out that the question of desirability of ceiling or otherwise was not at all in issue in that appeal and, therefore, this Court was not called upon to pronounce upon the matter.21. We, however, find that in the case of employees under the Central Government a kind of ceiling has been in vogue. For example one of the Second Pay Commissions recommendations was that the benefit of D.A. should in future adjustments be extended to all employees drawing a basic pay below Rs. 400/per mensem in such a way that the total of basic pay and D.A. paid to an employee in the pay range of Rs. 300/to Rs. 400/does not exceed Rs. 400/(page 97, paragraph 16). The Third Pay Commission also after fixing D.A. at a percentage of 3.5% of pay upto the pay range of Rs. 300/fixed a maximum at Rs. 10/per month and a minimum of Rs. 7/per month. Similarly for the pay range above Rs. 300/a percentage of 2.5% of pay was fixed subject to a maximum of Rs. 20/per month and a minimum at Rs. 10/per month. The Commission further recommended that the pay plus D.A. should in no case exceed Rs. 2,400/per month.22. From the above one thing, however, is clear that the question of imposition of ceiling on D.A. is not an absolutely alien phenomenon. Although it might not have been the general practice, ceiling was not rejected out of hand as irrational or unjust by unions in the course of collective bargaining in the Bombay region | 1 | 6,471 | 1,982 | ### Instruction:
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except to the lowest category of employees. In the view of the National Commission on Labour "the only purpose of dearness allowance is to enable a worker in the event of a rise in cost of living to purchase the same amount of goods of basic necessity as before. This purpose would be served by an equal amount of dearness allowance to all employees irrespective of differences in their emoluments" (page 243). It was strenuously submitted that this view of the Commission should be accepted by us. In other words we should first ascertain what is the minimum wage in this company at which a worker would require complete neutralisation of the cost of living and whatever amount is found to be necessary for him as a protection against his real wages should only be available to all other employees. We are not required to give our opinion about this submission for the simple reason that the management here has already introduced a scheme in which there is percentage system on salary slabs linked with the consumer price index and there is no dispute about it.33. All that the management wants in this case is that D.A. must not go on rising with the soaring price index and a limit should be imposed. We have already observed that in view of the status of the company the capacity to pay will not alone be of moment in favour of removal of the ceiling. The problem will have to be viewed from the following important aspects:(1) Condition of the wage scale prevalent in the company.(2) Condition of the wage level prevalent in the industry and the region.(3) The wage packet as a whole of each earner in the company with all amenities and benefits and its ability and potency to cope with the economic requirements of daily existence consistent with his status in society, responsibilities, efficiency at work and industrial peace.(4) The position of the company viewed in relation to other comparable concerns in the industry and the region.(5) Peremptive necessity for full neutralisation of the cost of living at the rock-bottom of wage scale if at or just above the subsistence level.(6) The rate of neutralisation which is being given to the employees in each salary slab.(7) Avoidance of huge distortion of wage differentials taking into reckoning all persons employed in the concern.(8) Degree of sacrifice necessary even on the part of workers in general interest.(9) The compulsive necessity of securing social and distributive justice to the workmen.(10) Capacity of the company to bear the additional burden.(11) Interest of national economy.(12) Repercussions in other industries and society as a whole.(13) The state of the consumer price index at the time of decision.(14) Forebodings and possibilities in the foreseeable future as far as can be envisaged.34. We should also add that revision of D.A. is not the same thing as revision of wages.35. Having given our anxious thought to all the above aspects, which are not exhaustive, we are unable to come to the conclusion that removal of the ceiling in the present context will be justified. The company has been able to make out a case for imposition of a ceiling.At what particular amount there should be a ceiling on D.A. is a matter which will have to be gone into by the Tribunal keeping in view the above principles. The financial capacity will have to be judged with regard to the commitment of the company as a whole towards all its employees.36.We are unable to agree with the contention of the workers that unless there is a ceiling on profits there cannot be a ceiling on D.A. The question of D.A. being intimately connected with the cost of living, the matter cannot be judged by the test of the aforesaid submission of the workmen.37. There is, however, one thing which we must point out, lest there should be some misconception about it and that is that so far as the lowest paid employees at or just above the subsistence level are concerned, they are entitled to 100 per cent or at any rate not less than 95 per cent neutralisation of the rise in the cost of living and hence there should be no ceiling on dearness allowance payable to employees within the slab of first Rs. 100, unless it can be shown by the management that the rate of neutralisation in their case is more than 100 per cent. So far as the employees in the higher slabs are concerned, it would be for the Tribunal to consider, having regard to the aforesaid principles, whether a ceiling should be imposed at the second slab of Rs. 100 or only at the last slab of Rs. 201 to Rs. 500.The manner in which the ceiling may be imposed would also have to be decided by the Tribunal in the exercise of its judicial discretion keeping in view the aforesaid principles. The ceiling may be fixed either by prescribing a certain amount as the outside limit of the dearness allowance or by reference to the quantum of dearness allowance payable at a certain wage level. We do not wish to lay down as an invariable rule that in all cases there should be ceiling on D.A. Whenever a case of this nature comes for industrial adjudication it will always be a delicate task for the Tribunal to strike a balance keeping in view the above principles, weightage of each one of which being variable according to conditions obtaining. Whether or not there should be a ceiling on dearness allowance in a given case must depend on the facts and circumstances of that case. There can be no inexorable rule in that respect. We have formulated the various principles which must be taken into account by the Tribunal in determining this question but the most dominant of these must always be that of social justice, for that is the ideal which we have resolved to achieve when we framed our constitution.
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1
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before. This purpose would be served by an equal amount of dearness allowance to all employees irrespective of differences in their emoluments" (page 243). It was strenuously submitted that this view of the Commission should be accepted by us. In other words we should first ascertain what is the minimum wage in this company at which a worker would require complete neutralisation of the cost of living and whatever amount is found to be necessary for him as a protection against his real wages should only be available to all other employees. We are not required to give our opinion about this submission for the simple reason that the management here has already introduced a scheme in which there is percentage system on salary slabs linked with the consumer price index and there is no dispute about it.Having given our anxious thought to all the above aspects, which are not exhaustive, we are unable to come to the conclusion that removal of the ceiling in the present context will be justified. The company has been able to make out a case for imposition of a ceiling.At what particular amount there should be a ceiling on D.A. is a matter which will have to be gone into by the Tribunal keeping in view the above principles. The financial capacity will have to be judged with regard to the commitment of the company as a whole towards all its employees.36.We are unable to agree with the contention of the workers that unless there is a ceiling on profits there cannot be a ceiling on D.A. The question of D.A. being intimately connected with the cost of living, the matter cannot be judged by the test of the aforesaid submission of the workmen.37. There is, however, one thing which we must point out, lest there should be some misconception about it and that is that so far as the lowest paid employees at or just above the subsistence level are concerned, they are entitled to 100 per cent or at any rate not less than 95 per cent neutralisation of the rise in the cost of living and hence there should be no ceiling on dearness allowance payable to employees within the slab of first Rs. 100, unless it can be shown by the management that the rate of neutralisation in their case is more than 100 per cent. So far as the employees in the higher slabs are concerned, it would be for the Tribunal to consider, having regard to the aforesaid principles, whether a ceiling should be imposed at the second slab of Rs. 100 or only at the last slab of Rs. 201 to Rs. 500.The manner in which the ceiling may be imposed would also have to be decided by the Tribunal in the exercise of its judicial discretion keeping in view the aforesaid principles. The ceiling may be fixed either by prescribing a certain amount as the outside limit of the dearness allowance or by reference to the quantum of dearness allowance payable at a certain wage level. We do not wish to lay down as an invariable rule that in all cases there should be ceiling on D.A. Whenever a case of this nature comes for industrial adjudication it will always be a delicate task for the Tribunal to strike a balance keeping in view the above principles, weightage of each one of which being variable according to conditions obtaining. Whether or not there should be a ceiling on dearness allowance in a given case must depend on the facts and circumstances of that case. There can be no inexorable rule in that respect. We have formulated the various principles which must be taken into account by the Tribunal in determining this question but the most dominant of these must always be that of social justice, for that is the ideal which we have resolved to achieve when we framed ourare unable to accept that this Court was called upon to decide about the question of ceiling in that appeal which was at the instance of the employers and not of the employees nor against the imposition of ceiling. The management also drew our attention to a decision of this Court in Remington Rand of India v. Its Workmen (1962) 1 Lab L.J. 287 (SC) wherein the scheme of D.A. contained a maximum of Rs. 200/at the index figureand the maximum was not interfered with by this Court. It it sufficient to point out that the question of desirability of ceiling or otherwise was not at all in issue in that appeal and, therefore, this Court was not called upon to pronounce upon the matter.21. We, however, find that in the case of employees under the Central Government a kind of ceiling has been in vogue. For example one of the Second Pay Commissions recommendations was that the benefit of D.A. should in future adjustments be extended to all employees drawing a basic pay below Rs. 400/per mensem in such a way that the total of basic pay and D.A. paid to an employee in the pay range of Rs. 300/to Rs. 400/does not exceed Rs. 400/(page 97, paragraph 16). The Third Pay Commission also after fixing D.A. at a percentage of 3.5% of pay upto the pay range of Rs. 300/fixed a maximum at Rs. 10/per month and a minimum of Rs. 7/per month. Similarly for the pay range above Rs. 300/a percentage of 2.5% of pay was fixed subject to a maximum of Rs. 20/per month and a minimum at Rs. 10/per month. The Commission further recommended that the pay plus D.A. should in no case exceed Rs. 2,400/per month.22. From the above one thing, however, is clear that the question of imposition of ceiling on D.A. is not an absolutely alien phenomenon. Although it might not have been the general practice, ceiling was not rejected out of hand as irrational or unjust by unions in the course of collective bargaining in the Bombay region
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Union Of India And Ors Vs. Sugauli Sugar Works (P) Ltd | of the barge and thereafter went away, leaving the matter entirely in the hands of the sarang. The High Court held that these officers were responsible for not staying on board until the barge was out of trouble.5. The High Court found that Barge No. 6 was very old. It was built in 1897. It underwent heavy repair s in 1953. The time of the accident was at about 2-20 p.m. on 7 September, 1955. "Samastipur" started towing the barge, went about a mile when the radius rod of Samastipur broke down. Radius rod is a part of the paddle by which a steamer is drive n. The radius rod of Samastipur was repaired in due course. It then heaved up its anchor. The anchor of the barge could not be lifted. There was a danger whistle. Rasul, the Sarang of "Chapra" came with his steamer to the aid of Samastipur. Two officers Lall and Devia herein before mentioned left the matter in the hands of the three sarangs. Lall, the Commander of the Ferry was not examined. The Assistant Mechanical Engineer was examined. The High Court found that Rasul did not take the steamer and the barge to the Diara but took them to Simarighat. The steamer and the barge reached jetty at Simariaghat. When the barge was about to be attached to the jetty, it sank.The High Court found that the strength of the current in the month of September was a known factor. The railway employees were used to ply the steamer and the barge between the two ghats during the month of September. The railway employees were found to equip themselves with appropriate appliances and necessary skill for the job of taking the barge across. The High Court found that there was no satisfactory explanation for the sinking of the barge. The High Court also found that there was no explanation why the anchor of the barge could not be lifted. According to the High Court, this might have been due to defective or insufficient appliance for haulage of the anchor. The High Court also found that there was no evidence to show that there was any unforeseen difficulty, b y reason of which the anchor could not be heaved up. The fact that the anchor could not be lifted was held by the High Court to be on account of the negligence of the railway employees.The High Court also referred to the fact that the barge developed a big hole and there was no explanation how this happened. The High Court felt that this could be explained by assuming that Chapra pulled the barge in such a way as to make the anchor chain rub against the bottom plates of the barge so a s to create the hole. The High Court found no other reasons because there is no suggestion that there was any submerged tree or stone, and the hole was caused because the barge accidentally struck against any such substance. Since the creation of the hole could not be attributed, according to the High Court to anything unforeseen, it was due to the negligence of the railway employees.The High Court further found that if the barge had been towed to the Diara, it could not sink. The water near the Diara must have been shallow so that the wagons upon the barge could not be submerged in the water near it. On the other hand, Rasul took the steamer and the barge to a much longer distance and the passage must have taken a considerable time. Besides, the water near the jetty was undoubtedly deep and the wagons were also submerged.The High Court on these findings correctly came to the conclusion that the barge sank because of the serious negligence of the railway employees and the railways did not take the care which it was required to take as a bailee.The High Court passed decrees awarding the respondents price of sugar and costs of damages and interest pendente lite and future interest.6. The appellant contended that the contract price should not have been awarded. The High Court said that the evidence of plaintiffs witness Gaya Prasad showed the selling rate of sugar and there was no challenge to that evidence. The High Court found that the goods were despatched on 4 September, 1955. The barge sank on 7th September, 1955, and, therefore, the contract price would be the correct measure of damages. The High Court on the facts and circumstances of the case found that the contract price would also be the same as the market price at that time.7. The market rate is a presumptive test because it is the general intention of the law that, in giving damage for breach of contract, the party complaining should, so far as it can be done by money, be placed in the same position as he would have been in if the contract had been performed. The rule as to market price is intended to secure only an indemnity to the purchaser. The market value is taken because it is presumed to be the true value of the goods to the purchaser. One of the principles for award of damages is that as far as possible he who has proved a breach of a bargain to supply what he has contracted to get is to be placed as far as money can do it, in as good a situation as if the contract had been performed. The fundamental basis thus is compensation for the pecuniary loss which naturally flows from the breach. Therefore, the principle is that as far as possible the injured party should be placed in as good a situation as if the contract had been performed. In other words, it is to provide Compensation for pecuniary loss which naturally flows from the breach. The High Court correctly applied these principles and ad opted the contract price in the facts and circumstances of the case as the correct basis for compensation. | 0[ds]The High Court said that the evidence of plaintiffs witness Gaya Prasad showed the selling rate of sugar and there was no challenge to that evidence. The High Court found that the goods were despatched on 4 September, 1955. The barge sank on 7th September, 1955, and, therefore, the contract price would be the correct measure of damages. The High Court on the facts and circumstances of the case found that the contract price would also be the same as the market price at thatmarket rate is a presumptive test because it is the general intention of the law that, in giving damage for breach of contract, the party complaining should, so far as it can be done by money, be placed in the same position as he would have been in if the contract had been performed. The rule as to market price is intended to secure only an indemnity to the purchaser. The market value is taken because it is presumed to be the true value of the goods to the purchaser. One of the principles for award of damages is that as far as possible he who has proved a breach of a bargain to supply what he has contracted to get is to be placed as far as money can do it, in as good a situation as if the contract had been performed. The fundamental basis thus is compensation for the pecuniary loss which naturally flows from the breach. Therefore, the principle is that as far as possible the injured party should be placed in as good a situation as if the contract had been performed. In other words, it is to provide Compensation for pecuniary loss which naturally flows from the breach. The High Court correctly applied these principles and ad opted the contract price in the facts and circumstances of the case as the correct basis for compensation. | 0 | 2,276 | 342 | ### Instruction:
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of the barge and thereafter went away, leaving the matter entirely in the hands of the sarang. The High Court held that these officers were responsible for not staying on board until the barge was out of trouble.5. The High Court found that Barge No. 6 was very old. It was built in 1897. It underwent heavy repair s in 1953. The time of the accident was at about 2-20 p.m. on 7 September, 1955. "Samastipur" started towing the barge, went about a mile when the radius rod of Samastipur broke down. Radius rod is a part of the paddle by which a steamer is drive n. The radius rod of Samastipur was repaired in due course. It then heaved up its anchor. The anchor of the barge could not be lifted. There was a danger whistle. Rasul, the Sarang of "Chapra" came with his steamer to the aid of Samastipur. Two officers Lall and Devia herein before mentioned left the matter in the hands of the three sarangs. Lall, the Commander of the Ferry was not examined. The Assistant Mechanical Engineer was examined. The High Court found that Rasul did not take the steamer and the barge to the Diara but took them to Simarighat. The steamer and the barge reached jetty at Simariaghat. When the barge was about to be attached to the jetty, it sank.The High Court found that the strength of the current in the month of September was a known factor. The railway employees were used to ply the steamer and the barge between the two ghats during the month of September. The railway employees were found to equip themselves with appropriate appliances and necessary skill for the job of taking the barge across. The High Court found that there was no satisfactory explanation for the sinking of the barge. The High Court also found that there was no explanation why the anchor of the barge could not be lifted. According to the High Court, this might have been due to defective or insufficient appliance for haulage of the anchor. The High Court also found that there was no evidence to show that there was any unforeseen difficulty, b y reason of which the anchor could not be heaved up. The fact that the anchor could not be lifted was held by the High Court to be on account of the negligence of the railway employees.The High Court also referred to the fact that the barge developed a big hole and there was no explanation how this happened. The High Court felt that this could be explained by assuming that Chapra pulled the barge in such a way as to make the anchor chain rub against the bottom plates of the barge so a s to create the hole. The High Court found no other reasons because there is no suggestion that there was any submerged tree or stone, and the hole was caused because the barge accidentally struck against any such substance. Since the creation of the hole could not be attributed, according to the High Court to anything unforeseen, it was due to the negligence of the railway employees.The High Court further found that if the barge had been towed to the Diara, it could not sink. The water near the Diara must have been shallow so that the wagons upon the barge could not be submerged in the water near it. On the other hand, Rasul took the steamer and the barge to a much longer distance and the passage must have taken a considerable time. Besides, the water near the jetty was undoubtedly deep and the wagons were also submerged.The High Court on these findings correctly came to the conclusion that the barge sank because of the serious negligence of the railway employees and the railways did not take the care which it was required to take as a bailee.The High Court passed decrees awarding the respondents price of sugar and costs of damages and interest pendente lite and future interest.6. The appellant contended that the contract price should not have been awarded. The High Court said that the evidence of plaintiffs witness Gaya Prasad showed the selling rate of sugar and there was no challenge to that evidence. The High Court found that the goods were despatched on 4 September, 1955. The barge sank on 7th September, 1955, and, therefore, the contract price would be the correct measure of damages. The High Court on the facts and circumstances of the case found that the contract price would also be the same as the market price at that time.7. The market rate is a presumptive test because it is the general intention of the law that, in giving damage for breach of contract, the party complaining should, so far as it can be done by money, be placed in the same position as he would have been in if the contract had been performed. The rule as to market price is intended to secure only an indemnity to the purchaser. The market value is taken because it is presumed to be the true value of the goods to the purchaser. One of the principles for award of damages is that as far as possible he who has proved a breach of a bargain to supply what he has contracted to get is to be placed as far as money can do it, in as good a situation as if the contract had been performed. The fundamental basis thus is compensation for the pecuniary loss which naturally flows from the breach. Therefore, the principle is that as far as possible the injured party should be placed in as good a situation as if the contract had been performed. In other words, it is to provide Compensation for pecuniary loss which naturally flows from the breach. The High Court correctly applied these principles and ad opted the contract price in the facts and circumstances of the case as the correct basis for compensation.
### Response:
0
### Explanation:
The High Court said that the evidence of plaintiffs witness Gaya Prasad showed the selling rate of sugar and there was no challenge to that evidence. The High Court found that the goods were despatched on 4 September, 1955. The barge sank on 7th September, 1955, and, therefore, the contract price would be the correct measure of damages. The High Court on the facts and circumstances of the case found that the contract price would also be the same as the market price at thatmarket rate is a presumptive test because it is the general intention of the law that, in giving damage for breach of contract, the party complaining should, so far as it can be done by money, be placed in the same position as he would have been in if the contract had been performed. The rule as to market price is intended to secure only an indemnity to the purchaser. The market value is taken because it is presumed to be the true value of the goods to the purchaser. One of the principles for award of damages is that as far as possible he who has proved a breach of a bargain to supply what he has contracted to get is to be placed as far as money can do it, in as good a situation as if the contract had been performed. The fundamental basis thus is compensation for the pecuniary loss which naturally flows from the breach. Therefore, the principle is that as far as possible the injured party should be placed in as good a situation as if the contract had been performed. In other words, it is to provide Compensation for pecuniary loss which naturally flows from the breach. The High Court correctly applied these principles and ad opted the contract price in the facts and circumstances of the case as the correct basis for compensation.
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M/S BASPA ORGANICS LIMITED Vs. UNITED INDIA INSURANCE COMPANY LTD | efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. 26. Clearly, orders under Section 3(1) may pertain to the following objectives: (i) maintaining or increasing supplies of any essential commodity; (ii) securing the equitable distribution and availability at fair prices of such commodity; or, (iii) securing any essential commodity for the defence of India or the efficient conduct of military operations. 27. Furthermore, Section 3(2) contemplates particular aspects with respect to which orders may be passed in exercise of the power under Section 3(1). In this regard, it is relevant to refer to clause (d) of Section 3(2): (2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide? x x x (d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity. 28. Thus, it is clear that the Central Government has the power to pass orders under the Essential Commodities Act to provide for licensing regimes governing the storage of an essential commodity, in pursuance of the three objectives set out in Section 3(1). The 2000 Order, in our considered view, is one such order, providing for a licensing regime regulating the acquisition, sale, storage and prevention of use in automobiles of solvents, raffinates and slops, particularly for the purposes of the Essential Commodities Act. There is nothing in the said order to suggest that it intends to replace or modify any other existing licensing regime under any other law in force, including the Petroleum Act and the rules formulated thereunder. 29. In fact, we find that the notifications issued in pursuance of the 2000 Order set to rest any residual doubt in this regard. For instance, a perusal of G.R.S. 578(E), an order dated 30.06.2000 issued by the Central Government under Clause 3 of the 2000 Order, clearly reveals that the licence being referred to under the order is the Solvent, Raffinate and Slop Licence. The said notification reiterates that the said licence is to be issued by the State Government, District Magistrate, or the officer authorised by the Central or State Government, as also mentioned in Clause 3(1) of the 2000 Order. 30. There cannot be any dispute that the licence issued under the Essential Commodities Act and control orders are for a different purpose altogether compared to the Petroleum Act. Thus, it is clear that the licensing regime envisaged in clause 3 of the 2000 Order, and the exemption granted thereto, is in addition to the licensing requirements under the Petroleum Act. The direction of the Controller of Explosives vide letter dated 05.11.2001 to comply with the requirements under the 2000 Order is an additional requirement to be complied with in order to obtain a licence under the Petroleum Act. It cannot be said that an exemption from obtaining a licence under the 2000 Order would amount to an exemption to obtain a licence under the Petroleum Act. Hence, even assuming that the Appellant was exempt from obtaining a licence under the 2000 Order by virtue of the said exemption, the Appellant was still required to obtain a licence in accordance with the 1976 Rules. We hasten to add here that, as already mentioned supra, the quantity of Hexane stored by the Appellant was more than 20 kilolitres. Hence, the Appellant was required to obtain a licence under the 2000 Order as well. 31. From the above discussion, it is evident that the 1976 Rules prescribed that a licence had to be obtained for the purposes of storing Hexane of the quantity involved in the instant case, and the Appellant has failed to comply with this requirement. In the absence of such a licence, the Appellant could not have lawfully stored Hexane. Therefore, we are of the view that the non-disclosure of the non-possession of a licence was of a material nature, and constituted a violation of Condition 1 of the insurance policy. As a result, we are inclined to affirm the finding of the National Commission that the Respondent was justified in repudiating the claim of the Appellant on this ground. 32. The second issue, regarding the overvaluation of the subject factory, was not seriously argued by either party. Moreover, it is a question of fact, which this Court generally does not probe deeply. Thus, we shall refrain from examining the merits thereof. The same is also unnecessary in light of our above finding that the repudiation of the instant claim was justified on the ground pertaining to the Appellant lacking a licence for storing Hexane under the Petroleum Act and 1976 Rules. 33. Before we part with this matter, we may note that some objection was raised by the Appellant against the appointment of the third surveyor by the Respondent. Suffice it to state that the appointment of the third surveyor was for the limited purpose of examining whether the Appellant was in possession of the requisite licences for the storage of Hexane. Moreover, neither did the findings of the third surveyor disturb the findings of the second surveyor, nor were they material to the conclusion against the Appellant arrived at by the National Commission. The second surveyor had given a categorical finding that about 90 kilolitres of Hexane were stored in the factory premises, and this finding has not been challenged by the Appellant. At the same time, while the findings of the third surveyor supplement the reasoning of the National Commission vis-à-vis the absence of a licence under the Petroleum Act and 1976 Rules, they are not crucial to this conclusion, inasmuch as the Appellant itself never contended that it was in possession of the requisite licences for the storage of Hexane. As a result, we find that irrespective of whether or not the appointment of the third surveyor was proper, the findings of the said surveyor do not materially affect the outcome of the instant case. | 0[ds]6. At the outset, we must observe that we are at a loss to understand why the insurance policy was taken by the Appellant for only one month and extended thereafter, again, for only one more month. It is also quite perplexing as to why the Respondent agreed to issue a policy for such a short period of time, and no plausible reasons are forthcoming from the records to explain the peculiar nature of this transaction12. Before looking into whether the Appellant was required to obtain a licence under the provisions reproduced above, it is relevant to note that the Appellant has not challenged the second surveyors report, or its finding that the factory premises contained over 90 kilolitres of Hexane, out of which 79.152 kilolitres were damaged. On the contrary, the Appellant seeks to rely on the report heavily13.1 Therefore, it is evident that for the storage of petroleum Class A less than 30 litres in quantity, no licence is required under the Petroleum Act or rules thereunder. As per Article 3, a licence issued by the District Authority is required for importing and storing petroleum Class A in a quantity not exceeding 300 litres. Thus, the Respondent may be justified in arguing that for storage of petroleum Class A ranging from 30 litres to 300 litres in quantity, a licence under Article 3 may be required. However, in the instant case, it is clear that the Appellant had stored much more than 300 litres of Hexane, and therefore, a licence under Article 3 would not be sufficient15. From the definitions reproduced above, it becomes evident that irrespective of the quantity of petroleum, when petroleum is stored in a tank, it is referred to as petroleum in bulk under the 1976 Rules. As mentioned earlier, Article 7, on which the Respondent seeks to place reliance, deals with the grant of a licence for storage of petroleum otherwise than in bulk, i.e. otherwise than in a tank. In other words, for petroleum Class A exceeding 300 litres, a licence under Article 7 is required when it is not being stored in receptacles exceeding 1000 litres in capacity18. In the instant case, the second surveyor had clearly stated that the Hexane had leaked from the tanks in which it was stored. However, it is not clear from the material on record whether or not the term tank was assigned the same meaning as under the 1976 Rules. If the tanks referred to by the second surveyor were receptacles that could not store more than 1000 litres of petroleum, then they would not constitute tanks under the 1976 Rules, and the petroleum stored in such tanks would fall under the category of petroleum stored otherwise than in bulk. In such a case, a licence would be required under Article 720. The above communication clearly indicates that even the Controller of Explosives was of the opinion that the premises where the Appellant was storing Hexane amounted to an installation. As we have discussed supra, for a premises to be considered as an installation, it must contain a place prepared to hold tanks as defined under the 1976 Rules. This strongly suggests that the tanks referred to by the second surveyor were indeed tanks as envisaged under the 1976 Rules. In our considered view, this shows that the Appellant may well have been required to obtain a licence under Article 6 itself21. It is not the case of the Appellant that it provided the documents stipulated by the Controller of Explosives. No further communication between the Appellant and the said authority has been placed on record either. There is nothing on record to show that a licence under Article 6 was granted to the Appellant22. In light of the above discussion, we are of the view that the Appellant was required to obtain a licence under the 1976 Rules for the storage of Hexane, be it under Article 6 or 7, and has failed to show that it possessed any such licence24. Evidently, there is an exemption carved out in the proviso dispensing with the need for a licence in the cases laid down thereunder. Significantly, Hexane is mentioned in the Schedule referred to in the above clause, making it clear that the substance is governed by the same28. Thus, it is clear that the Central Government has the power to pass orders under the Essential Commodities Act to provide for licensing regimes governing the storage of an essential commodity, in pursuance of the three objectives set out in Section 3(1). The 2000 Order, in our considered view, is one such order, providing for a licensing regime regulating the acquisition, sale, storage and prevention of use in automobiles of solvents, raffinates and slops, particularly for the purposes of the Essential Commodities Act. There is nothing in the said order to suggest that it intends to replace or modify any other existing licensing regime under any other law in force, including the Petroleum Act and the rules formulated thereunder29. In fact, we find that the notifications issued in pursuance of the 2000 Order set to rest any residual doubt in this regard. For instance, a perusal of G.R.S. 578(E), an order dated 30.06.2000 issued by the Central Government under Clause 3 of the 2000 Order, clearly reveals that the licence being referred to under the order is the Solvent, Raffinate and Slop Licence. The said notification reiterates that the said licence is to be issued by the State Government, District Magistrate, or the officer authorised by the Central or State Government, as also mentioned in Clause 3(1) of the 2000 Order30. There cannot be any dispute that the licence issued under the Essential Commodities Act and control orders are for a different purpose altogether compared to the Petroleum Act. Thus, it is clear that the licensing regime envisaged in clause 3 of the 2000 Order, and the exemption granted thereto, is in addition to the licensing requirements under the Petroleum Act. The direction of the Controller of Explosives vide letter dated 05.11.2001 to comply with the requirements under the 2000 Order is an additional requirement to be complied with in order to obtain a licence under the Petroleum Act. It cannot be said that an exemption from obtaining a licence under the 2000 Order would amount to an exemption to obtain a licence under the Petroleum Act. Hence, even assuming that the Appellant was exempt from obtaining a licence under the 2000 Order by virtue of the said exemption, the Appellant was still required to obtain a licence in accordance with the 1976 Rules. We hasten to add here that, as already mentioned supra, the quantity of Hexane stored by the Appellant was more than 20 kilolitres. Hence, the Appellant was required to obtain a licence under the 2000 Order as well31. From the above discussion, it is evident that the 1976 Rules prescribed that a licence had to be obtained for the purposes of storing Hexane of the quantity involved in the instant case, and the Appellant has failed to comply with this requirement. In the absence of such a licence, the Appellant could not have lawfully stored Hexane. Therefore, we are of the view that the non-disclosure of the non-possession of a licence was of a material nature, and constituted a violation of Condition 1 of the insurance policy. As a result, we are inclined to affirm the finding of the National Commission that the Respondent was justified in repudiating the claim of the Appellant on this ground32. The second issue, regarding the overvaluation of the subject factory, was not seriously argued by either party. Moreover, it is a question of fact, which this Court generally does not probe deeply. Thus, we shall refrain from examining the merits thereof. The same is also unnecessary in light of our above finding that the repudiation of the instant claim was justified on the ground pertaining to the Appellant lacking a licence for storing Hexane under the Petroleum Act and 1976 Rules33. Before we part with this matter, we may note that some objection was raised by the Appellant against the appointment of the third surveyor by the Respondent. Suffice it to state that the appointment of the third surveyor was for the limited purpose of examining whether the Appellant was in possession of the requisite licences for the storage of Hexane. Moreover, neither did the findings of the third surveyor disturb the findings of the second surveyor, nor were they material to the conclusion against the Appellant arrived at by the National Commission. The second surveyor had given a categorical finding that about 90 kilolitres of Hexane were stored in the factory premises, and this finding has not been challenged by the Appellant. At the same time, while the findings of the third surveyor supplement the reasoning of the National Commission vis-à-vis the absence of a licence under the Petroleum Act and 1976 Rules, they are not crucial to this conclusion, inasmuch as the Appellant itself never contended that it was in possession of the requisite licences for the storage of Hexane. As a result, we find that irrespective of whether or not the appointment of the third surveyor was proper, the findings of the said surveyor do not materially affect the outcome of the instant case. | 0 | 4,877 | 1,707 | ### 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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efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. 26. Clearly, orders under Section 3(1) may pertain to the following objectives: (i) maintaining or increasing supplies of any essential commodity; (ii) securing the equitable distribution and availability at fair prices of such commodity; or, (iii) securing any essential commodity for the defence of India or the efficient conduct of military operations. 27. Furthermore, Section 3(2) contemplates particular aspects with respect to which orders may be passed in exercise of the power under Section 3(1). In this regard, it is relevant to refer to clause (d) of Section 3(2): (2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide? x x x (d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity. 28. Thus, it is clear that the Central Government has the power to pass orders under the Essential Commodities Act to provide for licensing regimes governing the storage of an essential commodity, in pursuance of the three objectives set out in Section 3(1). The 2000 Order, in our considered view, is one such order, providing for a licensing regime regulating the acquisition, sale, storage and prevention of use in automobiles of solvents, raffinates and slops, particularly for the purposes of the Essential Commodities Act. There is nothing in the said order to suggest that it intends to replace or modify any other existing licensing regime under any other law in force, including the Petroleum Act and the rules formulated thereunder. 29. In fact, we find that the notifications issued in pursuance of the 2000 Order set to rest any residual doubt in this regard. For instance, a perusal of G.R.S. 578(E), an order dated 30.06.2000 issued by the Central Government under Clause 3 of the 2000 Order, clearly reveals that the licence being referred to under the order is the Solvent, Raffinate and Slop Licence. The said notification reiterates that the said licence is to be issued by the State Government, District Magistrate, or the officer authorised by the Central or State Government, as also mentioned in Clause 3(1) of the 2000 Order. 30. There cannot be any dispute that the licence issued under the Essential Commodities Act and control orders are for a different purpose altogether compared to the Petroleum Act. Thus, it is clear that the licensing regime envisaged in clause 3 of the 2000 Order, and the exemption granted thereto, is in addition to the licensing requirements under the Petroleum Act. The direction of the Controller of Explosives vide letter dated 05.11.2001 to comply with the requirements under the 2000 Order is an additional requirement to be complied with in order to obtain a licence under the Petroleum Act. It cannot be said that an exemption from obtaining a licence under the 2000 Order would amount to an exemption to obtain a licence under the Petroleum Act. Hence, even assuming that the Appellant was exempt from obtaining a licence under the 2000 Order by virtue of the said exemption, the Appellant was still required to obtain a licence in accordance with the 1976 Rules. We hasten to add here that, as already mentioned supra, the quantity of Hexane stored by the Appellant was more than 20 kilolitres. Hence, the Appellant was required to obtain a licence under the 2000 Order as well. 31. From the above discussion, it is evident that the 1976 Rules prescribed that a licence had to be obtained for the purposes of storing Hexane of the quantity involved in the instant case, and the Appellant has failed to comply with this requirement. In the absence of such a licence, the Appellant could not have lawfully stored Hexane. Therefore, we are of the view that the non-disclosure of the non-possession of a licence was of a material nature, and constituted a violation of Condition 1 of the insurance policy. As a result, we are inclined to affirm the finding of the National Commission that the Respondent was justified in repudiating the claim of the Appellant on this ground. 32. The second issue, regarding the overvaluation of the subject factory, was not seriously argued by either party. Moreover, it is a question of fact, which this Court generally does not probe deeply. Thus, we shall refrain from examining the merits thereof. The same is also unnecessary in light of our above finding that the repudiation of the instant claim was justified on the ground pertaining to the Appellant lacking a licence for storing Hexane under the Petroleum Act and 1976 Rules. 33. Before we part with this matter, we may note that some objection was raised by the Appellant against the appointment of the third surveyor by the Respondent. Suffice it to state that the appointment of the third surveyor was for the limited purpose of examining whether the Appellant was in possession of the requisite licences for the storage of Hexane. Moreover, neither did the findings of the third surveyor disturb the findings of the second surveyor, nor were they material to the conclusion against the Appellant arrived at by the National Commission. The second surveyor had given a categorical finding that about 90 kilolitres of Hexane were stored in the factory premises, and this finding has not been challenged by the Appellant. At the same time, while the findings of the third surveyor supplement the reasoning of the National Commission vis-à-vis the absence of a licence under the Petroleum Act and 1976 Rules, they are not crucial to this conclusion, inasmuch as the Appellant itself never contended that it was in possession of the requisite licences for the storage of Hexane. As a result, we find that irrespective of whether or not the appointment of the third surveyor was proper, the findings of the said surveyor do not materially affect the outcome of the instant case.
### Response:
0
### Explanation:
that the Appellant may well have been required to obtain a licence under Article 6 itself21. It is not the case of the Appellant that it provided the documents stipulated by the Controller of Explosives. No further communication between the Appellant and the said authority has been placed on record either. There is nothing on record to show that a licence under Article 6 was granted to the Appellant22. In light of the above discussion, we are of the view that the Appellant was required to obtain a licence under the 1976 Rules for the storage of Hexane, be it under Article 6 or 7, and has failed to show that it possessed any such licence24. Evidently, there is an exemption carved out in the proviso dispensing with the need for a licence in the cases laid down thereunder. Significantly, Hexane is mentioned in the Schedule referred to in the above clause, making it clear that the substance is governed by the same28. Thus, it is clear that the Central Government has the power to pass orders under the Essential Commodities Act to provide for licensing regimes governing the storage of an essential commodity, in pursuance of the three objectives set out in Section 3(1). The 2000 Order, in our considered view, is one such order, providing for a licensing regime regulating the acquisition, sale, storage and prevention of use in automobiles of solvents, raffinates and slops, particularly for the purposes of the Essential Commodities Act. There is nothing in the said order to suggest that it intends to replace or modify any other existing licensing regime under any other law in force, including the Petroleum Act and the rules formulated thereunder29. In fact, we find that the notifications issued in pursuance of the 2000 Order set to rest any residual doubt in this regard. For instance, a perusal of G.R.S. 578(E), an order dated 30.06.2000 issued by the Central Government under Clause 3 of the 2000 Order, clearly reveals that the licence being referred to under the order is the Solvent, Raffinate and Slop Licence. The said notification reiterates that the said licence is to be issued by the State Government, District Magistrate, or the officer authorised by the Central or State Government, as also mentioned in Clause 3(1) of the 2000 Order30. There cannot be any dispute that the licence issued under the Essential Commodities Act and control orders are for a different purpose altogether compared to the Petroleum Act. Thus, it is clear that the licensing regime envisaged in clause 3 of the 2000 Order, and the exemption granted thereto, is in addition to the licensing requirements under the Petroleum Act. The direction of the Controller of Explosives vide letter dated 05.11.2001 to comply with the requirements under the 2000 Order is an additional requirement to be complied with in order to obtain a licence under the Petroleum Act. It cannot be said that an exemption from obtaining a licence under the 2000 Order would amount to an exemption to obtain a licence under the Petroleum Act. Hence, even assuming that the Appellant was exempt from obtaining a licence under the 2000 Order by virtue of the said exemption, the Appellant was still required to obtain a licence in accordance with the 1976 Rules. We hasten to add here that, as already mentioned supra, the quantity of Hexane stored by the Appellant was more than 20 kilolitres. Hence, the Appellant was required to obtain a licence under the 2000 Order as well31. From the above discussion, it is evident that the 1976 Rules prescribed that a licence had to be obtained for the purposes of storing Hexane of the quantity involved in the instant case, and the Appellant has failed to comply with this requirement. In the absence of such a licence, the Appellant could not have lawfully stored Hexane. Therefore, we are of the view that the non-disclosure of the non-possession of a licence was of a material nature, and constituted a violation of Condition 1 of the insurance policy. As a result, we are inclined to affirm the finding of the National Commission that the Respondent was justified in repudiating the claim of the Appellant on this ground32. The second issue, regarding the overvaluation of the subject factory, was not seriously argued by either party. Moreover, it is a question of fact, which this Court generally does not probe deeply. Thus, we shall refrain from examining the merits thereof. The same is also unnecessary in light of our above finding that the repudiation of the instant claim was justified on the ground pertaining to the Appellant lacking a licence for storing Hexane under the Petroleum Act and 1976 Rules33. Before we part with this matter, we may note that some objection was raised by the Appellant against the appointment of the third surveyor by the Respondent. Suffice it to state that the appointment of the third surveyor was for the limited purpose of examining whether the Appellant was in possession of the requisite licences for the storage of Hexane. Moreover, neither did the findings of the third surveyor disturb the findings of the second surveyor, nor were they material to the conclusion against the Appellant arrived at by the National Commission. The second surveyor had given a categorical finding that about 90 kilolitres of Hexane were stored in the factory premises, and this finding has not been challenged by the Appellant. At the same time, while the findings of the third surveyor supplement the reasoning of the National Commission vis-à-vis the absence of a licence under the Petroleum Act and 1976 Rules, they are not crucial to this conclusion, inasmuch as the Appellant itself never contended that it was in possession of the requisite licences for the storage of Hexane. As a result, we find that irrespective of whether or not the appointment of the third surveyor was proper, the findings of the said surveyor do not materially affect the outcome of the instant case.
|
Arjan Singh Alias Puran Vs. Kartar Singh And Others | appellate Ct. that must require the evidence to enable it to pronounce judgment. As laid down by the P. C. in the well-known case ofKessowji v. G. I. P. Railway,34 I. A. 115 : (31 Bom. 381(P. C.)),"the legitimate occasion for the appln. of the present rule is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Ct., of fresh evidence and the appln. is made to import it;"and they reiterated this view in stronger terms even in the later case of Parsotim v. Lal Mohan,58 I. A 254 : (A. I. R. (18) 1931 P. C. 143). The true test, therefore, is whether the appellate Ct. is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.8. In the present case, there is nothing to show that there was any lacuna or gap which had to be filled up and that the appellate Ct. felt the need for the omission being supplied so that it could pronounce a judgment; to put it the other way round, it does not appear, and it was not stated, that the Dist. J. felt himself unable to come to a decision without copies of the settlement registers that were sought to be put in before him for the first time. On the other hand, the Dist. J. made up his mind to admit the certified copies of thekami beshi and muntakhib asami-warregisters even before he heard the appeal. The order allowing the applt. to call the additional evidence is dated 17-3-1942.The appeal was heard on 24-4-1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the Ct. required to be filled up for pronouncing its judgment. In the circumstances, the learned Judges of the H. C. were right in holding that the Dist. J was not justified in admitting this evidence under O. 41, R. 27.9. Even conceding that the reception of additional evidence was proper, the Dist. J. has failed to consider the inherent infirmities of the entries in the settlement registers relied on for the applt. and the several criticisms that could justify be levelled against them for showing that they were spurious. He took the entries to be genuine. The only reason assigned by the learned Judge for treating the entries to be genuine and not forged appears to he that the records had all along remained in proper custody. As against this rather perfunctory remark, we must set the following observations of the learned Judges of the H. C. :"Even a superficial observation of the original documents leads one irresistibly to the conclusion that this entry was a subsequent interpolation. Innaqsha kama beshithere was already a remark in that column and the remark relied upon which has very awkwardly been inserted there is with a different pen and in a different ink. It is even impossible to read it clearly. Further, although there are 2 or 3 other places where the names of Jodha and Jai Singh appear, no such remark has been made against them. It may also be observed that though a corresponding remark appears in the column of sharah lagan in muntakhib asami-warwhere it is evidently out of place in the copy retained in the Tahsil Office, there is no such remark in the copy which is preserved at the Sadar Office. Even otherwise it does not stand to reason why a remark to this effect should have been made in this column. The way in which these entries were said to have been traced also throws a lot of suspicion on their genuineness."10. We find ourselves in entire agreement with these observations of the learned Judges. It is no doubt true that a finding of fact, however erroneous, cannot be challenged in a second appeal, but a finding reached on the basis of additional evidence which ought not to have been admitted and without any consideration whatever of the intrinsic and palpable defects in the nature of the entries themselves which raise serious doubts about their genuineness, cannot be accepted as a finding that is conclusive in second appeal11. If the additional evidence is left out of account, the applt. has practically no legs to stand on. There is nothing to show that the common ancestor Sehja Singh was possessed of the Mauza Pattar Kalan properties which are found subsequently entered in the name of two sons in equal shares, with nothing said about the share of the third son Pohlo. As a matter of fact, the pedigree table shows that there was a fourth son called Hamira. If the property had been entered in the registers in the name of all the sons in equal shares, there might be some ground, however feeble, for presuming that the property was ancestral as alleged by the pltf. There is nothing to show that the common ancestor owned the land and that his sons got it from him by inheritance in equal shares.12. The Dist. J. was obviously wrong when he decreed the pltf.s suit even with reference to the lands in Kadduwal conceded to he non-ancestral and the land in Khasra No. 2408 measuring 4 bighas and 16 biswas, which was not in the possession of the two sons Jodha Singh and Jai Singh. He was equally wrong in holding that the customary law which governed the parties did not permit the owner to will away any portion of the property, whether ancestral or sell acquired; this is contrary to S.7 of Punjab Act II [2] of 1920, which is in these terms :"Notwithstanding anything to the contrary contained in S. 5, Punjab Laws Act,1872, no person shall contest any alienation of non-ancestral immovable property or any appointment of an heir to such. property on the ground that such alienation or appointment is contrary to custom."13. | 0[ds]There is, however, a fallacy underlying this argument. The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in O. 41, R. 27, Civil P. C. If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent.In the present case, there is nothing to show that there was any lacuna or gap which had to be filled up and that the appellate Ct. felt the need for the omission being supplied so that it could pronounce a judgment; to put it the other way round, it does not appear, and it was not stated, that the Dist. J. felt himself unable to come to a decision without copies of the settlement registers that were sought to be put in before him for the first time. On the other hand, the Dist. J. made up his mind to admit the certified copies of thekami beshi and muntakhib asami-warregisters even before he heard the appeal. The order allowing the applt. to call the additional evidence is datedappeal was heard on 24-4-1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the Ct. required to be filled up for pronouncing its judgment. In the circumstances, the learned Judges of the H. C. were right in holding that the Dist. J was not justified in admitting this evidence under O. 41, R. 27.If the additional evidence is left out of account, the applt. has practically no legs to stand on. There is nothing to show that the common ancestor Sehja Singh was possessed of the Mauza Pattar Kalan properties which are found subsequently entered in the name of two sons in equal shares, with nothing said about the share of the third son Pohlo. As a matter of fact, the pedigree table shows that there was a fourth son called Hamira. If the property had been entered in the registers in the name of all the sons in equal shares, there might be some ground, however feeble, for presuming that the property was ancestral as alleged by the pltf. There is nothing to show that the common ancestor owned the land and that his sons got it from him by inheritance in equal shares.The Dist. J. was obviously wrong when he decreed the pltf.s suit even with reference to the lands in Kadduwal conceded to he non-ancestral and the land in Khasra No. 2408 measuring 4 bighas and 16 biswas, which was not in the possession of the two sons Jodha Singh and Jai Singh. He was equally wrong in holding that the customary law which governed the parties did not permit the owner to will away any portion of the property, whether ancestral or sell acquired; this is contrary to S.7 of Punjab Act II [2] of 1920, which is in these termsanything to the contrary contained in S. 5, Punjab Laws Act,1872, no person shall contest any alienation of non-ancestral immovable property or any appointment of an heir to such. property on the ground that such alienation or appointment is contrary to custom." | 0 | 2,681 | 626 | ### 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:
appellate Ct. that must require the evidence to enable it to pronounce judgment. As laid down by the P. C. in the well-known case ofKessowji v. G. I. P. Railway,34 I. A. 115 : (31 Bom. 381(P. C.)),"the legitimate occasion for the appln. of the present rule is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Ct., of fresh evidence and the appln. is made to import it;"and they reiterated this view in stronger terms even in the later case of Parsotim v. Lal Mohan,58 I. A 254 : (A. I. R. (18) 1931 P. C. 143). The true test, therefore, is whether the appellate Ct. is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.8. In the present case, there is nothing to show that there was any lacuna or gap which had to be filled up and that the appellate Ct. felt the need for the omission being supplied so that it could pronounce a judgment; to put it the other way round, it does not appear, and it was not stated, that the Dist. J. felt himself unable to come to a decision without copies of the settlement registers that were sought to be put in before him for the first time. On the other hand, the Dist. J. made up his mind to admit the certified copies of thekami beshi and muntakhib asami-warregisters even before he heard the appeal. The order allowing the applt. to call the additional evidence is dated 17-3-1942.The appeal was heard on 24-4-1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the Ct. required to be filled up for pronouncing its judgment. In the circumstances, the learned Judges of the H. C. were right in holding that the Dist. J was not justified in admitting this evidence under O. 41, R. 27.9. Even conceding that the reception of additional evidence was proper, the Dist. J. has failed to consider the inherent infirmities of the entries in the settlement registers relied on for the applt. and the several criticisms that could justify be levelled against them for showing that they were spurious. He took the entries to be genuine. The only reason assigned by the learned Judge for treating the entries to be genuine and not forged appears to he that the records had all along remained in proper custody. As against this rather perfunctory remark, we must set the following observations of the learned Judges of the H. C. :"Even a superficial observation of the original documents leads one irresistibly to the conclusion that this entry was a subsequent interpolation. Innaqsha kama beshithere was already a remark in that column and the remark relied upon which has very awkwardly been inserted there is with a different pen and in a different ink. It is even impossible to read it clearly. Further, although there are 2 or 3 other places where the names of Jodha and Jai Singh appear, no such remark has been made against them. It may also be observed that though a corresponding remark appears in the column of sharah lagan in muntakhib asami-warwhere it is evidently out of place in the copy retained in the Tahsil Office, there is no such remark in the copy which is preserved at the Sadar Office. Even otherwise it does not stand to reason why a remark to this effect should have been made in this column. The way in which these entries were said to have been traced also throws a lot of suspicion on their genuineness."10. We find ourselves in entire agreement with these observations of the learned Judges. It is no doubt true that a finding of fact, however erroneous, cannot be challenged in a second appeal, but a finding reached on the basis of additional evidence which ought not to have been admitted and without any consideration whatever of the intrinsic and palpable defects in the nature of the entries themselves which raise serious doubts about their genuineness, cannot be accepted as a finding that is conclusive in second appeal11. If the additional evidence is left out of account, the applt. has practically no legs to stand on. There is nothing to show that the common ancestor Sehja Singh was possessed of the Mauza Pattar Kalan properties which are found subsequently entered in the name of two sons in equal shares, with nothing said about the share of the third son Pohlo. As a matter of fact, the pedigree table shows that there was a fourth son called Hamira. If the property had been entered in the registers in the name of all the sons in equal shares, there might be some ground, however feeble, for presuming that the property was ancestral as alleged by the pltf. There is nothing to show that the common ancestor owned the land and that his sons got it from him by inheritance in equal shares.12. The Dist. J. was obviously wrong when he decreed the pltf.s suit even with reference to the lands in Kadduwal conceded to he non-ancestral and the land in Khasra No. 2408 measuring 4 bighas and 16 biswas, which was not in the possession of the two sons Jodha Singh and Jai Singh. He was equally wrong in holding that the customary law which governed the parties did not permit the owner to will away any portion of the property, whether ancestral or sell acquired; this is contrary to S.7 of Punjab Act II [2] of 1920, which is in these terms :"Notwithstanding anything to the contrary contained in S. 5, Punjab Laws Act,1872, no person shall contest any alienation of non-ancestral immovable property or any appointment of an heir to such. property on the ground that such alienation or appointment is contrary to custom."13.
### Response:
0
### Explanation:
There is, however, a fallacy underlying this argument. The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in O. 41, R. 27, Civil P. C. If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent.In the present case, there is nothing to show that there was any lacuna or gap which had to be filled up and that the appellate Ct. felt the need for the omission being supplied so that it could pronounce a judgment; to put it the other way round, it does not appear, and it was not stated, that the Dist. J. felt himself unable to come to a decision without copies of the settlement registers that were sought to be put in before him for the first time. On the other hand, the Dist. J. made up his mind to admit the certified copies of thekami beshi and muntakhib asami-warregisters even before he heard the appeal. The order allowing the applt. to call the additional evidence is datedappeal was heard on 24-4-1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the Ct. required to be filled up for pronouncing its judgment. In the circumstances, the learned Judges of the H. C. were right in holding that the Dist. J was not justified in admitting this evidence under O. 41, R. 27.If the additional evidence is left out of account, the applt. has practically no legs to stand on. There is nothing to show that the common ancestor Sehja Singh was possessed of the Mauza Pattar Kalan properties which are found subsequently entered in the name of two sons in equal shares, with nothing said about the share of the third son Pohlo. As a matter of fact, the pedigree table shows that there was a fourth son called Hamira. If the property had been entered in the registers in the name of all the sons in equal shares, there might be some ground, however feeble, for presuming that the property was ancestral as alleged by the pltf. There is nothing to show that the common ancestor owned the land and that his sons got it from him by inheritance in equal shares.The Dist. J. was obviously wrong when he decreed the pltf.s suit even with reference to the lands in Kadduwal conceded to he non-ancestral and the land in Khasra No. 2408 measuring 4 bighas and 16 biswas, which was not in the possession of the two sons Jodha Singh and Jai Singh. He was equally wrong in holding that the customary law which governed the parties did not permit the owner to will away any portion of the property, whether ancestral or sell acquired; this is contrary to S.7 of Punjab Act II [2] of 1920, which is in these termsanything to the contrary contained in S. 5, Punjab Laws Act,1872, no person shall contest any alienation of non-ancestral immovable property or any appointment of an heir to such. property on the ground that such alienation or appointment is contrary to custom."
