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Vijay Arjun Bhagat and Ors Vs. Nana Laxman Tapkire and Ors | abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."15. Sub-section (1) of Section 100 says that the second appeal would be entertained by the High Court only if the High Court is "satisfied" that the case involves a "substantial question of law". Sub-section (3) makes it obligatory upon the Appellant to precisely state in memo of appeal the "substantial question of law" involved in the appeal. Sub-section (4) provides that where the High Court is satisfied that any substantial question of law is involved in the case, it shall formulate that question. In other words, once the High Court is satisfied after hearing the Appellant or his counsel, as the case may be, that the appeal involves a substantial question of law, it has to formulate that question and then direct issuance of notice to the Respondent of the memo of appeal along with the question of law framed by the High Court. Sub-section (5) provides that the appeal shall be heard only on the question formulated by the High Court Under Sub-section (4). In other words, the jurisdiction of the High Court to decide the second appeal is confined only to the question framed by the High Court Under Sub-section(4). The Respondent, however, at the time of hearing of the appeal is given a right Under Sub-section (5) to raise an objection that the question framed by the High Court Under Sub-section (4) does not involve in the appeal. The reason for giving this right to the Respondent for raising such objection at the time of hearing is because the High Court frames the question at the admission stage which is prior to issuance of the notice of appeal to the Respondent. In other words, the question is framed behind the back of the Respondent and, therefore, Sub-section(5) enables him to raise such objection at the time of hearing that the question framed does not arise in the appeal. The proviso to Sub-section (5), however, also recognizes the power of the High Court to hear the appeal on any other substantial question of law which was not initially framed by the High Court Under Sub-section (4). However, this power can be exercised by the High Court only after assigning the reasons for framing such additional question of law at the time of hearing of the appeal (See C.A. Nos. 9118-9119 of 2010 titled Surat Singh (Dead) v. Siri Bhagwan and Ors. decided on 19.02.2018).16. Adverting to the facts of the case at hand, we find that the High Court on 30.11.2002 admitted the second appeal and framed six substantial questions of law quoted supra as required Under Sub-sections (1) and (4) of Section 100 of the Code which, according to the High Court, arose in the second appeal.17. The High Court was, therefore, required to decide the second appeal only on the six formulated substantial questions of law as provided Under Sub-section (5) of Section 100 of the Code.18. We, however, find that the High Court instead of deciding the second appeal on these six substantial questions of law framed at the time of admission allowed the appeal on two additional substantial questions of law (see Para 10 of the impugned judgment) which were neither framed by the High Court at the time of admission of the second appeal on 30.11.2002 and nor at the time of hearing the second appeal.19. In other words, the High Court allowed the appeal on the two questions, which were framed in the impugned judgment only. These two questions read as under:"In S.A. No. 274/2002, following substantial questions of law arise:(i) Whether the Civil Court has jurisdiction to decide the question whether a particular property is that of a Public Trust or that it is not a property of the Public Trust and belongs to individual claimant?(ii) Whether the suit for declaration that the properties were not of the Public Trust was barred by limitation and, therefore, the impugned judgment of the first appellate Court deserves interference?"20. In our considered opinion, the High Court, therefore, committed two jurisdictional errors while deciding the second appeal.21. First, though it rightly framed six substantial questions of law at the time of admission of the appeal on 30.11.2002 as arising in the case but erred in not answering these questions.22. As mentioned above, the High Court had the jurisdiction to decide the second appeal only on the six substantial questions of law framed at the time of admitting the appeal. In other words, the jurisdiction of the High Court to decide the second appeal was confined only to six questions framed and not beyond it.23. Second, the High Court though had the jurisdiction to frame additional question(s) by taking recourse to proviso to Sub-section (5) of Section 100 of the Code but it was subject to fulfilling the three conditions, first "such questions should arise in the appeal", second, "assign the reasons for framing the additional questions" and third, "frame the questions at the time of hearing the appeal".24. In this case, the High Court committed an error because it framed two additional questions in the judgment itself.25. This procedure adopted by the High Court while deciding the second appeal caused prejudice to the rights of the parties because the parties, especially the Appellants herein, who suffered the adverse order, had no knowledge about framing of the two additional questions inasmuch as they were deprived of the opportunity to address the Court on the two additional questions on which the impugned judgment was founded.26. Learned Counsel for the Respondents, however, made sincere efforts to persuade the Court to uphold the impugned judgment on merits but in the light of what we have held above, it is not possible to accept the submissions of the learned Counsel for the Respondents much less the submissions urged on the merits of the controversy. | 1[ds]11. Having heard the learnedfor the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned judgment and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law.12. In our considered view, the need to remand the case to the High Court has occasioned because the High Court while deciding and eventually allowing the second appeal did not follow the mandatory procedure prescribedSection 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as. In other words, we find that the manner in which the High Court proceeded to decide the second appeal did not appear to be in conformity with the mandatory procedure prescribedSection 100 of the Code.16. Adverting to the facts of the case at hand, we find that the High Court on 30.11.2002 admitted the second appeal and framed six substantial questions of law quoted supra as requireds (1) and (4) of Section 100 of the Code which, according to the High Court, arose in the second appeal.17. The High Court was, therefore, required to decide the second appeal only on the six formulated substantial questions of law as providedWe, however, find that the High Court instead of deciding the second appeal on these six substantial questions of law framed at the time of admission allowed the appeal on two additional substantial questions of law (see Para 10 of the impugned judgment) which were neither framed by the High Court at the time of admission of the second appeal on 30.11.2002 and nor at the time of hearing the second appeal.19. In other words, the High Court allowed the appeal on the two questions, which were framed in the impugned judgment only. These two questions read as2, following substantial questions of law arise:(i) Whether the Civil Court has jurisdiction to decide the question whether a particular property is that of a Public Trust or that it is not a property of the Public Trust and belongs to individual claimant?(ii) Whether the suit for declaration that the properties were not of the Public Trust was barred by limitation and, therefore, the impugned judgment of the first appellate Court deservesIn our considered opinion, the High Court, therefore, committed two jurisdictional errors while deciding the second appeal.21. First, though it rightly framed six substantial questions of law at the time of admission of the appeal on 30.11.2002 as arising in the case but erred in not answering these questions.22. As mentioned above, the High Court had the jurisdiction to decide the second appeal only on the six substantial questions of law framed at the time of admitting the appeal. In other words, the jurisdiction of the High Court to decide the second appeal was confined only to six questions framed and not beyond it.23. Second, the High Court though had the jurisdiction to frame additional question(s) by taking recourse to proviso toof Section 100 of the Code but it was subject to fulfilling the three conditions, first "such questions should arise in the appeal", second, "assign the reasons for framing the additional questions" and third, "frame the questions at the time of hearing the appeal".24. In this case, the High Court committed an error because it framed two additional questions in the judgment itself.25. This procedure adopted by the High Court while deciding the second appeal caused prejudice to the rights of the parties because the parties, especially theherein, who suffered the adverse order, had no knowledge about framing of the two additional questions inasmuch as they were deprived of the opportunity to address the Court on the two additional questions on which the impugned judgment was founded.26. Learnedts, however, made sincere efforts to persuade the Court to uphold the impugned judgment on merits but in the light of what we have held above, it is not possible to accept the submissions of the learnednts much less the submissions urged on the merits of the controversy. | 1 | 2,176 | 745 | ### Instruction:
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abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."15. Sub-section (1) of Section 100 says that the second appeal would be entertained by the High Court only if the High Court is "satisfied" that the case involves a "substantial question of law". Sub-section (3) makes it obligatory upon the Appellant to precisely state in memo of appeal the "substantial question of law" involved in the appeal. Sub-section (4) provides that where the High Court is satisfied that any substantial question of law is involved in the case, it shall formulate that question. In other words, once the High Court is satisfied after hearing the Appellant or his counsel, as the case may be, that the appeal involves a substantial question of law, it has to formulate that question and then direct issuance of notice to the Respondent of the memo of appeal along with the question of law framed by the High Court. Sub-section (5) provides that the appeal shall be heard only on the question formulated by the High Court Under Sub-section (4). In other words, the jurisdiction of the High Court to decide the second appeal is confined only to the question framed by the High Court Under Sub-section(4). The Respondent, however, at the time of hearing of the appeal is given a right Under Sub-section (5) to raise an objection that the question framed by the High Court Under Sub-section (4) does not involve in the appeal. The reason for giving this right to the Respondent for raising such objection at the time of hearing is because the High Court frames the question at the admission stage which is prior to issuance of the notice of appeal to the Respondent. In other words, the question is framed behind the back of the Respondent and, therefore, Sub-section(5) enables him to raise such objection at the time of hearing that the question framed does not arise in the appeal. The proviso to Sub-section (5), however, also recognizes the power of the High Court to hear the appeal on any other substantial question of law which was not initially framed by the High Court Under Sub-section (4). However, this power can be exercised by the High Court only after assigning the reasons for framing such additional question of law at the time of hearing of the appeal (See C.A. Nos. 9118-9119 of 2010 titled Surat Singh (Dead) v. Siri Bhagwan and Ors. decided on 19.02.2018).16. Adverting to the facts of the case at hand, we find that the High Court on 30.11.2002 admitted the second appeal and framed six substantial questions of law quoted supra as required Under Sub-sections (1) and (4) of Section 100 of the Code which, according to the High Court, arose in the second appeal.17. The High Court was, therefore, required to decide the second appeal only on the six formulated substantial questions of law as provided Under Sub-section (5) of Section 100 of the Code.18. We, however, find that the High Court instead of deciding the second appeal on these six substantial questions of law framed at the time of admission allowed the appeal on two additional substantial questions of law (see Para 10 of the impugned judgment) which were neither framed by the High Court at the time of admission of the second appeal on 30.11.2002 and nor at the time of hearing the second appeal.19. In other words, the High Court allowed the appeal on the two questions, which were framed in the impugned judgment only. These two questions read as under:"In S.A. No. 274/2002, following substantial questions of law arise:(i) Whether the Civil Court has jurisdiction to decide the question whether a particular property is that of a Public Trust or that it is not a property of the Public Trust and belongs to individual claimant?(ii) Whether the suit for declaration that the properties were not of the Public Trust was barred by limitation and, therefore, the impugned judgment of the first appellate Court deserves interference?"20. In our considered opinion, the High Court, therefore, committed two jurisdictional errors while deciding the second appeal.21. First, though it rightly framed six substantial questions of law at the time of admission of the appeal on 30.11.2002 as arising in the case but erred in not answering these questions.22. As mentioned above, the High Court had the jurisdiction to decide the second appeal only on the six substantial questions of law framed at the time of admitting the appeal. In other words, the jurisdiction of the High Court to decide the second appeal was confined only to six questions framed and not beyond it.23. Second, the High Court though had the jurisdiction to frame additional question(s) by taking recourse to proviso to Sub-section (5) of Section 100 of the Code but it was subject to fulfilling the three conditions, first "such questions should arise in the appeal", second, "assign the reasons for framing the additional questions" and third, "frame the questions at the time of hearing the appeal".24. In this case, the High Court committed an error because it framed two additional questions in the judgment itself.25. This procedure adopted by the High Court while deciding the second appeal caused prejudice to the rights of the parties because the parties, especially the Appellants herein, who suffered the adverse order, had no knowledge about framing of the two additional questions inasmuch as they were deprived of the opportunity to address the Court on the two additional questions on which the impugned judgment was founded.26. Learned Counsel for the Respondents, however, made sincere efforts to persuade the Court to uphold the impugned judgment on merits but in the light of what we have held above, it is not possible to accept the submissions of the learned Counsel for the Respondents much less the submissions urged on the merits of the controversy.
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11. Having heard the learnedfor the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned judgment and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law.12. In our considered view, the need to remand the case to the High Court has occasioned because the High Court while deciding and eventually allowing the second appeal did not follow the mandatory procedure prescribedSection 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as. In other words, we find that the manner in which the High Court proceeded to decide the second appeal did not appear to be in conformity with the mandatory procedure prescribedSection 100 of the Code.16. Adverting to the facts of the case at hand, we find that the High Court on 30.11.2002 admitted the second appeal and framed six substantial questions of law quoted supra as requireds (1) and (4) of Section 100 of the Code which, according to the High Court, arose in the second appeal.17. The High Court was, therefore, required to decide the second appeal only on the six formulated substantial questions of law as providedWe, however, find that the High Court instead of deciding the second appeal on these six substantial questions of law framed at the time of admission allowed the appeal on two additional substantial questions of law (see Para 10 of the impugned judgment) which were neither framed by the High Court at the time of admission of the second appeal on 30.11.2002 and nor at the time of hearing the second appeal.19. In other words, the High Court allowed the appeal on the two questions, which were framed in the impugned judgment only. These two questions read as2, following substantial questions of law arise:(i) Whether the Civil Court has jurisdiction to decide the question whether a particular property is that of a Public Trust or that it is not a property of the Public Trust and belongs to individual claimant?(ii) Whether the suit for declaration that the properties were not of the Public Trust was barred by limitation and, therefore, the impugned judgment of the first appellate Court deservesIn our considered opinion, the High Court, therefore, committed two jurisdictional errors while deciding the second appeal.21. First, though it rightly framed six substantial questions of law at the time of admission of the appeal on 30.11.2002 as arising in the case but erred in not answering these questions.22. As mentioned above, the High Court had the jurisdiction to decide the second appeal only on the six substantial questions of law framed at the time of admitting the appeal. In other words, the jurisdiction of the High Court to decide the second appeal was confined only to six questions framed and not beyond it.23. Second, the High Court though had the jurisdiction to frame additional question(s) by taking recourse to proviso toof Section 100 of the Code but it was subject to fulfilling the three conditions, first "such questions should arise in the appeal", second, "assign the reasons for framing the additional questions" and third, "frame the questions at the time of hearing the appeal".24. In this case, the High Court committed an error because it framed two additional questions in the judgment itself.25. This procedure adopted by the High Court while deciding the second appeal caused prejudice to the rights of the parties because the parties, especially theherein, who suffered the adverse order, had no knowledge about framing of the two additional questions inasmuch as they were deprived of the opportunity to address the Court on the two additional questions on which the impugned judgment was founded.26. Learnedts, however, made sincere efforts to persuade the Court to uphold the impugned judgment on merits but in the light of what we have held above, it is not possible to accept the submissions of the learnednts much less the submissions urged on the merits of the controversy.
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KALOJI NARAYANA RAO UNIVERSITY OF HEALTH SCIENCES Vs. SRIKEERTI REDDI PINGLE & ORS | qualification held by the candidate, an NRI who had studied in the USA, was deemed to be equivalent to the prescribed eligibility conditions: 13. It was categorically held by this Court that each Clause is inde- pendent of the other and none of the sub-clauses can be read together. If the candidate has fulfilled the requirements of any one of the Clause, he or she will be entitled for admission to the Medical Course. The petitioners in the present case will fall within Regulation 4 (f) and once the petitioners have produced the Equivalence Certificate issued by the 5th Respondent, there is no more requirement to again subject the petitioners for one more scrutiny on their eligibility. It will be too farfetched to declare that a candidate who fulfils the requirements for NEET Examination, will not fulfil the qualification when it comes to joining the MBBS Course. Such an interpretation will lead to illogical consequences. The petitioners who were living in USA have come to this country to undergo the Medical Course and they were found to be eligible by the Equivalence Committee to write the NEET Examina- tion. After having been given an allotment in the 4th Respondent Institu- tion, the 4th Respondent Institution cannot now undertake one more exercise and come to a completely different conclusion by reading Regulation 4 (a) into Regulation 4 (f) and thereby render the effect of Regulation 4 (f) completely nugatory and redundant. 19. It is apparent that the High Court followed its previous judgment, and did not closely scrutinize the equivalence certificate or the subject stipulations. It also appears to have been largely influenced by the fact that the candidate was in fact admitted by the University. In the opinion of this court, the construction placed on Regulation 4(2), i.e., that each of the sub clauses (a) to (f) prescribes independent qualifications which should be deemed essential, is rather simplistic. That interpretation ignores the fact that each of the sub-clauses insists that certain subjects should have been studied, and practical examinations attempted at the 10+2 or equiv- alent level. Secondly, the college or intermediate examination [or equivalent qualifi- cations under Regulation 4(2)(f)] cannot be read in isolation, having regard to the cir- cumstances. The provision must be read in the context of the requirements for eligi- bility under Regulations 4(2)(a) to (e). The equivalence in qualification is not merely at the level of a 10+2 requirement, i.e., that the candidate should have passed an ex- amination equivalent to the intermediate science examination at an Indian Uni- versity/ Board. Additional to this requirement, Regulation 4(2)(f) requires equiva- lence in standard and scope in an examination where the candidate is tested in Phys- ics, Chemistry and Biology including practical testing in these subjects, along with English. These subject matter requirements are consistent across Regulations 4(2)(a) to (e) and (f). 20. The approach and construction placed by the High Court, in this courts opinion, undermines the intent behind the MCIs insistence that a certain kind of education should be undergone, which is that each candidate for the MBBS course should have undergone study in Physics, Chemistry and Biology, in each of the levels (i.e. the two years of 10+2 board examination, or the concerned intermediate examination) with practical exams, in each of those years; that he or she should also have had English as a subject, and that the score in Mathematics would be ignored and not taken into consideration(The last negative stipulation, by a note, applicable to all the sub-clauses of Regulation 4(2).). It would be, in this context, necessary to clarify that the equivalence relied on by the Telangana Intermediate Board in this case, merely alluded to the general equivalence in terms of education at the intermediate level, without stipulating whether the qualifications were equivalent in terms of the subjects in which she undertook courses for the relevant years. 21. The stipulation of equivalence in Regulation 4(2)(f) is not merely a formal one. The provision must be read in the context of the consistent conditions of eligibility prescribed in Regulations 4(2)(a) to (e), as noted above. This court, in State of Bombay v. R.M.D. Chamarbaugwala(1957 SCR 930.) interpreted the definition of a prize competition(Under s. 2(1)(d) of the Bombay Lotteries and Prize Competitions Control and Tax Act, 1948.). A prize competition was defined as including crossword prize competitions, picture prize competitions, etc., and finally, any other prize competition, for which solution is or is not prepared beforehand by the promotors, or for which the solution is determined by lot or chance. This last qualification was appended only to the last sub-clause on any other competition. The court held that the qualification should be equally applicable to the other sub-clauses too, and that there was no difficulty in reading the qualifying clause as lending colour to each of those items. In the present case, Regulation 4(2)(f) explicitly refers to the subject matter requirement reiterated in all the eligibility conditions from (a) to (e); the substance of the eligibility requirement indeed, is that the candidate should have qual- ified an intermediate level examination or first year of a graduate course, and studied the subjects of Physics, Chemistry and Biology at this level, along with practical testing in these subject areas, and the English language. This subject matter requirement is at the heart of eligibility to be admitted into the medical course. 22. For these reasons, this court is of the opinion that the interpretation placed up- on the regulations in both the cited cases, by the Madras High Court, do not reflect the correct position. To be eligible, the candidate should produce clear and categorical material to show that she underwent the necessary years of study in all the stipulated subjects. This court is of the opinion that such stipulations are to be regarded as essential, given that the course in question, i.e., MBBS primarily if not predominantly, involves prior knowledge - both theoretical and practical, of senior secondary level in biology or biological sciences. | 1[ds]11. A plain reading of Regulation 4(2) shows that the MCI visualized five different situations, having regard to the nature and structure of high school education in India, and provided for equivalence in respect of other variants of similar examinations, possibly even overseas qualifications. In all, the MCI regulations contemplate six qualifications for eligibility - (i) higher secondary examinations conducted by one of the several boards (of secondary and senior secondary school examinations) or the Indian School Certificate Examination [Reg. 4(2)(a)]; (ii) the intermediate examination in science of an Indian University/Board or other recognised examining body [Reg. 4(2)(b)]; (iii) Pre-professional/pre-medical examination with Physics, Chemistry and Biology/Bio-technology, after passing either the higher secondary school examination, or the pre-university or an equivalent examination, with further stipulation that the pre-professional examination should have a practical test in Physics, Chemistry and Biology/Bio-technology [Reg. 4(2)(c)]; (iv) the first year examination of the three years degree course of a recognized university, with Physics, Chemistry and Biology/Bio-technology, with a further stipulation that the candidate should have passed the 10+2 examination with English at a level not less than the core course [Reg. 4(2)(d)]; (v) the B.Sc. examination of an Indian University, only if the candidate has passed the B.Sc. examination with not less than two of the following subjects Physics, Chemistry, Biology (Botany, Zoology)/Bio- technology and further that he/she has passed the earlier qualifying examination with the following subjects – Physics, Chemistry, Biology and English [Reg. 4(2)(e)]; and lastly, (vi) any examination found to be equivalent to the intermediate science examination of an Indian University/Board, taking Physics, Chemistry and Biology including practical test in each of these subjects and English[Reg. 4(2)(f)].12. It is noticeable that each variant of what is acceptable, lays stress on certain common features: (a) that the candidate should have passed the examination with Physics, Chemistry and Biology/Bio-technology; (b) the candidate should have undergone practical tests in those science subjects (c) the candidate should have studied English and, lastly, (d) that marks obtained in Mathematics would not be tak- en into consideration for deciding admission to the MBBS course.This court finds the submission insubstantial. While the court cannot claim expertise and pronounce upon the curriculum and pedagogy of any course, much less the academic course which the student (in this case) qualified, what it can certainly do is examine whether the Universitys stand that she does not hold a qualification equivalent to any of the five categories of qualifications spelt out [i.e., Regulation 4(2)(a) to (e)], or the sixth category [Regulation 4(2)(f)] is correct.14. A careful reading of the said provision discloses that the MCI emphasized that the candidate should have undergone study at the 10+2 stage, (or in the intermediate course) in the specified subjects of Physics, Chemistry and Biology/Bio-technology. In this case, the certificate relied upon by the student(Issued by the West Hartford Science Department Supervisor.) merely clarifies that she undertook a course whilst in the 10th grade. That, by no means, is sufficient to fall within the description of equivalent qualification under Regulation 4(2)(f). Nor, in the opinion of this court, can it be deemed adequate having regard to the letter of the Assistant Principal of Conrad High School(Dated 29.01.2021) that the AP course in Biological Sciences is of college standard.15. In the opinion of this court, there is a rationale and compelling logic on the part of the University to say that the candidate should have studied biology or biological sciences (apart from the other two science subjects, along with the further requirement of having studied English) in all the relevant years during the intermediate or at 10+2 level. Further, the reference to having studied in the first year in a degree course, at the college level with the said subject, carries with it, the implication that the student would have necessarily undergone academic study and training in the said three subjects at the 10+2 or intermediate level (without which, admission in a degree course is inconceivable in India). The further emphasis on having attended or undertaken practical lessons, (again at that level, in each of the concerned years) clearly signifies that a candidate should have undergone study in those subjects for the last two years at school or intermediate college level. The regulation is further clear that the examination score (marks) in Mathematics shall not be taken into consideration for the purpose of admission to a medical course, in reckoning merit or performance in the qualifying examination.16. So far as the judgment of the Madras High Court in Sharanya Balaji Nadar (supra) is concerned, the candidate there had applied for admission, and was permitted to appear in the common entrance examination. The structure of the concerned regulations of the Dental Council of India, in that case, were closely similar to Regulation 4(2) of the MCI Regulations in the present case. The High Court accepted the candidates submissions, and held as follows:14. A careful reading of the above regulations makes it clear that a candidate even at the time of taking NEET examination must fulfil the eligibility criteria that is prescribed in Clause 3 which is extracted supra. Clause 3 contains six sub clauses from (a) to (f). Each sub- clause is independent of the other and none of the sub-clauses can be read together. For the purposes of this case, sub-clause (a) and sub- clause (f) requires consideration.15. The case of the petitioner is that she falls under sub- clause (f) of the regulations. Any candidate who falls under sub-clause (f) of the regulations, has to obtain an equivalence certificate from the concerned authority. The concerned authority is the Association of the Indian Universities. This authority considered the degree/diploma ob- tained by the petitioner in as educational institution at USA. The con- cerned authority found that the qualification of the petitioner is equiv- alent to the senior school certificate of CBSE/other boards in India. The evaluation of the educational credentials has been extracted su- pra.16. It is based on this equivalence certificate, the petitioner was allowed to write the NEET examination and the petitioner se- cured 258 marks and she was allotted a seat in the fourth respondent college by the allotment order passed by the third respondent, dated 24.07.2019. The petitioner is undergoing the course.19. It is apparent that the High Court followed its previous judgment, and did not closely scrutinize the equivalence certificate or the subject stipulations. It also appears to have been largely influenced by the fact that the candidate was in fact admitted by the University. In the opinion of this court, the construction placed on Regulation 4(2), i.e., that each of the sub clauses (a) to (f) prescribes independent qualifications which should be deemed essential, is rather simplistic. That interpretation ignores the fact that each of the sub-clauses insists that certain subjects should have been studied, and practical examinations attempted at the 10+2 or equiv- alent level. Secondly, the college or intermediate examination [or equivalent qualifi- cations under Regulation 4(2)(f)] cannot be read in isolation, having regard to the cir- cumstances. The provision must be read in the context of the requirements for eligi- bility under Regulations 4(2)(a) to (e). The equivalence in qualification is not merely at the level of a 10+2 requirement, i.e., that the candidate should have passed an ex- amination equivalent to the intermediate science examination at an Indian Uni- versity/ Board. Additional to this requirement, Regulation 4(2)(f) requires equiva- lence in standard and scope in an examination where the candidate is tested in Phys- ics, Chemistry and Biology including practical testing in these subjects, along with English. These subject matter requirements are consistent across Regulations 4(2)(a) to (e) and (f).20. The approach and construction placed by the High Court, in this courts opinion, undermines the intent behind the MCIs insistence that a certain kind of education should be undergone, which is that each candidate for the MBBS course should have undergone study in Physics, Chemistry and Biology, in each of the levels (i.e. the two years of 10+2 board examination, or the concerned intermediate examination) with practical exams, in each of those years; that he or she should also have had English as a subject, and that the score in Mathematics would be ignored and not taken into consideration(The last negative stipulation, by a note, applicable to all the sub-clauses of Regulation 4(2).). It would be, in this context, necessary to clarify that the equivalence relied on by the Telangana Intermediate Board in this case, merely alluded to the general equivalence in terms of education at the intermediate level, without stipulating whether the qualifications were equivalent in terms of the subjects in which she undertook courses for the relevant years.21. The stipulation of equivalence in Regulation 4(2)(f) is not merely a formal one. The provision must be read in the context of the consistent conditions of eligibility prescribed in Regulations 4(2)(a) to (e), as noted above. This court, in State of Bombay v. R.M.D. Chamarbaugwala(1957 SCR 930.) interpreted the definition of a prize competition(Under s. 2(1)(d) of the Bombay Lotteries and Prize Competitions Control and Tax Act, 1948.). A prize competition was defined as including crossword prize competitions, picture prize competitions, etc., and finally, any other prize competition, for which solution is or is not prepared beforehand by the promotors, or for which the solution is determined by lot or chance. This last qualification was appended only to the last sub-clause on any other competition. The court held that the qualification should be equally applicable to the other sub-clauses too, and that there was no difficulty in reading the qualifying clause as lending colour to each of those items. In the present case, Regulation 4(2)(f) explicitly refers to the subject matter requirement reiterated in all the eligibility conditions from (a) to (e); the substance of the eligibility requirement indeed, is that the candidate should have qual- ified an intermediate level examination or first year of a graduate course, and studied the subjects of Physics, Chemistry and Biology at this level, along with practical testing in these subject areas, and the English language. This subject matter requirement is at the heart of eligibility to be admitted into the medical course.22. For these reasons, this court is of the opinion that the interpretation placed up- on the regulations in both the cited cases, by the Madras High Court, do not reflect the correct position. To be eligible, the candidate should produce clear and categorical material to show that she underwent the necessary years of study in all the stipulated subjects. This court is of the opinion that such stipulations are to be regarded as essential, given that the course in question, i.e., MBBS primarily if not predominantly, involves prior knowledge - both theoretical and practical, of senior secondary level in biology or biological sciences. | 1 | 5,025 | 2,199 | ### 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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qualification held by the candidate, an NRI who had studied in the USA, was deemed to be equivalent to the prescribed eligibility conditions: 13. It was categorically held by this Court that each Clause is inde- pendent of the other and none of the sub-clauses can be read together. If the candidate has fulfilled the requirements of any one of the Clause, he or she will be entitled for admission to the Medical Course. The petitioners in the present case will fall within Regulation 4 (f) and once the petitioners have produced the Equivalence Certificate issued by the 5th Respondent, there is no more requirement to again subject the petitioners for one more scrutiny on their eligibility. It will be too farfetched to declare that a candidate who fulfils the requirements for NEET Examination, will not fulfil the qualification when it comes to joining the MBBS Course. Such an interpretation will lead to illogical consequences. The petitioners who were living in USA have come to this country to undergo the Medical Course and they were found to be eligible by the Equivalence Committee to write the NEET Examina- tion. After having been given an allotment in the 4th Respondent Institu- tion, the 4th Respondent Institution cannot now undertake one more exercise and come to a completely different conclusion by reading Regulation 4 (a) into Regulation 4 (f) and thereby render the effect of Regulation 4 (f) completely nugatory and redundant. 19. It is apparent that the High Court followed its previous judgment, and did not closely scrutinize the equivalence certificate or the subject stipulations. It also appears to have been largely influenced by the fact that the candidate was in fact admitted by the University. In the opinion of this court, the construction placed on Regulation 4(2), i.e., that each of the sub clauses (a) to (f) prescribes independent qualifications which should be deemed essential, is rather simplistic. That interpretation ignores the fact that each of the sub-clauses insists that certain subjects should have been studied, and practical examinations attempted at the 10+2 or equiv- alent level. Secondly, the college or intermediate examination [or equivalent qualifi- cations under Regulation 4(2)(f)] cannot be read in isolation, having regard to the cir- cumstances. The provision must be read in the context of the requirements for eligi- bility under Regulations 4(2)(a) to (e). The equivalence in qualification is not merely at the level of a 10+2 requirement, i.e., that the candidate should have passed an ex- amination equivalent to the intermediate science examination at an Indian Uni- versity/ Board. Additional to this requirement, Regulation 4(2)(f) requires equiva- lence in standard and scope in an examination where the candidate is tested in Phys- ics, Chemistry and Biology including practical testing in these subjects, along with English. These subject matter requirements are consistent across Regulations 4(2)(a) to (e) and (f). 20. The approach and construction placed by the High Court, in this courts opinion, undermines the intent behind the MCIs insistence that a certain kind of education should be undergone, which is that each candidate for the MBBS course should have undergone study in Physics, Chemistry and Biology, in each of the levels (i.e. the two years of 10+2 board examination, or the concerned intermediate examination) with practical exams, in each of those years; that he or she should also have had English as a subject, and that the score in Mathematics would be ignored and not taken into consideration(The last negative stipulation, by a note, applicable to all the sub-clauses of Regulation 4(2).). It would be, in this context, necessary to clarify that the equivalence relied on by the Telangana Intermediate Board in this case, merely alluded to the general equivalence in terms of education at the intermediate level, without stipulating whether the qualifications were equivalent in terms of the subjects in which she undertook courses for the relevant years. 21. The stipulation of equivalence in Regulation 4(2)(f) is not merely a formal one. The provision must be read in the context of the consistent conditions of eligibility prescribed in Regulations 4(2)(a) to (e), as noted above. This court, in State of Bombay v. R.M.D. Chamarbaugwala(1957 SCR 930.) interpreted the definition of a prize competition(Under s. 2(1)(d) of the Bombay Lotteries and Prize Competitions Control and Tax Act, 1948.). A prize competition was defined as including crossword prize competitions, picture prize competitions, etc., and finally, any other prize competition, for which solution is or is not prepared beforehand by the promotors, or for which the solution is determined by lot or chance. This last qualification was appended only to the last sub-clause on any other competition. The court held that the qualification should be equally applicable to the other sub-clauses too, and that there was no difficulty in reading the qualifying clause as lending colour to each of those items. In the present case, Regulation 4(2)(f) explicitly refers to the subject matter requirement reiterated in all the eligibility conditions from (a) to (e); the substance of the eligibility requirement indeed, is that the candidate should have qual- ified an intermediate level examination or first year of a graduate course, and studied the subjects of Physics, Chemistry and Biology at this level, along with practical testing in these subject areas, and the English language. This subject matter requirement is at the heart of eligibility to be admitted into the medical course. 22. For these reasons, this court is of the opinion that the interpretation placed up- on the regulations in both the cited cases, by the Madras High Court, do not reflect the correct position. To be eligible, the candidate should produce clear and categorical material to show that she underwent the necessary years of study in all the stipulated subjects. This court is of the opinion that such stipulations are to be regarded as essential, given that the course in question, i.e., MBBS primarily if not predominantly, involves prior knowledge - both theoretical and practical, of senior secondary level in biology or biological sciences.