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Trustees of the Port of Madras, by its Chairman Vs. K.P.V. Sheik Mohamed Rowther & Company & Others | production of the bill of lading, to a person who was not entitled to receive them. They are therefore liable in conversion unless likewise so protected."Clause 2 of the Bill of lading provided : "During the period before the goods are loaded on or after they are discharged from the ship on which they are carried by sea, the following terms and conditions shall apply to the exclu- sion of any other provisions in this bill of lading that may be inconsistent therewith, viz., (a) so long as the goods remain in the actual custody of the "carrier or his servants.. - (b) whilst the goods are being transported to or from the ship........ (c) in another cases the responsibility of the carrier, whether as carrier or as custodian or bailee of the goods, shall be deemed to commence only when the goods are loaded on the ship and to cease absolutely after they are discharged therefrom." 33. It was held that this clause did not protect the shipowner in spite of the width of these expressions and its operation must be limited and modified to the extent necessary to enable the effect to be given to the main object and intent of the contract and at least so as not to permit the carrier deliberately to disregard his obligation as to delivery against the production of the bill of lading. 34. In the present case, it was further contended that as between the master of the ship and the consignee, the Act made it obligatory that the consignee gets his goods from the Board and not direct from the master of the ship, and that therefore the Board acts as the agent of the consignee. We have not been referred to any provision in the Act which supports this contention. Assuming, however, that the consignee cannot take delivery of the goods at the quay from the ship direct, it does not follow that the Board receives the goods as the agent of the consignee. The only reasonable conclusion in the circumstances can be that the place of delivery is shifted from the side of the ship to the warehouses where the Board stores the goods till the consignee appears to take delivery on the basis of the delivery order by the steamer-agent which is usually an endorsement on the bill of lading, and the quay be con- sidered a part of the ship. In Hamburg, it is so considered, as would appear from the following note at p. 37 of the German Law of Carriage of Goods by Sea, by Sieve King: "Where goods are shipped from or discharged on to a quay, the question arises whose agent the owner of the quay is. This of course depends upon the wording of the rules and bye laws regulating the passing of goods over the quay. As a rule (in Hamburg for instance) the qua is considered as forming part of the ship the owner of the quay is the agent of the master. The fact of the shipper having handed the goods over to the owner of the quay is tantamount to a receipt for the same on the part of the master; the goods discharged upon the quay are considered as still being in the possession of the master until the consignee has received them from the quay." .If the Board was an agent of the consignee, it was bound to deliver the goods to the consignee and should not have any rights of retaining the goods till the payment of the rates and other dues for which it had a lien on the goods. The provision of there being a lien on the goods for the payment of the dues of the Board or the freight, make it clear that the Board did not have the custody of the goods as an agent of the consignee. 35. It is further contended that s. 42 draws a distinction between services performed in respect of the vessel and those performed in respect of the goods; that the former services are rendered to the master of the ship and the latter to the consignee, the owner of the goods and that service rendered by receiving the goods from the ship at the quay is therefore service to the consignee. We do not construe the expression " any other service in respect of vessel, passengers or goods in cl. (e) of s. 42 of the Act in this manner. 36. If it is interpreted as suggested, the Board must charge the passenger to whom services are rendered. This is not done. Any charges so incurred must be realised from steamer- agents who may, in their turn, charge the passengers for the same. 37. We do not agree with the contention that the charges for labour rendered idle are in the nature of compensation or damages in respect of any loss, inconvenience or expenses caused to the Board or its shore-labour in consequence of any default attributed to the master of the ship. There is no question of damages. The labour has been engaged. It is paid for the time during which it remains idle, for no fault of its own. Charges for that are levied from the person who required that labour and is responsible for its remaining idle. Of course, if the idle time was due to the default of the labour, no such charges are required to be paid by the ship-owner.We are therefore of opinion that the impugned charges were rightly levied by scale E on the master, owner or agent of the vessels and that the Board could insist on the steamer- agent requisitioning the shore-labour to express an undertaking in the form for requisitioning labour that he will pay the charges laid down in the Boards scale of rates from time to time in respect of labour rendered idle or not properly utilised and also for working more than one hook simultaneously at a vessels hatch. | 1[ds]It is therefore clear that the performance of any of the services mentioned in sub-s. (1) of s. 39 and the taking of charge of the goods are consequent on the Board being required to do so by the owner, which is a general term including consignor, consignee, shipper or agent. If the owner does not require the Board to undertake such services and to take charge of the goods for these purposes, the Board is not to undertake those services.It is the steamer-agent, who is in a position to require the Board to undertake these services in respect of the cargo the ship is to unload. He alone is respected to have full knowledge about the time when the ship is to arrive, about the suitability of the berth for that ship, about the quantity and nature of the consignment and about the time the ship would like to be in the dock and consequently about the amount of shore-labour required in connection with the goods to be landed. It is for this reason that it is the steamer-agent who informs the staff of the Board about the arrival of the ship who has to furnish the manifest giving details of the goods to be land- ed and who has to submit a requisition about the shore labour required and the period of time during which it would be required. It is admitted for the parties that the steamer-agent used to convey the information about the necessary shorelabour and about the period when it was required. The new Form of requisition introduced from March 1, 1958, contained an undertaking by the steamer-agent for the payment of the labour dues on account of labour remaining idle or on account of labour working more than one hook simultaneously. This was introduced in the Form because such payments were newly introduced and added to the charges which used to be collected by them on the basis of tonnage handled by the shore-labour and possibly also on account of the anticipated objection on the part of the steamer-agents to their liability to pay these charges. The liability to pay these charges, however, does not arise on account of the undertaking but on account of the sanctioned scale of rates at which and the conditions under which the Board would perform those services. Section 44 of the Act provides that such sanctioned rates and conditions shall have the force of law20. There is no doubt that the ship-owner is the bailee of the shipper, the consignor, and that he is responsible for the delivery of the goods to the consignee or a transferee according to the terms of the bill of lading. This duty the ship-owner discharges only when he has delivered the goods to the consignee or such person who be entitled to take delivery in accordance with the endorsements on the bill of lading. Delivery to the Board is not delivery to the consignee or such person, both because the delivery is to be on the presentation of the bill of lading and because the Act contains no provision which would constitute the Board an agent of the consignee for the purpose of taking delivery of the goods21. We, do not agree with the contention for the respondents that the expression receiving in cl. (b) of sub-s. (1) of s. 39 of the Act means receiving the goods on behalf of the consignee. The reception of the goods can be on behalf of the ship-owner also. The steamer-agent cannot ask the Board to receive the goods on behalf of the consignee21. We, do not agree with the contention for the respondents that the expression receiving in cl. (b) of sub-s. (1) of s. 39 of the Act means receiving the goods on behalf of the consignee. The reception of the goods can be on behalf of the ship-owner also. The steamer-agent cannot ask the Board to receive the goods on behalf of the consignee22. Sub-section (3) of s. 39 of the Act empowers the Board to take charge of the goods for the purpose of performing certain services which do not include the taking delivery of the goods from the ship-owner. It is true that on the Boards taking charge of the goods and giving a receipt about it to the ship-owner, the master or the owner of the vessel is absolved from liability for any loss or dam age which may occur to the goods which had been landed, but this provision by itself does not suffice to convert the receiving of the goods by the Board after they had been landed by the ship-owner to the Boards taking delivery of those goods on behalf of the consignee. The Board simply takes charge of the goods on being required by the steamer-agent to take charge of it.Section 40 speaks of the responsibility of the Board for the loss, destruction or deterioration of the goods of which it has taken charge as a bailee under ss. 151, 152 and 161 of the Indian Contract Act. Section 148 of the Contract Act states that a bailment is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the bailor and the person to whom they are delivered is called the bailee. It is clear therefore that when the Board takes charge of the goods from the ship-owner, the ship-owner is the bailor and the Board is the bailee, and the Boards responsibility for the goods thereafter is that of a bailee. The Board does not get the goods from the consignee. It cannot be the bailee of the consignee. It can be the agent of the consignee only if so appointed, which is not alleged to be the case, and even if the Board be an agent, then its liability would be as an agent and not as a bailee. The provisions of ss. 39 and 40, therefore, further support the contention that the Board takes charge of the goods on behalf of the ship-owner and not on behalf of the consignee, and whatever services it performs at the time of the landing of the goods or on their removal thereafter, are services rendered to the ship25. The charges for labour rendered idle and for labour working more hooks simultaneously, are not charges for services rendered subsequent to the landing of the goods. These are charges which are incurred at the last stage of the process of landing of the goods and therefore prior to the actual landing of the goods. They are, even under the general law, for services rendered to the master of the ship whose liability for loss or of damage to the goods continues up to the placing of the goods on the quay and their receipt by the Board29. These observations apply when the goods are to be delivered to the consignee alongside the ship and not when they are -handed over to the Statutory body, like the Board, as a sub-bailee. How the delivery is to be made depends on the terms of the bill of lading and the custom of the Port. The case is no authority for the proposition that in all circumstances the master of the vessel is not responsible for the performance of the acts subsequent to his placing the goods in such a position that the consignee can get them, as contended for the respondents. The delivery contemplated in these observations, is not, in our opinion, equivalent to the landing of the goods at the quay as contemplated by the various provisions of the Act.We have already discussed that the landing of the goods by the ship-owner on the quay and placing them in charge of the Board does not amount to delivering them to the consignee, even though it absolves the master of the ship from further responsibility for the loss or damage to the goods34. In the present case, it was further contended that as between the master of the ship and the consignee, the Act made it obligatory that the consignee gets his goods from the Board and not direct from the master of the ship, and that therefore the Board acts as the agent of the consignee. We have not been referred to any provision in the Act which supports this contention. Assuming, however, that the consignee cannot take delivery of the goods at the quay from the ship direct, it does not follow that the Board receives the goods as the agent of the consignee. The only reasonable conclusion in the circumstances can be that the place of delivery is shifted from the side of the ship to the warehouses where the Board stores the goods till the consignee appears to take delivery on the basis of the delivery order by the steamer-agent which is usually an endorsement on the bill of lading, and the quay be con- sidered a part of the ship. In Hamburg, it is so considered, as would appear from the following note at p. 37 of the German Law of Carriage of Goods by Sea, by Sieve King: "Where goods are shipped from or discharged on to a quay, the question arises whose agent the owner of the quay is. This of course depends upon the wording of the rules and bye laws regulating the passing of goods over the quay. As a rule (in Hamburg for instance) the qua is considered as forming part of the ship the owner of the quay is the agent of the master. The fact of the shipper having handed the goods over to the owner of the quay is tantamount to a receipt for the same on the part of the master; the goods discharged upon the quay are considered as still being in the possession of the master until the consignee has received them from the quay." .If the Board was an agent of the consignee, it was bound to deliver the goods to the consignee and should not have any rights of retaining the goods till the payment of the rates and other dues for which it had a lien on the goods. The provision of there being a lien on the goods for the payment of the dues of the Board or the freight, make it clear that the Board did not have the custody of the goods as an agent of the consignee35. It is further contended that s. 42 draws a distinction between services performed in respect of the vessel and those performed in respect of the goods; that the former services are rendered to the master of the ship and the latter to the consignee, the owner of the goods and that service rendered by receiving the goods from the ship at the quay is therefore service to the consignee. We do not construe the expression " any other service in respect of vessel, passengers or goods in cl. (e) of s. 42 of the Act in this manner36. If it is interpreted as suggested, the Board must charge the passenger to whom services are rendered. This is not done. Any charges so incurred must be realised from steamer- agents who may, in their turn, charge the passengers for the same30. The case reported as British Ship-owners Co. (Limited) v. Grimond ((1876) III Ses. Oases IV Series 968.), is again, not of help, as it simply held that delivery to the porters., whom the consignee was obliged by the Harbour Regulation to employ and pay for the purpose of receiving, was delivery to the consignee. In the present case there is nothing to show that the consignees are obliged by the Board to engage the shore-labour. Further, in the above case, Lord justice Clerk said at p. 972 "The question of delivery is as much one of common-sense as of technical rules. The general rule is that goods are delivered when they are so completely in the custody of the consignee that he may do as he pleases with them." | 1 | 11,033 | 2,201 | ### 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:
production of the bill of lading, to a person who was not entitled to receive them. They are therefore liable in conversion unless likewise so protected."Clause 2 of the Bill of lading provided : "During the period before the goods are loaded on or after they are discharged from the ship on which they are carried by sea, the following terms and conditions shall apply to the exclu- sion of any other provisions in this bill of lading that may be inconsistent therewith, viz., (a) so long as the goods remain in the actual custody of the "carrier or his servants.. - (b) whilst the goods are being transported to or from the ship........ (c) in another cases the responsibility of the carrier, whether as carrier or as custodian or bailee of the goods, shall be deemed to commence only when the goods are loaded on the ship and to cease absolutely after they are discharged therefrom." 33. It was held that this clause did not protect the shipowner in spite of the width of these expressions and its operation must be limited and modified to the extent necessary to enable the effect to be given to the main object and intent of the contract and at least so as not to permit the carrier deliberately to disregard his obligation as to delivery against the production of the bill of lading. 34. In the present case, it was further contended that as between the master of the ship and the consignee, the Act made it obligatory that the consignee gets his goods from the Board and not direct from the master of the ship, and that therefore the Board acts as the agent of the consignee. We have not been referred to any provision in the Act which supports this contention. Assuming, however, that the consignee cannot take delivery of the goods at the quay from the ship direct, it does not follow that the Board receives the goods as the agent of the consignee. The only reasonable conclusion in the circumstances can be that the place of delivery is shifted from the side of the ship to the warehouses where the Board stores the goods till the consignee appears to take delivery on the basis of the delivery order by the steamer-agent which is usually an endorsement on the bill of lading, and the quay be con- sidered a part of the ship. In Hamburg, it is so considered, as would appear from the following note at p. 37 of the German Law of Carriage of Goods by Sea, by Sieve King: "Where goods are shipped from or discharged on to a quay, the question arises whose agent the owner of the quay is. This of course depends upon the wording of the rules and bye laws regulating the passing of goods over the quay. As a rule (in Hamburg for instance) the qua is considered as forming part of the ship the owner of the quay is the agent of the master. The fact of the shipper having handed the goods over to the owner of the quay is tantamount to a receipt for the same on the part of the master; the goods discharged upon the quay are considered as still being in the possession of the master until the consignee has received them from the quay." .If the Board was an agent of the consignee, it was bound to deliver the goods to the consignee and should not have any rights of retaining the goods till the payment of the rates and other dues for which it had a lien on the goods. The provision of there being a lien on the goods for the payment of the dues of the Board or the freight, make it clear that the Board did not have the custody of the goods as an agent of the consignee. 35. It is further contended that s. 42 draws a distinction between services performed in respect of the vessel and those performed in respect of the goods; that the former services are rendered to the master of the ship and the latter to the consignee, the owner of the goods and that service rendered by receiving the goods from the ship at the quay is therefore service to the consignee. We do not construe the expression " any other service in respect of vessel, passengers or goods in cl. (e) of s. 42 of the Act in this manner. 36. If it is interpreted as suggested, the Board must charge the passenger to whom services are rendered. This is not done. Any charges so incurred must be realised from steamer- agents who may, in their turn, charge the passengers for the same. 37. We do not agree with the contention that the charges for labour rendered idle are in the nature of compensation or damages in respect of any loss, inconvenience or expenses caused to the Board or its shore-labour in consequence of any default attributed to the master of the ship. There is no question of damages. The labour has been engaged. It is paid for the time during which it remains idle, for no fault of its own. Charges for that are levied from the person who required that labour and is responsible for its remaining idle. Of course, if the idle time was due to the default of the labour, no such charges are required to be paid by the ship-owner.We are therefore of opinion that the impugned charges were rightly levied by scale E on the master, owner or agent of the vessels and that the Board could insist on the steamer- agent requisitioning the shore-labour to express an undertaking in the form for requisitioning labour that he will pay the charges laid down in the Boards scale of rates from time to time in respect of labour rendered idle or not properly utilised and also for working more than one hook simultaneously at a vessels hatch.
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### Explanation:
ship-owner and not on behalf of the consignee, and whatever services it performs at the time of the landing of the goods or on their removal thereafter, are services rendered to the ship25. The charges for labour rendered idle and for labour working more hooks simultaneously, are not charges for services rendered subsequent to the landing of the goods. These are charges which are incurred at the last stage of the process of landing of the goods and therefore prior to the actual landing of the goods. They are, even under the general law, for services rendered to the master of the ship whose liability for loss or of damage to the goods continues up to the placing of the goods on the quay and their receipt by the Board29. These observations apply when the goods are to be delivered to the consignee alongside the ship and not when they are -handed over to the Statutory body, like the Board, as a sub-bailee. How the delivery is to be made depends on the terms of the bill of lading and the custom of the Port. The case is no authority for the proposition that in all circumstances the master of the vessel is not responsible for the performance of the acts subsequent to his placing the goods in such a position that the consignee can get them, as contended for the respondents. The delivery contemplated in these observations, is not, in our opinion, equivalent to the landing of the goods at the quay as contemplated by the various provisions of the Act.We have already discussed that the landing of the goods by the ship-owner on the quay and placing them in charge of the Board does not amount to delivering them to the consignee, even though it absolves the master of the ship from further responsibility for the loss or damage to the goods34. In the present case, it was further contended that as between the master of the ship and the consignee, the Act made it obligatory that the consignee gets his goods from the Board and not direct from the master of the ship, and that therefore the Board acts as the agent of the consignee. We have not been referred to any provision in the Act which supports this contention. Assuming, however, that the consignee cannot take delivery of the goods at the quay from the ship direct, it does not follow that the Board receives the goods as the agent of the consignee. The only reasonable conclusion in the circumstances can be that the place of delivery is shifted from the side of the ship to the warehouses where the Board stores the goods till the consignee appears to take delivery on the basis of the delivery order by the steamer-agent which is usually an endorsement on the bill of lading, and the quay be con- sidered a part of the ship. In Hamburg, it is so considered, as would appear from the following note at p. 37 of the German Law of Carriage of Goods by Sea, by Sieve King: "Where goods are shipped from or discharged on to a quay, the question arises whose agent the owner of the quay is. This of course depends upon the wording of the rules and bye laws regulating the passing of goods over the quay. As a rule (in Hamburg for instance) the qua is considered as forming part of the ship the owner of the quay is the agent of the master. The fact of the shipper having handed the goods over to the owner of the quay is tantamount to a receipt for the same on the part of the master; the goods discharged upon the quay are considered as still being in the possession of the master until the consignee has received them from the quay." .If the Board was an agent of the consignee, it was bound to deliver the goods to the consignee and should not have any rights of retaining the goods till the payment of the rates and other dues for which it had a lien on the goods. The provision of there being a lien on the goods for the payment of the dues of the Board or the freight, make it clear that the Board did not have the custody of the goods as an agent of the consignee35. It is further contended that s. 42 draws a distinction between services performed in respect of the vessel and those performed in respect of the goods; that the former services are rendered to the master of the ship and the latter to the consignee, the owner of the goods and that service rendered by receiving the goods from the ship at the quay is therefore service to the consignee. We do not construe the expression " any other service in respect of vessel, passengers or goods in cl. (e) of s. 42 of the Act in this manner36. If it is interpreted as suggested, the Board must charge the passenger to whom services are rendered. This is not done. Any charges so incurred must be realised from steamer- agents who may, in their turn, charge the passengers for the same30. The case reported as British Ship-owners Co. (Limited) v. Grimond ((1876) III Ses. Oases IV Series 968.), is again, not of help, as it simply held that delivery to the porters., whom the consignee was obliged by the Harbour Regulation to employ and pay for the purpose of receiving, was delivery to the consignee. In the present case there is nothing to show that the consignees are obliged by the Board to engage the shore-labour. Further, in the above case, Lord justice Clerk said at p. 972 "The question of delivery is as much one of common-sense as of technical rules. The general rule is that goods are delivered when they are so completely in the custody of the consignee that he may do as he pleases with them."
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SHITAL FIBERS LTD Vs. INDIAN ACRYLICS LIMITED | 715 (Raj)] , cannot constitute an agreement between the parties for payment of interest. The legal position, thus, seems to be obvious. Before seeking a company to be wound up on the ground that it is unable to pay its debts, it must be shown before the Court that the debt claimed against the company is ascertained and definite and that the company failed to pay the same. Mere failure to pay the amount would not constitute the requisite neglect to pay as envisaged under clause (a) of sub- section (1) of Section 434 of the Act when the company bona fide disputes the very liability and hence the defence taken up by it is of substance. It was furthermore held: Having regard to the facts and circumstances of the instant case, we are of the considered view that the claim of the petitioner towards interest on delayed payments since not covered by any specific agreement between the parties inter se is a contentious issue and the dispute as regards the payment of interest is bona fide and it cannot, therefore, legitimately be concluded that the respondent has neglected to pay. The petitioner, who pleaded inter alia in his petition that as per the trade practice payments made shall be adjusted towards interest first and balance, if any, shall be adjusted towards principal later, failed to establish the same by any prima facie evidence. In the absence of any such trade practice, appropriating the amounts towards interest first and the balance, if any towards principal next becomes inappropriate, in which event the claim of the petitioner that the respondent is liable to pay Rs 65,15,947 basing upon such calculations cannot be accurate. The total amount claimed by the petitioner as due in that view of the matter becomes doubtful and not definite. It is still got to be ascertained if the claim of the respondent were to be considered that there has been no agreement for payment of interest on delayed payments. For the above reasons, it cannot be presumed prima facie that the respondent is unable to pay its debts. 43. The findings of the High Court, with respect, are not correct for more than one reason; firstly, because the Division Bench did not hold that the invoices were not proved by cogent evidence; secondly, question of leading evidence would arise only after the company petition is admitted and, thirdly, issuance of invoices and signature of the respondent thereon is not disputed. After observing the aforesaid, this Court further held, that the appellant was also entitled to the payment of interest. 24. It can thus clearly be seen, that this Court had clearly held, that it is not necessary while admitting the petition to establish that the entire claim is undisputed. We fail to understand, as to how the said judgment of this Court in Vijay Industries (supra) would be applicable to the facts of the present case. As a matter of fact, in the said case, this Court on consideration of the invoices had come to a conclusion, that the appellant was also entitled for the interest on delayed payment. 25. In the present case, the Division Bench has not issued a direction to grant the interest as claimed by the respondent. On the contrary, it has declined to enter into the question, as to whether the appellant was also liable to pay the interest since the learned company judge had not referred to the said issue. The Division Bench therefore, while dismissing the appeal, has done so without prejudice to the respondents contention regarding interest which may be claimed either by way of an application for clarification before the learned judge or by way of an appeal or by any other proceeding. 26. We find, that the judgment of this Court in the case of IBA Health (India) Private Limited (supra) would also not be applicable to the facts of the present case. In the said case, it will be relevant to refer to the following observations of this Court. 29. On a detailed analysis of the various terms and conditions incorporated in the deed of settlement as well as the compromise deed and the averments made by the parties, we are of the considered view that there is a bona fide dispute with regard to the amount of claim made by the respondent Company in the company petition which is substantial in nature. The Company Court while exercising its powers under Sections 433 and 434 of the Companies Act, 1956 would not be in a position to decide who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed which calls for detailed investigation of facts and examination of evidence and calls for interpretation of the various terms and conditions of the deed of settlement and the compromise entered into between the parties. 27. This Court held, that the company court while exercising its powers under sections 433 and 434 of the Companies Act would not be in a position to decide, as to who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed. It was found, that in the said case, a detailed investigation of facts and examination of evidence and interpretation of various terms and conditions of the deed of settlement and the compromise entered into between the parties was necessary in adjudicating the claim, which could not be done in the proceedings under Section 434 of the said Act. In the said case, it was also noticed, that the claim was in respect of contingent debt and that the disputes between the parties had been compromised in terms of settlement deed. 28. Such is not the case here. On facts, the learned Company Judge as well as the Division bench have found, that the defence of the appellant could not be said to be bona fide, in good faith and of substance. | 0[ds]8. This Court in the case of Madhusudan Gordhandas & Co. vs. Madhu Woollen Industries Pvt. Ltd. (1971) 3 SCC 632 , observed thus:20. Two rules are well settled. First, if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company. The court has dismissed a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contended that no price had been agreed upon and the sum demanded by the creditor was unreasonable. (See London and Paris Banking Corporation [(1874) LR 19 Eq 444] ) Again, a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company when the company contended that the work had not been properly was not allowed. (See Re. Brighton Club and Horfold Hotel Co. Ltd. [(1865) 35 Beav 204])21. Where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt, see Re. A Company. [94 SJ 369] Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantify the debt precisely See Re Tweeds Garages Ltd. [1962 Ch 406] The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends.9. It is therefore well settled, that if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company. It is equally well settled, that where the debt is undisputed, the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt. It is equally settled, that the principles on which the court acts are first, that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends.10. As to whether the defence of a Company is in good faith or as to whether it is of a substance and as to whether it is likely to succeed in point of law and as to whether the company adduces prima facie proof of the facts on which defence depends, would depend upon the facts of each case.13. It is thus clear, that in response to paragraph 4 and 5 wherein the respondent has specified its claim, the only reply given is, that it is a matter of record and that it shows about the business worth of his client. No doubt, that in paragraph 6, it is stated, that the respondent had himself been coming to the appellant and settled the amount and agreed to return Rs.25 lakh out of which only Rs. 5 lakh was returned.14. From the perusal of the written statement filed to the Company Petition, it would reveal, that the main contention of the appellant was, that it was a running company making profits and further, that the claim of the respondent was not admitted by it. It was contended, that the petition was filed only to pressurise the appellant to pay the dues which were neither admitted nor legally due.15. It was also stated in the written statement that till 26.6.2007 there was no issue with regard to supply of raw material by the respondent. However, with effect from 26.6.2007 it was noticed, that raw material supplied was defective and the goods which were sold in the market utilizing the said raw material were received back with some complaints. It was stated, that the goods which were supplied by the respondent vide invoices dated 26.6.2007 onwards were defective and the products manufactured by the appellant – company using the said raw material (i.e. acrylic yarn) were returned by the dealers and importers due to defective quality. It was stated, that the appellant – Company had returned the defective raw material to the respondent – Company, which remained unused. It was stated, that the respondent had acknowledged the same and credited an amount of Rs.6,22,073/- in the account of the appellant. It is further stated, that after various meetings and negotiations, the respondent agreed to compensate the appellant on account of supply of defective material by issuing a credit note of Rs.5 lakh. It was further stated, that as per the account of the appellant, an amount of Rs.53,648/- was receivable from the respondent after making all the adjustments.17. It could thus be seen, that the learned Company Judge has found, that the defence taken by the appellant with regard to the products of the respondent being defective in quality was by way of an after-thought, inasmuch as, no document was placed on record in support of such contention. It was further found, that whereas in reply to the notice the appellant had claimed, that it was entitled to recover an amount of Rs.11,07,297/-, in the calculations given in written statement, the amount is Rs.53,648/-.19. It is thus amply clear, that both the learned Company Judge as well as the Division Bench upon appreciation of the materials placed on record have found, that the defence as sought to be raised by the appellant with regard to the quality of the material supplied by the respondent being defective was by way of an after-thought. The Division Bench found, that when the appellant raised a dispute about the quality, the same was acknowledged by the respondent and it was reflected in its conduct by the grant of credit. It observed, that the respondent had fairly acknowledged the defects when there were any and it was reasonable to presume, that if there were any other defects, it would have recorded the same in some manner or the other. The Division Bench further found, that it was difficult to accept the case of the appellant, that the discussions with regard to defective material were only oral. It further found, that in the reply to the statutory notice there were no mention at all with regard to oral agreement. The Division Bench further found, that the contention of the appellant, that the goods manufactured utilizing the defective raw material supplied by the respondent being returned by the dealers and thereby the appellant suffered any damages, was also not supported by any document.20. It was concurrently found, that the defence of the appellant was not bona fide one nor a substantial one. On facts, it was also found, that the appellant had taken contradictory stand in order to defeat the claim of the respondent. It was also concurrently found, that the appellant had failed to adduce prima facie proof of facts contented by it.21. Insofar as the contention of the appellant, that the appellant was an on-going Company running into profits and that the claim of the respondent was not admitted by it, is concerned, it is not a requirement in law. Reliance in this respect could be placed on various judgments of this Court including the one in the case of Vijay Industries (supra).22. Insofar as the reliance placed by the learned counsel for the appellant on the judgment of this Court in the case of Mediquip Systems (P) Ltd. (supra) is concerned, in the said case this Court came to a finding, that there was a bona fide dispute concerning the claim of the appellant. It was also found, that there was no clear cut finding by the learned single judge, that a debt is prima facie due and payable by the Company to the petitioning creditor. It was further found, that the company court had no jurisdiction to direct the company to deposit the amount payable to a third party or to a party other than the petitioning creditor. As such, on facts, the said judgment would not be applicable to the facts of the present case.23. In the case of Vijay Industries (supra) relied by the appellant, the learned single judge after finding, that a prima facie case has been made out, admitted the company petition. However, in appeal, the Division Bench set aside the order of the learned single judge. This Court while setting aside the order of the Division Bench observed thus:41. In the present case, on the date of filing of the application, dues in respect of at least a part of the debt which was more than the amount specified in Section 433 [sic Section 434(1)(a)] of the Companies Act was not denied. It is not a requirement of the law that the entire debt must be definite and certain. The Division Bench of the High Court proceeded on the basis that the entire sum covering both the principal and the interest must be undisputed, holding:Except making a bald allegation in the company petition that the petitioner had come to know that the respondent Company owes large sums of money to its creditors and it is not in a position to meet its debt obligations and as, therefore, become commercially insolvent, the petitioner has not taken necessary care to prima facie establish the same. The only piece of evidence available on the side of the petitioner is that the respondent is indebted to the petitioner a sum which is claimed towards interest on the delayed payment. Assuming for a moment that the respondent Company is liable to pay interest on the delayed payments and it has not paid the said amount to the petitioner, could it be said that the respondent neglected to pay the debt, particularly when the respondent is disputing the liability of payment of interest on the delayed payments and when there is no such written agreement in between the parties for such payment of interest.42. The Division Bench upon noticing the facts of the matter formulated the question as to whether the respondent is liable to pay interest at 2% per month on delayed payments and when that is being disputed would it constitute prima facie a valid ground for admission of the company petition? It was held:… The petitioner seeks to rely upon the invoices which according to him contain at the foot a clause for payment of interest on delayed payments. Such a clause, even assuming is there, since it has not been placed by means of any cogent evidence in this case, in view of the judgment of the Rajasthan High Court in Kitply Industries case [(1998) 91 Comp Cas 715 (Raj)] , cannot constitute an agreement between the parties for payment of interest. The legal position, thus, seems to be obvious. Before seeking a company to be wound up on the ground that it is unable to pay its debts, it must be shown before the Court that the debt claimed against the company is ascertained and definite and that the company failed to pay the same. Mere failure to pay the amount would not constitute the requisite neglect to pay as envisaged under clause (a) of sub- section (1) of Section 434 of the Act when the company bona fide disputes the very liability and hence the defence taken up by it is of substance.It was furthermore held:Having regard to the facts and circumstances of the instant case, we are of the considered view that the claim of the petitioner towards interest on delayed payments since not covered by any specific agreement between the parties inter se is a contentious issue and the dispute as regards the payment of interest is bona fide and it cannot, therefore, legitimately be concluded that the respondent has neglected to pay. The petitioner, who pleaded inter alia in his petition that as per the trade practice payments made shall be adjusted towards interest first and balance, if any, shall be adjusted towards principal later, failed to establish the same by any prima facie evidence. In the absence of any such trade practice, appropriating the amounts towards interest first and the balance, if any towards principal next becomes inappropriate, in which event the claim of the petitioner that the respondent is liable to pay Rs 65,15,947 basing upon such calculations cannot be accurate. The total amount claimed by the petitioner as due in that view of the matter becomes doubtful and not definite. It is still got to be ascertained if the claim of the respondent were to be considered that there has been no agreement for payment of interest on delayed payments. For the above reasons, it cannot be presumed prima facie that the respondent is unable to pay its debts.43. The findings of the High Court, with respect, are not correct for more than one reason; firstly, because the Division Bench did not hold that the invoices were not proved by cogent evidence; secondly, question of leading evidence would arise only after the company petition is admitted and, thirdly, issuance of invoices and signature of the respondent thereon is not disputed.After observing the aforesaid, this Court further held, that the appellant was also entitled to the payment of interest.24. It can thus clearly be seen, that this Court had clearly held, that it is not necessary while admitting the petition to establish that the entire claim is undisputed. We fail to understand, as to how the said judgment of this Court in Vijay Industries (supra) would be applicable to the facts of the present case. As a matter of fact, in the said case, this Court on consideration of the invoices had come to a conclusion, that the appellant was also entitled for the interest on delayed payment.25. In the present case, the Division Bench has not issued a direction to grant the interest as claimed by the respondent. On the contrary, it has declined to enter into the question, as to whether the appellant was also liable to pay the interest since the learned company judge had not referred to the said issue. The Division Bench therefore, while dismissing the appeal, has done so without prejudice to the respondents contention regarding interest which may be claimed either by way of an application for clarification before the learned judge or by way of an appeal or by any other proceeding.26. We find, that the judgment of this Court in the case of IBA Health (India) Private Limited (supra) would also not be applicable to the facts of the present case. In the said case, it will be relevant to refer to the following observations of this Court.29. On a detailed analysis of the various terms and conditions incorporated in the deed of settlement as well as the compromise deed and the averments made by the parties, we are of the considered view that there is a bona fide dispute with regard to the amount of claim made by the respondent Company in the company petition which is substantial in nature. The Company Court while exercising its powers under Sections 433 and 434 of the Companies Act, 1956 would not be in a position to decide who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed which calls for detailed investigation of facts and examination of evidence and calls for interpretation of the various terms and conditions of the deed of settlement and the compromise entered into between the parties.27. This Court held, that the company court while exercising its powers under sections 433 and 434 of the Companies Act would not be in a position to decide, as to who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed. It was found, that in the said case, a detailed investigation of facts and examination of evidence and interpretation of various terms and conditions of the deed of settlement and the compromise entered into between the parties was necessary in adjudicating the claim, which could not be done in the proceedings under Section 434 of the said Act. In the said case, it was also noticed, that the claim was in respect of contingent debt and that the disputes between the parties had been compromised in terms of settlement deed.28. Such is not the case here. On facts, the learned Company Judge as well as the Division bench have found, that the defence of the appellant could not be said to be bona fide, in good faith and of substance. | 0 | 5,789 | 3,101 | ### Instruction:
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715 (Raj)] , cannot constitute an agreement between the parties for payment of interest. The legal position, thus, seems to be obvious. Before seeking a company to be wound up on the ground that it is unable to pay its debts, it must be shown before the Court that the debt claimed against the company is ascertained and definite and that the company failed to pay the same. Mere failure to pay the amount would not constitute the requisite neglect to pay as envisaged under clause (a) of sub- section (1) of Section 434 of the Act when the company bona fide disputes the very liability and hence the defence taken up by it is of substance. It was furthermore held: Having regard to the facts and circumstances of the instant case, we are of the considered view that the claim of the petitioner towards interest on delayed payments since not covered by any specific agreement between the parties inter se is a contentious issue and the dispute as regards the payment of interest is bona fide and it cannot, therefore, legitimately be concluded that the respondent has neglected to pay. The petitioner, who pleaded inter alia in his petition that as per the trade practice payments made shall be adjusted towards interest first and balance, if any, shall be adjusted towards principal later, failed to establish the same by any prima facie evidence. In the absence of any such trade practice, appropriating the amounts towards interest first and the balance, if any towards principal next becomes inappropriate, in which event the claim of the petitioner that the respondent is liable to pay Rs 65,15,947 basing upon such calculations cannot be accurate. The total amount claimed by the petitioner as due in that view of the matter becomes doubtful and not definite. It is still got to be ascertained if the claim of the respondent were to be considered that there has been no agreement for payment of interest on delayed payments. For the above reasons, it cannot be presumed prima facie that the respondent is unable to pay its debts. 43. The findings of the High Court, with respect, are not correct for more than one reason; firstly, because the Division Bench did not hold that the invoices were not proved by cogent evidence; secondly, question of leading evidence would arise only after the company petition is admitted and, thirdly, issuance of invoices and signature of the respondent thereon is not disputed. After observing the aforesaid, this Court further held, that the appellant was also entitled to the payment of interest. 24. It can thus clearly be seen, that this Court had clearly held, that it is not necessary while admitting the petition to establish that the entire claim is undisputed. We fail to understand, as to how the said judgment of this Court in Vijay Industries (supra) would be applicable to the facts of the present case. As a matter of fact, in the said case, this Court on consideration of the invoices had come to a conclusion, that the appellant was also entitled for the interest on delayed payment. 25. In the present case, the Division Bench has not issued a direction to grant the interest as claimed by the respondent. On the contrary, it has declined to enter into the question, as to whether the appellant was also liable to pay the interest since the learned company judge had not referred to the said issue. The Division Bench therefore, while dismissing the appeal, has done so without prejudice to the respondents contention regarding interest which may be claimed either by way of an application for clarification before the learned judge or by way of an appeal or by any other proceeding. 26. We find, that the judgment of this Court in the case of IBA Health (India) Private Limited (supra) would also not be applicable to the facts of the present case. In the said case, it will be relevant to refer to the following observations of this Court. 29. On a detailed analysis of the various terms and conditions incorporated in the deed of settlement as well as the compromise deed and the averments made by the parties, we are of the considered view that there is a bona fide dispute with regard to the amount of claim made by the respondent Company in the company petition which is substantial in nature. The Company Court while exercising its powers under Sections 433 and 434 of the Companies Act, 1956 would not be in a position to decide who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed which calls for detailed investigation of facts and examination of evidence and calls for interpretation of the various terms and conditions of the deed of settlement and the compromise entered into between the parties. 27. This Court held, that the company court while exercising its powers under sections 433 and 434 of the Companies Act would not be in a position to decide, as to who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed. It was found, that in the said case, a detailed investigation of facts and examination of evidence and interpretation of various terms and conditions of the deed of settlement and the compromise entered into between the parties was necessary in adjudicating the claim, which could not be done in the proceedings under Section 434 of the said Act. In the said case, it was also noticed, that the claim was in respect of contingent debt and that the disputes between the parties had been compromised in terms of settlement deed. 28. Such is not the case here. On facts, the learned Company Judge as well as the Division bench have found, that the defence of the appellant could not be said to be bona fide, in good faith and of substance.
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High Court in Kitply Industries case [(1998) 91 Comp Cas 715 (Raj)] , cannot constitute an agreement between the parties for payment of interest. The legal position, thus, seems to be obvious. Before seeking a company to be wound up on the ground that it is unable to pay its debts, it must be shown before the Court that the debt claimed against the company is ascertained and definite and that the company failed to pay the same. Mere failure to pay the amount would not constitute the requisite neglect to pay as envisaged under clause (a) of sub- section (1) of Section 434 of the Act when the company bona fide disputes the very liability and hence the defence taken up by it is of substance.It was furthermore held:Having regard to the facts and circumstances of the instant case, we are of the considered view that the claim of the petitioner towards interest on delayed payments since not covered by any specific agreement between the parties inter se is a contentious issue and the dispute as regards the payment of interest is bona fide and it cannot, therefore, legitimately be concluded that the respondent has neglected to pay. The petitioner, who pleaded inter alia in his petition that as per the trade practice payments made shall be adjusted towards interest first and balance, if any, shall be adjusted towards principal later, failed to establish the same by any prima facie evidence. In the absence of any such trade practice, appropriating the amounts towards interest first and the balance, if any towards principal next becomes inappropriate, in which event the claim of the petitioner that the respondent is liable to pay Rs 65,15,947 basing upon such calculations cannot be accurate. The total amount claimed by the petitioner as due in that view of the matter becomes doubtful and not definite. It is still got to be ascertained if the claim of the respondent were to be considered that there has been no agreement for payment of interest on delayed payments. For the above reasons, it cannot be presumed prima facie that the respondent is unable to pay its debts.43. The findings of the High Court, with respect, are not correct for more than one reason; firstly, because the Division Bench did not hold that the invoices were not proved by cogent evidence; secondly, question of leading evidence would arise only after the company petition is admitted and, thirdly, issuance of invoices and signature of the respondent thereon is not disputed.After observing the aforesaid, this Court further held, that the appellant was also entitled to the payment of interest.24. It can thus clearly be seen, that this Court had clearly held, that it is not necessary while admitting the petition to establish that the entire claim is undisputed. We fail to understand, as to how the said judgment of this Court in Vijay Industries (supra) would be applicable to the facts of the present case. As a matter of fact, in the said case, this Court on consideration of the invoices had come to a conclusion, that the appellant was also entitled for the interest on delayed payment.25. In the present case, the Division Bench has not issued a direction to grant the interest as claimed by the respondent. On the contrary, it has declined to enter into the question, as to whether the appellant was also liable to pay the interest since the learned company judge had not referred to the said issue. The Division Bench therefore, while dismissing the appeal, has done so without prejudice to the respondents contention regarding interest which may be claimed either by way of an application for clarification before the learned judge or by way of an appeal or by any other proceeding.26. We find, that the judgment of this Court in the case of IBA Health (India) Private Limited (supra) would also not be applicable to the facts of the present case. In the said case, it will be relevant to refer to the following observations of this Court.29. On a detailed analysis of the various terms and conditions incorporated in the deed of settlement as well as the compromise deed and the averments made by the parties, we are of the considered view that there is a bona fide dispute with regard to the amount of claim made by the respondent Company in the company petition which is substantial in nature. The Company Court while exercising its powers under Sections 433 and 434 of the Companies Act, 1956 would not be in a position to decide who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed which calls for detailed investigation of facts and examination of evidence and calls for interpretation of the various terms and conditions of the deed of settlement and the compromise entered into between the parties.27. This Court held, that the company court while exercising its powers under sections 433 and 434 of the Companies Act would not be in a position to decide, as to who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed. It was found, that in the said case, a detailed investigation of facts and examination of evidence and interpretation of various terms and conditions of the deed of settlement and the compromise entered into between the parties was necessary in adjudicating the claim, which could not be done in the proceedings under Section 434 of the said Act. In the said case, it was also noticed, that the claim was in respect of contingent debt and that the disputes between the parties had been compromised in terms of settlement deed.28. Such is not the case here. On facts, the learned Company Judge as well as the Division bench have found, that the defence of the appellant could not be said to be bona fide, in good faith and of substance.
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M/S Unichem Laboratories Ltd Vs. Rani Devi | was justified in holding that there was no privity of contract of any nature between the appellant and Dharam Das Yadav in relation to the quarter and, therefore, they were not competent to file a suit under the Act to seek respondents eviction from the quarter and such suit could be filed either by the State or/and Labour Commissioner? Yet another question as to whether the High Court was justified in holding that there did not exist any tenancy between the appellant and the worker in respect of the quarter? We do not agree with the view taken by the High Court as, in our view, the questions posed deserve to be answered in appellant’s favour and against the respondents for the reasons mentioned infra.27) It is not in dispute that the State had allotted the quarters to the appellant under the Act by issuing an allotment order. It is also not in dispute that the allotment of quarters was made by the appellant to their workers for their use and occupation, who were in their employment. That apart and as would be clear, the Act enabled the appellant to deduct the rent every month from the monthly salary of the workers under the Act and lastly, there existed a relationship of the employer and the employee between the appellant and the allottee-worker due to which only, the workers were eligible to secure the quarter under the Act as a part of their service conditions.28) In our considered opinion, the aforesaid undisputed facts were sufficient to hold that contractual relationship between the appellant and the allottee-worker in relation to the quarter for deciding their inter se rights had come into existence. It could be, therefore, construed as tenancy agreement between the parties. The appellant was, therefore, competent to file the civil suit against the worker for his eviction from the quarter allotted to him on the strength of such agreement by taking recourse to the provisions of the Act. The breaches alleged by the appellant against the respondents in the suit rendered the worker and all those claiming through him liable to suffer the eviction order because such breaches were rightly held proved by the Trial Court.29) This takes us to examine one more question, which arises for consideration, namely, status of the allottee-worker qua the appellant on his ceasing to be in the appellant’s employment in relation to the quarter. It is not in dispute that the quarter in question was allotted to Dharam Dev Yadav by virtue of he being in the appellants employment. It is also not in dispute that he retired from the service on 12.01.1992. He was, therefore, under contractual obligation to vacate the quarter on his retirement. He did not do so and instead sought extension to vacate the quarter after six months. The appellant granted it. Despite grant of extension, he did not vacate after expiry of six months. In the meantime, he died and his family members (respondents) continued to remain in its occupation. 30) The law on this question is well settled. A contract of tenancy created between the employer and employee in relation to any accommodation terminates on the cessation of the employment of an employee. In other words, such tenancy is only for the period of employment and comes to an end on termination of the contract of employment. Such employee then has no right to remain in occupation of the accommodation once he ceases to be in the employment of his employer. He has to then surrender the accommodation to his employer. 31) In this case, the possession of the original allottee Dharam Dev Yadav became illegal on and after 12.01.1992 when he retired from service because on this date, tenancy in relation to suit quarter also came to an end. In any event, it became unauthorized on and after 30.06.1992. The respondents too had no independent right to remain in occupation of the quarter in question because they were neither in the employment of the appellant and nor were the allottees under the Act so as to entitle them to remain in possession on their own rights.32) The Trial Court was, therefore, justified in recording the aforesaid findings against the respondents and was also justified in passing decree for eviction and recovery of rent by way of damages against the respondents. We find no good ground to interfere in any of these findings. They are accordingly upheld. 33) We may mention here that Section 630 of the Companies Act also deals with such type of cases arising between the Company and its employees to whom the Company has provided the accommodation as part of his service conditions. 34) The Section enables the Company to file a complaint against their employee, if he fails to vacate the accommodation allotted to him by the Company by virtue of his employment on termination of his employment. Such complaint can be filed by the Company in the competent Court wherein the Company can seek employees prosecution, eviction from the accommodation and also for imposition of the fine as specified in the Section. 35) The appellant-Company, in this case could, therefore, also take recourse to invoke the remedy available against the respondents under the Companies Act. It was legally permissible for them to do so because the Act did not bar the applicability of Companies Act for resorting to such remedy against the respondents. Be that as it may. 36) Learned counsel for the respondents lastly submitted that the State/Central Government has issued some G.Os. which, according to him, enable the workers occupying the quarters after ceasing to be in the employment to purchase the quarters as per the procedure prescribed in the G.Os. 37) It is not for this Court to examine this question in these proceedings for the simple reason that this appeal is confined only to examine the legality of an order passed by the High Court in the eviction suit. We, therefore, express no opinion on this question. | 1[ds]16) Having heard learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order and restore the judgment/decree of the Trial Court, which rightly decreedsuit against the respondents.17) In our considered opinion, both the Courts rightly held that the Civil Suit is not barred under Section 13 of the Act. The reasons are not far toAs mentioned above, the jurisdiction of the Civil Court to try the eviction cases arising under the Act was barred by virtue of Section 21 till 28.04.1972 because the power to try such cases was vested in Labour Commissioner. It was permissible for the Legislature to do so. However, on and after 28.04.1972, Labour Commissioner was divested with the power to try the eviction cases by reason of deletion of Section 21 from the Act. The jurisdiction to try the suits arising under the Act, therefore, stood restored to the Civil Court by virtue of Section 9 of the Code because the Legislature then did not confer such powers to try the matters arising under the Act on other specified authority on and after 28.04.1972. It is for these reasons, we are of the considered opinion that the Civil Court was justified in trying and deciding the suit out of which this appeal arises.21) So far as rigour of Section 13 of the Act is concerned, in our opinion, it does not put any fetter on the powers of the Civil Court to try and decide the eviction cases filed by the State or any authority or allotee of the houses against the person in possession of the quarter on and after 28.04.1972.22) Section 13 only provides that if any order is passed by the State Government or Labour Commissioner under the Act, it shall not be called in question in any Court and no Court shall grant any injunction in respect of any action taken or to be taken under the Act.23) This, in our opinion, only means that no industrial worker or any person alike him, if feels aggrieved of any order passed under the Act by the specified authority, will have a right to file any case in the Civil Court to challenge the legality of any such order or/and action taken under the Act. In other words, it only restricts the rights of the worker/person in approaching the Courts to question the legality of the action taken under the Act. This Section unlike Section 21 cannot be construed as ousting the jurisdiction of the Civil Court to try the eviction suit filed by the employer under theIt is for these reasons, we are of the view that both the Courts below were right in holding that the suit is not hit by rigors of Section 13 of the Act.We do not agree with the view taken by the High Court as, in our view, the questions posed deserve to be answered infavour and against the respondents for the reasons mentioned infra.27) It is not in dispute that the State had allotted the quarters to the appellant under the Act by issuing an allotment order. It is also not in dispute that the allotment of quarters was made by the appellant to their workers for their use and occupation, who were in their employment. That apart and as would be clear, the Act enabled the appellant to deduct the rent every month from the monthly salary of the workers under the Act and lastly, there existed a relationship of the employer and the employee between the appellant and the allottee-worker due to which only, the workers were eligible to secure the quarter under the Act as a part of their service conditions.28) In our considered opinion, the aforesaid undisputed facts were sufficient to hold that contractual relationship between the appellant and the allottee-worker in relation to the quarter for deciding their inter se rights had come into existence. It could be, therefore, construed as tenancy agreement between the parties. The appellant was, therefore, competent to file the civil suit against the worker for his eviction from the quarter allotted to him on the strength of such agreement by taking recourse to the provisions of the Act. The breaches alleged by the appellant against the respondents in the suit rendered the worker and all those claiming through him liable to suffer the eviction order because such breaches were rightly held proved by the Trial Court.29) Thistakes us to examine one more question, which arises for consideration, namely, status of the allottee-worker qua the appellant on his ceasing to be in thet in relation to the quarter.It is not in dispute that the quarter in question was allotted to Dharam Dev Yadav by virtue of he being in the appellants employment. It is also not in dispute that he retired from the service on 12.01.1992. He was, therefore, under contractual obligation to vacate the quarter on his retirement. He did not do so and instead sought extension to vacate the quarter after six months. The appellant granted it. Despite grant of extension, he did not vacate after expiry of six months. In the meantime, he died and his family members (respondents) continued to remain in itsIn this case, the possession of the original allottee Dharam Dev Yadav became illegal on and after 12.01.1992 when he retired from service because on this date, tenancy in relation to suit quarter also came to an end. In any event, it became unauthorized on and after 30.06.1992. The respondents too had no independent right to remain in occupation of the quarter in question because they were neither in the employment of the appellant and nor were the allottees under the Act so as to entitle them to remain in possession on their own rights.32) The Trial Court was, therefore, justified in recording the aforesaid findings against the respondents and was also justified in passing decree for eviction and recovery of rent by way of damages against the respondents. We find no good ground to interfere in any of these findings. They are accordinglyThe appellant-Company, in this case could, therefore, also take recourse to invoke the remedy available against the respondents under the Companies Act. It was legally permissible for them to do so because the Act did not bar the applicability of Companies Act for resorting to such remedy against the respondents. Be that as itIt is not for this Court to examine this question in these proceedings for the simple reason that this appeal is confined only to examine the legality of an order passed by the High Court in the eviction suit. We, therefore, express no opinion on this question. | 1 | 3,771 | 1,209 | ### Instruction:
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was justified in holding that there was no privity of contract of any nature between the appellant and Dharam Das Yadav in relation to the quarter and, therefore, they were not competent to file a suit under the Act to seek respondents eviction from the quarter and such suit could be filed either by the State or/and Labour Commissioner? Yet another question as to whether the High Court was justified in holding that there did not exist any tenancy between the appellant and the worker in respect of the quarter? We do not agree with the view taken by the High Court as, in our view, the questions posed deserve to be answered in appellant’s favour and against the respondents for the reasons mentioned infra.27) It is not in dispute that the State had allotted the quarters to the appellant under the Act by issuing an allotment order. It is also not in dispute that the allotment of quarters was made by the appellant to their workers for their use and occupation, who were in their employment. That apart and as would be clear, the Act enabled the appellant to deduct the rent every month from the monthly salary of the workers under the Act and lastly, there existed a relationship of the employer and the employee between the appellant and the allottee-worker due to which only, the workers were eligible to secure the quarter under the Act as a part of their service conditions.28) In our considered opinion, the aforesaid undisputed facts were sufficient to hold that contractual relationship between the appellant and the allottee-worker in relation to the quarter for deciding their inter se rights had come into existence. It could be, therefore, construed as tenancy agreement between the parties. The appellant was, therefore, competent to file the civil suit against the worker for his eviction from the quarter allotted to him on the strength of such agreement by taking recourse to the provisions of the Act. The breaches alleged by the appellant against the respondents in the suit rendered the worker and all those claiming through him liable to suffer the eviction order because such breaches were rightly held proved by the Trial Court.29) This takes us to examine one more question, which arises for consideration, namely, status of the allottee-worker qua the appellant on his ceasing to be in the appellant’s employment in relation to the quarter. It is not in dispute that the quarter in question was allotted to Dharam Dev Yadav by virtue of he being in the appellants employment. It is also not in dispute that he retired from the service on 12.01.1992. He was, therefore, under contractual obligation to vacate the quarter on his retirement. He did not do so and instead sought extension to vacate the quarter after six months. The appellant granted it. Despite grant of extension, he did not vacate after expiry of six months. In the meantime, he died and his family members (respondents) continued to remain in its occupation. 30) The law on this question is well settled. A contract of tenancy created between the employer and employee in relation to any accommodation terminates on the cessation of the employment of an employee. In other words, such tenancy is only for the period of employment and comes to an end on termination of the contract of employment. Such employee then has no right to remain in occupation of the accommodation once he ceases to be in the employment of his employer. He has to then surrender the accommodation to his employer. 31) In this case, the possession of the original allottee Dharam Dev Yadav became illegal on and after 12.01.1992 when he retired from service because on this date, tenancy in relation to suit quarter also came to an end. In any event, it became unauthorized on and after 30.06.1992. The respondents too had no independent right to remain in occupation of the quarter in question because they were neither in the employment of the appellant and nor were the allottees under the Act so as to entitle them to remain in possession on their own rights.32) The Trial Court was, therefore, justified in recording the aforesaid findings against the respondents and was also justified in passing decree for eviction and recovery of rent by way of damages against the respondents. We find no good ground to interfere in any of these findings. They are accordingly upheld. 33) We may mention here that Section 630 of the Companies Act also deals with such type of cases arising between the Company and its employees to whom the Company has provided the accommodation as part of his service conditions. 34) The Section enables the Company to file a complaint against their employee, if he fails to vacate the accommodation allotted to him by the Company by virtue of his employment on termination of his employment. Such complaint can be filed by the Company in the competent Court wherein the Company can seek employees prosecution, eviction from the accommodation and also for imposition of the fine as specified in the Section. 35) The appellant-Company, in this case could, therefore, also take recourse to invoke the remedy available against the respondents under the Companies Act. It was legally permissible for them to do so because the Act did not bar the applicability of Companies Act for resorting to such remedy against the respondents. Be that as it may. 36) Learned counsel for the respondents lastly submitted that the State/Central Government has issued some G.Os. which, according to him, enable the workers occupying the quarters after ceasing to be in the employment to purchase the quarters as per the procedure prescribed in the G.Os. 37) It is not for this Court to examine this question in these proceedings for the simple reason that this appeal is confined only to examine the legality of an order passed by the High Court in the eviction suit. We, therefore, express no opinion on this question.
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### Explanation:
on and after 28.04.1972, Labour Commissioner was divested with the power to try the eviction cases by reason of deletion of Section 21 from the Act. The jurisdiction to try the suits arising under the Act, therefore, stood restored to the Civil Court by virtue of Section 9 of the Code because the Legislature then did not confer such powers to try the matters arising under the Act on other specified authority on and after 28.04.1972. It is for these reasons, we are of the considered opinion that the Civil Court was justified in trying and deciding the suit out of which this appeal arises.21) So far as rigour of Section 13 of the Act is concerned, in our opinion, it does not put any fetter on the powers of the Civil Court to try and decide the eviction cases filed by the State or any authority or allotee of the houses against the person in possession of the quarter on and after 28.04.1972.22) Section 13 only provides that if any order is passed by the State Government or Labour Commissioner under the Act, it shall not be called in question in any Court and no Court shall grant any injunction in respect of any action taken or to be taken under the Act.23) This, in our opinion, only means that no industrial worker or any person alike him, if feels aggrieved of any order passed under the Act by the specified authority, will have a right to file any case in the Civil Court to challenge the legality of any such order or/and action taken under the Act. In other words, it only restricts the rights of the worker/person in approaching the Courts to question the legality of the action taken under the Act. This Section unlike Section 21 cannot be construed as ousting the jurisdiction of the Civil Court to try the eviction suit filed by the employer under theIt is for these reasons, we are of the view that both the Courts below were right in holding that the suit is not hit by rigors of Section 13 of the Act.We do not agree with the view taken by the High Court as, in our view, the questions posed deserve to be answered infavour and against the respondents for the reasons mentioned infra.27) It is not in dispute that the State had allotted the quarters to the appellant under the Act by issuing an allotment order. It is also not in dispute that the allotment of quarters was made by the appellant to their workers for their use and occupation, who were in their employment. That apart and as would be clear, the Act enabled the appellant to deduct the rent every month from the monthly salary of the workers under the Act and lastly, there existed a relationship of the employer and the employee between the appellant and the allottee-worker due to which only, the workers were eligible to secure the quarter under the Act as a part of their service conditions.28) In our considered opinion, the aforesaid undisputed facts were sufficient to hold that contractual relationship between the appellant and the allottee-worker in relation to the quarter for deciding their inter se rights had come into existence. It could be, therefore, construed as tenancy agreement between the parties. The appellant was, therefore, competent to file the civil suit against the worker for his eviction from the quarter allotted to him on the strength of such agreement by taking recourse to the provisions of the Act. The breaches alleged by the appellant against the respondents in the suit rendered the worker and all those claiming through him liable to suffer the eviction order because such breaches were rightly held proved by the Trial Court.29) Thistakes us to examine one more question, which arises for consideration, namely, status of the allottee-worker qua the appellant on his ceasing to be in thet in relation to the quarter.It is not in dispute that the quarter in question was allotted to Dharam Dev Yadav by virtue of he being in the appellants employment. It is also not in dispute that he retired from the service on 12.01.1992. He was, therefore, under contractual obligation to vacate the quarter on his retirement. He did not do so and instead sought extension to vacate the quarter after six months. The appellant granted it. Despite grant of extension, he did not vacate after expiry of six months. In the meantime, he died and his family members (respondents) continued to remain in itsIn this case, the possession of the original allottee Dharam Dev Yadav became illegal on and after 12.01.1992 when he retired from service because on this date, tenancy in relation to suit quarter also came to an end. In any event, it became unauthorized on and after 30.06.1992. The respondents too had no independent right to remain in occupation of the quarter in question because they were neither in the employment of the appellant and nor were the allottees under the Act so as to entitle them to remain in possession on their own rights.32) The Trial Court was, therefore, justified in recording the aforesaid findings against the respondents and was also justified in passing decree for eviction and recovery of rent by way of damages against the respondents. We find no good ground to interfere in any of these findings. They are accordinglyThe appellant-Company, in this case could, therefore, also take recourse to invoke the remedy available against the respondents under the Companies Act. It was legally permissible for them to do so because the Act did not bar the applicability of Companies Act for resorting to such remedy against the respondents. Be that as itIt is not for this Court to examine this question in these proceedings for the simple reason that this appeal is confined only to examine the legality of an order passed by the High Court in the eviction suit. We, therefore, express no opinion on this question.
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The Morvi Mercantile Bank Ltd. And Anr Vs. Union Of India, Through The General Manager,Central Railwa | railway receipt to the consignee, the only remedy of the endorsee being against the endorser. This was the position in English law, except in the case of bills of lading the transfer of which by the Law Merchant operated as a transfer of the possession of as well as the property in the goods, as observed by Lord Wright in 61 Ind App 416 at p. 422 (AIR 1934 PC 246 at p. 248). The endorsee may bring an action as an assignee of the contract of carriage but then the assignment has to be proved as in every other case. It is true that by reason of S. 137 of the Transfer of Property Act, the provisions relating to the transfer of an actionable claim do not apply to a railway receipt, and the assignment need not be according to any particular form, but a railway receipt is not like a negotiable instrument (See Mercantile Bank of India Ltd. v. Central Bank of India Ltd., 65 Ind App 75 at p. 91 : (AIR 1938 PC 52 at p. 58).) It is also apparent that subject to the exceptions mentioned in Ss. 30 and 53 of the Indian Sale of Goods Act, 1930, and S. 178 of the Contract, Act, 1872, its possessor cannot give a better title to the goods than he has. The negotiation of the railway receipt may pass the property in the goods, but it does not transfer the contract contained in the receipt or the statutory contract under S. 74-E of the Indian Railways Act. Negotiability is a creature of statute of mercantile usage, not of judicial decisions apart from either. So, in the absence of any usage of trade or any statutory provision to that effect, a railway receipt cannot be accorded the benefits which flow from negotiability under the Negotiable Instruments Act, so as to entitle the endorsee as the holder for the time being of the document of title to sue the carrier ----the railway authorities in his own name. If the claim of the plaintiff is as an ordinary assignee of the contract of carriage, then the plaintiff has to prove the assignment in his favour. In the present case the plaintiff bank has furnished no such proof of assignment in its favour. In view of cl.(3) of the notice printed at the back of the railway receipt it is clear that an endorsement made on the face of the railway receipt by the consignee is meant to indicate the person to whom the consignee wishes delivery of the goods to be made if he himself does not attend to take delivery. An endorsement made by the consignee on the face of the railway receipt requesting the railway company to deliver the goods to the endorsee merely conveys to the railway company that the person in whose favour the endorsement is made by the consignee is constituted by him a person to whom he wishes that delivery of the goods should be made on his behalf. Clause (3) of the notice printed it the back of the Railway receipt states:"That the railway receipt given by the railway company for the articles delivered for conveyance, must be given up at destination by the consignee to the railway company, otherwise the railway may refuse to deliver and that the signature of the consignee or his agent in the delivery book at destination shall be evidence of complete delivery. If the consignee does not himself attend to take delivery, he must endorse on the receipt a request for delivery to the person to whom he wishes it made, and if the receipt is not produced, the delivery of the goods may, at the discretion of the railway company, be withheld until the person entitled in its opinion to receive them has given an indemnity to the satisfaction of the railway company". In the present case the plaintiff has not proved by proper evidence an assignment of the contract of carriage. In our opinion, the law on the point has been correctly stated by Bhagwati, J in 48 Bom LR 698 : AIR 1947 Bom 169. It follows, therefore, that the plaintiff has no right to bring the present suit against the Union of India. 26. Counsel for appellant has referred to the practice of merchants in treating a railway receipt as a symbol of goods and in making pledge of goods by pledge of railway receipts, but no such practice or custom has been alleged or proved on behalf of the plaintiff in the present case. In the absence of such allegation or proof it is not open to the Court to take any judicial notice of any such practice. Counsel for appellant also referred to possible inconvenience and hardship to merchants if such a practice is not judicially recognised, but the argument from inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure. In Sutters v. Briggs, 1922-1 AC 1 at p.8 Lord Birkenhead stated:"The consequences of this view of S. 2 of the Gaming Act, 1835 will no doubt be extremely inconvenient to many persons. But this is not a matter proper to influence the house unless in a doubtful case affording foothold for balanced speculation as to the probable intention of the legislature". In the present case the language of S.178 of the Contract Act is clear and explicit and if any hardship and inconvenience is felt it is for Parliament to take appropriate steps to amend the law and not for the courts to legislate under the guise of interpretation. 27. For the reasons expressed, we hold that Civil Appeal 474 of 1962 brought by the plaintiff bank should be dismissed and Civil Appeal 475 of 1962 brought by the Union of India through the General Manager, Central Railway should be allowed with costs and the suit of the plaintiff-bank should be dismissed with costs throughout. 28. ORDER | 1[ds]The answer to this question depends upon the construction of S. 180 of the Contract Act. It reads:"If a third person wrongfully deprives the bailee of the use or possession of the goods bailed, or does them any injury, the bailee is entitled to use such remedies as the owner might have used in the like case if no bailment had been made; and either the bailor or the bailee may bring a suit against a third person for such deprivation or injury."Under this section, a pledge being a bailment of goods as security for payment of a debt, the pledgee will have the same remedies as the owner of the goods would have against a third person for deprivation of the said goods or injury to them. If so, it follows that the Bank, being the pledgee, can maintain the present suit for the recovery of the full value of the consignments amounting to Rs. 35,500The firm borrowed a sum of Rs. 20,000 from the Bank and executed a promissory note, Ex.104, dated October 6, 1949, in its favour. It also endorsed the railway receipts Nos. 233-27, 233/35 and 233/36 in favour of the Bank. The Accountant of the Bank deposed that the railway receipts were endorsed in favour of the Bank, which had advanced the said amount to the firm on the security of the said railway receipts. The evidence of this witness was not challenged in the High Court. The Bank advanced a large amount of money to the firm. The three transactions, namely, the advancing of loan, the execution of the promissory note and the endorsement if the railway receipts, together form one transaction. Their combined effect is that the Bank would be in control of the goods till the debt was discharged. This is a well known practice followed by Banks. The Judicial Committee both in 43 Ind App 164 : (AIR 1916 PC 7), and 61 Ind App 416 : (AIR 1934 PC 246 ) held that such a transaction was a pledge. We, therefore, hold on the facts of this case that the firm by endorsing the railway receipts in favour of the Bank for consideration pledged the goods covered by the said receipts to the Bank15. In this view it is not necessary to express our opinion on the question whether if the transaction was not a pledge of the goods, the Bank would be entitled to sue on the basis of the contract entered into between the firm and the railway. | 1 | 11,238 | 471 | ### Instruction:
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railway receipt to the consignee, the only remedy of the endorsee being against the endorser. This was the position in English law, except in the case of bills of lading the transfer of which by the Law Merchant operated as a transfer of the possession of as well as the property in the goods, as observed by Lord Wright in 61 Ind App 416 at p. 422 (AIR 1934 PC 246 at p. 248). The endorsee may bring an action as an assignee of the contract of carriage but then the assignment has to be proved as in every other case. It is true that by reason of S. 137 of the Transfer of Property Act, the provisions relating to the transfer of an actionable claim do not apply to a railway receipt, and the assignment need not be according to any particular form, but a railway receipt is not like a negotiable instrument (See Mercantile Bank of India Ltd. v. Central Bank of India Ltd., 65 Ind App 75 at p. 91 : (AIR 1938 PC 52 at p. 58).) It is also apparent that subject to the exceptions mentioned in Ss. 30 and 53 of the Indian Sale of Goods Act, 1930, and S. 178 of the Contract, Act, 1872, its possessor cannot give a better title to the goods than he has. The negotiation of the railway receipt may pass the property in the goods, but it does not transfer the contract contained in the receipt or the statutory contract under S. 74-E of the Indian Railways Act. Negotiability is a creature of statute of mercantile usage, not of judicial decisions apart from either. So, in the absence of any usage of trade or any statutory provision to that effect, a railway receipt cannot be accorded the benefits which flow from negotiability under the Negotiable Instruments Act, so as to entitle the endorsee as the holder for the time being of the document of title to sue the carrier ----the railway authorities in his own name. If the claim of the plaintiff is as an ordinary assignee of the contract of carriage, then the plaintiff has to prove the assignment in his favour. In the present case the plaintiff bank has furnished no such proof of assignment in its favour. In view of cl.(3) of the notice printed at the back of the railway receipt it is clear that an endorsement made on the face of the railway receipt by the consignee is meant to indicate the person to whom the consignee wishes delivery of the goods to be made if he himself does not attend to take delivery. An endorsement made by the consignee on the face of the railway receipt requesting the railway company to deliver the goods to the endorsee merely conveys to the railway company that the person in whose favour the endorsement is made by the consignee is constituted by him a person to whom he wishes that delivery of the goods should be made on his behalf. Clause (3) of the notice printed it the back of the Railway receipt states:"That the railway receipt given by the railway company for the articles delivered for conveyance, must be given up at destination by the consignee to the railway company, otherwise the railway may refuse to deliver and that the signature of the consignee or his agent in the delivery book at destination shall be evidence of complete delivery. If the consignee does not himself attend to take delivery, he must endorse on the receipt a request for delivery to the person to whom he wishes it made, and if the receipt is not produced, the delivery of the goods may, at the discretion of the railway company, be withheld until the person entitled in its opinion to receive them has given an indemnity to the satisfaction of the railway company". In the present case the plaintiff has not proved by proper evidence an assignment of the contract of carriage. In our opinion, the law on the point has been correctly stated by Bhagwati, J in 48 Bom LR 698 : AIR 1947 Bom 169. It follows, therefore, that the plaintiff has no right to bring the present suit against the Union of India. 26. Counsel for appellant has referred to the practice of merchants in treating a railway receipt as a symbol of goods and in making pledge of goods by pledge of railway receipts, but no such practice or custom has been alleged or proved on behalf of the plaintiff in the present case. In the absence of such allegation or proof it is not open to the Court to take any judicial notice of any such practice. Counsel for appellant also referred to possible inconvenience and hardship to merchants if such a practice is not judicially recognised, but the argument from inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure. In Sutters v. Briggs, 1922-1 AC 1 at p.8 Lord Birkenhead stated:"The consequences of this view of S. 2 of the Gaming Act, 1835 will no doubt be extremely inconvenient to many persons. But this is not a matter proper to influence the house unless in a doubtful case affording foothold for balanced speculation as to the probable intention of the legislature". In the present case the language of S.178 of the Contract Act is clear and explicit and if any hardship and inconvenience is felt it is for Parliament to take appropriate steps to amend the law and not for the courts to legislate under the guise of interpretation. 27. For the reasons expressed, we hold that Civil Appeal 474 of 1962 brought by the plaintiff bank should be dismissed and Civil Appeal 475 of 1962 brought by the Union of India through the General Manager, Central Railway should be allowed with costs and the suit of the plaintiff-bank should be dismissed with costs throughout. 28. ORDER
### Response:
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### Explanation:
The answer to this question depends upon the construction of S. 180 of the Contract Act. It reads:"If a third person wrongfully deprives the bailee of the use or possession of the goods bailed, or does them any injury, the bailee is entitled to use such remedies as the owner might have used in the like case if no bailment had been made; and either the bailor or the bailee may bring a suit against a third person for such deprivation or injury."Under this section, a pledge being a bailment of goods as security for payment of a debt, the pledgee will have the same remedies as the owner of the goods would have against a third person for deprivation of the said goods or injury to them. If so, it follows that the Bank, being the pledgee, can maintain the present suit for the recovery of the full value of the consignments amounting to Rs. 35,500The firm borrowed a sum of Rs. 20,000 from the Bank and executed a promissory note, Ex.104, dated October 6, 1949, in its favour. It also endorsed the railway receipts Nos. 233-27, 233/35 and 233/36 in favour of the Bank. The Accountant of the Bank deposed that the railway receipts were endorsed in favour of the Bank, which had advanced the said amount to the firm on the security of the said railway receipts. The evidence of this witness was not challenged in the High Court. The Bank advanced a large amount of money to the firm. The three transactions, namely, the advancing of loan, the execution of the promissory note and the endorsement if the railway receipts, together form one transaction. Their combined effect is that the Bank would be in control of the goods till the debt was discharged. This is a well known practice followed by Banks. The Judicial Committee both in 43 Ind App 164 : (AIR 1916 PC 7), and 61 Ind App 416 : (AIR 1934 PC 246 ) held that such a transaction was a pledge. We, therefore, hold on the facts of this case that the firm by endorsing the railway receipts in favour of the Bank for consideration pledged the goods covered by the said receipts to the Bank15. In this view it is not necessary to express our opinion on the question whether if the transaction was not a pledge of the goods, the Bank would be entitled to sue on the basis of the contract entered into between the firm and the railway.