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1
### Explanation:
the MCI Regulations in the present case. The High Court accepted the candidates submissions, and held as follows:14. A careful reading of the above regulations makes it clear that a candidate even at the time of taking NEET examination must fulfil the eligibility criteria that is prescribed in Clause 3 which is extracted supra. Clause 3 contains six sub clauses from (a) to (f). Each sub- clause is independent of the other and none of the sub-clauses can be read together. For the purposes of this case, sub-clause (a) and sub- clause (f) requires consideration.15. The case of the petitioner is that she falls under sub- clause (f) of the regulations. Any candidate who falls under sub-clause (f) of the regulations, has to obtain an equivalence certificate from the concerned authority. The concerned authority is the Association of the Indian Universities. This authority considered the degree/diploma ob- tained by the petitioner in as educational institution at USA. The con- cerned authority found that the qualification of the petitioner is equiv- alent to the senior school certificate of CBSE/other boards in India. The evaluation of the educational credentials has been extracted su- pra.16. It is based on this equivalence certificate, the petitioner was allowed to write the NEET examination and the petitioner se- cured 258 marks and she was allotted a seat in the fourth respondent college by the allotment order passed by the third respondent, dated 24.07.2019. The petitioner is undergoing the course.19. It is apparent that the High Court followed its previous judgment, and did not closely scrutinize the equivalence certificate or the subject stipulations. It also appears to have been largely influenced by the fact that the candidate was in fact admitted by the University. In the opinion of this court, the construction placed on Regulation 4(2), i.e., that each of the sub clauses (a) to (f) prescribes independent qualifications which should be deemed essential, is rather simplistic. That interpretation ignores the fact that each of the sub-clauses insists that certain subjects should have been studied, and practical examinations attempted at the 10+2 or equiv- alent level. Secondly, the college or intermediate examination [or equivalent qualifi- cations under Regulation 4(2)(f)] cannot be read in isolation, having regard to the cir- cumstances. The provision must be read in the context of the requirements for eligi- bility under Regulations 4(2)(a) to (e). The equivalence in qualification is not merely at the level of a 10+2 requirement, i.e., that the candidate should have passed an ex- amination equivalent to the intermediate science examination at an Indian Uni- versity/ Board. Additional to this requirement, Regulation 4(2)(f) requires equiva- lence in standard and scope in an examination where the candidate is tested in Phys- ics, Chemistry and Biology including practical testing in these subjects, along with English. These subject matter requirements are consistent across Regulations 4(2)(a) to (e) and (f).20. The approach and construction placed by the High Court, in this courts opinion, undermines the intent behind the MCIs insistence that a certain kind of education should be undergone, which is that each candidate for the MBBS course should have undergone study in Physics, Chemistry and Biology, in each of the levels (i.e. the two years of 10+2 board examination, or the concerned intermediate examination) with practical exams, in each of those years; that he or she should also have had English as a subject, and that the score in Mathematics would be ignored and not taken into consideration(The last negative stipulation, by a note, applicable to all the sub-clauses of Regulation 4(2).). It would be, in this context, necessary to clarify that the equivalence relied on by the Telangana Intermediate Board in this case, merely alluded to the general equivalence in terms of education at the intermediate level, without stipulating whether the qualifications were equivalent in terms of the subjects in which she undertook courses for the relevant years.21. The stipulation of equivalence in Regulation 4(2)(f) is not merely a formal one. The provision must be read in the context of the consistent conditions of eligibility prescribed in Regulations 4(2)(a) to (e), as noted above. This court, in State of Bombay v. R.M.D. Chamarbaugwala(1957 SCR 930.) interpreted the definition of a prize competition(Under s. 2(1)(d) of the Bombay Lotteries and Prize Competitions Control and Tax Act, 1948.). A prize competition was defined as including crossword prize competitions, picture prize competitions, etc., and finally, any other prize competition, for which solution is or is not prepared beforehand by the promotors, or for which the solution is determined by lot or chance. This last qualification was appended only to the last sub-clause on any other competition. The court held that the qualification should be equally applicable to the other sub-clauses too, and that there was no difficulty in reading the qualifying clause as lending colour to each of those items. In the present case, Regulation 4(2)(f) explicitly refers to the subject matter requirement reiterated in all the eligibility conditions from (a) to (e); the substance of the eligibility requirement indeed, is that the candidate should have qual- ified an intermediate level examination or first year of a graduate course, and studied the subjects of Physics, Chemistry and Biology at this level, along with practical testing in these subject areas, and the English language. This subject matter requirement is at the heart of eligibility to be admitted into the medical course.22. For these reasons, this court is of the opinion that the interpretation placed up- on the regulations in both the cited cases, by the Madras High Court, do not reflect the correct position. To be eligible, the candidate should produce clear and categorical material to show that she underwent the necessary years of study in all the stipulated subjects. This court is of the opinion that such stipulations are to be regarded as essential, given that the course in question, i.e., MBBS primarily if not predominantly, involves prior knowledge - both theoretical and practical, of senior secondary level in biology or biological sciences.
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Workmen of Delhi Electric Supply Undertaking Vs. Management of Delhi Electric Supply Undertaking | can be paid. The concerned workmen do not come under any of the categories. Mr. Chagla has not been able to satisfy us that contrary to Regulation No. 17 any workman is being paid over-time wages. Therefore, this contention also has to be rejected. 21. Coming to the question of conveyance allowance, we have already stated that the claim is for fixing Rs. 120/- per month for the Superintendents and Rs. 80/- p.m. for the Inspectors. With effect from November 1, 1955 the Delhi State Electricity Board had fixed the allowance for motor-car for certain categories of its employees ranging from Rs. 85/- to Rs. 125/- p.m. depending upon the mileage covered. Likewise allowance for maintenance of motor-cycles was allowed to certain categories of employees of the Board ranging from Rs. 35/- to Rs. 45/- per month depending upon the average mileage. The car allowance was raised from Rs. 85-125 to Rs. 150-200 in 1959 and further raised to Rs. 200-250 from July 1, 1963. On the other hand, the allowance payable to Superintendents was raised from Rs. 45/- to Rs. 60/- per month in 1959. The Inspectors were made eligible for the motor-cycle allowance for the first time in 1961 at Rs. 30/- per month. On April 10, 1964, the Delhi Electric Supply Undertaking revised the conveyance allowance for cars and motor-cycles or scooters. The revised rates took effect from July 1, 1963. So far as the car allowance was concerned, it was increased to some officers to Rs. 250/- per month and in respect of certain other officers it was increased from the amount ranging from Rs. 125/- to Rs. 200/-. There were 25 officers governed by the car allowance. Admittedly, the car allowance which was in 1955 ranging from Rs. 85-125, was revised in 1964 at amounts ranging from Rs. 125/- to Rs. 250/-.In fact, there has been a steady increase from time to time. While increasing the car allowance in 1964, though the same order deals with the allowance for motor-cycles and scooters, no increase whatsoever was made for them. The allowance of Rs. 60/- given to the Superintendents in 1959 was retained even in 1964. Rs. 30/- given for the first time to the Inspectors in 1961 was retained at the same level in 1964. The Tribunal has rejected the claim of the concerned workmen for an increase in the allowance on the ground that the order dated April 10, 1964 has fixed the conveyance allowance for motor-cycles and motor-cars on a rational basis and that any disturbance in the rates will have repercussions on other category of workmen. This is the sole reason given by the Tribunal for rejecting the claim of the workmen. 22. Mr. Chagla is justified in his contention that the Tribunal has not considered the matter properly as it should have done. 23. Mr. G. B. Pai learned counsel for the respondent, no doubt, referred us to the written statement of the respondent filed before the Tribunal, wherein it is stated that when the order dated April 10, 1964 was passed, the cost of maintenance, repair charges, cost of fuel have all been taken into account. It is further stated that the Pay Commission had recommended certain scales of conveyance allowance to the officers of the Government as well as to the employees of the Central Public Works Department. As the order has fixed the conveyance allowance on a scientific basis, the counsel pointed out, that the Tribunal was justified in rejecting the claim of the workmen, for increasing the conveyance allowance. 24. We are not inclined to accept the contention of Mr. Pai. The Tribunal has, as we have already pointed out, given no other reason except the fact that if the rates in the order are disturbed in favour of one category of workmen, it will have repercussions on other categories of workmen. It may be that if the rates are altered in favour of one group of workmen, there may be claims from other workmen also. That by itself is not a valid reason, in our opinion, for rejecting the claim of the workmen. Mr. Pai also pointed out during the course of his arguments that as Delhi has expanded far and wide, the officers with cars have to travel longer distances and therefore an increase in the car allowance was justified. There was no material placed before the Tribunal by the respondent as to what additional trips the officers have to make over and above the trips that they used to make in 1955 and later on. Admittedly, the conveyance allowance for motor-cars have been steadily increased from 1955. The 1964 rates show that the increase is as much as 21/2 times in some cases in respect of motor-cars. If there is a justification for such an increase in respect of cars, there is also justification for giving additional allowance regarding motor-cycles and scooters. In the written statement the respondent has admitted that the break down in electricity is very frequent and that the Superintendents and Inspectors have to make more frequent visits. Having due regard to the increase in the cost of maintenance, fuel etc. which the respondent has itself taken note of in 1964 and the extra mileage that has to be covered, in our opinion, the Superintendents and Inspectors must be given an increase of Rs. 25/- and Rs. 12.50 per month respectively over the present rate of allowance given to them in the order of 1964. Accordingly, the Superintendents will get Rs. 85/- per month and the Inspectors will get Rs. 42.50 per month. These workmen will be entitled to get the allowance at this rate retrospectively from the date of reference, namely, April 1, 1966. The excess amount due to them as per our Judgment from April 1, 1966 upto March 31, 1972 will be paid by the respondent within three months from today. From April 1, 1972 these workmen will get the conveyance allowance at the rate fixed by us. | 1[ds]12. Mr. G. B. Pai is well founded in his contention that the appellants have nowhere raised the point that the Regulations are not saved by Section 516 of the Delhi Municipal Corporation Act13. As the first contention that the Regulations are not saved by Section 516 of the Delhi Municipal Corporation Act, was taken by Mr. Chagla for the first time and that without any previous notice to the respondent, we did not permit him to pursue that contention15. From the definition of "factory" it is clear that it must be a premises where a manufacturing process is carried on.According to Mr. Chagla, the manufacturing process that is carried on by the undertaking is that of generating, transforming and transmitting electricity power. Though electricity is generated in the power station still to reduce the voltage and do other incidental acts for the purpose of ensuring supply of power to consumers, thes and the zonal stations are an integral part of the power station. That is, according to Mr. Chagla, the entire process of generating, transforming and transmitting power, though these items of work may be done in different places, namely, power stations,s and the zonal stations, must be considered to form part of a single manufacturing process in which the workmen concerned are. The fact that some of the workmen are in the power station and the rest are either in thes or the zonal stations will not make any difference in this respect, as all of them take part in the manufacturing process. Admittedly, the power station is treated as factory and it follows that these two units, the16. No doubt,Mr. Chagla referred us the decision of the Calcutta High Court in Calcutta Electric Supply Corporation Ltd. v. Employees State Insurance Corpn., AIR 1961 Cal, where it was held that the power stations or generating stations and connecteds and other ancillary establishments are to be considered as one unit. But this conclusion was arrived at by the learned Judges when construing the expression "employee" under Section 2 (9) of the Employees State Insurance Act, 1948. A reading of that definition clearly shows that its ambit was very wide. Therefore this decision does not assist Mr. ChaglaWe are conscious that the question whether a particular unit is a factory has to be decided by applying the ingredients contained in the definition of "factory" under the Factories Act and therefore, the fact that a witness, however, high placed he may be, says that a particular unit is not a factory cannot be conclusive on the matter. We have, after applying the necessary test held that thes and the zonal stations are not factories and in that connection the evidence of M. W. 1 becomes relevant. From the above discussion it follows that the second contention also fails20. Regarding the third contention, though we have great sympathy, when the grievance of the concerned workmen is that they are not paid when they are asked to work, no relief can be granted to them. Their service conditions are governed by the Regulations framed under Section 79 (c) of the Electricity (Supply) Act, Regulation No. 17 clearly specifies that persons to whomovertimewages can be paid. The concerned workmen do not come under any of the categories. Mr. Chagla has not been able to satisfy us that contrary to Regulation No. 17 any workman is being paidovertimewages. Therefore, this contention also has to be rejected23. Mr. G. B. Pai learned counsel for the respondent, no doubt, referred us to the written statement of the respondent filed before the Tribunal, wherein it is stated that when the order dated April 10, 1964 was passed, the cost of maintenance, repair charges, cost of fuel have all been taken into account. It is further stated that the Pay Commission had recommended certain scales of conveyance allowance to the officers of the Government as well as to the employees of the Central Public Works Department. As the order has fixed the conveyance allowance on a scientific basis, the counsel pointed out, that the Tribunal was justified in rejecting the claim of the workmen, for increasing the conveyance allowance24. We are not inclined to accept the contention of Mr. Pai. The Tribunal has, as we have already pointed out, given no other reason except the fact that if the rates in the order are disturbed in favour of one category of workmen, it will have repercussions on other categories of workmen. It may be that if the rates are altered in favour of one group of workmen, there may be claims from other workmen also. That by itself is not a valid reason, in our opinion, for rejecting the claim of the workmen. Mr. Pai also pointed out during the course of his arguments that as Delhi has expanded far and wide, the officers with cars have to travel longer distances and therefore an increase in the car allowance was justified. There was no material placed before the Tribunal by the respondent as to what additional trips the officers have to make over and above the trips that they used to make in 1955 and later on. Admittedly, the conveyance allowance fors have been steadily increased from 1955. The 1964 rates show that the increase is as much as 21/2 times in some cases in respect of. If there is a justification for such an increase in respect of cars, there is also justification for giving additional allowance regardings and scooters. In the written statement the respondent has admitted that the break down in electricity is very frequent and that the Superintendents and Inspectors have to make more frequent visits. Having due regard to the increase in the cost of maintenance, fuel etc. which the respondent has itself taken note of in 1964 and the extra mileage that has to be covered, in our opinion, the Superintendents and Inspectors must be given an increase of Rs. 25/and Rs. 12.50 per month respectively over the present rate of allowance given to them in the order of 1964. Accordingly, the Superintendents will get Rs. 85/per month and the Inspectors will get Rs. 42.50 per month. These workmen will be entitled to get the allowance at this rate retrospectively from the date of reference, namely, April 1, 1966. The excess amount due to them as per our Judgment from April 1, 1966 upto March 31, 1972 will be paid by the respondent within three months from today. From April 1, 1972 these workmen will get the conveyance allowance at the rate fixed by us. | 1 | 4,057 | 1,215 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
can be paid. The concerned workmen do not come under any of the categories. Mr. Chagla has not been able to satisfy us that contrary to Regulation No. 17 any workman is being paid over-time wages. Therefore, this contention also has to be rejected. 21. Coming to the question of conveyance allowance, we have already stated that the claim is for fixing Rs. 120/- per month for the Superintendents and Rs. 80/- p.m. for the Inspectors. With effect from November 1, 1955 the Delhi State Electricity Board had fixed the allowance for motor-car for certain categories of its employees ranging from Rs. 85/- to Rs. 125/- p.m. depending upon the mileage covered. Likewise allowance for maintenance of motor-cycles was allowed to certain categories of employees of the Board ranging from Rs. 35/- to Rs. 45/- per month depending upon the average mileage. The car allowance was raised from Rs. 85-125 to Rs. 150-200 in 1959 and further raised to Rs. 200-250 from July 1, 1963. On the other hand, the allowance payable to Superintendents was raised from Rs. 45/- to Rs. 60/- per month in 1959. The Inspectors were made eligible for the motor-cycle allowance for the first time in 1961 at Rs. 30/- per month. On April 10, 1964, the Delhi Electric Supply Undertaking revised the conveyance allowance for cars and motor-cycles or scooters. The revised rates took effect from July 1, 1963. So far as the car allowance was concerned, it was increased to some officers to Rs. 250/- per month and in respect of certain other officers it was increased from the amount ranging from Rs. 125/- to Rs. 200/-. There were 25 officers governed by the car allowance. Admittedly, the car allowance which was in 1955 ranging from Rs. 85-125, was revised in 1964 at amounts ranging from Rs. 125/- to Rs. 250/-.In fact, there has been a steady increase from time to time. While increasing the car allowance in 1964, though the same order deals with the allowance for motor-cycles and scooters, no increase whatsoever was made for them. The allowance of Rs. 60/- given to the Superintendents in 1959 was retained even in 1964. Rs. 30/- given for the first time to the Inspectors in 1961 was retained at the same level in 1964. The Tribunal has rejected the claim of the concerned workmen for an increase in the allowance on the ground that the order dated April 10, 1964 has fixed the conveyance allowance for motor-cycles and motor-cars on a rational basis and that any disturbance in the rates will have repercussions on other category of workmen. This is the sole reason given by the Tribunal for rejecting the claim of the workmen. 22. Mr. Chagla is justified in his contention that the Tribunal has not considered the matter properly as it should have done. 23. Mr. G. B. Pai learned counsel for the respondent, no doubt, referred us to the written statement of the respondent filed before the Tribunal, wherein it is stated that when the order dated April 10, 1964 was passed, the cost of maintenance, repair charges, cost of fuel have all been taken into account. It is further stated that the Pay Commission had recommended certain scales of conveyance allowance to the officers of the Government as well as to the employees of the Central Public Works Department. As the order has fixed the conveyance allowance on a scientific basis, the counsel pointed out, that the Tribunal was justified in rejecting the claim of the workmen, for increasing the conveyance allowance. 24. We are not inclined to accept the contention of Mr. Pai. The Tribunal has, as we have already pointed out, given no other reason except the fact that if the rates in the order are disturbed in favour of one category of workmen, it will have repercussions on other categories of workmen. It may be that if the rates are altered in favour of one group of workmen, there may be claims from other workmen also. That by itself is not a valid reason, in our opinion, for rejecting the claim of the workmen. Mr. Pai also pointed out during the course of his arguments that as Delhi has expanded far and wide, the officers with cars have to travel longer distances and therefore an increase in the car allowance was justified. There was no material placed before the Tribunal by the respondent as to what additional trips the officers have to make over and above the trips that they used to make in 1955 and later on. Admittedly, the conveyance allowance for motor-cars have been steadily increased from 1955. The 1964 rates show that the increase is as much as 21/2 times in some cases in respect of motor-cars. If there is a justification for such an increase in respect of cars, there is also justification for giving additional allowance regarding motor-cycles and scooters. In the written statement the respondent has admitted that the break down in electricity is very frequent and that the Superintendents and Inspectors have to make more frequent visits. Having due regard to the increase in the cost of maintenance, fuel etc. which the respondent has itself taken note of in 1964 and the extra mileage that has to be covered, in our opinion, the Superintendents and Inspectors must be given an increase of Rs. 25/- and Rs. 12.50 per month respectively over the present rate of allowance given to them in the order of 1964. Accordingly, the Superintendents will get Rs. 85/- per month and the Inspectors will get Rs. 42.50 per month. These workmen will be entitled to get the allowance at this rate retrospectively from the date of reference, namely, April 1, 1966. The excess amount due to them as per our Judgment from April 1, 1966 upto March 31, 1972 will be paid by the respondent within three months from today. From April 1, 1972 these workmen will get the conveyance allowance at the rate fixed by us.
### Response:
1
### Explanation:
a premises where a manufacturing process is carried on.According to Mr. Chagla, the manufacturing process that is carried on by the undertaking is that of generating, transforming and transmitting electricity power. Though electricity is generated in the power station still to reduce the voltage and do other incidental acts for the purpose of ensuring supply of power to consumers, thes and the zonal stations are an integral part of the power station. That is, according to Mr. Chagla, the entire process of generating, transforming and transmitting power, though these items of work may be done in different places, namely, power stations,s and the zonal stations, must be considered to form part of a single manufacturing process in which the workmen concerned are. The fact that some of the workmen are in the power station and the rest are either in thes or the zonal stations will not make any difference in this respect, as all of them take part in the manufacturing process. Admittedly, the power station is treated as factory and it follows that these two units, the16. No doubt,Mr. Chagla referred us the decision of the Calcutta High Court in Calcutta Electric Supply Corporation Ltd. v. Employees State Insurance Corpn., AIR 1961 Cal, where it was held that the power stations or generating stations and connecteds and other ancillary establishments are to be considered as one unit. But this conclusion was arrived at by the learned Judges when construing the expression "employee" under Section 2 (9) of the Employees State Insurance Act, 1948. A reading of that definition clearly shows that its ambit was very wide. Therefore this decision does not assist Mr. ChaglaWe are conscious that the question whether a particular unit is a factory has to be decided by applying the ingredients contained in the definition of "factory" under the Factories Act and therefore, the fact that a witness, however, high placed he may be, says that a particular unit is not a factory cannot be conclusive on the matter. We have, after applying the necessary test held that thes and the zonal stations are not factories and in that connection the evidence of M. W. 1 becomes relevant. From the above discussion it follows that the second contention also fails20. Regarding the third contention, though we have great sympathy, when the grievance of the concerned workmen is that they are not paid when they are asked to work, no relief can be granted to them. Their service conditions are governed by the Regulations framed under Section 79 (c) of the Electricity (Supply) Act, Regulation No. 17 clearly specifies that persons to whomovertimewages can be paid. The concerned workmen do not come under any of the categories. Mr. Chagla has not been able to satisfy us that contrary to Regulation No. 17 any workman is being paidovertimewages. Therefore, this contention also has to be rejected23. Mr. G. B. Pai learned counsel for the respondent, no doubt, referred us to the written statement of the respondent filed before the Tribunal, wherein it is stated that when the order dated April 10, 1964 was passed, the cost of maintenance, repair charges, cost of fuel have all been taken into account. It is further stated that the Pay Commission had recommended certain scales of conveyance allowance to the officers of the Government as well as to the employees of the Central Public Works Department. As the order has fixed the conveyance allowance on a scientific basis, the counsel pointed out, that the Tribunal was justified in rejecting the claim of the workmen, for increasing the conveyance allowance24. We are not inclined to accept the contention of Mr. Pai. The Tribunal has, as we have already pointed out, given no other reason except the fact that if the rates in the order are disturbed in favour of one category of workmen, it will have repercussions on other categories of workmen. It may be that if the rates are altered in favour of one group of workmen, there may be claims from other workmen also. That by itself is not a valid reason, in our opinion, for rejecting the claim of the workmen. Mr. Pai also pointed out during the course of his arguments that as Delhi has expanded far and wide, the officers with cars have to travel longer distances and therefore an increase in the car allowance was justified. There was no material placed before the Tribunal by the respondent as to what additional trips the officers have to make over and above the trips that they used to make in 1955 and later on. Admittedly, the conveyance allowance fors have been steadily increased from 1955. The 1964 rates show that the increase is as much as 21/2 times in some cases in respect of. If there is a justification for such an increase in respect of cars, there is also justification for giving additional allowance regardings and scooters. In the written statement the respondent has admitted that the break down in electricity is very frequent and that the Superintendents and Inspectors have to make more frequent visits. Having due regard to the increase in the cost of maintenance, fuel etc. which the respondent has itself taken note of in 1964 and the extra mileage that has to be covered, in our opinion, the Superintendents and Inspectors must be given an increase of Rs. 25/and Rs. 12.50 per month respectively over the present rate of allowance given to them in the order of 1964. Accordingly, the Superintendents will get Rs. 85/per month and the Inspectors will get Rs. 42.50 per month. These workmen will be entitled to get the allowance at this rate retrospectively from the date of reference, namely, April 1, 1966. The excess amount due to them as per our Judgment from April 1, 1966 upto March 31, 1972 will be paid by the respondent within three months from today. From April 1, 1972 these workmen will get the conveyance allowance at the rate fixed by us.
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Oriental Ins.Co.Ltd Vs. Dyamavva | by entry in the notice book. 9. Sub-sections (1) to (3) of Section 8 extracted above, leave no room for any doubt, that when a workman during the course of his employment suffers injuries resulting in his death, the employer has to deposit the compensation payable, with the Workmens Compensation Commissioner. Payment made by the employer directly to the dependants is not recognized as a valid disbursement of compensation. The procedure envisaged in Section 8 of the Workmens Compensation Act, 1923, can be invoked only by the employer for depositing compensation with the Workmens Compensation Commissioner. Consequent upon such suo motu deposit of compensation (by the employer) with the Workmans Compensation Commissioner, the Commissioner may (or may not) summon the dependants of the concerned employee, to appear before him under sub-section (4) of Section 8 aforesaid. Having satisfied himself about the entitlement (or otherwise) of the dependants to such compensation, the Commissioner is then required to order the rightful apportionment thereof amongst the dependants, under sub-sections (5) to (9) of Section 8 of the Workmens Compensation Act, 1923. Surplus, if any, has to be returned to the employer. 10. As against the aforesaid, where an employer has not suo-motu initiated action for payment of compensation to an employee or his/her dependants, inspite of an employee having suffered injuries leading to the death, it is open to the dependants of such employee, to raise a claim for compensation under Section 10 of the Workmens Compensation Act, 1923. Sub- section (1) of Section 10 prescribes the period of limitation for making such a claim as two years, from the date of occurrence (or death). The remaining sub-sections of Section 10 of the Workmens Compensation Act, 1923 delineate the other procedural requirements for raising such a claim. 11. Having perused the aforesaid provisions and determined their effect, it cleanly emerges, that the Port Trust had initiated proceedings for paying compensation to the dependants of the deceased Yalgurdappa B. Goudar suo motu under Section 8 of the Workmens Compensation Act, 1923. For the aforesaid purpose, the Port Trust had deposited a sum of Rs.3,26,140/- with the Workmens Compensation Commissioner on 4.11.2003. Thereupon, the Workmens Compensation Commissioner, having issued noticed to the claimants (dependants of the deceased Yalgurdappa B. Goudar), fixed 20.4.2004 as the date of hearing. On the aforesaid date, the statement of the widow of Yalgurdappa B. Goudar, namely, Dyamavva Yalgurdappa was recorded, and thereafter, the Workmens Compensation Commissioner by an order dated 29.4.2004 directed the release of a sum of Rs.3,26,140/- to be shared by the widow of the deceased and his daughter in definite proportions. 12. The issue to be determined by us is, whether the acceptance of the aforesaid compensation would amount to the claimants having exercised their option, to seek compensation under the Workmens Compensation Act, 1923. The procedure under Section 8 aforesaid (as noticed above) is initiated at the behest of the employer suo motu, and as such, in our view cannot be considered as an exercise of option by the dependants/claimants to seek compensation under the provisions of the Workmens Compensation Act, 1923. The position would have been otherwise, if the dependants had raised a claim for compensation under Section 10 of the Workmens Compensation Act, 1923. In the said eventuality, certainly compensation would be paid to the dependants at the instance (and option) of the claimants. In other words, if the claimants had moved an application under Section 10 of the Workmens Compensation Act, 1923, they would have been deemed to have exercised their option to seek compensation under the provisions of the Workmens compensation Act. Suffice it to state that no such application was ever filed by the respondents-claimants herein under Section 10 aforesaid. In the above view of the matter, it can be stated that the respondents- claimants having never exercised their option to seek compensation under Section 10 of the Workmens Compensation Act, 1923, could not be deemed to be precluded from seeking compensation under Section 166 of the Motor Vehicles Act, 1988. 13. Even though the aforesaid determination, concludes the issue in hand, ambiguity if at all, can also be resolved in the present case, on the basis of the admitted factual position. The first act at the behest of the respondents-claimants for seeking compensation on account of the death of Yalgurdappa B. Goudar, was by way of filing a claim petition under Section 166 of the Motor Vehicles Act, 1988 on 30.5.2003. The aforesaid claim petition was the first claim for compensation raised at the hands of the respondents-claimants. If the question raised by the appellant has to be determined with reference to Section 167 of the Motor Vehicles Act, 1988, the same is liable to be determined on the basis of the aforesaid claim application filed by the respondents-claimants on 30.5.2003. The compensation deposited by the Port Trust with the Workmens Compensation Commissioner for payment to the respondents-claimants was much later, on 4.11.2003. The aforesaid deposit, as already noticed above, was not at the behest of the respondents-claimants, but was based on a unilateral suo motu determination of the employer (the Port Trust) under Section 8 of the Workmens Compensation Act, 1923. The first participation of Dayamavva Yalgurdappa, in the proceedings initiated by the Port Trust under the Workmens Compensation Act, 1923, was on 20.4.2004. Having been summoned by the Workmens Commissioner, she got her statement recorded before the Commissioner on 20.4.2004. But well before that date, she (as well as the other claimants) had already filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, on 30.5.2003. Filing of the aforesaid claim application under Section 166 aforesaid, in our view constitutes her (as well as, that of the other dependants of the deceased) option, to seek compensation under the Motor Vehicles Act, 1988. The instant conclusion would yet again answer the question raised by the appellant herein, under Section 167 of the Motor Vehicles Act, 1988, in the same manner, as has already been determined above. | 1[ds]9. Sub-sections (1) to (3) of Section 8 extracted above, leave no room for any doubt, that when a workman during the course of his employment suffers injuries resulting in his death, the employer has to deposit the compensation payable, with the Workmens Compensation Commissioner. Payment made by the employer directly to the dependants is not recognized as a valid disbursement of compensation. The procedure envisaged in Section 8 of the Workmens Compensation Act, 1923, can be invoked only by the employer for depositing compensation with the Workmens Compensation Commissioner. Consequent upon such suo motu deposit of compensation (by the employer) with the Workmans Compensation Commissioner, the Commissioner may (or may not) summon the dependants of the concerned employee, to appear before him under sub-section (4) of Section 8 aforesaid. Having satisfied himself about the entitlement (or otherwise) of the dependants to such compensation, the Commissioner is then required to order the rightful apportionment thereof amongst the dependants, under sub-sections (5) to (9) of Section 8 of the Workmens Compensation Act, 1923. Surplus, if any, has to be returned to the employer10. As against the aforesaid, where an employer has not suo-motu initiated action for payment of compensation to an employee or his/her dependants, inspite of an employee having suffered injuries leading to the death, it is open to the dependants of such employee, to raise a claim for compensation under Section 10 of the Workmens Compensation Act, 1923. Sub- section (1) of Section 10 prescribes the period of limitation for making such a claim as two years, from the date of occurrence (or death). The remaining sub-sections of Section 10 of the Workmens Compensation Act, 1923 delineate the other procedural requirements for raising such a claim11. Having perused the aforesaid provisions and determined their effect, it cleanly emerges, that the Port Trust had initiated proceedings for paying compensation to the dependants of the deceased Yalgurdappa B. Goudar suo motu under Section 8 of the Workmens Compensation Act, 1923. For the aforesaid purpose, the Port Trust had deposited a sum of Rs.3,26,140/- with the Workmens Compensation Commissioner on 4.11.2003. Thereupon, the Workmens Compensation Commissioner, having issued noticed to the claimants (dependants of the deceased Yalgurdappa B. Goudar), fixed 20.4.2004 as the date of hearing. On the aforesaid date, the statement of the widow of Yalgurdappa B. Goudar, namely, Dyamavva Yalgurdappa was recorded, and thereafter, the Workmens Compensation Commissioner by an order dated 29.4.2004 directed the release of a sum of Rs.3,26,140/- to be shared by the widow of the deceased and his daughter in definite proportionsThe procedure under Section 8 aforesaid (as noticed above) is initiated at the behest of the employer suo motu, and as such, in our view cannot be considered as an exercise of option by the dependants/claimants to seek compensation under the provisions of the Workmens Compensation Act, 1923. The position would have been otherwise, if the dependants had raised a claim for compensation under Section 10 of the Workmens Compensation Act, 1923. In the said eventuality, certainly compensation would be paid to the dependants at the instance (and option) of the claimants. In other words, if the claimants had moved an application under Section 10 of the Workmens Compensation Act, 1923, they would have been deemed to have exercised their option to seek compensation under the provisions of the Workmens compensation Act. Suffice it to state that no such application was ever filed by the respondents-claimants herein under Section 10 aforesaid. In the above view of the matter, it can be stated that the respondents- claimants having never exercised their option to seek compensation under Section 10 of the Workmens Compensation Act, 1923, could not be deemed to be precluded from seeking compensation under Section 166 ofthe Motor Vehicles Act, 198813. Even though the aforesaid determination, concludes the issue in hand, ambiguity if at all, can also be resolved in the present case, on the basis of the admitted factual position. The first act at the behest of the respondents-claimants for seeking compensation on account of the death of Yalgurdappa B. Goudar, was by way of filing a claim petition under Section 166 ofthe Motor Vehicles Act, 1988on 30.5.2003. The aforesaid claim petition was the first claim for compensation raised at the hands of the respondents-claimants. If the question raised by the appellant has to be determined with reference to Section 167 ofthe Motor Vehicles Act,, the same is liable to be determined on the basis of the aforesaid claim application filed by the respondents-claimants on 30.5.2003. The compensation deposited by the Port Trust with the Workmens Compensation Commissioner for payment to the respondents-claimants was much later, on 4.11.2003. The aforesaid deposit, as already noticed above, was not at the behest of the respondents-claimants, but was based on a unilateral suo motu determination of the employer (the Port Trust) under Section 8 of the Workmens Compensation Act, 1923. The first participation of Dayamavva Yalgurdappa, in the proceedings initiated by the Port Trust under the Workmens Compensation Act, 1923, was on 20.4.2004. Having been summoned by the Workmens Commissioner, she got her statement recorded before the Commissioner on 20.4.2004. But well before that date, she (as well as the other claimants) had already filed a claim petition under Section 166 ofthe Motor Vehicles Act,, on 30.5.2003. Filing of the aforesaid claim application under Section 166 aforesaid, in our view constitutes her (as well as, that of the other dependants of the deceased) option, to seek compensation underthe Motor Vehicles Act,The instant conclusion would yet again answer the question raised by the appellant herein, under Section 167 ofthe Motor Vehicles Act,, in the same manner, as has already been determined above. | 1 | 5,218 | 1,084 | ### 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:
by entry in the notice book. 9. Sub-sections (1) to (3) of Section 8 extracted above, leave no room for any doubt, that when a workman during the course of his employment suffers injuries resulting in his death, the employer has to deposit the compensation payable, with the Workmens Compensation Commissioner. Payment made by the employer directly to the dependants is not recognized as a valid disbursement of compensation. The procedure envisaged in Section 8 of the Workmens Compensation Act, 1923, can be invoked only by the employer for depositing compensation with the Workmens Compensation Commissioner. Consequent upon such suo motu deposit of compensation (by the employer) with the Workmans Compensation Commissioner, the Commissioner may (or may not) summon the dependants of the concerned employee, to appear before him under sub-section (4) of Section 8 aforesaid. Having satisfied himself about the entitlement (or otherwise) of the dependants to such compensation, the Commissioner is then required to order the rightful apportionment thereof amongst the dependants, under sub-sections (5) to (9) of Section 8 of the Workmens Compensation Act, 1923. Surplus, if any, has to be returned to the employer. 10. As against the aforesaid, where an employer has not suo-motu initiated action for payment of compensation to an employee or his/her dependants, inspite of an employee having suffered injuries leading to the death, it is open to the dependants of such employee, to raise a claim for compensation under Section 10 of the Workmens Compensation Act, 1923. Sub- section (1) of Section 10 prescribes the period of limitation for making such a claim as two years, from the date of occurrence (or death). The remaining sub-sections of Section 10 of the Workmens Compensation Act, 1923 delineate the other procedural requirements for raising such a claim. 11. Having perused the aforesaid provisions and determined their effect, it cleanly emerges, that the Port Trust had initiated proceedings for paying compensation to the dependants of the deceased Yalgurdappa B. Goudar suo motu under Section 8 of the Workmens Compensation Act, 1923. For the aforesaid purpose, the Port Trust had deposited a sum of Rs.3,26,140/- with the Workmens Compensation Commissioner on 4.11.2003. Thereupon, the Workmens Compensation Commissioner, having issued noticed to the claimants (dependants of the deceased Yalgurdappa B. Goudar), fixed 20.4.2004 as the date of hearing. On the aforesaid date, the statement of the widow of Yalgurdappa B. Goudar, namely, Dyamavva Yalgurdappa was recorded, and thereafter, the Workmens Compensation Commissioner by an order dated 29.4.2004 directed the release of a sum of Rs.3,26,140/- to be shared by the widow of the deceased and his daughter in definite proportions. 12. The issue to be determined by us is, whether the acceptance of the aforesaid compensation would amount to the claimants having exercised their option, to seek compensation under the Workmens Compensation Act, 1923. The procedure under Section 8 aforesaid (as noticed above) is initiated at the behest of the employer suo motu, and as such, in our view cannot be considered as an exercise of option by the dependants/claimants to seek compensation under the provisions of the Workmens Compensation Act, 1923. The position would have been otherwise, if the dependants had raised a claim for compensation under Section 10 of the Workmens Compensation Act, 1923. In the said eventuality, certainly compensation would be paid to the dependants at the instance (and option) of the claimants. In other words, if the claimants had moved an application under Section 10 of the Workmens Compensation Act, 1923, they would have been deemed to have exercised their option to seek compensation under the provisions of the Workmens compensation Act. Suffice it to state that no such application was ever filed by the respondents-claimants herein under Section 10 aforesaid. In the above view of the matter, it can be stated that the respondents- claimants having never exercised their option to seek compensation under Section 10 of the Workmens Compensation Act, 1923, could not be deemed to be precluded from seeking compensation under Section 166 of the Motor Vehicles Act, 1988. 13. Even though the aforesaid determination, concludes the issue in hand, ambiguity if at all, can also be resolved in the present case, on the basis of the admitted factual position. The first act at the behest of the respondents-claimants for seeking compensation on account of the death of Yalgurdappa B. Goudar, was by way of filing a claim petition under Section 166 of the Motor Vehicles Act, 1988 on 30.5.2003. The aforesaid claim petition was the first claim for compensation raised at the hands of the respondents-claimants. If the question raised by the appellant has to be determined with reference to Section 167 of the Motor Vehicles Act, 1988, the same is liable to be determined on the basis of the aforesaid claim application filed by the respondents-claimants on 30.5.2003. The compensation deposited by the Port Trust with the Workmens Compensation Commissioner for payment to the respondents-claimants was much later, on 4.11.2003. The aforesaid deposit, as already noticed above, was not at the behest of the respondents-claimants, but was based on a unilateral suo motu determination of the employer (the Port Trust) under Section 8 of the Workmens Compensation Act, 1923. The first participation of Dayamavva Yalgurdappa, in the proceedings initiated by the Port Trust under the Workmens Compensation Act, 1923, was on 20.4.2004. Having been summoned by the Workmens Commissioner, she got her statement recorded before the Commissioner on 20.4.2004. But well before that date, she (as well as the other claimants) had already filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, on 30.5.2003. Filing of the aforesaid claim application under Section 166 aforesaid, in our view constitutes her (as well as, that of the other dependants of the deceased) option, to seek compensation under the Motor Vehicles Act, 1988. The instant conclusion would yet again answer the question raised by the appellant herein, under Section 167 of the Motor Vehicles Act, 1988, in the same manner, as has already been determined above.
### Response:
1
### Explanation:
9. Sub-sections (1) to (3) of Section 8 extracted above, leave no room for any doubt, that when a workman during the course of his employment suffers injuries resulting in his death, the employer has to deposit the compensation payable, with the Workmens Compensation Commissioner. Payment made by the employer directly to the dependants is not recognized as a valid disbursement of compensation. The procedure envisaged in Section 8 of the Workmens Compensation Act, 1923, can be invoked only by the employer for depositing compensation with the Workmens Compensation Commissioner. Consequent upon such suo motu deposit of compensation (by the employer) with the Workmans Compensation Commissioner, the Commissioner may (or may not) summon the dependants of the concerned employee, to appear before him under sub-section (4) of Section 8 aforesaid. Having satisfied himself about the entitlement (or otherwise) of the dependants to such compensation, the Commissioner is then required to order the rightful apportionment thereof amongst the dependants, under sub-sections (5) to (9) of Section 8 of the Workmens Compensation Act, 1923. Surplus, if any, has to be returned to the employer10. As against the aforesaid, where an employer has not suo-motu initiated action for payment of compensation to an employee or his/her dependants, inspite of an employee having suffered injuries leading to the death, it is open to the dependants of such employee, to raise a claim for compensation under Section 10 of the Workmens Compensation Act, 1923. Sub- section (1) of Section 10 prescribes the period of limitation for making such a claim as two years, from the date of occurrence (or death). The remaining sub-sections of Section 10 of the Workmens Compensation Act, 1923 delineate the other procedural requirements for raising such a claim11. Having perused the aforesaid provisions and determined their effect, it cleanly emerges, that the Port Trust had initiated proceedings for paying compensation to the dependants of the deceased Yalgurdappa B. Goudar suo motu under Section 8 of the Workmens Compensation Act, 1923. For the aforesaid purpose, the Port Trust had deposited a sum of Rs.3,26,140/- with the Workmens Compensation Commissioner on 4.11.2003. Thereupon, the Workmens Compensation Commissioner, having issued noticed to the claimants (dependants of the deceased Yalgurdappa B. Goudar), fixed 20.4.2004 as the date of hearing. On the aforesaid date, the statement of the widow of Yalgurdappa B. Goudar, namely, Dyamavva Yalgurdappa was recorded, and thereafter, the Workmens Compensation Commissioner by an order dated 29.4.2004 directed the release of a sum of Rs.3,26,140/- to be shared by the widow of the deceased and his daughter in definite proportionsThe procedure under Section 8 aforesaid (as noticed above) is initiated at the behest of the employer suo motu, and as such, in our view cannot be considered as an exercise of option by the dependants/claimants to seek compensation under the provisions of the Workmens Compensation Act, 1923. The position would have been otherwise, if the dependants had raised a claim for compensation under Section 10 of the Workmens Compensation Act, 1923. In the said eventuality, certainly compensation would be paid to the dependants at the instance (and option) of the claimants. In other words, if the claimants had moved an application under Section 10 of the Workmens Compensation Act, 1923, they would have been deemed to have exercised their option to seek compensation under the provisions of the Workmens compensation Act. Suffice it to state that no such application was ever filed by the respondents-claimants herein under Section 10 aforesaid. In the above view of the matter, it can be stated that the respondents- claimants having never exercised their option to seek compensation under Section 10 of the Workmens Compensation Act, 1923, could not be deemed to be precluded from seeking compensation under Section 166 ofthe Motor Vehicles Act, 198813. Even though the aforesaid determination, concludes the issue in hand, ambiguity if at all, can also be resolved in the present case, on the basis of the admitted factual position. The first act at the behest of the respondents-claimants for seeking compensation on account of the death of Yalgurdappa B. Goudar, was by way of filing a claim petition under Section 166 ofthe Motor Vehicles Act, 1988on 30.5.2003. The aforesaid claim petition was the first claim for compensation raised at the hands of the respondents-claimants. If the question raised by the appellant has to be determined with reference to Section 167 ofthe Motor Vehicles Act,, the same is liable to be determined on the basis of the aforesaid claim application filed by the respondents-claimants on 30.5.2003. The compensation deposited by the Port Trust with the Workmens Compensation Commissioner for payment to the respondents-claimants was much later, on 4.11.2003. The aforesaid deposit, as already noticed above, was not at the behest of the respondents-claimants, but was based on a unilateral suo motu determination of the employer (the Port Trust) under Section 8 of the Workmens Compensation Act, 1923. The first participation of Dayamavva Yalgurdappa, in the proceedings initiated by the Port Trust under the Workmens Compensation Act, 1923, was on 20.4.2004. Having been summoned by the Workmens Commissioner, she got her statement recorded before the Commissioner on 20.4.2004. But well before that date, she (as well as the other claimants) had already filed a claim petition under Section 166 ofthe Motor Vehicles Act,, on 30.5.2003. Filing of the aforesaid claim application under Section 166 aforesaid, in our view constitutes her (as well as, that of the other dependants of the deceased) option, to seek compensation underthe Motor Vehicles Act,The instant conclusion would yet again answer the question raised by the appellant herein, under Section 167 ofthe Motor Vehicles Act,, in the same manner, as has already been determined above.
|
Installment Supply (P.) Ltd. And Another Vs. The Union Of India And Others | balance of all the hire hereinbefore mentioned and any other expenses incurred by the owners relating to the transaction."9. It is clear, therefore, that in addition to the contract of hiring an option has been given to the hirer to purchase or not to purchase. The more serious question on this part of the petitioners contention is whether the non obstante clause in the explanation "notwithstanding that the seller retain a title to any goods as security for payment of the price" governs the main clause of the explanation. In our opinion, it does not. The non obstante clause has been added only to emphasise the categorical statement of the law contained in the main clause to the effect that a transfer of goods on hire-purchase, etc., shall be deemed to be a sale even though there may be a stipulation to the effect that in spite of the transfer of goods to the hirer, the owner retains title to those goods until the happening of the ultimate event, namely, completion of title at the option of the hirer.10. There is, thus, no doubt that the agreement in question does contain not only a contract of bailment simpliciter but also an element of sale, which element has been seized upon by the legislature for the purpose of subjecting a transaction like that to the Sales Tax.11. This leads us to the second ground of attack raised by the petitioners, namely, that the explanation, if it has the effect of extending the concept of sale to what, in law, is not a real sale, but only an incipient or inchoate sale, then in so far as the law has extended the definition of sale it is unconstitutional. This contention has lost all its force, if ever it had any, in view of the decision of this Court in Mithan Lals case, 1959 S C R 445 : (AIR 1958 S C 682), (supra).12. But then it is argued that Mithan Lals case, 1959 S C R 445 : (AIR 1958 S C 682) requires re-consideration and that, in any view of the matter, this Court did not consider the further attack based on Art, 14 of the Constitution. It is true that in Mithan Lals case, 1959 S C R 445 : (AIR 1958 S C 682) (supra) the contention that the enactment in question had infringed Art,14 of the Constitution had not been raised. This Court, therefore, had no occasion to pronounce on that aspect of the controversy. We have, therefore, to consider the contention under head (3), namely, that though the Parliament may have had the power to tax something which was not strictly speaking a sale, the law is open to the attack that it discriminates against traders in Delhi inasmuch as, it is further contended, such a law has not been made applicable to the whole of India. In our opinion, there is no substance in this contention because no proper foundation was laid in the pleadings for supporting such a contention. It has not been averred that other Part C States have not been similarly treated. On the other hand, it does appear that under the Central sales tax Act (LXXIV of 1956), the definition of Sale contains the extended definition, without the non obstante clause, discussed above. Section 2(g) of the Central Sales Tax Act, 1956, has the following definition :Sale with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration, and includes a transfer of goods on the hire purchase or other system of payment by instalments, but does not include a mortgage or hypothecation of or a charge or pledge on goods."It would thus appear that hire purchase transactions have been included within the definition of sale for the purpose of Central Sales Tax, and this definition has become applicable throughout India, and it cannot, therefore, be said that the State of Delhi, and now the Union Territory of Delhi, has been selected for hostile discrimination. In our opinion, therefore, there is no substance in the contention that the extended definition of sale in the main statute infringes Art. 14 of the Constitution.13. Now, the remaining contentions raised on behalf of the petitioners may be disposed of by observing that what the Sales Tax Department does, or does not do, cannot change the law. The Department issued its instructions to the Sales Tax Officers, in conformity with the law as laid down in the judgment of the Punjab High Court in (S)AIR 1956 Punj 177 (supra). This Court later laid down the law more authoritatively in Mithan Lals case 1959 S C R 445: (AIR 1958 SC 682 ) (supra) and the Department was bound to take notice of what this Court had laid down. It cannot, therefore, be argued that the Department had, in any sense estopped itself by issuing those instructions, or that this Court, by laying down the law in Mithan Lals case, 1959 S C R 445: (AIR 1958 S C 682) (supra) had laid down a new rule of law which has no application to pending proceedings for levy, assessment and realisation of sales tax, either in Delhi or elsewhere.14. There is another answer to the point of res judicata raised off behalf of the petitioners, relying upon the decision of the Punjab High Court in (S) AIR 1956 Punj 177 (supra).It is well settled that in matters of taxation there is no question of res judicata because each years assessment is final only for that year and does not govern later years, because it determines only the tax for a particular period.(See the decision in the House of Lords in Society of Medical Officers of Health v. Hope, 1960 A C 551 approving and following the decision of the Privy Council in Broken Hill Proprietary Company Ltd. v. Broken Hill Municipal Council, 1926 A C 94. | 0[ds]7. It is clear that under the Law, as it now stands, which has now been crystallised into the section of the Hire Purchase Act, quoted above, the transaction partakes of the nature of a contract or bailment with an element of sale, as aforesaid, added to it. In such an agreement, the hirer may not be bound to purchase the thing hired ; he may or may not be. But in either case, if there is in obligation to buy, or an option to buy, the goods delivered to the hirer by the owner on the terms that the hirer, on payment of a premium as also of a number of instalments, shall enjoy the use of the goods, which ultimately may become his property, the transaction amounts to one of hirepurchase, even though the title to the goods has remained with the owner and shall not pass to the hirer until a certain event has happened, namely, that all the stipulated instalments have been paid, or that the hirer has exercised his option to finalise the purchase on payment of a sum, nominal orto third term of the agreement, on the hirer duly performing and observing the terms of the agreement, with particular reference to the payment of the monthly instalments, "the hiring shall come to an end and the vehicle shall, at the option of the hirer, become his absolute property; but until such payments as aforesaid have been made, the vehicle shall remain the property of the owners. The hirer shall also have the option of purchasing the vehicle at any time during the currency of this Agreement by paying in one lump sum the balance of all the hire hereinbefore mentioned and any other expenses incurred by the owners relating to the transaction."9. It is clear, therefore, that in addition to the contract of hiring an option has been given to the hirer to purchase or not to purchase. The more serious question on this part of the petitioners contention is whether the non obstante clause in the explanation "notwithstanding that the seller retain a title to any goods as security for payment of the price" governs the main clause of the explanation. In our opinion, it does not. The non obstante clause has been added only to emphasise the categorical statement of the law contained in the main clause to the effect that a transfer of goods on hire-purchase, etc., shall be deemed to be a sale even though there may be a stipulation to the effect that in spite of the transfer of goods to the hirer, the owner retains title to those goods until the happening of the ultimate event, namely, completion of title at the option of the hirer.10. There is, thus, no doubt that the agreement in question does contain not only a contract of bailment simpliciter but also an element of sale, which element has been seized upon by the legislature for the purpose of subjecting a transaction like that to the Salescontention has lost all its force, if ever it had any, in view of the decision of this Court in Mithan Lals case, 1959 S C R 445 : (AIR 1958 S C 682),is true that in Mithan Lals case, 1959 S C R 445 : (AIR 1958 S C 682) (supra) the contention that the enactment in question had infringed Art,14 of the Constitution had not been raised. This Court, therefore, had no occasion to pronounce on that aspect of the controversy. We have, therefore, to consider the contention under head (3), namely, that though the Parliament may have had the power to tax something which was not strictly speaking a sale, the law is open to the attack that it discriminates against traders in Delhi inasmuch as, it is further contended, such a law has not been made applicable to the whole of India. In our opinion, there is no substance in this contention because no proper foundation was laid in the pleadings for supporting such a contention. It has not been averred that other Part C States have not been similarly treated. On the other hand, it does appear that under the Central sales tax Act (LXXIV of 1956), the definition of Sale contains the extended definition, without the non obstante clause, discussedwould thus appear that hire purchase transactions have been included within the definition of sale for the purpose of Central Sales Tax, and this definition has become applicable throughout India, and it cannot, therefore, be said that the State of Delhi, and now the Union Territory of Delhi, has been selected for hostile discrimination. In our opinion, therefore, there is no substance in the contention that the extended definition of sale in the main statute infringes Art. 14 of the Constitution.13. Now, the remaining contentions raised on behalf of the petitioners may be disposed of by observing that what the Sales Tax Department does, or does not do, cannot change the law. The Department issued its instructions to the Sales Tax Officers, in conformity with the law as laid down in the judgment of the Punjab High Court in (S)AIR 1956 Punj 177 (supra). This Court later laid down the law more authoritatively in Mithan Lals case 1959 S C R 445: (AIR 1958 SC 682 ) (supra) and the Department was bound to take notice of what this Court had laid down. It cannot, therefore, be argued that the Department had, in any sense estopped itself by issuing those instructions, or that this Court, by laying down the law in Mithan Lals case, 1959 S C R 445: (AIR 1958 S C 682) (supra) had laid down a new rule of law which has no application to pending proceedings for levy, assessment and realisation of sales tax, either in Delhi or elsewhere.14. There is another answer to the point of res judicata raised off behalf of the petitioners, relying upon the decision of the Punjab High Court in (S) AIR 1956 Punj 177 (supra).It is well settled that in matters of taxation there is no question of res judicata because each years assessment is final only for that year and does not govern later years, because it determines only the tax for a particular period.(See the decision in the House of Lords in Society of Medical Officers of Health v. Hope, 1960 A C 551 approving and following the decision of the Privy Council in Broken Hill Proprietary Company Ltd. v. Broken Hill Municipal Council, 1926 A C 94. | 0 | 5,218 | 1,235 | ### 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:
balance of all the hire hereinbefore mentioned and any other expenses incurred by the owners relating to the transaction."9. It is clear, therefore, that in addition to the contract of hiring an option has been given to the hirer to purchase or not to purchase. The more serious question on this part of the petitioners contention is whether the non obstante clause in the explanation "notwithstanding that the seller retain a title to any goods as security for payment of the price" governs the main clause of the explanation. In our opinion, it does not. The non obstante clause has been added only to emphasise the categorical statement of the law contained in the main clause to the effect that a transfer of goods on hire-purchase, etc., shall be deemed to be a sale even though there may be a stipulation to the effect that in spite of the transfer of goods to the hirer, the owner retains title to those goods until the happening of the ultimate event, namely, completion of title at the option of the hirer.10. There is, thus, no doubt that the agreement in question does contain not only a contract of bailment simpliciter but also an element of sale, which element has been seized upon by the legislature for the purpose of subjecting a transaction like that to the Sales Tax.11. This leads us to the second ground of attack raised by the petitioners, namely, that the explanation, if it has the effect of extending the concept of sale to what, in law, is not a real sale, but only an incipient or inchoate sale, then in so far as the law has extended the definition of sale it is unconstitutional. This contention has lost all its force, if ever it had any, in view of the decision of this Court in Mithan Lals case, 1959 S C R 445 : (AIR 1958 S C 682), (supra).12. But then it is argued that Mithan Lals case, 1959 S C R 445 : (AIR 1958 S C 682) requires re-consideration and that, in any view of the matter, this Court did not consider the further attack based on Art, 14 of the Constitution. It is true that in Mithan Lals case, 1959 S C R 445 : (AIR 1958 S C 682) (supra) the contention that the enactment in question had infringed Art,14 of the Constitution had not been raised. This Court, therefore, had no occasion to pronounce on that aspect of the controversy. We have, therefore, to consider the contention under head (3), namely, that though the Parliament may have had the power to tax something which was not strictly speaking a sale, the law is open to the attack that it discriminates against traders in Delhi inasmuch as, it is further contended, such a law has not been made applicable to the whole of India. In our opinion, there is no substance in this contention because no proper foundation was laid in the pleadings for supporting such a contention. It has not been averred that other Part C States have not been similarly treated. On the other hand, it does appear that under the Central sales tax Act (LXXIV of 1956), the definition of Sale contains the extended definition, without the non obstante clause, discussed above. Section 2(g) of the Central Sales Tax Act, 1956, has the following definition :Sale with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration, and includes a transfer of goods on the hire purchase or other system of payment by instalments, but does not include a mortgage or hypothecation of or a charge or pledge on goods."It would thus appear that hire purchase transactions have been included within the definition of sale for the purpose of Central Sales Tax, and this definition has become applicable throughout India, and it cannot, therefore, be said that the State of Delhi, and now the Union Territory of Delhi, has been selected for hostile discrimination. In our opinion, therefore, there is no substance in the contention that the extended definition of sale in the main statute infringes Art. 14 of the Constitution.13. Now, the remaining contentions raised on behalf of the petitioners may be disposed of by observing that what the Sales Tax Department does, or does not do, cannot change the law. The Department issued its instructions to the Sales Tax Officers, in conformity with the law as laid down in the judgment of the Punjab High Court in (S)AIR 1956 Punj 177 (supra). This Court later laid down the law more authoritatively in Mithan Lals case 1959 S C R 445: (AIR 1958 SC 682 ) (supra) and the Department was bound to take notice of what this Court had laid down. It cannot, therefore, be argued that the Department had, in any sense estopped itself by issuing those instructions, or that this Court, by laying down the law in Mithan Lals case, 1959 S C R 445: (AIR 1958 S C 682) (supra) had laid down a new rule of law which has no application to pending proceedings for levy, assessment and realisation of sales tax, either in Delhi or elsewhere.14. There is another answer to the point of res judicata raised off behalf of the petitioners, relying upon the decision of the Punjab High Court in (S) AIR 1956 Punj 177 (supra).It is well settled that in matters of taxation there is no question of res judicata because each years assessment is final only for that year and does not govern later years, because it determines only the tax for a particular period.(See the decision in the House of Lords in Society of Medical Officers of Health v. Hope, 1960 A C 551 approving and following the decision of the Privy Council in Broken Hill Proprietary Company Ltd. v. Broken Hill Municipal Council, 1926 A C 94.