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Bhopal Sugar Industries Ltd Vs. Sales Tax Officer, Bhopal | so as to save its reputation. Read as a whole, this stipulation does not amount to make the appellant liable to render regular accounts to the company inasmuch as the statements called for were required only for a very limited purpose, viz., to prevent the appellant from misusing his privileges and thereby jeopardising or harming the reputation of the company. In these circumstances, therefore, the argument based on this clause appears to be of no assistance to the counsel for the respondent. 24. Clause 8 of the agreement clearly shows that the appellant had been loaned properties belonging to the company like petrol pumps and their accessories, etc., and it was in respect of these properties which had been given to the dealer for working the petrol pumps that the statements of account were called for from the appellant. This appears to be the modus operandi adopted by the seller-company in respect of all its distributors. There is no stipulation in the agreement which requires or enjoins on the appellant to submit accounts of the Hispeedol or petrol which he may have sold to various customers, after having taken delivery of the same from the company. In these circumstances, therefore, this argument of the learned counsel for the respondent must be overruled.Another circumstance relied upon by the respondent was the fact that the appellant was under the terms of the agreement to sell the goods at a price fixed and not higher or lower than that. We have already indicated that when a company enters into a distribution agreement it always fixes a particular price in order to protect its goodwill and in order to control the market. Such fixation of the price by itself would not be a restriction which would take away the freedom of contract of sale. Such a stipulation is found in almost all the agreements entered into between the monopolist companies and their distributors. The respondent would not, therefore, be justified in treating this circumstance in order to show that the agreement was one of agency. 25. Similarly the argument that the appellant was to sell the goods in a territory fixed by the company does not show that the agreement was not of sale because this is also one of the common features of a distribution agreement. The question to be determined is not what was the territory fixed by the seller-company but whether there was any limitation to sell to any particular person within the territory for which the properties were sold to the appellant. On this point there is absolutely no restriction. 26.It was further contended that under clause 26 of the agreement the company agreed to pay a commission and certain allowances to the appellant which shows that the appellant was an agent. The relevant portion of clause 26 runs thus :"In consideration of the dealer undertaking faithfully, to carry out their part of the agreement as set forth above, the company undertakes to pay the dealer such commission and allowances as the company in its sole discretion shall think fit. The rate of commission and allowances that are current at the time are set forth in the schedule attached hereto, but the company reserve the right to alter such commission and allowances as and when they think fit without any previous notice to the dealer and without assigning any reason therefor."A perusal of this clause as a whole would show that the use of the words "commission and allowances" is not to indicate agency, but to indicate certain special benefits which the company wanted to confer on its distributors. Furthermore, the payment of commission by itself is not conclusive to show that the agreement was one of agency. In Balthezar and Son v. E. M. Abowath [A.I.R. 1919 P.C. 166 at 167], Lord Dunedin observed as follows : "It comes to this that all the documents show on the face of them a contract between principles. The mere mention of commission in the contract as signed is not in any way, as pointed by the learned Judges of the Court of Appeal, inconsistent with the relation being between principal and principal." 27. This decision was followed by the Calcutta High Court in Ganesh Export and Import Company v. Mahadeolal Nathmal [[1955] 25 Comp. Cas. 357; A.I.R. 1956 Cal. 188] and we find ourselves in complete agreement with the view taken by the Calcutta High Court. For these reasons, therefore, the argument by the learned counsel for the respondent is not tenable in law. 28. Finally, reliance was placed on clause 18 of the agreement appearing at page 126 of the paper book, which requires the dealer to furnish security for the due observance and performance of the stipulations contained therein. Such a stipulation also does not by itself show that the agreement was one of agency. 29. The present agreement undoubtedly contains some elements of agency also, but the main question which has to be determined in this case is whether or not at the point of time when the appellant was consuming the Hispeedol or petrol for its own purposes it was acting as an owner of the goods or as agent of the seller-company. From the facts and circumstances discussed above, we have shown that the appellant, after taking delivery of the goods, was the owner of the goods and if it consumed the same for its own purposes it was not doing so as agent but as owner which it was fully entitled to do. In this view of the matter, the quantities of petrol consumed by the appellant for its own purposes would not constitute a sale so as to be exigible to sales tax. We have carefully perused the order of the Commissioner and find that the Commissioner has taken an erroneous view of the law and has drawn legally wrong inferences from the various stipulations contained in the agreement. The Commissioner has also not given effect to well-established legal principles in interpreting the agreement. | 1[ds]Thus the essence of the matter is that in a contract of sale, title to the property passes on to the buyer on delivery of the goods for a price paid or promised. Once this happens the buyer becomes the owner of the property and the seller has no vestige of title left in the property. The concept of a sale has, however, undergone a revolutionary change, having regard to the complexities of the modern times and the expanding needs of the society, which has made a departure from the doctrine of laissez faire by including a transaction within the fold of a sale even though the seller may be virtue of an agreement impose a number of restrictions on the buyer, e.g., fixation of price, submission of accounts, selling in a particular area or territory and so on. These restrictions per se would not convert a contract of sale into one of agency, because in spite of these restrictions the transaction would still be a sale and subject to all the incidents of a sale. A contract of agency, however, differs essentially from a contract of sale inasmuch as an agent after taking delivery of the property does not sell it as his own property but sells the same as the property of the principle and under his instructions and directions. Furthermore, since the agent is not the owner of the goods, if any loss is suffered by the agent he is to be indemnified by the principal. This is yet another dominant factor which distinguishes an agent from a buyer - pure and simpleIt is clear from the observations made by this Court that the true relationship of the parties in such a case has to be gathered from the nature of the contract, its terms and conditions, and the terminology used by the parties is not decisive of the said relationshipIt seems to us that the law on the subject has been stated by the court in a different context, and, therefore, this case does not appear to us to be of any assistance in determining the question at issue in the instant case. The court in the aforesaid case had inferred agency from the mere fact that under the agreement the sale was to operate in a limited territory. This by itself, in our opinion, is not sufficient to lead to the inference that the agreement was one of agency. It is always open to the buyer to purchase goods for a limited purpose and within the field of that limited purpose the buyer has absolute title to the property once it is delivered to him by the sellerIt is, therefore, clear that the moment the appellant received the supplied of Hispeedol from the seller, the Hispeedol became the property of the appellant and the appellant was absolutely free to sell the Hispeedol and petrol to any one it liked at the prices fixed within the territory specified in the agreement. Thus the title to the property passed to the appellant the moment it took delivery of the same. It is, therefore, manifest that having taken delivery of the property if the appellant was using it for its own consumption it was using its own property in which the company had no title at all and such a used therefore could not, by any stretch of imagination, be treated as a sale.Another very important circumstance which clearly shows that the contract was one of sale and not of agency is the fact that after having taken delivery of the petrol and Hispeedol the appellant sold the same to its various customers, not even mentioning that the property belonged to the Caltex Company but issued cash memos in its own name, which clearly indicates that after taking delivery of the property the appellant became the absolute owner thereof and represented itself to be the owner of the property and sold it not as the property of the company but as its own property. This fact is clearly proved by the cash memos and credit vouchers produced by the appellant at pages 195-197 of the paper book. The cash memo describes the Bhopal Sugar Industries Ltd. as the owner of the goods and so does the credit voucher. This, therefore, conclusively shows that the agreement could not have been an agreement of agency because the essential distinction between an agreement of sale and an agreement of agency is that in the former case the property is sold by the seller as his own property and in the latter case the property is sold by the agent not as his own property but as the property of his principal and on his behalfUnder this clause the appellant was required to deliver reasonable quantities of products at the request of the company to consumers designated by the company at such points within the territory as may be specified. In consideration of complying with the request, the seller-company agreed to reimburse the appellant in full for the supplies and the appellant was also entitled to be paid transportation expenses and handling allowances as may have been incurred by it. This is another decisive factor which negatives the theory that the agreement could be one of agency. Indeed such a stipulation in the agreement is wholly inconsistent with the position of the appellant being an agent for in that case there was absolutely no scope for such a stipulation and the seller-company as a principal of the agent could have instructed it to supply the goods or petrol to designated customers and there was no question of the agent being reimbursed, because the property supplied belonged to the principal and was delivered to certain persons on the instructions of the principal. This clause, therefore, is yet another important factor which shows that the agreement was intended to be a contract of sale rather than a contract of agency.Furthermore, the agreement contains a clear and unequivocal declaration by the seller-company that the statue of the appellant would not be that of an agentThis clear declaration on the part of the parties leaves no room for doubt that the agreement was intended to be a contract for sale and that the appellant was not only not regarded as an agent but was expressly excluded from the category of an agentThe cumulative effect of the circumstances mentioned above leads to the inescapable conclusion that the Hispeedol had been sold to be appellant and not held by it merely as an agent of the Caltex Company. The petrol agreement also which has been placed before us contains similar stipulations and it was not disputed by the counsel for the respondent that if the Hispeedol agreement is held to be a contract of sale, then the same would have to be said of the petrol agreement also. Thus the principles which would make the contract of purchase of Hispeedol a contract of sale would apply mutatis mutandis to the petrol agreement alsoIn our opinion, this clause does not at all conclusively show that the appellant was an agent of the company. The object of inserting this clause in the agreement appears to be that during the term of the agreement the appellant undertook to maintain proper sales, service and other record so that the companys reputation may not suffer and if any statement regarding the sales or other matter were required by the company, they were not required because the appellant was the agent of the company but it was because the company wanted to keep itself fully informed of the proper conduct of the business by the appellant in order to maintain its goodwill. It is manifest that if during the period of the agreement there were serious complaints against the appellant regarding the misuse of the privileges given to it under the agreement, the company could under the terms of the agreement terminate the agreement so as to save its reputation. Read as a whole, this stipulation does not amount to make the appellant liable to render regular accounts to the company inasmuch as the statements called for were required only for a very limited purpose, viz., to prevent the appellant from misusing his privileges and thereby jeopardising or harming the reputation of the company. In these circumstances, therefore, the argument based on this clause appears to be of no assistance to the counsel for the respondentClause 8 of the agreement clearly shows that the appellant had been loaned properties belonging to the company like petrol pumps and their accessories, etc., and it was in respect of these properties which had been given to the dealer for working the petrol pumps that the statements of account were called for from the appellant. This appears to be the modus operandi adopted by the seller-company in respect of all its distributors. There is no stipulation in the agreement which requires or enjoins on the appellant to submit accounts of the Hispeedol or petrol which he may have sold to various customers, after having taken delivery of the same from the company. In these circumstances, therefore, this argument of the learned counsel for the respondent must be overruled.Another circumstance relied upon by the respondent was the fact that the appellant was under the terms of the agreement to sell the goods at a price fixed and not higher or lower than that. We have already indicated that when a company enters into a distribution agreement it always fixes a particular price in order to protect its goodwill and in order to control the market. Such fixation of the price by itself would not be a restriction which would take away the freedom of contract of sale. Such a stipulation is found in almost all the agreements entered into between the monopolist companies and their distributors. The respondent would not, therefore, be justified in treating this circumstance in order to show that the agreement was one of agencyThe present agreement undoubtedly contains some elements of agency also, but the main question which has to be determined in this case is whether or not at the point of time when the appellant was consuming the Hispeedol or petrol for its own purposes it was acting as an owner of the goods or as agent of the seller-company. From the facts and circumstances discussed above, we have shown that the appellant, after taking delivery of the goods, was the owner of the goods and if it consumed the same for its own purposes it was not doing so as agent but as owner which it was fully entitled to do. In this view of the matter, the quantities of petrol consumed by the appellant for its own purposes would not constitute a sale so as to be exigible to sales tax. We have carefully perused the order of the Commissioner and find that the Commissioner has taken an erroneous view of the law and has drawn legally wrong inferences from the various stipulations contained in the agreement. The Commissioner has also not given effect to well-established legal principles in interpreting the agreement. | 1 | 7,425 | 1,950 | ### 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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so as to save its reputation. Read as a whole, this stipulation does not amount to make the appellant liable to render regular accounts to the company inasmuch as the statements called for were required only for a very limited purpose, viz., to prevent the appellant from misusing his privileges and thereby jeopardising or harming the reputation of the company. In these circumstances, therefore, the argument based on this clause appears to be of no assistance to the counsel for the respondent. 24. Clause 8 of the agreement clearly shows that the appellant had been loaned properties belonging to the company like petrol pumps and their accessories, etc., and it was in respect of these properties which had been given to the dealer for working the petrol pumps that the statements of account were called for from the appellant. This appears to be the modus operandi adopted by the seller-company in respect of all its distributors. There is no stipulation in the agreement which requires or enjoins on the appellant to submit accounts of the Hispeedol or petrol which he may have sold to various customers, after having taken delivery of the same from the company. In these circumstances, therefore, this argument of the learned counsel for the respondent must be overruled.Another circumstance relied upon by the respondent was the fact that the appellant was under the terms of the agreement to sell the goods at a price fixed and not higher or lower than that. We have already indicated that when a company enters into a distribution agreement it always fixes a particular price in order to protect its goodwill and in order to control the market. Such fixation of the price by itself would not be a restriction which would take away the freedom of contract of sale. Such a stipulation is found in almost all the agreements entered into between the monopolist companies and their distributors. The respondent would not, therefore, be justified in treating this circumstance in order to show that the agreement was one of agency. 25. Similarly the argument that the appellant was to sell the goods in a territory fixed by the company does not show that the agreement was not of sale because this is also one of the common features of a distribution agreement. The question to be determined is not what was the territory fixed by the seller-company but whether there was any limitation to sell to any particular person within the territory for which the properties were sold to the appellant. On this point there is absolutely no restriction. 26.It was further contended that under clause 26 of the agreement the company agreed to pay a commission and certain allowances to the appellant which shows that the appellant was an agent. The relevant portion of clause 26 runs thus :"In consideration of the dealer undertaking faithfully, to carry out their part of the agreement as set forth above, the company undertakes to pay the dealer such commission and allowances as the company in its sole discretion shall think fit. The rate of commission and allowances that are current at the time are set forth in the schedule attached hereto, but the company reserve the right to alter such commission and allowances as and when they think fit without any previous notice to the dealer and without assigning any reason therefor."A perusal of this clause as a whole would show that the use of the words "commission and allowances" is not to indicate agency, but to indicate certain special benefits which the company wanted to confer on its distributors. Furthermore, the payment of commission by itself is not conclusive to show that the agreement was one of agency. In Balthezar and Son v. E. M. Abowath [A.I.R. 1919 P.C. 166 at 167], Lord Dunedin observed as follows : "It comes to this that all the documents show on the face of them a contract between principles. The mere mention of commission in the contract as signed is not in any way, as pointed by the learned Judges of the Court of Appeal, inconsistent with the relation being between principal and principal." 27. This decision was followed by the Calcutta High Court in Ganesh Export and Import Company v. Mahadeolal Nathmal [[1955] 25 Comp. Cas. 357; A.I.R. 1956 Cal. 188] and we find ourselves in complete agreement with the view taken by the Calcutta High Court. For these reasons, therefore, the argument by the learned counsel for the respondent is not tenable in law. 28. Finally, reliance was placed on clause 18 of the agreement appearing at page 126 of the paper book, which requires the dealer to furnish security for the due observance and performance of the stipulations contained therein. Such a stipulation also does not by itself show that the agreement was one of agency. 29. The present agreement undoubtedly contains some elements of agency also, but the main question which has to be determined in this case is whether or not at the point of time when the appellant was consuming the Hispeedol or petrol for its own purposes it was acting as an owner of the goods or as agent of the seller-company. From the facts and circumstances discussed above, we have shown that the appellant, after taking delivery of the goods, was the owner of the goods and if it consumed the same for its own purposes it was not doing so as agent but as owner which it was fully entitled to do. In this view of the matter, the quantities of petrol consumed by the appellant for its own purposes would not constitute a sale so as to be exigible to sales tax. We have carefully perused the order of the Commissioner and find that the Commissioner has taken an erroneous view of the law and has drawn legally wrong inferences from the various stipulations contained in the agreement. The Commissioner has also not given effect to well-established legal principles in interpreting the agreement.
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as may have been incurred by it. This is another decisive factor which negatives the theory that the agreement could be one of agency. Indeed such a stipulation in the agreement is wholly inconsistent with the position of the appellant being an agent for in that case there was absolutely no scope for such a stipulation and the seller-company as a principal of the agent could have instructed it to supply the goods or petrol to designated customers and there was no question of the agent being reimbursed, because the property supplied belonged to the principal and was delivered to certain persons on the instructions of the principal. This clause, therefore, is yet another important factor which shows that the agreement was intended to be a contract of sale rather than a contract of agency.Furthermore, the agreement contains a clear and unequivocal declaration by the seller-company that the statue of the appellant would not be that of an agentThis clear declaration on the part of the parties leaves no room for doubt that the agreement was intended to be a contract for sale and that the appellant was not only not regarded as an agent but was expressly excluded from the category of an agentThe cumulative effect of the circumstances mentioned above leads to the inescapable conclusion that the Hispeedol had been sold to be appellant and not held by it merely as an agent of the Caltex Company. The petrol agreement also which has been placed before us contains similar stipulations and it was not disputed by the counsel for the respondent that if the Hispeedol agreement is held to be a contract of sale, then the same would have to be said of the petrol agreement also. Thus the principles which would make the contract of purchase of Hispeedol a contract of sale would apply mutatis mutandis to the petrol agreement alsoIn our opinion, this clause does not at all conclusively show that the appellant was an agent of the company. The object of inserting this clause in the agreement appears to be that during the term of the agreement the appellant undertook to maintain proper sales, service and other record so that the companys reputation may not suffer and if any statement regarding the sales or other matter were required by the company, they were not required because the appellant was the agent of the company but it was because the company wanted to keep itself fully informed of the proper conduct of the business by the appellant in order to maintain its goodwill. It is manifest that if during the period of the agreement there were serious complaints against the appellant regarding the misuse of the privileges given to it under the agreement, the company could under the terms of the agreement terminate the agreement so as to save its reputation. Read as a whole, this stipulation does not amount to make the appellant liable to render regular accounts to the company inasmuch as the statements called for were required only for a very limited purpose, viz., to prevent the appellant from misusing his privileges and thereby jeopardising or harming the reputation of the company. In these circumstances, therefore, the argument based on this clause appears to be of no assistance to the counsel for the respondentClause 8 of the agreement clearly shows that the appellant had been loaned properties belonging to the company like petrol pumps and their accessories, etc., and it was in respect of these properties which had been given to the dealer for working the petrol pumps that the statements of account were called for from the appellant. This appears to be the modus operandi adopted by the seller-company in respect of all its distributors. There is no stipulation in the agreement which requires or enjoins on the appellant to submit accounts of the Hispeedol or petrol which he may have sold to various customers, after having taken delivery of the same from the company. In these circumstances, therefore, this argument of the learned counsel for the respondent must be overruled.Another circumstance relied upon by the respondent was the fact that the appellant was under the terms of the agreement to sell the goods at a price fixed and not higher or lower than that. We have already indicated that when a company enters into a distribution agreement it always fixes a particular price in order to protect its goodwill and in order to control the market. Such fixation of the price by itself would not be a restriction which would take away the freedom of contract of sale. Such a stipulation is found in almost all the agreements entered into between the monopolist companies and their distributors. The respondent would not, therefore, be justified in treating this circumstance in order to show that the agreement was one of agencyThe present agreement undoubtedly contains some elements of agency also, but the main question which has to be determined in this case is whether or not at the point of time when the appellant was consuming the Hispeedol or petrol for its own purposes it was acting as an owner of the goods or as agent of the seller-company. From the facts and circumstances discussed above, we have shown that the appellant, after taking delivery of the goods, was the owner of the goods and if it consumed the same for its own purposes it was not doing so as agent but as owner which it was fully entitled to do. In this view of the matter, the quantities of petrol consumed by the appellant for its own purposes would not constitute a sale so as to be exigible to sales tax. We have carefully perused the order of the Commissioner and find that the Commissioner has taken an erroneous view of the law and has drawn legally wrong inferences from the various stipulations contained in the agreement. The Commissioner has also not given effect to well-established legal principles in interpreting the agreement.
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State Of Madras Vs. T. Narayanaswami Naidu And Anr | State shall not exceed two per cent of the sale or purchase price thereof, and such tax shall not be levied at more than one stage."Section 4 of the Madras Act was intended to comply with S. 15 of the Central Act. The relevant portion of S. 3 of the Madras Act, on which the learned counsel for the appellant relies, provides :"3 (1) Every dealer (other than a casual trader or agent of a non-resident dealer) whose total turnover for a year is not less than ten thousand rupees and every casual trader or agent of a non-resident dealer whatever be his turnover for the year, shall pay a tax for each year at the rate of two per cent of his taxable turnover".Section 2 (p) defines "taxable turnover" to mean "the turnover on which a dealer shall be liable to pay tax as determined after making such deductions from his total turnover and in such manner as may be prescribed", and "year" is defined to mean "financial year" "Turnover" is defined in Section 2 (r) as follows :" "turnover" means the aggregate amount for which goods are bought or sold, or supplied or distributed, by a dealer, either directly or through another, on his own account or on account of others whether for cash or for deferred payment or other valuable consideration provided that the proceeds of the sale by a person of agricultural or horticultural produce, other than tea, grown within the State by himself or on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise shall he excluded from his turnover."6. The learned counsel for the appellant says that it is clear from Ss. a and 4 that a tax under the Madras Act is a yearly tax. In other words, he says, that just as under the Indian Income Tax Act each assessment year is a self-contained unit, so is the assessment year a self-contained unit under the Madras Act. If that is so, he aruges, then, what happens in subsequent years cannot be taken into consideration for determining the taxability of any purchase inside the State of declared goods. He says that the taxable event is the last purchase in the State during the assessment year and if stocks are held at the end of the assessment year it follows that the assessee holding the stocks is the last purchaser in the State.7. In our opinion, this reasoning is fallacious. It is true that Ss. 3 and 4 speak of "a year", i.e., the financial year, and it is only the turnover during that year that is liable to taxation in the hands of the assessee, but S. 4 has to be read with the Second Schedule, and reading S. 4 with the Second Schedule, it seems to us clear that a dealer is not liable to pay a tax on the purchases until the purchases acquire the quality of being the last purchases inside the State. In other words, when he files a return and declares the stock in hand, the stock in hand cannot be said to have been acquired by last purchase because he may still during the next assessment year sell it or he may consume it himself or the goods may be destroyed, etc. He would be entitled to claim before the assessing authorities that the character of acquisition of the stock in hand was undetermined; in the light of subsequent events it may or may not become the last purchase inside the State.8. In our view this construction is in consonance with S. 15 of the Central Act. If the argument of the learned counsel for the State were to be accepted it would mean that the States could with impunity levy purchase tax on declared goods at more than one stage, i.e. on purchases in the hands of one dealer during one assessment year and purchases of the same goods in the hands of another dealer in a subsequent assessment year, and so on. Therefore, we agree with the Madras High Court that the assessee is right in contending that he was entitled to claim deduction in respect of the value of the stock of Rs. 2,27,250 as being the purchases other than last purchases of cotton.9. The Kerala High Court in 1961-12 STC 98 (Ker) following certain cases decided under the Income-tax Act, was influenced by the consideration that an assesses could not rely on subsequent events in order to escape taxation. That may be so even under the Sales Tax Act, but, according to our view, the assessee is not liable till the purchase of declared goods acquires the character of a last purchase within the Second Schedule referred to above. In 1962-13 STC 773 (Mys) the Mysore High Court also seems to have been impressed by similar considerations.10. The judgment under appeal draws a distinction between taxable event and a stage at which the levy of tax in the case of declared goods is subject to single point levy. This may cause confusion, and indeed, the High Court gives one illustration, which it found unnecessary to deal with. The illustration given is :"One can visualise a case for example, where goods mentioned above purchased on the 30th of March, 1960, may be exported by the purchaser himself, outside the State, on the 2nd of April, 1960. In that case the goods could not be assessed in 1960-61 in the hands of the exporting purchaser, because the taxable event did not occur in that year; it could not be assessed in the hands of the seller in 1959-60 because though the taxable event occurred that year, the single point stage was not reached in that year. One possible way of dealing with such a case is to assess it subsequently as escaped turnover."In our opinion, in this illustration, the assessee would be liable in the financial year 1960-61 as the purchases became the last purchases in that year. | 0[ds]7. In our opinion, this reasoning is fallacious. It is true that Ss. 3 and 4 speak of "a year", i.e., the financial year, and it is only the turnover during that year that is liable to taxation in the hands of the assessee, but S. 4 has to be read with the Second Schedule, and reading S. 4 with the Second Schedule, it seems to us clear that a dealer is not liable to pay a tax on the purchases until the purchases acquire the quality of being the last purchases inside the State. In other words, when he files a return and declares the stock in hand, the stock in hand cannot be said to have been acquired by last purchase because he may still during the next assessment year sell it or he may consume it himself or the goods may be destroyed, etc. He would be entitled to claim before the assessing authorities that the character of acquisition of the stock in hand was undetermined; in the light of subsequent events it may or may not become the last purchase inside the State.8. In our view this construction is in consonance with S. 15 of the Central Act. If the argument of the learned counsel for the State were to be accepted it would mean that the States could with impunity levy purchase tax on declared goods at more than one stage, i.e. on purchases in the hands of one dealer during one assessment year and purchases of the same goods in the hands of another dealer in a subsequent assessment year, and so on. Therefore, we agree with the Madras High Court that the assessee is right in contending that he was entitled to claim deduction in respect of the value of the stock of Rs. 2,27,250 as being the purchases other than last purchases of cotton.9. The Kerala High Court in 1961-12 STC 98 (Ker) following certain cases decided under the Income-tax Act, was influenced by the consideration that an assesses could not rely on subsequent events in order to escape taxation. That may be so even under the Sales Tax Act, but, according to our view, the assessee is not liable till the purchase of declared goods acquires the character of a last purchase within the Second Schedule referred to above. In 1962-13 STC 773 (Mys) the Mysore High Court also seems to have been impressed by similar considerations.10. The judgment under appeal draws a distinction between taxable event and a stage at which the levy of tax in the case of declared goods is subject to single point levy. This may cause confusion, and indeed, the High Court gives one illustration, which it found unnecessary to dealour opinion, in this illustration, the assessee would be liable in the financial year 1960-61 as the purchases became the last purchases in thatthis connection it may be mentioned that S 14 ofthe Central Sales Tax Act, 1956, hereinafter referred to as the Central Act, declares certain goods as of special importance intrade and commerce, and cotton is one of the goods included in S. 14. | 0 | 1,899 | 574 | ### 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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State shall not exceed two per cent of the sale or purchase price thereof, and such tax shall not be levied at more than one stage."Section 4 of the Madras Act was intended to comply with S. 15 of the Central Act. The relevant portion of S. 3 of the Madras Act, on which the learned counsel for the appellant relies, provides :"3 (1) Every dealer (other than a casual trader or agent of a non-resident dealer) whose total turnover for a year is not less than ten thousand rupees and every casual trader or agent of a non-resident dealer whatever be his turnover for the year, shall pay a tax for each year at the rate of two per cent of his taxable turnover".Section 2 (p) defines "taxable turnover" to mean "the turnover on which a dealer shall be liable to pay tax as determined after making such deductions from his total turnover and in such manner as may be prescribed", and "year" is defined to mean "financial year" "Turnover" is defined in Section 2 (r) as follows :" "turnover" means the aggregate amount for which goods are bought or sold, or supplied or distributed, by a dealer, either directly or through another, on his own account or on account of others whether for cash or for deferred payment or other valuable consideration provided that the proceeds of the sale by a person of agricultural or horticultural produce, other than tea, grown within the State by himself or on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise shall he excluded from his turnover."6. The learned counsel for the appellant says that it is clear from Ss. a and 4 that a tax under the Madras Act is a yearly tax. In other words, he says, that just as under the Indian Income Tax Act each assessment year is a self-contained unit, so is the assessment year a self-contained unit under the Madras Act. If that is so, he aruges, then, what happens in subsequent years cannot be taken into consideration for determining the taxability of any purchase inside the State of declared goods. He says that the taxable event is the last purchase in the State during the assessment year and if stocks are held at the end of the assessment year it follows that the assessee holding the stocks is the last purchaser in the State.7. In our opinion, this reasoning is fallacious. It is true that Ss. 3 and 4 speak of "a year", i.e., the financial year, and it is only the turnover during that year that is liable to taxation in the hands of the assessee, but S. 4 has to be read with the Second Schedule, and reading S. 4 with the Second Schedule, it seems to us clear that a dealer is not liable to pay a tax on the purchases until the purchases acquire the quality of being the last purchases inside the State. In other words, when he files a return and declares the stock in hand, the stock in hand cannot be said to have been acquired by last purchase because he may still during the next assessment year sell it or he may consume it himself or the goods may be destroyed, etc. He would be entitled to claim before the assessing authorities that the character of acquisition of the stock in hand was undetermined; in the light of subsequent events it may or may not become the last purchase inside the State.8. In our view this construction is in consonance with S. 15 of the Central Act. If the argument of the learned counsel for the State were to be accepted it would mean that the States could with impunity levy purchase tax on declared goods at more than one stage, i.e. on purchases in the hands of one dealer during one assessment year and purchases of the same goods in the hands of another dealer in a subsequent assessment year, and so on. Therefore, we agree with the Madras High Court that the assessee is right in contending that he was entitled to claim deduction in respect of the value of the stock of Rs. 2,27,250 as being the purchases other than last purchases of cotton.9. The Kerala High Court in 1961-12 STC 98 (Ker) following certain cases decided under the Income-tax Act, was influenced by the consideration that an assesses could not rely on subsequent events in order to escape taxation. That may be so even under the Sales Tax Act, but, according to our view, the assessee is not liable till the purchase of declared goods acquires the character of a last purchase within the Second Schedule referred to above. In 1962-13 STC 773 (Mys) the Mysore High Court also seems to have been impressed by similar considerations.10. The judgment under appeal draws a distinction between taxable event and a stage at which the levy of tax in the case of declared goods is subject to single point levy. This may cause confusion, and indeed, the High Court gives one illustration, which it found unnecessary to deal with. The illustration given is :"One can visualise a case for example, where goods mentioned above purchased on the 30th of March, 1960, may be exported by the purchaser himself, outside the State, on the 2nd of April, 1960. In that case the goods could not be assessed in 1960-61 in the hands of the exporting purchaser, because the taxable event did not occur in that year; it could not be assessed in the hands of the seller in 1959-60 because though the taxable event occurred that year, the single point stage was not reached in that year. One possible way of dealing with such a case is to assess it subsequently as escaped turnover."In our opinion, in this illustration, the assessee would be liable in the financial year 1960-61 as the purchases became the last purchases in that year.
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7. In our opinion, this reasoning is fallacious. It is true that Ss. 3 and 4 speak of "a year", i.e., the financial year, and it is only the turnover during that year that is liable to taxation in the hands of the assessee, but S. 4 has to be read with the Second Schedule, and reading S. 4 with the Second Schedule, it seems to us clear that a dealer is not liable to pay a tax on the purchases until the purchases acquire the quality of being the last purchases inside the State. In other words, when he files a return and declares the stock in hand, the stock in hand cannot be said to have been acquired by last purchase because he may still during the next assessment year sell it or he may consume it himself or the goods may be destroyed, etc. He would be entitled to claim before the assessing authorities that the character of acquisition of the stock in hand was undetermined; in the light of subsequent events it may or may not become the last purchase inside the State.8. In our view this construction is in consonance with S. 15 of the Central Act. If the argument of the learned counsel for the State were to be accepted it would mean that the States could with impunity levy purchase tax on declared goods at more than one stage, i.e. on purchases in the hands of one dealer during one assessment year and purchases of the same goods in the hands of another dealer in a subsequent assessment year, and so on. Therefore, we agree with the Madras High Court that the assessee is right in contending that he was entitled to claim deduction in respect of the value of the stock of Rs. 2,27,250 as being the purchases other than last purchases of cotton.9. The Kerala High Court in 1961-12 STC 98 (Ker) following certain cases decided under the Income-tax Act, was influenced by the consideration that an assesses could not rely on subsequent events in order to escape taxation. That may be so even under the Sales Tax Act, but, according to our view, the assessee is not liable till the purchase of declared goods acquires the character of a last purchase within the Second Schedule referred to above. In 1962-13 STC 773 (Mys) the Mysore High Court also seems to have been impressed by similar considerations.10. The judgment under appeal draws a distinction between taxable event and a stage at which the levy of tax in the case of declared goods is subject to single point levy. This may cause confusion, and indeed, the High Court gives one illustration, which it found unnecessary to dealour opinion, in this illustration, the assessee would be liable in the financial year 1960-61 as the purchases became the last purchases in thatthis connection it may be mentioned that S 14 ofthe Central Sales Tax Act, 1956, hereinafter referred to as the Central Act, declares certain goods as of special importance intrade and commerce, and cotton is one of the goods included in S. 14.
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Sita Ram Bhau Patil Vs. Ramchandra Nago Patil (Dead) By L. Rs. & Anr | are to be used for the purpose of contradicting him." Therefore, a mere proof of admission, after the person whose admission it is alleged to be has concluded his evidence, will be of no. avail and cannot be utilised against him. 17. The third infirmity with regard to this admission is whether this is a clear and unequivocal admission. The High Court said that "a certified copy of the deposition was placed on record on 9 July 1973, on which day again it does not appear that the contents of the deposition were read out to the respondent or that any attempt was made to obtain leave of the Court to further cross examine the witness." The contents of the alleged admission to which reference has been made are not unambiguous and cannot be accepted as an admission. The contents are that he was not receiving any rent and the land was fallow. Therefore, the High Court was right in rejecting the contentions advanced by the appellants that there was any admission and in setting aside the decision of the Revenue Tribunal. 18. The second contention on behalf of the appellant is that the certain record of rights relied on by the appellant would establish that the appellant was a tenant. The High Court rightly accepted the contention of the respondent that after a careful consideration of the evidence on record the fact finding courts, i.e, the Mamlatdar and the Special Deputy Collector recorded a finding that the appellant had not cultivated the land in dispute as the tenant of the respondent. Therefore, the Revenue Tribunal had no. jurisdiction to interfere and set aside the finding of fact. 19. As to the record of rights it appear that the High Court referred to two important features. It is true that the record of rights relate to Survey Nos. 201/2 and 194/13 and there is mention of the appellant as tenant. There is also a reference to the mutation proceedings. The name of the respondent is shown as Kabjedar. Two of the important heads in the record are Mode and Crops & fallows. The Mode is shown as "I" and under Crops and Fallows entry Paddy is shown. The High Court referred to this feature of the record of rights Mode "I" means that the respondent cultivated as owner of the land that was never even the case of the appellant. The High Court rightly said that the irresistible conclusion therefore is that the extracts from the record of rights contain entries which do not have any relation to true facts. If that is the position with regard to these extracts these cannot be relied on for inference that actually the land was cultivated and paddy crops were grown on the said land. 20. With regard to the record of rights counsel for the appellant said that presumption arises with regard to its correctness. There is no. abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct. Apart from the intrinsic evidence in the record of rights that they refer to facts which are untrue it also appears that the record of rights have reference to the mutation entry that was made by the Circle Officer on 30 January 1956. Counsel for the respondent rightly contended that no. presumption could arise for two principal reasons. First, the oral evidence in this case nullified the entries in the record of rights as showing a state of affairs opposed to the real state of affairs and, second no. notice was ever given to the respondent with regard to mutation proceedings. Therefore the respondent is right in contending that no. presumption can validly arise from the record of rights. 21. The third contention on behalf of the appellant that the Tribunal was justified to interfere because of error of law is also unacceptable. The provisions contained in Sec. 76 of the Bombay Act enumerate the grounds on which there can be revision by the Revenue Tribunal. One of the grounds is that there is error of law. In the present case the manner in which Maharashtra Revenue Tribunal entertained the revision was by holding, as follows :"There is evidence that the applicant (meaning thereby the appellant) has been in actual possession of land since 1956-57 onwards". However, the authorities below have rejected the entries as well as the opponents (meaning thereby the respondent) admission on the ground that the applicant did not support the entries by producing the rent receipts. According to the authorities below the burden was on the applicant to prove his case by producing evidence to corroborate the entries. The appellate authority has also observed that the alleged admission of the opponent, made in the other case was rejected by the Revenue Tribunal. The authorities below arrived at the conclusion that the applicants possession was otherwise than lawful. This concurrent finding of the authorities below is being challenged by the applicant in this revision application. 22. The Revenue Tribunal seemed to consider the approached of the Mamlatdar and the Deputy Collector to be erroneous because according to the Revenue Tribunal the burden was shifted to the respondent to rebut the entry in the record of rights and that the respondent failed to discharge that burden. When the entire evidence is before the Court, it is well settled that the burden of proof becomes immaterial. 23. Further the Revenue Tribunal fell into error of entertaining the Revision when there was no. error of law on the face of the record. The presumption which was said to arise in the record of rights was before the Deputy Collector as well as the Mamlatdar. # If the authority entrusted with adjudication goes into the question and assesses the same, the decision may be right or wrong but that will not go to show that there is any error of law on the face of record. | 0[ds]16. If admission is proved and if it is thereafter to be used against the party who has made it the question comes within the provisions Section 145 of the Evidence Act. The provisions in the Indian Evidence Act that admission is not conclusive proof are to be considered in regard to two features of evidence. First, what weight is to be attached to an admission? In order to attach weight it has to be found out whether the admission is clear, unambiguous and is a relevant piece of evidence. Second, even if the admission is proved in accordance with the provisions of the evidence Act and if it is to be used against the party who has made it, "it is sound that if a witness is under cross-examination on oath, he should be given an opportunity, if the documents are to be used against him, to tender his explanation and to clear up the point of ambiguity or dispute. This is a general salutary and intelligible rule" (see Bal Gangadhar Tilak v. Shrinivas Pandit, 42 Ind App 135 at p. 147 : (AIR 1915 PC 7 at p. 11)). The Judicial Committee in that case said, "it has to be observed with regret and with surprise that the general principle and the specific statutory provisions have not been followed". The general principle is that before any person is to be faced with any statement he should be given an opportunity to see that statement and to answer the same. The specific statutory provision is contained in Section 145 of the Indian Evidence Act that "A witness may be cross examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him or being proved, but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." Therefore, a mere proof of admission, after the person whose admission it is alleged to be has concluded his evidence, will be of no. avail and cannot be utilised against him17. The third infirmity with regard to this admission is whether this is a clear and unequivocal admission. The High Court said that "a certified copy of the deposition was placed on record on 9 July 1973, on which day again it does not appear that the contents of the deposition were read out to the respondent or that any attempt was made to obtain leave of the Court to further cross examine the witness." The contents of the alleged admission to which reference has been made are not unambiguous and cannot be accepted as an admission. The contents are that he was not receiving any rent and the land was fallow. Therefore, the High Court was right in rejecting the contentions advanced by the appellants that there was any admission and in setting aside the decision of the Revenue TribunalThe High Court rightly accepted the contention of the respondent that after a careful consideration of the evidence on record the fact finding courts, i.e, the Mamlatdar and the Special Deputy Collector recorded a finding that the appellant had not cultivated the land in dispute as the tenant of the respondent. Therefore, the Revenue Tribunal had no. jurisdiction to interfere and set aside the finding of fact20. With regard to the record of rights counsel for the appellant said that presumption arises with regard to its correctness. There is no. abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct. Apart from the intrinsic evidence in the record of rights that they refer to facts which are untrue it also appears that the record of rights have reference to the mutation entry that was made by the Circle Officer on 30 January 1956. Counsel for the respondent rightly contended that no. presumption could arise for two principal reasons. First, the oral evidence in this case nullified the entries in the record of rights as showing a state of affairs opposed to the real state of affairs and, second no. notice was ever given to the respondent with regard to mutation proceedings. Therefore the respondent is right in contending that no. presumption can validly arise from the record of rights21. The third contention on behalf of the appellant that the Tribunal was justified to interfere because of error of law is also unacceptable. The provisions contained in Sec. 76 of the Bombay Act enumerate the grounds on which there can be revision by the Revenue Tribunal. One of the grounds is that there is error of law.However, the authorities below have rejected the entries as well as the opponents (meaning thereby the respondent) admission on the ground that the applicant did not support the entries by producing the rent receipts. According to the authorities below the burden was on the applicant to prove his case by producing evidence to corroborate the entries. The appellate authority has also observed that the alleged admission of the opponent, made in the other case was rejected by the Revenue Tribunal. The authorities below arrived at the conclusion that the applicants possession was otherwise than lawful. This concurrent finding of the authorities below is being challenged by the applicant in this revision application22. The Revenue Tribunal seemed to consider the approached of the Mamlatdar and the Deputy Collector to be erroneous because according to the Revenue Tribunal the burden was shifted to the respondent to rebut the entry in the record of rights and that the respondent failed to discharge that burden. When the entire evidence is before the Court, it is well settled that the burden of proof becomes immaterial23. Further the Revenue Tribunal fell into error of entertaining the Revision when there was no. error of law on the face of the record. The presumption which was said to arise in the record of rights was before the Deputy Collector as well as the Mamlatdar. # If the authority entrusted with adjudication goes into the question and assesses the same, the decision may be right or wrong but that will not go to show that there is any error of law on the face of record. | 0 | 2,934 | 1,162 | ### Instruction:
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are to be used for the purpose of contradicting him." Therefore, a mere proof of admission, after the person whose admission it is alleged to be has concluded his evidence, will be of no. avail and cannot be utilised against him. 17. The third infirmity with regard to this admission is whether this is a clear and unequivocal admission. The High Court said that "a certified copy of the deposition was placed on record on 9 July 1973, on which day again it does not appear that the contents of the deposition were read out to the respondent or that any attempt was made to obtain leave of the Court to further cross examine the witness." The contents of the alleged admission to which reference has been made are not unambiguous and cannot be accepted as an admission. The contents are that he was not receiving any rent and the land was fallow. Therefore, the High Court was right in rejecting the contentions advanced by the appellants that there was any admission and in setting aside the decision of the Revenue Tribunal. 18. The second contention on behalf of the appellant is that the certain record of rights relied on by the appellant would establish that the appellant was a tenant. The High Court rightly accepted the contention of the respondent that after a careful consideration of the evidence on record the fact finding courts, i.e, the Mamlatdar and the Special Deputy Collector recorded a finding that the appellant had not cultivated the land in dispute as the tenant of the respondent. Therefore, the Revenue Tribunal had no. jurisdiction to interfere and set aside the finding of fact. 19. As to the record of rights it appear that the High Court referred to two important features. It is true that the record of rights relate to Survey Nos. 201/2 and 194/13 and there is mention of the appellant as tenant. There is also a reference to the mutation proceedings. The name of the respondent is shown as Kabjedar. Two of the important heads in the record are Mode and Crops & fallows. The Mode is shown as "I" and under Crops and Fallows entry Paddy is shown. The High Court referred to this feature of the record of rights Mode "I" means that the respondent cultivated as owner of the land that was never even the case of the appellant. The High Court rightly said that the irresistible conclusion therefore is that the extracts from the record of rights contain entries which do not have any relation to true facts. If that is the position with regard to these extracts these cannot be relied on for inference that actually the land was cultivated and paddy crops were grown on the said land. 20. With regard to the record of rights counsel for the appellant said that presumption arises with regard to its correctness. There is no. abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct. Apart from the intrinsic evidence in the record of rights that they refer to facts which are untrue it also appears that the record of rights have reference to the mutation entry that was made by the Circle Officer on 30 January 1956. Counsel for the respondent rightly contended that no. presumption could arise for two principal reasons. First, the oral evidence in this case nullified the entries in the record of rights as showing a state of affairs opposed to the real state of affairs and, second no. notice was ever given to the respondent with regard to mutation proceedings. Therefore the respondent is right in contending that no. presumption can validly arise from the record of rights. 21. The third contention on behalf of the appellant that the Tribunal was justified to interfere because of error of law is also unacceptable. The provisions contained in Sec. 76 of the Bombay Act enumerate the grounds on which there can be revision by the Revenue Tribunal. One of the grounds is that there is error of law. In the present case the manner in which Maharashtra Revenue Tribunal entertained the revision was by holding, as follows :"There is evidence that the applicant (meaning thereby the appellant) has been in actual possession of land since 1956-57 onwards". However, the authorities below have rejected the entries as well as the opponents (meaning thereby the respondent) admission on the ground that the applicant did not support the entries by producing the rent receipts. According to the authorities below the burden was on the applicant to prove his case by producing evidence to corroborate the entries. The appellate authority has also observed that the alleged admission of the opponent, made in the other case was rejected by the Revenue Tribunal. The authorities below arrived at the conclusion that the applicants possession was otherwise than lawful. This concurrent finding of the authorities below is being challenged by the applicant in this revision application. 22. The Revenue Tribunal seemed to consider the approached of the Mamlatdar and the Deputy Collector to be erroneous because according to the Revenue Tribunal the burden was shifted to the respondent to rebut the entry in the record of rights and that the respondent failed to discharge that burden. When the entire evidence is before the Court, it is well settled that the burden of proof becomes immaterial. 23. Further the Revenue Tribunal fell into error of entertaining the Revision when there was no. error of law on the face of the record. The presumption which was said to arise in the record of rights was before the Deputy Collector as well as the Mamlatdar. # If the authority entrusted with adjudication goes into the question and assesses the same, the decision may be right or wrong but that will not go to show that there is any error of law on the face of record.
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weight it has to be found out whether the admission is clear, unambiguous and is a relevant piece of evidence. Second, even if the admission is proved in accordance with the provisions of the evidence Act and if it is to be used against the party who has made it, "it is sound that if a witness is under cross-examination on oath, he should be given an opportunity, if the documents are to be used against him, to tender his explanation and to clear up the point of ambiguity or dispute. This is a general salutary and intelligible rule" (see Bal Gangadhar Tilak v. Shrinivas Pandit, 42 Ind App 135 at p. 147 : (AIR 1915 PC 7 at p. 11)). The Judicial Committee in that case said, "it has to be observed with regret and with surprise that the general principle and the specific statutory provisions have not been followed". The general principle is that before any person is to be faced with any statement he should be given an opportunity to see that statement and to answer the same. The specific statutory provision is contained in Section 145 of the Indian Evidence Act that "A witness may be cross examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him or being proved, but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." Therefore, a mere proof of admission, after the person whose admission it is alleged to be has concluded his evidence, will be of no. avail and cannot be utilised against him17. The third infirmity with regard to this admission is whether this is a clear and unequivocal admission. The High Court said that "a certified copy of the deposition was placed on record on 9 July 1973, on which day again it does not appear that the contents of the deposition were read out to the respondent or that any attempt was made to obtain leave of the Court to further cross examine the witness." The contents of the alleged admission to which reference has been made are not unambiguous and cannot be accepted as an admission. The contents are that he was not receiving any rent and the land was fallow. Therefore, the High Court was right in rejecting the contentions advanced by the appellants that there was any admission and in setting aside the decision of the Revenue TribunalThe High Court rightly accepted the contention of the respondent that after a careful consideration of the evidence on record the fact finding courts, i.e, the Mamlatdar and the Special Deputy Collector recorded a finding that the appellant had not cultivated the land in dispute as the tenant of the respondent. Therefore, the Revenue Tribunal had no. jurisdiction to interfere and set aside the finding of fact20. With regard to the record of rights counsel for the appellant said that presumption arises with regard to its correctness. There is no. abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct. Apart from the intrinsic evidence in the record of rights that they refer to facts which are untrue it also appears that the record of rights have reference to the mutation entry that was made by the Circle Officer on 30 January 1956. Counsel for the respondent rightly contended that no. presumption could arise for two principal reasons. First, the oral evidence in this case nullified the entries in the record of rights as showing a state of affairs opposed to the real state of affairs and, second no. notice was ever given to the respondent with regard to mutation proceedings. Therefore the respondent is right in contending that no. presumption can validly arise from the record of rights21. The third contention on behalf of the appellant that the Tribunal was justified to interfere because of error of law is also unacceptable. The provisions contained in Sec. 76 of the Bombay Act enumerate the grounds on which there can be revision by the Revenue Tribunal. One of the grounds is that there is error of law.However, the authorities below have rejected the entries as well as the opponents (meaning thereby the respondent) admission on the ground that the applicant did not support the entries by producing the rent receipts. According to the authorities below the burden was on the applicant to prove his case by producing evidence to corroborate the entries. The appellate authority has also observed that the alleged admission of the opponent, made in the other case was rejected by the Revenue Tribunal. The authorities below arrived at the conclusion that the applicants possession was otherwise than lawful. This concurrent finding of the authorities below is being challenged by the applicant in this revision application22. The Revenue Tribunal seemed to consider the approached of the Mamlatdar and the Deputy Collector to be erroneous because according to the Revenue Tribunal the burden was shifted to the respondent to rebut the entry in the record of rights and that the respondent failed to discharge that burden. When the entire evidence is before the Court, it is well settled that the burden of proof becomes immaterial23. Further the Revenue Tribunal fell into error of entertaining the Revision when there was no. error of law on the face of the record. The presumption which was said to arise in the record of rights was before the Deputy Collector as well as the Mamlatdar. # If the authority entrusted with adjudication goes into the question and assesses the same, the decision may be right or wrong but that will not go to show that there is any error of law on the face of record.
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G. Narayana Reddy and Others Vs. State of Andhra Pradesh and Others | CHINNAPPA REDDY, J. 1. In exercise of the powers under sub-section (1) of section 40 of the Andhra Pradesh General Sales Tax Act of 1957, the Governor of Andhra Pradesh by G.O.Ms. No. 1413 dated 1st December, 1966, altered the Third Schedule to the Act by substituting the words three paise in the rupee in column (3) of the schedule for the figures and words 2 naye paise in the rupee and 1/2 naya paisa in the rupee wherever they occur against the items mentioned in columns (1) and (2). This G.O. was published in the Gazette bearing date 1st December, 1966. According to the petitioners, this Gazette was received by them, some of whom are subscribers, only on 25th December. The petitioners therefore contend that it is not open to the commercial tax authorities to levy tax at the rate of three paise in the rupee from 1st December, 1966, and that they can do so only from 25th December, 1966. As there was some dispute as to when the Gazette was printed and when it was released to the public, we issued a notice to the Director of Printing to produce the relevant records. In response to our notice the Director of Printing personally appeared before us and produced the relevant registers. 2. On perusal of the registers, it is clear that Gazette No. 328-A bearing date 1st December, 1966, was printed and released to the public on 12th December, 1966. The notification was therefore effective at least on 12th December, 1966. The learned counsel would however urge that since the notification was not in fact published on the date which it bears, it was of no effect whatever and it was as if there was no notification at all. We are not prepared to agree with this submission. As we have said the notification is effective at least from 12th December, 1966, the date on which it was released to the public. | 1[ds]As there was some dispute as to when the Gazette was printed and when it was released to the public, we issued a notice to the Director of Printing to produce the relevant records. In response to our notice the Director of Printing personally appeared before us and produced the relevant registersOn perusal of the registers, it is clear that Gazette No.A bearing date 1st December, 1966, was printed and released to the public on 12th December, 1966. The notification was therefore effective at least on 12th December, 1966.The learned counsel would however urge that since the notification was not in fact published on the date which it bears, it was of no effect whatever and it was as if there was no notification at all.We are not prepared to agree with this submission. As we have said the notification is effective at least from 12th December, 1966, the date on which it was released to the public. | 1 | 371 | 175 | ### Instruction:
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CHINNAPPA REDDY, J. 1. In exercise of the powers under sub-section (1) of section 40 of the Andhra Pradesh General Sales Tax Act of 1957, the Governor of Andhra Pradesh by G.O.Ms. No. 1413 dated 1st December, 1966, altered the Third Schedule to the Act by substituting the words three paise in the rupee in column (3) of the schedule for the figures and words 2 naye paise in the rupee and 1/2 naya paisa in the rupee wherever they occur against the items mentioned in columns (1) and (2). This G.O. was published in the Gazette bearing date 1st December, 1966. According to the petitioners, this Gazette was received by them, some of whom are subscribers, only on 25th December. The petitioners therefore contend that it is not open to the commercial tax authorities to levy tax at the rate of three paise in the rupee from 1st December, 1966, and that they can do so only from 25th December, 1966. As there was some dispute as to when the Gazette was printed and when it was released to the public, we issued a notice to the Director of Printing to produce the relevant records. In response to our notice the Director of Printing personally appeared before us and produced the relevant registers. 2. On perusal of the registers, it is clear that Gazette No. 328-A bearing date 1st December, 1966, was printed and released to the public on 12th December, 1966. The notification was therefore effective at least on 12th December, 1966. The learned counsel would however urge that since the notification was not in fact published on the date which it bears, it was of no effect whatever and it was as if there was no notification at all. We are not prepared to agree with this submission. As we have said the notification is effective at least from 12th December, 1966, the date on which it was released to the public.
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As there was some dispute as to when the Gazette was printed and when it was released to the public, we issued a notice to the Director of Printing to produce the relevant records. In response to our notice the Director of Printing personally appeared before us and produced the relevant registersOn perusal of the registers, it is clear that Gazette No.A bearing date 1st December, 1966, was printed and released to the public on 12th December, 1966. The notification was therefore effective at least on 12th December, 1966.The learned counsel would however urge that since the notification was not in fact published on the date which it bears, it was of no effect whatever and it was as if there was no notification at all.We are not prepared to agree with this submission. As we have said the notification is effective at least from 12th December, 1966, the date on which it was released to the public.