### Response:
0
### Explanation:
to the hirer by the owner on the terms that the hirer, on payment of a premium as also of a number of instalments, shall enjoy the use of the goods, which ultimately may become his property, the transaction amounts to one of hirepurchase, even though the title to the goods has remained with the owner and shall not pass to the hirer until a certain event has happened, namely, that all the stipulated instalments have been paid, or that the hirer has exercised his option to finalise the purchase on payment of a sum, nominal orto third term of the agreement, on the hirer duly performing and observing the terms of the agreement, with particular reference to the payment of the monthly instalments, "the hiring shall come to an end and the vehicle shall, at the option of the hirer, become his absolute property; but until such payments as aforesaid have been made, the vehicle shall remain the property of the owners. The hirer shall also have the option of purchasing the vehicle at any time during the currency of this Agreement by paying in one lump sum the balance of all the hire hereinbefore mentioned and any other expenses incurred by the owners relating to the transaction."9. It is clear, therefore, that in addition to the contract of hiring an option has been given to the hirer to purchase or not to purchase. The more serious question on this part of the petitioners contention is whether the non obstante clause in the explanation "notwithstanding that the seller retain a title to any goods as security for payment of the price" governs the main clause of the explanation. In our opinion, it does not. The non obstante clause has been added only to emphasise the categorical statement of the law contained in the main clause to the effect that a transfer of goods on hire-purchase, etc., shall be deemed to be a sale even though there may be a stipulation to the effect that in spite of the transfer of goods to the hirer, the owner retains title to those goods until the happening of the ultimate event, namely, completion of title at the option of the hirer.10. There is, thus, no doubt that the agreement in question does contain not only a contract of bailment simpliciter but also an element of sale, which element has been seized upon by the legislature for the purpose of subjecting a transaction like that to the Salescontention has lost all its force, if ever it had any, in view of the decision of this Court in Mithan Lals case, 1959 S C R 445 : (AIR 1958 S C 682),is true that in Mithan Lals case, 1959 S C R 445 : (AIR 1958 S C 682) (supra) the contention that the enactment in question had infringed Art,14 of the Constitution had not been raised. This Court, therefore, had no occasion to pronounce on that aspect of the controversy. We have, therefore, to consider the contention under head (3), namely, that though the Parliament may have had the power to tax something which was not strictly speaking a sale, the law is open to the attack that it discriminates against traders in Delhi inasmuch as, it is further contended, such a law has not been made applicable to the whole of India. In our opinion, there is no substance in this contention because no proper foundation was laid in the pleadings for supporting such a contention. It has not been averred that other Part C States have not been similarly treated. On the other hand, it does appear that under the Central sales tax Act (LXXIV of 1956), the definition of Sale contains the extended definition, without the non obstante clause, discussedwould thus appear that hire purchase transactions have been included within the definition of sale for the purpose of Central Sales Tax, and this definition has become applicable throughout India, and it cannot, therefore, be said that the State of Delhi, and now the Union Territory of Delhi, has been selected for hostile discrimination. In our opinion, therefore, there is no substance in the contention that the extended definition of sale in the main statute infringes Art. 14 of the Constitution.13. Now, the remaining contentions raised on behalf of the petitioners may be disposed of by observing that what the Sales Tax Department does, or does not do, cannot change the law. The Department issued its instructions to the Sales Tax Officers, in conformity with the law as laid down in the judgment of the Punjab High Court in (S)AIR 1956 Punj 177 (supra). This Court later laid down the law more authoritatively in Mithan Lals case 1959 S C R 445: (AIR 1958 SC 682 ) (supra) and the Department was bound to take notice of what this Court had laid down. It cannot, therefore, be argued that the Department had, in any sense estopped itself by issuing those instructions, or that this Court, by laying down the law in Mithan Lals case, 1959 S C R 445: (AIR 1958 S C 682) (supra) had laid down a new rule of law which has no application to pending proceedings for levy, assessment and realisation of sales tax, either in Delhi or elsewhere.14. There is another answer to the point of res judicata raised off behalf of the petitioners, relying upon the decision of the Punjab High Court in (S) AIR 1956 Punj 177 (supra).It is well settled that in matters of taxation there is no question of res judicata because each years assessment is final only for that year and does not govern later years, because it determines only the tax for a particular period.(See the decision in the House of Lords in Society of Medical Officers of Health v. Hope, 1960 A C 551 approving and following the decision of the Privy Council in Broken Hill Proprietary Company Ltd. v. Broken Hill Municipal Council, 1926 A C 94.
|
GHAT TALAB KAULAN WALA Vs. BABA GOPAL DASS CHELA SURTI DASS (DEAD) BY LR. RAM NIWAS | same are reproduced hereunder: 1. Whether the plaintiff Charan Dass could represent the Trust known as Ghat T alab Kaulan Wala which is also known as Prabhu Wala and whether the suit filed by the Charan Dass is maintainable? 2. Whether status of the deceased Baba Gopal Dass as well as that of Ram Niwas, when independently considered, would make them Legal Representatives when Gopal Dass had mentioned himself to be Sevadar and Ram Niwas as alleged Chela of Baba Gopal Dass? 8. In respect of the second substantial question of law, the High Court held that the defendant was only a Sevadar as admitted in his statement in the earlier suit and that Ram Niwas was impleaded as his legal representative. He is only a member of public who could offer his services in the place of deceased Defendant. The Court held as under: 25. …However, in case of public Trust every individual has right to serve. Baba Gopal Dass was also serving in the Mandir irrespective of the Mandir as a public Trust property or private Trust property. There was nothing to inherit like services rendered by Baba Gopal Dass. Inheritance of services of Baba Gopal Dass was open to all. No special status can be conferred upon Ram Niwas so far as inheritance of service/Sevadari is concerned. 26. In view of aforesaid, any person from public can offer service to Mandir. Therefore, in view of first part of the order passed by the Honble Apex Court Ram Niwas was only impleaded for the purposes of representation in the present appeal without meaning anything on merits i.e. rights of Baba Gopal Dass viz-a- viz suit property. The second part of the order in the context of decision on the individual right of Ram Niwas is concerned, the same has to be decided that Ram Niwas is none else than any person from public at large, who could offer his service in place of Baba Gopal Dass. There are no pleadings, nor any evidence on record to show that Ram Niwas was ever appointed as Chela by Bhek or any other religious ceremonies were performed by competent authority or by Sadhu Samaj for appointing him in place of Baba Gopal Dass. 9. Thus, the second substantial question of law was decided, as mentioned above, that Ram Niwas was impleaded for the purpose of representation of the deceased in the appeal. The High Court found that there was no evidence that Ram Niwas was ever appointed by Chela or in any other manner but as any member of public, he was offering his services to the T emple. 10. While deciding first substantial question of law, the suit was found to be not maintainable. Learned counsel for the appellant vehemently argued that the High Court erred in law in finding that the suit is not maintainable in view of Section 92 of the Code as such provision is meant for invocation of jurisdiction against the Trust. Section 92 of the Code has no applicability in respect of a suit instituted by a Trust. It is pointed out that the appellant has filed suit through the Manager and Trustee as a private Trust. However, during the pendency of the proceedings, the Trust has been registered as a Society on 29 th June, 2016 when Memorandum of Association of Ghat T alab Kaulan Wala Prabhu Lal Wala, Village Mundi Kharar, T ehsil Kharar, District S.A.S. Nagar was registered. 11. Learned counsel for the respondent argued that the appeal is filed by one Devinder Gupta who has no concern with the appellant, therefore, appeal itself is filed by incompetent person. It is also argued that the appellant has been paid a sum of Rs.1,48,09,884/- on account of acquisition of part of land whereas the respondent has apprehension that such amount will be misappropriated by the appellant. 12. We have heard learned counsel for the parties. We find that the order passed by the High Court in respect of first substantial question of law is not sustainable. Section 92 of the Code contemplates a suit against a Trust either for removing any trustee; appointing new trustee; or vesting any property in a trustee etc. but the present suit itself is by a Trust against a Sevadar, therefore, the procedure prescribed under Section 92 of the Code would not be applicable in a suit by a Trust. Section 92 of the Code confers right on a person in case of any alleged breach of any express or constructive trust created for a public purpose of a charitable or religious nature. Since the Trust itself was the plaintiff, the finding of the High Court is clearly erroneous and not sustainable. The fact is that Baba Gopal Dass has been found to be Sevadar as per statement (Ex.P/1) given in the previous suit for permanent injunction. Therefore, Ram Niwas as legal representative of Baba Gopal Dass will not have a larger interest than what was vested in the original defendant. Ram Niwas has been found to be doing service to the T emple as member of public. The High Court has affirmed the finding that Ram Niwas could offer his services but he has not proved that he was appointed as Chela of Baba Gopal Dass. Still further, the decree for rendition of accounts could be executed only against the deceased Baba Gopal Dass, therefore, after his demise, such decree cannot be executed. 13. In view thereof, the finding of the High Court on first substantial question of law is set aside and the suit is found to be maintainable and was rightly decreed by the First Appellate Court. 14. We find that the apprehension of the respondent that the amount of compensation can be misused is not tenable. The appellant is a registered Society. The appellant as a registered Society has statutory obligations. We find that such apprehension is misconceived and beyond the scope of the present suit and the appeal arising out of such proceedings. | 1[ds]We find that the order passed by the High Court in respect of first substantial question of law is not sustainable. Section 92 of the Code contemplates a suit against a Trust either for removing any trustee; appointing new trustee; or vesting any property in a trustee etc. but the present suit itself is by a Trust against a Sevadar, therefore, the procedure prescribed under Section 92 of the Code would not be applicable in a suit by a Trust. Section 92 of the Code confers right on a person in case of any alleged breach of any express or constructive trust created for a public purpose of a charitable or religious nature. Since the Trust itself was the plaintiff, the finding of the High Court is clearly erroneous and not sustainable. The fact is that Baba Gopal Dass has been found to be Sevadar as per statement (Ex.P/1) given in the previous suit for permanent injunction. Therefore, Ram Niwas as legal representative of Baba Gopal Dass will not have a larger interest than what was vested in the original defendant. Ram Niwas has been found to be doing service to the T emple as member of public. The High Court has affirmed the finding that Ram Niwas could offer his services but he has not proved that he was appointed as Chela of Baba Gopal Dass. Still further, the decree for rendition of accounts could be executed only against the deceased Baba Gopal Dass, therefore, after his demise, such decree cannot be executed13. In view thereof, the finding of the High Court on first substantial question of law is set aside and the suit is found to be maintainable and was rightly decreed by the First Appellate Court14. We find that the apprehension of the respondent that the amount of compensation can be misused is not tenable. The appellant is a registered Society. The appellant as a registered Society has statutory obligations. We find that such apprehension is misconceived and beyond the scope of the present suit and the appeal arising out of such proceedings. | 1 | 2,088 | 379 | ### 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:
same are reproduced hereunder: 1. Whether the plaintiff Charan Dass could represent the Trust known as Ghat T alab Kaulan Wala which is also known as Prabhu Wala and whether the suit filed by the Charan Dass is maintainable? 2. Whether status of the deceased Baba Gopal Dass as well as that of Ram Niwas, when independently considered, would make them Legal Representatives when Gopal Dass had mentioned himself to be Sevadar and Ram Niwas as alleged Chela of Baba Gopal Dass? 8. In respect of the second substantial question of law, the High Court held that the defendant was only a Sevadar as admitted in his statement in the earlier suit and that Ram Niwas was impleaded as his legal representative. He is only a member of public who could offer his services in the place of deceased Defendant. The Court held as under: 25. …However, in case of public Trust every individual has right to serve. Baba Gopal Dass was also serving in the Mandir irrespective of the Mandir as a public Trust property or private Trust property. There was nothing to inherit like services rendered by Baba Gopal Dass. Inheritance of services of Baba Gopal Dass was open to all. No special status can be conferred upon Ram Niwas so far as inheritance of service/Sevadari is concerned. 26. In view of aforesaid, any person from public can offer service to Mandir. Therefore, in view of first part of the order passed by the Honble Apex Court Ram Niwas was only impleaded for the purposes of representation in the present appeal without meaning anything on merits i.e. rights of Baba Gopal Dass viz-a- viz suit property. The second part of the order in the context of decision on the individual right of Ram Niwas is concerned, the same has to be decided that Ram Niwas is none else than any person from public at large, who could offer his service in place of Baba Gopal Dass. There are no pleadings, nor any evidence on record to show that Ram Niwas was ever appointed as Chela by Bhek or any other religious ceremonies were performed by competent authority or by Sadhu Samaj for appointing him in place of Baba Gopal Dass. 9. Thus, the second substantial question of law was decided, as mentioned above, that Ram Niwas was impleaded for the purpose of representation of the deceased in the appeal. The High Court found that there was no evidence that Ram Niwas was ever appointed by Chela or in any other manner but as any member of public, he was offering his services to the T emple. 10. While deciding first substantial question of law, the suit was found to be not maintainable. Learned counsel for the appellant vehemently argued that the High Court erred in law in finding that the suit is not maintainable in view of Section 92 of the Code as such provision is meant for invocation of jurisdiction against the Trust. Section 92 of the Code has no applicability in respect of a suit instituted by a Trust. It is pointed out that the appellant has filed suit through the Manager and Trustee as a private Trust. However, during the pendency of the proceedings, the Trust has been registered as a Society on 29 th June, 2016 when Memorandum of Association of Ghat T alab Kaulan Wala Prabhu Lal Wala, Village Mundi Kharar, T ehsil Kharar, District S.A.S. Nagar was registered. 11. Learned counsel for the respondent argued that the appeal is filed by one Devinder Gupta who has no concern with the appellant, therefore, appeal itself is filed by incompetent person. It is also argued that the appellant has been paid a sum of Rs.1,48,09,884/- on account of acquisition of part of land whereas the respondent has apprehension that such amount will be misappropriated by the appellant. 12. We have heard learned counsel for the parties. We find that the order passed by the High Court in respect of first substantial question of law is not sustainable. Section 92 of the Code contemplates a suit against a Trust either for removing any trustee; appointing new trustee; or vesting any property in a trustee etc. but the present suit itself is by a Trust against a Sevadar, therefore, the procedure prescribed under Section 92 of the Code would not be applicable in a suit by a Trust. Section 92 of the Code confers right on a person in case of any alleged breach of any express or constructive trust created for a public purpose of a charitable or religious nature. Since the Trust itself was the plaintiff, the finding of the High Court is clearly erroneous and not sustainable. The fact is that Baba Gopal Dass has been found to be Sevadar as per statement (Ex.P/1) given in the previous suit for permanent injunction. Therefore, Ram Niwas as legal representative of Baba Gopal Dass will not have a larger interest than what was vested in the original defendant. Ram Niwas has been found to be doing service to the T emple as member of public. The High Court has affirmed the finding that Ram Niwas could offer his services but he has not proved that he was appointed as Chela of Baba Gopal Dass. Still further, the decree for rendition of accounts could be executed only against the deceased Baba Gopal Dass, therefore, after his demise, such decree cannot be executed. 13. In view thereof, the finding of the High Court on first substantial question of law is set aside and the suit is found to be maintainable and was rightly decreed by the First Appellate Court. 14. We find that the apprehension of the respondent that the amount of compensation can be misused is not tenable. The appellant is a registered Society. The appellant as a registered Society has statutory obligations. We find that such apprehension is misconceived and beyond the scope of the present suit and the appeal arising out of such proceedings.
### Response:
1
### Explanation:
We find that the order passed by the High Court in respect of first substantial question of law is not sustainable. Section 92 of the Code contemplates a suit against a Trust either for removing any trustee; appointing new trustee; or vesting any property in a trustee etc. but the present suit itself is by a Trust against a Sevadar, therefore, the procedure prescribed under Section 92 of the Code would not be applicable in a suit by a Trust. Section 92 of the Code confers right on a person in case of any alleged breach of any express or constructive trust created for a public purpose of a charitable or religious nature. Since the Trust itself was the plaintiff, the finding of the High Court is clearly erroneous and not sustainable. The fact is that Baba Gopal Dass has been found to be Sevadar as per statement (Ex.P/1) given in the previous suit for permanent injunction. Therefore, Ram Niwas as legal representative of Baba Gopal Dass will not have a larger interest than what was vested in the original defendant. Ram Niwas has been found to be doing service to the T emple as member of public. The High Court has affirmed the finding that Ram Niwas could offer his services but he has not proved that he was appointed as Chela of Baba Gopal Dass. Still further, the decree for rendition of accounts could be executed only against the deceased Baba Gopal Dass, therefore, after his demise, such decree cannot be executed13. In view thereof, the finding of the High Court on first substantial question of law is set aside and the suit is found to be maintainable and was rightly decreed by the First Appellate Court14. We find that the apprehension of the respondent that the amount of compensation can be misused is not tenable. The appellant is a registered Society. The appellant as a registered Society has statutory obligations. We find that such apprehension is misconceived and beyond the scope of the present suit and the appeal arising out of such proceedings.
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M/s. Hiralal Thakorlal Dalal Vs. Broach Municipality and Others | Burmah Shells case (supra) and felt that there were "burred areas" of sale within the territory which may attract a tax under entry 52 (List II of Seventh Schedule) left uncertain by the aforesaid decision of this Court so that the matter deserved consideration by a larger Bench. This is how the case has come up before us for hearing. We have allowed Municipal Council, Jodhpur, to intervene in the hearing at its request.The short question before us is whether this Courts decision in the Burmah Shells case (supra) squarely covers the present controversy or whether that decision requires reconsideration. The learned counsel have in fact confined their arguments to this narrow field.3. In order to appreciate the controversy, it will be desirable to refer to the basic facts of the Burmah Shells case (supra). The Burmah Shell Oil Storage and Distribution Co. India Ltd., hereinafter referred to as the Company, was a dealer in petrol and other petroleum products which it manufactured in its refineries situated out-side the octroi limits of Belgaum Municipality. It brought these products inside that area either for use or consumption by itself or for sale generally to its dealers and licensees who in their turn sold them to others. According to the Company the goods brought by it within the octroi limits could be divided into four categories as follows:"1. Goods consumed by the Company;2. Goods sold by the Company through its dealers or by itself and consumed within the octroi limits by persons other than the Company;3. Goods sold by the Company through its dealers or by itself inside the octroi limits to other persons but consumed by them outside the octroi limits; and4. Goods sent by the Company from its Depot inside the octroi limits to extra-municipal points where they are bought and consum ed by persons other than the company."4. This Court examined the scheme of taxation under the Act and the rules and the bye-laws made by the Municipality for the levy of octroi. It also took note of the fact that the words "use or sale" were substituted for the words "or use" by Bombay Act 35 of 1954, which are the subject matter of a fresh controversy before us, and made a reference to the Legislative Lists in the Government of India Act, 1935 and the Constitution. After examining the history of octrois and terminal taxes, this Court held that "octrois were taxes on goods brought into the local area for consumption, use or sale", and that "they were leviable in respect of goods put to some use or other in the area but only if they were meant for such user." It was specifically clarified that the word "sale" was included only in 1954 in order to bring the description of octroi in the Act in line with the Constitution, and that the expression "consumption" and "use" together "connote the bringing in of goods and animals not with a view to taking them out again but with a view to their retention either for use without using them up or for consumption in a manner which destroys, wastes or uses them up."Looking to the trade of the Company, this Court held that sale by it directly to consumers or to dealers was "merely the means for putting the goods in the way of use or consumption" and that the word "therein" does not mean that all the act of consumption must take place in the area of the municipality. The Court therefore went to hold as follows.-"In other words, a sale of the goods brought inside, even though not expressly mentioned in the description of octroi as it stood formerly, was implicit, provided the goods were not re-exported out of the area but were brought inside for use or consumption by buyers inside the area. In this sense the amplification of the description both in the Government of India Act, 1935 and the Constitution did not make any addition to the true concept of octroi as explained above. That concept included the bringing in of goods in a local area so that the goods come to a repose there. When the Government of India Act, 1935 was enacted, the word octroi was deliberately avoided and a description added to forestall any dispute of the nature which has been raised in this case. In other words, even without the description the tax was on goods brought for consumption, use or sale. The word octroi was also avoided because terminal taxes are also a kind of octroi and the two were to be allocated to different legislatures."5. In our opinion, even without the word sale in the Boroughs Act the position was the same provided the goods were sold in the local area to a consumer who bought them for the purpose of use or consumption or even for resale to others for the purpose of use or consumption by them in the area. It was only when the goods were re-exported out of the area that the tax could not legitimately be levied......"This Court categorically held that the Company was liable to pay octroi on goods brought into the local area (a) to be consumed by itself or sold by it to consumers direct, and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area irrespective of whether such consumers bought them for use in the area or outside it, but it was "not liable to octroi in respect of goods which it brought into the local area and which were re-exported."6. The law on the subject matter of the present controversy has thus been laid down quite clearly in the Burmah Shells case (supra) and the present case squarely falls to be governed by it. We are also in agreement with that interpretation of the law. It may be mentioned that the learned counsel have not been able to advance any new argument justifying a reconsideration of the decision.7. | 1[ds]This Court examined the scheme of taxation under the Act and the rules and the bye-laws made by the Municipality for the levy of octroi. It also took note of the fact that the words "use or sale" were substituted for the words "or use" by Bombay Act 35 of 1954, which are the subject matter of a fresh controversy before us, and made a reference to the Legislative Lists in the Government of India Act, 1935 and the Constitution. After examining the history of octrois and terminal taxes, this Court held that "octrois were taxes on goods brought into the local area for consumption, use or sale", and that "they were leviable in respect of goods put to some use or other in the area but only if they were meant for such user." It was specifically clarified that the word "sale" was included only in 1954 in order to bring the description of octroi in the Act in line with the Constitution, and that the expression "consumption" and "use" together "connote the bringing in of goods and animals not with a view to taking them out again but with a view to their retention either for use without using them up or for consumption in a manner which destroys, wastes or uses them up."Looking to the trade of the Company, this Court held that sale by it directly to consumers or to dealers was "merely the means for putting the goods in the way of use or consumption" and that the word "therein" does not mean that all the act of consumption must take place in the area of the municipality. The Court therefore went to hold asother words, a sale of the goods brought inside, even though not expressly mentioned in the description of octroi as it stood formerly, was implicit, provided the goods were not re-exported out of the area but were brought inside for use or consumption by buyers inside the area. In this sense the amplification of the description both in the Government of India Act, 1935 and the Constitution did not make any addition to the true concept of octroi as explained above. That concept included the bringing in of goods in a local area so that the goods come to a repose there. When the Government of India Act, 1935 was enacted, the word octroi was deliberately avoided and a description added to forestall any dispute of the nature which has been raised in this case. In other words, even without the description the tax was on goods brought for consumption, use or sale. The word octroi was also avoided because terminal taxes are also a kind of octroi and the two were to be allocated to differentour opinion, even without the word sale in the Boroughs Act the position was the same provided the goods were sold in the local area to a consumer who bought them for the purpose of use or consumption or even for resale to others for the purpose of use or consumption by them in the area. It was only when the goods were re-exported out of the area that the tax could not legitimately be levied......"This Court categorically held that the Company was liable to pay octroi on goods brought into the local area (a) to be consumed by itself or sold by it to consumers direct, and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area irrespective of whether such consumers bought them for use in the area or outside it, but it was "not liable to octroi in respect of goods which it brought into the local area and which werelaw on the subject matter of the present controversy has thus been laid down quite clearly in the Burmah Shells case (supra) and the present case squarely falls to be governed by it. We are also in agreement with that interpretation of the law. It may be mentioned that the learned counsel have not been able to advance any new argument justifying a reconsideration of the decision. | 1 | 2,017 | 753 | ### 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:
Burmah Shells case (supra) and felt that there were "burred areas" of sale within the territory which may attract a tax under entry 52 (List II of Seventh Schedule) left uncertain by the aforesaid decision of this Court so that the matter deserved consideration by a larger Bench. This is how the case has come up before us for hearing. We have allowed Municipal Council, Jodhpur, to intervene in the hearing at its request.The short question before us is whether this Courts decision in the Burmah Shells case (supra) squarely covers the present controversy or whether that decision requires reconsideration. The learned counsel have in fact confined their arguments to this narrow field.3. In order to appreciate the controversy, it will be desirable to refer to the basic facts of the Burmah Shells case (supra). The Burmah Shell Oil Storage and Distribution Co. India Ltd., hereinafter referred to as the Company, was a dealer in petrol and other petroleum products which it manufactured in its refineries situated out-side the octroi limits of Belgaum Municipality. It brought these products inside that area either for use or consumption by itself or for sale generally to its dealers and licensees who in their turn sold them to others. According to the Company the goods brought by it within the octroi limits could be divided into four categories as follows:"1. Goods consumed by the Company;2. Goods sold by the Company through its dealers or by itself and consumed within the octroi limits by persons other than the Company;3. Goods sold by the Company through its dealers or by itself inside the octroi limits to other persons but consumed by them outside the octroi limits; and4. Goods sent by the Company from its Depot inside the octroi limits to extra-municipal points where they are bought and consum ed by persons other than the company."4. This Court examined the scheme of taxation under the Act and the rules and the bye-laws made by the Municipality for the levy of octroi. It also took note of the fact that the words "use or sale" were substituted for the words "or use" by Bombay Act 35 of 1954, which are the subject matter of a fresh controversy before us, and made a reference to the Legislative Lists in the Government of India Act, 1935 and the Constitution. After examining the history of octrois and terminal taxes, this Court held that "octrois were taxes on goods brought into the local area for consumption, use or sale", and that "they were leviable in respect of goods put to some use or other in the area but only if they were meant for such user." It was specifically clarified that the word "sale" was included only in 1954 in order to bring the description of octroi in the Act in line with the Constitution, and that the expression "consumption" and "use" together "connote the bringing in of goods and animals not with a view to taking them out again but with a view to their retention either for use without using them up or for consumption in a manner which destroys, wastes or uses them up."Looking to the trade of the Company, this Court held that sale by it directly to consumers or to dealers was "merely the means for putting the goods in the way of use or consumption" and that the word "therein" does not mean that all the act of consumption must take place in the area of the municipality. The Court therefore went to hold as follows.-"In other words, a sale of the goods brought inside, even though not expressly mentioned in the description of octroi as it stood formerly, was implicit, provided the goods were not re-exported out of the area but were brought inside for use or consumption by buyers inside the area. In this sense the amplification of the description both in the Government of India Act, 1935 and the Constitution did not make any addition to the true concept of octroi as explained above. That concept included the bringing in of goods in a local area so that the goods come to a repose there. When the Government of India Act, 1935 was enacted, the word octroi was deliberately avoided and a description added to forestall any dispute of the nature which has been raised in this case. In other words, even without the description the tax was on goods brought for consumption, use or sale. The word octroi was also avoided because terminal taxes are also a kind of octroi and the two were to be allocated to different legislatures."5. In our opinion, even without the word sale in the Boroughs Act the position was the same provided the goods were sold in the local area to a consumer who bought them for the purpose of use or consumption or even for resale to others for the purpose of use or consumption by them in the area. It was only when the goods were re-exported out of the area that the tax could not legitimately be levied......"This Court categorically held that the Company was liable to pay octroi on goods brought into the local area (a) to be consumed by itself or sold by it to consumers direct, and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area irrespective of whether such consumers bought them for use in the area or outside it, but it was "not liable to octroi in respect of goods which it brought into the local area and which were re-exported."6. The law on the subject matter of the present controversy has thus been laid down quite clearly in the Burmah Shells case (supra) and the present case squarely falls to be governed by it. We are also in agreement with that interpretation of the law. It may be mentioned that the learned counsel have not been able to advance any new argument justifying a reconsideration of the decision.7.