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Abdul Aziz Vs. The Distt. Magistrate Burdwan & Ors | Bengal, passed an order under the Maintenance of Internal Security Act, 26 of 1971, that the petitioner be detained "with a view to preventing him from acting in any manner prejudicial to the maintenance of public order". The petitioner was arrested on 17th December 1971 and on the same date the grounds of detention were served on him. The petitioners case was placed before the Advisory Board on 7th January 1972, his representation was received by the Government on 13th January 1972 and was rejected on 22nd February, 1972. 3. Two grounds were furnished to the petitioner in justification of the order of detention. It was stated firstly, that the petitioner and his associates were members of an extremist party (CPI-ML), that on 16th August 1971, they armed themselves with lethal weapons like firearms, choppers and daggers with a view to promoting the cause of their party, that they raided the house of one Durgapada Rudra and murdered him and that the aforesaid incidents created a general sense of insecurity, as a result of which the residents of the locality could not follow their normal avocations for a considerable period. The second ground of detention is that on 22nd May, 1971 the petitioner and his associates raided the house of Smt. Kshetromoni Choudhury Mallick who was staying in that house. This incident is also stated to have created a general sense of insecurity amongst the residents of the locality. 4. Learned counsel appearing in support of the petition contends that these two incidents are but simple cases of murder, germane to law and order, but which could have no impact on "public order" as such. A short answer to this contention is that the murders are stated to have been committed by the petitioner and his associates with the definite object of promoting the cause of the party to which they belonged. These, therefore, are not stray or simple cases of murder as contended by the learned counsel. Such incidents have serious repercussions not merely on law and order but on public order. We may mention that a similar contention was rejected by this Court in Writ Petn. No. 190 of 1972 decided on 31-7-1972 = (reported in AIR 1972 SC 2259 ). 5. It is then contended that the order of detention was passed during the pendency of a prosecution launched against the petitioner for the very same incidents in regard to which the order of detention has been passed and thereby the order is vitiated. One of the two incidents is alleged to have taken place on 16th August 1971 and immediately thereafter the petitioner was arrested. He was produced before the Judicial Magistrate, Kalna on 10th September 1971 who enlarged him on bail on 6th October 1971. The petitioner was eventually discharged by the learned Magistrate on 16th December 1971, but in the meanwhile, the order of detention was passed on 16th November 1971 and the petitioner was arrested in pursuance of that order on 17th December 1971. In regard to this contention it may be sufficient to draw attention to the decision of this Court in Writ Petition No. 112 of 1972 decided on 17-8-1972 = (reported in AIR 1972 SC 1561 ). It was held therein that the mere circumstance that a detention order is passed during the pendency of a prosecution will not vitiate the order. In conceivable cases it may become necessary to pass an order of detention in anticipation of an order of discharge or acquittal.6. The next challenge to the order of detention is that the delay of about 40 days caused in considering the representation made by the petitioner is fatal to the order. The petitioners representation was received by the Government on 13th January 1972 and was rejected on 22nd February 1972. Apparently therefore there was delay in considering the representation but the affidavit of the Deputy Secretary Home (Special) Department, Government of West Bengal, shows that the representation could not be considered earlier because although the war with Pakistan had ended, its after-effects were still looming large in West Bengal and the officers of the State Government had to take appropriate steps for the return of the refugees who had taken shelter in West Bengal. The delay, thus, is satisfactorily explained. 7. The last contention advanced on behalf of the petitioner is that the Maintenance of Internal Security Act, 1971 having been passed for the maintenance of internal security, it was not open to the Parliament to confer power on the appropriate Government to pass orders of detention for the maintenance of public order, as "internal security" cannot comprehend "public order". Learned counsel draws support to his argument, partly from the long title to the Act, which describes it as "an Act to provide for detention in certain cases for the purpose of maintenance of internal security and matters connected therewith". We see no merit in this contention. In the first place, under Entry 3 of List III of the Seventh Schedule to the Constitution, Parliament has the power to legislate on "Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community". Section 3 (1) (a) (ii) of the Act confers powers on the Central Government and the State Government to pass orders of detention with a view to preventing any person from acting in any manner prejudicial to the security of the State or the maintenance of public order. This power cannot be controlled by anything stated in the long title of the Act. Besides, the long title describes the Act as one for providing for detention for the purpose of maintenance of internal security and "matters connected therewith". "Internal Security" is an expression of width sufficient to comprehend the concept of public order. Internal disturbance can threaten the security of the State and such disturbances may assume grave proportions so as to have a direct impact on public order. | 0[ds]The petitioners representation was received by the Government on 13th January 1972 and was rejected on 22nd February 1972. Apparently therefore there was delay in considering the representation but the affidavit of the Deputy Secretary Home (Special) Department, Government of West Bengal, shows that the representation could not be considered earlier because although the war with Pakistan had ended, its after-effects were still looming large in West Bengal and the officers of the State Government had to take appropriate steps for the return of the refugees who had taken shelter in West Bengal. The delay, thus, is satisfactorily explainedWe see no merit in this contention. In the first place, under Entry 3 of List III of the Seventh Schedule to the Constitution, Parliament has the power to legislate on "Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community". Section 3 (1) (a) (ii) of the Act confers powers on the Central Government and the State Government to pass orders of detention with a view to preventing any person from acting in any manner prejudicial to the security of the State or the maintenance of public order. This power cannot be controlled by anything stated in the long title of the Act. Besides, the long title describes the Act as one for providing for detention for the purpose of maintenance of internal security and "matters connected therewith". "Internal Security" is an expression of width sufficient to comprehend the concept of public order. Internal disturbance can threaten the security of the State and such disturbances may assume grave proportions so as to have a direct impact on public order. | 0 | 1,149 | 323 | ### 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:
Bengal, passed an order under the Maintenance of Internal Security Act, 26 of 1971, that the petitioner be detained "with a view to preventing him from acting in any manner prejudicial to the maintenance of public order". The petitioner was arrested on 17th December 1971 and on the same date the grounds of detention were served on him. The petitioners case was placed before the Advisory Board on 7th January 1972, his representation was received by the Government on 13th January 1972 and was rejected on 22nd February, 1972. 3. Two grounds were furnished to the petitioner in justification of the order of detention. It was stated firstly, that the petitioner and his associates were members of an extremist party (CPI-ML), that on 16th August 1971, they armed themselves with lethal weapons like firearms, choppers and daggers with a view to promoting the cause of their party, that they raided the house of one Durgapada Rudra and murdered him and that the aforesaid incidents created a general sense of insecurity, as a result of which the residents of the locality could not follow their normal avocations for a considerable period. The second ground of detention is that on 22nd May, 1971 the petitioner and his associates raided the house of Smt. Kshetromoni Choudhury Mallick who was staying in that house. This incident is also stated to have created a general sense of insecurity amongst the residents of the locality. 4. Learned counsel appearing in support of the petition contends that these two incidents are but simple cases of murder, germane to law and order, but which could have no impact on "public order" as such. A short answer to this contention is that the murders are stated to have been committed by the petitioner and his associates with the definite object of promoting the cause of the party to which they belonged. These, therefore, are not stray or simple cases of murder as contended by the learned counsel. Such incidents have serious repercussions not merely on law and order but on public order. We may mention that a similar contention was rejected by this Court in Writ Petn. No. 190 of 1972 decided on 31-7-1972 = (reported in AIR 1972 SC 2259 ). 5. It is then contended that the order of detention was passed during the pendency of a prosecution launched against the petitioner for the very same incidents in regard to which the order of detention has been passed and thereby the order is vitiated. One of the two incidents is alleged to have taken place on 16th August 1971 and immediately thereafter the petitioner was arrested. He was produced before the Judicial Magistrate, Kalna on 10th September 1971 who enlarged him on bail on 6th October 1971. The petitioner was eventually discharged by the learned Magistrate on 16th December 1971, but in the meanwhile, the order of detention was passed on 16th November 1971 and the petitioner was arrested in pursuance of that order on 17th December 1971. In regard to this contention it may be sufficient to draw attention to the decision of this Court in Writ Petition No. 112 of 1972 decided on 17-8-1972 = (reported in AIR 1972 SC 1561 ). It was held therein that the mere circumstance that a detention order is passed during the pendency of a prosecution will not vitiate the order. In conceivable cases it may become necessary to pass an order of detention in anticipation of an order of discharge or acquittal.6. The next challenge to the order of detention is that the delay of about 40 days caused in considering the representation made by the petitioner is fatal to the order. The petitioners representation was received by the Government on 13th January 1972 and was rejected on 22nd February 1972. Apparently therefore there was delay in considering the representation but the affidavit of the Deputy Secretary Home (Special) Department, Government of West Bengal, shows that the representation could not be considered earlier because although the war with Pakistan had ended, its after-effects were still looming large in West Bengal and the officers of the State Government had to take appropriate steps for the return of the refugees who had taken shelter in West Bengal. The delay, thus, is satisfactorily explained. 7. The last contention advanced on behalf of the petitioner is that the Maintenance of Internal Security Act, 1971 having been passed for the maintenance of internal security, it was not open to the Parliament to confer power on the appropriate Government to pass orders of detention for the maintenance of public order, as "internal security" cannot comprehend "public order". Learned counsel draws support to his argument, partly from the long title to the Act, which describes it as "an Act to provide for detention in certain cases for the purpose of maintenance of internal security and matters connected therewith". We see no merit in this contention. In the first place, under Entry 3 of List III of the Seventh Schedule to the Constitution, Parliament has the power to legislate on "Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community". Section 3 (1) (a) (ii) of the Act confers powers on the Central Government and the State Government to pass orders of detention with a view to preventing any person from acting in any manner prejudicial to the security of the State or the maintenance of public order. This power cannot be controlled by anything stated in the long title of the Act. Besides, the long title describes the Act as one for providing for detention for the purpose of maintenance of internal security and "matters connected therewith". "Internal Security" is an expression of width sufficient to comprehend the concept of public order. Internal disturbance can threaten the security of the State and such disturbances may assume grave proportions so as to have a direct impact on public order.
### Response:
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### Explanation:
The petitioners representation was received by the Government on 13th January 1972 and was rejected on 22nd February 1972. Apparently therefore there was delay in considering the representation but the affidavit of the Deputy Secretary Home (Special) Department, Government of West Bengal, shows that the representation could not be considered earlier because although the war with Pakistan had ended, its after-effects were still looming large in West Bengal and the officers of the State Government had to take appropriate steps for the return of the refugees who had taken shelter in West Bengal. The delay, thus, is satisfactorily explainedWe see no merit in this contention. In the first place, under Entry 3 of List III of the Seventh Schedule to the Constitution, Parliament has the power to legislate on "Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community". Section 3 (1) (a) (ii) of the Act confers powers on the Central Government and the State Government to pass orders of detention with a view to preventing any person from acting in any manner prejudicial to the security of the State or the maintenance of public order. This power cannot be controlled by anything stated in the long title of the Act. Besides, the long title describes the Act as one for providing for detention for the purpose of maintenance of internal security and "matters connected therewith". "Internal Security" is an expression of width sufficient to comprehend the concept of public order. Internal disturbance can threaten the security of the State and such disturbances may assume grave proportions so as to have a direct impact on public order.
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Kedar Nath Yadav Vs. State Of West Bengal | units. The names of the objectors are as follows: "1. Kuldip Maity of Beraberi, P.S. Singur;2. Subir Kumar Pal, Director of M/s Shree Bhumi Steel Pvt. Ltd., P.S. Singur;3. M/s. Shanti Ceramics Pvt. Ltd., P.S. Singur;4. Prashanta Kumar Jana, Vill-Habaspota, Singur;5. M/s. Ajit Services Station on behalf of Tapan Kumar Bera, Advocate;6. M/s. Shree Padma Sagar Exports Pvt. Ltd. of Singherbheri, P.S. Singur" 69. Some of these objectors were not given the opportunity to be heard as required under Section 5-A (2) of the L.A. Act. The same ought to have been given to them as required both under the statutory provisions of the L.A. Act as well as the principles of natural justice, as the acquisition of lands of the objectors would entail a serious civil consequence. In the case of Mandir Shri Sita Ramji v. Lt. Governor of Delhi, (1975) 4 SCC 298 a Constitution Bench of this Court has held that it is the mandatory duty cast upon the Collector to follow the provision of Section 5-A (2) of the L.A. Act as under: "5. The learned Single Judge allowed the writ petition on the basis that the appellant had no opportunity of being heard by the Collector under Section 5-A. The duty to afford such an opportunity is mandatory. A decision by the Government on the objection, when the Collector afforded no opportunity of being heard to the objector, would not be proper. The power to hear the objection under Section 5-A is that of the Collector and not of the appropriate Government. It is no doubt true that the recommendation of the Land Acquisition Collector is not binding on the Government. The Government may choose either to accept the recommendation or to reject it; but the requirement of the section is that when a persons property is proposed to be acquired, he must be given an opportunity to show cause against it. Merely because the Government may not choose to accept the recommendation of the Land Acquisition Collector, even when he makes one, it cannot be said that he need not make the recommendation at all but leave it to the Government to decide the matter. In other words, the fact that the Collector is not the authority to decide the objection does not exonerate him from his duty to hear the objector on the objection and make the recommendation."(emphasis laid by this Court) 70. In the case of Babu Ram v. State of Haryana, (2009) 10 SCC 115 this Court observed as under: "30. As indicated hereinabove in the various cases cited by Mr. Pradip Ghosh and, in particular, the decision in Krishnan Lal Arneja case, in which reference has been made to the observations made by this Court in Om Prakash case, it has been emphasized that a right under Section 5-A is not merely statutory but also has the flavour of fundamental rights under Articles 14 and 19 of the Constitution. Such observations had been made in reference to an observation made in the earlier decision in Gurdial Singh case and keeping in mind the fact that right to property was no longer a fundamental right, an observation was made that even if the right to property was no longer a fundamental right, the observations relating to Article 14 would continue to apply in full force with regard to Section 5-A of the L.A. Act."(emphasis laid by this Court) From a perusal of the proceedings before the Collector, which are made available to this Court, it becomes clear that the same have been rejected without assigning any clear reasons or application of mind. 71. Thus, the report of the Collector is not a valid report in the eyes of law. The State Government has mechanically accepted the same without application of mind independently before issuing notification under Section 6 of the L.A. Act declaring that the lands are required for establishment of automobile industry by TML. Therefore, the point nos. 3, 4 and 5 are answered against the State Government and in favour of the land owners/cultivators. Answer to Point Nos. 6, 7 and 8 72. After issuing the notifications under Section 6 of the L.A. Act declaring that the lands have been acquired for the purpose of industrial development, a statutory duty is cast upon the Collector to issue notice to the land owners/cultivators, as required under Section 9 of the L.A. Act, to determine the market value of the acquired land and award compensation as required under Section 11 of the L.A. Act which is mandatory for taking possession of the land by the State Government.73. As can be seen from material on record, no individual notices were served upon the land owners/cultivators. A joint inquiry appears to have been conducted by the Land Acquisition Collector without giving them an adequate opportunity to establish their claim for determination of reasonable compensation for acquisition of lands by presenting true and correct market value of the lands. The determination of market value of lands by clubbing a number of cases together and passing a composite award is no award in the eyes of law. The inquiry, as contemplated under Section 11 of the L.A. Act, is a quasi judicial exercise of power on the part of the Collector in awarding just and reasonable compensation to the landowners/cultivators. That has not been done in the instant case. Further, the proviso to Section 11(1) of the L.A. Act provides that no award shall be made by the collector without the previous approval of either the appropriate government or such officer authorised by it for the above purpose. It was also brought to the notice of this Court that supplementary awards were also passed which is not legally permissible in law. For non-compliance of the above provisions of the L.A. Act, the composite awards are vitiated in law and therefore, the same are also liable to be quashed.74. Accordingly, the point nos. 6, 7 and 8 are answered in favour of the land owners. ORDER | 1[ds]The learned senior counsel submit that even before the Supreme Court, the Stateof West Bengalhas stated in its counter affidavit that establishing a new industry is the public purpose as envisaged under Section 3(f) of the L.A. Act and that in the instant case, it was the state government which had acquired the lands in favour of WBIDC for theng its industrialization policy in the State6. The learned senior counsel further submits that in the instant case, having regard to the nature of acquisition of lands made by the previous Government, the lands were acquired by the State Government ints eminent domain power without following the statutory provisions contained in Sections 3(f), 4 and 6 of the L.A. Act as well as Part VII of the L.A. Act. It is submitted that the previous government of the state has violated statutory provisions of the L.A. Act in acquiring the vast extent of lands having immense agricultural potential, thus depriving the agricultural occupation of a largend owners/ cultivators, thereby depriving them of their constitutional and fundamental rights guaranteed under the Constitution of India. It is submitted that the acquisition of the lands in the instant case has been made at the instance of TML. Therefore, the previous Government has violated the law in acquiring the lands. It is submitted that the stand of the present government becomes clear from the fact that it enacted the Singur Act, 2011, the constitutional validity of which has been challenged by TML by way of filing petitions, which were allowed by the High Court, against which judgment, the State Government filed SLPs which are currently pending before this Court. Therefore, the State Government has changed its stand in not justifying the acquisition proceedings.47. We are unable to agree with the contentions advanced by the learned senior counsel appearing on behalf of TML. While it is true that rule of law cannot be sacrificed for the sake of furthering political agendas, it is also a well established position of law that a stand taken by the state government can be changed subsequently if there is material on record to show that the earlier action of the acquisition of lands by the State Government was illegal or suffers from legal malafides or colourable8. Further, in any case, it is also well settled position of law that this Court is not bound by affidavits and counter affidavits filed by the parties. Ints power under Article 136 of the Constitution of India, this Court can examine the material on record in order to determine whether the action of the previous state government in acquiring the lands in the instant case was in accordance with law or not.The above said preliminary objection, as has been raised by the learned senior counsel appearing on behalf of TML is thus, not accepted. We now proceed to decide the matter on merits.A perusal of the notification issued under Section 4(1) of the L.A. Act extracted supra clearly shows that the proposed lands in the notification are needed for the setting up of the Tata Small Car project in mouza Berabery, P.S. Singur, District Hooghly.54. The Cabinet Memo dated 30.05.2006, extracted supra, at Serial No. 3 mentioned acquisition of lands measuring 1053 acres by WBIDC for theof setting upof the Tata Motors `Small Car Project in the StateThe said Cabinet Memo received the approval of the Chief Minister on 05.06.2006 after which the notification under Section 4 of the L.A. Act was published in the official gazette.55. As far as the proposal is concerned, there is nothing on record to indicate that WBIDC made such requisition to the State Government giving its proposal for acquisition of the proposed lands mentioned in the notification issued under Section 4 of the L.A. Act, which are required for `public purpose as defined under Section 3(f) (iii) of the L.A. Act, which enables the WBIDC to give requisition for acquiring the lands in its favour for the planned development of land out of the public funds in pursuance of any scheme or policy of Government. As is evident from the Notifications issued under the L.A. Act and from the cabinet memo, there is no mention about such requisition being made by the Corporation to the State Government regarding the proposed lands being required for acquisition in favour of WBIDC for planned development of land in pursuance of any scheme or policy of the Government. Even from a perusal of the letter dated 29.08.2006, written by the Joint Secretary, Land and Land Reforms Department, Governmentit becomes clear that the state government did not apply its mind while considering the need of the land and merely followed the document on which the Collector had signed.Even if the argument advanced on behalf of TML were to be accepted, that it was the policy of the state government to generate employment and increase socio economic development in the State, the relevant policy documents are not forthcoming in the original acquisition files which were made available for this Court. Thus, by no stretch of imagination can the acquisition of lands in the instant case beo be at theinstance of WBIDC, or for the fulfilment of some scheme of the Corporation or the State Government. Thus, it cannot be said to attract Section 3(f)(iii), (iv) or (vi) either. On the contrary, what is on record is the minutes of meetings between the representatives of the West Bengal Government and TML dated 17.03.2006, which state that TML is interested in setting up a `special category project in the State to manufacture 2,50,000 units for its `Small Car Project. As per the project requirement mentioned in the letter written by Deputy General Manager TML to the Principal Secretary, Commerce & Industries Department, Governmentof West Bengaldated 19.01.2006, 400 acres of land were required for setting up of the factory, 200 acres for vendor park and 100 acres for township. The said letter was forwarded by the Commerce and Industries Department to the Principal Secretary, Land and Land Reforms Department on 24.01.2006 and the Financeir consideration and seeking their views in this regard. It is undisputed fact that the State Government has not deposited the public money towards the cost of acquisition of land to initiate the acquisition proceedings to show that the acquisition of lands is for public purpose which is an essential requirement under the provision of Section 6 of the L.A. Act. As can be seen, the notification issued under Section 6 of the L.A. Act merely provides that the land is needed for the setting up of the Tata Small Car project, which is a public purpose under the L.A. Act.From a perusal of both the statutory provisions of the L.A. Act as well as the case law on the subject referred to supra upon which strong reliance has been rightly placed by the learned senior counsel on behalf of the owners/cultivators and State Government, it becomes clear that the state government can acquire land under the public purpose clauses (iv) and (vii) of the Act for industrial estates, housing colonies and economic parks/zones even where the type of industry has been identified. So, an acquisition made for an industrial estate of a particular type of industry like small cars is permissible under the `public purpose for theof the L.A. Actunder the above clauses of Section 3 (f) of the Act. Before land could be acquired, the procedure consistent with the statutory provisions of law must be followed mandatorily. There is nothing in law which would support the acquisition of land for a particular Company under theic purpose, rendering the exception provided under Section 3(f)(viii)of the L.A. Act3. In this day and age of fast paced development, it is completely understandable for the state government to want to acquire lands to set up industrial units. What, however, cannot be lost sight of is the fact that when the brunt of this `development is borne by the weakest sections of the society, more so, poor agricultural workers who have no means of raising a voice against the action of the mighty state government, as is the case in the instant fact situation, it is the onerous duty of the state Government to ensure that the mandatory procedure laid down under the L.A. Act and the Rules framed there under are followed scrupulously otherwise the acquisition proceedings will be rendered void ab initio in law. Compliance with the provisionsof the L.A. Actcannot be treated as any by the State Government, as that would be akin to handing over the eminent domainte to the executive, which cannot be permitted in a democratic country which isbe governed by the4. In the instant case, what makes the acquisition proceedings perverse is not the fact that the lands were needed for setting up of an automobile industry, which would help to generate employment as well as promote socio economic development in the State, but what makes the acquisition proceedings perverse is that the proper procedure as laid down under Part VIIof the L.A. Actread with Rules was not followed by the State Government. The acquisition of land for and at the instance of the company was sought to be disguised as acquisition of land for `public purpose in order to circumvent compliance with the mandatory provisions of Part VIIof the L.A.This action of the State Government is grossly perverse and illegal and void ab initio in law and such anof power bythe state government for acquisition of lands cannot be allowed under any circumstance. If such acquisitions of lands are permitted, it would render entire Part VIIof the L.A.as nugatory and redundant, as then virtually every acquisition of land in favour of a company could be justified as one for a `public purpose on the ground that the setting up of industry would generate employment and promote socio economic development in the State. Surely, that could not have been the intention of the legislature in providing the provisions of Part VII read with 3 (f)of the L.A.From a perusal of the materials on record from the original files, the relevant extracts from the letters addressed by TML to the State Governmentof West Bengaland Cabinet notes which have been extracted and discussed supra, it becomes clear that in the instant case, the lands in question were acquired by the State Government for a particular Company (TML), at the instance of that Company. Further, the exact location and site of the land was also identified by TML. Even the notifications issued under Sections 4 and 6of the L.A.clearly state that the land in question was being acquiredfor the `Small CarIn view of the foregoing reasons, by no stretch of imagination can such an acquisition of lands beone for `public purpose and not for a company. If the acquisition of lands in the instant case does not amount to one for the company, I do not know what would.65. In view of the aforesaid categorical findings recorded by me based on the materials on record, including cabinet memo, minutes of meetings between representatives of the state government and TML as well as the notifications issued under Sections 4 and 6of the L.A.1984, it is clear that the acquisition of lands in the instant case is for the Company (TML). Admittedly, the procedure for acquisition as contemplated under Sections 39, 40 and 41 of Part VIIof the L.A.read with Rules 3, 4 and 5 of the Land Acquisition (Companies) Rules, 1963 has not been followed, as the acquisition was sought to be guised as one for `public purpose under Sections 3(f) (iii), (iv) and (vii)of the L.A.The acquisition of land in the instant case in favour of the Company is thus, improper for not following the mandatory procedure prescribed under Part VIIof the L.A.and Rules and therefore the acquisition proceedings are liable to be quashed.66. Further, even after the lands were acquired in its favour, TML could not start operations in accordance with the terms of the lease deed. The same becomes clear from a perusal of the letter dated 28.09.2010 written by the Managing Director, India Operations of TML to the Managing Director ofIn view of the foregoing reasons, Point Nos. 1 and 2 are answered in favour of the land owners/cultivators.From a perusal of the materials on record and original acquisition files, it is evident that a largens were filed by the land owners before the notification was issued under Section 4of the L.A.Act. The samewere not considered properly under Section. Notices were issued to the objectors individually but the same could not be served upon the owners/cultivators of the proposed lands to be acquired. It is further mentioned in the record that the announcements were made through loudspeakers and by publications in the newspapers. It has been submitted by Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the Stateof West Bengalthat once a decision was taken to serve the land owners/cultivators individually then it should have been ensured by the Land Acquisition Collector that the notices were so served. However, the fact that the same was not done is evident from a perusal of the acquisition files maintained by the State Government.Thus, the report of the Collector is not a valid report in the eyes of law. The State Government has mechanically accepted the same without application of mind independently before issuing notification under Section 6of the L.A.declaring that the lands are required for establishment of automobile industry by TML. Therefore, the point nos. 3, 4 and 5 are answered against the State Government and in favour of the land owners/cultivators.After issuing the notifications under Section 6of the L.A.declaring that the lands have been acquired for theal development, a statutory duty is cast upon the Collector to issue notice to the land owners/cultivators, as required under Section 9of the L.A.to determine the market value of the acquired land and award compensation as required under Section 11of the L.A.for taking possessionof the land by the State Government.73. As can be seen from material on record, no individual notices were served upon the land owners/cultivators. A joint inquiry appears to have been conducted by the Land Acquisition Collector without giving them an adequate opportunity to establish their claim for determination of reasonable compensation for acquisition of lands by presenting true and correct market value of the lands. The determination of market value of lands by clubbing aes together and passing a composite award is no award in the eyes of law. The inquiry, as contemplated under Section 11of the L.A.is a quasi judicialer on the part of the Collector in awarding just and reasonable compensation to the landowners/cultivators. That has not been done in the instant case. Further, the proviso to Section 11(1)of the L.A.Act provides thatno award shall be made by the collector without the previous approval of either the appropriate government or such officer authorised by it for the above purpose. It was also brought to the notice of this Court that supplementary awards were also passed which is not legally permissible in law. Forof the above provisionsof the L.A.the composite awards are vitiated in law and therefore, the same are also liable to be quashed.74. Accordingly, the point nos. 6, 7 and 8 are answered in favour of the land owners. | 1 | 21,481 | 2,785 | ### 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:
units. The names of the objectors are as follows: "1. Kuldip Maity of Beraberi, P.S. Singur;2. Subir Kumar Pal, Director of M/s Shree Bhumi Steel Pvt. Ltd., P.S. Singur;3. M/s. Shanti Ceramics Pvt. Ltd., P.S. Singur;4. Prashanta Kumar Jana, Vill-Habaspota, Singur;5. M/s. Ajit Services Station on behalf of Tapan Kumar Bera, Advocate;6. M/s. Shree Padma Sagar Exports Pvt. Ltd. of Singherbheri, P.S. Singur" 69. Some of these objectors were not given the opportunity to be heard as required under Section 5-A (2) of the L.A. Act. The same ought to have been given to them as required both under the statutory provisions of the L.A. Act as well as the principles of natural justice, as the acquisition of lands of the objectors would entail a serious civil consequence. In the case of Mandir Shri Sita Ramji v. Lt. Governor of Delhi, (1975) 4 SCC 298 a Constitution Bench of this Court has held that it is the mandatory duty cast upon the Collector to follow the provision of Section 5-A (2) of the L.A. Act as under: "5. The learned Single Judge allowed the writ petition on the basis that the appellant had no opportunity of being heard by the Collector under Section 5-A. The duty to afford such an opportunity is mandatory. A decision by the Government on the objection, when the Collector afforded no opportunity of being heard to the objector, would not be proper. The power to hear the objection under Section 5-A is that of the Collector and not of the appropriate Government. It is no doubt true that the recommendation of the Land Acquisition Collector is not binding on the Government. The Government may choose either to accept the recommendation or to reject it; but the requirement of the section is that when a persons property is proposed to be acquired, he must be given an opportunity to show cause against it. Merely because the Government may not choose to accept the recommendation of the Land Acquisition Collector, even when he makes one, it cannot be said that he need not make the recommendation at all but leave it to the Government to decide the matter. In other words, the fact that the Collector is not the authority to decide the objection does not exonerate him from his duty to hear the objector on the objection and make the recommendation."(emphasis laid by this Court) 70. In the case of Babu Ram v. State of Haryana, (2009) 10 SCC 115 this Court observed as under: "30. As indicated hereinabove in the various cases cited by Mr. Pradip Ghosh and, in particular, the decision in Krishnan Lal Arneja case, in which reference has been made to the observations made by this Court in Om Prakash case, it has been emphasized that a right under Section 5-A is not merely statutory but also has the flavour of fundamental rights under Articles 14 and 19 of the Constitution. Such observations had been made in reference to an observation made in the earlier decision in Gurdial Singh case and keeping in mind the fact that right to property was no longer a fundamental right, an observation was made that even if the right to property was no longer a fundamental right, the observations relating to Article 14 would continue to apply in full force with regard to Section 5-A of the L.A. Act."(emphasis laid by this Court) From a perusal of the proceedings before the Collector, which are made available to this Court, it becomes clear that the same have been rejected without assigning any clear reasons or application of mind. 71. Thus, the report of the Collector is not a valid report in the eyes of law. The State Government has mechanically accepted the same without application of mind independently before issuing notification under Section 6 of the L.A. Act declaring that the lands are required for establishment of automobile industry by TML. Therefore, the point nos. 3, 4 and 5 are answered against the State Government and in favour of the land owners/cultivators. Answer to Point Nos. 6, 7 and 8 72. After issuing the notifications under Section 6 of the L.A. Act declaring that the lands have been acquired for the purpose of industrial development, a statutory duty is cast upon the Collector to issue notice to the land owners/cultivators, as required under Section 9 of the L.A. Act, to determine the market value of the acquired land and award compensation as required under Section 11 of the L.A. Act which is mandatory for taking possession of the land by the State Government.73. As can be seen from material on record, no individual notices were served upon the land owners/cultivators. A joint inquiry appears to have been conducted by the Land Acquisition Collector without giving them an adequate opportunity to establish their claim for determination of reasonable compensation for acquisition of lands by presenting true and correct market value of the lands. The determination of market value of lands by clubbing a number of cases together and passing a composite award is no award in the eyes of law. The inquiry, as contemplated under Section 11 of the L.A. Act, is a quasi judicial exercise of power on the part of the Collector in awarding just and reasonable compensation to the landowners/cultivators. That has not been done in the instant case. Further, the proviso to Section 11(1) of the L.A. Act provides that no award shall be made by the collector without the previous approval of either the appropriate government or such officer authorised by it for the above purpose. It was also brought to the notice of this Court that supplementary awards were also passed which is not legally permissible in law. For non-compliance of the above provisions of the L.A. Act, the composite awards are vitiated in law and therefore, the same are also liable to be quashed.74. Accordingly, the point nos. 6, 7 and 8 are answered in favour of the land owners. ORDER
### Response:
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### Explanation:
the mandatory provisions of Part VIIof the L.A.This action of the State Government is grossly perverse and illegal and void ab initio in law and such anof power bythe state government for acquisition of lands cannot be allowed under any circumstance. If such acquisitions of lands are permitted, it would render entire Part VIIof the L.A.as nugatory and redundant, as then virtually every acquisition of land in favour of a company could be justified as one for a `public purpose on the ground that the setting up of industry would generate employment and promote socio economic development in the State. Surely, that could not have been the intention of the legislature in providing the provisions of Part VII read with 3 (f)of the L.A.From a perusal of the materials on record from the original files, the relevant extracts from the letters addressed by TML to the State Governmentof West Bengaland Cabinet notes which have been extracted and discussed supra, it becomes clear that in the instant case, the lands in question were acquired by the State Government for a particular Company (TML), at the instance of that Company. Further, the exact location and site of the land was also identified by TML. Even the notifications issued under Sections 4 and 6of the L.A.clearly state that the land in question was being acquiredfor the `Small CarIn view of the foregoing reasons, by no stretch of imagination can such an acquisition of lands beone for `public purpose and not for a company. If the acquisition of lands in the instant case does not amount to one for the company, I do not know what would.65. In view of the aforesaid categorical findings recorded by me based on the materials on record, including cabinet memo, minutes of meetings between representatives of the state government and TML as well as the notifications issued under Sections 4 and 6of the L.A.1984, it is clear that the acquisition of lands in the instant case is for the Company (TML). Admittedly, the procedure for acquisition as contemplated under Sections 39, 40 and 41 of Part VIIof the L.A.read with Rules 3, 4 and 5 of the Land Acquisition (Companies) Rules, 1963 has not been followed, as the acquisition was sought to be guised as one for `public purpose under Sections 3(f) (iii), (iv) and (vii)of the L.A.The acquisition of land in the instant case in favour of the Company is thus, improper for not following the mandatory procedure prescribed under Part VIIof the L.A.and Rules and therefore the acquisition proceedings are liable to be quashed.66. Further, even after the lands were acquired in its favour, TML could not start operations in accordance with the terms of the lease deed. The same becomes clear from a perusal of the letter dated 28.09.2010 written by the Managing Director, India Operations of TML to the Managing Director ofIn view of the foregoing reasons, Point Nos. 1 and 2 are answered in favour of the land owners/cultivators.From a perusal of the materials on record and original acquisition files, it is evident that a largens were filed by the land owners before the notification was issued under Section 4of the L.A.Act. The samewere not considered properly under Section. Notices were issued to the objectors individually but the same could not be served upon the owners/cultivators of the proposed lands to be acquired. It is further mentioned in the record that the announcements were made through loudspeakers and by publications in the newspapers. It has been submitted by Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the Stateof West Bengalthat once a decision was taken to serve the land owners/cultivators individually then it should have been ensured by the Land Acquisition Collector that the notices were so served. However, the fact that the same was not done is evident from a perusal of the acquisition files maintained by the State Government.Thus, the report of the Collector is not a valid report in the eyes of law. The State Government has mechanically accepted the same without application of mind independently before issuing notification under Section 6of the L.A.declaring that the lands are required for establishment of automobile industry by TML. Therefore, the point nos. 3, 4 and 5 are answered against the State Government and in favour of the land owners/cultivators.After issuing the notifications under Section 6of the L.A.declaring that the lands have been acquired for theal development, a statutory duty is cast upon the Collector to issue notice to the land owners/cultivators, as required under Section 9of the L.A.to determine the market value of the acquired land and award compensation as required under Section 11of the L.A.for taking possessionof the land by the State Government.73. As can be seen from material on record, no individual notices were served upon the land owners/cultivators. A joint inquiry appears to have been conducted by the Land Acquisition Collector without giving them an adequate opportunity to establish their claim for determination of reasonable compensation for acquisition of lands by presenting true and correct market value of the lands. The determination of market value of lands by clubbing aes together and passing a composite award is no award in the eyes of law. The inquiry, as contemplated under Section 11of the L.A.is a quasi judicialer on the part of the Collector in awarding just and reasonable compensation to the landowners/cultivators. That has not been done in the instant case. Further, the proviso to Section 11(1)of the L.A.Act provides thatno award shall be made by the collector without the previous approval of either the appropriate government or such officer authorised by it for the above purpose. It was also brought to the notice of this Court that supplementary awards were also passed which is not legally permissible in law. Forof the above provisionsof the L.A.the composite awards are vitiated in law and therefore, the same are also liable to be quashed.74. Accordingly, the point nos. 6, 7 and 8 are answered in favour of the land owners.
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Income Tax Officer, Udaipur Vs. M/s. Arihant Tiles & Marbles (P) Ltd | In the circumstances, we are of the view that on the facts of the cases in hand, there is certainly an activity which will come in the category of "manufacture" or "production" under Section 80IA of the Income Tax Act. As stated herein-above, the judgment of this Court in Aman Marble Industries Pvt. Ltd. was not required to construe the word "production" in addition to the word "manufacture". One has to examine the scheme of the Act also while deciding the question as to whether the activity constitutes manufacture or production. Therefore, looking to the nature of the activity stepwise, we are of the view that the subject activity certainly constitutes "manufacture or production" in terms of Section 80IA. In this connection, our view is also fortified by the following judgments of this Court which have been fairly pointed out to us by learned counsel appearing for the Department. In the case of Commissioner of Income Tax vs. Sesa Goa Ltd., reported in 271 ITR 331 (SC), the meaning of the word "production" came up for consideration. The question which came before this Court was whether the ITAT was justified in holding that the assessee was entitled to deduction under Section 32A of the Income Tax Act, 1961, in respect of machinery used in mining activity ignoring the fact that the assessee was engaged in extraction and processing of iron ore, not amounting to manufacture or production of any article or thing. The High Court in that case, while dismissing the appeal preferred by the Revenue, held that extraction and processing of iron ore did not amount to "manufacture". However, it came to the conclusion that extraction of iron ore and the various processes would involve "production" within the meaning of Section 32A(2)(b)(iii) of the Income Tax Act, 1961 and consequently, the assessee was entitled to the benefit of investment allowance under Section 32A of the Income Tax Act. In that matter, it was argued on behalf of the Revenue that extraction and processing of iron ore did not produce any new product whereas it was argued on behalf of the assessee that it did produce a distinct new product. The view expressed by the High Court that the activity in question constituted "production" has been affirmed by this Court in Sesa Goas case saying that the High Courts opinion was unimpeachable. It was held by this Court that the word "production" is wider in ambit and it has a wider connotation than the word "manufacture". It was held that while every manufacture can constitute production, every production did not amount to manufacture. In our view, applying the tests laid down by this Court in Sesa Goas case (supra) and applying it to the activities undertaken by the respondents herein, reproduced herein-above), it is clear that the said activities would come within the meaning of the word "production". One more aspect needs to be highlighted. By the said judgment, this Court affirmed the decision of the Karnataka High Court in the case of Commissioner of Income Tax vs. Mysore Minerals Ltd, (2001) 250 ITR 725 (Kar) . In the case of Commissioner of Income Tax Vs. N.C. Budharaja & Co., reported in 204 ITR 412 (SC), the question which arose for determination before this Court was whether construction of a dam to store water (reservoir) can be characterised as amounting to manufacturing or producing an article. It was held that the word "manufacture" and the word "production" have received extensive judicial attention both under the Income Tax as well as under the Central Excise and the Sales Tax laws. The test for determining whether "manufacture" can be said to have taken place is whether the commodity, which is subjected to a process can no longer be regarded as the original commodity but is recognised in trade as a new and distinct commodity. The word "production", when used in juxtaposition with the word "manufacture", takes in bringing into existence new goods by a process which may or may not amount to manufacture. The word "production" takes in all the byproducts, intermediate products and residual products which emerge in the course of manufacture of goods. Applying the above tests laid down by this Court in Budharajas case (supra) to the facts of the present cases, we are of the view that blocks converted into polished slabs and tiles after undergoing the process indicated above certainly results in emergence of a new and distinct commodity. The original block does not remain the marble block, it becomes a slab or tile. In the circumstances, not only there is manufacture but also an activity which is something beyond manufacture and which brings a new product into existence and, therefore, on the facts of these cases, we are of the view that the High Court was right in coming to the conclusion that the activity undertaken by the respondents-assessees did constitute manufacture or production in terms of Section 80IA of the Income Tax Act, 1961. Before concluding, we would like to make one observation. If the contention of the Department is to be accepted, namely that the activity undertaken by the respondents herein is not a manufacture, then, it would have serious revenue consequences. As stated above, each of the respondents is paying excise duty, some of the respondents are job workers and the activity undertaken by them has been recognised by various Government Authorities as manufacture. To say that the activity will not amount to manufacture or production under Section 80IA will have disastrous consequences, particularly in view of the fact that the assessees in all the cases would plead that they were not liable to pay excise duty, sales tax etc. because the activity did not constitute manufacture. Keeping in mind the above factors, we are of the view that in the present cases, the activity undertaken by each of the respondents constitutes manufacture or production and, therefore, they would be entitled to the benefit of Section 80IA of the Income Tax Act, 1961. | 0[ds]In the present case, we are not considered with such activity. Therefore, in our view the judgment of this Court in Rajasthan Electricity Board (supra) has no application to the facts of the present caseIn our view, the judgment of this Court in Aman Marble Industries Pvt. Ltd.(supra) also has no application to the facts of the present case. One of the most important reasons for saying so is that in all such cases, particularly under the Excise law, the Court has to go by the facts of each case. In each case one has to examine the nature of the activity undertaken by an assessee. Mere extraction of stones may not constitute manufacture. Similarly, after extraction, if marble blocks are cut into slabs per se will not amount to the activity of manufactureIn the present case, we have extracted in detail the process undertaken by each of the respondents before us. In the present case, we are not concerned only with cutting of marble blocks into slabs. In the present case we are also concerned with the activity of polishing and ultimate conversion of blocks into polished slabs and tiles. What we find from the process indicated herein-above is that there are various stages through which the blocks have to go through before they become polished slabs and tiles. In the circumstances, we are of the view that on the facts of the cases in hand, there is certainly an activity which will come in the category of "manufacture" or "production" under Section 80IA of the Income Tax Act. As stated herein-above, the judgment of this Court in Aman Marble Industries Pvt. Ltd. was not required to construe the word "production" in addition to the word "manufacture". One has to examine the scheme of the Act also while deciding the question as to whether the activity constitutes manufacture or production. Therefore, looking to the nature of the activity stepwise, we are of the view that the subject activity certainly constitutes "manufacture or production" in terms of Section 80IA. In this connection, our view is also fortified by the following judgments of this Court which have been fairly pointed out to us by learned counsel appearing for the DepartmentIn our view, applying the tests laid down by this Court in Sesa Goas case (supra) and applying it to the activities undertaken by the respondents herein, reproduced herein-above), it is clear that the said activities would come within the meaning of the word "production"Applying the above tests laid down by this Court in Budharajas case (supra) to the facts of the present cases, we are of the view that blocks converted into polished slabs and tiles after undergoing the process indicated above certainly results in emergence of a new and distinct commodity. The original block does not remain the marble block, it becomes a slab or tile. In the circumstances, not only there is manufacture but also an activity which is something beyond manufacture and which brings a new product into existence and, therefore, on the facts of these cases, we are of the view that the High Court was right in coming to the conclusion that the activity undertaken by the respondents-assessees did constitute manufacture or production in terms of Section 80IA of the Income Tax Act, 1961Before concluding, we would like to make one observation. If the contention of the Department is to be accepted, namely that the activity undertaken by the respondents herein is not a manufacture, then, it would have serious revenue consequences. As stated above, each of the respondents is paying excise duty, some of the respondents are job workers and the activity undertaken by them has been recognised by various Government Authorities as manufacture. To say that the activity will not amount to manufacture or production under Section 80IA will have disastrous consequences, particularly in view of the fact that the assessees in all the cases would plead that they were not liable to pay excise duty, sales tax etc. because the activity did not constitute manufacture. Keeping in mind the above factors, we are of the view that in the present cases, the activity undertaken by each of the respondents constitutes manufacture or production and, therefore, they would be entitled to the benefit of Section 80IA of the Income Tax Act, 1961 | 0 | 3,510 | 805 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
In the circumstances, we are of the view that on the facts of the cases in hand, there is certainly an activity which will come in the category of "manufacture" or "production" under Section 80IA of the Income Tax Act. As stated herein-above, the judgment of this Court in Aman Marble Industries Pvt. Ltd. was not required to construe the word "production" in addition to the word "manufacture". One has to examine the scheme of the Act also while deciding the question as to whether the activity constitutes manufacture or production. Therefore, looking to the nature of the activity stepwise, we are of the view that the subject activity certainly constitutes "manufacture or production" in terms of Section 80IA. In this connection, our view is also fortified by the following judgments of this Court which have been fairly pointed out to us by learned counsel appearing for the Department. In the case of Commissioner of Income Tax vs. Sesa Goa Ltd., reported in 271 ITR 331 (SC), the meaning of the word "production" came up for consideration. The question which came before this Court was whether the ITAT was justified in holding that the assessee was entitled to deduction under Section 32A of the Income Tax Act, 1961, in respect of machinery used in mining activity ignoring the fact that the assessee was engaged in extraction and processing of iron ore, not amounting to manufacture or production of any article or thing. The High Court in that case, while dismissing the appeal preferred by the Revenue, held that extraction and processing of iron ore did not amount to "manufacture". However, it came to the conclusion that extraction of iron ore and the various processes would involve "production" within the meaning of Section 32A(2)(b)(iii) of the Income Tax Act, 1961 and consequently, the assessee was entitled to the benefit of investment allowance under Section 32A of the Income Tax Act. In that matter, it was argued on behalf of the Revenue that extraction and processing of iron ore did not produce any new product whereas it was argued on behalf of the assessee that it did produce a distinct new product. The view expressed by the High Court that the activity in question constituted "production" has been affirmed by this Court in Sesa Goas case saying that the High Courts opinion was unimpeachable. It was held by this Court that the word "production" is wider in ambit and it has a wider connotation than the word "manufacture". It was held that while every manufacture can constitute production, every production did not amount to manufacture. In our view, applying the tests laid down by this Court in Sesa Goas case (supra) and applying it to the activities undertaken by the respondents herein, reproduced herein-above), it is clear that the said activities would come within the meaning of the word "production". One more aspect needs to be highlighted. By the said judgment, this Court affirmed the decision of the Karnataka High Court in the case of Commissioner of Income Tax vs. Mysore Minerals Ltd, (2001) 250 ITR 725 (Kar) . In the case of Commissioner of Income Tax Vs. N.C. Budharaja & Co., reported in 204 ITR 412 (SC), the question which arose for determination before this Court was whether construction of a dam to store water (reservoir) can be characterised as amounting to manufacturing or producing an article. It was held that the word "manufacture" and the word "production" have received extensive judicial attention both under the Income Tax as well as under the Central Excise and the Sales Tax laws. The test for determining whether "manufacture" can be said to have taken place is whether the commodity, which is subjected to a process can no longer be regarded as the original commodity but is recognised in trade as a new and distinct commodity. The word "production", when used in juxtaposition with the word "manufacture", takes in bringing into existence new goods by a process which may or may not amount to manufacture. The word "production" takes in all the byproducts, intermediate products and residual products which emerge in the course of manufacture of goods. Applying the above tests laid down by this Court in Budharajas case (supra) to the facts of the present cases, we are of the view that blocks converted into polished slabs and tiles after undergoing the process indicated above certainly results in emergence of a new and distinct commodity. The original block does not remain the marble block, it becomes a slab or tile. In the circumstances, not only there is manufacture but also an activity which is something beyond manufacture and which brings a new product into existence and, therefore, on the facts of these cases, we are of the view that the High Court was right in coming to the conclusion that the activity undertaken by the respondents-assessees did constitute manufacture or production in terms of Section 80IA of the Income Tax Act, 1961. Before concluding, we would like to make one observation. If the contention of the Department is to be accepted, namely that the activity undertaken by the respondents herein is not a manufacture, then, it would have serious revenue consequences. As stated above, each of the respondents is paying excise duty, some of the respondents are job workers and the activity undertaken by them has been recognised by various Government Authorities as manufacture. To say that the activity will not amount to manufacture or production under Section 80IA will have disastrous consequences, particularly in view of the fact that the assessees in all the cases would plead that they were not liable to pay excise duty, sales tax etc. because the activity did not constitute manufacture. Keeping in mind the above factors, we are of the view that in the present cases, the activity undertaken by each of the respondents constitutes manufacture or production and, therefore, they would be entitled to the benefit of Section 80IA of the Income Tax Act, 1961.
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0
### Explanation:
In the present case, we are not considered with such activity. Therefore, in our view the judgment of this Court in Rajasthan Electricity Board (supra) has no application to the facts of the present caseIn our view, the judgment of this Court in Aman Marble Industries Pvt. Ltd.(supra) also has no application to the facts of the present case. One of the most important reasons for saying so is that in all such cases, particularly under the Excise law, the Court has to go by the facts of each case. In each case one has to examine the nature of the activity undertaken by an assessee. Mere extraction of stones may not constitute manufacture. Similarly, after extraction, if marble blocks are cut into slabs per se will not amount to the activity of manufactureIn the present case, we have extracted in detail the process undertaken by each of the respondents before us. In the present case, we are not concerned only with cutting of marble blocks into slabs. In the present case we are also concerned with the activity of polishing and ultimate conversion of blocks into polished slabs and tiles. What we find from the process indicated herein-above is that there are various stages through which the blocks have to go through before they become polished slabs and tiles. In the circumstances, we are of the view that on the facts of the cases in hand, there is certainly an activity which will come in the category of "manufacture" or "production" under Section 80IA of the Income Tax Act. As stated herein-above, the judgment of this Court in Aman Marble Industries Pvt. Ltd. was not required to construe the word "production" in addition to the word "manufacture". One has to examine the scheme of the Act also while deciding the question as to whether the activity constitutes manufacture or production. Therefore, looking to the nature of the activity stepwise, we are of the view that the subject activity certainly constitutes "manufacture or production" in terms of Section 80IA. In this connection, our view is also fortified by the following judgments of this Court which have been fairly pointed out to us by learned counsel appearing for the DepartmentIn our view, applying the tests laid down by this Court in Sesa Goas case (supra) and applying it to the activities undertaken by the respondents herein, reproduced herein-above), it is clear that the said activities would come within the meaning of the word "production"Applying the above tests laid down by this Court in Budharajas case (supra) to the facts of the present cases, we are of the view that blocks converted into polished slabs and tiles after undergoing the process indicated above certainly results in emergence of a new and distinct commodity. The original block does not remain the marble block, it becomes a slab or tile. In the circumstances, not only there is manufacture but also an activity which is something beyond manufacture and which brings a new product into existence and, therefore, on the facts of these cases, we are of the view that the High Court was right in coming to the conclusion that the activity undertaken by the respondents-assessees did constitute manufacture or production in terms of Section 80IA of the Income Tax Act, 1961Before concluding, we would like to make one observation. If the contention of the Department is to be accepted, namely that the activity undertaken by the respondents herein is not a manufacture, then, it would have serious revenue consequences. As stated above, each of the respondents is paying excise duty, some of the respondents are job workers and the activity undertaken by them has been recognised by various Government Authorities as manufacture. To say that the activity will not amount to manufacture or production under Section 80IA will have disastrous consequences, particularly in view of the fact that the assessees in all the cases would plead that they were not liable to pay excise duty, sales tax etc. because the activity did not constitute manufacture. Keeping in mind the above factors, we are of the view that in the present cases, the activity undertaken by each of the respondents constitutes manufacture or production and, therefore, they would be entitled to the benefit of Section 80IA of the Income Tax Act, 1961
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State Of Meghalaya Vs. Mecken Sing N. Marak | has set aside the order removing the respondent from service and remitted the matter to the appellate authority, namely, the Inspector General of Police to consider and inflict appropriate punishment, short of removal from service, commensurate with the gravity of the proven misconduct of the respondent, by the impugned judgment, giving rise to the instant appeal. 8. This Court has heard the learned counsel for the parties at length and in great detail. This Court has also considered the documents forming part of the instant appeal. The competent authority as well as the first appellate authority have concluded that gave misconduct committed by the respondent is satisfactorily proved. The said finding is upheld by the learned Single Judge of the Gauhati High Court while deciding the petition filed by the respondent under Article 226 of the Constitution. On re-appreciation of evidence adduced, during the course of the departmental inquiry initiated against the respondent, the Division Bench has also recorded a finding of fact that the respondent had committed serious misconduct. The said finding is a finding of fact which is not liable to be interfered with in the instant appeal. 9. The next question which falls for consideration is whether the competent authority was justified in removing the respondent from service and whether the Division Bench of the High Court was right in remitting the matter to the Appellate Authority for passing appropriate order of punishment short of removal. The record would indicate that the respondent was a senior police officer. He was instructed by his Commandment to go to Shillong to disburse the pay in a vehicle belonging to the department and along with him another police officer was also deputed for safe carriage of pay to be disbursed to the Bn personal posted at Shillong. Further, the respondent was issued 0.38 bore revolver with 12 rounds. It is an admitted position that the respondent was instructed to come back to Bn headquarters by the vehicle of the department along with other police personnel but the respondent disobeyed the instructions and traveled to Bn headquarters in a bus wherein not only he lost cash of Rs.17,314/- but also his service revolver with 12 rounds of ammunition. Under the circumstances the question arises whether the Division Bench of the High Court was justified in setting aside the order of removal of the respondent from service and remitting the matter to the appellate authority, namely, the Inspector General of Police to consider the question of imposition of appropriate punishment, short of removal from service, commensurate with the gravity of the proven misconduct of the respondent. A court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the Appellate Authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. While considering the question of proportionality of sentence imposed on a delinquent at the conclusion of departmental inquiry, the court should also take into consideration, the mental set up of the delinquent, the type of duty to be performed by him and similar relevant circumstances which go into the decision making process. If the charged employee holds the position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct, in such cases has to be dealt with iron hands. The respondent belonged to a disciplined force. He was supposed to carry out instructions given to him by his superior. Not only he flouted the instructions but conducted himself in such a manner that he caused loss of part of pay to be deposited with the exchequer and loss of service revolver with ammunition which could be misused. When a statute gives discretion to the administrator to take a decision, the scope of judicial review would remain limited. The proved charges clearly established that the respondent, who was a police officer failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the exchequer and society. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the Appellate Authority should be directed to reconsider the question of imposition of penalty. The High Court in this case, has not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the Appellate Authority to impose any other punishment short of removal. By fettering the discretion of the Appellate Authority to impose appropriate punishment for serious misconducts committed by the respondent, the High Court totally misdirected itself while exercising jurisdiction under Article 226. Judged in this background, the conclusion of the Division Bench of the High Court cannot be regarded as proper at all. The High Court has interfered with the punishment imposed by the competent authority in a casual manner and, therefore, the appeal will have to be accepted.10. For the foregoing reasons the appeal succeeds. | 1[ds]8. This Court has heard the learned counsel for the parties at length and in great detail. This Court has also considered the documents forming part of the instant appeal. The competent authority as well as the first appellate authority have concluded that gave misconduct committed by the respondent is satisfactorily proved. The said finding is upheld by the learned Single Judge of the Gauhati High Court while deciding the petition filed by the respondent under Article 226 of the Constitution. Onof evidence adduced, during the course of the departmental inquiry initiated against the respondent, the Division Bench has also recorded a finding of fact that the respondent had committed serious misconduct. The said finding is a finding of fact which is not liable to be interfered with in the instantis an admitted position that the respondent was instructed to come back to Bn headquarters by the vehicle of the department along with other police personnel but the respondent disobeyed the instructions and traveled to Bn headquarters in a bus wherein not only he lost cash of Rs.17,314/but also his service revolver with 12 rounds of ammunition. Under the circumstances the question arises whetherthe Division Bench of the High Court was justified in setting aside the order of removal of the respondent from service and remitting the matter to the appellate authority, namely, the Inspector General of Police to consider the question of imposition of appropriate punishment, short of removal from service, commensurate with the gravity of the proven misconduct of the respondent.A court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the Appellate Authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. While considering the question of proportionality of sentence imposed on a delinquent at the conclusion of departmental inquiry, the court should also take into consideration, the mental set up of the delinquent, the type of duty to be performed by him and similar relevant circumstances which go into the decision making process. If the charged employee holds the position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct, in such cases has to be dealt with iron hands. The respondent belonged to a disciplined force. He was supposed to carry out instructions given to him by his superior. Not only he flouted the instructions but conducted himself in such a manner that he caused loss of part of pay to be deposited with the exchequer and loss of service revolver with ammunition which could be misused. When a statute gives discretion to the administrator to take a decision, the scope of judicial review would remain limited. The proved charges clearly established that the respondent, who was a police officer failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the exchequer and society. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the Appellate Authority should be directed to reconsider the question of imposition of penalty. The High Court in this case, has not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the Appellate Authority to impose any other punishment short of removal. By fettering the discretion of the Appellate Authority to impose appropriate punishment for serious misconducts committed by the respondent, the High Court totally misdirected itself while exercising jurisdiction under Article 226. Judged in this background, the conclusion of the Division Bench of the High Court cannot be regarded as proper at all. The High Court has interfered with the punishment imposed by the competent authority in a casual manner and, therefore, the appeal will have to be accepted.10. For the foregoing reasons the appeal succeeds. | 1 | 2,453 | 884 | ### 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:
has set aside the order removing the respondent from service and remitted the matter to the appellate authority, namely, the Inspector General of Police to consider and inflict appropriate punishment, short of removal from service, commensurate with the gravity of the proven misconduct of the respondent, by the impugned judgment, giving rise to the instant appeal. 8. This Court has heard the learned counsel for the parties at length and in great detail. This Court has also considered the documents forming part of the instant appeal. The competent authority as well as the first appellate authority have concluded that gave misconduct committed by the respondent is satisfactorily proved. The said finding is upheld by the learned Single Judge of the Gauhati High Court while deciding the petition filed by the respondent under Article 226 of the Constitution. On re-appreciation of evidence adduced, during the course of the departmental inquiry initiated against the respondent, the Division Bench has also recorded a finding of fact that the respondent had committed serious misconduct. The said finding is a finding of fact which is not liable to be interfered with in the instant appeal. 9. The next question which falls for consideration is whether the competent authority was justified in removing the respondent from service and whether the Division Bench of the High Court was right in remitting the matter to the Appellate Authority for passing appropriate order of punishment short of removal. The record would indicate that the respondent was a senior police officer. He was instructed by his Commandment to go to Shillong to disburse the pay in a vehicle belonging to the department and along with him another police officer was also deputed for safe carriage of pay to be disbursed to the Bn personal posted at Shillong. Further, the respondent was issued 0.38 bore revolver with 12 rounds. It is an admitted position that the respondent was instructed to come back to Bn headquarters by the vehicle of the department along with other police personnel but the respondent disobeyed the instructions and traveled to Bn headquarters in a bus wherein not only he lost cash of Rs.17,314/- but also his service revolver with 12 rounds of ammunition. Under the circumstances the question arises whether the Division Bench of the High Court was justified in setting aside the order of removal of the respondent from service and remitting the matter to the appellate authority, namely, the Inspector General of Police to consider the question of imposition of appropriate punishment, short of removal from service, commensurate with the gravity of the proven misconduct of the respondent. A court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the Appellate Authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. While considering the question of proportionality of sentence imposed on a delinquent at the conclusion of departmental inquiry, the court should also take into consideration, the mental set up of the delinquent, the type of duty to be performed by him and similar relevant circumstances which go into the decision making process. If the charged employee holds the position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct, in such cases has to be dealt with iron hands. The respondent belonged to a disciplined force. He was supposed to carry out instructions given to him by his superior. Not only he flouted the instructions but conducted himself in such a manner that he caused loss of part of pay to be deposited with the exchequer and loss of service revolver with ammunition which could be misused. When a statute gives discretion to the administrator to take a decision, the scope of judicial review would remain limited. The proved charges clearly established that the respondent, who was a police officer failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the exchequer and society. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the Appellate Authority should be directed to reconsider the question of imposition of penalty. The High Court in this case, has not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the Appellate Authority to impose any other punishment short of removal. By fettering the discretion of the Appellate Authority to impose appropriate punishment for serious misconducts committed by the respondent, the High Court totally misdirected itself while exercising jurisdiction under Article 226. Judged in this background, the conclusion of the Division Bench of the High Court cannot be regarded as proper at all. The High Court has interfered with the punishment imposed by the competent authority in a casual manner and, therefore, the appeal will have to be accepted.10. For the foregoing reasons the appeal succeeds.
### Response:
1
### Explanation:
8. This Court has heard the learned counsel for the parties at length and in great detail. This Court has also considered the documents forming part of the instant appeal. The competent authority as well as the first appellate authority have concluded that gave misconduct committed by the respondent is satisfactorily proved. The said finding is upheld by the learned Single Judge of the Gauhati High Court while deciding the petition filed by the respondent under Article 226 of the Constitution. Onof evidence adduced, during the course of the departmental inquiry initiated against the respondent, the Division Bench has also recorded a finding of fact that the respondent had committed serious misconduct. The said finding is a finding of fact which is not liable to be interfered with in the instantis an admitted position that the respondent was instructed to come back to Bn headquarters by the vehicle of the department along with other police personnel but the respondent disobeyed the instructions and traveled to Bn headquarters in a bus wherein not only he lost cash of Rs.17,314/but also his service revolver with 12 rounds of ammunition. Under the circumstances the question arises whetherthe Division Bench of the High Court was justified in setting aside the order of removal of the respondent from service and remitting the matter to the appellate authority, namely, the Inspector General of Police to consider the question of imposition of appropriate punishment, short of removal from service, commensurate with the gravity of the proven misconduct of the respondent.A court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the Appellate Authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. While considering the question of proportionality of sentence imposed on a delinquent at the conclusion of departmental inquiry, the court should also take into consideration, the mental set up of the delinquent, the type of duty to be performed by him and similar relevant circumstances which go into the decision making process. If the charged employee holds the position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct, in such cases has to be dealt with iron hands. The respondent belonged to a disciplined force. He was supposed to carry out instructions given to him by his superior. Not only he flouted the instructions but conducted himself in such a manner that he caused loss of part of pay to be deposited with the exchequer and loss of service revolver with ammunition which could be misused. When a statute gives discretion to the administrator to take a decision, the scope of judicial review would remain limited. The proved charges clearly established that the respondent, who was a police officer failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the exchequer and society. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the Appellate Authority should be directed to reconsider the question of imposition of penalty. The High Court in this case, has not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the Appellate Authority to impose any other punishment short of removal. By fettering the discretion of the Appellate Authority to impose appropriate punishment for serious misconducts committed by the respondent, the High Court totally misdirected itself while exercising jurisdiction under Article 226. Judged in this background, the conclusion of the Division Bench of the High Court cannot be regarded as proper at all. The High Court has interfered with the punishment imposed by the competent authority in a casual manner and, therefore, the appeal will have to be accepted.10. For the foregoing reasons the appeal succeeds.