### Response:
1
### Explanation:
This Court examined the scheme of taxation under the Act and the rules and the bye-laws made by the Municipality for the levy of octroi. It also took note of the fact that the words "use or sale" were substituted for the words "or use" by Bombay Act 35 of 1954, which are the subject matter of a fresh controversy before us, and made a reference to the Legislative Lists in the Government of India Act, 1935 and the Constitution. After examining the history of octrois and terminal taxes, this Court held that "octrois were taxes on goods brought into the local area for consumption, use or sale", and that "they were leviable in respect of goods put to some use or other in the area but only if they were meant for such user." It was specifically clarified that the word "sale" was included only in 1954 in order to bring the description of octroi in the Act in line with the Constitution, and that the expression "consumption" and "use" together "connote the bringing in of goods and animals not with a view to taking them out again but with a view to their retention either for use without using them up or for consumption in a manner which destroys, wastes or uses them up."Looking to the trade of the Company, this Court held that sale by it directly to consumers or to dealers was "merely the means for putting the goods in the way of use or consumption" and that the word "therein" does not mean that all the act of consumption must take place in the area of the municipality. The Court therefore went to hold asother words, a sale of the goods brought inside, even though not expressly mentioned in the description of octroi as it stood formerly, was implicit, provided the goods were not re-exported out of the area but were brought inside for use or consumption by buyers inside the area. In this sense the amplification of the description both in the Government of India Act, 1935 and the Constitution did not make any addition to the true concept of octroi as explained above. That concept included the bringing in of goods in a local area so that the goods come to a repose there. When the Government of India Act, 1935 was enacted, the word octroi was deliberately avoided and a description added to forestall any dispute of the nature which has been raised in this case. In other words, even without the description the tax was on goods brought for consumption, use or sale. The word octroi was also avoided because terminal taxes are also a kind of octroi and the two were to be allocated to differentour opinion, even without the word sale in the Boroughs Act the position was the same provided the goods were sold in the local area to a consumer who bought them for the purpose of use or consumption or even for resale to others for the purpose of use or consumption by them in the area. It was only when the goods were re-exported out of the area that the tax could not legitimately be levied......"This Court categorically held that the Company was liable to pay octroi on goods brought into the local area (a) to be consumed by itself or sold by it to consumers direct, and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area irrespective of whether such consumers bought them for use in the area or outside it, but it was "not liable to octroi in respect of goods which it brought into the local area and which werelaw on the subject matter of the present controversy has thus been laid down quite clearly in the Burmah Shells case (supra) and the present case squarely falls to be governed by it. We are also in agreement with that interpretation of the law. It may be mentioned that the learned counsel have not been able to advance any new argument justifying a reconsideration of the decision.
|
Continental Construction Co. Ltd Vs. State Of Madhya Pradesh | 1973 SC 1338 : (1973) 1 SCC 708 ], it was held that where an arbitrator is called upon to decide the effect of the agreement, he has really to decide a question of law, i.e. of interpreting the agreement, and hence, his decision is not open to challenge. This was also a decision against a reasoned award but since the reference was to a specific question of law, the decision of the arbitrator, it was held was not open to challenge. The limits of the jurisdiction of the court to challenge the award are well settled. While considering objection under Section 30 of the Act, the court does not act as an appellate court, it can only interfere with the award if the arbitrator misconducts himself or the proceedings or if the award has been made after the issue of an order by the court superseding the arbitration or if the arbitration proceedings have become invalid under Section 35(c) of the Act or the award has been improperly procured or is otherwise invalid. The Judicial Committee in Champsey Bhara & Co. v. Jivraj Balloo Spinning & Weaving Co. Ltd. [AIR 1923 PC 66] has laid down the extent of the jurisdiction of the court to set aside an award on the ground of an error in making the award. It has been reiterated that the award of the arbitrator may be set aside on the ground of an error on the face thereof only when in the award or in any document incorporated with it as for instance, a note appended by the arbitrator, stating the reasons for his decision, there is found some legal proposition which is the basis of the award and which is erroneous. See also in this connection Re King & Duveen [(1913) 2 KB 32] and Government of Kelantan v. Duff Development Co. Ltd. [1923 AC 395 : (1923) 1 Ch 385] If however, a specific question is submitted to the arbitrator and he answers it, the fact that the answer involves an erroneous decision in point of law, does not make the award bad on its face so as to permit of it being set aside. See also the observations of this Court in Bungo Steel Furniture v. Union of India [(1967) 1 SCR 633 : AIR 1967 SC 378 ]. It is well settled that the contract remained part of the award. The Judicial Committee in Saleh Mohd. v. Nathoomal [(1926-27) 54 IA 427] considered an award in which the arbitrator recited a contract made between the parties and the dispute arising under it. It was contended that the contract was incorporated in the award by its reference and so the award disclosed an error of law in construing the terms of the contract. But that contention was negatived. It was held that the reference to the contract in the award was to earmark the disputes between the parties and was not incorporated into the award. In Absalom Ltd. v. Great Western (London) Garden Village Society [1933 AC 592], it was held that if an award referred top the terms of a clause in the contract, the clause though not set out in full must be taken to be incorporated in it. This Court has reiterated in Allen Berry & Co. v. Union of India [(1971) 1 SCC 295 : (1971) 3 SCR 282 : AIR 1971 SC 696 ] that mere reference to the contract in the award is not to be held as incorporating it. 8. In the aforesaid light, we are of the opinion, the High Court was right that the District Judge was entitled to examine the contract in order to find out the legality of the claim of the appellant regarding extra cost towards rise in prices of material and labour. As was pointed out by the learned District Judge Clauses 2.16 and 2.4 stipulated that the contractor had to complete the work in spite of rise in prices of materials and also rise in labour charges at the rates stipulated in the contract. There was a clear finding of the arbitrator that the contract was not rendered ineffective in terms of Section 56 of the Contract Act due to abnormal rise in prices of material and labour. This being so and the contractor having completed the work, it was not open to him to claim extra cost towards rise in prices of material and labour. The arbitrator misconducted himself in not deciding this specific objection raised by the State regarding the legality of extra claim of the appellant. 9. In that view of the matter, the award in our opinion, was properly set aside by the learned District Judge and the High Court was right in not interfering with it. 10. The question about specific reference on a question of law was examined by this Court recently in the case of Tarapore and Company v. Cochin Shipyard Ltd., Cochin [(1984) 2 SCC 680] . There it was observed that if the agreed fact situation, on the basis of which agreement was entered into, ceases to exist, the agreement to that extent would become otiose. If rate initially quoted by the contractor became irrelevant due to subsequent price escalation, it was held in that case that contractors claim for compensation for the excess expenditure incurred due to the price rise could not be turned down on ground of absence of price escalation clause in that regard in the contract. Agreement as a whole has to be read. Reliance was placed very heavily on this decision on behalf of the appellant before us. It has to be borne in mind that in the instant case there are specific clauses referred to hereinbefore which barred consideration of extra claims in the event or price escalation. That was not so in Tarapore and Company case [(1984) 2 SCC 680] . That made all the difference. The basis of bargain between the parties in both these two cases were entirely different. | 0[ds]We are unable to agree. This being a general question, in our opinion, the District Judge rightly examined the question and found that the appellant was not entitled to claim for extra cost in view of the terms of the contract and the arbitrator misdirected himself by not considering this objection of the State before giving theIn the aforesaid light, we are of the opinion, the High Court was right that the District Judge was entitled to examine the contract in order to find out the legality of the claim of the appellant regarding extra cost towards rise in prices of material and labour. As was pointed out by the learned District Judge Clauses 2.16 and 2.4 stipulated that the contractor had to complete the work in spite of rise in prices of materials and also rise in labour charges at the rates stipulated in the contract. There was a clear finding of the arbitrator that the contract was not rendered ineffective in terms of Section 56 of the Contract Act due to abnormal rise in prices of material and labour. This being so and the contractor having completed the work, it was not open to him to claim extra cost towards rise in prices of material and labour. The arbitrator misconducted himself in not deciding this specific objection raised by the State regarding the legality of extra claim of the appellant | 0 | 3,846 | 246 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
1973 SC 1338 : (1973) 1 SCC 708 ], it was held that where an arbitrator is called upon to decide the effect of the agreement, he has really to decide a question of law, i.e. of interpreting the agreement, and hence, his decision is not open to challenge. This was also a decision against a reasoned award but since the reference was to a specific question of law, the decision of the arbitrator, it was held was not open to challenge. The limits of the jurisdiction of the court to challenge the award are well settled. While considering objection under Section 30 of the Act, the court does not act as an appellate court, it can only interfere with the award if the arbitrator misconducts himself or the proceedings or if the award has been made after the issue of an order by the court superseding the arbitration or if the arbitration proceedings have become invalid under Section 35(c) of the Act or the award has been improperly procured or is otherwise invalid. The Judicial Committee in Champsey Bhara & Co. v. Jivraj Balloo Spinning & Weaving Co. Ltd. [AIR 1923 PC 66] has laid down the extent of the jurisdiction of the court to set aside an award on the ground of an error in making the award. It has been reiterated that the award of the arbitrator may be set aside on the ground of an error on the face thereof only when in the award or in any document incorporated with it as for instance, a note appended by the arbitrator, stating the reasons for his decision, there is found some legal proposition which is the basis of the award and which is erroneous. See also in this connection Re King & Duveen [(1913) 2 KB 32] and Government of Kelantan v. Duff Development Co. Ltd. [1923 AC 395 : (1923) 1 Ch 385] If however, a specific question is submitted to the arbitrator and he answers it, the fact that the answer involves an erroneous decision in point of law, does not make the award bad on its face so as to permit of it being set aside. See also the observations of this Court in Bungo Steel Furniture v. Union of India [(1967) 1 SCR 633 : AIR 1967 SC 378 ]. It is well settled that the contract remained part of the award. The Judicial Committee in Saleh Mohd. v. Nathoomal [(1926-27) 54 IA 427] considered an award in which the arbitrator recited a contract made between the parties and the dispute arising under it. It was contended that the contract was incorporated in the award by its reference and so the award disclosed an error of law in construing the terms of the contract. But that contention was negatived. It was held that the reference to the contract in the award was to earmark the disputes between the parties and was not incorporated into the award. In Absalom Ltd. v. Great Western (London) Garden Village Society [1933 AC 592], it was held that if an award referred top the terms of a clause in the contract, the clause though not set out in full must be taken to be incorporated in it. This Court has reiterated in Allen Berry & Co. v. Union of India [(1971) 1 SCC 295 : (1971) 3 SCR 282 : AIR 1971 SC 696 ] that mere reference to the contract in the award is not to be held as incorporating it. 8. In the aforesaid light, we are of the opinion, the High Court was right that the District Judge was entitled to examine the contract in order to find out the legality of the claim of the appellant regarding extra cost towards rise in prices of material and labour. As was pointed out by the learned District Judge Clauses 2.16 and 2.4 stipulated that the contractor had to complete the work in spite of rise in prices of materials and also rise in labour charges at the rates stipulated in the contract. There was a clear finding of the arbitrator that the contract was not rendered ineffective in terms of Section 56 of the Contract Act due to abnormal rise in prices of material and labour. This being so and the contractor having completed the work, it was not open to him to claim extra cost towards rise in prices of material and labour. The arbitrator misconducted himself in not deciding this specific objection raised by the State regarding the legality of extra claim of the appellant. 9. In that view of the matter, the award in our opinion, was properly set aside by the learned District Judge and the High Court was right in not interfering with it. 10. The question about specific reference on a question of law was examined by this Court recently in the case of Tarapore and Company v. Cochin Shipyard Ltd., Cochin [(1984) 2 SCC 680] . There it was observed that if the agreed fact situation, on the basis of which agreement was entered into, ceases to exist, the agreement to that extent would become otiose. If rate initially quoted by the contractor became irrelevant due to subsequent price escalation, it was held in that case that contractors claim for compensation for the excess expenditure incurred due to the price rise could not be turned down on ground of absence of price escalation clause in that regard in the contract. Agreement as a whole has to be read. Reliance was placed very heavily on this decision on behalf of the appellant before us. It has to be borne in mind that in the instant case there are specific clauses referred to hereinbefore which barred consideration of extra claims in the event or price escalation. That was not so in Tarapore and Company case [(1984) 2 SCC 680] . That made all the difference. The basis of bargain between the parties in both these two cases were entirely different.
### Response:
0
### Explanation:
We are unable to agree. This being a general question, in our opinion, the District Judge rightly examined the question and found that the appellant was not entitled to claim for extra cost in view of the terms of the contract and the arbitrator misdirected himself by not considering this objection of the State before giving theIn the aforesaid light, we are of the opinion, the High Court was right that the District Judge was entitled to examine the contract in order to find out the legality of the claim of the appellant regarding extra cost towards rise in prices of material and labour. As was pointed out by the learned District Judge Clauses 2.16 and 2.4 stipulated that the contractor had to complete the work in spite of rise in prices of materials and also rise in labour charges at the rates stipulated in the contract. There was a clear finding of the arbitrator that the contract was not rendered ineffective in terms of Section 56 of the Contract Act due to abnormal rise in prices of material and labour. This being so and the contractor having completed the work, it was not open to him to claim extra cost towards rise in prices of material and labour. The arbitrator misconducted himself in not deciding this specific objection raised by the State regarding the legality of extra claim of the appellant
|
State Of Maharashtra Trhu Cbi Vs. Vikram Anantrai Doshi | commission of offence under Section 471 of IPC and on that basis declined to interfere with the order passed by the High Court which had refused to quash the criminal proceeding. 21. In the case at hand, as per the chargesheet the respondents had got LCs issued from the bank in favour of fictitious companies propped up by them and the fictitious beneficiary companies had got letters of credits discounted by attaching their bogus bills. The names of 10 fictitious companies have been mentioned in the chargesheet. Thus, allegation of forgery is very much there. As is manifest from the impugned order, the learned Single Judge has not adverted to the same. It is not a simple case where an accused has borrowed money from the bank and diverted it somewhere else and, thereafter, paid the amount. It does not fresco a situation where there is dealing between a private financial institution and an accused, and after initiation of the criminal proceedings he pays the sum and gets the controversy settled. The expose’ of facts tells a different story. As submitted by the learned Counsel for CBI the manner in which the letters of credits were issued and the funds were siphoned has a foundation in criminal law. Learned counsel would submit that it does not depict a case which has overwhelmingly and predominatingly civil flavour. The intrinsic character is different. Emphasis is laid on the creation of fictitious companies. 22. In this context, we may usefully refer to a two-Judge Bench decision in Central Bureau of Investigation v. Jagjit Singh [(2013) 10 SCC 686] wherein the court being moved by the CBI had overturned the order of the High Court quashing the criminal proceeding and in that backdrop had taken note of the fact that accused persons had dishonestly induced delivery of the property of the bank and had used forged documents as genuine. Proceeding further the Court opined as follows:- “The offences when committed in relation with banking activities including offences under Sections 420/471 IPC have harmful effect on the public and threaten the well-being of the society. These offences fall under the category of offences involving moral turpitude committed by public servants while working in that capacity. Prima facie, one may state that the bank is the victim in such cases but, in fact, the society in general, including customers of the bank is the sufferer. In the present case, there was neither an allegation regarding any abuse of process of any court not anything on record to suggest that the offenders were entitled to secure the order in the ends of justice.” 23. We are in respectful agreement with the aforesaid view. Be it stated, that availing of money from a nationalized bank in the manner, as alleged by the investigating agency, vividly exposits fiscal impurity and, in a way, financial fraud. The modus operandi as narrated in the chargesheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and it has immense societal impact. It is an accepted principle of handling of finance that whenever there is manipulation and cleverly conceived contrivance to avail of these kind of benefits it cannot be regarded as a case having overwhelmingly and predominantingly of civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of the society. The gravity of the offence creates a dent in the economic spine of the nation. The cleverness which has been skillfully contrived, if the allegations are true, has a serious consequence. A crime of this nature, in our view, would definitely fall in the category of offences which travel far ahead of personal or private wrong. It has the potentiality to usher in economic crisis. Its implications have its own seriousness, for it creates a concavity in the solemnity that is expected in financial transactions. It is not such a case where one can pay the amount and obtain a “no due certificate” and enjoy the benefit of quashing of the criminal proceeding on the hypostasis that nothing more remains to be done. The collective interest of which the Court is the guardian cannot be a silent or a mute spectator to allow the proceedings to be withdrawn, or for that matter yield to the ingenuous dexterity of the accused persons to invoke the jurisdiction under Article 226 of the Constitution or under Section 482 of the Code and quash the proceeding. It is not legally permissible. The Court is expected to be on guard to these kinds of adroit moves. The High Court, we humbly remind, should have dealt with the matter keeping in mind that in these kind of litigations the accused when perceives a tiny gleam of success, readily invokes the inherent jurisdiction for quashing of the criminal proceeding. The court’s principal duty, at that juncture, should be to scan the entire facts to find out the thrust of allegations and the crux of the settlement. It is the experience of the Judge comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence. As we find in the case at hand the learned Single Judge has not taken pains to scrutinize the entire conspectus of facts in proper perspective and quashed the criminal proceeding. The said quashment neither helps to secure the ends of justice nor does it prevent the abuse of the process of the Court nor can it be also said that as there is a settlement no evidence will come on record and there will be remote chance of conviction. Such a finding in our view would be difficult to record. Be that as it may, the fact remains that the social interest would be on peril and the prosecuting agency, in these circumstances, cannot be treated as an alien to the whole case. Ergo, we have no other option but to hold that the order of the High Court is wholly indefensible. | 1[ds]21. In the case at hand, as per the chargesheet the respondents had got LCs issued from the bank in favour of fictitious companies propped up by them and the fictitious beneficiary companies had got letters of credits discounted by attaching their bogus bills. The names of 10 fictitious companies have been mentioned in the chargesheet. Thus, allegation of forgery is very much there. As is manifest from the impugned order, the learned Single Judge has not adverted to the same. It is not a simple case where an accused has borrowed money from the bank and diverted it somewhere else and, thereafter, paid the amount. It does not fresco a situation where there is dealing between a private financial institution and an accused, and after initiation of the criminal proceedings he pays the sum and gets the controversy settled. Theof facts tells a different story. As submitted by the learned Counsel for CBI the manner in which the letters of credits were issued and the funds were siphoned has a foundation in criminal law. Learned counsel would submit that it does not depict a case which has overwhelmingly and predominatingly civil flavour. The intrinsic character is different. Emphasis is laid on the creation of fictitious companies.We are in respectful agreement with the aforesaid view. Be it stated, that availing of money from a nationalized bank in the manner, as alleged by the investigating agency, vividly exposits fiscal impurity and, in a way, financial fraud. The modus operandi as narrated in the chargesheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and it has immense societal impact. It is an accepted principle of handling of finance that whenever there is manipulation and cleverly conceived contrivance to avail of these kind of benefits it cannot be regarded as a case having overwhelmingly and predominantingly of civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of the society. The gravity of the offence creates a dent in the economic spine of the nation. The cleverness which has been skillfully contrived, if the allegations are true, has a serious consequence. A crime of this nature, in our view, would definitely fall in the category of offences which travel far ahead of personal or private wrong. It has the potentiality to usher in economic crisis. Its implications have its own seriousness, for it creates a concavity in the solemnity that is expected in financial transactions. It is not such a case where one can pay the amount and obtain aand enjoy the benefit of quashing of the criminal proceeding on the hypostasis that nothing more remains to be done. The collective interest of which the Court is the guardian cannot be a silent or a mute spectator to allow the proceedings to be withdrawn, or for that matter yield to the ingenuous dexterity of the accused persons to invoke the jurisdiction under Article 226 of the Constitution or under Section 482 of the Code and quash the proceeding. It is not legally permissible. The Court is expected to be on guard to these kinds of adroit moves. The High Court, we humbly remind, should have dealt with the matter keeping in mind that in these kind of litigations the accused when perceives a tiny gleam of success, readily invokes the inherent jurisdiction for quashing of the criminal proceeding. Theprincipal duty, at that juncture, should be to scan the entire facts to find out the thrust of allegations and the crux of the settlement. It is the experience of the Judge comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence. As we find in the case at hand the learned Single Judge has not taken pains to scrutinize the entire conspectus of facts in proper perspective and quashed the criminal proceeding. The said quashment neither helps to secure the ends of justice nor does it prevent the abuse of the process of the Court nor can it be also said that as there is a settlement no evidence will come on record and there will be remote chance of conviction. Such a finding in our view would be difficult to record. Be that as it may, the fact remains that the social interest would be on peril and the prosecuting agency, in these circumstances, cannot be treated as an alien to the whole case. Ergo, we have no other option but to hold that the order of the High Court is wholly indefensible. | 1 | 6,176 | 834 | ### 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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commission of offence under Section 471 of IPC and on that basis declined to interfere with the order passed by the High Court which had refused to quash the criminal proceeding. 21. In the case at hand, as per the chargesheet the respondents had got LCs issued from the bank in favour of fictitious companies propped up by them and the fictitious beneficiary companies had got letters of credits discounted by attaching their bogus bills. The names of 10 fictitious companies have been mentioned in the chargesheet. Thus, allegation of forgery is very much there. As is manifest from the impugned order, the learned Single Judge has not adverted to the same. It is not a simple case where an accused has borrowed money from the bank and diverted it somewhere else and, thereafter, paid the amount. It does not fresco a situation where there is dealing between a private financial institution and an accused, and after initiation of the criminal proceedings he pays the sum and gets the controversy settled. The expose’ of facts tells a different story. As submitted by the learned Counsel for CBI the manner in which the letters of credits were issued and the funds were siphoned has a foundation in criminal law. Learned counsel would submit that it does not depict a case which has overwhelmingly and predominatingly civil flavour. The intrinsic character is different. Emphasis is laid on the creation of fictitious companies. 22. In this context, we may usefully refer to a two-Judge Bench decision in Central Bureau of Investigation v. Jagjit Singh [(2013) 10 SCC 686] wherein the court being moved by the CBI had overturned the order of the High Court quashing the criminal proceeding and in that backdrop had taken note of the fact that accused persons had dishonestly induced delivery of the property of the bank and had used forged documents as genuine. Proceeding further the Court opined as follows:- “The offences when committed in relation with banking activities including offences under Sections 420/471 IPC have harmful effect on the public and threaten the well-being of the society. These offences fall under the category of offences involving moral turpitude committed by public servants while working in that capacity. Prima facie, one may state that the bank is the victim in such cases but, in fact, the society in general, including customers of the bank is the sufferer. In the present case, there was neither an allegation regarding any abuse of process of any court not anything on record to suggest that the offenders were entitled to secure the order in the ends of justice.” 23. We are in respectful agreement with the aforesaid view. Be it stated, that availing of money from a nationalized bank in the manner, as alleged by the investigating agency, vividly exposits fiscal impurity and, in a way, financial fraud. The modus operandi as narrated in the chargesheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and it has immense societal impact. It is an accepted principle of handling of finance that whenever there is manipulation and cleverly conceived contrivance to avail of these kind of benefits it cannot be regarded as a case having overwhelmingly and predominantingly of civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of the society. The gravity of the offence creates a dent in the economic spine of the nation. The cleverness which has been skillfully contrived, if the allegations are true, has a serious consequence. A crime of this nature, in our view, would definitely fall in the category of offences which travel far ahead of personal or private wrong. It has the potentiality to usher in economic crisis. Its implications have its own seriousness, for it creates a concavity in the solemnity that is expected in financial transactions. It is not such a case where one can pay the amount and obtain a “no due certificate” and enjoy the benefit of quashing of the criminal proceeding on the hypostasis that nothing more remains to be done. The collective interest of which the Court is the guardian cannot be a silent or a mute spectator to allow the proceedings to be withdrawn, or for that matter yield to the ingenuous dexterity of the accused persons to invoke the jurisdiction under Article 226 of the Constitution or under Section 482 of the Code and quash the proceeding. It is not legally permissible. The Court is expected to be on guard to these kinds of adroit moves. The High Court, we humbly remind, should have dealt with the matter keeping in mind that in these kind of litigations the accused when perceives a tiny gleam of success, readily invokes the inherent jurisdiction for quashing of the criminal proceeding. The court’s principal duty, at that juncture, should be to scan the entire facts to find out the thrust of allegations and the crux of the settlement. It is the experience of the Judge comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence. As we find in the case at hand the learned Single Judge has not taken pains to scrutinize the entire conspectus of facts in proper perspective and quashed the criminal proceeding. The said quashment neither helps to secure the ends of justice nor does it prevent the abuse of the process of the Court nor can it be also said that as there is a settlement no evidence will come on record and there will be remote chance of conviction. Such a finding in our view would be difficult to record. Be that as it may, the fact remains that the social interest would be on peril and the prosecuting agency, in these circumstances, cannot be treated as an alien to the whole case. Ergo, we have no other option but to hold that the order of the High Court is wholly indefensible.
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21. In the case at hand, as per the chargesheet the respondents had got LCs issued from the bank in favour of fictitious companies propped up by them and the fictitious beneficiary companies had got letters of credits discounted by attaching their bogus bills. The names of 10 fictitious companies have been mentioned in the chargesheet. Thus, allegation of forgery is very much there. As is manifest from the impugned order, the learned Single Judge has not adverted to the same. It is not a simple case where an accused has borrowed money from the bank and diverted it somewhere else and, thereafter, paid the amount. It does not fresco a situation where there is dealing between a private financial institution and an accused, and after initiation of the criminal proceedings he pays the sum and gets the controversy settled. Theof facts tells a different story. As submitted by the learned Counsel for CBI the manner in which the letters of credits were issued and the funds were siphoned has a foundation in criminal law. Learned counsel would submit that it does not depict a case which has overwhelmingly and predominatingly civil flavour. The intrinsic character is different. Emphasis is laid on the creation of fictitious companies.We are in respectful agreement with the aforesaid view. Be it stated, that availing of money from a nationalized bank in the manner, as alleged by the investigating agency, vividly exposits fiscal impurity and, in a way, financial fraud. The modus operandi as narrated in the chargesheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and it has immense societal impact. It is an accepted principle of handling of finance that whenever there is manipulation and cleverly conceived contrivance to avail of these kind of benefits it cannot be regarded as a case having overwhelmingly and predominantingly of civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of the society. The gravity of the offence creates a dent in the economic spine of the nation. The cleverness which has been skillfully contrived, if the allegations are true, has a serious consequence. A crime of this nature, in our view, would definitely fall in the category of offences which travel far ahead of personal or private wrong. It has the potentiality to usher in economic crisis. Its implications have its own seriousness, for it creates a concavity in the solemnity that is expected in financial transactions. It is not such a case where one can pay the amount and obtain aand enjoy the benefit of quashing of the criminal proceeding on the hypostasis that nothing more remains to be done. The collective interest of which the Court is the guardian cannot be a silent or a mute spectator to allow the proceedings to be withdrawn, or for that matter yield to the ingenuous dexterity of the accused persons to invoke the jurisdiction under Article 226 of the Constitution or under Section 482 of the Code and quash the proceeding. It is not legally permissible. The Court is expected to be on guard to these kinds of adroit moves. The High Court, we humbly remind, should have dealt with the matter keeping in mind that in these kind of litigations the accused when perceives a tiny gleam of success, readily invokes the inherent jurisdiction for quashing of the criminal proceeding. Theprincipal duty, at that juncture, should be to scan the entire facts to find out the thrust of allegations and the crux of the settlement. It is the experience of the Judge comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence. As we find in the case at hand the learned Single Judge has not taken pains to scrutinize the entire conspectus of facts in proper perspective and quashed the criminal proceeding. The said quashment neither helps to secure the ends of justice nor does it prevent the abuse of the process of the Court nor can it be also said that as there is a settlement no evidence will come on record and there will be remote chance of conviction. Such a finding in our view would be difficult to record. Be that as it may, the fact remains that the social interest would be on peril and the prosecuting agency, in these circumstances, cannot be treated as an alien to the whole case. Ergo, we have no other option but to hold that the order of the High Court is wholly indefensible.
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State of Bihar Vs. Madan Mohan Prasad and Others | gives no indication of his intrinsic quality as an officer. The list merely shows the length of service of the officers according to the dates of their appointment, their posting at the time when the list is published and their designation and scale of pay at that time. The gradation lsit of the High Court has no legal basis and its preparation is not sanctioned by the Bihar Superior Judicial Service Rules. The seniority inter se of the petitioner and the three respondents will have to be deter mined when the question of their confirmation comes up for considerationWe only hope that there will be no such misunderstanding between the High Court and the Secretariat in the future and if there ever be any difference of opinion attempts will be made to resolve them by mutual deliberation without one or the other making an order or giving a direction contrary to the views of the other before deliberation."14. In the result this Court held:"that the Government notification of October 17 1968 was not in terms of Art. 233 of the Constitution and consequently the question of quashing the High Courts order dated October 25, 1968 does not arise. We also hold that the Gradation List of Additional District r and Sessions Judges prepared by the High Court has no legal sanction and that the seniority of the petitioner and respondents 3 to S can only be determined in the superior Judicial Service where they are now all holding officiating posts when the occasion arises."15. It is to be noted that in Chandramouleshwar (supra), this Court was concerned only with cls.(b) and (d) of r.16, while in the present case, we are concerned with fixation of inter se seniority of promoted officers vis-a-vis the direct recruits which matter is governed by cl.(e) of me said rule. It will be seen from what has been extracted above that in Chandramouleshwar, even while construing cls.(b) and (d), this Court did not say in express terms that the gradation list prepared by the High Court was invalid because under the concerned rules, the High Court had no power to determine inter se seniority of the promoted officers or that the determination of such seniority was a matter for the State Government. All that was held was that the question of determining inter se seniority in terms of cls.(b) and (d) of r. 16 does not arise before their confirmation comes up for consideration. In other words, the question of determining inter se seniority of the promoted officers could not be determined apart from and prior to their confirmation in the Service. Since the Civil List prepared by the High Court had not been drawn up in accordance with the aforesaid rule, it had "no legal basis". Thus, Chandramouleshwar seems to lay down that the question of determining inter se seniority of promoted officers is intertwined with the question of their confirmation in the Service. According to cl. (a) of r. 16, inter se seniority of direct recruits is also to be determined in accordance with the dates of their confirmation in the Service. In this case, however, we arc concerned with fixation of the seniority of-direct recruits vis-a-vis promoted officers. The relevant clause for this purpose is cl.(e) of r.16. The governing criterion, according to this clause, is "the date from which they may have been allowed to officiate continuously in posts in the cadre of the Service or in posts outside the cadre on identical time-scale of pay and of equal status and responsibility or in posts of higher scale of pay and of higher responsibility." DReading clause (e) together with cls. (a) and (b) of r. 16, it is clear that before fixing the seniority of direct recruits vis-a-vis promoted officers, it will be necessary as a preliminary step, to prepare two separate seniority lists, one of direct recruits under cl. (a) and the other of promoted officers under cl. (b) of r. 16, in the chronological order of their confirmation.16. This Court has recently held in The High Court of Punjab and Haryana etc. v. The State of Haryana and ors. (A.I.R. 1975 S.C. 613.) that the power of confirmation of District Judges is a part of the power of control vested in the High Court under Art. 235 of the Constitution. Since the Bihar Superior Judicial Service Rules, make the chronological order of confirmation an integral part of the process of fixation of the order of p seniority in the Service, the inference is that both these powers were intended to be exercised by one and the same authority. Since Article 235 of the Constitution vests the power of confirmation in the High Court, it stands to reason that the power of determining the seniority in the Service is also with the High Court of course, in determining the seniority the High Court is bound to act in accordance with the Rules validly made by the Governor under the Proviso to Art. 309 of the Constitution.17. Be that as it may, it is not necessary to pursue the discussion further. Appointment of three of respondents to the Bench of the High Court and retirement of two others has rendered the matter largely, if not entirely, academic.18. We further agree with the High Court that the words "may have been allowed to officiate continuously" in cl.(e) of r.16 mean actual and continuous officiation and not a fortuitous or fictional officiation. A A notional construction of the clause would lead to anomalous results. The State Government therefore, could not on an interpretation of r.16(e) says that for the limited purpose of seniority respondent 4 would rank below respondents 2 and 3 but above the writ petitioners and will be deemed to have been officiating as Additional District and Sessions Judges with effect from November 1, 1969. Such a deeming officiation, as rightly held by the High Court, for the purpose of determination of seniority on a construction of cl.(e) was not permissible. | 0[ds]It will be seen from what has been extracted above that in Chandramouleshwar, even while construing cls.(b) and (d), this Court did not say in express terms that the gradation list prepared by the High Court was invalid because under the concerned rules, the High Court had no power to determine inter se seniority of the promoted officers or that the determination of such seniority was a matter for the State Government. All that was held was that the question of determining inter se seniority in terms of cls.(b) and (d) of r. 16 does not arise before their confirmation comes up for consideration. In other words, the question of determining inter se seniority of the promoted officers could not be determined apart from and prior to their confirmation in the Service. Since the Civil List prepared by the High Court had not been drawn up in accordance with the aforesaid rule, it had "no legal basis". Thus, Chandramouleshwar seems to lay down that the question of determining inter se seniority of promoted officers is intertwined with the question of their confirmation in the Service. According to cl. (a) of r. 16, inter se seniority of direct recruits is also to be determined in accordance with the dates of their confirmation in the Service. In this case, however, we arc concerned with fixation of the seniorityis promoted officers. The relevant clause for this purpose is cl.(e) of r.16. The governing criterion, according to this clause, is "the date from which they may have been allowed to officiate continuously in posts in the cadre of the Service or in posts outside the cadre on identicalof pay and of equal status and responsibility or in posts of higher scale of pay and of higher responsibility." DReading clause (e) together with cls. (a) and (b) of r. 16, it is clear that before fixing the seniority of direct recruitspromoted officers, it will be necessary as a preliminary step, to prepare two separate seniority lists, one of direct recruits under cl. (a) and the other of promoted officers under cl. (b) of r. 16, in the chronological order of their confirmation.16. This Court has recently held in The High Court of Punjab and Haryana etc. v. The State of Haryana and ors. (A.I.R. 1975 S.C. 613.) that the power of confirmation of District Judges is a part of the power of control vested in the High Court under Art. 235 of the Constitution. Since the Bihar Superior Judicial Service Rules, make the chronological order of confirmation an integral part of the process of fixation of the order of p seniority in the Service, the inference is that both these powers were intended to be exercised by one and the same authority. Since Article 235 of the Constitution vests the power of confirmation in the High Court, it stands to reason that the power of determining the seniority in the Service is also with the High Court of course, in determining the seniority the High Court is bound to act in accordance with the Rules validly made by the Governor under the Proviso to Art. 309 of the Constitution.17. Be that as it may, it is not necessary to pursue the discussion further. Appointment of three of respondents to the Bench of the High Court and retirement of two others has rendered the matter largely, if not entirely, academic.18. We further agree with the High Court that the words "may have been allowed to officiate continuously" in cl.(e) of r.16 mean actual and continuous officiation and not a fortuitous or fictional officiation. A A notional construction of the clause would lead to anomalous results. The State Government therefore, could not on an interpretation of r.16(e) says that for the limited purpose of seniority respondent 4 would rank below respondents 2 and 3 but above the writ petitioners and will be deemed to have been officiating as Additional District and Sessions Judges with effect from November 1, 1969. Such a deeming officiation, as rightly held by the High Court, for the purpose of determination of seniority on a construction of cl.(e) was not permissible. | 0 | 3,955 | 796 | ### 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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gives no indication of his intrinsic quality as an officer. The list merely shows the length of service of the officers according to the dates of their appointment, their posting at the time when the list is published and their designation and scale of pay at that time. The gradation lsit of the High Court has no legal basis and its preparation is not sanctioned by the Bihar Superior Judicial Service Rules. The seniority inter se of the petitioner and the three respondents will have to be deter mined when the question of their confirmation comes up for considerationWe only hope that there will be no such misunderstanding between the High Court and the Secretariat in the future and if there ever be any difference of opinion attempts will be made to resolve them by mutual deliberation without one or the other making an order or giving a direction contrary to the views of the other before deliberation."14. In the result this Court held:"that the Government notification of October 17 1968 was not in terms of Art. 233 of the Constitution and consequently the question of quashing the High Courts order dated October 25, 1968 does not arise. We also hold that the Gradation List of Additional District r and Sessions Judges prepared by the High Court has no legal sanction and that the seniority of the petitioner and respondents 3 to S can only be determined in the superior Judicial Service where they are now all holding officiating posts when the occasion arises."15. It is to be noted that in Chandramouleshwar (supra), this Court was concerned only with cls.(b) and (d) of r.16, while in the present case, we are concerned with fixation of inter se seniority of promoted officers vis-a-vis the direct recruits which matter is governed by cl.(e) of me said rule. It will be seen from what has been extracted above that in Chandramouleshwar, even while construing cls.(b) and (d), this Court did not say in express terms that the gradation list prepared by the High Court was invalid because under the concerned rules, the High Court had no power to determine inter se seniority of the promoted officers or that the determination of such seniority was a matter for the State Government. All that was held was that the question of determining inter se seniority in terms of cls.(b) and (d) of r. 16 does not arise before their confirmation comes up for consideration. In other words, the question of determining inter se seniority of the promoted officers could not be determined apart from and prior to their confirmation in the Service. Since the Civil List prepared by the High Court had not been drawn up in accordance with the aforesaid rule, it had "no legal basis". Thus, Chandramouleshwar seems to lay down that the question of determining inter se seniority of promoted officers is intertwined with the question of their confirmation in the Service. According to cl. (a) of r. 16, inter se seniority of direct recruits is also to be determined in accordance with the dates of their confirmation in the Service. In this case, however, we arc concerned with fixation of the seniority of-direct recruits vis-a-vis promoted officers. The relevant clause for this purpose is cl.(e) of r.16. The governing criterion, according to this clause, is "the date from which they may have been allowed to officiate continuously in posts in the cadre of the Service or in posts outside the cadre on identical time-scale of pay and of equal status and responsibility or in posts of higher scale of pay and of higher responsibility." DReading clause (e) together with cls. (a) and (b) of r. 16, it is clear that before fixing the seniority of direct recruits vis-a-vis promoted officers, it will be necessary as a preliminary step, to prepare two separate seniority lists, one of direct recruits under cl. (a) and the other of promoted officers under cl. (b) of r. 16, in the chronological order of their confirmation.16. This Court has recently held in The High Court of Punjab and Haryana etc. v. The State of Haryana and ors. (A.I.R. 1975 S.C. 613.) that the power of confirmation of District Judges is a part of the power of control vested in the High Court under Art. 235 of the Constitution. Since the Bihar Superior Judicial Service Rules, make the chronological order of confirmation an integral part of the process of fixation of the order of p seniority in the Service, the inference is that both these powers were intended to be exercised by one and the same authority. Since Article 235 of the Constitution vests the power of confirmation in the High Court, it stands to reason that the power of determining the seniority in the Service is also with the High Court of course, in determining the seniority the High Court is bound to act in accordance with the Rules validly made by the Governor under the Proviso to Art. 309 of the Constitution.17. Be that as it may, it is not necessary to pursue the discussion further. Appointment of three of respondents to the Bench of the High Court and retirement of two others has rendered the matter largely, if not entirely, academic.18. We further agree with the High Court that the words "may have been allowed to officiate continuously" in cl.(e) of r.16 mean actual and continuous officiation and not a fortuitous or fictional officiation. A A notional construction of the clause would lead to anomalous results. The State Government therefore, could not on an interpretation of r.16(e) says that for the limited purpose of seniority respondent 4 would rank below respondents 2 and 3 but above the writ petitioners and will be deemed to have been officiating as Additional District and Sessions Judges with effect from November 1, 1969. Such a deeming officiation, as rightly held by the High Court, for the purpose of determination of seniority on a construction of cl.(e) was not permissible.
### Response:
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### Explanation:
It will be seen from what has been extracted above that in Chandramouleshwar, even while construing cls.(b) and (d), this Court did not say in express terms that the gradation list prepared by the High Court was invalid because under the concerned rules, the High Court had no power to determine inter se seniority of the promoted officers or that the determination of such seniority was a matter for the State Government. All that was held was that the question of determining inter se seniority in terms of cls.(b) and (d) of r. 16 does not arise before their confirmation comes up for consideration. In other words, the question of determining inter se seniority of the promoted officers could not be determined apart from and prior to their confirmation in the Service. Since the Civil List prepared by the High Court had not been drawn up in accordance with the aforesaid rule, it had "no legal basis". Thus, Chandramouleshwar seems to lay down that the question of determining inter se seniority of promoted officers is intertwined with the question of their confirmation in the Service. According to cl. (a) of r. 16, inter se seniority of direct recruits is also to be determined in accordance with the dates of their confirmation in the Service. In this case, however, we arc concerned with fixation of the seniorityis promoted officers. The relevant clause for this purpose is cl.(e) of r.16. The governing criterion, according to this clause, is "the date from which they may have been allowed to officiate continuously in posts in the cadre of the Service or in posts outside the cadre on identicalof pay and of equal status and responsibility or in posts of higher scale of pay and of higher responsibility." DReading clause (e) together with cls. (a) and (b) of r. 16, it is clear that before fixing the seniority of direct recruitspromoted officers, it will be necessary as a preliminary step, to prepare two separate seniority lists, one of direct recruits under cl. (a) and the other of promoted officers under cl. (b) of r. 16, in the chronological order of their confirmation.16. This Court has recently held in The High Court of Punjab and Haryana etc. v. The State of Haryana and ors. (A.I.R. 1975 S.C. 613.) that the power of confirmation of District Judges is a part of the power of control vested in the High Court under Art. 235 of the Constitution. Since the Bihar Superior Judicial Service Rules, make the chronological order of confirmation an integral part of the process of fixation of the order of p seniority in the Service, the inference is that both these powers were intended to be exercised by one and the same authority. Since Article 235 of the Constitution vests the power of confirmation in the High Court, it stands to reason that the power of determining the seniority in the Service is also with the High Court of course, in determining the seniority the High Court is bound to act in accordance with the Rules validly made by the Governor under the Proviso to Art. 309 of the Constitution.17. Be that as it may, it is not necessary to pursue the discussion further. Appointment of three of respondents to the Bench of the High Court and retirement of two others has rendered the matter largely, if not entirely, academic.18. We further agree with the High Court that the words "may have been allowed to officiate continuously" in cl.(e) of r.16 mean actual and continuous officiation and not a fortuitous or fictional officiation. A A notional construction of the clause would lead to anomalous results. The State Government therefore, could not on an interpretation of r.16(e) says that for the limited purpose of seniority respondent 4 would rank below respondents 2 and 3 but above the writ petitioners and will be deemed to have been officiating as Additional District and Sessions Judges with effect from November 1, 1969. Such a deeming officiation, as rightly held by the High Court, for the purpose of determination of seniority on a construction of cl.(e) was not permissible.
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Satyawati Sharma Vs. Union Of India | eviction of the tenant from the first floor of the premises situated at Maharani Bagh, New Delhi on the ground of personal and bona fide necessity. The suit filed by the landlady was decreed by the learned Single Judge of the Delhi High Court and a direction was issued for eviction of the tenant (appellant). This Court referred to the earlier judgments in Pasupuleti Venkateswarlu vs. Motor & General Traders [1975 (1) SCC 770 ], Hasmat Rai vs. Raghunath Prasad [1981 (3) SCC 103 ] and held that in view of the availability of alternative accommodation to the landlady, the High Court was not justified in ordering eviction of the tenant. 36. A careful reading of the aforementioned judgment shows that the plea of unconstitutionality of Section 14(1)(e) of the 1958 Act was neither raised nor debated with any seriousness and the observation made by the Court in that regard cannot be treated as the true ratio of the judgment, which as mentioned above, mainly rested on the interpretation of the expression "reasonably suitable residential accommodation". The bedrock of the respondents claim was that she had a right to comfortable living and availability of alternative accommodation, by itself not sufficient for declining eviction of the tenant. While rejecting this argument, the Court observed: "17. The logic of the argument of Shri Kacker is attractive, but the legality of the said submission is unsustainable. Rent restriction laws are both beneficial and restrictive, beneficial for those who want protection from eviction and rack renting but restrictive so far as the landlords right or claim for eviction is concerned. Rent restriction laws would provide a habitat for the landlord or landlady if need be, but not to seek comforts other than habitat that right the landlord must seek elsewhere." 37. Another contention raised on behalf of the landlady was that Section 14(1)(e) of the 1958 Act should be read in a manner which will make it in conformity with Articles 14 and 16 of the Constitution. This is evinced from para 18 of the judgment which is extracted below:- "18. Our attention was drawn to the decision in the case of Bishambhar Dayal Chandra Mohan v. State of U.P. [1982 (1) SCC 39 ] and our attention was drawn to the observations at p. 66 and 67 of the said case in aid of the submission that right to property is still a constitutional right and therefore in exercise of that right if a landlord or an owner of a house lets out a premises in question there was nothing wrong. Shri Kacker submitted that the second limb of Section 14(1)(e) of the Act should be read in such a way that it was in consonance with Article 14 and Article 21 of the Constitution. Otherwise it would be void as being unconstitutional. As a general proposition of law this is acceptable." The Court rejected the argument and observed: "The Act in question has the authority of law. There is no denial of equality nor any arbitrariness in the second limb of Section 14(1)(e) of the Act, read in the manner contended for by the appellant. Article 21 is not violated so far as the landlord is concerned. The rent restricting Acts are beneficial legislations for the protection of the weaker party in the bargains of letting very often. These must be so read that these balance harmoniously the rights of the landlords and the obligations of the tenants. The Rent Restriction Acts deal with the problem of rack renting and shortage of accommodation. It is in consonance with the recognition of the right of both the landlord and the tenant that a harmony is sought to be struck whereby the bona fide requirements of the landlords and the tenants in the expanding explosion of need and population and shortage of accommodation are sought to be harmonised and the conditions imposed to evict a tenant are that the landlord must have bona fide need. That is satisfied in this case. That position is not disputed. The second condition is that landlord should not have in his or her possession any other reasonably suitable accommodation. This does not violate either Article 14 or Article 21 of the Constitution." 38. In view of the above discussion, we hold that Section 14(1)(e) of the 1958 Act is violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latters right to seek eviction of the tenant from the premises let for residential purposes only.39. However, the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it is neither the pleaded case of the parties nor the learned counsel argued that Section 14(1)(e) is unconstitutional in its entirety and we feel that ends of justice will be met by striking down the discriminatory portion of Section 14(1)(e) so that the remaining part thereof may read as under: - "that the premises are required bona fide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation." While adopting this course, we have kept in view well recognized rule that if the offending portion of a statute can be severed without doing violence to the remaining part thereof, then such a course is permissible - R.M.D. Chamarbaugwalla vs. Union of India (AIR 1957 SC 628 ) and Bhawani Singh vs. State of Rajasthan [1996 (3) SCC 105 ]. As a sequel to the above, the explanation appearing below Section 14(1)(e) of the 1958 Act will have to be treated as redundant. | 1[ds]14. Article 14 declares that the state shall not deny to any person equality before the law or the equal protection of the laws. The concept of equality embodied in Article 14 is also described as doctrine of equality. Broadly speaking, the doctrine of equality means that there should be no discrimination between one person and another, if having regard to the subject matter of legislation, their position is the same. The plain language of Article 14 may suggest that all are equal before the law and the State cannot discriminate between similarly situated persons. However, application of the doctrine of equality embodied in that Article has not been that simple. The debate which started in 1950s on the true scope of equality clause is still continuing. In last 58 years, the courts have been repeatedly called upon to adjudicate on the constitutionality of various legislative instruments including those meant for giving effect to the Directive Principals of State Policy on the ground that same violate the equality clause. It has been the constant refrain of the courts that Article 14 does not prohibit the legislature from classifying apparently similarly situated persons, things or goods into different groups provided that there is rational basis for doing so. The theory of reasonable classification has been invoked in large number of cases for repelling challenge to the constitutionality of different legislations.A careful reading of the aforementioned judgment shows that the plea of unconstitutionality of Section 14(1)(e) of the 1958 Act was neither raised nor debated with any seriousness and the observation made by the Court in that regard cannot be treated as the true ratio of the judgment, which as mentioned above, mainly rested on the interpretation of the expression "reasonably suitable residential accommodation".In view of the above discussion, we hold that Section 14(1)(e) of the 1958 Act is violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latters right to seek eviction of the tenant from the premises let for residential purposes only.39. However, the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it is neither the pleaded case of the parties nor the learned counsel argued that Section 14(1)(e) is unconstitutional in its entirety and we feel that ends of justice will be met by striking down the discriminatory portion of Section 14(1)(e) so that the remaining part thereof may read as under:-"that the premisesare required bona fide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitableadopting this course, we have kept in view well recognized rule that if the offending portion of a statute can be severed without doing violence to the remaining part thereof, then such a course is permissible - R.M.D. Chamarbaugwalla vs. Union of India (AIR 1957 SC 628 ) and Bhawani Singh vs. State of Rajasthan [1996 (3) SCC 105 ]. As a sequel to the above, the explanation appearing below Section 14(1)(e) of the 1958 Act will have to be treated as redundant. | 1 | 17,363 | 661 | ### 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:
eviction of the tenant from the first floor of the premises situated at Maharani Bagh, New Delhi on the ground of personal and bona fide necessity. The suit filed by the landlady was decreed by the learned Single Judge of the Delhi High Court and a direction was issued for eviction of the tenant (appellant). This Court referred to the earlier judgments in Pasupuleti Venkateswarlu vs. Motor & General Traders [1975 (1) SCC 770 ], Hasmat Rai vs. Raghunath Prasad [1981 (3) SCC 103 ] and held that in view of the availability of alternative accommodation to the landlady, the High Court was not justified in ordering eviction of the tenant. 36. A careful reading of the aforementioned judgment shows that the plea of unconstitutionality of Section 14(1)(e) of the 1958 Act was neither raised nor debated with any seriousness and the observation made by the Court in that regard cannot be treated as the true ratio of the judgment, which as mentioned above, mainly rested on the interpretation of the expression "reasonably suitable residential accommodation". The bedrock of the respondents claim was that she had a right to comfortable living and availability of alternative accommodation, by itself not sufficient for declining eviction of the tenant. While rejecting this argument, the Court observed: "17. The logic of the argument of Shri Kacker is attractive, but the legality of the said submission is unsustainable. Rent restriction laws are both beneficial and restrictive, beneficial for those who want protection from eviction and rack renting but restrictive so far as the landlords right or claim for eviction is concerned. Rent restriction laws would provide a habitat for the landlord or landlady if need be, but not to seek comforts other than habitat that right the landlord must seek elsewhere." 37. Another contention raised on behalf of the landlady was that Section 14(1)(e) of the 1958 Act should be read in a manner which will make it in conformity with Articles 14 and 16 of the Constitution. This is evinced from para 18 of the judgment which is extracted below:- "18. Our attention was drawn to the decision in the case of Bishambhar Dayal Chandra Mohan v. State of U.P. [1982 (1) SCC 39 ] and our attention was drawn to the observations at p. 66 and 67 of the said case in aid of the submission that right to property is still a constitutional right and therefore in exercise of that right if a landlord or an owner of a house lets out a premises in question there was nothing wrong. Shri Kacker submitted that the second limb of Section 14(1)(e) of the Act should be read in such a way that it was in consonance with Article 14 and Article 21 of the Constitution. Otherwise it would be void as being unconstitutional. As a general proposition of law this is acceptable." The Court rejected the argument and observed: "The Act in question has the authority of law. There is no denial of equality nor any arbitrariness in the second limb of Section 14(1)(e) of the Act, read in the manner contended for by the appellant. Article 21 is not violated so far as the landlord is concerned. The rent restricting Acts are beneficial legislations for the protection of the weaker party in the bargains of letting very often. These must be so read that these balance harmoniously the rights of the landlords and the obligations of the tenants. The Rent Restriction Acts deal with the problem of rack renting and shortage of accommodation. It is in consonance with the recognition of the right of both the landlord and the tenant that a harmony is sought to be struck whereby the bona fide requirements of the landlords and the tenants in the expanding explosion of need and population and shortage of accommodation are sought to be harmonised and the conditions imposed to evict a tenant are that the landlord must have bona fide need. That is satisfied in this case. That position is not disputed. The second condition is that landlord should not have in his or her possession any other reasonably suitable accommodation. This does not violate either Article 14 or Article 21 of the Constitution." 38. In view of the above discussion, we hold that Section 14(1)(e) of the 1958 Act is violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latters right to seek eviction of the tenant from the premises let for residential purposes only.39. However, the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it is neither the pleaded case of the parties nor the learned counsel argued that Section 14(1)(e) is unconstitutional in its entirety and we feel that ends of justice will be met by striking down the discriminatory portion of Section 14(1)(e) so that the remaining part thereof may read as under: - "that the premises are required bona fide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation." While adopting this course, we have kept in view well recognized rule that if the offending portion of a statute can be severed without doing violence to the remaining part thereof, then such a course is permissible - R.M.D. Chamarbaugwalla vs. Union of India (AIR 1957 SC 628 ) and Bhawani Singh vs. State of Rajasthan [1996 (3) SCC 105 ]. As a sequel to the above, the explanation appearing below Section 14(1)(e) of the 1958 Act will have to be treated as redundant.