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The Indian Hume Pipe Co. Ltd Vs. The State Of Rajasthan And Ors. Finance Department Secretary To Government Of Rajasthan | be seen and further that such a contract was treated as not divisible. It is for this reason in BSNL and Larsen and Toubro cases, this Court specifically pointed out that Kame case would not provide an answer to the issue at hand. On the contrary, the legal position stands settled by the Constitution Bench of this Court in Kone Elevator India (P) Ltd. v. State of T.N. Following observations in that case are apt for this purpose: (SCC p. 31, para 44) ?44. On the basis of the aforesaid elucidation, it has been deduced that a transfer of property in goods under clause (29-A)(b) of Article 366 is deemed to be a sale of goods involved in the execution of a works contract by the person making the transfer and the purchase of those goods by the person to whom such transfer is made. One thing is significant to note that in Larsen and Toubro, it has been stated that after the constitutional amendment, the narrow meaning given to the term ‘works contract? in Gannon Dunkerley (1) no longer survives at present. It has been observed in the said case that: (Larsen and Toubro case, SCC p. 750, para 72) ‘72. … even if in a contract, besides the obligations of supply of goods and materials and performance of labour and services, some additional obligations are imposed, such contract does not cease to be works contract, [for] the additional obligations in the contract would not alter the nature of the contract so long as the contract provides for a contract for works and satisfies the primary description of works contract.? It has been further held that: (Larsen and Toubro case , SCC p. 750, para 72) ‘72. … Once the characteristics or elements of works contract are satisfied in a contract then irrespective of additional obligations, such contract would be covered by the term ?works contract? [because] nothing in Article 366(29-A)(b) limits the term ?works contract? to contract for labour and service only.??19) The history of legislative and constitutional amendment pertaining to works contract is well known, which has been stated and restated by this Court in number of cases. The entire position is summarised in Pro Lab case as well and, therefore, it is not necessary to burden this judgment by repeating the same. Purpose would be served by reproducing paragraph 20 of the said judgment wherein the legal position is summarised as follows:?20. To sum up, it follows from the reading of the aforesaid judgment in Larsen and Toubro case that after insertion of clause (29-A) in Article 366, the works contract which was indivisible one by legal fiction, altered into a contract, which is permitted to be bifurcated into two: one for ?sale of goods? and the other for ?services?, thereby making goods component of the contract exigible to sales tax. Further, while going into this exercise of divisibility, dominant intention behind such a contract, namely, whether it was for sale of goods or for services, is rendered otiose or immaterial. It follows, as a sequitur, that by virtue of clause (29-A) of Article 366, the State Legislature is now empowered to segregate the goods part of the works contract and impose sales tax thereupon. It may be noted that Entry 54 of List II of Schedule VII to the Constitution of India empowers the State Legislature to enact a law taxing sale of goods. Sales tax, being a subject-matter of the State List, the State Legislature has the competency to legislate over the subject.?20) It clearly follows from the above that by virtue of the Forty Sixth Amendment to the Constitution, a single and indivisible contract is now brought on par with a contract containing two separate agreements. It has also now become a settled position in law that the State Governments have power to levy sales tax on value of material in execution of the works contract. This position is brought about by creating friction whereby the transfer of moveable property in a works contract is deemed to be sale, even though it may not be well within the meaning of Sale of Goods Act. In Larsen and Toubro case it was further held that the value of gods which can constitute a measure of levy of the tax has to be the value of goods at the time of incorporation of the gods in the works even though property in goods passes later. Taxing the sale of goods element in a works contract is permissible even after incorporation of gods, provided tax is directed to the value of goods at the time of incorporation and does not purport to tax the transfer of immovable property (refer to paragraph 124). 21) In the present case, the assessing authority, after scrutinising the agreement in question between the assessee and the State Government, returned a finding of fact that manufacture and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. do not fall within the scopes of buildings, bridges, dams, roads and canals. It was also held that the agreement was clearly in two parts, namely, (i) sale and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. and (ii) the remaining part being supply of labour and services. These findings are upheld not only by the appellate authority but also by the Single Judge of the High Court as well as the Division Bench of the High Court. It may also be mentioned at this stage that the assessee has, in fact, admitted that it had no grievance against the finding that supply of pipes was nothing but the sale of pipes involved in the execution of the contracts and, therefore, it was excisable to sales tax. In view of the findings recorded by the authorities below, this element of sale of goods shall apply to jointing material specials, valves, anchor blocks, etc. as well. Thus, we are unable to find any fault with the impugned judgment of the High Court. | 0[ds]7) We may mention that the State Government also issued notification dated March 29, 2001 wherein laying of pipeline with material has been categorized as Works contract and because of this the assessee?s work, after the said notification, is considered as Works contract and has been granted exemption from that date. We are, thus, concerned with the execution of this Works contract prior to the yearIn the first instance, it may be mentioned that the High Court has examined the nature of contract in question and has come to the conclusion that as per the terms and conditions thereof, substantial part of the value of the contract pertained to the cost of PSC pipes, joining material specials, valves, etc. which were manufactured by the assessee in its factory at Kekri and were not supplied to the State Government. The High Court, thus, affirmed the findings of the authorities below on this aspect and concluded that the findings with regard to sale of pipes involved in the works contract are findings of facts which did not require anyWe are inclined to agree with the aforesaid approach of the High Court, namely, when it is found on facts that the works contract executed by the assessee is a divisible contract, the argument of the assessee that it is to be treated as one single and composite contract needs to be rejected on the facts of this case. On these facts, we are also of the opinion that Kone Elevator India Private Limited is notIn the instant case, there is no dispute that the contract in question was a works contract. The issue is altogether different, namely, that of divisibility. It may be mentioned that before Article 366(29A) of the Constitution was amended with effect from March 01, 1983, the test applicable was ‘dominant nature test? or ‘degree of intention? or ‘overwhelming component test? or ‘degree of labour and serviceIt clearly follows from the above that by virtue of the Forty Sixth Amendment to the Constitution, a single and indivisible contract is now brought on par with a contract containing two separate agreements. It has also now become a settled position in law that the State Governments have power to levy sales tax on value of material in execution of the works contract. This position is brought about by creating friction whereby the transfer of moveable property in a works contract is deemed to be sale, even though it may not be well within the meaning of Sale of GoodsIn the present case, the assessing authority, after scrutinising the agreement in question between the assessee and the State Government, returned a finding of fact that manufacture and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. do not fall within the scopes of buildings, bridges, dams, roads and canals. It was also held that the agreement was clearly in two parts, namely, (i) sale and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. and (ii) the remaining part being supply of labour and services. These findings are upheld not only by the appellate authority but also by the Single Judge of the High Court as well as the Division Bench of the High Court. It may also be mentioned at this stage that the assessee has, in fact, admitted that it had no grievance against the finding that supply of pipes was nothing but the sale of pipes involved in the execution of the contracts and, therefore, it was excisable to sales tax. In view of the findings recorded by the authorities below, this element of sale of goods shall apply to jointing material specials, valves, anchor blocks, etc. as well. Thus, we are unable to find any fault with the impugned judgment of the High Court. | 0 | 4,361 | 715 | ### 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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be seen and further that such a contract was treated as not divisible. It is for this reason in BSNL and Larsen and Toubro cases, this Court specifically pointed out that Kame case would not provide an answer to the issue at hand. On the contrary, the legal position stands settled by the Constitution Bench of this Court in Kone Elevator India (P) Ltd. v. State of T.N. Following observations in that case are apt for this purpose: (SCC p. 31, para 44) ?44. On the basis of the aforesaid elucidation, it has been deduced that a transfer of property in goods under clause (29-A)(b) of Article 366 is deemed to be a sale of goods involved in the execution of a works contract by the person making the transfer and the purchase of those goods by the person to whom such transfer is made. One thing is significant to note that in Larsen and Toubro, it has been stated that after the constitutional amendment, the narrow meaning given to the term ‘works contract? in Gannon Dunkerley (1) no longer survives at present. It has been observed in the said case that: (Larsen and Toubro case, SCC p. 750, para 72) ‘72. … even if in a contract, besides the obligations of supply of goods and materials and performance of labour and services, some additional obligations are imposed, such contract does not cease to be works contract, [for] the additional obligations in the contract would not alter the nature of the contract so long as the contract provides for a contract for works and satisfies the primary description of works contract.? It has been further held that: (Larsen and Toubro case , SCC p. 750, para 72) ‘72. … Once the characteristics or elements of works contract are satisfied in a contract then irrespective of additional obligations, such contract would be covered by the term ?works contract? [because] nothing in Article 366(29-A)(b) limits the term ?works contract? to contract for labour and service only.??19) The history of legislative and constitutional amendment pertaining to works contract is well known, which has been stated and restated by this Court in number of cases. The entire position is summarised in Pro Lab case as well and, therefore, it is not necessary to burden this judgment by repeating the same. Purpose would be served by reproducing paragraph 20 of the said judgment wherein the legal position is summarised as follows:?20. To sum up, it follows from the reading of the aforesaid judgment in Larsen and Toubro case that after insertion of clause (29-A) in Article 366, the works contract which was indivisible one by legal fiction, altered into a contract, which is permitted to be bifurcated into two: one for ?sale of goods? and the other for ?services?, thereby making goods component of the contract exigible to sales tax. Further, while going into this exercise of divisibility, dominant intention behind such a contract, namely, whether it was for sale of goods or for services, is rendered otiose or immaterial. It follows, as a sequitur, that by virtue of clause (29-A) of Article 366, the State Legislature is now empowered to segregate the goods part of the works contract and impose sales tax thereupon. It may be noted that Entry 54 of List II of Schedule VII to the Constitution of India empowers the State Legislature to enact a law taxing sale of goods. Sales tax, being a subject-matter of the State List, the State Legislature has the competency to legislate over the subject.?20) It clearly follows from the above that by virtue of the Forty Sixth Amendment to the Constitution, a single and indivisible contract is now brought on par with a contract containing two separate agreements. It has also now become a settled position in law that the State Governments have power to levy sales tax on value of material in execution of the works contract. This position is brought about by creating friction whereby the transfer of moveable property in a works contract is deemed to be sale, even though it may not be well within the meaning of Sale of Goods Act. In Larsen and Toubro case it was further held that the value of gods which can constitute a measure of levy of the tax has to be the value of goods at the time of incorporation of the gods in the works even though property in goods passes later. Taxing the sale of goods element in a works contract is permissible even after incorporation of gods, provided tax is directed to the value of goods at the time of incorporation and does not purport to tax the transfer of immovable property (refer to paragraph 124). 21) In the present case, the assessing authority, after scrutinising the agreement in question between the assessee and the State Government, returned a finding of fact that manufacture and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. do not fall within the scopes of buildings, bridges, dams, roads and canals. It was also held that the agreement was clearly in two parts, namely, (i) sale and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. and (ii) the remaining part being supply of labour and services. These findings are upheld not only by the appellate authority but also by the Single Judge of the High Court as well as the Division Bench of the High Court. It may also be mentioned at this stage that the assessee has, in fact, admitted that it had no grievance against the finding that supply of pipes was nothing but the sale of pipes involved in the execution of the contracts and, therefore, it was excisable to sales tax. In view of the findings recorded by the authorities below, this element of sale of goods shall apply to jointing material specials, valves, anchor blocks, etc. as well. Thus, we are unable to find any fault with the impugned judgment of the High Court.
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0
### Explanation:
7) We may mention that the State Government also issued notification dated March 29, 2001 wherein laying of pipeline with material has been categorized as Works contract and because of this the assessee?s work, after the said notification, is considered as Works contract and has been granted exemption from that date. We are, thus, concerned with the execution of this Works contract prior to the yearIn the first instance, it may be mentioned that the High Court has examined the nature of contract in question and has come to the conclusion that as per the terms and conditions thereof, substantial part of the value of the contract pertained to the cost of PSC pipes, joining material specials, valves, etc. which were manufactured by the assessee in its factory at Kekri and were not supplied to the State Government. The High Court, thus, affirmed the findings of the authorities below on this aspect and concluded that the findings with regard to sale of pipes involved in the works contract are findings of facts which did not require anyWe are inclined to agree with the aforesaid approach of the High Court, namely, when it is found on facts that the works contract executed by the assessee is a divisible contract, the argument of the assessee that it is to be treated as one single and composite contract needs to be rejected on the facts of this case. On these facts, we are also of the opinion that Kone Elevator India Private Limited is notIn the instant case, there is no dispute that the contract in question was a works contract. The issue is altogether different, namely, that of divisibility. It may be mentioned that before Article 366(29A) of the Constitution was amended with effect from March 01, 1983, the test applicable was ‘dominant nature test? or ‘degree of intention? or ‘overwhelming component test? or ‘degree of labour and serviceIt clearly follows from the above that by virtue of the Forty Sixth Amendment to the Constitution, a single and indivisible contract is now brought on par with a contract containing two separate agreements. It has also now become a settled position in law that the State Governments have power to levy sales tax on value of material in execution of the works contract. This position is brought about by creating friction whereby the transfer of moveable property in a works contract is deemed to be sale, even though it may not be well within the meaning of Sale of GoodsIn the present case, the assessing authority, after scrutinising the agreement in question between the assessee and the State Government, returned a finding of fact that manufacture and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. do not fall within the scopes of buildings, bridges, dams, roads and canals. It was also held that the agreement was clearly in two parts, namely, (i) sale and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. and (ii) the remaining part being supply of labour and services. These findings are upheld not only by the appellate authority but also by the Single Judge of the High Court as well as the Division Bench of the High Court. It may also be mentioned at this stage that the assessee has, in fact, admitted that it had no grievance against the finding that supply of pipes was nothing but the sale of pipes involved in the execution of the contracts and, therefore, it was excisable to sales tax. In view of the findings recorded by the authorities below, this element of sale of goods shall apply to jointing material specials, valves, anchor blocks, etc. as well. Thus, we are unable to find any fault with the impugned judgment of the High Court.
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M/s. Girdhari Lal Nannelal Vs. Sales Tax Commissioner, M.P | 1, 1950, to October 31, 1951, the assessing authority took into account a sum of Rs. 10, 000 in respect of which there was a cash-credit entry in the account books of the appellant in the name of the wife of Kanji Deosi, partner of the appellant. The assessing authority treated the sum of Rs. 10, 000 as income of the appellant out of concealed sales. Adopting ten per cent. as the rate of profit, the turnover in this regard was determined to be rupees one lakh. The above amount of rupees one lakh was added to the turnover in computing the gross turnover of the appellant. In doing so the assessing authority rejected the plea of the assessee that rupees ten thousand represented the amount gifted by Kanji Deosi to his wife before marriage in order to obtain her consent to the second marriage in 1941The assessee-firm went up in appeal and again raised the contention that the amount of rupees ten thousand had been given by Kanji Deosi, partner of the appellant-firm, to his wife to obtain her consent for his second marriage in 1941. It was stated that the above amount had been lying with her, and had been deposited by her, during the year in question with the firm. The appellate authority rejected this explanation. The same view was taken in second appeal by the Board of Revenue. At the instance of the assessee, the two questions reproduced above, along with some other questions, were referred to the High Court. 3. The High Court, while answering the above-mentioned questions against the assessee-appellant, referred to the fact that the explanation offered by the assessee in respect of the amount of rupees ten thousand was not reasonable. It was accordingly inferred that the amount reflected profits of the business of the assessee. Those profits, in the opinion of the High Court, arose out of the sales not shown in the account books. 4. In appeal before us, Mr. Sobhagmal Jain on behalf of the assessee-appellant has contended that there is nothing to show that the amount of rupees ten thousand which had been entered in the account books of the assessee-firm in the name of the wife of one of the partners of the appellant-firm, represented the income of the appellant-firm. There was also nothing to show, according to learned counsel, that that amount represented the income realised as a result of sale transactions entered into by the appellant-firm. The mere fact that there was no satisfactory explanation regarding the source of that money would not lead to the conclusion that that amount represented the income of the appellant-firm derived as a result of undisclosed sale transactions. The above contentions have been controverted by Mr. Ram Panjwani on behalf of the State. He has laid particular stress upon the absence of reasonable explanation on the part of the appellant-firm as well as its partner, Kanji Deosi, and his wife regarding the source of that amountWe have given the matter our earnest consideration and are of the opinion that the judgment of the High Court cannot be sustained in so far as it has answered question (1)(a) against the assessee-appellant. It would appear from the resume of facts that an entry was made in the account books of the appellant showing a credit of Rs. 10, 000 in the name of the wife of Kanji Deosi, partner of the appellant-firm. In order to impose liability upon the appellant-firm for payment of sales tax by treating that amount as profits arising out of undisclosed sales of the appellant, two things had to be established, (i) the amount of Rs. 10, 000 was the income of the appellant-firm and not of Kanji Deosi or his wife, and (ii) that the said amount represented profits from income realised as a result of transactions liable to sales tax and not from other sources. The onus to prove the above two ingredients was upon the department. The fact that the appellant-firm or Kanji Deosi and his wife failed to adduce satisfactory or reasonable explanation with regard to the source of Rs. 10, 000 would not in the absence of some further material have the effect of discharging that onus and proving both the ingredients. 5. The approach which may be permissible for imposing liability for payment of income-tax in respect of the unexplained acquisition of money may not hold good in sales tax cases. For the purpose of income-tax it may in appropriate cases be permissible to treat unexplained acquisition of money by the assessee to be assessees income from undisclosed sources and assess him as such. As against that, for the purpose of levy of sales tax, it would be necessary not only to show that the source of money has not been explained but also to show the existence of some material to indicate that the acquisition of money by the assessee had resulted from transactions liable to sales tax and not from other sources. Further, where, as in a case like the present, a credit entry in respect of Rs. 10, 000 stands in the name of the wife of the partner, no presumption arises that the said amount represents the income of the firm and not of the partner or his wife. The fact that neither the assessee-firm nor its partner or his wife adduced satisfactory material to show the source of that money would not, in the absence of anything more, lead to the inference that the said sum represents the income of the firm accruing from undisclosed sale transactions. It was, in our opinion, necessary to produce more material in order to connect the amount of Rs. 10, 000 with the income of the assessee-firm as a result of sales. In the absence of such material, the mere absence of explanation regarding the source of Rs. 10, 000 would not justify the conclusion that the sum in dispute represents profits of the firm derived from undisclosed sales. 6. | 1[ds]The approach which may be permissible for imposing liability for payment ofx in respect of the unexplained acquisition of money may not hold good in sales tax cases. For the purpose ofx it may in appropriate cases be permissible to treat unexplained acquisition of money by the assessee to be assessees income from undisclosed sources and assess him as such. As against that, for the purpose of levy of sales tax, it would be necessary not only to show that the source of money has not been explained but also to show the existence of some material to indicate that the acquisition of money by the assessee had resulted from transactions liable to sales tax and not from other sources. Further, where, as in a case like the present, a credit entry in respect of Rs. 10, 000 stands in the name of the wife of the partner, no presumption arises that the said amount represents the income of the firm and not of the partner or his wife. The fact that neither them nor its partner or his wife adduced satisfactory material to show the source of that money would not, in the absence of anything more, lead to the inference that the said sum represents the income of the firm accruing from undisclosed sale transactions. It was, in our opinion, necessary to produce more material in order to connect the amount of Rs. 10, 000 with the income of them as a result of sales. In the absence of such material, the mere absence of explanation regarding the source of Rs. 10, 000 would not justify the conclusion that the sum in dispute represents profits of the firm derived from undisclosed sales | 1 | 1,387 | 311 | ### Instruction:
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1, 1950, to October 31, 1951, the assessing authority took into account a sum of Rs. 10, 000 in respect of which there was a cash-credit entry in the account books of the appellant in the name of the wife of Kanji Deosi, partner of the appellant. The assessing authority treated the sum of Rs. 10, 000 as income of the appellant out of concealed sales. Adopting ten per cent. as the rate of profit, the turnover in this regard was determined to be rupees one lakh. The above amount of rupees one lakh was added to the turnover in computing the gross turnover of the appellant. In doing so the assessing authority rejected the plea of the assessee that rupees ten thousand represented the amount gifted by Kanji Deosi to his wife before marriage in order to obtain her consent to the second marriage in 1941The assessee-firm went up in appeal and again raised the contention that the amount of rupees ten thousand had been given by Kanji Deosi, partner of the appellant-firm, to his wife to obtain her consent for his second marriage in 1941. It was stated that the above amount had been lying with her, and had been deposited by her, during the year in question with the firm. The appellate authority rejected this explanation. The same view was taken in second appeal by the Board of Revenue. At the instance of the assessee, the two questions reproduced above, along with some other questions, were referred to the High Court. 3. The High Court, while answering the above-mentioned questions against the assessee-appellant, referred to the fact that the explanation offered by the assessee in respect of the amount of rupees ten thousand was not reasonable. It was accordingly inferred that the amount reflected profits of the business of the assessee. Those profits, in the opinion of the High Court, arose out of the sales not shown in the account books. 4. In appeal before us, Mr. Sobhagmal Jain on behalf of the assessee-appellant has contended that there is nothing to show that the amount of rupees ten thousand which had been entered in the account books of the assessee-firm in the name of the wife of one of the partners of the appellant-firm, represented the income of the appellant-firm. There was also nothing to show, according to learned counsel, that that amount represented the income realised as a result of sale transactions entered into by the appellant-firm. The mere fact that there was no satisfactory explanation regarding the source of that money would not lead to the conclusion that that amount represented the income of the appellant-firm derived as a result of undisclosed sale transactions. The above contentions have been controverted by Mr. Ram Panjwani on behalf of the State. He has laid particular stress upon the absence of reasonable explanation on the part of the appellant-firm as well as its partner, Kanji Deosi, and his wife regarding the source of that amountWe have given the matter our earnest consideration and are of the opinion that the judgment of the High Court cannot be sustained in so far as it has answered question (1)(a) against the assessee-appellant. It would appear from the resume of facts that an entry was made in the account books of the appellant showing a credit of Rs. 10, 000 in the name of the wife of Kanji Deosi, partner of the appellant-firm. In order to impose liability upon the appellant-firm for payment of sales tax by treating that amount as profits arising out of undisclosed sales of the appellant, two things had to be established, (i) the amount of Rs. 10, 000 was the income of the appellant-firm and not of Kanji Deosi or his wife, and (ii) that the said amount represented profits from income realised as a result of transactions liable to sales tax and not from other sources. The onus to prove the above two ingredients was upon the department. The fact that the appellant-firm or Kanji Deosi and his wife failed to adduce satisfactory or reasonable explanation with regard to the source of Rs. 10, 000 would not in the absence of some further material have the effect of discharging that onus and proving both the ingredients. 5. The approach which may be permissible for imposing liability for payment of income-tax in respect of the unexplained acquisition of money may not hold good in sales tax cases. For the purpose of income-tax it may in appropriate cases be permissible to treat unexplained acquisition of money by the assessee to be assessees income from undisclosed sources and assess him as such. As against that, for the purpose of levy of sales tax, it would be necessary not only to show that the source of money has not been explained but also to show the existence of some material to indicate that the acquisition of money by the assessee had resulted from transactions liable to sales tax and not from other sources. Further, where, as in a case like the present, a credit entry in respect of Rs. 10, 000 stands in the name of the wife of the partner, no presumption arises that the said amount represents the income of the firm and not of the partner or his wife. The fact that neither the assessee-firm nor its partner or his wife adduced satisfactory material to show the source of that money would not, in the absence of anything more, lead to the inference that the said sum represents the income of the firm accruing from undisclosed sale transactions. It was, in our opinion, necessary to produce more material in order to connect the amount of Rs. 10, 000 with the income of the assessee-firm as a result of sales. In the absence of such material, the mere absence of explanation regarding the source of Rs. 10, 000 would not justify the conclusion that the sum in dispute represents profits of the firm derived from undisclosed sales. 6.
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### Explanation:
The approach which may be permissible for imposing liability for payment ofx in respect of the unexplained acquisition of money may not hold good in sales tax cases. For the purpose ofx it may in appropriate cases be permissible to treat unexplained acquisition of money by the assessee to be assessees income from undisclosed sources and assess him as such. As against that, for the purpose of levy of sales tax, it would be necessary not only to show that the source of money has not been explained but also to show the existence of some material to indicate that the acquisition of money by the assessee had resulted from transactions liable to sales tax and not from other sources. Further, where, as in a case like the present, a credit entry in respect of Rs. 10, 000 stands in the name of the wife of the partner, no presumption arises that the said amount represents the income of the firm and not of the partner or his wife. The fact that neither them nor its partner or his wife adduced satisfactory material to show the source of that money would not, in the absence of anything more, lead to the inference that the said sum represents the income of the firm accruing from undisclosed sale transactions. It was, in our opinion, necessary to produce more material in order to connect the amount of Rs. 10, 000 with the income of them as a result of sales. In the absence of such material, the mere absence of explanation regarding the source of Rs. 10, 000 would not justify the conclusion that the sum in dispute represents profits of the firm derived from undisclosed sales
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M/s. Banarsi Dass Chadha and Bros Vs. L.T. Governor, Delhi Admn. and Others | ([1976] 3 S.C.R. 869.) where the learned judge said (at p. 874):"It was urged that the sand and gravel are deposited on the surface of the land and not under the surface of the soil and therefore they cannot be called minerals and equally so, any operation by which they are collected or gathered cannot properly be called a minerals operation. It is in the first place wrong to assume that mines and minerals must always be sub-soil and that there can be no minerals on the surface of the earth. Such an assumption is contrary to informed experience. In any case, the definition of mining operations and mi nor minerals in section 3(d) and (e) of the Act of 1957 and Rule 2(S) and (7) of the Rules of 1963 shows that minerals need not be subterranean and that mining operations cover every operation undertaken for the purpose of "Winning" any minor mineral. "Winning" does not imply a hazardous or perilous activity. The word simply means extracting a mineral" and is used generally to indicate, any activity by which a mineral is secured. "Extracting" in turn means drawing out or obtaining. A tooth is extracted as much as the fruit juice and as much as a mineral. Only that the effort varies from tooth to tooth, from fruit to fruit and from mineral t o mineral". We may also refer to Northern Pacific Railway Company v. John A. Sodrberg(47 L. Fd.575) where the Supreme Court of United States observed as follows (at page 581):"The word mineral is used in so many senses, dependant upon the context, that the ordinary definitions of the dictionary throw but little light upon its significance in a given case. Thus, the scientific division of all matter into the animal, vegetable, or mineral kingdom would be absurd as applied to a grant of lands, since all lands belong to the mineral kingdom, and therefore, could not be excepted from the grant without being destructive of it. Upon the other hand, a definition which would confine it to the precious metals-gold and silver-would so limit its application as to destroy at once half the value of the exception. Equally subversive of the grant would be the definition of minerals found in the Century Dictionary: as "any constituent of the earths crust" ; and that of Beinbridge on Mines: "All the Substances stances that now form, or which once formed, a part of the solid body of the earth". Nor do we approximate much more closely to the meaning of the word by treating minerals as substances which are ""mined"" as distinguished from those are "quarried", since many valuable deposits of g old, copper, iron, and coal lie upon or near the surface of the earth, and some of the most valuable building stone, such for instance, as the Caen stone in France, is excavated from mines running far beneath the surf ace. This distinction between under ground mines and open workings was expressly repudiated in Midland C. v. Haunchwood Brick &Tile Co. (L.R 20 Ch. Div. 552) and in Hext v. Gill (L.R. 7 Ch. 699)" 4. The Supreme Court of United States also referred to several English cases where stone for road making or paving was held to be minerals as also granite, sandstone, flint stone, gravel, marble, fire clay, brick clay, and the like. It is clear that the word miner al has no fixed but a contextual connotation. 5. The learned Counsel for the appellant invited our attention to the decision of the Court of Appeal in Todd Birleston and Co. v. The North Eastern Railway Co. ([1903] I K.B. 603) and to Stouds Judicial Dictionary to urge that clay, brick-earth and the like have sometimes been held not to be minerals by English Courts. As we said earlier the word mineral is an elastic word whose meaning depends upon the setting in which it is used. For instance, in the case cited, the question was whether clay forming the surface or subsoil, and constituting the "land" compulsorily taken for the purposes of a railway, was not a mineral WITH the meaning of Sections 77, 78 or 79 of the Railway Clauses Consolidation Act. The answer was that clay was not a mineral for the purposes of the Railway Clauses Consolidation Act. Any other conclusion, in the context of the Act, would have led to the absurd result that the original owner whose land had been taken would be entitled to dig and take away the clay from the land on which the Railway was constructed, thus defeating the very object of the compulsory taking. On the other hand, as noticed by the Supreme Court of the United States, in several English cases clay, gravel, sand, stone etc. has been held to be minerals. That is why we say the word mineral has no definite meaning but has a variety of meanings, depending on the context of its use. In the context of the Mines and Minerals (Regulation &Development) Act, we have no` doubt that the word mineral is of sufficient amplitude to include brick-earth. As already observed y us, if the expression minor mineral as defined in the Act includes ordinary clay and ordinary sand. there is no earthly reason why brick-earth should not be held to be any other mineral which may be declared as minor mineral.. We do not think it necessary to pursue the matter further except to say that this was The view taken in Laddu Mal v. State of Bihar (A.I.R 1965 Patna 491) Amar Singh Modilal v. State of Haryana(A.I.R 1972 Punj. & Har. 356) and Sharma &Co. v. State of U.P.(A.I.R.. 1975 All. 86.). We do not agree with the view of the Calcutta High Court in State of West Bengal v. Jagadamba Prasad (A.I.R.. 1969 Cal. 2XI.) that because speaks of ordinary earth as a mineral it is not a minor mineral as defined in the Mines and Minerals (Regulation & Development) Act. 6. | 0[ds]We agree with the learned Counsel that a substance must first be a mineral before it can be notified as a minor mineral pursuant to the power vested in the Central Government under Section 3(e) of the Act. The question, therefore, is whetherh is a mineral. The expression "Minor Mineral" as defined in Section 3(e) includes ordinary clay and ordinary sand. If the expression "minor mineral" as defined in Section 3(e) of the Act includes ordinary clay and `ordinary sand, there is no reason why earth used for the purpose A of making bricks should not be comprehended within the meaning of the word "any other mineral" which may be declared as a "minor mineral" by the Government. The word "mineral" is not a term of art. It is a word of common parlance, capable of a multiplicity of meaning depending upon the context. For example the word is occasionally used in a very wide sense to denote any substance that is neither animal nor vegetable. Sometimes it is used in a narrow sense to mean no more than precious metalls like gold and silver. Again, the word "minerals" is often used to indicate substances obtained from underneath the surface of the earth by digging or quarrying. But this is not always so as point ed out by Chandrachud, J (as he then was) in Bhagwan Dass v. State of Uttar Pradesh, ([1976] 3 S.C.R. 869.)As we said earlier the word mineral is an elastic word whose meaning depends upon the setting in which it is used. For instance, in the case cited, the question was whether clay forming the surface or subsoil, and constituting the "land" compulsorily taken for the purposes of a railway, was not a mineral WITH the meaning of Sections 77, 78 or 79 of the Railway Clauses Consolidation Act. The answer was that clay was not a mineral for the purposes of the Railway Clauses Consolidation Act. Any other conclusion, in the context of the Act, would have led to the absurd result that the original owner whose land had been taken would be entitled to dig and take away the clay from the land on which the Railway was constructed, thus defeating the very object of the compulsory taking. On the other hand, as noticed by the Supreme Court of the United States, in several English cases clay, gravel, sand, stone etc. has been held to be minerals. That is why we say the word mineral has no definite meaning but has a variety of meanings, depending on the context of its use. In the context of the Mines and Minerals (Regulation &Development) Act, we have no` doubt that the word mineral is of sufficient amplitude to include. As already observed y us, if the expression minor mineral as defined in the Act includes ordinary clay and ordinary sand. there is no earthly reason why should not be held to be any other mineral which may be declared as minor mineral.. We do not think it necessary to pursue the matter further except to say that this was The view taken in Laddu Mal v. State of Bihar (A.I.R 1965 Patna 491) Amar Singh Modilal v. State of Haryana(A.I.R 1972 Punj. & Har. 356) and Sharma &Co. v. State of U.P.(A.I.R.. 1975 All. 86.). We do not agree with the view of the Calcutta High Court in State of West Bengal v. Jagadamba Prasad (A.I.R.. 1969 Cal. 2XI.) that because speaks of ordinary earth as a mineral it is not a minor mineral as defined in the Mines and Minerals (Regulation & Development) Act. | 0 | 1,697 | 705 | ### 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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([1976] 3 S.C.R. 869.) where the learned judge said (at p. 874):"It was urged that the sand and gravel are deposited on the surface of the land and not under the surface of the soil and therefore they cannot be called minerals and equally so, any operation by which they are collected or gathered cannot properly be called a minerals operation. It is in the first place wrong to assume that mines and minerals must always be sub-soil and that there can be no minerals on the surface of the earth. Such an assumption is contrary to informed experience. In any case, the definition of mining operations and mi nor minerals in section 3(d) and (e) of the Act of 1957 and Rule 2(S) and (7) of the Rules of 1963 shows that minerals need not be subterranean and that mining operations cover every operation undertaken for the purpose of "Winning" any minor mineral. "Winning" does not imply a hazardous or perilous activity. The word simply means extracting a mineral" and is used generally to indicate, any activity by which a mineral is secured. "Extracting" in turn means drawing out or obtaining. A tooth is extracted as much as the fruit juice and as much as a mineral. Only that the effort varies from tooth to tooth, from fruit to fruit and from mineral t o mineral". We may also refer to Northern Pacific Railway Company v. John A. Sodrberg(47 L. Fd.575) where the Supreme Court of United States observed as follows (at page 581):"The word mineral is used in so many senses, dependant upon the context, that the ordinary definitions of the dictionary throw but little light upon its significance in a given case. Thus, the scientific division of all matter into the animal, vegetable, or mineral kingdom would be absurd as applied to a grant of lands, since all lands belong to the mineral kingdom, and therefore, could not be excepted from the grant without being destructive of it. Upon the other hand, a definition which would confine it to the precious metals-gold and silver-would so limit its application as to destroy at once half the value of the exception. Equally subversive of the grant would be the definition of minerals found in the Century Dictionary: as "any constituent of the earths crust" ; and that of Beinbridge on Mines: "All the Substances stances that now form, or which once formed, a part of the solid body of the earth". Nor do we approximate much more closely to the meaning of the word by treating minerals as substances which are ""mined"" as distinguished from those are "quarried", since many valuable deposits of g old, copper, iron, and coal lie upon or near the surface of the earth, and some of the most valuable building stone, such for instance, as the Caen stone in France, is excavated from mines running far beneath the surf ace. This distinction between under ground mines and open workings was expressly repudiated in Midland C. v. Haunchwood Brick &Tile Co. (L.R 20 Ch. Div. 552) and in Hext v. Gill (L.R. 7 Ch. 699)" 4. The Supreme Court of United States also referred to several English cases where stone for road making or paving was held to be minerals as also granite, sandstone, flint stone, gravel, marble, fire clay, brick clay, and the like. It is clear that the word miner al has no fixed but a contextual connotation. 5. The learned Counsel for the appellant invited our attention to the decision of the Court of Appeal in Todd Birleston and Co. v. The North Eastern Railway Co. ([1903] I K.B. 603) and to Stouds Judicial Dictionary to urge that clay, brick-earth and the like have sometimes been held not to be minerals by English Courts. As we said earlier the word mineral is an elastic word whose meaning depends upon the setting in which it is used. For instance, in the case cited, the question was whether clay forming the surface or subsoil, and constituting the "land" compulsorily taken for the purposes of a railway, was not a mineral WITH the meaning of Sections 77, 78 or 79 of the Railway Clauses Consolidation Act. The answer was that clay was not a mineral for the purposes of the Railway Clauses Consolidation Act. Any other conclusion, in the context of the Act, would have led to the absurd result that the original owner whose land had been taken would be entitled to dig and take away the clay from the land on which the Railway was constructed, thus defeating the very object of the compulsory taking. On the other hand, as noticed by the Supreme Court of the United States, in several English cases clay, gravel, sand, stone etc. has been held to be minerals. That is why we say the word mineral has no definite meaning but has a variety of meanings, depending on the context of its use. In the context of the Mines and Minerals (Regulation &Development) Act, we have no` doubt that the word mineral is of sufficient amplitude to include brick-earth. As already observed y us, if the expression minor mineral as defined in the Act includes ordinary clay and ordinary sand. there is no earthly reason why brick-earth should not be held to be any other mineral which may be declared as minor mineral.. We do not think it necessary to pursue the matter further except to say that this was The view taken in Laddu Mal v. State of Bihar (A.I.R 1965 Patna 491) Amar Singh Modilal v. State of Haryana(A.I.R 1972 Punj. & Har. 356) and Sharma &Co. v. State of U.P.(A.I.R.. 1975 All. 86.). We do not agree with the view of the Calcutta High Court in State of West Bengal v. Jagadamba Prasad (A.I.R.. 1969 Cal. 2XI.) that because speaks of ordinary earth as a mineral it is not a minor mineral as defined in the Mines and Minerals (Regulation & Development) Act. 6.
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0
### Explanation:
We agree with the learned Counsel that a substance must first be a mineral before it can be notified as a minor mineral pursuant to the power vested in the Central Government under Section 3(e) of the Act. The question, therefore, is whetherh is a mineral. The expression "Minor Mineral" as defined in Section 3(e) includes ordinary clay and ordinary sand. If the expression "minor mineral" as defined in Section 3(e) of the Act includes ordinary clay and `ordinary sand, there is no reason why earth used for the purpose A of making bricks should not be comprehended within the meaning of the word "any other mineral" which may be declared as a "minor mineral" by the Government. The word "mineral" is not a term of art. It is a word of common parlance, capable of a multiplicity of meaning depending upon the context. For example the word is occasionally used in a very wide sense to denote any substance that is neither animal nor vegetable. Sometimes it is used in a narrow sense to mean no more than precious metalls like gold and silver. Again, the word "minerals" is often used to indicate substances obtained from underneath the surface of the earth by digging or quarrying. But this is not always so as point ed out by Chandrachud, J (as he then was) in Bhagwan Dass v. State of Uttar Pradesh, ([1976] 3 S.C.R. 869.)As we said earlier the word mineral is an elastic word whose meaning depends upon the setting in which it is used. For instance, in the case cited, the question was whether clay forming the surface or subsoil, and constituting the "land" compulsorily taken for the purposes of a railway, was not a mineral WITH the meaning of Sections 77, 78 or 79 of the Railway Clauses Consolidation Act. The answer was that clay was not a mineral for the purposes of the Railway Clauses Consolidation Act. Any other conclusion, in the context of the Act, would have led to the absurd result that the original owner whose land had been taken would be entitled to dig and take away the clay from the land on which the Railway was constructed, thus defeating the very object of the compulsory taking. On the other hand, as noticed by the Supreme Court of the United States, in several English cases clay, gravel, sand, stone etc. has been held to be minerals. That is why we say the word mineral has no definite meaning but has a variety of meanings, depending on the context of its use. In the context of the Mines and Minerals (Regulation &Development) Act, we have no` doubt that the word mineral is of sufficient amplitude to include. As already observed y us, if the expression minor mineral as defined in the Act includes ordinary clay and ordinary sand. there is no earthly reason why should not be held to be any other mineral which may be declared as minor mineral.. We do not think it necessary to pursue the matter further except to say that this was The view taken in Laddu Mal v. State of Bihar (A.I.R 1965 Patna 491) Amar Singh Modilal v. State of Haryana(A.I.R 1972 Punj. & Har. 356) and Sharma &Co. v. State of U.P.(A.I.R.. 1975 All. 86.). We do not agree with the view of the Calcutta High Court in State of West Bengal v. Jagadamba Prasad (A.I.R.. 1969 Cal. 2XI.) that because speaks of ordinary earth as a mineral it is not a minor mineral as defined in the Mines and Minerals (Regulation & Development) Act.
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Seth Banarsi Das Etc Vs. Wealth Tax Officer, Special Circle Meerut, Etc | includes capital gain, this Court observed that the said conclusion was reached not because of any legislative practice either in India or in the United States or in the Commonwealth of Australia, but "because such was the normal concept and connotation of the ordinary English word "income. Its natural meaning embraces any profit or gain which is actually received".13. Similarly, in Navnital C. Javeri v. K. K.Sen, Civil Appeal No. 45 of 1964, dated 28-10-1964 ; (AIR 1965 SC 1375 ), when this Court had occasion to consider the validity of S. 12(1B) read with S.2 (6A)(e) of the Indian Income-tax Act, 1922 (No. 11 of 1922) as it stood in 1955, the question which was raised for its decision was whether it was competent to Parliament to treat a loan advanced to a shareholder of a company as his income. In answering the said question in favour of the impugned provision, this Court observed that "though Parliament cannot choose to tax as income an item which in no rational sense can be regarded as a citizens income, it would, nevertheless be competent to Parliament to levy a tax on a loan received by the shareholder if it was satisfied that the said loan could rationally be construed as his income. In considering this question, however, it would be inappropriate to apply the test traditionally prescribed by the Income-tax Act as such". Therefore, we do not think that the legislative history in the matter of the denotation of the word "individuals" on which the appellants rely, can really afford any material assistance in construing the word "individuals in Entry 86.14. Reverting then to Entry, 86, the question which we have to ask ourselves is whether on a fair and reasonable construction, the word "individuals" in the context of the Entry can legitimately be narrowed down to individuals as such and not to include groups of individuals. If the object of making the Entry is to enable Parliament to levy taxes on the capital value of the assets, how can it be said to be reasonable to introduce a limitation on the denotation of the word "individuals" and to say that taxes could not be levied on the capital value of the assets which belong to groups of individuals. If the individuals constitute themselves into a group and such group owns capital assets, it is not easy to understand why the value of such assets should not be included within the legislative field covered by Entry 86. The Constitution-makers were fully aware that the Hindu citizens of this country normally form Hindu undivided families and if the object was to leavy taxes on the capital value of the assets, it is inconceivable that the word "individuals" was introduced in the Entry with the object of exceeding (excluding ?) from its scope such a large and extensive area which would be covered by Hindu undivided families. We are, therefore, satisfied that the impugned section is valid because Parliament was competent to legislate in respect of Hindu undivided families under Entry 86.15. This question has been considered by several High Courts and the reported decisions show consensus in judicial opinion in favour of the construction of Entry 86 which we have adopted (vide Mahavirprasad Badridas v. M. S. Yagnik, 1959-37 ITR 191 (Bombay High Courts decision); Subramanyam v. Addl. Wealth Tax Andh Pra 75) (Andhra Pradesh High Courts decision - Single Judge Bench); Ramabhadra Raju v. Union of India, 1962-45 ITR 118 : (AIR 1961 Andh Pra 355) (Andhra Pradesh High Courts decision - Division Bench): Sarjerao Appisaheb Shitole v. Wealth Tax Officer, A-Ward, Belaaum, 1964-52 ITR 504 (Madras High Courts decision). We ought to add that these reported decisions show that the validity of the impugned provision was challenged before the High Courts on ground that the Hindu undivided family is an association and as such, the capital value of its assets could not be taxed under Entry 86. That naturally raised the question about the true legal character and status of Hindu undivided family, and the contention that they were associations has been rejected. Since that argument has not been pressed before us, we have not thought it necessary to consider it.16. Before we part with these appeals, we may refer to an earlier decision of this Court in which the word "individual" fell to be considered. In commissioner of Income-tax, M. P. and Bhopal v. Sodra Dev, 1957-32 ITR 615 : ((S) AIR 1957 SC 832 ), the question which arose for the decision of this Court had relation to the construction of S. 16 (3) of the Indian Income-tax : Act, 1922. That sub-section provides that in computing the total income of any individual for the purpose of assessment, there shall be included the items specified in clauses (a) and (b). What is the denotation of the word "individual" was one of the points which had to be considered in that case. According to the majority decision, though the word "individual" is narrower than the word "assessee", it does not mean only a human being, but is wide enough to include a group of persons forming a unit. "It has been held", observed Bhagwati, J., who spoke for the majority," that the word "individual" includes a corporation created by a statute, e.g., a university or a bar council, or the trustees of a baronetcy trust incorporated by a Baronetcy Act. It would also include a minor or a person of unsound mind". We are referring to this case only for the purpose of showing that the word "individual" was interpreted by this Court as including a group of persons forming a unit.17. Since we have come to the conclusion that Entry 86 covers cases of Hindu undivided families, it follows that the impugned provision is valid under the said Entry itself. That being so, it is unnecessary to consider whether the validity of the impugned provisions can be sustained under Entry 97 or under Art. 248 of the Constitution. | 0[ds]8. The appellants no doubt contrast Entry 86 with Entry 82 and contend that the said contrast brings out an element of limitation or restriction which should be imported in construing Entry 86. Entry 82 refers to taxes or income other than agricultural income. The argument is that the power to levy taxes on income is not conditioned by reference to individuals or companies; it is an unlimited extensive power. In contrast with this Entry, it is urged that limitation is introduced by Entry 86, because it seeks to confer power to levy taxes on the capital value of the assets of individuals and companies. The assessee are indicated by this Entry, and that that itself introduces an element of limitation. The appellants attempt to place their case alternatively by emphasising the fact that the word "individuals" in the context cannot mean companies, because companies are separately and distinctly mentioned; that again, it is said, introduces an element of limitation on the denotation of the word "individuals" "Individuals, therefore, must mean individuals and cannot mean groups of individuals, that is the main contention raised by the appellants. We are not impressed by this argument. It is true that Entry 82 does not refer to the assessee, and that is natural because what it purports to do is to recognise the legislative competence of Parliament to levy taxes on income, the only limitation being that the income must be other than agricultural income, since Entry 86 refers to taxes on the capital value of the assets, the Constitution-makers must have thought that it was necessary to specify whose assets should be subject to the taxes contemplated by the Entry, and that explains why individuals and companies are mentioned. Since companies are specifically mentioned along with individuals, it may be permissible to contend that companies in the context are not included in the word." individuals", or it may perhaps be that since Entry 86 wanted to specify that the taxes leviable under it have to be taxes on the capital of the companies, it as thought desirable that companies should be specified as a matter of precaution along with individuals. However, that may be, it is not easy to understand-why the word individuals" cannot take in its sweep groups of individuals like Hindu undivided families. The use of the word "individuals" in the plural is not of any special significance, because under section 13(2) of the General Clauses Act. 1897 (No. 10 of 1897), words in the singular shall include the plural, and vicethe face of it, it is impossible to assume that while thinking if levying taxes on the capital value of assets, Hindu undivided families could possibly have been intended to be left out. We can think of no rational justification for making any such assumption. In this connection, it is significant that on the appellants case, the capital value of the assets of Hindu undivided families would never become the subject-matter of wealth tax. Hindu undivided families, it is urged, are groups of individuals and, therefore, should be outside Entry 86 and individuals who constitute such Hindu undivided families could not be subjected to the levy of the tax, because the body of coparceners who constitute such Hindu undivided families is a fluctuating body and their shares in the capital assets of their respective families are liable to increase or decrease and cannot be definitely predicated for the accounting year as a whole, unless partition is made. Prima facie, such a position appears to be plainly inconsistent with the scheme of entry 86 and it cannot be upheld unless the word "individuals" is reasonably incapable of including groups of individuals.10. It is true that when tax is levied on the capital value of the assets of Hindu undivided families, in a sense the assets of individual coparceners are aggregated, and on the aggregate value a tax is levied; but how the taxes should be levied and at what rate, is a matter for the legislature to decide; that consideration cannot enter into the discussion of the legislative competence of Parliament to enact the law. It is hardly necessary to emphasise that groups of individuals, the capital value of whose assets would be subject to the payment of wealth would naturally be groups of individuals who form a unit and who own the said assets together. The fact that the rights of the individuals constituting the group are liable to be decreased or increased does not make any difference when we are dealing with the question as to whether the word "individuals" is wide enough to include groups of individuals. We do not see anything in the context of Entry 86 which can be said to introduce an element of restriction or limitation while interpreting the word "individuals". Ordinarily, individuals would be treated as such and the capital value of their Separate assets would be taxed;, but if individuals from groups and such groups own capital assets, it is difficult to see why the power to levy taxes on such capital assets should be held to be outside the scope of Entry 86.Assuming that the legislative history in the matter of tax legislation supports the distinction between individuals and Hindu undivided families, we do not see how the said consideration can have a material bearing on the construction of the word "individuals" in Entry 86. The tax legislation may, for convenience or other valid reasons, have made a distinction between individuals and Hindu undivided families; but it would not be legitimate to suggest that the word" "individuals" occurring in an organic document like the Constitution must necessarily receive the same construction. Take, for instance, the traditional concepts of income as recognised by the tax law. It has been held by this Court in Navinchandra Mafatlal v. The Commissioner of Income-tax, Bombay City, 1955-1 SCR 829 at p. 837 : (S) AIR 1955 SC 58 at p. 61), that the said traditional concept of income cannot introduce considerations of restriction or limitation in interpreting the word "income" in Entry 54 in List I of the Seventh Schedule tothe Government of India Act, 1935, which corresponds to Entry 82 in List I of the Seventh Schedule to the Constitution. In that case, the validity of the tax levied on capital gains was impeached or the ground that capital gains cannot be regarded as income, and so, Entry 54 did not justify the levy of the tax on capital gains. In rejecting this contention, this Court held that the word "income" occurring in Entry 54 must receive the widest interpretation and could, therefore, be interpreted to include a capital gain. In holding that the word "income" includes capital gain, this Court observed that the said conclusion was reached not because of any legislative practice either in India or in the United States or in the Commonwealth of Australia, but "because such was the normal concept and connotation of the ordinary English word "income. Its natural meaning embraces any profit or gain which is actuallythe object of making the Entry is to enable Parliament to levy taxes on the capital value of the assets, how can it be said to be reasonable to introduce a limitation on the denotation of the word "individuals" and to say that taxes could not be levied on the capital value of the assets which belong to groups of individuals. If the individuals constitute themselves into a group and such group owns capital assets, it is not easy to understand why the value of such assets should not be included within the legislative field covered by Entry 86. The Constitution-makers were fully aware that the Hindu citizens of this country normally form Hindu undivided families and if the object was to leavy taxes on the capital value of the assets, it is inconceivable that the word "individuals" was introduced in the Entry with the object of exceeding (excluding ?) from its scope such a large and extensive area which would be covered by Hindu undivided families. We are, therefore, satisfied that the impugned section is valid because Parliament was competent to legislate in respect of Hindu undivided families under Entryare referring to this case only for the purpose of showing that the word "individual" was interpreted by this Court as including a group of persons forming a unit.17. Since we have come to the conclusion that Entry 86 covers cases of Hindu undivided families, it follows that the impugned provision is valid under the said Entry itself. That being so, it is unnecessary to consider whether the validity of the impugned provisions can be sustained under Entry 97 or under Art. 248 of the Constitution. | 0 | 4,348 | 1,611 | ### Instruction:
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includes capital gain, this Court observed that the said conclusion was reached not because of any legislative practice either in India or in the United States or in the Commonwealth of Australia, but "because such was the normal concept and connotation of the ordinary English word "income. Its natural meaning embraces any profit or gain which is actually received".13. Similarly, in Navnital C. Javeri v. K. K.Sen, Civil Appeal No. 45 of 1964, dated 28-10-1964 ; (AIR 1965 SC 1375 ), when this Court had occasion to consider the validity of S. 12(1B) read with S.2 (6A)(e) of the Indian Income-tax Act, 1922 (No. 11 of 1922) as it stood in 1955, the question which was raised for its decision was whether it was competent to Parliament to treat a loan advanced to a shareholder of a company as his income. In answering the said question in favour of the impugned provision, this Court observed that "though Parliament cannot choose to tax as income an item which in no rational sense can be regarded as a citizens income, it would, nevertheless be competent to Parliament to levy a tax on a loan received by the shareholder if it was satisfied that the said loan could rationally be construed as his income. In considering this question, however, it would be inappropriate to apply the test traditionally prescribed by the Income-tax Act as such". Therefore, we do not think that the legislative history in the matter of the denotation of the word "individuals" on which the appellants rely, can really afford any material assistance in construing the word "individuals in Entry 86.14. Reverting then to Entry, 86, the question which we have to ask ourselves is whether on a fair and reasonable construction, the word "individuals" in the context of the Entry can legitimately be narrowed down to individuals as such and not to include groups of individuals. If the object of making the Entry is to enable Parliament to levy taxes on the capital value of the assets, how can it be said to be reasonable to introduce a limitation on the denotation of the word "individuals" and to say that taxes could not be levied on the capital value of the assets which belong to groups of individuals. If the individuals constitute themselves into a group and such group owns capital assets, it is not easy to understand why the value of such assets should not be included within the legislative field covered by Entry 86. The Constitution-makers were fully aware that the Hindu citizens of this country normally form Hindu undivided families and if the object was to leavy taxes on the capital value of the assets, it is inconceivable that the word "individuals" was introduced in the Entry with the object of exceeding (excluding ?) from its scope such a large and extensive area which would be covered by Hindu undivided families. We are, therefore, satisfied that the impugned section is valid because Parliament was competent to legislate in respect of Hindu undivided families under Entry 86.15. This question has been considered by several High Courts and the reported decisions show consensus in judicial opinion in favour of the construction of Entry 86 which we have adopted (vide Mahavirprasad Badridas v. M. S. Yagnik, 1959-37 ITR 191 (Bombay High Courts decision); Subramanyam v. Addl. Wealth Tax Andh Pra 75) (Andhra Pradesh High Courts decision - Single Judge Bench); Ramabhadra Raju v. Union of India, 1962-45 ITR 118 : (AIR 1961 Andh Pra 355) (Andhra Pradesh High Courts decision - Division Bench): Sarjerao Appisaheb Shitole v. Wealth Tax Officer, A-Ward, Belaaum, 1964-52 ITR 504 (Madras High Courts decision). We ought to add that these reported decisions show that the validity of the impugned provision was challenged before the High Courts on ground that the Hindu undivided family is an association and as such, the capital value of its assets could not be taxed under Entry 86. That naturally raised the question about the true legal character and status of Hindu undivided family, and the contention that they were associations has been rejected. Since that argument has not been pressed before us, we have not thought it necessary to consider it.16. Before we part with these appeals, we may refer to an earlier decision of this Court in which the word "individual" fell to be considered. In commissioner of Income-tax, M. P. and Bhopal v. Sodra Dev, 1957-32 ITR 615 : ((S) AIR 1957 SC 832 ), the question which arose for the decision of this Court had relation to the construction of S. 16 (3) of the Indian Income-tax : Act, 1922. That sub-section provides that in computing the total income of any individual for the purpose of assessment, there shall be included the items specified in clauses (a) and (b). What is the denotation of the word "individual" was one of the points which had to be considered in that case. According to the majority decision, though the word "individual" is narrower than the word "assessee", it does not mean only a human being, but is wide enough to include a group of persons forming a unit. "It has been held", observed Bhagwati, J., who spoke for the majority," that the word "individual" includes a corporation created by a statute, e.g., a university or a bar council, or the trustees of a baronetcy trust incorporated by a Baronetcy Act. It would also include a minor or a person of unsound mind". We are referring to this case only for the purpose of showing that the word "individual" was interpreted by this Court as including a group of persons forming a unit.17. Since we have come to the conclusion that Entry 86 covers cases of Hindu undivided families, it follows that the impugned provision is valid under the said Entry itself. That being so, it is unnecessary to consider whether the validity of the impugned provisions can be sustained under Entry 97 or under Art. 248 of the Constitution.
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be left out. We can think of no rational justification for making any such assumption. In this connection, it is significant that on the appellants case, the capital value of the assets of Hindu undivided families would never become the subject-matter of wealth tax. Hindu undivided families, it is urged, are groups of individuals and, therefore, should be outside Entry 86 and individuals who constitute such Hindu undivided families could not be subjected to the levy of the tax, because the body of coparceners who constitute such Hindu undivided families is a fluctuating body and their shares in the capital assets of their respective families are liable to increase or decrease and cannot be definitely predicated for the accounting year as a whole, unless partition is made. Prima facie, such a position appears to be plainly inconsistent with the scheme of entry 86 and it cannot be upheld unless the word "individuals" is reasonably incapable of including groups of individuals.10. It is true that when tax is levied on the capital value of the assets of Hindu undivided families, in a sense the assets of individual coparceners are aggregated, and on the aggregate value a tax is levied; but how the taxes should be levied and at what rate, is a matter for the legislature to decide; that consideration cannot enter into the discussion of the legislative competence of Parliament to enact the law. It is hardly necessary to emphasise that groups of individuals, the capital value of whose assets would be subject to the payment of wealth would naturally be groups of individuals who form a unit and who own the said assets together. The fact that the rights of the individuals constituting the group are liable to be decreased or increased does not make any difference when we are dealing with the question as to whether the word "individuals" is wide enough to include groups of individuals. We do not see anything in the context of Entry 86 which can be said to introduce an element of restriction or limitation while interpreting the word "individuals". Ordinarily, individuals would be treated as such and the capital value of their Separate assets would be taxed;, but if individuals from groups and such groups own capital assets, it is difficult to see why the power to levy taxes on such capital assets should be held to be outside the scope of Entry 86.Assuming that the legislative history in the matter of tax legislation supports the distinction between individuals and Hindu undivided families, we do not see how the said consideration can have a material bearing on the construction of the word "individuals" in Entry 86. The tax legislation may, for convenience or other valid reasons, have made a distinction between individuals and Hindu undivided families; but it would not be legitimate to suggest that the word" "individuals" occurring in an organic document like the Constitution must necessarily receive the same construction. Take, for instance, the traditional concepts of income as recognised by the tax law. It has been held by this Court in Navinchandra Mafatlal v. The Commissioner of Income-tax, Bombay City, 1955-1 SCR 829 at p. 837 : (S) AIR 1955 SC 58 at p. 61), that the said traditional concept of income cannot introduce considerations of restriction or limitation in interpreting the word "income" in Entry 54 in List I of the Seventh Schedule tothe Government of India Act, 1935, which corresponds to Entry 82 in List I of the Seventh Schedule to the Constitution. In that case, the validity of the tax levied on capital gains was impeached or the ground that capital gains cannot be regarded as income, and so, Entry 54 did not justify the levy of the tax on capital gains. In rejecting this contention, this Court held that the word "income" occurring in Entry 54 must receive the widest interpretation and could, therefore, be interpreted to include a capital gain. In holding that the word "income" includes capital gain, this Court observed that the said conclusion was reached not because of any legislative practice either in India or in the United States or in the Commonwealth of Australia, but "because such was the normal concept and connotation of the ordinary English word "income. Its natural meaning embraces any profit or gain which is actuallythe object of making the Entry is to enable Parliament to levy taxes on the capital value of the assets, how can it be said to be reasonable to introduce a limitation on the denotation of the word "individuals" and to say that taxes could not be levied on the capital value of the assets which belong to groups of individuals. If the individuals constitute themselves into a group and such group owns capital assets, it is not easy to understand why the value of such assets should not be included within the legislative field covered by Entry 86. The Constitution-makers were fully aware that the Hindu citizens of this country normally form Hindu undivided families and if the object was to leavy taxes on the capital value of the assets, it is inconceivable that the word "individuals" was introduced in the Entry with the object of exceeding (excluding ?) from its scope such a large and extensive area which would be covered by Hindu undivided families. We are, therefore, satisfied that the impugned section is valid because Parliament was competent to legislate in respect of Hindu undivided families under Entryare referring to this case only for the purpose of showing that the word "individual" was interpreted by this Court as including a group of persons forming a unit.17. Since we have come to the conclusion that Entry 86 covers cases of Hindu undivided families, it follows that the impugned provision is valid under the said Entry itself. That being so, it is unnecessary to consider whether the validity of the impugned provisions can be sustained under Entry 97 or under Art. 248 of the Constitution.
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A.V. Mohan Rao Vs. M. Kishan Rao | "We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." 16. The same view was expressed by this Court in the case of Mahavir Prasad Gupta & Anr. vs. State of National Capital Territory of Delhi & Ors., 2000 (8) SCC 115. 17. In view of the principles of law it is to be considered whether on the allegations which applicants made in the complaint and the materials filed by the complainant a case for exercise of jurisdiction under Section 482 Cr. P.C. or Article 226 of the Constitution has been made out. As noted earlier, it is alleged in the complaint that the accused, appellants herein, have committed the offences under Section 60, 63, 68, 68-A read with Section 621 of the Act. 18. Section 60 provides that : No prospectus shall be issued by or on behalf of a company or in relation to an intended company unless, on or before the date of its publication, there has been delivered to the Registrar for registration a copy thereof signed by every person who is named therein as a director or proposed director of the company or by his agent authorised in writing, and having endorsed thereon the documents enumerated in the section. 19. The expression ‘prospectus’ is defined in Section 2(36) of the Act to mean "any document described or issued as a prospectus and includes any notice, circular, advertisement or other document inviting deposits from the public or inviting offers from the public for the subscription or purchase of any shares in, or debentures of, a body corporate". 20. Section 63 of the Act makes provision regarding criminal liability for mis-statements in the prospectus. In sub-section (1) thereof it is laid down that "where a prospectus issued after the commencement of this Act includes any untrue statement, every person who authorised the issue of the prospectus shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to fifty thousand rupees, or with both, unless he proves either that the statement was immaterial or that he had reasonable ground to believe, and did up to the time of the issue of the prospectus believe, that the statement was true." 21. Section 68 of the Act makes provision regarding penalty for fraudulently inducing persons to invest money. It is laid down therein that : "Any person who, either by knowingly or recklessly making any statement, promise or forecast which is false, deceptive or misleading or by any dishonest concealment of material facts, induces or attempts to induce another person to enter into, or to offer to enter into - (a) any agreement for, or with a view to, acquiring, disposing of, subscribing for, or underwriting shares or debentures; or(b) any agreement the purpose or pretended purpose of which is to secure a profit to any of the parties from the yield of shares or debentures, or by reference to fluctuations in the value of shares or debentures;shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to one lakh rupees, or with both. 22. Section 68-A of the Act deal with personation for acquisition, etc., of shares and the action of any person who makes in a fictitious name an application to a company for acquiring, or subscribing for, any shares therein, or otherwise induces a company to allot, or register any transfer of, shares therein to him, or any other person in a fictitious name, shall be punishable with imprisonment for a term which may extend to five years. 23. Reading of the complaint petition and the materials produced by the complainant with it in the light or provisions in the aforementioned sections it cannot be said that the allegations made in the complaint taken in entirety do not make out, even prima facie, any of the offences alleged in the complaint petition. We refrain from discussing the merits of the case further since may observation in that regard may effect one party or the other. The allegations made are serious in nature and relate to the power company registered under the Act having its head office in this country. Whether the appellants were or were not citizens of India at the time of commission of the offences alleged and whether the offences alleged were or were not committed in this country, are questions to be considered on the basis of the evidence to be placed before the Court at the trial of the case. The questions raised are of involved nature, determination of which requires enquiry into facts. Such questions cannot be considered at the preliminary stage for the purpose of quashing the complaint and the proceeding initiated on its basis. It is relevant to note here that from Sections 4 and 188 of the Criminal Procedure Code it is clear that even if the offence is committed by a citizen of India outside the country the same is subject to the jurisdiction of courts in India. [See Central Bank of India Ltd. vs. Ram Narain, AIR 1955 SC 36 , Mobarik Ali Ahmed vs. The State of Bombay, 1958 SCR 328 and Ajay Aggarwal vs. Union of India & Ors., (1993) 3 SCC 609 ]. 24. On consideration of the matter, we are of the view that in the context of the facts and circumstances of the case, the High Court was right in declining to quash the complaint petition and the proceedings initiated on its basis. | 0[ds]23. Reading of the complaint petition and the materials produced by the complainant with it in the light or provisions in the aforementioned sections it cannot be said that the allegations made in the complaint taken in entirety do not make out, even prima facie, any of the offences alleged in the complaint petition. We refrain from discussing the merits of the case further since may observation in that regard may effect one party or the other. The allegations made are serious in nature and relate to the power company registered under the Act having its head office in this country. Whether the appellants were or were not citizens of India at the time of commission of the offences alleged and whether the offences alleged were or were not committed in this country, are questions to be considered on the basis of the evidence to be placed before the Court at the trial of the case. The questions raised are of involved nature, determination of which requires enquiry into facts. Such questions cannot be considered at the preliminary stage for the purpose of quashing the complaint and the proceeding initiated on its basis. It is relevant to note here that from Sections 4 and 188 of the Criminal Procedure Code it is clear that even if the offence is committed by a citizen of India outside the country the same is subject to the jurisdiction of courts inare of the view that in the context of the facts and circumstances of the case, the High Court was right in declining to quash the complaint petition and the proceedings initiated on its basis. | 0 | 4,069 | 291 | ### Instruction:
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"We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." 16. The same view was expressed by this Court in the case of Mahavir Prasad Gupta & Anr. vs. State of National Capital Territory of Delhi & Ors., 2000 (8) SCC 115. 17. In view of the principles of law it is to be considered whether on the allegations which applicants made in the complaint and the materials filed by the complainant a case for exercise of jurisdiction under Section 482 Cr. P.C. or Article 226 of the Constitution has been made out. As noted earlier, it is alleged in the complaint that the accused, appellants herein, have committed the offences under Section 60, 63, 68, 68-A read with Section 621 of the Act. 18. Section 60 provides that : No prospectus shall be issued by or on behalf of a company or in relation to an intended company unless, on or before the date of its publication, there has been delivered to the Registrar for registration a copy thereof signed by every person who is named therein as a director or proposed director of the company or by his agent authorised in writing, and having endorsed thereon the documents enumerated in the section. 19. The expression ‘prospectus’ is defined in Section 2(36) of the Act to mean "any document described or issued as a prospectus and includes any notice, circular, advertisement or other document inviting deposits from the public or inviting offers from the public for the subscription or purchase of any shares in, or debentures of, a body corporate". 20. Section 63 of the Act makes provision regarding criminal liability for mis-statements in the prospectus. In sub-section (1) thereof it is laid down that "where a prospectus issued after the commencement of this Act includes any untrue statement, every person who authorised the issue of the prospectus shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to fifty thousand rupees, or with both, unless he proves either that the statement was immaterial or that he had reasonable ground to believe, and did up to the time of the issue of the prospectus believe, that the statement was true." 21. Section 68 of the Act makes provision regarding penalty for fraudulently inducing persons to invest money. It is laid down therein that : "Any person who, either by knowingly or recklessly making any statement, promise or forecast which is false, deceptive or misleading or by any dishonest concealment of material facts, induces or attempts to induce another person to enter into, or to offer to enter into - (a) any agreement for, or with a view to, acquiring, disposing of, subscribing for, or underwriting shares or debentures; or(b) any agreement the purpose or pretended purpose of which is to secure a profit to any of the parties from the yield of shares or debentures, or by reference to fluctuations in the value of shares or debentures;shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to one lakh rupees, or with both. 22. Section 68-A of the Act deal with personation for acquisition, etc., of shares and the action of any person who makes in a fictitious name an application to a company for acquiring, or subscribing for, any shares therein, or otherwise induces a company to allot, or register any transfer of, shares therein to him, or any other person in a fictitious name, shall be punishable with imprisonment for a term which may extend to five years. 23. Reading of the complaint petition and the materials produced by the complainant with it in the light or provisions in the aforementioned sections it cannot be said that the allegations made in the complaint taken in entirety do not make out, even prima facie, any of the offences alleged in the complaint petition. We refrain from discussing the merits of the case further since may observation in that regard may effect one party or the other. The allegations made are serious in nature and relate to the power company registered under the Act having its head office in this country. Whether the appellants were or were not citizens of India at the time of commission of the offences alleged and whether the offences alleged were or were not committed in this country, are questions to be considered on the basis of the evidence to be placed before the Court at the trial of the case. The questions raised are of involved nature, determination of which requires enquiry into facts. Such questions cannot be considered at the preliminary stage for the purpose of quashing the complaint and the proceeding initiated on its basis. It is relevant to note here that from Sections 4 and 188 of the Criminal Procedure Code it is clear that even if the offence is committed by a citizen of India outside the country the same is subject to the jurisdiction of courts in India. [See Central Bank of India Ltd. vs. Ram Narain, AIR 1955 SC 36 , Mobarik Ali Ahmed vs. The State of Bombay, 1958 SCR 328 and Ajay Aggarwal vs. Union of India & Ors., (1993) 3 SCC 609 ]. 24. On consideration of the matter, we are of the view that in the context of the facts and circumstances of the case, the High Court was right in declining to quash the complaint petition and the proceedings initiated on its basis.
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23. Reading of the complaint petition and the materials produced by the complainant with it in the light or provisions in the aforementioned sections it cannot be said that the allegations made in the complaint taken in entirety do not make out, even prima facie, any of the offences alleged in the complaint petition. We refrain from discussing the merits of the case further since may observation in that regard may effect one party or the other. The allegations made are serious in nature and relate to the power company registered under the Act having its head office in this country. Whether the appellants were or were not citizens of India at the time of commission of the offences alleged and whether the offences alleged were or were not committed in this country, are questions to be considered on the basis of the evidence to be placed before the Court at the trial of the case. The questions raised are of involved nature, determination of which requires enquiry into facts. Such questions cannot be considered at the preliminary stage for the purpose of quashing the complaint and the proceeding initiated on its basis. It is relevant to note here that from Sections 4 and 188 of the Criminal Procedure Code it is clear that even if the offence is committed by a citizen of India outside the country the same is subject to the jurisdiction of courts inare of the view that in the context of the facts and circumstances of the case, the High Court was right in declining to quash the complaint petition and the proceedings initiated on its basis.
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M/S. Sesa Sterlite Ltd Vs. Orissa Electricity Regulatory Comm | distinct activities. Thus, the jurisdiction of the State Commission to scruitinise the deemed distribution status of the Appellant is well established in view of the Section 49(1) of SEZ, Act, 2005 and the notification of the Central Government dated 21.03.2012. Therefore, the contention of the Appellant that the State Commission dealt with the matter relating to the grant of distribution licence by going beyond its jurisdiction is misplaced.43. It is noticed that the Ministry of Commerce and Industry (Department of SEZ Section) has accorded SEZ status to the Appellant for development and operation and maintenance of sector specific Special Economic Zone for manufacture and export of aluminium on the condition that the Appellant should establish captive generating plant as stipulated in the approval letter of Ministry of Commerce and Industry but it is pointed out the still the plant has not been established for various reasons. If Captive generating plant of 1215 MW had been established as per the condition inside the SEZ area, the question of power purchase from Sterlite Energy Limited under the pretext of distribution licensee status would not have arisen. That apart, the State Commission has framed Orissa Electricity Regulatory Commission (conduct of business) Regulation, 2004 under the powers conferred under Section 181 of the Electricity Act, 2003. The distribution of electricity Licence (Additional requirement of Capital Adequacy, Credit Worthiness and Code of Conduct) Rules, 2005 framed by the Central Government also would apply to the Appellant for distribution licence in addition to the requirements of State Commission’s Regulations.45. Section 174 of the Electricity Act provides that the provisions of the Electricity Act shall have to overriding effect notwithstanding anything inconsistent with any other law for the time being in force or in any instrument having effect by virtue of any law other than Electricity Act. That apart, Section 175 also provides that the provisions of the Electricity Act are in addition to and not in derogation of any other law for the time being in force.47. The perusal of the notification dated 03.03.2010 would make it evident that the legislation’s intention for declaring the developer in SEZ area as deemed distribution licence, is confined only to clause-b of Section 14 of Electricity Act, which deals with the grant of license by the appropriate State Commission to any person for distribution of electricity. The said notification has not curtailed the power of State Commission so far as the applicability of other provisions is concerned. The interpretation of various relevant terms was necessary prior to grant of deemed distribution licence by the State Commission. Therefore, the State Commission rightly acted upon those provisions. As a matter of fact, by the said amendment by inserting another proviso to Section 14(b), the context has not been changed as claimed by the Appellant.49. As correctly indicated by the State Commission, the definition of term “distribution licensee” as enumerated under Section 2(17) of Electricity Act, 2003, emphasizes upon the distribution licensee to operate and maintain a distribution system and supply of power to the consumers. Considering the definition of ‘supply’ in Section 2(70), the supply here means sale of electricity to consumers. By merely being authorized to operate and maintain a distribution system as a deemed licensee, would not confer the status of distribution licensee to any person. The purpose of such establishment is for supply of power to consumers. Mere fact that the Appellant claims to be a deemed distribution licensee is of no consequence at all since admittedly, the entire power purchased by the Appellant is for its own use and consumption and not for the purpose of distribution and supply/sale to consumers.50. An entity which utilizes the entire quantum of electricity for its own consumption and does not have any other consumers, cannot, by such a notification, be deemed to be distribution licensee, even by a legal fiction. By virtue of the legal fiction created by the notification dated 3.03.2010, the Developer of SEZ notified under the SEZ Act, who distributes electricity can be deemed to be a distribution licensee. Thus, this legal fiction cannot go further and make a person who does not distribute electricity to the consumers as to distribution licensee. Therefore there is no merit in the contention of the Appellant. 43. We are in agreement with the aforesaid rationale in the impugned order of the Appellate Tribunal as that is the only manner in which the two Acts can be harmoniously construed. To recapitulate briefly, in the present case no doubt by virtue of the status of a developer in the SEZ area, the Appellant is also treated as deemed Distribution Licensee. However with this, it only gets exemption from specifically applying for licence under Section 14 of the Act. In order to avail further benefits under the Act, the Appellant is also required to show that it is in fact having distribution system and has number of consumers to whom it is supplying the electricity. That is not the case here. For its own plant only, it is getting the electricity from Sterlite Ltd. for which it has entered into PPA. We have to keep in mind the object and scheme of SEZ Act which envisages several units being set up in a SEZ area. This is evident from a collective reading of the various provisions of the SEZ Act viz. Section 2(g)(j)(za)(zc), Section 3, 4, 11, 12, 13 and 15. There can be a Sector Specific SEZ with Several Units i.e. for IT, Mineral Based Industries etc. but instances of single unit SEZ like in the present case of the Appellant may be rare. The Notification dated 03.03.2010 providing for the “Developer” of SEZ being deemed as a “Distribution Licensee” was issued keeping in view the concept of Multi Unit SEZs and will apply only to such cases in which the Developer is supplying the power to multiple Units in the SEZ. The said Notification will not apply to a Developer like the Appellant who has established the SEZ only for itself. | 0[ds]21. Before adverting to this central issue, it would be apt to understand conceptually the rationale of payment of such CSS to the Distribution Company, under the scheme of the Electricity Act. The first enactment to govern electricity supply in India was passed in the year 1910 viz. the Electricity Act, 1910. This Act envisaged growth of electricity industry through private licences. It created the legal framework for laying down of wires and other works relating to the supply of electricity. Thereafter, the Electricity (Supply) Act, 1948 mandated the creation of a State Electricity Board. The Board assigned the responsibility of arranging the supply of electricity in the State. It was experienced that over a period of time the performance of State Electricity Boards had deteriorated on account of various factors. Main failure on the part of these Electricity Boards was to take decision on tariffs in independent manner and cross subsidies had reached untenable levels. To address this issue and also to distance governance from determination of tariffs, the Electricity Regulation Commission Act was enacted in the year 1998. This Act created regulatory mechanism. Within few years, it was felt that the three Acts of 1910, 1948 and 1998 which were operating in the field needed to be brought in a new self contained comprehensive legislation with the policy of encouraging private sector participation in generation, transmission and distribution and also the objectives of distancing the regulatory responsibilities from the Government and giving it to the Regulatory Commissions. With these objectives in mind the Electricity Act, 2003 has been enacted. Significant addition is the provisions for newer concepts like power trading and open access. Various features of the 2003 Act which are outlined in the statement of objects and reasons to this Act. Notably, generation is being delicensed and captive generation is being freely permitted. The Act makes provision for private transmission licensees. It now provides open access in transmission from the outset.(2) Open Access and CSS22. Open access implies freedom to procure power from any source. Open access in transmission means freedom to the licensees to procure power from any source. The expressionas been defined in the Act to meannon-discriminatory provision for the use of transmission lines or distribution system or associated facilities with such lines or system by any licensee or consumer or a person engaged in generation in accordance with the regulations specified by the AppropriateThe Act mandates that it shall be duty of the transmission utility/licensee to provide non-discriminatory open access to its transmission system to every licensee and generating company. Open access in transmission thus enables the licensees (distribution licensees and traders) and generating companies the right to use the transmission systems without any discrimination. This would facilitate sale of electricity directly to the distribution companies. This would generate competition amongst the sellers and help reduce, gradually, the cost of generation/procurement.23. While open access in transmission implies freedom to the licensee to procure power from any source of his choice, open access in distribution with which we are concerned here, means freedom to the consumer to get supply from any source of his choice. The provision of open access to consumers, ensures right of the consumer to get supply from a person other than the distribution licensee of his area of supply by using the distribution system of such distribution licensee. Unlike in transmission, open access in distribution has not been allowed from the outset primarily because of considerations of cross-subsidies. The law provides that open access in distribution would be allowed by the State Commissions in phases. For this purpose, the State Commissions are required to specify the phases and conditions of introduction of open access.24. However open access can be allowed on payment of a surcharge, to be determined by the State Commission, to take care of the requirements of current level of cross-subsidy and the fixed cost arising out of theobligation to supply. Consequent to the enactment of the Electricity (Amendment) Act, 2003, it has been mandated that the State Commission shall within five years necessarily allow open access to consumers having demand exceeding one megawatt.(3) CSS: Its Rationale25. The issue of open access surcharge is very crucial and implementation of the provision of open access depends on judicious determination of surcharge by the State Commissions. There are two aspects to the concept of surcharge – one, the cross-subsidy surcharge i.e. the surcharge meant to take care of the requirements of current levels of cross-subsidy, and the other, the additional surcharge to meet the fixed cost of the distribution licensee arising out of his obligation to supply. The presumption, normally is that generally the bulk consumers would avail of open access, who also pay at relatively higher rates. As such, their exit would necessarily have adverse effect on the finances of the existing licensee, primarily on two counts – one, on its ability to cross-subsidise the vulnerable sections of society and the other, in terms of recovery of the fixed cost such licensee might have incurred as part of his obligation to supply electricity to that consumer on demand (stranded costs). The mechanism of surcharge is meant to compensate the licensee for both these aspects.26. Through this provision of open access, the law thus balances the right of the consumers to procure power from a source of his choice and the legitimate claims/interests of the existing licensees. Apart from ensuring freedom to the consumers, the provision of open access is expected to encourage competition amongst the suppliers and also to put pressure on the existing utilities to improve their performance in terms of quality and price of supply so as to ensure that the consumers do not go out of their fold to get supply from some other source.27. With this open access policy, the consumer is given a choice to take electricity from any Distribution Licensee. However, at the same time the Act makes provision of surcharge for taking care of current level of cross subsidy. Thus, the State Electricity Regulatory Commissions are authorized to frame open access in distribution in phases with surchargeCurrent level of cross subsidy to be gradually phased out along with cross subsidies; and(b) obligation to supply.Therefore, in the aforesaid circumstances though CSS is payable by the Consumer to the Distribution Licensee of the area in question when it decides not to take supply from that company but to avail it from another distribution licensee. In nutshell, CSS is a compensation to the distribution licensee irrespective of the fact whether its line is used or not, in view of the fact that, but for the open access the consumer would pay tariff applicable for supply which would include an element of cross subsidy surcharge on certain other categories of consumers. What is important is that a consumer situated in an area is bound to contribute to subsidizing a low and consumer if he falls in the category of subsidizing consumer. Once a cross subsidy surcharge is fixed for an area it is liable to be paid and such payment will be used for meeting the current levels of cross subsidy within the area. A fortiorari, even a licensee which purchases electricity for its own consumption either through aor throughld be liable to pay Cross Subsidy Surcharge under the Act. Thus, Cross Subsidy Surcharge, broadly speaking, is the charge payable by a consumer who opt to avail power supply through open access from someone other than such Distribution licensee in whose area it is situated. Such surcharge is meant to compensate such Distribution licensee from the loss of cross subsidy that such Distribution licensee would suffer by reason of the consumer taking supply from someone other than such Distribution licensee.(4) Application of the CSS Principle29. In the present case, admittedly, the Appellant (which happens to be the operator of an SEZ) is situate within the area of supply of WESCO. It is seeking to procure its entire requirement of electricity from Sterlite (an Independent Power Producer(which at the relevant time was a sister concern under the same management) and thereby is seeking to denude WESCO of the Cross Subsidy that WESCO would otherwise have got from it if WESCO were to supply electricity to the Appellant. In order to be liable to pay cross subsidy surcharge to a distribution licensee, it is necessary that such distribution licensee must be a distribution licensee in respect of the area where the consumer is situated and it is not necessary that such consumer should be connected only to such distribution licensee but it would suffice if it is awithin the aforesaid definition.30. Having regard to the aforesaid scheme, in normal course when the Appellant has entered to PPA with Sterlite, another Electricity Generating Company and is purchasing electricity from the said Company it is liable to pay CSS to the WESCO. Admittedly under the PPA, the Appellant is purchasing his electricity from the said generating station and it is consumed by the single integrated unit of the Appellant. The Appellant therefore, qualifies to be aunder Section 2(15) of the Electricity Act. It is also not in dispute that the unit of the Appellant is in the area which is covered by the licenses granted to WESCO as distribution licenses.31. Notwithstanding the above, because of the reason that the area where the unit of Val-SEZ unit of the Appellant is situate is a SEZ area and the Appellant is declared as developer for that area under the SEZ Act, it is the contention of the Appellant that in such a scenario it is not liable to pay any CSS to the WESCO. This submission flows from the fact that there is a notification issued in this behalf under proviso to Section 49 of the SEZ Act and the Appellant itself is treated as a deemed Distribution Licensee as per the provisions of Section 14 of the Electricity Act. On that basis, detailed submissions are made by the Appellant with an attempt to show that it cannot be treated as aunder the Electricity Act when the Appellant itself is deemed to be a licensee. It is further argued that since the supply line of VAL-SEZ is not connected to WESCO and it is getting the electricity directly from Sterlite under the PPA, there is no question of payment of CSS to WESCO at all. Argument of the WESCO that the lines owned by the VAL-SEZ are onlyer Section 2 of the Electricity Act and notbecause of the reason that the duty of the Generator to establish and maintain dedicated transmission lines, is sought to be refuted by arguing that even as per Section 2(72) of the Act Transmission Lines are part of the Distribution System ofIt is argued that it is not even the case of WESCO that the supply line of SEL-VAL is a part of WESCO Distribution System.(5) Factual Aspect of the Electricity Supply to the Appellant:32. In order to appreciate these arguments, it would appropriate to first advert to the factual aspect of the supply of electricity by Sterlite to the Appellant under the PPA. No doubt the Appellant is getting direct supply of electricity from Sterlite. However, question is as to whether, in the process, it is using dedicated transmission lines of WESCO. We may point out at the outset that such an argument was not even raised before the two authorities below. Primarily it was argued that having acquired the status of deemed distribution licensee under the Electricity Act, it cannot be treated as aof other distribution licensee, viz. the WESCO. Even the question of law which is proposed and framed in the grounds of appeal and is already reproduced, does not raise this issue, which is even otherwise factual. Notwithstanding, the Learned Counsel for the WESCO has argued that the transmission line between the Sterlite and the Appellant is not a dedicated transmission line for the followingUnder Section 2(16) of the Electricity Act, 2003, ais an electric supply line fortransmission, which are required for the purpose of connecting electric line or electric plan of a generating station toor theas the case mayThe Transmission Line in question commences from the Generator (Sterlite) and connects to the 400 KV Sub-Station at Sterlite end at Jharsuguda. It does not connect directly to thech is the Appellant.(c) The 400 KV Busbar at the Generator (Sterlite) end is connected to a 200 KV Busbnar at VAL-CGP caters to the VAL - Smelter 1 in the Domestic Tariff Area.(d) The said 400/200 KV sub-station is also connected to the OPTCL Grid (State Transmission Utility) at Budhipadar through 220 KV Bus at VAL – CGP endpurpose of evacuation of Sterlite power to GRIDCO as well as drawal of power by VAL – Smelter – 1.(e) The said 400/220 kv sub-station is also connected to Power Grid Corporation of India (PGCIL) line from which 2 nos of 400 KV Lines emanate for Interstate sale of its Sterlite power through PGCIL Grid.(f) The said 400/220 kv sub-station which is connected through 5 Km of 220 KV line to the 220 KV Bus of switching station at VAL – CGP end. There are 4of 200 KV transmission lines branching out from the said 220 KV switching station to carry power to VAL Smelter-1 Unit of the Appellant which is within the area of the Distribution Licensee (WESCO).(g) The said 400/220 kv sub-station also has 2 nos of 33 KV Tertiary transmission lines from 100/220/33 KV Transformer supplying electricity to Vedanta Township.(h) Three such 400 KV Transmission lines emanating from the 400 KV Busbar at the Sterlite-IPP (Generator end) also happens to Supply power from the sub-station to theload centre (VAL-Smelter-2) in the SEZ area.(i) Hence, the only part of thetransmission line, if at all, is from the Generating Station 9Sterlite – IPP) to such 400 KV Busbar of the 400/220 KV Grid Sub-station.(j) The transmission line that connects the sub-station to the load centre of the Appellant is only aer Section 2(72) of the EP 2003.Following diagram is placed by WESCO to demonstrate this:[pic]34. Though the Appellant endeavoured to counter this position and has given its own diagram that does not lodge the aforesaid factual aspect. Therefore, prima facie we accept the position as explained by the WESCO. Thus we feel that notwithstanding that supply line of SEL-VAL is transmission line, but notThe Appellant cannot run away from the fact that under Section 2(10) of the Electricity Act, it is the duty of the Generating Company (i.e. WESCO) in this case to establish, operate and maintain dedicated transmission lines. Since it is duty bound to establish, operate and maintain these dedicated lines by making huge investment, in order to get into the consumption in the area in question the very necessity of payment of CSS arises by the consumer of Electricity covered by the definition ofunder Section 2(15) of the Act but is not getting supply of that Generator and someone else. We have also to keep in mind the provision of Regulation 27 of OERC (Conditions of Supply Code) Regulation 2004. As per this Regulation thell be the property of the licensee unless otherwise specified in writing. This clause reads asThe entire service line, notwithstanding that whole or portion thereof has been paid for by the consumer, shall be the property of the licensee and shall be maintained by the licensee who shall always have the right to use itthe supply ofenergy to any other person unless the line has been providedve use of the consumer through any arrangement agreed to in writing.Further as per Rule 4 of the Electricity Rule, 2005 the aforesaid line would be deemed to be part of Distribution System ofDistribution System – The distribution system of a distribution licensee in terms of sub-section (19) of section 2 of the Act shall also include electric line, sub-station and electrical plant that are primarily maintainedpurpose of distributing electricity in the area of supply of such distribution licensee notwithstanding that such line, sub- station or electrical plant are high pressure cables or overhead lines or associated with such high pressure cables or overhead lines; or used incidentallyes of transmitting electricity foris defined in Section 2(19) of the Act tomeans the system of wires and associated facilities between the delivery points on the transmission linesng station connection and the point of connection to the installation of theis defined in Section 2(72) tomeans all high pressure cables and overhead lines (not being an essential part of the distribution system of a licensee) transmitting electricity from a generating station to another generating station or a sub-station, together with any step-up and step-down transformers, switch-gear and otherAppellant deemed distribution Licensee: Its effect36. It is now to be seen as to whether the fact that the Appellant is a Developer in SEZ, armed with Notification dated 3rd March, 2010 issued under Proviso to Section 49 of the SEZ Act and it deemed distribution licensee as per Section 14 of the Electricity Act, this would take away the Appellant from the clutches of CSS liability?37. In order to appreciate this argument let us first refer to the certain statutory provisions:Section 49 of the Special Economic Zone Act provides asto modify provisions of this Act or other enactments in relation to Special Economic Zones.(1) the Central Government may, by notification, direct that any of the provision of this Act (other than Section 54 and 56) or any other Central Act or any rules or regulations made thereunder or any notification or Order issued or direction given thereunder (other than the provisions relating to making of the rules or regulations) specified in the notification-(a) shall not apply to a Special Economic Zone or a class of Special Economic Zones or all Special Economic Zones: or(b) shall apply to a Special Economic Zone or a class of Special Economic Zones or all Specials Economic Zones only with such exceptions, modifications and adaptation, as may be specified in the notifications.Likewise Section 14 of the Electricity Act reads asGrant of LicenseThe Appropriate Commission may, on application made to it under section 15, grant any person licence to any person –(a) To transmit electricity as a transmission licensee: or(b) To distribute electricity as a distribution licensee: or(c) To undertake trading in electricity as an electricity trader, in any area which may be specified in the licence:Provided that any person engaged in the business of transmission or supply or electricity under the provisions of the repealed laws or any Act specified in the Schedule on or before the appointed date shall be deemed to be a licensee under this Act for such period as may be stipulated in the licence, clearance or approval granted to him under the repealed laws or such Act specified in the Schedule, and the provisions of the repealed laws or such Act specified in the Schedule in respect of such licence shall apply for a period of one year from the date of commencement of this Act or such earlier period as may be specified, at the request of the licensee, by the Appropriate Commission and thereafter the provisions of this Act shall apply to such business:Provided further that the Central transmission Utilityte Transmission Utility shall be deemed to be a transmission licensee under this Act:Provided also that in case an Appropriate Government transmits electricity or distributes electricity or undertakes trading in electricity, whether before or after the commencement of this Act, such Government shall be deemed to be a licensee under this Act, but shall not be required to obtain a licence under this Act:Provided also that the Damodar Valley Corporation, established under sub-section(1) of section 3 of the Damodar Valley Corporation Act, 1948, shall be deemed to be a licensee under this Act but shall not be required to obtain a licence under this Act and the provisions of the Damodar Valley Corporation Act, 1948, in so far as they are not inconsistent with the provisions of this Act, shall continue to apply to that Corporation:Provided also that the Government Companyny referred to in sub-section (2) of section 131 of this Act and the company or companies created in pursuance of the Acts specified in the Schedule, shall be deemed to be a licensee under this Act.Provided also that the Appropriate Commission may grant a licence to two or more persons for distribution of electricity through their own distribution system within the same area, subject to the conditions that the applicant for grant of licence within the same area, subject to the conditions that the applicant for grant of licence within the same area shall, without prejudice to the other conditions or requirements under this Act, comply with the additional requirements (including the capital adequacy, credit worthiness, or code of conduct) as may be prescribed by the Central Government, and no such applicant who complies with all the requirements for grant of licence, shall be refused grant of licence on the ground that there already exists a licensee in the same areme purpose:Provided also that in a case where a distribution licensee proposes to undertake distribution of electricity for a specified area within his area of supply through another person, that person shall not be required to obtain any separate licence from the concerned State Commission and such distribution licensee shall be responsible for distribution of electricity in his area of supply:Provided also that where a person intends to generate and distribute electricity in a rural area to be notified by the State Government, such person shall not require any licence for such generation and distribution of electricity, but he shall comply with the measures which may be specified by the Authority under section 53:Provided also that a distribution licensee shall not require a licence to undertake trading in electricity.No.528(E). In exercise of the powers conferred by clause(b) of sub-section (1) of section 49 of the Special Economic zones Act, 2005 (28 of 2005), the Central Government hereby notifies that the provisions of clause (b) of section 14 of the Electricity Act, 2003 (36 of 2003), shall apply to all Special Economic Zones notified under sub-section (1) of section 4 of the Special Economic Zones Act, 2005, subject to the following modification, namely:-In clause (b) of section 14 of the Electricity Act, 2003 (36 of 2003), the following proviso shall be inserted,that the Developer of a Special Economic Zone notified under sub section (1) of section 4 of the Special Economic Zones Act, 2005 shall be deemed to be a licenseepurpose of this clause, with effect from the date of notification of such Special Economic Zone.The reading of Section 49 of SEZ Act would reveal that the Central Government has got the authority to direct that any of the provisions of a Central Act and rules and regulations made thereunder would not apply or to declare that some of the provisions of the Central Acts shall apply with exceptions, modifications and adaptation to the Special Economic Zone. So, under the scheme of Special Economic Zone Act, Central Government has to first notify as to what extent the provision of the other Acts are to be made applicable or applicable with modification or not applicablethe Special Economic Zonearea. It is in furtherance thereto, the Government of India, Ministry of Commerce and Industry through its notification dated 21st March, 2012, with regard to power generation in Special Economic Zone, has declared that all the provisions of the Electricity Act, 2003 and Electricity Rule, 2005 shall be applicable to the generation, transmission and distribution of power, whether stand alone or captive power. This notification would clarify that there is no inconsistency between Special Economic Zone Act, 2005 and Electricity Act, 2003.41. No doubt vide Notification dated 3rd March, 2010 Central Government has added an additional proviso to Clause (b) of Section 14 of the Electricity Act viz. the Appellant shall be deemed to be licenseepurpose of the said clause w.e.f. the date of notification of such SEZ. It is on this basis, the argument of the Appellant is that as it is already a deemed Distribution Licensee it need not apply for this license to the said Commission before entering into the PPA and the State Government is bound to grant the License. This contention is negated by the Appellate Tribunal on two grounds which are asThere has to be a harmonious construction of SEZ Act and Electricity Act to give effect to the provisions of both the acts so long as they are not consistent with each other in the opinion of the Tribunal. The provisions of Section 51 of SEZ Act, 2005 are to be considered along with the provisions of Section 49 of the said Act. Accordingly, in view of the provision of the SEZ Act, 2005 and consequent notification by the Ministry of Commerce and Industry, the deemed distribution licensee status as claimed by the Appellant should also be tested through other provisions of the Electricity Act, 2003 and Electricity Rules, 2005, for certifying its validity and converting it into a formal distribution licensee. In fact, the Appellant has submitted to the jurisdiction of the State Commission, by filing a petition before the State Commission seeking for approval of the PPA and also for grant of distribution licence. The Appellate Tribunal, thus queried as to how could the Appellant now question the jurisdiction?(ii) The Appellate Tribunal pointed out that there are none provisos to Section 14(b) of the Electricity Act and another is added in respect of the Appellant vide Notification dated 3rd March, 2010. A reading of these provisos would indicate that some of them confer status of deemed distribution licensee on certain specified entities who are not required to take separate licence from the State Commission under this Act whereas some other provisos merely declare the party as deemed licensee and nothing specified as to whether they are required to obtain the licence or not. However when it is specially provided in proviso 4 and proviso 8 and 2 that the Damodar Valley Corporation and State Government are not required to obtain licence, and other provisos do not confer such privilege, they would be required to obtain licence.Further discussion on this aspect by the Appellate Tribunal is asKeeping this in mind, the statute makers by the notification dated 3.03.2010 have inserted the additional proviso to Section 14(b) of the Electricity Act. Admittedly, the development and operation of the SEZ are two distinct activities. Thus, the jurisdiction of the State Commission to scruitinise the deemed distribution status of the Appellant is well established in view of the Section 49(1) of SEZ, Act, 2005 and the notification of the Central Government dated 21.03.2012. Therefore, the contention of the Appellant that the State Commission dealt with the matter relating to the grant of distribution licence by going beyond its jurisdiction is misplaced.43. It is noticed that the Ministry of Commerce and Industry (Department of SEZ Section) has accorded SEZ status to the Appellant for development and operation and maintenance of sector specific Special Economic Zone for manufacture and export of aluminium on the condition that the Appellant should establish captive generating plant as stipulated in the approval letter of Ministry of Commerce and Industry but it is pointed out the still the plant has not been established for various reasons. If Captive generating plant of 1215 MW had been established as per the condition inside the SEZ area, the question of power purchase from Sterlite Energy Limited under the pretext of distribution licensee status would not have arisen. That apart, the State Commission has framed Orissa Electricity Regulatory Commission (conduct of business) Regulation, 2004 under the powers conferred under Section 181 of the Electricity Act, 2003. The distribution of electricity Licence (Additional requirement of Capital Adequacy, Credit Worthiness and Code of Conduct) Rules, 2005 framed by the Central Government also would apply to the Appellant for distribution licence in addition to the requirements of StateRegulations.45. Section 174 of the Electricity Act provides that the provisions of the Electricity Act shall have to overriding effect notwithstanding anything inconsistent with any other lawtime being in force or in any instrument having effect by virtue of any law other than Electricity Act. That apart, Section 175 also provides that the provisions of the Electricity Act are in addition to and not in derogation of any other lawtime being in force.47. The perusal of the notification dated 03.03.2010 would make it evident that theintention for declaring the developer in SEZ area as deemed distribution licence, is confined only to clause-b of Section 14 of Electricity Act, which deals with the grant of license by the appropriate State Commission to any person for distribution of electricity. The said notification has not curtailed the power of State Commission so far as the applicability of other provisions is concerned. The interpretation of various relevant terms was necessary prior to grant of deemed distribution licence by the State Commission. Therefore, the State Commission rightly acted upon those provisions. As a matter of fact, by the said amendment by inserting another proviso to Section 14(b), the context has not been changed as claimed by the Appellant.49. As correctly indicated by the State Commission, the definition of termas enumerated under Section 2(17) of Electricity Act, 2003, emphasizes upon the distribution licensee to operate and maintain a distribution system and supply of power to the consumers. Considering the definition ofin Section 2(70), the supply here means sale of electricity to consumers. By merely being authorized to operate and maintain a distribution system as a deemed licensee, would not confer the status of distribution licensee to any person. The purpose of such establishment is for supply of power to consumers. Mere fact that the Appellant claims to be a deemed distribution licensee is of no consequence at all since admittedly, the entire power purchased by the Appellant is for its own use and consumption and notpurpose of distribution and supply/sale to consumers.50. An entity which utilizes the entire quantum of electricity for its own consumption and does not have any other consumers, cannot, by such a notification, be deemed to be distribution licensee, even by a legal fiction. By virtue of the legal fiction created by the notification dated 3.03.2010, the Developer of SEZ notified under the SEZ Act, who distributes electricity can be deemed to be a distribution licensee. Thus, this legal fiction cannot go further and make a person who does not distribute electricity to the consumers as to distribution licensee. Therefore there is no merit in the contention of the Appellant.We are in agreement with the aforesaid rationale in the impugned order of the Appellate Tribunal as that is the only manner in which the two Acts can be harmoniously construed. To recapitulate briefly, in the present case no doubt by virtue of the status of a developer in the SEZ area, the Appellant is also treated as deemed Distribution Licensee. However with this, it only gets exemption from specifically applying for licence under Section 14 of the Act. In order to avail further benefits under the Act, the Appellant is also required to show that it is in fact having distribution system and has number of consumers to whom it is supplying the electricity. That is not the case here. For its own plant only, it is getting the electricity from Sterlite Ltd. for which it has entered into PPA. We have to keep in mind the object and scheme of SEZ Act which envisages several units being set up in a SEZ area. This is evident from a collective reading of the various provisions of the SEZ Act viz. Section 2(g)(j)(za)(zc), Section 3, 4, 11, 12, 13 and 15. There can be a Sector Specific SEZ with Several Units i.e. for IT, Mineral Based Industries etc. but instances of single unit SEZ like in the present case of the Appellant may be rare. The Notification dated 03.03.2010 providingof SEZ being deemed as aas issued keeping in view the concept of Multi Unit SEZs and will apply only to such cases in which the Developer is supplying the power to multiple Units in the SEZ. The said Notification will not apply to a Developer like the Appellant who has established the SEZ only for itself. | 0 | 10,032 | 5,952 | ### Instruction:
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distinct activities. Thus, the jurisdiction of the State Commission to scruitinise the deemed distribution status of the Appellant is well established in view of the Section 49(1) of SEZ, Act, 2005 and the notification of the Central Government dated 21.03.2012. Therefore, the contention of the Appellant that the State Commission dealt with the matter relating to the grant of distribution licence by going beyond its jurisdiction is misplaced.43. It is noticed that the Ministry of Commerce and Industry (Department of SEZ Section) has accorded SEZ status to the Appellant for development and operation and maintenance of sector specific Special Economic Zone for manufacture and export of aluminium on the condition that the Appellant should establish captive generating plant as stipulated in the approval letter of Ministry of Commerce and Industry but it is pointed out the still the plant has not been established for various reasons. If Captive generating plant of 1215 MW had been established as per the condition inside the SEZ area, the question of power purchase from Sterlite Energy Limited under the pretext of distribution licensee status would not have arisen. That apart, the State Commission has framed Orissa Electricity Regulatory Commission (conduct of business) Regulation, 2004 under the powers conferred under Section 181 of the Electricity Act, 2003. The distribution of electricity Licence (Additional requirement of Capital Adequacy, Credit Worthiness and Code of Conduct) Rules, 2005 framed by the Central Government also would apply to the Appellant for distribution licence in addition to the requirements of State Commission’s Regulations.45. Section 174 of the Electricity Act provides that the provisions of the Electricity Act shall have to overriding effect notwithstanding anything inconsistent with any other law for the time being in force or in any instrument having effect by virtue of any law other than Electricity Act. That apart, Section 175 also provides that the provisions of the Electricity Act are in addition to and not in derogation of any other law for the time being in force.47. The perusal of the notification dated 03.03.2010 would make it evident that the legislation’s intention for declaring the developer in SEZ area as deemed distribution licence, is confined only to clause-b of Section 14 of Electricity Act, which deals with the grant of license by the appropriate State Commission to any person for distribution of electricity. The said notification has not curtailed the power of State Commission so far as the applicability of other provisions is concerned. The interpretation of various relevant terms was necessary prior to grant of deemed distribution licence by the State Commission. Therefore, the State Commission rightly acted upon those provisions. As a matter of fact, by the said amendment by inserting another proviso to Section 14(b), the context has not been changed as claimed by the Appellant.49. As correctly indicated by the State Commission, the definition of term “distribution licensee” as enumerated under Section 2(17) of Electricity Act, 2003, emphasizes upon the distribution licensee to operate and maintain a distribution system and supply of power to the consumers. Considering the definition of ‘supply’ in Section 2(70), the supply here means sale of electricity to consumers. By merely being authorized to operate and maintain a distribution system as a deemed licensee, would not confer the status of distribution licensee to any person. The purpose of such establishment is for supply of power to consumers. Mere fact that the Appellant claims to be a deemed distribution licensee is of no consequence at all since admittedly, the entire power purchased by the Appellant is for its own use and consumption and not for the purpose of distribution and supply/sale to consumers.50. An entity which utilizes the entire quantum of electricity for its own consumption and does not have any other consumers, cannot, by such a notification, be deemed to be distribution licensee, even by a legal fiction. By virtue of the legal fiction created by the notification dated 3.03.2010, the Developer of SEZ notified under the SEZ Act, who distributes electricity can be deemed to be a distribution licensee. Thus, this legal fiction cannot go further and make a person who does not distribute electricity to the consumers as to distribution licensee. Therefore there is no merit in the contention of the Appellant. 43. We are in agreement with the aforesaid rationale in the impugned order of the Appellate Tribunal as that is the only manner in which the two Acts can be harmoniously construed. To recapitulate briefly, in the present case no doubt by virtue of the status of a developer in the SEZ area, the Appellant is also treated as deemed Distribution Licensee. However with this, it only gets exemption from specifically applying for licence under Section 14 of the Act. In order to avail further benefits under the Act, the Appellant is also required to show that it is in fact having distribution system and has number of consumers to whom it is supplying the electricity. That is not the case here. For its own plant only, it is getting the electricity from Sterlite Ltd. for which it has entered into PPA. We have to keep in mind the object and scheme of SEZ Act which envisages several units being set up in a SEZ area. This is evident from a collective reading of the various provisions of the SEZ Act viz. Section 2(g)(j)(za)(zc), Section 3, 4, 11, 12, 13 and 15. There can be a Sector Specific SEZ with Several Units i.e. for IT, Mineral Based Industries etc. but instances of single unit SEZ like in the present case of the Appellant may be rare. The Notification dated 03.03.2010 providing for the “Developer” of SEZ being deemed as a “Distribution Licensee” was issued keeping in view the concept of Multi Unit SEZs and will apply only to such cases in which the Developer is supplying the power to multiple Units in the SEZ. The said Notification will not apply to a Developer like the Appellant who has established the SEZ only for itself.
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### Explanation:
by the notification dated 3.03.2010 have inserted the additional proviso to Section 14(b) of the Electricity Act. Admittedly, the development and operation of the SEZ are two distinct activities. Thus, the jurisdiction of the State Commission to scruitinise the deemed distribution status of the Appellant is well established in view of the Section 49(1) of SEZ, Act, 2005 and the notification of the Central Government dated 21.03.2012. Therefore, the contention of the Appellant that the State Commission dealt with the matter relating to the grant of distribution licence by going beyond its jurisdiction is misplaced.43. It is noticed that the Ministry of Commerce and Industry (Department of SEZ Section) has accorded SEZ status to the Appellant for development and operation and maintenance of sector specific Special Economic Zone for manufacture and export of aluminium on the condition that the Appellant should establish captive generating plant as stipulated in the approval letter of Ministry of Commerce and Industry but it is pointed out the still the plant has not been established for various reasons. If Captive generating plant of 1215 MW had been established as per the condition inside the SEZ area, the question of power purchase from Sterlite Energy Limited under the pretext of distribution licensee status would not have arisen. That apart, the State Commission has framed Orissa Electricity Regulatory Commission (conduct of business) Regulation, 2004 under the powers conferred under Section 181 of the Electricity Act, 2003. The distribution of electricity Licence (Additional requirement of Capital Adequacy, Credit Worthiness and Code of Conduct) Rules, 2005 framed by the Central Government also would apply to the Appellant for distribution licence in addition to the requirements of StateRegulations.45. Section 174 of the Electricity Act provides that the provisions of the Electricity Act shall have to overriding effect notwithstanding anything inconsistent with any other lawtime being in force or in any instrument having effect by virtue of any law other than Electricity Act. That apart, Section 175 also provides that the provisions of the Electricity Act are in addition to and not in derogation of any other lawtime being in force.47. The perusal of the notification dated 03.03.2010 would make it evident that theintention for declaring the developer in SEZ area as deemed distribution licence, is confined only to clause-b of Section 14 of Electricity Act, which deals with the grant of license by the appropriate State Commission to any person for distribution of electricity. The said notification has not curtailed the power of State Commission so far as the applicability of other provisions is concerned. The interpretation of various relevant terms was necessary prior to grant of deemed distribution licence by the State Commission. Therefore, the State Commission rightly acted upon those provisions. As a matter of fact, by the said amendment by inserting another proviso to Section 14(b), the context has not been changed as claimed by the Appellant.49. As correctly indicated by the State Commission, the definition of termas enumerated under Section 2(17) of Electricity Act, 2003, emphasizes upon the distribution licensee to operate and maintain a distribution system and supply of power to the consumers. Considering the definition ofin Section 2(70), the supply here means sale of electricity to consumers. By merely being authorized to operate and maintain a distribution system as a deemed licensee, would not confer the status of distribution licensee to any person. The purpose of such establishment is for supply of power to consumers. Mere fact that the Appellant claims to be a deemed distribution licensee is of no consequence at all since admittedly, the entire power purchased by the Appellant is for its own use and consumption and notpurpose of distribution and supply/sale to consumers.50. An entity which utilizes the entire quantum of electricity for its own consumption and does not have any other consumers, cannot, by such a notification, be deemed to be distribution licensee, even by a legal fiction. By virtue of the legal fiction created by the notification dated 3.03.2010, the Developer of SEZ notified under the SEZ Act, who distributes electricity can be deemed to be a distribution licensee. Thus, this legal fiction cannot go further and make a person who does not distribute electricity to the consumers as to distribution licensee. Therefore there is no merit in the contention of the Appellant.We are in agreement with the aforesaid rationale in the impugned order of the Appellate Tribunal as that is the only manner in which the two Acts can be harmoniously construed. To recapitulate briefly, in the present case no doubt by virtue of the status of a developer in the SEZ area, the Appellant is also treated as deemed Distribution Licensee. However with this, it only gets exemption from specifically applying for licence under Section 14 of the Act. In order to avail further benefits under the Act, the Appellant is also required to show that it is in fact having distribution system and has number of consumers to whom it is supplying the electricity. That is not the case here. For its own plant only, it is getting the electricity from Sterlite Ltd. for which it has entered into PPA. We have to keep in mind the object and scheme of SEZ Act which envisages several units being set up in a SEZ area. This is evident from a collective reading of the various provisions of the SEZ Act viz. Section 2(g)(j)(za)(zc), Section 3, 4, 11, 12, 13 and 15. There can be a Sector Specific SEZ with Several Units i.e. for IT, Mineral Based Industries etc. but instances of single unit SEZ like in the present case of the Appellant may be rare. The Notification dated 03.03.2010 providingof SEZ being deemed as aas issued keeping in view the concept of Multi Unit SEZs and will apply only to such cases in which the Developer is supplying the power to multiple Units in the SEZ. The said Notification will not apply to a Developer like the Appellant who has established the SEZ only for itself.
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Union of India & Others Vs. K.P.S. Raghuvanshi & Others | DGICG before completion of 90 days mandatory period. Thus, the officer DGICG, who had not completed 90 days, was competent as apparent from the notings of Secretary. The following matter was placed for consideration before the Ministry of Defence : "File Note 3 of MoD dated 16.04.2009 also states as under: "Vice Admiral Anil Chopra AVSM has taken over as DGICG on 1st December, 2008 Vice Admiral RF Contractor, retired on superannuation. The review of ACRs of Coast Guard Officers from whom the report is due as on 1st February 2009 need not be carried out by the incumbent DGICG as has not rendered 3 months of service to observe their workings on the date of the report due." File notings dated 21.04.2009 by Shri R.K. Sharma, Deputy Director (Personnel), OA&R, Coast Guard Headquarters at para 2 is also significant, which reads as under:- "In this connection, it is intimated that there has been no precedent where special dispensation has been sought from MoD on the subject matter." The Under Secretary (CG)/MoD in his note dated 22.04.2009 states that:- In view of the above, we may inform CGHQ to follow the instructions contained in CGO 04/05." 45. Thereafter, the matter travelled to Ministry of Defence and Defence Secretary and the Director. The Ministry of Defence communication dated 23.4.09 is as extracted below: "Ministry of Defence D (CG-R) Subject: Review of ACRs - Coast Guard Officers CGHQ may kindly refer to their Note No. OF/0303/ACR dated 13th April, 2009 on the subject mentioned above. 2. Review of ACRs by the Officer who has not observed the CG Officers for three months may be completed as per provisions of the CGO 04/2005. (V.K.Tiwary) Director (N-II) DDG/CGHQ M of D ID No.472/D(CG-R)09 dated 23rd April, 2009" It is apparent from the aforesaid note dated 22.04.2009, that review of the officers, who has not observed, may be completed as per provisions of 04/05, i.e., in accordance with para 54 of the CGO 04/05. 46. The High Court has misread the decision of the MoD and the order of Secretary. In fact, the Secretary, Ministry of Defence has also said in the notings that ACRs be completed as per CGO 04/05. CGO 04/05 authorized the current incumbent the DGICG to write the ACRs. Thus, the High Court has gravely erred in law in holding otherwise by misreading the notings as well as the provisions of para 54 of the CGO 04/05. There was no question of violation of the direction issued by the Secretary, MoD. CGO 04/05 was final, which hold field, and the action was in terms of the order as well as in accordance with said notings of Secretary, MoD. 47. Thus, in our opinion, the High Court ought not to have cast aspersions on the bonafide of DGICG, particularly, when he has reviewed not only the ACR of the concerned officer but 36 officers of the DIG rank and of 155 officers of Commandant rank. The observations made by the High Court about unauthorized exercise of power were totally uncalled for. 48. Coming to the question of correctness of remarks made by the reviewing officer, it appears that the period of ACR was 01.02.2008 to 31.01.2009, the DGICG had mentioned that - "the officer has put in a creditable performance at sea. His Ship accomplishment have been a trifle diluted by a few accidents and incidents. A hardworking, dedicated officer, who is articulate and sincere to his profession. Somewhat over assessed by the IO. I have maintained the numerical grading of my predecessor." We do not find anything adverse in the aforesaid comments made by the reviewing officer with respect to any particular incident of November 2007. One of the incidents relating to ship had taken place in November, 2007 with respect to that show cause was pending and was finalised later on. Other incident relating to ship, which was mentioned in the appraisal report, was of the year 2008, which was of the relevant period. Be that as it may, the notings, which have been made, does not show any prejudice on the part of the DGICG, in particular when he has maintained the numerical gradings made by his predecessor. It is apparent from the facts that there were 3 posts of general duty branch and the respondent was placed at serial No.4, among the general duty branch and thus, was left out. It is also apparent that criteria has not been changed in order to oblige IG-K.C. Pande as apparent from the fact that DPC had considered the cases of DIGs of the ranks, seniority up to 31.10.2005. The batch of the respondent comprised of 5 officers including him, which had completed 5 ACR of DIG. Respondent IG-K.C. Pande had only three reports, i.e., for the years 2005, 2006 and 2008 in the rank of DIG. Thus, all the 5 officers of the respondent batch were considered in accordance with para 7 CGO 02/09, which is extracted hereunder :CGO 02/2009 "7. The suitability for promotion shall be based in relevant service records and performance as reflected in the last five years confidential reports in the current rank. If sufficient ACRs are not available in current rank, consecutive 05 ACRs including those of previous rank will be considered. However, in case of Commandant (JG) the ACR years in the current rank will only be considered." 49. The High Court has misdirected itself in attributing uncalled for malafide, behind promulgation of the CGO 02/09. As already held, it was in order to bring the same in tune with the instructions issued by the Department of Personnel and Training. Earlier too, similar provision as that of para 7 of CGO 02/09 existed in CGO 14/02 before issuance of CGO 02/05. The process was initiated for issuance of CGO 02/09 w.e.f. 2005, it was not that all of a sudden the exercise had been undertaken in order to oblige any particular officer. We find no merit in the appeal preferred by DIG K.P.S. Raghuvanshi. | 1[ds]We are unable to accept the aforesaid contention raised on behalf of the appellant, as it was disputed by Shri B.P. Singh, learned counsel appearing on behalf of Respondent No.1. Even otherwise, the concession on legal aspect is of no utility. However, we find that leave was granted by this Court vide order dated 27.11.2015 in the Special Leave Petitions. Apart from that, we find that the application being I.A. No.1/15 had been filed on behalf of the appellants for modification of the order passed by this Court on 21.11.2014 and a prayer was made to modify the said order and to grant liberty to file Special Leave Petition afresh challenging the main order in case of dismissal of review application. For grant of such liberty in the present IA No.1/15, reliance has been placed on a decision of this Court dated 10.4.2015 in I.A No.3 in SLP(C)No. 25293/2013, in which this Court had modified a similar order dated 05.08.2013, so as to permit the petitioner to assail the main impugned order dated 20.12.2012, as also the order passed on review, in case the petitioner is unsuccessful in the review petition.In the facts and circumstances of the present case, when the leave to file appeal has been granted, we deem it appropriate to modify the order dated 21.11.2014 passed by this Court, to the effect that liberty is granted to assail the order passed by the High Court on 04.09.2014 in a fresh Special Leave Petition, in case Review application is dismissed.Though, reliance has been placed by the respondent on a decision of this Court in Sandhya Educational Societys case (supra), wherein it has been laid down that once Special Leave Petition has been withdrawn with liberty to file review application, without taking permission to file the Special Leave Petition afresh, main order cannot be questioned again. We need not enter into the question, as this question is referred to a larger Bench in "Khoday Distilleries Ltd. and Ors. v. Mahadeshwara S.S.K. Ltd., 2013(1) R.C.R.(Civil) 287 : (2012) 12 SCC 291. However, as we have modified the order, the appeals are maintainable.It is apparent from the aforesaid Rule 11(i)(c) and the Office Memorandum dated 30.05.1995, which has been referred to by the learned counsel for the parties, that financial sanction is necessary for creation of posts. In the instant case, it was not the case set up by the respondent that the financial sanction was already granted before the matter was placed before CCS. The High Court has also not found that financial sanction was granted before the matter was placed before CCS. In our opinion, posts can be said to be created finally when Presidents approval was conveyed vide communications dated 22.05.2009 and 23.06.2009 as provided under Article 77 of the Constitution of India. Be that as it may, even if we assume for the sake of argument that sanction had been granted by the Finance Ministry before the matter was placed in CCS and CCS had finally created posts on 16.02.2009 that would not tilt the matter in the instant case in favour of Respondent No.1 for the reasons to be mentioned hereafter.Firstly, it is not the case of the change of any Rules and where appointment procedure had been initiated by issuance of an advertisement and Rules had been amended subsequently or the procedure for promotion had been delayed, this Court has taken the view that the Rules which were in existence, when the vacancies arose, should be taken into consideration until and unless otherwise specifically so decided. In the case of Y.V. Rangaiah (Supra), there was a delay in preparing list for promotion which was required to be prepared by September, 1976. It was prepared in 1977 after amendment of Rules for promotion. By virtue of amendments, original rule for considering LDCs with UDCs for promotion was deleted. The amendment affected promotional chances of the LDCs, Hence, the vacancies which arose in 1976 were ordered to be filled from eligible persons including LDCs. Situation in the instant case is different, there is no amendment made in the Rules for promotion and only ACR criteria has been changed. Thus, ratio of Y.V. Rangaiah (supra) is not attracted. In our considered opinion, the posts in question had been created only in the year 2009. They were not in existence earlier. There was no delay in calling DPC. Thus, determinative date for applicability of procedure would be the date of DPC. The CGO 02/09 which was issued after exercise of 4 years was in force. Thus, the High Court has committed grave error in law in holding that the CGO 02/05 should be applied and complied with, particularly, when the date of DPC was 23.07.2009. It is the date of DPC which matters in the instant case and the procedure which is prevalent on the date on which the DPC is held is applicable. Thus, the provisions contained in CGO 02/09 would hold the field and DPC was rightly held as per instructions relating to ACRs contained in CGO 02/09.Ministry has mentioned in notings of 17.06.2009 that matter of promotion was submitted for approval of the Defence Secretary and Defence Secretary has earlier approved the filling up of all posts as per instruction 02/05. However, in our opinion, CGO 02/09 did not require approval of MoD. It was not sent for the purpose of approval but it was sent only for the purposes ofis apparent from the aforesaid delegation of powers that Ministry of Defence has to be consulted only when there are financial implications while issuing CGO, not otherwise.Since there was financial implications for the creation of posts, administrative clearance had already been granted and by virtue of grant of sanction by the President of India, posts came to be created and before that, matter must have travelled to Ministry of Finance. The order dated 17.08.2001 is with respect to Delegation of Administrative Powers putting the rider of consultation of MoD(finance), when matter has financial implication and not with respect to issuance of CGO 02/09, pertaining to ACR criteria, which had no financial implication for issuance of which DGICG was fully competent under the Rules of 1986. Thus, it was not necessary for the CGO, not having financial implications, to travel for approval to the Ministry of Defencethat as it may, the fact remains that earlier when the Secretary of MoD considered the matter on 16.04.2009, the CGO 02/09 was not promulgated. Once the CGO 02/09 has been promulgated, it would hold the field, not the order dated 16.04.2009 of Secretary, MoD. The promotion is required to be considered as per law not as per the decision of administrative authorities. The DPC which was held in the month of July, 2009, in our opinion, was required to be held as per CGO 02/09 and it was rightly so held.Coming to another unsavory comment made by the High Court with respect to violation of CGO 04/05 and notings of Secretary with respect to review of ACR forThe High Court has clearly misread not only the notings made by the Secretary, MoD, but also the provisions of para 54 of the CGO orderbare reading of the aforesaid provisions in para 54 makes it clear that if the Reviewing Officer has not observed an officer for a minimum period of three months, review can be done by previous officer provided he is still in service. It is not disputed in the instant case that, Shri R.F. Contractor, the previous incumbent, who was holding the post of DGICG, had retired on 30.11.2008 and on 01.12.2008 the present incumbent came to hold the said post who had not completed 90 days. It is apparent, in case previous incumbent had retired or is otherwise not available to review report a notation remarks to that effect, has to be made by the RO in the relevant column to enable the present RO to review such report. No doubt, such notation was required to be made so as to reflect the competence of officer to write review as general permission was sought in this case to write review of ACRs of large number of officers that amounted to notation for purpose of reviewing the ACRs. Admittedly, previous incumbent had retired. He was not available to make the said notation in the relevant column and not making the notation in the relevant column by present incumbent would be inconsequential since, admittedly, the previous incumbent had retired and thus was not available to write the review. Obviously, the review could be undertaken in the facts of the case by DGICG before completion of 90 days mandatory period. Thus, the officer DGICG, who had not completed 90 days, was competent as apparent from the notings ofis apparent from the aforesaid note dated 22.04.2009, that review of the officers, who has not observed, may be completed as per provisions of 04/05, i.e., in accordance with para 54 of the CGO 04/05.The High Court has misread the decision of the MoD and the order of Secretary. In fact, the Secretary, Ministry of Defence has also said in the notings that ACRs be completed as per CGO 04/05. CGO 04/05 authorized the current incumbent the DGICG to write the ACRs. Thus, the High Court has gravely erred in law in holding otherwise by misreading the notings as well as the provisions of para 54 of the CGO 04/05. There was no question of violation of the direction issued by the Secretary, MoD. CGO 04/05 was final, which hold field, and the action was in terms of the order as well as in accordance with said notings of Secretary, MoD.Thus, in our opinion, the High Court ought not to have cast aspersions on the bonafide of DGICG, particularly, when he has reviewed not only the ACR of the concerned officer but 36 officers of the DIG rank and of 155 officers of Commandant rank. The observations made by the High Court about unauthorized exercise of power were totally uncalledPande had only three reports, i.e., for the years 2005, 2006 and 2008 in the rank of DIG. Thus, all the 5 officers of the respondent batch were considered in accordance with para 7 CGOThe High Court has misdirected itself in attributing uncalled for malafide, behind promulgation of the CGO 02/09. As already held, it was in order to bring the same in tune with the instructions issued by the Department of Personnel and Training. Earlier too, similar provision as that of para 7 of CGO 02/09 existed in CGO 14/02 before issuance of CGO 02/05. The process was initiated for issuance of CGO 02/09 w.e.f. 2005, it was not that all of a sudden the exercise had been undertaken in order to oblige any particular officer. We find no merit in the appeal preferred by DIG K.P.S. | 1 | 8,404 | 2,001 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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DGICG before completion of 90 days mandatory period. Thus, the officer DGICG, who had not completed 90 days, was competent as apparent from the notings of Secretary. The following matter was placed for consideration before the Ministry of Defence : "File Note 3 of MoD dated 16.04.2009 also states as under: "Vice Admiral Anil Chopra AVSM has taken over as DGICG on 1st December, 2008 Vice Admiral RF Contractor, retired on superannuation. The review of ACRs of Coast Guard Officers from whom the report is due as on 1st February 2009 need not be carried out by the incumbent DGICG as has not rendered 3 months of service to observe their workings on the date of the report due." File notings dated 21.04.2009 by Shri R.K. Sharma, Deputy Director (Personnel), OA&R, Coast Guard Headquarters at para 2 is also significant, which reads as under:- "In this connection, it is intimated that there has been no precedent where special dispensation has been sought from MoD on the subject matter." The Under Secretary (CG)/MoD in his note dated 22.04.2009 states that:- In view of the above, we may inform CGHQ to follow the instructions contained in CGO 04/05." 45. Thereafter, the matter travelled to Ministry of Defence and Defence Secretary and the Director. The Ministry of Defence communication dated 23.4.09 is as extracted below: "Ministry of Defence D (CG-R) Subject: Review of ACRs - Coast Guard Officers CGHQ may kindly refer to their Note No. OF/0303/ACR dated 13th April, 2009 on the subject mentioned above. 2. Review of ACRs by the Officer who has not observed the CG Officers for three months may be completed as per provisions of the CGO 04/2005. (V.K.Tiwary) Director (N-II) DDG/CGHQ M of D ID No.472/D(CG-R)09 dated 23rd April, 2009" It is apparent from the aforesaid note dated 22.04.2009, that review of the officers, who has not observed, may be completed as per provisions of 04/05, i.e., in accordance with para 54 of the CGO 04/05. 46. The High Court has misread the decision of the MoD and the order of Secretary. In fact, the Secretary, Ministry of Defence has also said in the notings that ACRs be completed as per CGO 04/05. CGO 04/05 authorized the current incumbent the DGICG to write the ACRs. Thus, the High Court has gravely erred in law in holding otherwise by misreading the notings as well as the provisions of para 54 of the CGO 04/05. There was no question of violation of the direction issued by the Secretary, MoD. CGO 04/05 was final, which hold field, and the action was in terms of the order as well as in accordance with said notings of Secretary, MoD. 47. Thus, in our opinion, the High Court ought not to have cast aspersions on the bonafide of DGICG, particularly, when he has reviewed not only the ACR of the concerned officer but 36 officers of the DIG rank and of 155 officers of Commandant rank. The observations made by the High Court about unauthorized exercise of power were totally uncalled for. 48. Coming to the question of correctness of remarks made by the reviewing officer, it appears that the period of ACR was 01.02.2008 to 31.01.2009, the DGICG had mentioned that - "the officer has put in a creditable performance at sea. His Ship accomplishment have been a trifle diluted by a few accidents and incidents. A hardworking, dedicated officer, who is articulate and sincere to his profession. Somewhat over assessed by the IO. I have maintained the numerical grading of my predecessor." We do not find anything adverse in the aforesaid comments made by the reviewing officer with respect to any particular incident of November 2007. One of the incidents relating to ship had taken place in November, 2007 with respect to that show cause was pending and was finalised later on. Other incident relating to ship, which was mentioned in the appraisal report, was of the year 2008, which was of the relevant period. Be that as it may, the notings, which have been made, does not show any prejudice on the part of the DGICG, in particular when he has maintained the numerical gradings made by his predecessor. It is apparent from the facts that there were 3 posts of general duty branch and the respondent was placed at serial No.4, among the general duty branch and thus, was left out. It is also apparent that criteria has not been changed in order to oblige IG-K.C. Pande as apparent from the fact that DPC had considered the cases of DIGs of the ranks, seniority up to 31.10.2005. The batch of the respondent comprised of 5 officers including him, which had completed 5 ACR of DIG. Respondent IG-K.C. Pande had only three reports, i.e., for the years 2005, 2006 and 2008 in the rank of DIG. Thus, all the 5 officers of the respondent batch were considered in accordance with para 7 CGO 02/09, which is extracted hereunder :CGO 02/2009 "7. The suitability for promotion shall be based in relevant service records and performance as reflected in the last five years confidential reports in the current rank. If sufficient ACRs are not available in current rank, consecutive 05 ACRs including those of previous rank will be considered. However, in case of Commandant (JG) the ACR years in the current rank will only be considered." 49. The High Court has misdirected itself in attributing uncalled for malafide, behind promulgation of the CGO 02/09. As already held, it was in order to bring the same in tune with the instructions issued by the Department of Personnel and Training. Earlier too, similar provision as that of para 7 of CGO 02/09 existed in CGO 14/02 before issuance of CGO 02/05. The process was initiated for issuance of CGO 02/09 w.e.f. 2005, it was not that all of a sudden the exercise had been undertaken in order to oblige any particular officer. We find no merit in the appeal preferred by DIG K.P.S. Raghuvanshi.