### Response:
1
### Explanation:
14. Article 14 declares that the state shall not deny to any person equality before the law or the equal protection of the laws. The concept of equality embodied in Article 14 is also described as doctrine of equality. Broadly speaking, the doctrine of equality means that there should be no discrimination between one person and another, if having regard to the subject matter of legislation, their position is the same. The plain language of Article 14 may suggest that all are equal before the law and the State cannot discriminate between similarly situated persons. However, application of the doctrine of equality embodied in that Article has not been that simple. The debate which started in 1950s on the true scope of equality clause is still continuing. In last 58 years, the courts have been repeatedly called upon to adjudicate on the constitutionality of various legislative instruments including those meant for giving effect to the Directive Principals of State Policy on the ground that same violate the equality clause. It has been the constant refrain of the courts that Article 14 does not prohibit the legislature from classifying apparently similarly situated persons, things or goods into different groups provided that there is rational basis for doing so. The theory of reasonable classification has been invoked in large number of cases for repelling challenge to the constitutionality of different legislations.A careful reading of the aforementioned judgment shows that the plea of unconstitutionality of Section 14(1)(e) of the 1958 Act was neither raised nor debated with any seriousness and the observation made by the Court in that regard cannot be treated as the true ratio of the judgment, which as mentioned above, mainly rested on the interpretation of the expression "reasonably suitable residential accommodation".In view of the above discussion, we hold that Section 14(1)(e) of the 1958 Act is violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latters right to seek eviction of the tenant from the premises let for residential purposes only.39. However, the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it is neither the pleaded case of the parties nor the learned counsel argued that Section 14(1)(e) is unconstitutional in its entirety and we feel that ends of justice will be met by striking down the discriminatory portion of Section 14(1)(e) so that the remaining part thereof may read as under:-"that the premisesare required bona fide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitableadopting this course, we have kept in view well recognized rule that if the offending portion of a statute can be severed without doing violence to the remaining part thereof, then such a course is permissible - R.M.D. Chamarbaugwalla vs. Union of India (AIR 1957 SC 628 ) and Bhawani Singh vs. State of Rajasthan [1996 (3) SCC 105 ]. As a sequel to the above, the explanation appearing below Section 14(1)(e) of the 1958 Act will have to be treated as redundant.
|
Gayatri De Vs. Mousumi Coop Housing Society Ltd | public or statutory duty or a public function. This Court, therefore, held that a writ petition filed against the Society by its employee was not maintainable. 50. In the case of General Manager, Kisan Sahkari Chini Mills Ltd. Sultanpur, U.P. vs. Satrughan Nishad and others (2003) 8 SCC 639 , this Court dealt with a case of a Co-operative Sugar Mill. The Bench held that the form in which body is constituted, namely, whether as a Society or Co-operative Society or Company is not decisive and the real status of the body with respect to the control of the Government to be looked into. Applying the principles laid down in the case of Ajay Hasia vs. Khalid Mujib Sehravardi, (1981) 1 SCC 722 , to the facts of the present case, the Bench held that the appellant-Mill was neither an instrumentality nor an agency of the Government and hence was not an other authority under Article 12 of the Constitution. However, the Bench also held that in different facts/situations factors could be found to be overwhelming and indicative of whether the body is an other authority. 51. In the case of Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and others (2002) 5 SCC 111 , this Court, by majority, was of the opinion that the Council of Scientific and Industrial Research is an authority within Article 12 of the Constitution. On facts and on the material available, this Court recorded a positive finding that CSIR is a Society owned and controlled by the Government. 52. The decision in the case of Ram Sahan Ral vs. Sachiv Samanaya Prabandhak & Anr. (2001) 3 SCC 323 , can also be usefully followed and applied to the case on hand. In this case, the appellant, who was a Clerk in the Co-operative Bank was removed from services for a certain act of misconduct without affording any opportunity to defend himself. His suit challenging the order of removal was decreed by the lower appellate Court. However, the High Court while agreeing with the findings of the lower appellate Court that the impugned order was without jurisdiction and contrary to Regulation 85, set aside the decree on the ground that the suit was essentially one for enforcement of a contract of personal service and was, therefore, not maintainable. Allowing the appeal, this Court held that the status of the District Co-operative Bank is of a co-operative Society registered under the U.P. Co-operative Societies Act, 1965 and constituted under the U.P. Co-operative Land Development Bank Act, 1964. The Bench held that on an examination of different provisions of the rules, bye-laws and regulations unequivocally indicates that the State Government exercises all-pervasive control over the Bank and its employees are governed by the statutory rules prescribing the entire gamut of procedure of initiation of disciplinary proceedings etc. Therefore, the Bench held that the respondent-Bank is undoubtedly an instrumentality of the State and hence amenable to jurisdiction under Article 226 of the Constitution. 53. In the case of U.P. State Co-operative Law Development Bank Ltd. vs. Chandra Bhan Dubey and others (1999) 1 SCC 741 , the maintainability of the writ petition against U.P. State Co-operative Land Development Bank Ltd. was in question. This Court on consideration of the provisions of the Act and the Rules, held that the Bank is an instrumentality of the State or an authority as mentioned under Article 12 of the Constitution and that the service conditions of its employees, particularly in regard to disciplinary proceedings are statutory in nature and hence writ petition filed by its dismissed employees to challenge the order of their dismissal was maintainable. 54. In the case of S.R. Tewari vs. Dist. Board, Agra, AIR 1964 SC 1680 , this Court held that the powers of statutory authorities are always subject to the statute which has constituted it and must be exercised consistently with the statute, and the Courts have, in appropriate cases, the power to declare an action of the body illegal or ultra vires, even if the action relates to determination of employment of a servant. 55. We have, in paragraphs supra, considered the judgments for and against on the question of maintainability of writ petition. The judgment cited by the learned senior counsel appearing for the respondents are distinguishable on facts and on law. Those cases are not cases covered by the appointment of a Special Officer to manage the administration of the Society and its affairs. In the instant case, the Special Officer was appointed by the High Court to discharge the functions of the Society, therefore, he should be regarded as a public authority and hence, the writ petition is maintainable.56. The appellant being one of the heirs of the deceased member, in our opinion, is entitled to succeed to the estate of the deceased and that being so, the right, title and interest of the deceased member in the apartment of the Society devolves upon his heirs and the aforesaid Section 85(3) and Rule 135(3) cannot have any application in the instant case.57. It is unfortunate that the Society made the project and constructed the flats on the land owned by the appellants father and sold by him to the Society. The Society has taken such a rigid and technical stand to deprive the allottees own daughter to get the flat that was originally booked by her father, even after complying with all necessary formalities. We, therefore, hold that the prayer made in this appeal by the appellant deserves to have consideration and, therefore, we accept the prayer of the appellant and allow the appeal and issue a mandamus directing the the respondents and, in particular the Secretary of the Mousumi Co-operative Housing Society, Calcutta to take immediate steps for transfer of the flat in question in favour of the appellant and also hand over the flat to the appellant upon payment of the balance amount and payable after adjusting the amount paid by her father, Sati Prasanna Bhowmick. 58. | 1[ds]In terms of the Act and the Rules, the heirs of a deceased person are, therefore, entitled to inherit the flat allotted to the deceased as in the instant case. Admittedly, the flat in question was allotted to the father of the appellant who died thereafter and a consequence thereof, the heirs of the said deceased became and would be entitled to the estate and as a result thereof the said flat with proportionate interest in the land.While disposing of the appeal, the learned Judges of the Division Bench of the High Court gave much stress on sub-Section (3) of the Section 85 of the Act as also Rule 135 of the Rules taking the present case to be a case for admission of membership which is not in the instant case. In the present case, the question of admission of membership becomes absolutely immaterial, the real question however, is of transfer of devolution of interest of a deceased member. The Appellant being one of the heirs of the deceased member was and still is entitled to succeed to the estate of the deceased member as per the mandatory provisions of the statutes and that being so the right, title and interest of the deceased member in the apartment of the Society devolves upon his heirs and in that background, Section 85(3) and Rule 135(5) neither have nor can have any application in the instant case because there cannot be any manner of doubt that on the death of a member of a Society his share or interest in the Society shall, in the absence of a nominee, be transferred to a person who appears to the Board to be entitled to in accordance with Rules, possession of such interest as part of the estate of the deceased member and herein in the instant case the son who himself is admittedly not a member of the Society in question or any other Housing Society became entitled to be considered for such allotment immediately he gave notice to the appropriate authority which too long before the alleged re-allotment was said to have been made.40. In our opinion, the order passed by the Special Officer re-allotting the flat to a stranger even after he had received letter regarding transfer of ownership in favour of legal heirs in December, 1986, long before such alleged re-allotment, claimed to have been made in April, 1988, that is, more than 16 months from the receipt thereof without giving any opportunity of being heard and without deciding the question as to who was entitled to the said flat in accordance with law. The said action of the Special Officer who is a statutory functionary was not only improper but also illegal, arbitrary and motivated.In fact, the respondent-Society has informed that the allotment in favour of the deceased allottee stood cancelled because no appropriate person could be named as legal heir of the allottee in whose favour respondent-Society was to make the allotment and as such the Society has been threatening of re-allotting the earmarked flat for the deceased allottee to a stranger ignoring the rights of the legal heirs.42. It is now brought to our notice that the flat has not been allotted to a third party and remains vacant. The allotment letter of membership of the flat to the father of the appellant (Annexure P-4) dated 29.11.1982 clearly stipulates that the right and the interest in the Society of the member will be governed by the provisions of the Act, the Rules made thereunder and the bye-laws of the Society and that the member will also be liable to discharge his obligations as the member of the Society in accordance with the abovementioned Act, Rules and the bye-laws.In the case of S.R. Tewari vs. Dist. Board, Agra, AIR 1964 SC 1680 , this Court held that the powers of statutory authorities are always subject to the statute which has constituted it and must be exercised consistently with the statute, and the Courts have, in appropriate cases, the power to declare an action of the body illegal or ultra vires, even if the action relates to determination of employment of ahave, in paragraphs supra, considered the judgments for and against on the question of maintainability of writ petition. The judgment cited by the learned senior counsel appearing for the respondents are distinguishable on facts and on law. Those cases are not cases covered by the appointment of a Special Officer to manage the administration of the Society and its affairs. In the instant case, the Special Officer was appointed by the High Court to discharge the functions of the Society, therefore, he should be regarded as a public authority and hence, the writ petition is maintainable.56. The appellant being one of the heirs of the deceased member, in our opinion, is entitled to succeed to the estate of the deceased and that being so, the right, title and interest of the deceased member in the apartment of the Society devolves upon his heirs and the aforesaid Section 85(3) and Rule 135(3) cannot have any application in the instant case.57. It is unfortunate that the Society made the project and constructed the flats on the land owned by the appellants father and sold by him to the Society. The Society has taken such a rigid and technical stand to deprive the allottees own daughter to get the flat that was originally booked by her father, even after complying with all necessary formalities. We, therefore, hold that the prayer made in this appeal by the appellant deserves to have consideration and, therefore, we accept the prayer of the appellant and allow the appeal and issue a mandamus directing the the respondents and, in particular the Secretary of the Mousumi Co-operative Housing Society, Calcutta to take immediate steps for transfer of the flat in question in favour of the appellant and also hand over the flat to the appellant upon payment of the balance amount and payable after adjusting the amount paid by her father, Sati Prasanna Bhowmick. | 1 | 7,946 | 1,096 | ### 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:
public or statutory duty or a public function. This Court, therefore, held that a writ petition filed against the Society by its employee was not maintainable. 50. In the case of General Manager, Kisan Sahkari Chini Mills Ltd. Sultanpur, U.P. vs. Satrughan Nishad and others (2003) 8 SCC 639 , this Court dealt with a case of a Co-operative Sugar Mill. The Bench held that the form in which body is constituted, namely, whether as a Society or Co-operative Society or Company is not decisive and the real status of the body with respect to the control of the Government to be looked into. Applying the principles laid down in the case of Ajay Hasia vs. Khalid Mujib Sehravardi, (1981) 1 SCC 722 , to the facts of the present case, the Bench held that the appellant-Mill was neither an instrumentality nor an agency of the Government and hence was not an other authority under Article 12 of the Constitution. However, the Bench also held that in different facts/situations factors could be found to be overwhelming and indicative of whether the body is an other authority. 51. In the case of Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and others (2002) 5 SCC 111 , this Court, by majority, was of the opinion that the Council of Scientific and Industrial Research is an authority within Article 12 of the Constitution. On facts and on the material available, this Court recorded a positive finding that CSIR is a Society owned and controlled by the Government. 52. The decision in the case of Ram Sahan Ral vs. Sachiv Samanaya Prabandhak & Anr. (2001) 3 SCC 323 , can also be usefully followed and applied to the case on hand. In this case, the appellant, who was a Clerk in the Co-operative Bank was removed from services for a certain act of misconduct without affording any opportunity to defend himself. His suit challenging the order of removal was decreed by the lower appellate Court. However, the High Court while agreeing with the findings of the lower appellate Court that the impugned order was without jurisdiction and contrary to Regulation 85, set aside the decree on the ground that the suit was essentially one for enforcement of a contract of personal service and was, therefore, not maintainable. Allowing the appeal, this Court held that the status of the District Co-operative Bank is of a co-operative Society registered under the U.P. Co-operative Societies Act, 1965 and constituted under the U.P. Co-operative Land Development Bank Act, 1964. The Bench held that on an examination of different provisions of the rules, bye-laws and regulations unequivocally indicates that the State Government exercises all-pervasive control over the Bank and its employees are governed by the statutory rules prescribing the entire gamut of procedure of initiation of disciplinary proceedings etc. Therefore, the Bench held that the respondent-Bank is undoubtedly an instrumentality of the State and hence amenable to jurisdiction under Article 226 of the Constitution. 53. In the case of U.P. State Co-operative Law Development Bank Ltd. vs. Chandra Bhan Dubey and others (1999) 1 SCC 741 , the maintainability of the writ petition against U.P. State Co-operative Land Development Bank Ltd. was in question. This Court on consideration of the provisions of the Act and the Rules, held that the Bank is an instrumentality of the State or an authority as mentioned under Article 12 of the Constitution and that the service conditions of its employees, particularly in regard to disciplinary proceedings are statutory in nature and hence writ petition filed by its dismissed employees to challenge the order of their dismissal was maintainable. 54. In the case of S.R. Tewari vs. Dist. Board, Agra, AIR 1964 SC 1680 , this Court held that the powers of statutory authorities are always subject to the statute which has constituted it and must be exercised consistently with the statute, and the Courts have, in appropriate cases, the power to declare an action of the body illegal or ultra vires, even if the action relates to determination of employment of a servant. 55. We have, in paragraphs supra, considered the judgments for and against on the question of maintainability of writ petition. The judgment cited by the learned senior counsel appearing for the respondents are distinguishable on facts and on law. Those cases are not cases covered by the appointment of a Special Officer to manage the administration of the Society and its affairs. In the instant case, the Special Officer was appointed by the High Court to discharge the functions of the Society, therefore, he should be regarded as a public authority and hence, the writ petition is maintainable.56. The appellant being one of the heirs of the deceased member, in our opinion, is entitled to succeed to the estate of the deceased and that being so, the right, title and interest of the deceased member in the apartment of the Society devolves upon his heirs and the aforesaid Section 85(3) and Rule 135(3) cannot have any application in the instant case.57. It is unfortunate that the Society made the project and constructed the flats on the land owned by the appellants father and sold by him to the Society. The Society has taken such a rigid and technical stand to deprive the allottees own daughter to get the flat that was originally booked by her father, even after complying with all necessary formalities. We, therefore, hold that the prayer made in this appeal by the appellant deserves to have consideration and, therefore, we accept the prayer of the appellant and allow the appeal and issue a mandamus directing the the respondents and, in particular the Secretary of the Mousumi Co-operative Housing Society, Calcutta to take immediate steps for transfer of the flat in question in favour of the appellant and also hand over the flat to the appellant upon payment of the balance amount and payable after adjusting the amount paid by her father, Sati Prasanna Bhowmick. 58.
### Response:
1
### Explanation:
the heirs of a deceased person are, therefore, entitled to inherit the flat allotted to the deceased as in the instant case. Admittedly, the flat in question was allotted to the father of the appellant who died thereafter and a consequence thereof, the heirs of the said deceased became and would be entitled to the estate and as a result thereof the said flat with proportionate interest in the land.While disposing of the appeal, the learned Judges of the Division Bench of the High Court gave much stress on sub-Section (3) of the Section 85 of the Act as also Rule 135 of the Rules taking the present case to be a case for admission of membership which is not in the instant case. In the present case, the question of admission of membership becomes absolutely immaterial, the real question however, is of transfer of devolution of interest of a deceased member. The Appellant being one of the heirs of the deceased member was and still is entitled to succeed to the estate of the deceased member as per the mandatory provisions of the statutes and that being so the right, title and interest of the deceased member in the apartment of the Society devolves upon his heirs and in that background, Section 85(3) and Rule 135(5) neither have nor can have any application in the instant case because there cannot be any manner of doubt that on the death of a member of a Society his share or interest in the Society shall, in the absence of a nominee, be transferred to a person who appears to the Board to be entitled to in accordance with Rules, possession of such interest as part of the estate of the deceased member and herein in the instant case the son who himself is admittedly not a member of the Society in question or any other Housing Society became entitled to be considered for such allotment immediately he gave notice to the appropriate authority which too long before the alleged re-allotment was said to have been made.40. In our opinion, the order passed by the Special Officer re-allotting the flat to a stranger even after he had received letter regarding transfer of ownership in favour of legal heirs in December, 1986, long before such alleged re-allotment, claimed to have been made in April, 1988, that is, more than 16 months from the receipt thereof without giving any opportunity of being heard and without deciding the question as to who was entitled to the said flat in accordance with law. The said action of the Special Officer who is a statutory functionary was not only improper but also illegal, arbitrary and motivated.In fact, the respondent-Society has informed that the allotment in favour of the deceased allottee stood cancelled because no appropriate person could be named as legal heir of the allottee in whose favour respondent-Society was to make the allotment and as such the Society has been threatening of re-allotting the earmarked flat for the deceased allottee to a stranger ignoring the rights of the legal heirs.42. It is now brought to our notice that the flat has not been allotted to a third party and remains vacant. The allotment letter of membership of the flat to the father of the appellant (Annexure P-4) dated 29.11.1982 clearly stipulates that the right and the interest in the Society of the member will be governed by the provisions of the Act, the Rules made thereunder and the bye-laws of the Society and that the member will also be liable to discharge his obligations as the member of the Society in accordance with the abovementioned Act, Rules and the bye-laws.In the case of S.R. Tewari vs. Dist. Board, Agra, AIR 1964 SC 1680 , this Court held that the powers of statutory authorities are always subject to the statute which has constituted it and must be exercised consistently with the statute, and the Courts have, in appropriate cases, the power to declare an action of the body illegal or ultra vires, even if the action relates to determination of employment of ahave, in paragraphs supra, considered the judgments for and against on the question of maintainability of writ petition. The judgment cited by the learned senior counsel appearing for the respondents are distinguishable on facts and on law. Those cases are not cases covered by the appointment of a Special Officer to manage the administration of the Society and its affairs. In the instant case, the Special Officer was appointed by the High Court to discharge the functions of the Society, therefore, he should be regarded as a public authority and hence, the writ petition is maintainable.56. The appellant being one of the heirs of the deceased member, in our opinion, is entitled to succeed to the estate of the deceased and that being so, the right, title and interest of the deceased member in the apartment of the Society devolves upon his heirs and the aforesaid Section 85(3) and Rule 135(3) cannot have any application in the instant case.57. It is unfortunate that the Society made the project and constructed the flats on the land owned by the appellants father and sold by him to the Society. The Society has taken such a rigid and technical stand to deprive the allottees own daughter to get the flat that was originally booked by her father, even after complying with all necessary formalities. We, therefore, hold that the prayer made in this appeal by the appellant deserves to have consideration and, therefore, we accept the prayer of the appellant and allow the appeal and issue a mandamus directing the the respondents and, in particular the Secretary of the Mousumi Co-operative Housing Society, Calcutta to take immediate steps for transfer of the flat in question in favour of the appellant and also hand over the flat to the appellant upon payment of the balance amount and payable after adjusting the amount paid by her father, Sati Prasanna Bhowmick.
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M/s. Bangalore Club Vs. Commissioner of Income Tax & Another | qua shareholders. It does not come back to them as purchasers or customers. It comes back to them as shareholders, upon their shares. Where all that a company does is to collect money from a certain number of people - it does not matter whether they are called members of the company, or participating policy holders - and apply it for the benefit of those same people, not as shareholders in the company, but as the people who subscribed it, then, as I understand the New York case, there is no profit. If the people were to do the thing for themselves, there would be no profit, and the fact that they incorporate a legal entity to do it for them makes no difference, there is still no profit. This is not because the entity of the company is to be disregarded, it is because there is no profit, the money being simply collected from those people and handed back to them, not in the character of shareholders, but in the character of those who have paid it. That, as I understand it, is the effect of the decision in the New York case." (Emphasis supplied) In the present case, the interest accrues on the surplus deposited by the club like in the case of any other deposit made by an account holder with the bank. 30. An almost similar issue arose in Kumbakonam Mutual Benefit Fund Ltd. case (supra). The facts in that case were that the assessee, namely, Kumbakonam Mutual Benefit Fund Ltd., was an incorporated company limited by shares. Since 1938, the nominal capital of the assessee was Rs.33,00,000/- divided into shares of Rs.1/- each. It carried on banking business restricted to its shareholders, i.e., the shareholders were entitled to participate in its various recurring deposit schemes or obtain loans on security. Recurring deposits were obtained from members for fixed amounts to be contributed monthly by them for a fixed number of months as stipulated at the end of which a fixed amount was returned to them according to published tables. The amount so returned, covered the compound interest of the period. These recurring deposits constituted the main source of funds of the assessee for advancing loans. Such loans were restricted only to members who had, however, to offer substantial security therefor, by way of either the paid up value of their recurring deposits, if any, or immovable properties within a particular district. Out of the interest realised by the assessee on the loans which constituted its main income, interest on the recurring deposits aforesaid was paid as also all the other outgoings and expenses of management and the balance amount was divided among the members pro rata according to their share-holdings after making provision for reserves, etc., as required by the Memorandum or Articles aforesaid. It was not necessary for the shareholders, who were entitled to participate in the profits to either take loans or make recurring deposits. 31. On these facts, as already noted, the Court distinguished Styles case (supra) and opined that the position of the assessee was no different from an ordinary bank except that it lent money and received deposits from its shareholders. This did not by itself make its income any less income from business. In our opinion, the ratio of the said decision is on all fours to the facts at hand. The interest earned by the assessee even from the member banks on the surplus funds deposited with them had the taint of commerciality, fatal to the principle of mutuality.32. We may add that the assessee is already availing the benefit of the doctrine of mutuality in respect of the surplus amount received as contributions or price for some of the facilities availed by its members, before it is deposited with the bank. This surplus amount was not treated as income; since it was the residue of the collections left behind with the club. A fa硤e of a club cannot be constructed over commercial transactions to avoid liability to tax. Such setups cannot be permitted to claim double benefit of mutuality. We feel that the present case is a clear instance of what this Court had cautioned against in Bankipur Club (supra), when it said: “… if the object of the assessee company claiming to be a "mutual concern" or "club", is to carry on a particular business and money is realised both from the members and from non- members, for the same consideration by giving the same or similar facilities to all alike in respect of the one and the same business carried on by it, the dealings as a whole disclose the same profit earning motive and are alike tainted with commerciality. In other words, the activity carried on by the assessee in such cases, claiming to be a "mutual concern" or Members club" is a trade or an adventure in the nature of trade and the transactions entered into with the members or non- members alike is a trade/business/transaction and the resultant surplus is certainly profit - income liable to tax. We should also state, that "at what point, does the relationship of mutuality end and that of trading begin" is a difficult and vexed question. A host of factors may have to be considered to arrive at a conclusion. "Whether or not the persons dealing with each other, is a "mutual club" or carrying on a trading activity or an adventure in the nature of trade" is largely a question of fact [Wilcocks case - 9 Tax Cases 111, (132) C.A. (1925) (1) KB 30 at 44 and 45].” (Emphasis supplied) 33. In our opinion, unlike the aforesaid surplus amount itself, which is exempt from tax under the doctrine of mutuality, the amount of interest earned by the assessee from the afore-noted four banks will not fall within the ambit of the mutuality principle and will therefore, be exigible to Income-Tax in the hands of the assessee-club. 34. In light of the afore-going discussion, these | 0[ds]it would be necessary to appreciate the general understanding of doctrine of mutuality. The principle relates to the notion that a person cannot make a profit from himself. An amount received from oneself is not regarded as income and is therefore not subject to tax; only the income which comes within the definition of Section 2(24) of the Act is subject to tax (income from business involving the doctrine of mutuality is denied exemption only in special cases covered under clause (vii) of Section 2 (24) of the Act). The concept of mutuality has been extended to defined groups of people who contribute to a common fund, controlled by the group, for a common benefit. Any amount surplus to that needed to pursue the common purpose is said to be simply an increase of the common fund and as such neither considered income nor taxable. Over time, groups which have been considered to have mutual income have included corporate bodies, clubs, friendly societies, credit unions, automobile associations, insurance companies and finance organizations. Mutuality is not a form of organization, even if the participants are often called members. Any organization can have mutual activities. A common feature of mutual organizations in general and of licensed clubs in particular, is that participants usually do not have property rights to their share in the common fund, nor can they sell their share. And when they cease to be members, they lose their right to participate without receiving a financial benefit from the surrender of their membership. A further feature of licensed clubs is that there are both membership fees and, where prices charged for club services are greater than their cost, additional contributions. It is these kinds of prices and/or additional contributions which constitute mutual income.8. The doctrine of mutuality finds its origin in common law. One of the earliest modern judicial statements of the mutuality principle is by Lord Watson in the House of Lords, in 1889, in Styles (Surveyor of Taxes) Vs. New York Life Insurance Co. [[1889] 2 TC 460] (hereinafter referred to as the. The appellant in that case was an incorporated company. The company issued life policies of two kinds, namely, participating and non- participating. The members of the mutual life insurance company were confined to the holders of the participating policies, and each year, the surplus of receipts over expenses and estimated liabilities was divided among them, either in the form of a reduction of future premiums or of a reversionary addition to the policies. There were no shares or shareholders in the ordinary sense of the term but each and every holder of a participating policy became ipso facto a member of the company and as such became entitled to a share in the assets and liable for a share in the losses. The company conducted a calculation of the probable death rate amongst the members and the probable expenses and liabilities; calls in the shape of premiums were made on the members accordingly. An account used to be taken annually and the greater part of the surplus of such premiums, over the expenditure referable to such policies, was returned to the members i.e. (holders of participating policies) and the balance was carried forward as a fund in hand to the credit of the general body of members. The question was whether the surplus returned to the members was liable to be assessed to income tax as profits or gains. The majority of the Law Lords answered the question in the negative. It may be noticed that in that case the members had associated themselves together for the purpose of insuring eachlife on the principle of mutual assurance, that is to say, they contributed annually to a common fund out of which payments were to be made, in the event of death, to the representatives of the deceased members. Those persons were alone the owners of the common fund and they alone were entitled to participate in the surplus. This surplus was obtained partly from the profits arising from non-participating policies and other business. It was held that that portion of the surplus which arose from the excess contributions of the holders of participating policies was not an assessable profit. It was therefore, held to be a case of mutual assurance. The individuals insured and those associated for the purpose of receiving their dividends and meeting other stipulated requisites under the policies were identical. It was held that that identity was not destroyed by the incorporation of the company. Lord Watson even went to the extent of saying that the company in that case did not carry on any business at all, which perhaps was stating the position a little too widely as pointed out by Viscount Cave in a later case; but, be that as it may, all the Noble Lords, who formed the majority, were of the view that what the members received were not profits but their respective shares of the excess amount contributed by themselves. They heldwhen a number of individuals agree to contribute funds for a common purpose ... and stipulate that their contributions, so far as not required for that purpose, shall be repaid to them. I cannot conceive why they should be regarded as traders, or why contributions returned to them should be regarded asposition of the assessee was no different from an ordinary bank except that it lent money and received deposits from its shareholders. This did not by itself make its income any less income from business. In our opinion, the ratio of the said decision is on all fours to the facts at hand. The interest earned by the assessee even from the member banks on the surplus funds deposited with them had the taint of commerciality, fatal to the principle of mutuality.32. We may add that the assessee is already availing the benefit of the doctrine of mutuality in respect of the surplus amount received as contributions or price for some of the facilities availed by its members, before it is deposited with the bank. This surplus amount was not treated as income; since it was the residue of the collections left behind with the club. A fa硤e of a club cannot be constructed over commercial transactions to avoid liability to tax. Such setups cannot be permitted to claim double benefit of mutuality. We feel that the present case is a clear instance of what this Court had cautioned against in Bankipur Club (supra), when itif the object of the assessee company claiming to be a "mutual concern" or "club", is to carry on a particular business and money is realised both from the members and from non- members, for the same consideration by giving the same or similar facilities to all alike in respect of the one and the same business carried on by it, the dealings as a whole disclose the same profit earning motive and are alike tainted with commerciality. In other words, the activity carried on by the assessee in such cases, claiming to be a "mutual concern" or Members club" is a trade or an adventure in the nature of trade and the transactions entered into with the members or non- members alike is a trade/business/transaction and the resultant surplus is certainly profit - income liable to tax. We should also state, that "at what point, does the relationship of mutuality end and that of trading begin" is a difficult and vexed question. A host of factors may have to be considered to arrive at a conclusion. "Whether or not the persons dealing with each other, is a "mutual club" or carrying on a trading activity or an adventure in the nature of trade" is largely a question ofour opinion, unlike the aforesaid surplus amount itself, which is exempt from tax under the doctrine of mutuality, the amount of interest earned by the assessee from the afore-noted four banks will not fall within the ambit of the mutuality principle and will therefore, be exigible to Income-Tax in the hands of the assessee-club. | 0 | 7,497 | 1,484 | ### 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:
qua shareholders. It does not come back to them as purchasers or customers. It comes back to them as shareholders, upon their shares. Where all that a company does is to collect money from a certain number of people - it does not matter whether they are called members of the company, or participating policy holders - and apply it for the benefit of those same people, not as shareholders in the company, but as the people who subscribed it, then, as I understand the New York case, there is no profit. If the people were to do the thing for themselves, there would be no profit, and the fact that they incorporate a legal entity to do it for them makes no difference, there is still no profit. This is not because the entity of the company is to be disregarded, it is because there is no profit, the money being simply collected from those people and handed back to them, not in the character of shareholders, but in the character of those who have paid it. That, as I understand it, is the effect of the decision in the New York case." (Emphasis supplied) In the present case, the interest accrues on the surplus deposited by the club like in the case of any other deposit made by an account holder with the bank. 30. An almost similar issue arose in Kumbakonam Mutual Benefit Fund Ltd. case (supra). The facts in that case were that the assessee, namely, Kumbakonam Mutual Benefit Fund Ltd., was an incorporated company limited by shares. Since 1938, the nominal capital of the assessee was Rs.33,00,000/- divided into shares of Rs.1/- each. It carried on banking business restricted to its shareholders, i.e., the shareholders were entitled to participate in its various recurring deposit schemes or obtain loans on security. Recurring deposits were obtained from members for fixed amounts to be contributed monthly by them for a fixed number of months as stipulated at the end of which a fixed amount was returned to them according to published tables. The amount so returned, covered the compound interest of the period. These recurring deposits constituted the main source of funds of the assessee for advancing loans. Such loans were restricted only to members who had, however, to offer substantial security therefor, by way of either the paid up value of their recurring deposits, if any, or immovable properties within a particular district. Out of the interest realised by the assessee on the loans which constituted its main income, interest on the recurring deposits aforesaid was paid as also all the other outgoings and expenses of management and the balance amount was divided among the members pro rata according to their share-holdings after making provision for reserves, etc., as required by the Memorandum or Articles aforesaid. It was not necessary for the shareholders, who were entitled to participate in the profits to either take loans or make recurring deposits. 31. On these facts, as already noted, the Court distinguished Styles case (supra) and opined that the position of the assessee was no different from an ordinary bank except that it lent money and received deposits from its shareholders. This did not by itself make its income any less income from business. In our opinion, the ratio of the said decision is on all fours to the facts at hand. The interest earned by the assessee even from the member banks on the surplus funds deposited with them had the taint of commerciality, fatal to the principle of mutuality.32. We may add that the assessee is already availing the benefit of the doctrine of mutuality in respect of the surplus amount received as contributions or price for some of the facilities availed by its members, before it is deposited with the bank. This surplus amount was not treated as income; since it was the residue of the collections left behind with the club. A fa硤e of a club cannot be constructed over commercial transactions to avoid liability to tax. Such setups cannot be permitted to claim double benefit of mutuality. We feel that the present case is a clear instance of what this Court had cautioned against in Bankipur Club (supra), when it said: “… if the object of the assessee company claiming to be a "mutual concern" or "club", is to carry on a particular business and money is realised both from the members and from non- members, for the same consideration by giving the same or similar facilities to all alike in respect of the one and the same business carried on by it, the dealings as a whole disclose the same profit earning motive and are alike tainted with commerciality. In other words, the activity carried on by the assessee in such cases, claiming to be a "mutual concern" or Members club" is a trade or an adventure in the nature of trade and the transactions entered into with the members or non- members alike is a trade/business/transaction and the resultant surplus is certainly profit - income liable to tax. We should also state, that "at what point, does the relationship of mutuality end and that of trading begin" is a difficult and vexed question. A host of factors may have to be considered to arrive at a conclusion. "Whether or not the persons dealing with each other, is a "mutual club" or carrying on a trading activity or an adventure in the nature of trade" is largely a question of fact [Wilcocks case - 9 Tax Cases 111, (132) C.A. (1925) (1) KB 30 at 44 and 45].” (Emphasis supplied) 33. In our opinion, unlike the aforesaid surplus amount itself, which is exempt from tax under the doctrine of mutuality, the amount of interest earned by the assessee from the afore-noted four banks will not fall within the ambit of the mutuality principle and will therefore, be exigible to Income-Tax in the hands of the assessee-club. 34. In light of the afore-going discussion, these
### Response:
0
### Explanation:
to as the. The appellant in that case was an incorporated company. The company issued life policies of two kinds, namely, participating and non- participating. The members of the mutual life insurance company were confined to the holders of the participating policies, and each year, the surplus of receipts over expenses and estimated liabilities was divided among them, either in the form of a reduction of future premiums or of a reversionary addition to the policies. There were no shares or shareholders in the ordinary sense of the term but each and every holder of a participating policy became ipso facto a member of the company and as such became entitled to a share in the assets and liable for a share in the losses. The company conducted a calculation of the probable death rate amongst the members and the probable expenses and liabilities; calls in the shape of premiums were made on the members accordingly. An account used to be taken annually and the greater part of the surplus of such premiums, over the expenditure referable to such policies, was returned to the members i.e. (holders of participating policies) and the balance was carried forward as a fund in hand to the credit of the general body of members. The question was whether the surplus returned to the members was liable to be assessed to income tax as profits or gains. The majority of the Law Lords answered the question in the negative. It may be noticed that in that case the members had associated themselves together for the purpose of insuring eachlife on the principle of mutual assurance, that is to say, they contributed annually to a common fund out of which payments were to be made, in the event of death, to the representatives of the deceased members. Those persons were alone the owners of the common fund and they alone were entitled to participate in the surplus. This surplus was obtained partly from the profits arising from non-participating policies and other business. It was held that that portion of the surplus which arose from the excess contributions of the holders of participating policies was not an assessable profit. It was therefore, held to be a case of mutual assurance. The individuals insured and those associated for the purpose of receiving their dividends and meeting other stipulated requisites under the policies were identical. It was held that that identity was not destroyed by the incorporation of the company. Lord Watson even went to the extent of saying that the company in that case did not carry on any business at all, which perhaps was stating the position a little too widely as pointed out by Viscount Cave in a later case; but, be that as it may, all the Noble Lords, who formed the majority, were of the view that what the members received were not profits but their respective shares of the excess amount contributed by themselves. They heldwhen a number of individuals agree to contribute funds for a common purpose ... and stipulate that their contributions, so far as not required for that purpose, shall be repaid to them. I cannot conceive why they should be regarded as traders, or why contributions returned to them should be regarded asposition of the assessee was no different from an ordinary bank except that it lent money and received deposits from its shareholders. This did not by itself make its income any less income from business. In our opinion, the ratio of the said decision is on all fours to the facts at hand. The interest earned by the assessee even from the member banks on the surplus funds deposited with them had the taint of commerciality, fatal to the principle of mutuality.32. We may add that the assessee is already availing the benefit of the doctrine of mutuality in respect of the surplus amount received as contributions or price for some of the facilities availed by its members, before it is deposited with the bank. This surplus amount was not treated as income; since it was the residue of the collections left behind with the club. A fa硤e of a club cannot be constructed over commercial transactions to avoid liability to tax. Such setups cannot be permitted to claim double benefit of mutuality. We feel that the present case is a clear instance of what this Court had cautioned against in Bankipur Club (supra), when itif the object of the assessee company claiming to be a "mutual concern" or "club", is to carry on a particular business and money is realised both from the members and from non- members, for the same consideration by giving the same or similar facilities to all alike in respect of the one and the same business carried on by it, the dealings as a whole disclose the same profit earning motive and are alike tainted with commerciality. In other words, the activity carried on by the assessee in such cases, claiming to be a "mutual concern" or Members club" is a trade or an adventure in the nature of trade and the transactions entered into with the members or non- members alike is a trade/business/transaction and the resultant surplus is certainly profit - income liable to tax. We should also state, that "at what point, does the relationship of mutuality end and that of trading begin" is a difficult and vexed question. A host of factors may have to be considered to arrive at a conclusion. "Whether or not the persons dealing with each other, is a "mutual club" or carrying on a trading activity or an adventure in the nature of trade" is largely a question ofour opinion, unlike the aforesaid surplus amount itself, which is exempt from tax under the doctrine of mutuality, the amount of interest earned by the assessee from the afore-noted four banks will not fall within the ambit of the mutuality principle and will therefore, be exigible to Income-Tax in the hands of the assessee-club.