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### Explanation:
prevalent on the date on which the DPC is held is applicable. Thus, the provisions contained in CGO 02/09 would hold the field and DPC was rightly held as per instructions relating to ACRs contained in CGO 02/09.Ministry has mentioned in notings of 17.06.2009 that matter of promotion was submitted for approval of the Defence Secretary and Defence Secretary has earlier approved the filling up of all posts as per instruction 02/05. However, in our opinion, CGO 02/09 did not require approval of MoD. It was not sent for the purpose of approval but it was sent only for the purposes ofis apparent from the aforesaid delegation of powers that Ministry of Defence has to be consulted only when there are financial implications while issuing CGO, not otherwise.Since there was financial implications for the creation of posts, administrative clearance had already been granted and by virtue of grant of sanction by the President of India, posts came to be created and before that, matter must have travelled to Ministry of Finance. The order dated 17.08.2001 is with respect to Delegation of Administrative Powers putting the rider of consultation of MoD(finance), when matter has financial implication and not with respect to issuance of CGO 02/09, pertaining to ACR criteria, which had no financial implication for issuance of which DGICG was fully competent under the Rules of 1986. Thus, it was not necessary for the CGO, not having financial implications, to travel for approval to the Ministry of Defencethat as it may, the fact remains that earlier when the Secretary of MoD considered the matter on 16.04.2009, the CGO 02/09 was not promulgated. Once the CGO 02/09 has been promulgated, it would hold the field, not the order dated 16.04.2009 of Secretary, MoD. The promotion is required to be considered as per law not as per the decision of administrative authorities. The DPC which was held in the month of July, 2009, in our opinion, was required to be held as per CGO 02/09 and it was rightly so held.Coming to another unsavory comment made by the High Court with respect to violation of CGO 04/05 and notings of Secretary with respect to review of ACR forThe High Court has clearly misread not only the notings made by the Secretary, MoD, but also the provisions of para 54 of the CGO orderbare reading of the aforesaid provisions in para 54 makes it clear that if the Reviewing Officer has not observed an officer for a minimum period of three months, review can be done by previous officer provided he is still in service. It is not disputed in the instant case that, Shri R.F. Contractor, the previous incumbent, who was holding the post of DGICG, had retired on 30.11.2008 and on 01.12.2008 the present incumbent came to hold the said post who had not completed 90 days. It is apparent, in case previous incumbent had retired or is otherwise not available to review report a notation remarks to that effect, has to be made by the RO in the relevant column to enable the present RO to review such report. No doubt, such notation was required to be made so as to reflect the competence of officer to write review as general permission was sought in this case to write review of ACRs of large number of officers that amounted to notation for purpose of reviewing the ACRs. Admittedly, previous incumbent had retired. He was not available to make the said notation in the relevant column and not making the notation in the relevant column by present incumbent would be inconsequential since, admittedly, the previous incumbent had retired and thus was not available to write the review. Obviously, the review could be undertaken in the facts of the case by DGICG before completion of 90 days mandatory period. Thus, the officer DGICG, who had not completed 90 days, was competent as apparent from the notings ofis apparent from the aforesaid note dated 22.04.2009, that review of the officers, who has not observed, may be completed as per provisions of 04/05, i.e., in accordance with para 54 of the CGO 04/05.The High Court has misread the decision of the MoD and the order of Secretary. In fact, the Secretary, Ministry of Defence has also said in the notings that ACRs be completed as per CGO 04/05. CGO 04/05 authorized the current incumbent the DGICG to write the ACRs. Thus, the High Court has gravely erred in law in holding otherwise by misreading the notings as well as the provisions of para 54 of the CGO 04/05. There was no question of violation of the direction issued by the Secretary, MoD. CGO 04/05 was final, which hold field, and the action was in terms of the order as well as in accordance with said notings of Secretary, MoD.Thus, in our opinion, the High Court ought not to have cast aspersions on the bonafide of DGICG, particularly, when he has reviewed not only the ACR of the concerned officer but 36 officers of the DIG rank and of 155 officers of Commandant rank. The observations made by the High Court about unauthorized exercise of power were totally uncalledPande had only three reports, i.e., for the years 2005, 2006 and 2008 in the rank of DIG. Thus, all the 5 officers of the respondent batch were considered in accordance with para 7 CGOThe High Court has misdirected itself in attributing uncalled for malafide, behind promulgation of the CGO 02/09. As already held, it was in order to bring the same in tune with the instructions issued by the Department of Personnel and Training. Earlier too, similar provision as that of para 7 of CGO 02/09 existed in CGO 14/02 before issuance of CGO 02/05. The process was initiated for issuance of CGO 02/09 w.e.f. 2005, it was not that all of a sudden the exercise had been undertaken in order to oblige any particular officer. We find no merit in the appeal preferred by DIG K.P.S.
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Tejinder Singh Gujral Vs. Inderjit Singh | examined and treated him and awarded compensation under different heads. In regard to his future loss of income, the Tribunal noticed his income tax returns for the financial year prior to his meeting with the accident as also the year in question. The annual loss to his private practice was taken at Rs. 700/- per month. 13. The learned Tribunal, however, committed an error in opining that the insurance policy was not required to be proved. The learned Single Judge of the High Court, in our opinion, rightly held that the insurance policy having not brought on records, a presumption would arise that the liability of the insurer was unlimited. The learned Single Judge adopted a rather liberal approach. He took into consideration the entire evidence on records including the extent of disability allegedly suffered by Appellant. It was opined: "The appellant is lawyer by the profession. This profession needs unhampered concentration for the full devotion to the cases he might handle. When bodily pain and suffering subsist and there is even danger of such pain resulting in attack of the engina it certainly amounts to a great incapacity in performance of his professional duties by the appellant. The agony and suffering on this account which last with his life is difficult to measure in terms of money but I am decidedly of the view that damages to the tune of Rs. 50,000/- as awarded by the learned Tribunal under this head are grossly inadequate. Keeping in view all the facts and circumstances brought on the record, I shall assess damages under this Head at Rs. 1,00,000/-." 14. It was held that he was also entitled to the services of his wife who in turn would require some outside assistance and on that head awarded a sum of Rs. 57,600/-. He furthermore awarded interest at the rate of 12% per annum.15. The Division Bench, in our opinion, had also taken a somewhat liberal view in favour of Appellant than he deserved. The Division Bench of the High Court opined that Appellant might have to engage a driver and for the said purpose awarded compensation at the rate of Rs. 700/- per month from the date of filing of claim petition till the award by the Tribunal. Appellant now wants the amount of compensation to be enhanced on that head. We decline to do so for more than one reason.16. Appellant has not proved that he had bought a car. He even on the date of accident was merely riding on a scooter. He has not brought on record any evidence to show that even at that point of time he could afford a car. As indicated hereinbefore, the learned Single Judge as also the Division Bench of the High Court was more than generous in enhancing the amount of compensation. 17. So far as the question of interest is concerned, it is true that the same need not be claimed specifically. Interest is granted by way of compensation but, as has been held in Abati Bezbaruah v. Dy. Director General, Geological Survey of India and Another [(2003) 3 SCC 148] , the same must be a reasonable one. In Abati Bezbaruah (supra), this Court directed payment of interest only at the rate of 9% per annum, whereas the rate of interest awarded in favour of the claimant was @ 12% per annum. 18. Lakshmanan, J. in his separate judgment, whereupon Mr. Malik has placed strong reliance, opined that the rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life, etc. into consideration. Grant of interest is discretionary. We do not find that the discretion exercised by the High Court was in any manner unreasonable. 19. Reliance has been placed by the learned counsel in Abati Bezbaruah (supra) for the proposition of law that that future prospect of income should also be taken into consideration. We may notice that in that case multiplier of 15 was applied. The Tribunal had noticed that the income of the deceased as assessed only at Rs.3,500/- per month and, thus, the loss of dependency should have been enhanced to the tune of Rs. 2,000/- per month. This Court instead of granting Rs. 42,000/- per year increased the same to Rs. 45,000/- per year and the loss of dependency was, thus, calculated at Rs. 30,000/- instead of Rs. 28,000/-. The claimant in that case was a salaried person. 20. Appellant herein before us is in legal profession. He may have suffered some injuries but the same would not mean that he would not be in a position to rise in his profession only by reason thereof. We, therefore, decline to enhance any amount of compensation in this behalf. 21. So far as the amount of interest is concerned, we may notice that in Devi Dayal Kansal and Others v. Raj Roop and Another [(2000) 10 SCC 314] this Court merely opined that interest would have been directed to be granted on the enhanced compensation but no law in absolute terms was laid down therefor. 22. The learned Single Judge has awarded interest at the rate of 12% per annum. The rate of interest now granted is 9% per annum keeping in view the drastic fall in the bank rate. We, therefore, do not intend to interfere with the said direction of the High Court. 23. Reliance placed by Mr. Malik on Lata Wadhwa (supra) is not apposite. Therein multiplier method for determining compensation was resorted to as death occurred and injuries suffered by many persons in a devastating fire resulted from negligence on the part of the Company. [See Krishna Gupta & Ors. v. Madan Lal & Ors. 96 (2002) DLT 829 ] | 0[ds]13. The learned Tribunal, however, committed an error in opining that the insurance policy was not required to be proved. The learned Single Judge of the High Court, in our opinion, rightly held that the insurance policy having not brought on records, a presumption would arise that the liability of the insurer was unlimited. The learned Single Judge adopted a rather liberal approach. He took into consideration the entire evidence on records including the extent of disability allegedly suffered by Appellant. It wasappellant is lawyer by the profession. This profession needs unhampered concentration for the full devotion to the cases he might handle. When bodily pain and suffering subsist and there is even danger of such pain resulting in attack of the engina it certainly amounts to a great incapacity in performance of his professional duties by the appellant. The agony and suffering on this account which last with his life is difficult to measure in terms of money but I am decidedly of the view that damages to the tune of Rs. 50,000/- as awarded by the learned Tribunal under this head are grossly inadequate. Keeping in view all the facts and circumstances brought on the record, I shall assess damages under this Head at Rs. 1,00,000/-.It was held that he was also entitled to the services of his wife who in turn would require some outside assistance and on that head awarded a sum of Rs. 57,600/-. He furthermore awarded interest at the rate of 12% per annum.15. The Division Bench, in our opinion, had also taken a somewhat liberal view in favour of Appellant than he deserved. The Division Bench of the High Court opined that Appellant might have to engage a driver and for the said purpose awarded compensation at the rate of Rs. 700/- per month from the date of filing of claim petition till the award by the Tribunal. Appellant now wants the amount of compensation to be enhanced on that head. We decline to do so for more than one reason.16. Appellant has not proved that he had bought a car. He even on the date of accident was merely riding on a scooter. He has not brought on record any evidence to show that even at that point of time he could afford a car. As indicated hereinbefore, the learned Single Judge as also the Division Bench of the High Court was more than generous in enhancing the amount of compensation.Lakshmanan, J. in his separate judgment, whereupon Mr. Malik has placed strong reliance, opined that the rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life, etc. into consideration. Grant of interest is discretionary. We do not find that the discretion exercised by the High Court was in any manner unreasonable.Appellant herein before us is in legal profession. He may have suffered some injuries but the same would not mean that he would not be in a position to rise in his profession only by reason thereof. We, therefore, decline to enhance any amount of compensation in this behalf.The learned Single Judge has awarded interest at the rate of 12% per annum. The rate of interest now granted is 9% per annum keeping in view the drastic fall in the bank rate. We, therefore, do not intend to interfere with the said direction of the High Court. | 0 | 2,120 | 669 | ### Instruction:
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examined and treated him and awarded compensation under different heads. In regard to his future loss of income, the Tribunal noticed his income tax returns for the financial year prior to his meeting with the accident as also the year in question. The annual loss to his private practice was taken at Rs. 700/- per month. 13. The learned Tribunal, however, committed an error in opining that the insurance policy was not required to be proved. The learned Single Judge of the High Court, in our opinion, rightly held that the insurance policy having not brought on records, a presumption would arise that the liability of the insurer was unlimited. The learned Single Judge adopted a rather liberal approach. He took into consideration the entire evidence on records including the extent of disability allegedly suffered by Appellant. It was opined: "The appellant is lawyer by the profession. This profession needs unhampered concentration for the full devotion to the cases he might handle. When bodily pain and suffering subsist and there is even danger of such pain resulting in attack of the engina it certainly amounts to a great incapacity in performance of his professional duties by the appellant. The agony and suffering on this account which last with his life is difficult to measure in terms of money but I am decidedly of the view that damages to the tune of Rs. 50,000/- as awarded by the learned Tribunal under this head are grossly inadequate. Keeping in view all the facts and circumstances brought on the record, I shall assess damages under this Head at Rs. 1,00,000/-." 14. It was held that he was also entitled to the services of his wife who in turn would require some outside assistance and on that head awarded a sum of Rs. 57,600/-. He furthermore awarded interest at the rate of 12% per annum.15. The Division Bench, in our opinion, had also taken a somewhat liberal view in favour of Appellant than he deserved. The Division Bench of the High Court opined that Appellant might have to engage a driver and for the said purpose awarded compensation at the rate of Rs. 700/- per month from the date of filing of claim petition till the award by the Tribunal. Appellant now wants the amount of compensation to be enhanced on that head. We decline to do so for more than one reason.16. Appellant has not proved that he had bought a car. He even on the date of accident was merely riding on a scooter. He has not brought on record any evidence to show that even at that point of time he could afford a car. As indicated hereinbefore, the learned Single Judge as also the Division Bench of the High Court was more than generous in enhancing the amount of compensation. 17. So far as the question of interest is concerned, it is true that the same need not be claimed specifically. Interest is granted by way of compensation but, as has been held in Abati Bezbaruah v. Dy. Director General, Geological Survey of India and Another [(2003) 3 SCC 148] , the same must be a reasonable one. In Abati Bezbaruah (supra), this Court directed payment of interest only at the rate of 9% per annum, whereas the rate of interest awarded in favour of the claimant was @ 12% per annum. 18. Lakshmanan, J. in his separate judgment, whereupon Mr. Malik has placed strong reliance, opined that the rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life, etc. into consideration. Grant of interest is discretionary. We do not find that the discretion exercised by the High Court was in any manner unreasonable. 19. Reliance has been placed by the learned counsel in Abati Bezbaruah (supra) for the proposition of law that that future prospect of income should also be taken into consideration. We may notice that in that case multiplier of 15 was applied. The Tribunal had noticed that the income of the deceased as assessed only at Rs.3,500/- per month and, thus, the loss of dependency should have been enhanced to the tune of Rs. 2,000/- per month. This Court instead of granting Rs. 42,000/- per year increased the same to Rs. 45,000/- per year and the loss of dependency was, thus, calculated at Rs. 30,000/- instead of Rs. 28,000/-. The claimant in that case was a salaried person. 20. Appellant herein before us is in legal profession. He may have suffered some injuries but the same would not mean that he would not be in a position to rise in his profession only by reason thereof. We, therefore, decline to enhance any amount of compensation in this behalf. 21. So far as the amount of interest is concerned, we may notice that in Devi Dayal Kansal and Others v. Raj Roop and Another [(2000) 10 SCC 314] this Court merely opined that interest would have been directed to be granted on the enhanced compensation but no law in absolute terms was laid down therefor. 22. The learned Single Judge has awarded interest at the rate of 12% per annum. The rate of interest now granted is 9% per annum keeping in view the drastic fall in the bank rate. We, therefore, do not intend to interfere with the said direction of the High Court. 23. Reliance placed by Mr. Malik on Lata Wadhwa (supra) is not apposite. Therein multiplier method for determining compensation was resorted to as death occurred and injuries suffered by many persons in a devastating fire resulted from negligence on the part of the Company. [See Krishna Gupta & Ors. v. Madan Lal & Ors. 96 (2002) DLT 829 ]
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0
### Explanation:
13. The learned Tribunal, however, committed an error in opining that the insurance policy was not required to be proved. The learned Single Judge of the High Court, in our opinion, rightly held that the insurance policy having not brought on records, a presumption would arise that the liability of the insurer was unlimited. The learned Single Judge adopted a rather liberal approach. He took into consideration the entire evidence on records including the extent of disability allegedly suffered by Appellant. It wasappellant is lawyer by the profession. This profession needs unhampered concentration for the full devotion to the cases he might handle. When bodily pain and suffering subsist and there is even danger of such pain resulting in attack of the engina it certainly amounts to a great incapacity in performance of his professional duties by the appellant. The agony and suffering on this account which last with his life is difficult to measure in terms of money but I am decidedly of the view that damages to the tune of Rs. 50,000/- as awarded by the learned Tribunal under this head are grossly inadequate. Keeping in view all the facts and circumstances brought on the record, I shall assess damages under this Head at Rs. 1,00,000/-.It was held that he was also entitled to the services of his wife who in turn would require some outside assistance and on that head awarded a sum of Rs. 57,600/-. He furthermore awarded interest at the rate of 12% per annum.15. The Division Bench, in our opinion, had also taken a somewhat liberal view in favour of Appellant than he deserved. The Division Bench of the High Court opined that Appellant might have to engage a driver and for the said purpose awarded compensation at the rate of Rs. 700/- per month from the date of filing of claim petition till the award by the Tribunal. Appellant now wants the amount of compensation to be enhanced on that head. We decline to do so for more than one reason.16. Appellant has not proved that he had bought a car. He even on the date of accident was merely riding on a scooter. He has not brought on record any evidence to show that even at that point of time he could afford a car. As indicated hereinbefore, the learned Single Judge as also the Division Bench of the High Court was more than generous in enhancing the amount of compensation.Lakshmanan, J. in his separate judgment, whereupon Mr. Malik has placed strong reliance, opined that the rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life, etc. into consideration. Grant of interest is discretionary. We do not find that the discretion exercised by the High Court was in any manner unreasonable.Appellant herein before us is in legal profession. He may have suffered some injuries but the same would not mean that he would not be in a position to rise in his profession only by reason thereof. We, therefore, decline to enhance any amount of compensation in this behalf.The learned Single Judge has awarded interest at the rate of 12% per annum. The rate of interest now granted is 9% per annum keeping in view the drastic fall in the bank rate. We, therefore, do not intend to interfere with the said direction of the High Court.
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State Of Orissa Vs. Shyam Sundar Patnaik | Shah, J.1. These three appeals relate to proceedings for assessment of agricultural income-tax under the Orissa Agricultural Income-tax Act, 1947; for the years 1950-51,1951-52 and 1952-53, and raise common questions.2. The respondent represents a joint Hindu family consisting of four members, relationship between whom is explained by the following table:3. Before the relevant years of account Jadimani, Biswambar and Bhagaban had died and Binod Behari, Puran Chandra, Shyam Sundar and Laxmindhar were the surviving members of the family. The joint family owned agricultural lands, cows and buffaloes. The assessing officer determined the income of the respondent for 1950-51 at Rs. 11,949, for 1951-52 at Rs. 10,850 and for 1953-54 at Rs. 9,549. In these sums were included in each year Rs. 200 as income derived by sale of milk of cows and buffaloes maintained by the family. The order of assessment was confirmed by the Assistant Collector of Agricultural Income-tax. In appeals to the Agricultural Income-tax Tribunal, the amount of Rs. 200 in each year derived from sale of milk was excluded and the Tribunal gave to the respondent benefit of the rates prescribed in the Schedule to the Act.4. At the instance of the State of Orissa the following questions were referred to the High Court under S. 29 (2) of the Act:(1) Whether in the facts and circumstances of the case the Tribunal is right in holding that income from milk derived from milch cows maintained by the opposite party is not agricultural income so as to be assessed to income-tax under the Agricultural Income-tax Act, 1947.(2) Whether in the facts and circumstances of the case the Tribunal is right in holding that the Hindu undivided family represented by Sri Shyam Sundar Patnaik in the instant case, is a Hindu undivided family consisting of brothers only.The High Court answered both the questions in the affirmative. The State of Orissa has preferred these appeals with special leave5. Before us the correctness of the answer recorded by the High Court on the first question is not challenged, because the question raised is concluded by the judgment of this Court in Commr of Income-tax, W. B., Calcutta, v. Raja Benoy Kumar Sahas Roy, (1957) 32 ITR 466 : ((S) AIR 1957 SC 768 )6. The second question alone remains to be determined.7. Section 2(1) of the Orissa Agricultural Income-tax Act, 1947 defines "agricultural income. Section 3 defines the incidence of tax on agricultural income. By S. 5 it was provided at the material time that agricultural income-tax shall be payable by every person whose total agricultural income of the previous year exceeds five thousand rupees. By S. 10 it is provided."(1) The total agricultural income of a Hindu undivided family shall be treated as the income of one individual and assessed as such:"Provided that if a Hindu undivided family consists of brothers only as explained in the Schedule, the total agricultural income of the family shall be assessed at the rate specified in the Schedule.(2) * * * *Clause B of the Schedule prescribed the rates of agricultural income-tax in the case of every Hindu undivided family consisting of brothers only:(a) If the share of a bother is five thousand rupees or less. Three pies in the rupees.(b) If the share of a brother exceeds thousand rupees. The average rate applicable to the share of such brother if he were assessed as an individual.The Explanation to the Schedule states that for the purpose of the Schedule "brother includes the son and the son of a son of a brother and the widow of a brother, and the "share of a brother means the portion of the total agricultural income of a Hindu undivided family which would have been allotted to a brother if a partition of the property of such family had been made on the last day of the previous year.8. Binod Behari and Puran Chandra, sons of Biswambar were brothers, and Shyam Sundar and Laxmidhar, sons of Bhagaban were brothers. By the Explanation, the expression "brother includes the son and the son of a son of a brother. The learned Solicitor-General for the State of Orissa submitted that the four members of the respondent could not be regarded as brothers within the meaning of the Schedule, Cl. B. The Solicitor-General concedes that if in the year of assessment, Biswambar and Bhagaban were living and were sought to be taxed in an undivided Hindu family, they could obtain the benefit of Cl. B of the Schedule. Even if one of them had died before the year of account and the family consisted of the surviving brother and the sons of the deceased brother, the benefit of Cl. B would, it is conceded, have been available. But, says the Solicitor-General, after the two brothers Biswambar and Bhagaban died, the family could not be regarded as consisting of brothers only. If, however, by the Explanation clause the expression "brother has been given an artificial meaning as including the son and the son of a son of a brother, it would be difficult to regard the family as not consisting of brothers only. For the purpose of interpreting Cl. B, we must incorporate the Explanation (i) in the expression " consisting of brothers only and by so doing the conclusion is inevitable that an undivided family consisting of sons of the deceased brothers, for the purpose of taxation under the Orissa Agricultural Income-tax Act, would be regarded as one consisting of "brothers only | 0[ds]8. Binod Behari and Puran Chandra, sons of Biswambar were brothers, and Shyam Sundar and Laxmidhar, sons of Bhagaban were brothers. By the Explanation, the expression "brother includes the son and the son of a son of a brother. The learned Solicitor-General for the State of Orissa submitted that the four members of the respondent could not be regarded as brothers within the meaning of the Schedule, Cl. B. The Solicitor-General concedes that if in the year of assessment, Biswambar and Bhagaban were living and were sought to be taxed in an undivided Hindu family, they could obtain the benefit of Cl. B of the Schedule. Even if one of them had died before the year of account and the family consisted of the surviving brother and the sons of the deceased brother, the benefit of Cl. B would, it is conceded, have been available. But, says the Solicitor-General, after the two brothers Biswambar and Bhagaban died, the family could not be regarded as consisting of brothers only. If, however, by the Explanation clause the expression "brother has been given an artificial meaning as including the son and the son of a son of a brother, it would be difficult to regard the family as not consisting of brothers only. For the purpose of interpreting Cl. B, we must incorporate the Explanation (i) in the expression " consisting of brothers only and by so doing the conclusion is inevitable that an undivided family consisting of sons of the deceased brothers, for the purpose of taxation under the Orissa Agricultural Income-tax Act, would be regarded as one consisting of "brothers only | 0 | 1,033 | 310 | ### Instruction:
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Shah, J.1. These three appeals relate to proceedings for assessment of agricultural income-tax under the Orissa Agricultural Income-tax Act, 1947; for the years 1950-51,1951-52 and 1952-53, and raise common questions.2. The respondent represents a joint Hindu family consisting of four members, relationship between whom is explained by the following table:3. Before the relevant years of account Jadimani, Biswambar and Bhagaban had died and Binod Behari, Puran Chandra, Shyam Sundar and Laxmindhar were the surviving members of the family. The joint family owned agricultural lands, cows and buffaloes. The assessing officer determined the income of the respondent for 1950-51 at Rs. 11,949, for 1951-52 at Rs. 10,850 and for 1953-54 at Rs. 9,549. In these sums were included in each year Rs. 200 as income derived by sale of milk of cows and buffaloes maintained by the family. The order of assessment was confirmed by the Assistant Collector of Agricultural Income-tax. In appeals to the Agricultural Income-tax Tribunal, the amount of Rs. 200 in each year derived from sale of milk was excluded and the Tribunal gave to the respondent benefit of the rates prescribed in the Schedule to the Act.4. At the instance of the State of Orissa the following questions were referred to the High Court under S. 29 (2) of the Act:(1) Whether in the facts and circumstances of the case the Tribunal is right in holding that income from milk derived from milch cows maintained by the opposite party is not agricultural income so as to be assessed to income-tax under the Agricultural Income-tax Act, 1947.(2) Whether in the facts and circumstances of the case the Tribunal is right in holding that the Hindu undivided family represented by Sri Shyam Sundar Patnaik in the instant case, is a Hindu undivided family consisting of brothers only.The High Court answered both the questions in the affirmative. The State of Orissa has preferred these appeals with special leave5. Before us the correctness of the answer recorded by the High Court on the first question is not challenged, because the question raised is concluded by the judgment of this Court in Commr of Income-tax, W. B., Calcutta, v. Raja Benoy Kumar Sahas Roy, (1957) 32 ITR 466 : ((S) AIR 1957 SC 768 )6. The second question alone remains to be determined.7. Section 2(1) of the Orissa Agricultural Income-tax Act, 1947 defines "agricultural income. Section 3 defines the incidence of tax on agricultural income. By S. 5 it was provided at the material time that agricultural income-tax shall be payable by every person whose total agricultural income of the previous year exceeds five thousand rupees. By S. 10 it is provided."(1) The total agricultural income of a Hindu undivided family shall be treated as the income of one individual and assessed as such:"Provided that if a Hindu undivided family consists of brothers only as explained in the Schedule, the total agricultural income of the family shall be assessed at the rate specified in the Schedule.(2) * * * *Clause B of the Schedule prescribed the rates of agricultural income-tax in the case of every Hindu undivided family consisting of brothers only:(a) If the share of a bother is five thousand rupees or less. Three pies in the rupees.(b) If the share of a brother exceeds thousand rupees. The average rate applicable to the share of such brother if he were assessed as an individual.The Explanation to the Schedule states that for the purpose of the Schedule "brother includes the son and the son of a son of a brother and the widow of a brother, and the "share of a brother means the portion of the total agricultural income of a Hindu undivided family which would have been allotted to a brother if a partition of the property of such family had been made on the last day of the previous year.8. Binod Behari and Puran Chandra, sons of Biswambar were brothers, and Shyam Sundar and Laxmidhar, sons of Bhagaban were brothers. By the Explanation, the expression "brother includes the son and the son of a son of a brother. The learned Solicitor-General for the State of Orissa submitted that the four members of the respondent could not be regarded as brothers within the meaning of the Schedule, Cl. B. The Solicitor-General concedes that if in the year of assessment, Biswambar and Bhagaban were living and were sought to be taxed in an undivided Hindu family, they could obtain the benefit of Cl. B of the Schedule. Even if one of them had died before the year of account and the family consisted of the surviving brother and the sons of the deceased brother, the benefit of Cl. B would, it is conceded, have been available. But, says the Solicitor-General, after the two brothers Biswambar and Bhagaban died, the family could not be regarded as consisting of brothers only. If, however, by the Explanation clause the expression "brother has been given an artificial meaning as including the son and the son of a son of a brother, it would be difficult to regard the family as not consisting of brothers only. For the purpose of interpreting Cl. B, we must incorporate the Explanation (i) in the expression " consisting of brothers only and by so doing the conclusion is inevitable that an undivided family consisting of sons of the deceased brothers, for the purpose of taxation under the Orissa Agricultural Income-tax Act, would be regarded as one consisting of "brothers only
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### Explanation:
8. Binod Behari and Puran Chandra, sons of Biswambar were brothers, and Shyam Sundar and Laxmidhar, sons of Bhagaban were brothers. By the Explanation, the expression "brother includes the son and the son of a son of a brother. The learned Solicitor-General for the State of Orissa submitted that the four members of the respondent could not be regarded as brothers within the meaning of the Schedule, Cl. B. The Solicitor-General concedes that if in the year of assessment, Biswambar and Bhagaban were living and were sought to be taxed in an undivided Hindu family, they could obtain the benefit of Cl. B of the Schedule. Even if one of them had died before the year of account and the family consisted of the surviving brother and the sons of the deceased brother, the benefit of Cl. B would, it is conceded, have been available. But, says the Solicitor-General, after the two brothers Biswambar and Bhagaban died, the family could not be regarded as consisting of brothers only. If, however, by the Explanation clause the expression "brother has been given an artificial meaning as including the son and the son of a son of a brother, it would be difficult to regard the family as not consisting of brothers only. For the purpose of interpreting Cl. B, we must incorporate the Explanation (i) in the expression " consisting of brothers only and by so doing the conclusion is inevitable that an undivided family consisting of sons of the deceased brothers, for the purpose of taxation under the Orissa Agricultural Income-tax Act, would be regarded as one consisting of "brothers only
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Sukhrani (Dead) By L.Rs. & Ors Vs. Hari Shanker & Others | also contended that the decision of the High Court in the proceeding to set aside the award would not be binding on this Court at a later stage of the same suit and that it was open to him to challenge in this Court the earlier finding of the High Court. The learned Counsel placed reliance on Ratnam Chettiar v. S. M. Kuppuswami Chettiar ((1976) 1 SCC 214 : AIR 1976 SC 1 : (1976) 1 SCR 363) and Jasraj Inder Singh v. Hem Raj Multar Chand ((1977) 2 SCC 155 : (1977) 2 SCR 973 , 981 : AIR 1977 SC 1011 ). 5. The finding of fact arrived at by the High Court are : (1) the business was ancestral, (2) the partition was not vitiated by fraud or misrepresentation and (3) the partition was unfair and prejudicial to interests of the minor sons of Rajaram in so far as it related to the definition of shares in the partnership business. Now, it is not the practice of this Court to interfere with findings of fact arrived at by the High Court except to prevent gross miscarriages of justice. We find no justifiable ground to go behind these findings of fact we, therefore, proceed to consider the questions raised in the appeal on those basic findings. 6. It is true that at an earlier stage of the suit, in the proceeding to set aside the award the High Court recorded a finding that the plaintiff was not entitled to seek reopening of the partition on the ground of unfairness when there was neither nor misrepresentation. It is true that the plaintiff did not further pursue the matter at the stage by taking it in appeal to the Supreme Court but preferred to proceed to the trial of his suit. It is also true that a decision given at an earlier stage of a suit will bind the parties at later stages of the same suit. But it is equally well settled that because a matter has been decided at an earlier stage by interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher Court is not precluded from considering the matter again at a later stage of the same litigation (vide Satvadhvan Ghoshal v. Sm. Deorajin Debi ((1960) 3 SCR 590 : AIR 1960 SC 941 ). So it has been held that the correctness of an order of remand passed by the High Court which was not questioned at that time by filing an appeal in the Supreme Court could nevertheless be challenged later in the Supreme Court in the arising out of the final judgment pronounced in the action (vide Jasraj Indu Singh v. Hem Raj Multan Chand (supra) and Margaret Lalita v. Indo Commercial Bank Ltd. ((1979) 2 SCC 396 : AIR 1979 SC 102 )). In Arjun Singh v. Mohindra Kumar ((1964) 5 SCR 946 , 960 : AIR 1964 SC 993 ) it was held that where an application under Order IX. Rule 7 was dismissed and an appeal was filed against the decree in the suit in which the application was made the propriety of the order rejecting the reopening of the proceeding might. Without doubt be canvassed in the appeal and dealt with by the appellant Court. In our view the same principle applies in the present case and the parties can challenge in this Court in the appeal against the final judgment in the suit any finding given by the High Court at the earlier stage in the suit when the award made by the arbitrators was set aside and the suit thrown open for trial. 7. The only question therefore, requiring our consideration in whether the partition in so far so it related to the business could be reopened on the sole ground that it was unfair and prejudicial to the interest of the minor, when there was no fraud or misrepresentation. In N. R. Raghavachariars Hindu Law (5th Edn.), the learned author has said at page 428 : Ordinarily where a partition has been entered into by adult members of joint family, each of them having minor sons, the minors a represented by their respective fathers in the partition, and it is not open to any of them to challenge the validity of the partition arrangement except where it is alleged and provided that there been fraud vitiating the transaction and resulting in inequity and obviously smaller share having been allotted to a particular adult member who represented his minor son. The mere fact that outwardly or apparently the shares appear to be unequal is no ground for reopening the same at the instance of the minor sons of adult member who was a party to the partition because in a partition arrangement so many factors enter into the reckoning with reference to the proper shares to be allotted and unless it can be distinctly shown that there had been an clement of overreaching or fraud taking advantage of the ignorance or in capacity or other disqualification of of particular member the partition should rarely be reopened. 8. All that we need saw is that he learned author has not referred to any decided case in support of what he has said, but the matter is now no longer res integra. In Ratnam Chettiar v. S. M. Kuppuswami Chettiar (supra), an identical question arose and it was held that even though there was no fraud. Misrepresentation or undue influence a partition could be reopened at the instance of a minor coparcener, despite the fact that his branch was represented by his farther at the partition if the partition was unfair or prejudicial to the interest of the minor. It was also held that the entire partition need not be reopened if the partition was unfair in regard to a distinct and separable part of the scheme of partition. In such an event the reopening of the partition could be suit ably circumscribed. | 0[ds]5. The finding of fact arrived at by the High Court are : (1) the business was ancestral, (2) the partition was not vitiated by fraud or misrepresentation and (3) the partition was unfair and prejudicial to interests of the minor sons of Rajaram in so far as it related to the definition of shares in the partnership business. Now, it is not the practice of this Court to interfere with findings of fact arrived at by the High Court except to prevent gross miscarriages of justice. We find no justifiable ground to go behind these findings of fact we, therefore, proceed to consider the questions raised in the appeal on those basic findings6. It is true that at an earlier stage of the suit, in the proceeding to set aside the award the High Court recorded a finding that the plaintiff was not entitled to seek reopening of the partition on the ground of unfairness when there was neither nor misrepresentation. It is true that the plaintiff did not further pursue the matter at the stage by taking it in appeal to the Supreme Court but preferred to proceed to the trial of his suit. It is also true that a decision given at an earlier stage of a suit will bind the parties at later stages of the same suit. But it is equally well settled that because a matter has been decided at an earlier stage by interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher Court is not precluded from considering the matter again at a later stage of the same litigation (vide Satvadhvan Ghoshal v. Sm. Deorajin Debi ((1960) 3 SCR 590 : AIR 1960 SC 941 ). So it has been held that the correctness of an order of remand passed by the High Court which was not questioned at that time by filing an appeal in the Supreme Court could nevertheless be challenged later in the Supreme Court in the arising out of the final judgment pronounced in the action8. All that we need saw is that he learned author has not referred to any decided case in support of what he has said, but the matter is now no longer res integra. In Ratnam Chettiar v. S. M. Kuppuswami Chettiar (supra), an identical question arose and it was held that even though there was no fraud. Misrepresentation or undue influence a partition could be reopened at the instance of a minor coparcener, despite the fact that his branch was represented by his farther at the partition if the partition was unfair or prejudicial to the interest of the minor. It was also held that the entire partition need not be reopened if the partition was unfair in regard to a distinct and separable part of the scheme of partition. In such an event the reopening of the partition could be suit ably circumscribed. | 0 | 2,612 | 528 | ### Instruction:
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also contended that the decision of the High Court in the proceeding to set aside the award would not be binding on this Court at a later stage of the same suit and that it was open to him to challenge in this Court the earlier finding of the High Court. The learned Counsel placed reliance on Ratnam Chettiar v. S. M. Kuppuswami Chettiar ((1976) 1 SCC 214 : AIR 1976 SC 1 : (1976) 1 SCR 363) and Jasraj Inder Singh v. Hem Raj Multar Chand ((1977) 2 SCC 155 : (1977) 2 SCR 973 , 981 : AIR 1977 SC 1011 ). 5. The finding of fact arrived at by the High Court are : (1) the business was ancestral, (2) the partition was not vitiated by fraud or misrepresentation and (3) the partition was unfair and prejudicial to interests of the minor sons of Rajaram in so far as it related to the definition of shares in the partnership business. Now, it is not the practice of this Court to interfere with findings of fact arrived at by the High Court except to prevent gross miscarriages of justice. We find no justifiable ground to go behind these findings of fact we, therefore, proceed to consider the questions raised in the appeal on those basic findings. 6. It is true that at an earlier stage of the suit, in the proceeding to set aside the award the High Court recorded a finding that the plaintiff was not entitled to seek reopening of the partition on the ground of unfairness when there was neither nor misrepresentation. It is true that the plaintiff did not further pursue the matter at the stage by taking it in appeal to the Supreme Court but preferred to proceed to the trial of his suit. It is also true that a decision given at an earlier stage of a suit will bind the parties at later stages of the same suit. But it is equally well settled that because a matter has been decided at an earlier stage by interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher Court is not precluded from considering the matter again at a later stage of the same litigation (vide Satvadhvan Ghoshal v. Sm. Deorajin Debi ((1960) 3 SCR 590 : AIR 1960 SC 941 ). So it has been held that the correctness of an order of remand passed by the High Court which was not questioned at that time by filing an appeal in the Supreme Court could nevertheless be challenged later in the Supreme Court in the arising out of the final judgment pronounced in the action (vide Jasraj Indu Singh v. Hem Raj Multan Chand (supra) and Margaret Lalita v. Indo Commercial Bank Ltd. ((1979) 2 SCC 396 : AIR 1979 SC 102 )). In Arjun Singh v. Mohindra Kumar ((1964) 5 SCR 946 , 960 : AIR 1964 SC 993 ) it was held that where an application under Order IX. Rule 7 was dismissed and an appeal was filed against the decree in the suit in which the application was made the propriety of the order rejecting the reopening of the proceeding might. Without doubt be canvassed in the appeal and dealt with by the appellant Court. In our view the same principle applies in the present case and the parties can challenge in this Court in the appeal against the final judgment in the suit any finding given by the High Court at the earlier stage in the suit when the award made by the arbitrators was set aside and the suit thrown open for trial. 7. The only question therefore, requiring our consideration in whether the partition in so far so it related to the business could be reopened on the sole ground that it was unfair and prejudicial to the interest of the minor, when there was no fraud or misrepresentation. In N. R. Raghavachariars Hindu Law (5th Edn.), the learned author has said at page 428 : Ordinarily where a partition has been entered into by adult members of joint family, each of them having minor sons, the minors a represented by their respective fathers in the partition, and it is not open to any of them to challenge the validity of the partition arrangement except where it is alleged and provided that there been fraud vitiating the transaction and resulting in inequity and obviously smaller share having been allotted to a particular adult member who represented his minor son. The mere fact that outwardly or apparently the shares appear to be unequal is no ground for reopening the same at the instance of the minor sons of adult member who was a party to the partition because in a partition arrangement so many factors enter into the reckoning with reference to the proper shares to be allotted and unless it can be distinctly shown that there had been an clement of overreaching or fraud taking advantage of the ignorance or in capacity or other disqualification of of particular member the partition should rarely be reopened. 8. All that we need saw is that he learned author has not referred to any decided case in support of what he has said, but the matter is now no longer res integra. In Ratnam Chettiar v. S. M. Kuppuswami Chettiar (supra), an identical question arose and it was held that even though there was no fraud. Misrepresentation or undue influence a partition could be reopened at the instance of a minor coparcener, despite the fact that his branch was represented by his farther at the partition if the partition was unfair or prejudicial to the interest of the minor. It was also held that the entire partition need not be reopened if the partition was unfair in regard to a distinct and separable part of the scheme of partition. In such an event the reopening of the partition could be suit ably circumscribed.
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5. The finding of fact arrived at by the High Court are : (1) the business was ancestral, (2) the partition was not vitiated by fraud or misrepresentation and (3) the partition was unfair and prejudicial to interests of the minor sons of Rajaram in so far as it related to the definition of shares in the partnership business. Now, it is not the practice of this Court to interfere with findings of fact arrived at by the High Court except to prevent gross miscarriages of justice. We find no justifiable ground to go behind these findings of fact we, therefore, proceed to consider the questions raised in the appeal on those basic findings6. It is true that at an earlier stage of the suit, in the proceeding to set aside the award the High Court recorded a finding that the plaintiff was not entitled to seek reopening of the partition on the ground of unfairness when there was neither nor misrepresentation. It is true that the plaintiff did not further pursue the matter at the stage by taking it in appeal to the Supreme Court but preferred to proceed to the trial of his suit. It is also true that a decision given at an earlier stage of a suit will bind the parties at later stages of the same suit. But it is equally well settled that because a matter has been decided at an earlier stage by interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher Court is not precluded from considering the matter again at a later stage of the same litigation (vide Satvadhvan Ghoshal v. Sm. Deorajin Debi ((1960) 3 SCR 590 : AIR 1960 SC 941 ). So it has been held that the correctness of an order of remand passed by the High Court which was not questioned at that time by filing an appeal in the Supreme Court could nevertheless be challenged later in the Supreme Court in the arising out of the final judgment pronounced in the action8. All that we need saw is that he learned author has not referred to any decided case in support of what he has said, but the matter is now no longer res integra. In Ratnam Chettiar v. S. M. Kuppuswami Chettiar (supra), an identical question arose and it was held that even though there was no fraud. Misrepresentation or undue influence a partition could be reopened at the instance of a minor coparcener, despite the fact that his branch was represented by his farther at the partition if the partition was unfair or prejudicial to the interest of the minor. It was also held that the entire partition need not be reopened if the partition was unfair in regard to a distinct and separable part of the scheme of partition. In such an event the reopening of the partition could be suit ably circumscribed.
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Jeewanlal (1929) Limited Vs. Workmen & Another | been fixed. 14. Reference was also made to the decisions in Workmen of Kettlewell Bullen & Co. Ltd. v. The Kettlewell Bullen & Co. Ltd., (C.A. No. 845 of 1966 dated 12th February, 1969); Workmen v. Balmer Lawrie & Co., [1964 - I L.L.J. 380]; (1964) 5 S.C.R. 344, Workmen v. Jessop & Co. Ltd., [1964 - I L.L.J. 451], Associated Power Company Ltd. v. Its Workmen [1964 - I L.L.J. 743], etc., as tending to show that the age of superannuation of industrial workers varied in different regions and the age fixed in any particular case would not necessarily be applicable in another concern. 15. On the other hand, Mr. Dudhia learned counsel for the respondent referred us to the decision in Burmah Shell O. S. & D. Co. v. Their Workmen, [1970 - I L.L.J. 363]. This decision fixing the age of retirement of the workmen at 60 was based on the evidence on record. The Court noted therefrom that in many cases the age of superannuation of workmen had been fixed either by settlement or by awards at 60 years and although the general trend in West Bengal was to fix it at 58 years, so far as Bombay and Delhi areas were concerned, the trend appeared to fix the age of superannuation at 60 years. 16. It must, however, be remembered that the work in this concern (Burmah Shell Co.) could not be described as arduous or hazardous. 17. In M/s. British Paint (India) Ltd. v. Its Workmen, (1969) 2 S.C.R. 522, a case from West Bengal cited by Mr. Dudhia, the company being manufacturers of paints, it was said that the work in the factory was not particularly arduous and, therefore, there was no reason for fixing the age of retirement at a level lower than that of clerical and subordinate staff which was 60 years. Counsel relied on the observations at p. 526 reading :"...... generally speaking there is no reason for making a difference in the age of retirement as between clerical and subordinate staff on the one hand and factory workmen on the other, unless such difference can be justified on cogent and valid grounds. It is only where work in the factory is of a particularly arduous nature that there may be reason for fixing a lower age of retirement for factory workmen as compared to clerical and subordinate staff." The Court incidentally noted that the case of Jessop and Company, (supra) cited at the bar was one of a heavy engineering concern where presumably the work of factory workers was more arduous as compared to that of its clerical and subordinate staff. 18. Reference was also made to the case of Hindustan Antibiotics Ltd. v. Their Workmen, [1967 - I L.L.J. 114], where the Tribunal had raised the age of retirement from 55 to 58 years with a discretion to the company to continue the employee beyond that age. In this case the Court held that the age of retirement of the employees of the company should be raised to 60 years and that it was not proper to give a discretion to the company whether to raise the age of retirement or not, inasmuch as the vesting of such uncontrolled discretion in the employer might lead to manipulation and victimisation. The Court relied on the report of the Normus committee which had taken the view that the retirement age of workmen in all industries should be fixed at 60. 19. The above decisions clearly show that the present day tendency is to fix the age of superannuation generally at 60 unless the Tribunal feels that the work of the operatives is particularly arduous or hazardous where workmen may lose efficiency earlier. The photographs which are on record show that in at least some sections of the factory workmen have to work at machines which resemble some in use in heavy engineering industries. On the materials we do not find it possible to come to any definite conclusion on the point. We may also note that whereas in engineering concerns in West Bengal the age of retirement generally fixed for operatives is 58 years, there is a divergence of opinion as regards operatives in Bombay and Delhi. Much will, therefore, depend on the actual assessment of the nature of the work of the operatives to find out whether it is really so arduous or hazardous as to lead the Certifying Officer or the Court in appeal to the conclusion that the proper age of superannuation should not be raised beyond 58 years. It is rather unfortunate that the Industrial Court ignored the prayer of both parties to make a personal inspection of the factory of the appellants to come to his conclusion. Such personal inspection would have been more valuable than oral evidence by the parties before the Certifying Officer. In this case the Certifying Officer went by his own previous impression without caring to inspect the factory and the Industrial Court ignored the joint prayer in that behalf. We, therefore, feel that the matter should be reinvestigated and the Certifying Officer should inspect the conditions in the factory to come to a conclusion whether the age of superannuation should be left at 58 years or whether it should be raised to 60 years. 20. On the question as to whether the note appended to Standing Order 22-A should be incorporated therein, it seems to us that both the parties took a practical view of things in agreeing to the terms of the note. We are not impressed by Mr. Pais argument that matter No. 10-A of the Schedule to the Bombay Act does not give jurisdiction to the Certifying Officer to incorporate any clause as to the determination of the age of a particular workman when there is a dispute about it. We do not, however, wish to express any final opinion on this point but it appears to us that the note jointly prepared would avoid many disputes. | 1[ds]19. The above decisions clearly show that the present day tendency is to fix the age of superannuation generally at 60 unless the Tribunal feels that the work of the operatives is particularly arduous or hazardous where workmen may lose efficiency earlier. The photographs which are on record show that in at least some sections of the factory workmen have to work at machines which resemble some in use in heavy engineering industries. On the materials we do not find it possible to come to any definite conclusion on the point. We may also note that whereas in engineering concerns in West Bengal the age of retirement generally fixed for operatives is 58 years, there is a divergence of opinion as regards operatives in Bombay and Delhi. Much will, therefore, depend on the actual assessment of the nature of the work of the operatives to find out whether it is really so arduous or hazardous as to lead the Certifying Officer or the Court in appeal to the conclusion that the proper age of superannuation should not be raised beyond 58 years. It is rather unfortunate that the Industrial Court ignored the prayer of both parties to make a personal inspection of the factory of the appellants to come to his conclusion. Such personal inspection would have been more valuable than oral evidence by the parties before the Certifying Officer. In this case the Certifying Officer went by his own previous impression without caring to inspect the factory and the Industrial Court ignored the joint prayer in that behalf. We, therefore, feel that the matter should be reinvestigated and the Certifying Officer should inspect the conditions in the factory to come to a conclusion whether the age of superannuation should be left at 58 years or whether it should be raised to 60 years20. On the question as towhether the note appended to Standing OrderA should be incorporated, it seems to us that both the parties took a practical view of things in agreeing to the terms of the note. We are not impressed by Mr. Pais argument that matter No.A of the Schedule to the Bombay Act does not give jurisdiction to the Certifying Officer to incorporate any clause as to the determination of the age of a particular workman when there is a dispute about it. We do not, however, wish to express any final opinion on this point but it appears to us that the note jointly prepared would avoid many disputes. | 1 | 3,696 | 440 | ### Instruction:
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been fixed. 14. Reference was also made to the decisions in Workmen of Kettlewell Bullen & Co. Ltd. v. The Kettlewell Bullen & Co. Ltd., (C.A. No. 845 of 1966 dated 12th February, 1969); Workmen v. Balmer Lawrie & Co., [1964 - I L.L.J. 380]; (1964) 5 S.C.R. 344, Workmen v. Jessop & Co. Ltd., [1964 - I L.L.J. 451], Associated Power Company Ltd. v. Its Workmen [1964 - I L.L.J. 743], etc., as tending to show that the age of superannuation of industrial workers varied in different regions and the age fixed in any particular case would not necessarily be applicable in another concern. 15. On the other hand, Mr. Dudhia learned counsel for the respondent referred us to the decision in Burmah Shell O. S. & D. Co. v. Their Workmen, [1970 - I L.L.J. 363]. This decision fixing the age of retirement of the workmen at 60 was based on the evidence on record. The Court noted therefrom that in many cases the age of superannuation of workmen had been fixed either by settlement or by awards at 60 years and although the general trend in West Bengal was to fix it at 58 years, so far as Bombay and Delhi areas were concerned, the trend appeared to fix the age of superannuation at 60 years. 16. It must, however, be remembered that the work in this concern (Burmah Shell Co.) could not be described as arduous or hazardous. 17. In M/s. British Paint (India) Ltd. v. Its Workmen, (1969) 2 S.C.R. 522, a case from West Bengal cited by Mr. Dudhia, the company being manufacturers of paints, it was said that the work in the factory was not particularly arduous and, therefore, there was no reason for fixing the age of retirement at a level lower than that of clerical and subordinate staff which was 60 years. Counsel relied on the observations at p. 526 reading :"...... generally speaking there is no reason for making a difference in the age of retirement as between clerical and subordinate staff on the one hand and factory workmen on the other, unless such difference can be justified on cogent and valid grounds. It is only where work in the factory is of a particularly arduous nature that there may be reason for fixing a lower age of retirement for factory workmen as compared to clerical and subordinate staff." The Court incidentally noted that the case of Jessop and Company, (supra) cited at the bar was one of a heavy engineering concern where presumably the work of factory workers was more arduous as compared to that of its clerical and subordinate staff. 18. Reference was also made to the case of Hindustan Antibiotics Ltd. v. Their Workmen, [1967 - I L.L.J. 114], where the Tribunal had raised the age of retirement from 55 to 58 years with a discretion to the company to continue the employee beyond that age. In this case the Court held that the age of retirement of the employees of the company should be raised to 60 years and that it was not proper to give a discretion to the company whether to raise the age of retirement or not, inasmuch as the vesting of such uncontrolled discretion in the employer might lead to manipulation and victimisation. The Court relied on the report of the Normus committee which had taken the view that the retirement age of workmen in all industries should be fixed at 60. 19. The above decisions clearly show that the present day tendency is to fix the age of superannuation generally at 60 unless the Tribunal feels that the work of the operatives is particularly arduous or hazardous where workmen may lose efficiency earlier. The photographs which are on record show that in at least some sections of the factory workmen have to work at machines which resemble some in use in heavy engineering industries. On the materials we do not find it possible to come to any definite conclusion on the point. We may also note that whereas in engineering concerns in West Bengal the age of retirement generally fixed for operatives is 58 years, there is a divergence of opinion as regards operatives in Bombay and Delhi. Much will, therefore, depend on the actual assessment of the nature of the work of the operatives to find out whether it is really so arduous or hazardous as to lead the Certifying Officer or the Court in appeal to the conclusion that the proper age of superannuation should not be raised beyond 58 years. It is rather unfortunate that the Industrial Court ignored the prayer of both parties to make a personal inspection of the factory of the appellants to come to his conclusion. Such personal inspection would have been more valuable than oral evidence by the parties before the Certifying Officer. In this case the Certifying Officer went by his own previous impression without caring to inspect the factory and the Industrial Court ignored the joint prayer in that behalf. We, therefore, feel that the matter should be reinvestigated and the Certifying Officer should inspect the conditions in the factory to come to a conclusion whether the age of superannuation should be left at 58 years or whether it should be raised to 60 years. 20. On the question as to whether the note appended to Standing Order 22-A should be incorporated therein, it seems to us that both the parties took a practical view of things in agreeing to the terms of the note. We are not impressed by Mr. Pais argument that matter No. 10-A of the Schedule to the Bombay Act does not give jurisdiction to the Certifying Officer to incorporate any clause as to the determination of the age of a particular workman when there is a dispute about it. We do not, however, wish to express any final opinion on this point but it appears to us that the note jointly prepared would avoid many disputes.
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19. The above decisions clearly show that the present day tendency is to fix the age of superannuation generally at 60 unless the Tribunal feels that the work of the operatives is particularly arduous or hazardous where workmen may lose efficiency earlier. The photographs which are on record show that in at least some sections of the factory workmen have to work at machines which resemble some in use in heavy engineering industries. On the materials we do not find it possible to come to any definite conclusion on the point. We may also note that whereas in engineering concerns in West Bengal the age of retirement generally fixed for operatives is 58 years, there is a divergence of opinion as regards operatives in Bombay and Delhi. Much will, therefore, depend on the actual assessment of the nature of the work of the operatives to find out whether it is really so arduous or hazardous as to lead the Certifying Officer or the Court in appeal to the conclusion that the proper age of superannuation should not be raised beyond 58 years. It is rather unfortunate that the Industrial Court ignored the prayer of both parties to make a personal inspection of the factory of the appellants to come to his conclusion. Such personal inspection would have been more valuable than oral evidence by the parties before the Certifying Officer. In this case the Certifying Officer went by his own previous impression without caring to inspect the factory and the Industrial Court ignored the joint prayer in that behalf. We, therefore, feel that the matter should be reinvestigated and the Certifying Officer should inspect the conditions in the factory to come to a conclusion whether the age of superannuation should be left at 58 years or whether it should be raised to 60 years20. On the question as towhether the note appended to Standing OrderA should be incorporated, it seems to us that both the parties took a practical view of things in agreeing to the terms of the note. We are not impressed by Mr. Pais argument that matter No.A of the Schedule to the Bombay Act does not give jurisdiction to the Certifying Officer to incorporate any clause as to the determination of the age of a particular workman when there is a dispute about it. We do not, however, wish to express any final opinion on this point but it appears to us that the note jointly prepared would avoid many disputes.
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M.D., M/s. Ramakrishna Poultry P. Ltd Vs. R. Chellappan & Others | passed under Section 17 of the Indian Telegraph Act, then any realignment of the transmission line would have to be effected within the plot of the person at whose instance such realignment is sought. The proposed alternate alignment through the land of the Respondent No.1 was not, therefore, permissible and such proposed alternate alignment was liable to be rejected.25. On the other hand, Mr. R. Nedumaran, learned counsel appearing for the State of Tamil Nadu, while supporting the order passed by the District Collector, urged that the erection of the towers for carrying the transmission lines was for the benefit of the public at large who stood to benefit from the energising of the target area for the improvement of the lot of the people of the area. Mr. Nedumaran, however, also pointed out that from the order of the District Magistrate and Collector dated 30th April, 2007, it would be more or less evident that the poultry sheds had been constructed before the proposed route alignment. From the order of the District Collector, Mr. Nedumaran also pointed out that while the appellant had no objection to the power transmission line being taken over its lands, the District Collector had taken into consideration the limited request made on behalf of the Appellant-Company that the route of the power line be diverted in the eastward direction within the limits of its lands instead of passing through the middle of the said lands which would cause extensive damage to its poultry farm. Mr. Nedumaran submitted that the Collector, by invoking his powers under Section 17(3) of the Indian Telegraph Act, 1885, directed the Appellant-Company to realign the transmission lines in such a way that they did not pass directly above the poultry sheds of the Respondent No.1 situated at S.F. Nos.242/2 and 249/3, Nanniyur Village, Karur Taluk.26. On consideration of the rival submissions made on behalf of the respective parties, it is obvious that a balance will have to be achieved between the appellants grievance and both the technical as well as techno ecological feasibility of altering the route of the transmission lines in keeping with the directions given by the District Collector. The simplest and the most ideal solution would have been to alter the route of the transmission lines so that they did not directly pass over the appellants poultry sheds, particularly when the appellant is ready and willing to bear the expenses of such alteration. However, since, according to the Power Grid Corporation and its experts, that would entail a deviation over the lands of the Respondent No.1, R. Chellappan, the same gave rise to the objections raised by R. Chellappan. Keeping aside the technical aspect of the matter as to whether the order passed by the District Collector was one under Sections 16 or 17 of the Indian Telegraph Act, 1885, in order to arrive at a practical solution to the problem, the Power Grid Corporation accepted the alternate suggestion made on behalf of the Appellant-Company and raised the height of the lowest point of sag of the transmission lines between the two towers on either side of the poultry sheds of the Appellant-company from 46.5 meters To 52 meters, which in practical terms means a clearance of 30 ft. between the lowest point of the sag and the highest point of the poultry shed. Of course, it has been contended by Mr. Ganesh that according to the report of the expert, even if the height of the tower was raised to a 100 meters, the electro-magnetic field created by the transmission of high voltage electricity would still encompass the poultry sheds and adversely affect the reproductive system not only of the chickens but of all living things within that zone. 27. However, what goes against the case of the Appellant-Company is the fact that the purchases of the land for starting the poultry business and the erection of the poultry sheds were effected at a point of time when the process of identifying the route of the transmission lines was already in progress and survey work was being undertaken. We find it difficult to accept that the Appellant-company did not have knowledge of the ongoing project, which is for the benefit of a large number of people of the area as against the interest of a single individual. In view of the objections on behalf of the Power Grid Corporation that the deviation in the transmission lines, as suggested on behalf of the Appellant-company, could not be practically achieved, we are left with the next best solution, i.e., to increase the clearance between the lowest point of the sag of the transmission cable and the top most portion of the appellants poultry sheds. It should not also be forgotten that from the point of the sag on both sides the cable moves upwards and the clearance becomes even greater on both sides of the lowest spot. During the hearing we had asked Mr. Tripathi to confirm with the Engineers of the Power Grid Corporation to explore the possibility of raising the height of the towers even further to lessen the damage, if any, that may be caused to the egg laying capacity of the layers in the appellants poultry farm.28. Although, the response appears to be equivocal, we set aside the order of the Division Bench of the Madras High Court impugned in this appeal and direct the Power Grid Corporation to increase the clearance indicated above from 52 meters to 56 meters so that the clearance between the lowest point of the sag of the cable and the top most portion of the poultry shed is not less than 40 ft.29. The Appellant-Company will be entitled to such compensation to which it may be entitled for use of its lands or the damage caused thereto on account of the erection of the tower/pylon for carrying the transmission lines over the appellants plant, in accordance with the provisions of Section 10(d) of the Indian Telegraph Act, 1885. | 1[ds]We find it difficult to accept that the Appellant-company did not have knowledge of the ongoing project, which is for the benefit of a large number of people of the area as against the interest of a single individual. In view of the objections on behalf of the Power Grid Corporation that the deviation in the transmission lines, as suggested on behalf of the Appellant-company, could not be practically achieved, we are left with the next best solution, i.e., to increase the clearance between the lowest point of the sag of the transmission cable and the top most portion of the appellants poultry sheds. It should not also be forgotten that from the point of the sag on both sides the cable moves upwards and the clearance becomes even greater on both sides of the lowest spot. During the hearing we had asked Mr. Tripathi to confirm with the Engineers of the Power Grid Corporation to explore the possibility of raising the height of the towers even further to lessen the damage, if any, that may be caused to the egg laying capacity of the layers in the appellants poultry farm.28. Although, the response appears to be equivocal, we set aside the order of the Division Bench of the Madras High Court impugned in this appeal and direct the Power Grid Corporation to increase the clearance indicated above from 52 meters to 56 meters so that the clearance between the lowest point of the sag of the cable and the top most portion of the poultry shed is not less than 40 ft.29. The Appellant-Company will be entitled to such compensation to which it may be entitled for use of its lands or the damage caused thereto on account of the erection of the tower/pylon for carrying the transmission lines over the appellants plant, in accordance with the provisions of Section 10(d) of the Indian Telegraph Act, 1885. | 1 | 4,006 | 343 | ### Instruction:
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passed under Section 17 of the Indian Telegraph Act, then any realignment of the transmission line would have to be effected within the plot of the person at whose instance such realignment is sought. The proposed alternate alignment through the land of the Respondent No.1 was not, therefore, permissible and such proposed alternate alignment was liable to be rejected.25. On the other hand, Mr. R. Nedumaran, learned counsel appearing for the State of Tamil Nadu, while supporting the order passed by the District Collector, urged that the erection of the towers for carrying the transmission lines was for the benefit of the public at large who stood to benefit from the energising of the target area for the improvement of the lot of the people of the area. Mr. Nedumaran, however, also pointed out that from the order of the District Magistrate and Collector dated 30th April, 2007, it would be more or less evident that the poultry sheds had been constructed before the proposed route alignment. From the order of the District Collector, Mr. Nedumaran also pointed out that while the appellant had no objection to the power transmission line being taken over its lands, the District Collector had taken into consideration the limited request made on behalf of the Appellant-Company that the route of the power line be diverted in the eastward direction within the limits of its lands instead of passing through the middle of the said lands which would cause extensive damage to its poultry farm. Mr. Nedumaran submitted that the Collector, by invoking his powers under Section 17(3) of the Indian Telegraph Act, 1885, directed the Appellant-Company to realign the transmission lines in such a way that they did not pass directly above the poultry sheds of the Respondent No.1 situated at S.F. Nos.242/2 and 249/3, Nanniyur Village, Karur Taluk.26. On consideration of the rival submissions made on behalf of the respective parties, it is obvious that a balance will have to be achieved between the appellants grievance and both the technical as well as techno ecological feasibility of altering the route of the transmission lines in keeping with the directions given by the District Collector. The simplest and the most ideal solution would have been to alter the route of the transmission lines so that they did not directly pass over the appellants poultry sheds, particularly when the appellant is ready and willing to bear the expenses of such alteration. However, since, according to the Power Grid Corporation and its experts, that would entail a deviation over the lands of the Respondent No.1, R. Chellappan, the same gave rise to the objections raised by R. Chellappan. Keeping aside the technical aspect of the matter as to whether the order passed by the District Collector was one under Sections 16 or 17 of the Indian Telegraph Act, 1885, in order to arrive at a practical solution to the problem, the Power Grid Corporation accepted the alternate suggestion made on behalf of the Appellant-Company and raised the height of the lowest point of sag of the transmission lines between the two towers on either side of the poultry sheds of the Appellant-company from 46.5 meters To 52 meters, which in practical terms means a clearance of 30 ft. between the lowest point of the sag and the highest point of the poultry shed. Of course, it has been contended by Mr. Ganesh that according to the report of the expert, even if the height of the tower was raised to a 100 meters, the electro-magnetic field created by the transmission of high voltage electricity would still encompass the poultry sheds and adversely affect the reproductive system not only of the chickens but of all living things within that zone. 27. However, what goes against the case of the Appellant-Company is the fact that the purchases of the land for starting the poultry business and the erection of the poultry sheds were effected at a point of time when the process of identifying the route of the transmission lines was already in progress and survey work was being undertaken. We find it difficult to accept that the Appellant-company did not have knowledge of the ongoing project, which is for the benefit of a large number of people of the area as against the interest of a single individual. In view of the objections on behalf of the Power Grid Corporation that the deviation in the transmission lines, as suggested on behalf of the Appellant-company, could not be practically achieved, we are left with the next best solution, i.e., to increase the clearance between the lowest point of the sag of the transmission cable and the top most portion of the appellants poultry sheds. It should not also be forgotten that from the point of the sag on both sides the cable moves upwards and the clearance becomes even greater on both sides of the lowest spot. During the hearing we had asked Mr. Tripathi to confirm with the Engineers of the Power Grid Corporation to explore the possibility of raising the height of the towers even further to lessen the damage, if any, that may be caused to the egg laying capacity of the layers in the appellants poultry farm.28. Although, the response appears to be equivocal, we set aside the order of the Division Bench of the Madras High Court impugned in this appeal and direct the Power Grid Corporation to increase the clearance indicated above from 52 meters to 56 meters so that the clearance between the lowest point of the sag of the cable and the top most portion of the poultry shed is not less than 40 ft.29. The Appellant-Company will be entitled to such compensation to which it may be entitled for use of its lands or the damage caused thereto on account of the erection of the tower/pylon for carrying the transmission lines over the appellants plant, in accordance with the provisions of Section 10(d) of the Indian Telegraph Act, 1885.
### Response:
1
### Explanation:
We find it difficult to accept that the Appellant-company did not have knowledge of the ongoing project, which is for the benefit of a large number of people of the area as against the interest of a single individual. In view of the objections on behalf of the Power Grid Corporation that the deviation in the transmission lines, as suggested on behalf of the Appellant-company, could not be practically achieved, we are left with the next best solution, i.e., to increase the clearance between the lowest point of the sag of the transmission cable and the top most portion of the appellants poultry sheds. It should not also be forgotten that from the point of the sag on both sides the cable moves upwards and the clearance becomes even greater on both sides of the lowest spot. During the hearing we had asked Mr. Tripathi to confirm with the Engineers of the Power Grid Corporation to explore the possibility of raising the height of the towers even further to lessen the damage, if any, that may be caused to the egg laying capacity of the layers in the appellants poultry farm.28. Although, the response appears to be equivocal, we set aside the order of the Division Bench of the Madras High Court impugned in this appeal and direct the Power Grid Corporation to increase the clearance indicated above from 52 meters to 56 meters so that the clearance between the lowest point of the sag of the cable and the top most portion of the poultry shed is not less than 40 ft.29. The Appellant-Company will be entitled to such compensation to which it may be entitled for use of its lands or the damage caused thereto on account of the erection of the tower/pylon for carrying the transmission lines over the appellants plant, in accordance with the provisions of Section 10(d) of the Indian Telegraph Act, 1885.
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Shyam Lal Yadev and Others Vs. Smt. Kusum Dhawan and Others | parte order restraining the appellant-management from interfering with her work as the Principal. This order was promptly rescinded when the appellant explained the facts to the trial Court. Thereupon, the aggrieved Principal appealed to the district court with success. The frustrated management filed a second appeal to the High Court which passed the order under challenge before us. The High Court held, for reasons which are obscure, that while the management had the legal title to manage, the Principal should not be prejudiced by the suspension order to manage, the Principal should not be prejudiced by the suspension order and so should be allowed to function. That is to say, while upholding the power of the management to suspend, the court, nevertheless, prevented it from exercising their power. 3. It is apposite to state that there was some rivalry between two sets of persons regarding the right to be the Managing Committee. According to the appellants they were duly elected to power, while the opposite group contested this claim. Indeed, there is a litigation at their instance challenging the right of the appellant-committee. Although this rival group is a party to the present proceedings, we are not concerned with the relative merits and the competing claims of the two sets of persons who have clashed on the issue of the right to manage. The only question before us is as to whether there is a prima facie case in favour of the appellant as the competent management and further whether there is prima facie ground to hold that order of suspension imposed upon the Principal is legal. Moreover, there is an important obstacle in the way of the Principal is legal. Moreover, there an important obstacle in the way of the Principal which has not been adequately understood by the courts below. The suit itself is barred by Section 16-G(7) of the Act which reads : No such order of suspension shall, unless approved in writing by the Inspector, remain in force for more than sixty days from the date of commencement of the Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, or as the case may, from the date of such order, and the order of the Inspector shall be final and shall not be questioned in any Court. The High Court held that since the election of the defendants-applicants has been approved by the Regional Inspectress of Girls Education, Varanasi, the defendants-applicants would be entitled to manage the affairs of the college. Once this finding stands vis-a-vis the Principal, the inference inevitably follows that it has the power to take disciplinary action against the employees of the college including the Principal. In this view the resolution of the Managing Committee directing an enquiry "into the case and action and most improper behaviour on the part of the Principal" is within its power. Equally, the decision "that the Principal be kept suspended till the end of the enquiry" is also prima facie good. It is impossible, therefore, to understand how the High court could, consistently with its finding that the appellant-committee was "entitled to manage the affairs of the college", interfere with such management by granting an injunction in favour of the suspended Principal. A search for the basis of this finding by the High Court is fruitless because all that is mentioned is "Smt. Kusum Dhawan was admittedly working as the Principal of the college. It is, therefore, not appropriate to interfere with the order of the court below which restrained the defendants-applicants from interfering in the discharge of the duties by Kusum Dhawan as Principal. As a matter of fact, it appears to me that Srimati Kusum Dhawan would suffer uncompensatable disadvantages if the operation of the order was not stayed at this stage." Assuming that she was working as Principal, how is it right for a court to interfere with the action of the management against its employee by way of an ad interim injunction unless there was a strong prima facie case that the action was illegal ? How is it a valid ground to grant an injunction merely because the suspended Principal "would suffer uncompensatable disadvantages if the operation of the order (of suspension) was not stayed ?". For, by every suspension the alleged delinquent will sustain some disadvantage. Does that justify the court coming in the way of the internal management of a college, club or other like enterprise ? It will be strange jurisprudence which will paralyse autonomous bodies if courts can intervene on some ipse dixit to undo acts of internal management against employees especially when the power of the employer is made out. Moreover, there is the fact that prima facie, the order of suspension has been found to be good by the Regional Inspectress of Girls Education, Varanasi. On top of all these is the statutory provision contained in Section 16-G which expressly lends finality to the order of the Inspector and forbids its validity being questioned in any court. Without holding finally on this interdict, we regard this a prima facie bar unless jurisdictional deficiency in the appellant-committee is made out. 4. We find it difficult to resist the request of the appellant that the High Courts order be reversed. We do so. However, we make it perfectly clear that the contest in this litigation is between the appellant-managing committee and the first respondent-Principal. The members of the rival Managing Committee have instituted a separate suit, we are told. Nothing stated by us in this judgment will, any way, prejudice their rights and contentions. We must also make it clear that the proceeding which has reached this Court is an interlocutory application. Any other proceeding in the suit or the trial of the issues in the suit should not be taken to have been pre-judged by us in the observations we have made. This caution will sufficiently protect the first respondent-Principal in agitating her rights, if any, before the courts below or the educational authorities under the Act. | 1[ds]4. We find it difficult to resist the request of the appellant that the High Courts order be reversed. We do so. However, we make it perfectly clear that the contest in this litigation is between theg committee and the first. The members of the rival Managing Committee have instituted a separate suit, we are told. Nothing stated by us in this judgment will, any way, prejudice their rights and contentions. We must also make it clear that the proceeding which has reached this Court is an interlocutory application. Any other proceeding in the suit or the trial of the issues in the suit should not be taken to have beend by us in the observations we have made. This caution will sufficiently protect the firstl in agitating her rights, if any, before the courts below or the educational authorities under the Act. | 1 | 1,265 | 162 | ### Instruction:
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parte order restraining the appellant-management from interfering with her work as the Principal. This order was promptly rescinded when the appellant explained the facts to the trial Court. Thereupon, the aggrieved Principal appealed to the district court with success. The frustrated management filed a second appeal to the High Court which passed the order under challenge before us. The High Court held, for reasons which are obscure, that while the management had the legal title to manage, the Principal should not be prejudiced by the suspension order to manage, the Principal should not be prejudiced by the suspension order and so should be allowed to function. That is to say, while upholding the power of the management to suspend, the court, nevertheless, prevented it from exercising their power. 3. It is apposite to state that there was some rivalry between two sets of persons regarding the right to be the Managing Committee. According to the appellants they were duly elected to power, while the opposite group contested this claim. Indeed, there is a litigation at their instance challenging the right of the appellant-committee. Although this rival group is a party to the present proceedings, we are not concerned with the relative merits and the competing claims of the two sets of persons who have clashed on the issue of the right to manage. The only question before us is as to whether there is a prima facie case in favour of the appellant as the competent management and further whether there is prima facie ground to hold that order of suspension imposed upon the Principal is legal. Moreover, there is an important obstacle in the way of the Principal is legal. Moreover, there an important obstacle in the way of the Principal which has not been adequately understood by the courts below. The suit itself is barred by Section 16-G(7) of the Act which reads : No such order of suspension shall, unless approved in writing by the Inspector, remain in force for more than sixty days from the date of commencement of the Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, or as the case may, from the date of such order, and the order of the Inspector shall be final and shall not be questioned in any Court. The High Court held that since the election of the defendants-applicants has been approved by the Regional Inspectress of Girls Education, Varanasi, the defendants-applicants would be entitled to manage the affairs of the college. Once this finding stands vis-a-vis the Principal, the inference inevitably follows that it has the power to take disciplinary action against the employees of the college including the Principal. In this view the resolution of the Managing Committee directing an enquiry "into the case and action and most improper behaviour on the part of the Principal" is within its power. Equally, the decision "that the Principal be kept suspended till the end of the enquiry" is also prima facie good. It is impossible, therefore, to understand how the High court could, consistently with its finding that the appellant-committee was "entitled to manage the affairs of the college", interfere with such management by granting an injunction in favour of the suspended Principal. A search for the basis of this finding by the High Court is fruitless because all that is mentioned is "Smt. Kusum Dhawan was admittedly working as the Principal of the college. It is, therefore, not appropriate to interfere with the order of the court below which restrained the defendants-applicants from interfering in the discharge of the duties by Kusum Dhawan as Principal. As a matter of fact, it appears to me that Srimati Kusum Dhawan would suffer uncompensatable disadvantages if the operation of the order was not stayed at this stage." Assuming that she was working as Principal, how is it right for a court to interfere with the action of the management against its employee by way of an ad interim injunction unless there was a strong prima facie case that the action was illegal ? How is it a valid ground to grant an injunction merely because the suspended Principal "would suffer uncompensatable disadvantages if the operation of the order (of suspension) was not stayed ?". For, by every suspension the alleged delinquent will sustain some disadvantage. Does that justify the court coming in the way of the internal management of a college, club or other like enterprise ? It will be strange jurisprudence which will paralyse autonomous bodies if courts can intervene on some ipse dixit to undo acts of internal management against employees especially when the power of the employer is made out. Moreover, there is the fact that prima facie, the order of suspension has been found to be good by the Regional Inspectress of Girls Education, Varanasi. On top of all these is the statutory provision contained in Section 16-G which expressly lends finality to the order of the Inspector and forbids its validity being questioned in any court. Without holding finally on this interdict, we regard this a prima facie bar unless jurisdictional deficiency in the appellant-committee is made out. 4. We find it difficult to resist the request of the appellant that the High Courts order be reversed. We do so. However, we make it perfectly clear that the contest in this litigation is between the appellant-managing committee and the first respondent-Principal. The members of the rival Managing Committee have instituted a separate suit, we are told. Nothing stated by us in this judgment will, any way, prejudice their rights and contentions. We must also make it clear that the proceeding which has reached this Court is an interlocutory application. Any other proceeding in the suit or the trial of the issues in the suit should not be taken to have been pre-judged by us in the observations we have made. This caution will sufficiently protect the first respondent-Principal in agitating her rights, if any, before the courts below or the educational authorities under the Act.
### Response:
1
### Explanation:
4. We find it difficult to resist the request of the appellant that the High Courts order be reversed. We do so. However, we make it perfectly clear that the contest in this litigation is between theg committee and the first. The members of the rival Managing Committee have instituted a separate suit, we are told. Nothing stated by us in this judgment will, any way, prejudice their rights and contentions. We must also make it clear that the proceeding which has reached this Court is an interlocutory application. Any other proceeding in the suit or the trial of the issues in the suit should not be taken to have beend by us in the observations we have made. This caution will sufficiently protect the firstl in agitating her rights, if any, before the courts below or the educational authorities under the Act.
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Sushil Kumar Sen Vs. State Of Bihar | Mathew, J.: (For himself and A.N. Ray, C.J.)-1. The appellant was the owner of 3.30 acres-roughly equal to 7 bighas, 17 kathas and 14 dhurs of land. The land was acquired under the provisions of the Land Acquisition Act. The Land Acquisition Officer by his award dated 12-10-1957 gave compensation at the rate of Rs. 14/-per katha for the land. The total compensation including the value of trees and other improvement came to Rs. 6,775.22 p. The appellant was dissatisfied with the award. He filed an application before the Land Acquisition Collector for referring the matter to the District Court under Section 18 of the Land Acquisition Act claiming compensation for the lands at the rate of Rs. 500/- per katha. The case was referred and the Additional District Judge. Purnea by his judgment dated 18-8-1961 found that the appellant was entitled to compensation for the land acquired at the rate of Rs. 200/- Per katha and also made certain other modifications in the amount of compensation under the other heads. On 22-8-1961 the respondent, the State of Bihar, filed an application for review, under Order 47, Rule 1 of the Civil Procedure Code, of the judgment dated 18-8-1961 on the basis of discovery of new and important evidence as regards the market value of the land which was not available to it in spite of the exercise of due diligence. The learned Additional District Judge allowed the application for review and passed fresh judgment on 26-9-1961 reducing the compensation for land from Rs. 200/- to 75/- per katha. There- after the respondent filed Appeal No. 81 of 1962 in the High Court of Patna. The Memorandum of Appeal stated that the appeal was being preferred against the decrees dated 18-8-1961/ 26-9-1961, but the grounds taken in the Memorandum of appeal as well as the court-fee paid would show that the appeal was only against the decree dated 26-9-1961 awarding compensation at the rate of Rs. 75/- per katha and not against the decree dated 18-8- l961 awarding compensation at the rate of Rs. 200/- per katha. The appellant filed a cross appeal challenging the maintainability of the review petition filed by the respondent before the Additional District Judge as also the order passed thereon by him allowing the petition and vacating the decree dated 18-8-1961. The appeal and the cross appeal were disposed at by the judgment of the High Court dated 16-2-1968. The High Court found that the Additional District Judge went wrong in entertaining the review and vacating the judgment and, decree dated 18-8-1961 but, nevertheless, it considered the appeal filed by the respondent or merits and dismissed the appeal and cross appeal thereby maintaining the compensation awarded for the land at the rate of Rs. 75/- per katha by the judgment and decree dated 26-9-1961 of the Additional District Judge. This appeal, on the basis of a certificate, is directed against the decree of the High Court.2. It is well settled that the effect of allowing an application for review of a decree is to vacate the decree passed. The decree that is subsequently passed on review, whether it modifies, reverses or confirms the decree originally passed is a new decree superseding the original one(see Nibaran Chandra v. Abdul Hakim, AIR 1928 Cal 418 , Kanhaiya Lal v. Baldeo Prasad, (1906) ILR 28 All 240, Brijbasi Lal v. Salig Ram, (1921) ILR 34 All 282 and Pyari Mohan v. Kalu Khan, ILR 44 Cal 1011 = (AIR 1917 Cal 29).3. The respondent did not file any appeal from the decree dated 18- 8-1961 awarding compensation for the land acquired at the rate of Rs. 200/- per katha. On the other hand, it sought for a review of that decree and succeeded in getting the decree vacated. When it filed Appeal No. 81 of 1962, before the High Court, it could not have filed an appeal against the decree dated 18-8-l961 passed by the Additional District Judge as at that time that decree had already been superseded by the decree dated 26-9-1961 passed after review. So the appeal filed by the respondent before the High Court could only be an appeal against the decree passed after review. When the High Court came to the conclusion that the Additional District Judge went wrong in allowing the review, it should have allowed the cross appeal. Since no appeal was preferred by the respondent against the decree passed on 18-8-1961 awarding compensation for the land at the rate of Rs. 200/- per katha, that decree became final.The respondent made no attempt to file an appeal against that decree when the High Court found that the review was wrongly allowed on the basis that the decree revived and came into life again.4. The High Court should have allowed the cross appeal; and dismissed the appeal, which was, and could only be against the decree passed on 26-9-1961 after the review. | 1[ds]2. It is well settled that the effect of allowing an application for review of a decree is to vacate the decree passed. The decree that is subsequently passed on review, whether it modifies, reverses or confirms the decree originally passed is a new decree superseding the originalThe respondent did not file any appeal from the decree dated 18- 8-1961 awarding compensation for the land acquired at the rate of Rs. 200/- per katha. On the other hand, it sought for a review of that decree and succeeded in getting the decree vacated. When it filed Appeal No. 81 of 1962, before the High Court, it could not have filed an appeal against the decree dated 18-8-l961 passed by the Additional District Judge as at that time that decree had already been superseded by the decree dated 26-9-1961 passed after review. So the appeal filed by the respondent before the High Court could only be an appeal against the decree passed after review. When the High Court came to the conclusion that the Additional District Judge went wrong in allowing the review, it should have allowed the cross appeal. Since no appeal was preferred by the respondent against the decree passed on 18-8-1961 awarding compensation for the land at the rate of Rs. 200/- per katha, that decree became final.The respondent made no attempt to file an appeal against that decree when the High Court found that the review was wrongly allowed on the basis that the decree revived and came into life again.4. The High Court should have allowed the cross appeal; and dismissed the appeal, which was, and could only be against the decree passed on 26-9-1961 after the review.Krishna Iyer; J :I concur regretfully with the result reached by the infallible logic of the law set out by my learned brother Mathew J. The mortality of justice at the hands of law troubles a Judges conscience and points an angry interrogation at the law reformer.6. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. In the present case, almost every step a reasonable litigant could take was taken by the State to challenge the extraordinary increase in the rate of compensation awarded by the civil Court. And, by hindsight, one finds that the very success in the review application and at the appellate stage has proved a disaster to the party. May be, Government might have successfully attacked the increase awarded in appeal, producing the additional evidence there. But maybes have no place in the merciless consequence of vital procedural flaws .Parliament, I hope, will consider the wisdom of making, the Judge the ultimate guardian of justice by a comprehensive though guardedly worded, provision where the hindrance to rightful relief relates to infirmities, even serious, sounding in procedural law. Justice is the goal of jurisprudenceprocessual, as much as substantive. While this appeal has to be allowed, for reasons set out impeccably by my learned brother, I must sound a pessimistic note that it is too puritanical for a legal system to sacrifice the end product of equity and good conscience at the altar of processual punctiliousness and it is not too radical to avert aof obvious justice by bending sharply, if need be, the prescriptions of procedure. The wages of procedural sin should never be the death of rights. | 1 | 899 | 653 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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Mathew, J.: (For himself and A.N. Ray, C.J.)-1. The appellant was the owner of 3.30 acres-roughly equal to 7 bighas, 17 kathas and 14 dhurs of land. The land was acquired under the provisions of the Land Acquisition Act. The Land Acquisition Officer by his award dated 12-10-1957 gave compensation at the rate of Rs. 14/-per katha for the land. The total compensation including the value of trees and other improvement came to Rs. 6,775.22 p. The appellant was dissatisfied with the award. He filed an application before the Land Acquisition Collector for referring the matter to the District Court under Section 18 of the Land Acquisition Act claiming compensation for the lands at the rate of Rs. 500/- per katha. The case was referred and the Additional District Judge. Purnea by his judgment dated 18-8-1961 found that the appellant was entitled to compensation for the land acquired at the rate of Rs. 200/- Per katha and also made certain other modifications in the amount of compensation under the other heads. On 22-8-1961 the respondent, the State of Bihar, filed an application for review, under Order 47, Rule 1 of the Civil Procedure Code, of the judgment dated 18-8-1961 on the basis of discovery of new and important evidence as regards the market value of the land which was not available to it in spite of the exercise of due diligence. The learned Additional District Judge allowed the application for review and passed fresh judgment on 26-9-1961 reducing the compensation for land from Rs. 200/- to 75/- per katha. There- after the respondent filed Appeal No. 81 of 1962 in the High Court of Patna. The Memorandum of Appeal stated that the appeal was being preferred against the decrees dated 18-8-1961/ 26-9-1961, but the grounds taken in the Memorandum of appeal as well as the court-fee paid would show that the appeal was only against the decree dated 26-9-1961 awarding compensation at the rate of Rs. 75/- per katha and not against the decree dated 18-8- l961 awarding compensation at the rate of Rs. 200/- per katha. The appellant filed a cross appeal challenging the maintainability of the review petition filed by the respondent before the Additional District Judge as also the order passed thereon by him allowing the petition and vacating the decree dated 18-8-1961. The appeal and the cross appeal were disposed at by the judgment of the High Court dated 16-2-1968. The High Court found that the Additional District Judge went wrong in entertaining the review and vacating the judgment and, decree dated 18-8-1961 but, nevertheless, it considered the appeal filed by the respondent or merits and dismissed the appeal and cross appeal thereby maintaining the compensation awarded for the land at the rate of Rs. 75/- per katha by the judgment and decree dated 26-9-1961 of the Additional District Judge. This appeal, on the basis of a certificate, is directed against the decree of the High Court.2. It is well settled that the effect of allowing an application for review of a decree is to vacate the decree passed. The decree that is subsequently passed on review, whether it modifies, reverses or confirms the decree originally passed is a new decree superseding the original one(see Nibaran Chandra v. Abdul Hakim, AIR 1928 Cal 418 , Kanhaiya Lal v. Baldeo Prasad, (1906) ILR 28 All 240, Brijbasi Lal v. Salig Ram, (1921) ILR 34 All 282 and Pyari Mohan v. Kalu Khan, ILR 44 Cal 1011 = (AIR 1917 Cal 29).3. The respondent did not file any appeal from the decree dated 18- 8-1961 awarding compensation for the land acquired at the rate of Rs. 200/- per katha. On the other hand, it sought for a review of that decree and succeeded in getting the decree vacated. When it filed Appeal No. 81 of 1962, before the High Court, it could not have filed an appeal against the decree dated 18-8-l961 passed by the Additional District Judge as at that time that decree had already been superseded by the decree dated 26-9-1961 passed after review. So the appeal filed by the respondent before the High Court could only be an appeal against the decree passed after review. When the High Court came to the conclusion that the Additional District Judge went wrong in allowing the review, it should have allowed the cross appeal. Since no appeal was preferred by the respondent against the decree passed on 18-8-1961 awarding compensation for the land at the rate of Rs. 200/- per katha, that decree became final.The respondent made no attempt to file an appeal against that decree when the High Court found that the review was wrongly allowed on the basis that the decree revived and came into life again.4. The High Court should have allowed the cross appeal; and dismissed the appeal, which was, and could only be against the decree passed on 26-9-1961 after the review.
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2. It is well settled that the effect of allowing an application for review of a decree is to vacate the decree passed. The decree that is subsequently passed on review, whether it modifies, reverses or confirms the decree originally passed is a new decree superseding the originalThe respondent did not file any appeal from the decree dated 18- 8-1961 awarding compensation for the land acquired at the rate of Rs. 200/- per katha. On the other hand, it sought for a review of that decree and succeeded in getting the decree vacated. When it filed Appeal No. 81 of 1962, before the High Court, it could not have filed an appeal against the decree dated 18-8-l961 passed by the Additional District Judge as at that time that decree had already been superseded by the decree dated 26-9-1961 passed after review. So the appeal filed by the respondent before the High Court could only be an appeal against the decree passed after review. When the High Court came to the conclusion that the Additional District Judge went wrong in allowing the review, it should have allowed the cross appeal. Since no appeal was preferred by the respondent against the decree passed on 18-8-1961 awarding compensation for the land at the rate of Rs. 200/- per katha, that decree became final.The respondent made no attempt to file an appeal against that decree when the High Court found that the review was wrongly allowed on the basis that the decree revived and came into life again.4. The High Court should have allowed the cross appeal; and dismissed the appeal, which was, and could only be against the decree passed on 26-9-1961 after the review.Krishna Iyer; J :I concur regretfully with the result reached by the infallible logic of the law set out by my learned brother Mathew J. The mortality of justice at the hands of law troubles a Judges conscience and points an angry interrogation at the law reformer.6. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. In the present case, almost every step a reasonable litigant could take was taken by the State to challenge the extraordinary increase in the rate of compensation awarded by the civil Court. And, by hindsight, one finds that the very success in the review application and at the appellate stage has proved a disaster to the party. May be, Government might have successfully attacked the increase awarded in appeal, producing the additional evidence there. But maybes have no place in the merciless consequence of vital procedural flaws .Parliament, I hope, will consider the wisdom of making, the Judge the ultimate guardian of justice by a comprehensive though guardedly worded, provision where the hindrance to rightful relief relates to infirmities, even serious, sounding in procedural law. Justice is the goal of jurisprudenceprocessual, as much as substantive. While this appeal has to be allowed, for reasons set out impeccably by my learned brother, I must sound a pessimistic note that it is too puritanical for a legal system to sacrifice the end product of equity and good conscience at the altar of processual punctiliousness and it is not too radical to avert aof obvious justice by bending sharply, if need be, the prescriptions of procedure. The wages of procedural sin should never be the death of rights.
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Grindlays Bank Ltd Vs. Central Government Industrial Tribunal And Ors | a notice of the proceedings. It is needless to stress that where the Tribunal proceeds to make an award without notice to a party, the award is nothing but a nullity. In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh. 11. The language of Rule 22 unequivocally makes the jurisdiction of the Tribunal to render an ex parte award, conditional upon the fulfillment of its requirements. If there is no sufficient cause for the absence of a party, the Tribunal undoubtedly has jurisdiction to proceed ex parte. But if there was sufficient cause shown which prevented a party from appearing, then under the terms of Rule 22, the Tribunal will have had no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex parte award. In other words, there is power to proceed ex parte, but this power is subject to the fulfillment of the condition laid down in Rule 22. The power to proceed ex parte under Rule 22 carries with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing. 12. Under Rule 24(b) a Tribunal or other body has the powers of a civil Court under O. XVII of the Code of Civil Procedure, relating to the grant of adjournments. Under O. XVII, Rule 1, a civil Court has the discretion to grant or refuse an adjournment. Where it refuses to adjourn the hearing of a suit, it may proceed either under O. XVII, Rule 2 or Rule 3. When it decides to proceed under O. XVII, Rule 2, it may proceed to dispose of the suit in one of the modes directed in that behalf by O. IX, or to make such other order a it thinks fit. As a necessary corollary, when the Tribunal or other body refuses to adjourn the hearing, it may proceed ex parte. In a case in which the Tribunal or other body makes an ex parte award, the provisions of O. IX, Rule 13 of the Code are clearly attracted. It logically follows that the Tribunal was competent to entertain an application to set aside an ex parte award. 13. We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Narshi Thakershi v. Pradyumansinghji, A.I.R 1970 S.C. 1273 is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of S.11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act, while the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil Court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in S. 11. The answer to the question is, therefore, to be found in sub-s. (1) of S. 11 and not in sub-s. (3) of S. 11. Furthermore, different considerations arise on review. The expression "review" is used in two distinct senses, namely, (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a mis-apprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershis case held that no review lies on merits unless a statute specifically provides for it, obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every Court or Tribunal. 14. The contention that the Tribunal had become functus officio and, therefore, had no jurisdiction to set aside the award and that the Central Government alone could set it aside, does not commend to us. Sub-section(3) of S.20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable under S. 17A. Under S.17A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication under S. 17. The proceedings with regard to a reference under S.10 of the Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award. Till then the Tribunal retains jurisdiction over the disputes referred to if for adjudication and up to that date it has the power to entertain an application in connection with such dispute. That stage is not reached till the award becomes enforceable under S. 17A. In the instant case, the Tribunal made the ex parte award on December 9, 1976. That award was published by the Central Government in the Gazette of India dated December 25, 1976. The application for setting aside the ex parte award was filed by respondent No. 3, acting on behalf of respondents Nos. 5 to 17 on January 19, 1977, i.e., before the expiry of 30 days of its publication and was, therefore, rightly entertained by the Tribunal. It had jurisdiction to entertain it and decided it on merits. It was, however, urged that on April 12, 1977 the date on which the impugned order was passed, the Tribunal had in any event become functus officio we cannot accede to this argument. | 0[ds]5. In dealing with these contentions, it must be borne in mind thatthe Industrial Disputes Act,1947is a piece of legislation calculated to ensure social justice to both employers and the employees and advance progress of industry by bringing harmony and cordial relations between the parties.In other words, the purpose of the Act is to settled disputes between workmen and employers which if not settled, would result in strikes or lock-outs and entail dislocation of work, essential to the life of the community. The scheme of the Act shows that it aims at settlement of all industrial disputes arising between the capital and labour by peaceful methods and through the machinery of conciliation, arbitration and if necessary, by approaching the Tribunals constituted under the Act. It, therefore, endeavors to resolve the competing claims of employers and employees by finding a solution which is just and fair to both the parties6. We are of the opinion that the Tribunal had the power to pass the impugned order if it thought fit in the interest of justice. It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharged its functions effectively for the purposes of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication is the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary10. When sub-s. (1) of S. 11 expressly and in clear terms confers power upon the Tribunal to regulate its own procedure, it must necessarily be endowed with all powers which bring about an adjudication of an existing industrial dispute, after affording all the parties an opportunity of a hearing. We are inclined to the view that where a party is prevented from appearing at the hearing due to a sufficient cause, and is faced with an ex parte award, it is an if the party is visited with an award without a notice of the proceedings. It is needless to stress that where the Tribunal proceeds to make an award without notice to a party, the award is nothing but a nullity. In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh11. The language of Rule 22 unequivocally makes the jurisdiction of the Tribunal to render an ex parte award, conditional upon the fulfillment of its requirements. If there is no sufficient cause for the absence of a party, the Tribunal undoubtedly has jurisdiction to proceed ex parte. But if there was sufficient cause shown which prevented a party from appearing, then under the terms of Rule 22, the Tribunal will have had no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex parte award. In other words, there is power to proceed ex parte, but this power is subject to the fulfillment of the condition laid down in Rule 22. The power to proceed ex parte under Rule 22 carries with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing13. We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Narshi Thakershi v. Pradyumansinghji, A.I.R 1970 S.C. 1273 is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of S.11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act, while the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil Court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in S. 11. The answer to the question is, therefore, to be found in sub-s. (1) of S. 11 and not in sub-s. (3) of S. 11. Furthermore, different considerations arise on review. The expression "review" is used in two distinct senses, namely, (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a mis-apprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershis case held that no review lies on merits unless a statute specifically provides for it, obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every Court or Tribunal14. The contention that the Tribunal had become functus officio and, therefore, had no jurisdiction to set aside the award and that the Central Government alone could set it aside, does not commend to us. Sub-section(3) of S.20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable under S. 17A. Under S.17A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication under S. 17. The proceedings with regard to a reference under S.10 of the Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award. Till then the Tribunal retains jurisdiction over the disputes referred to if for adjudication and up to that date it has the power to entertain an application in connection with such dispute. That stage is not reached till the award becomes enforceable under S. 17A. In the instant case, the Tribunal made the ex parte award on December 9, 1976. That award was published by the Central Government in the Gazette of India dated December 25, 1976. The application for setting aside the ex parte award was filed by respondent No. 3, acting on behalf of respondents Nos. 5 to 17 on January 19, 1977, i.e., before the expiry of 30 days of its publication and was, therefore, rightly entertained by the Tribunal. It had jurisdiction to entertain it and decided it on merits. | 0 | 3,001 | 1,291 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
a notice of the proceedings. It is needless to stress that where the Tribunal proceeds to make an award without notice to a party, the award is nothing but a nullity. In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh. 11. The language of Rule 22 unequivocally makes the jurisdiction of the Tribunal to render an ex parte award, conditional upon the fulfillment of its requirements. If there is no sufficient cause for the absence of a party, the Tribunal undoubtedly has jurisdiction to proceed ex parte. But if there was sufficient cause shown which prevented a party from appearing, then under the terms of Rule 22, the Tribunal will have had no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex parte award. In other words, there is power to proceed ex parte, but this power is subject to the fulfillment of the condition laid down in Rule 22. The power to proceed ex parte under Rule 22 carries with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing. 12. Under Rule 24(b) a Tribunal or other body has the powers of a civil Court under O. XVII of the Code of Civil Procedure, relating to the grant of adjournments. Under O. XVII, Rule 1, a civil Court has the discretion to grant or refuse an adjournment. Where it refuses to adjourn the hearing of a suit, it may proceed either under O. XVII, Rule 2 or Rule 3. When it decides to proceed under O. XVII, Rule 2, it may proceed to dispose of the suit in one of the modes directed in that behalf by O. IX, or to make such other order a it thinks fit. As a necessary corollary, when the Tribunal or other body refuses to adjourn the hearing, it may proceed ex parte. In a case in which the Tribunal or other body makes an ex parte award, the provisions of O. IX, Rule 13 of the Code are clearly attracted. It logically follows that the Tribunal was competent to entertain an application to set aside an ex parte award. 13. We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Narshi Thakershi v. Pradyumansinghji, A.I.R 1970 S.C. 1273 is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of S.11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act, while the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil Court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in S. 11. The answer to the question is, therefore, to be found in sub-s. (1) of S. 11 and not in sub-s. (3) of S. 11. Furthermore, different considerations arise on review. The expression "review" is used in two distinct senses, namely, (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a mis-apprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershis case held that no review lies on merits unless a statute specifically provides for it, obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every Court or Tribunal. 14. The contention that the Tribunal had become functus officio and, therefore, had no jurisdiction to set aside the award and that the Central Government alone could set it aside, does not commend to us. Sub-section(3) of S.20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable under S. 17A. Under S.17A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication under S. 17. The proceedings with regard to a reference under S.10 of the Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award. Till then the Tribunal retains jurisdiction over the disputes referred to if for adjudication and up to that date it has the power to entertain an application in connection with such dispute. That stage is not reached till the award becomes enforceable under S. 17A. In the instant case, the Tribunal made the ex parte award on December 9, 1976. That award was published by the Central Government in the Gazette of India dated December 25, 1976. The application for setting aside the ex parte award was filed by respondent No. 3, acting on behalf of respondents Nos. 5 to 17 on January 19, 1977, i.e., before the expiry of 30 days of its publication and was, therefore, rightly entertained by the Tribunal. It had jurisdiction to entertain it and decided it on merits. It was, however, urged that on April 12, 1977 the date on which the impugned order was passed, the Tribunal had in any event become functus officio we cannot accede to this argument.
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It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharged its functions effectively for the purposes of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication is the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary10. When sub-s. (1) of S. 11 expressly and in clear terms confers power upon the Tribunal to regulate its own procedure, it must necessarily be endowed with all powers which bring about an adjudication of an existing industrial dispute, after affording all the parties an opportunity of a hearing. We are inclined to the view that where a party is prevented from appearing at the hearing due to a sufficient cause, and is faced with an ex parte award, it is an if the party is visited with an award without a notice of the proceedings. It is needless to stress that where the Tribunal proceeds to make an award without notice to a party, the award is nothing but a nullity. In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh11. The language of Rule 22 unequivocally makes the jurisdiction of the Tribunal to render an ex parte award, conditional upon the fulfillment of its requirements. If there is no sufficient cause for the absence of a party, the Tribunal undoubtedly has jurisdiction to proceed ex parte. But if there was sufficient cause shown which prevented a party from appearing, then under the terms of Rule 22, the Tribunal will have had no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex parte award. In other words, there is power to proceed ex parte, but this power is subject to the fulfillment of the condition laid down in Rule 22. The power to proceed ex parte under Rule 22 carries with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing13. We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Narshi Thakershi v. Pradyumansinghji, A.I.R 1970 S.C. 1273 is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of S.11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act, while the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil Court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in S. 11. The answer to the question is, therefore, to be found in sub-s. (1) of S. 11 and not in sub-s. (3) of S. 11. Furthermore, different considerations arise on review. The expression "review" is used in two distinct senses, namely, (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a mis-apprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershis case held that no review lies on merits unless a statute specifically provides for it, obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every Court or Tribunal14. The contention that the Tribunal had become functus officio and, therefore, had no jurisdiction to set aside the award and that the Central Government alone could set it aside, does not commend to us. Sub-section(3) of S.20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable under S. 17A. Under S.17A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication under S. 17. The proceedings with regard to a reference under S.10 of the Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award. Till then the Tribunal retains jurisdiction over the disputes referred to if for adjudication and up to that date it has the power to entertain an application in connection with such dispute. That stage is not reached till the award becomes enforceable under S. 17A. In the instant case, the Tribunal made the ex parte award on December 9, 1976. That award was published by the Central Government in the Gazette of India dated December 25, 1976. The application for setting aside the ex parte award was filed by respondent No. 3, acting on behalf of respondents Nos. 5 to 17 on January 19, 1977, i.e., before the expiry of 30 days of its publication and was, therefore, rightly entertained by the Tribunal. It had jurisdiction to entertain it and decided it on merits.
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Commissioner of Income Tax, Mysore Vs. Segu Buchiah Setty | the Income-tax Officer that he was prevented by sufficient cause from making the return required by Section 22, or that he did not receive the notice issued under sub-section (4) of Section 22, or sub-section (2) of Sec. 23, or that he had not a reasonable opportunity to comply or was prevented by sufficient cause from complying with the terms of the last mentioned notices, the Income-tax Officer shall cancel the assessment and proceed to make a fresh assessment in accordance with the provisions of Section 23". Section 22 provides for return of income. Sub-section (1) relates to a general notice to be given each year by the Income-tax Officer by publication in the Press or in the prescribed manner. Sub-section (2) relates to an individual notice According to sub-section (4) the Income-tax Officer may serve on any person who has made a return under sub-section (1) or upon whom a notice has been served under sub-section (2) a notice requiring him on a date to be specified to produce or cause to be produced such account or documents as the Income-tax Officer may require or to furnish in writing and verified in the prescribed manner in such form and on such points or matters as may be required for the purpose of the section including, with the previous approval of the Commissioner, a statement of assets and liabilities not included in the accounts. Under Section 23 if the Income-tax Officer is satisfied without requiring the presence of the assessee or the production by him of any evidence that a return made under Section 22 is correct and complete he has to assess the total income of the assessee on the basis of the return filed by him sub-section (1) 3. If he is not so satisfied he must serve a notice requiring the person who has made the return to attend at his office or to produce or cause to be produced any evidence on which such person may rely in support of his return [sub-section (2)]. Under sub-section (3) the Income-tax Officer after hearing such evidence as may be produced by the person making the return in response to the notice issued under sub-section (2) or such other evidence as the Income-tax Officer may require to be produced on specified points has to assess the total income of the assessee. It is provided by sub-section (4) :"If any person fails to make the return required by any notice given under sub-section (2) of Section 22 and has not made a return or a revised return under sub-section (3) of the same section or fails to comply with all the terms of a notice issued under sub-section (4) of the same section or, having made a return, fails to comply with all the terms of a notice issued under sub-section (2) of this section, the Income-tax Officer shall make the assessment to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment......" 4. The High Court considered that the provisions of Section 27 were not cumulative but disjunctive and so the assessee could claim cancellation of the assessment on one of the grounds on which such cancellation could be sought under the section According to the High Court it followed that even if there was no sufficient cause for non-compliance with a notice issued under Section 22 (2) so long as there was sufficient reason for non-compliance with the notice issued under Section 22 (4) the assessee could ask for the cancellation of the assessment. In our judgment the view of the High Court cannot be sustained. The clear import of Section 23 (4) is that on committing any one of the defaults mentioned therein the Income Tax Officer is bound to make the assessment to the best of his judgment. In other words if a person fails to make the return required by a notice under Section 22 (2)and he has further not made a return or a revised return under sub-section (3) of the same section the Income-tax Officer must make an assessment under Section 23 (4). Similarly, if that person fails to comply with all the terms of the notice issued under Section 22 (4) or if he fails to comply with all the terms of the notice issued under Section 23 (2) the Income-tax Officer must proceed to make an assessment to the best of his judgment. Section 27 empowers the Income-tax Officer to cancel the assessment when sufficient cause is shown but such cause has to be shown for each default. For the sake of illustration, if an assessee makes a default under Section 22 (2) by not filing a return pursuant to a notice received under that section and he also does not comply with the notice under Section 22 (4) he must show sufficient cause for non-compliance with both the, provisions and he cannot get the assessment cancelled merely by showing good cause for one of the two defaults Although the word "or" which is disjunctive is used in Section 27 it has to be read in a reasonable and harmonious way and in conjunction with Section 23 (4). It is inconceivable that the legislature could have even intended that in case of multiple defaults for each one of which an ex parte best judgment assessment has to be made the assessee can ask for cancellation of the assessment by merely showing cause for one of such defaults. In our opinion the Bombay High Court in Chiranjilal Tibrewala v. Commr. of Income-tax. Bombay City II, (1966) 59 ITR 42 (Bom) was right in holding that in the circumstances similar to the present case the assessee cannot ask for cancellation under S. 27 of an assessment made under Section 23 (4). In this view of the matter the judgment of the High Court has to be set aside, and the question has to be answered against the assessee and in favour of the appellant. | 1[ds]4. The High Court considered that the provisions of Section 27 were not cumulative but disjunctive and so the assessee could claim cancellation of the assessment on one of the grounds on which such cancellation could be sought under the section According to the High Court it followed that even if there was no sufficient cause for non-compliance with a notice issued under Section 22 (2) so long as there was sufficient reason for non-compliance with the notice issued under Section 22 (4) the assessee could ask for the cancellation of the assessment. In our judgment the view of the High Court cannot be sustained. The clear import of Section 23 (4) is that on committing any one of the defaults mentioned therein the Income Tax Officer is bound to make the assessment to the best of his judgment. In other words if a person fails to make the return required by a notice under Section 22 (2)and he has further not made a return or a revised return under sub-section (3) of the same section the Income-tax Officer must make an assessment under Section 23 (4). Similarly, if that person fails to comply with all the terms of the notice issued under Section 22 (4) or if he fails to comply with all the terms of the notice issued under Section 23 (2) the Income-tax Officer must proceed to make an assessment to the best of his judgment. Section 27 empowers the Income-tax Officer to cancel the assessment when sufficient cause is shown but such cause has to be shown for each default. For the sake of illustration, if an assessee makes a default under Section 22 (2) by not filing a return pursuant to a notice received under that section and he also does not comply with the notice under Section 22 (4) he must show sufficient cause for non-compliance with both the, provisions and he cannot get the assessment cancelled merely by showing good cause for one of the two defaults Although the word "or" which is disjunctive is used in Section 27 it has to be read in a reasonable and harmonious way and in conjunction with Section 23 (4). It is inconceivable that the legislature could have even intended that in case of multiple defaults for each one of which an ex parte best judgment assessment has to be made the assessee can ask for cancellation of the assessment by merely showing cause for one of such defaults. In our opinion the Bombay High Court in Chiranjilal Tibrewala v. Commr. of Income-tax. Bombay City II, (1966) 59 ITR 42 (Bom) was right in holding that in the circumstances similar to the present case the assessee cannot ask for cancellation under S. 27 of an assessment made under Section 23 (4). In this view of the matter the judgment of the High Court has to be set aside, and the question has to be answered against the assessee and in favour of the appellant. | 1 | 1,649 | 554 | ### 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:
the Income-tax Officer that he was prevented by sufficient cause from making the return required by Section 22, or that he did not receive the notice issued under sub-section (4) of Section 22, or sub-section (2) of Sec. 23, or that he had not a reasonable opportunity to comply or was prevented by sufficient cause from complying with the terms of the last mentioned notices, the Income-tax Officer shall cancel the assessment and proceed to make a fresh assessment in accordance with the provisions of Section 23". Section 22 provides for return of income. Sub-section (1) relates to a general notice to be given each year by the Income-tax Officer by publication in the Press or in the prescribed manner. Sub-section (2) relates to an individual notice According to sub-section (4) the Income-tax Officer may serve on any person who has made a return under sub-section (1) or upon whom a notice has been served under sub-section (2) a notice requiring him on a date to be specified to produce or cause to be produced such account or documents as the Income-tax Officer may require or to furnish in writing and verified in the prescribed manner in such form and on such points or matters as may be required for the purpose of the section including, with the previous approval of the Commissioner, a statement of assets and liabilities not included in the accounts. Under Section 23 if the Income-tax Officer is satisfied without requiring the presence of the assessee or the production by him of any evidence that a return made under Section 22 is correct and complete he has to assess the total income of the assessee on the basis of the return filed by him sub-section (1) 3. If he is not so satisfied he must serve a notice requiring the person who has made the return to attend at his office or to produce or cause to be produced any evidence on which such person may rely in support of his return [sub-section (2)]. Under sub-section (3) the Income-tax Officer after hearing such evidence as may be produced by the person making the return in response to the notice issued under sub-section (2) or such other evidence as the Income-tax Officer may require to be produced on specified points has to assess the total income of the assessee. It is provided by sub-section (4) :"If any person fails to make the return required by any notice given under sub-section (2) of Section 22 and has not made a return or a revised return under sub-section (3) of the same section or fails to comply with all the terms of a notice issued under sub-section (4) of the same section or, having made a return, fails to comply with all the terms of a notice issued under sub-section (2) of this section, the Income-tax Officer shall make the assessment to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment......" 4. The High Court considered that the provisions of Section 27 were not cumulative but disjunctive and so the assessee could claim cancellation of the assessment on one of the grounds on which such cancellation could be sought under the section According to the High Court it followed that even if there was no sufficient cause for non-compliance with a notice issued under Section 22 (2) so long as there was sufficient reason for non-compliance with the notice issued under Section 22 (4) the assessee could ask for the cancellation of the assessment. In our judgment the view of the High Court cannot be sustained. The clear import of Section 23 (4) is that on committing any one of the defaults mentioned therein the Income Tax Officer is bound to make the assessment to the best of his judgment. In other words if a person fails to make the return required by a notice under Section 22 (2)and he has further not made a return or a revised return under sub-section (3) of the same section the Income-tax Officer must make an assessment under Section 23 (4). Similarly, if that person fails to comply with all the terms of the notice issued under Section 22 (4) or if he fails to comply with all the terms of the notice issued under Section 23 (2) the Income-tax Officer must proceed to make an assessment to the best of his judgment. Section 27 empowers the Income-tax Officer to cancel the assessment when sufficient cause is shown but such cause has to be shown for each default. For the sake of illustration, if an assessee makes a default under Section 22 (2) by not filing a return pursuant to a notice received under that section and he also does not comply with the notice under Section 22 (4) he must show sufficient cause for non-compliance with both the, provisions and he cannot get the assessment cancelled merely by showing good cause for one of the two defaults Although the word "or" which is disjunctive is used in Section 27 it has to be read in a reasonable and harmonious way and in conjunction with Section 23 (4). It is inconceivable that the legislature could have even intended that in case of multiple defaults for each one of which an ex parte best judgment assessment has to be made the assessee can ask for cancellation of the assessment by merely showing cause for one of such defaults. In our opinion the Bombay High Court in Chiranjilal Tibrewala v. Commr. of Income-tax. Bombay City II, (1966) 59 ITR 42 (Bom) was right in holding that in the circumstances similar to the present case the assessee cannot ask for cancellation under S. 27 of an assessment made under Section 23 (4). In this view of the matter the judgment of the High Court has to be set aside, and the question has to be answered against the assessee and in favour of the appellant.
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### Explanation:
4. The High Court considered that the provisions of Section 27 were not cumulative but disjunctive and so the assessee could claim cancellation of the assessment on one of the grounds on which such cancellation could be sought under the section According to the High Court it followed that even if there was no sufficient cause for non-compliance with a notice issued under Section 22 (2) so long as there was sufficient reason for non-compliance with the notice issued under Section 22 (4) the assessee could ask for the cancellation of the assessment. In our judgment the view of the High Court cannot be sustained. The clear import of Section 23 (4) is that on committing any one of the defaults mentioned therein the Income Tax Officer is bound to make the assessment to the best of his judgment. In other words if a person fails to make the return required by a notice under Section 22 (2)and he has further not made a return or a revised return under sub-section (3) of the same section the Income-tax Officer must make an assessment under Section 23 (4). Similarly, if that person fails to comply with all the terms of the notice issued under Section 22 (4) or if he fails to comply with all the terms of the notice issued under Section 23 (2) the Income-tax Officer must proceed to make an assessment to the best of his judgment. Section 27 empowers the Income-tax Officer to cancel the assessment when sufficient cause is shown but such cause has to be shown for each default. For the sake of illustration, if an assessee makes a default under Section 22 (2) by not filing a return pursuant to a notice received under that section and he also does not comply with the notice under Section 22 (4) he must show sufficient cause for non-compliance with both the, provisions and he cannot get the assessment cancelled merely by showing good cause for one of the two defaults Although the word "or" which is disjunctive is used in Section 27 it has to be read in a reasonable and harmonious way and in conjunction with Section 23 (4). It is inconceivable that the legislature could have even intended that in case of multiple defaults for each one of which an ex parte best judgment assessment has to be made the assessee can ask for cancellation of the assessment by merely showing cause for one of such defaults. In our opinion the Bombay High Court in Chiranjilal Tibrewala v. Commr. of Income-tax. Bombay City II, (1966) 59 ITR 42 (Bom) was right in holding that in the circumstances similar to the present case the assessee cannot ask for cancellation under S. 27 of an assessment made under Section 23 (4). In this view of the matter the judgment of the High Court has to be set aside, and the question has to be answered against the assessee and in favour of the appellant.
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