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Nandganj Sihori Sugar Co. Ltd., Rae Bareli And Anr Vs. Badri Nath Dixit And Ors | of service in terms of or pursuant to an unknown scheme. Subject to certain well defined categories of exceptions, the law does not permit, and the Specific Relief Act does not contemplate, the enforcement of a contract of a personal nature by a decree for specific performance. The facts of this case do not fall within the exceptions. Assuming that the facts alleged by the plaintiff to be true - as stated earlier, there is no evidence whatever to support them - the plaintiff is not entitled to any relief other than damages in the event of his being in a position to prove that he has been damnified by reason of the defendants failure to carry out the obligations arising under what he calls a contract 8. In Halsburys Laws of England (4th edn. Volume 44, at para 407) it is stated "407. Contracts for personal work or services. - A judgment for specific performance of a contract for personal work or services is not pronounced, either at the suit of the employer or the employee. The court does not seek to compel persons against their will to maintain continuous personal and confidential relations. However, this rule is not absolute and without exception. It has been held that an employer may be restrained from dismissing an employee in breach of contract if there is no loss of confidence between employer and employee or if (at least in a contract of employment to carry out a public duty) the employee has been dismissed in a manner which does not comply with statutory or contractual regulations governing dismissal. No court may, whether by way of an order for specific performance of a contract of employment or an injunction restraining a breach or threatened breach of such contract, compel an employee to do any work or attend at any place for the doing of any workThis principle applies not merely to contracts of employment, but to all contracts which involve the rendering of continuous services by one person to another, such as a contract to work a railway line ..." 9. As stated by this Court in Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain ( 1976 (2) SCC 58 : 1976 SCC(L&S) 176) : (SCC p. 71, para 18) "... a contract of personal service cannot ordinarily be specifically enforced and a court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognised exceptions - (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of statute." * 10. A contract of employment cannot ordinarily be enforced by or against an employer. The remedy is to sue for damages. (See Section 14 read with Section 41 of the Specific Relief Act; see Indian Contract and Specific Relief Acts by Pollock and Mulla, 10th edn., page 983). The grant of specific performance is purely discretionary and must be refused when not warranted by the ends of justice. Such relief can be granted only on sound legal principles. In the absence of any statutory requirement, courts do not ordinarily force an employer to recruit or retain in service an employee not required by the employer. There are, of course, certain exceptions to this rule, such as in the case of a public servant dismissed from service in contravention of Article 311 of the Constitution; reinstatement of a dismissed worker under the Industrial Law; a statutory body acting in breach of statutory obligations, and the like (S.R. Tiwari v. District Board, Agra 1964 AIR(SC) 1680 : 1964 (3) SCR 55 : 1964 (1) LLJ 1 ); Executive Committee of U.P. State Warehousing Corporation v. C.K. Tyagi ( 1969 (2) SCC 838 : 1970 (2) SCR 250 ); Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain ( 1976 (2) SCC 58 : 1976 SCC(L&S) 176); see Halsburys Laws of England, 4th edn., Volume 44, paragraphs 405 to 420) 11. On the facts of this case, the High Court was clearly wrong in issuing a mandatory injunction to appoint the plaintiff. Even if there was a contract in terms of which the plaintiff was entitled to seek relief, the only relief which was available in law was damages and not specific performance. Breach of contract must ordinarily sound in damages, and particularly so in the case of personal contracts. Assuming that a contractual relationship arose consequent upon the letters addressed by defendant 3 to defendant 1, the plaintiff was a total stranger to any such relationship, for, on the facts of this case, no relationship of a fiduciary character existed between the plaintiff and defendant 3 or other defendants. Neither on principles of law or equity nor under any statute did the plaintiff acquire an enforceable right by reason of the letters exchanged between defendants 1 and 3. The plaintiff had no privity of any kind to their relationship. No collateral contract to which the plaintiff was a party did arise on the facts of this case. At no time was defendant 3 acting as an agent of the plaintiff. There is no express or implied contract which is enforceable by the plaintiff. (See Halsburys Laws of England, 4th edn., Volume 9, paragraphs 334 to 342) 12. The plaintiffs counsel suggests that the claim is justifiable on the basis of legitimate expectations for appointment. There is no specific plea or evidence to support any such contention. Whatever expectations might have arisen from the letters of defendant 3, they could not have in law given rise to any right enforceable by specific performance | 0[ds]11. On the facts of this case, the High Court was clearly wrong in issuing a mandatory injunction to appoint the plaintiff. Even if there was a contract in terms of which the plaintiff was entitled to seek relief, the only relief which was available in law was damages and not specific performance. Breach of contract must ordinarily sound in damages, and particularly so in the case of personal contracts. Assuming that a contractual relationship arose consequent upon the letters addressed by defendant 3 to defendant 1, the plaintiff was a total stranger to any such relationship, for, on the facts of this case, no relationship of a fiduciary character existed between the plaintiff and defendant 3 or other defendants. Neither on principles of law or equity nor under any statute did the plaintiff acquire an enforceable right by reason of the letters exchanged between defendants 1 and 3. The plaintiff had no privity of any kind to their relationship. No collateral contract to which the plaintiff was a party did arise on the facts of this case. At no time was defendant 3 acting as an agent of the plaintiff. There is no express or implied contract which is enforceable by the plaintiff.The plaintiffs counsel suggests that the claim is justifiable on the basis of legitimate expectations for appointment. There is no specific plea or evidence to support any such contention. Whatever expectations might have arisen from the letters of defendant 3, they could not have in law given rise to any right enforceable by specific performance | 0 | 2,572 | 281 | ### 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:
of service in terms of or pursuant to an unknown scheme. Subject to certain well defined categories of exceptions, the law does not permit, and the Specific Relief Act does not contemplate, the enforcement of a contract of a personal nature by a decree for specific performance. The facts of this case do not fall within the exceptions. Assuming that the facts alleged by the plaintiff to be true - as stated earlier, there is no evidence whatever to support them - the plaintiff is not entitled to any relief other than damages in the event of his being in a position to prove that he has been damnified by reason of the defendants failure to carry out the obligations arising under what he calls a contract 8. In Halsburys Laws of England (4th edn. Volume 44, at para 407) it is stated "407. Contracts for personal work or services. - A judgment for specific performance of a contract for personal work or services is not pronounced, either at the suit of the employer or the employee. The court does not seek to compel persons against their will to maintain continuous personal and confidential relations. However, this rule is not absolute and without exception. It has been held that an employer may be restrained from dismissing an employee in breach of contract if there is no loss of confidence between employer and employee or if (at least in a contract of employment to carry out a public duty) the employee has been dismissed in a manner which does not comply with statutory or contractual regulations governing dismissal. No court may, whether by way of an order for specific performance of a contract of employment or an injunction restraining a breach or threatened breach of such contract, compel an employee to do any work or attend at any place for the doing of any workThis principle applies not merely to contracts of employment, but to all contracts which involve the rendering of continuous services by one person to another, such as a contract to work a railway line ..." 9. As stated by this Court in Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain ( 1976 (2) SCC 58 : 1976 SCC(L&S) 176) : (SCC p. 71, para 18) "... a contract of personal service cannot ordinarily be specifically enforced and a court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognised exceptions - (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of statute." * 10. A contract of employment cannot ordinarily be enforced by or against an employer. The remedy is to sue for damages. (See Section 14 read with Section 41 of the Specific Relief Act; see Indian Contract and Specific Relief Acts by Pollock and Mulla, 10th edn., page 983). The grant of specific performance is purely discretionary and must be refused when not warranted by the ends of justice. Such relief can be granted only on sound legal principles. In the absence of any statutory requirement, courts do not ordinarily force an employer to recruit or retain in service an employee not required by the employer. There are, of course, certain exceptions to this rule, such as in the case of a public servant dismissed from service in contravention of Article 311 of the Constitution; reinstatement of a dismissed worker under the Industrial Law; a statutory body acting in breach of statutory obligations, and the like (S.R. Tiwari v. District Board, Agra 1964 AIR(SC) 1680 : 1964 (3) SCR 55 : 1964 (1) LLJ 1 ); Executive Committee of U.P. State Warehousing Corporation v. C.K. Tyagi ( 1969 (2) SCC 838 : 1970 (2) SCR 250 ); Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain ( 1976 (2) SCC 58 : 1976 SCC(L&S) 176); see Halsburys Laws of England, 4th edn., Volume 44, paragraphs 405 to 420) 11. On the facts of this case, the High Court was clearly wrong in issuing a mandatory injunction to appoint the plaintiff. Even if there was a contract in terms of which the plaintiff was entitled to seek relief, the only relief which was available in law was damages and not specific performance. Breach of contract must ordinarily sound in damages, and particularly so in the case of personal contracts. Assuming that a contractual relationship arose consequent upon the letters addressed by defendant 3 to defendant 1, the plaintiff was a total stranger to any such relationship, for, on the facts of this case, no relationship of a fiduciary character existed between the plaintiff and defendant 3 or other defendants. Neither on principles of law or equity nor under any statute did the plaintiff acquire an enforceable right by reason of the letters exchanged between defendants 1 and 3. The plaintiff had no privity of any kind to their relationship. No collateral contract to which the plaintiff was a party did arise on the facts of this case. At no time was defendant 3 acting as an agent of the plaintiff. There is no express or implied contract which is enforceable by the plaintiff. (See Halsburys Laws of England, 4th edn., Volume 9, paragraphs 334 to 342) 12. The plaintiffs counsel suggests that the claim is justifiable on the basis of legitimate expectations for appointment. There is no specific plea or evidence to support any such contention. Whatever expectations might have arisen from the letters of defendant 3, they could not have in law given rise to any right enforceable by specific performance
### Response:
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11. On the facts of this case, the High Court was clearly wrong in issuing a mandatory injunction to appoint the plaintiff. Even if there was a contract in terms of which the plaintiff was entitled to seek relief, the only relief which was available in law was damages and not specific performance. Breach of contract must ordinarily sound in damages, and particularly so in the case of personal contracts. Assuming that a contractual relationship arose consequent upon the letters addressed by defendant 3 to defendant 1, the plaintiff was a total stranger to any such relationship, for, on the facts of this case, no relationship of a fiduciary character existed between the plaintiff and defendant 3 or other defendants. Neither on principles of law or equity nor under any statute did the plaintiff acquire an enforceable right by reason of the letters exchanged between defendants 1 and 3. The plaintiff had no privity of any kind to their relationship. No collateral contract to which the plaintiff was a party did arise on the facts of this case. At no time was defendant 3 acting as an agent of the plaintiff. There is no express or implied contract which is enforceable by the plaintiff.The plaintiffs counsel suggests that the claim is justifiable on the basis of legitimate expectations for appointment. There is no specific plea or evidence to support any such contention. Whatever expectations might have arisen from the letters of defendant 3, they could not have in law given rise to any right enforceable by specific performance
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Purnendu Shekharmal Jain Vs. M/S. Acg Associated Capsules P Limited | by the defendant do not indicate substantial defence or that defence intended to be put up is frivolous or vexatious. Where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, no leave to defend the suit can be granted unless the admitted amount is deposited by him in court. Inasmuch as Order 37 does not speak of the procedure when leave to defend the suit is granted, the procedure applicable to suits instituted in the ordinary manner, will apply.11. It is important to note here that the power under Rule 4 of Order 37 is not confined to setting aside the ex parte decree, it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We may point out that as the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the court to grant leave to the defendant to appear to summons and defend the suit if the court considers it reasonable so to do, on such terms as the court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified reliefs may be granted by the court, all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. That is why where an application under Rule 4 of Order 37 is filed to set aside a decree either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed period, the court is empowered to grant leave to the defendant to appear to the summons and to defend the suit in the same application. It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is different from Rule 13 of Order 9.12. Now adverting to the facts of this case, though the appellant has shown sufficient cause for his absence on the date of passing ex parte decree, he failed to disclose facts which would entitle him to defend the case. The respondent was right in his submission that in the application under Rule 4 of Order 37, the appellant did not say a word about any amount being in deposit with the respondent or that the suit was not maintainable under Order 37. From a perusal of the order under challenge, it appears to us that the High Court was right in accepting existence of special circumstances justifying his not seeking leave of the court to defend, but in declining to grant relief since he had mentioned no circumstances justifying any defence.13. As clearly held by the Supreme Court, it is not enough to show the special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, the facts which would entitle him to leave to defend the suit. In that respect, Rule 4 of Order XXXVII is different from Order IX Rule 13. In other words, not only must the Defendant show that there was good cause in not appearing in answer to the writ of summons, but that he has at-least prima facie material which would entitle him to leave to defend the suit filed under the provisions of Order XXXVII.14. In the facts of the present case we have found that service was properly effected. However, even if we were to assume that there was some irregularity in effecting service, it would not carry the case of the Defendant any further. On a careful perusal of the affidavit in support of the Notice of Motion filed by the Defendant, there is not a word that is mentioned that refers to the merits of the matter. The only point raised in the affidavit in support is that M/s Ankur Drugs and Pharma Limited (the said Company) was before the BIFR and therefore a stay would operate by virtue of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. To our mind, firstly, this can never be a defence touching the merits of the matter. On the basis of this, the Defendant cannot say that he is entitled for leave to defend the suit. At the highest what he can contend is that only once the company comes out of BIFR, or until the Plaintiff obtains permission from the BIFR to proceed with the suit, the same has to be stayed. It does not mean that he would be entitled to leave to defend the suit. Even otherwise, in the facts of the present case, we find that admittedly when the ex-parte decree was passed, the said company (M/s Ankur Drugs and Pharma Limited) was not before the BIFR. It approached the BIFR only thereafter. Therefore, there was no impediment in this Court passing the decree on the date that it did. Apart from this, there is absolutely no defence raised on merits in the affidavit in support. This being the case and going by the ratio as laid down by the Supreme Court in the case of Rajni Kumar v/s Suresh Kumar Malhotra (2003) 5 SCC 315 ), we have no hesitation in holding that the learned Single Judge was fully justified in dismissing the Notice of Motion filed by the Defendant for setting aside the ex-parte decree. There were no special circumstances (as required under Order XXXVII Rule 4) even pleaded in the affidavit in support for the learned Judge to exercise his discretion and set aside the ex-parte decree. | 0[ds]9. Looking to the report of the Bailiff as well as thefiled by the Plaintiff in the Notice of Motion, what becomes quite apparent is that the refusal of the service of the writ of summons was actually by the husband who instructed his wife not to accept service. Once this is the factual position emanating from the record before us, then, we are not required to decide any larger or wider controversy, whether the provisions of Order V Rule 15 would apply or whether service would have to be effected as per the Bombay amendment. What is important to note is that Mr. Godbole fairly did not dispute the contents of the report of the Bailiff. What we must also note is that the Bombay High Court (Original Side) Rules, 1980 also provide for procedure for service of writ of summons.Mode of service ofWrit of Summons shall be served within the local limits of the Ordinary Original Civil Jurisdiction of the High Court by personal service or, if the plaintiff so desires, by registered postfor acknowledgment. Where the Writ of Summons is to be served at a place situate beyond the said limits, it may be served by registered postfor acknowledgment. An acknowledgment purporting to be signed by the defendant or an endorsement by a postal servant that the defendant refused service shall be deemed to be prima facie proof of service. In all other cases, the Court shall hold such inquiry as it thinks fit and either declare the summons to have been duly served or order such further service as may in its opinion be necessary.As the said provision clearly indicates, after the decree is passed by the Court, it may under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the Defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit. The words special circumstances have some importance. Unlike Order IX Rule 13 which talks about sufficient cause being shown to set aside andecree, the words used under Order XXXVII Rule 4 are special circumstances. These words (special circumstances) were considered by the Supreme Court in the case of Rajni Kumar v/s Suresh Kumar Malhotra (2003) 5 SCC 315 )wherein the Supreme Court heldA careful reading of Rule 4 shows that it empowers, under special circumstances, the court which passed an ex parte decree under Order 37 to set aside the decree and grant one or both of the following reliefs, if it seems reasonable to the court so to do and on such terms as the court thinks fit:(i) to stay or set aside execution, and(ii) to give leave to the defendant (a) to appear to the summons, and (b) to defend the suit.9. The expression special circumstances is not defined in the Civil Procedure Code nor is it capable of any precise definition by the court because problems of human beings are so varied and complex. In its ordinary dictionary meaning it connotes something exceptional in character, extraordinary, significant, uncommon. It is an antonym of common, ordinary and general. It is neither practicable nor advisable to enumerate such circumstances.of summons will undoubtedly be a special circumstance. In an application under Order 37 Rule 4, the court has to determine the question, on the facts of each case, as to whether circumstances pleaded are so unusual or extraordinary as to justify putting the clock back by setting aside the decree; to grant further relief in regard tomatters, namely, staying or setting aside the execution and also in regard tomatters viz. to give leave to the defendant to appear to the summons and to defend the suit.10. In considering an application to set aside ex parte decree, it is necessary to bear in mind the distinction between suits instituted in the ordinary manner and suits filed under Order 37 CPC. Rule 7 of Order 37 says that except as provided thereunder the procedure in suits under Order 37 shall be the same as the procedure in suits instituted in the ordinary manner. Rule 4 of Order 37 specifically provides for setting aside decree, therefore, provisions of Rule 13 of Order 9 will not apply to a suit filed under Order 37. In a suit filed in the ordinary manner a defendant has the right to contest the suit as a matter of course. Nonetheless, he may be declared ex parte if he does not appear in response to summons, or after entering appearance before framing issues; or during or after trial. Though addressing arguments is part of trial, one can loosely say that a defendant who remains absent at the stage of argument, is declared ex parte after the trial. In an application under Order 9 Rule 11, if a defendant is set ex parte and that order is set aside, he would be entitled to participate in the proceedings from the stage he was set ex parte. But an application under Order 9 Rule 13 could be filed on any of the grounds mentioned thereunder only after a decree is passed ex parte against the defendant. If the court is satisfied that (1) summons was not duly served, or (2) he was prevented by sufficient cause from appearing when the suit was called for hearing, it has to make an order setting aside the decree against him on such terms as to cost or payment into court or otherwise as it thinks fit and thereafter on the day fixed for hearing by court, the suit would proceed as if no ex parte decree had been passed. But in a suit under Order 37, the procedure for appearance of the defendant is governed by provisions of Rule 3 thereof. A defendant is not entitled to defend the suit unless he enters appearance within ten days of service of summons either in person or by a pleader and files in court an address for service of notices on him. In default of his entering an appearance, the plaintiff becomes entitled to a decree for any sum not exceeding the sum mentioned in the summons together with interest at the rate specified, if any, up to the date of the decree together with costs. The plaintiff will also be entitled to judgment in terms of(6) of Rule 3. If the defendant enters an appearance, the plaintiff is required to serve on the defendant a summons for judgment in the prescribed form. Within ten days from the service of such summons for judgment, the defendant may seek leave of the court to defend the suit, which will be granted on disclosing such facts as may be deemed sufficient to entitle him to defend and such leave may be granted to him either unconditionally or on such terms as the court may deem fit. Normally the court will not refuse leave unless the court is satisfied that facts disclosed by the defendant do not indicate substantial defence or that defence intended to be put up is frivolous or vexatious. Where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, no leave to defend the suit can be granted unless the admitted amount is deposited by him in court. Inasmuch as Order 37 does not speak of the procedure when leave to defend the suit is granted, the procedure applicable to suits instituted in the ordinary manner, will apply.11. It is important to note here that the power under Rule 4 of Order 37 is not confined to setting aside the ex parte decree, it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We may point out that as the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the court to grant leave to the defendant to appear to summons and defend the suit if the court considers it reasonable so to do, on such terms as the court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified reliefs may be granted by the court, all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. That is why where an application under Rule 4 of Order 37 is filed to set aside a decree either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed period, the court is empowered to grant leave to the defendant to appear to the summons and to defend the suit in the same application. It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is different from Rule 13 of Order 9.12. Now adverting to the facts of this case, though the appellant has shown sufficient cause for his absence on the date of passing ex parte decree, he failed to disclose facts which would entitle him to defend the case. The respondent was right in his submission that in the application under Rule 4 of Order 37, the appellant did not say a word about any amount being in deposit with the respondent or that the suit was not maintainable under Order 37. From a perusal of the order under challenge, it appears to us that the High Court was right in accepting existence of special circumstances justifying his not seeking leave of the court to defend, but in declining to grant relief since he had mentioned no circumstances justifying any defence.13. As clearly held by the Supreme Court, it is not enough to show the special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, the facts which would entitle him to leave to defend the suit. In that respect, Rule 4 of Order XXXVII is different from Order IX Rule 13. In other words, not only must the Defendant show that there was good cause in not appearing in answer to the writ of summons, but that he hasprima facie material which would entitle him to leave to defend the suit filed under the provisions of Order XXXVII.14. In the facts of the present case we have found that service was properly effected. However, even if we were to assume that there was some irregularity in effecting service, it would not carry the case of the Defendant any further. On a careful perusal of the affidavit in support of the Notice of Motion filed by the Defendant, there is not a word that is mentioned that refers to the merits of the matter. The only point raised in the affidavit in support is that M/s Ankur Drugs and Pharma Limited (the said Company) was before the BIFR and therefore a stay would operate by virtue of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. To our mind, firstly, this can never be a defence touching the merits of the matter. On the basis of this, the Defendant cannot say that he is entitled for leave to defend the suit. At the highest what he can contend is that only once the company comes out of BIFR, or until the Plaintiff obtains permission from the BIFR to proceed with the suit, the same has to be stayed. It does not mean that he would be entitled to leave to defend the suit. Even otherwise, in the facts of the present case, we find that admittedly when thedecree was passed, the said company (M/s Ankur Drugs and Pharma Limited) was not before the BIFR. It approached the BIFR only thereafter. Therefore, there was no impediment in this Court passing the decree on the date that it did. Apart from this, there is absolutely no defence raised on merits in the affidavit in support. This being the case and going by the ratio as laid down by the Supreme Court in the case of Rajni Kumar v/s Suresh Kumar Malhotra (2003) 5 SCC 315 ), we have no hesitation in holding that the learned Single Judge was fully justified in dismissing the Notice of Motion filed by the Defendant for setting aside thedecree. There were no special circumstances (as required under Order XXXVII Rule 4) even pleaded in the affidavit in support for the learned Judge to exercise his discretion and set aside the | 0 | 4,200 | 2,356 | ### Instruction:
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by the defendant do not indicate substantial defence or that defence intended to be put up is frivolous or vexatious. Where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, no leave to defend the suit can be granted unless the admitted amount is deposited by him in court. Inasmuch as Order 37 does not speak of the procedure when leave to defend the suit is granted, the procedure applicable to suits instituted in the ordinary manner, will apply.11. It is important to note here that the power under Rule 4 of Order 37 is not confined to setting aside the ex parte decree, it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We may point out that as the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the court to grant leave to the defendant to appear to summons and defend the suit if the court considers it reasonable so to do, on such terms as the court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified reliefs may be granted by the court, all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. That is why where an application under Rule 4 of Order 37 is filed to set aside a decree either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed period, the court is empowered to grant leave to the defendant to appear to the summons and to defend the suit in the same application. It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is different from Rule 13 of Order 9.12. Now adverting to the facts of this case, though the appellant has shown sufficient cause for his absence on the date of passing ex parte decree, he failed to disclose facts which would entitle him to defend the case. The respondent was right in his submission that in the application under Rule 4 of Order 37, the appellant did not say a word about any amount being in deposit with the respondent or that the suit was not maintainable under Order 37. From a perusal of the order under challenge, it appears to us that the High Court was right in accepting existence of special circumstances justifying his not seeking leave of the court to defend, but in declining to grant relief since he had mentioned no circumstances justifying any defence.13. As clearly held by the Supreme Court, it is not enough to show the special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, the facts which would entitle him to leave to defend the suit. In that respect, Rule 4 of Order XXXVII is different from Order IX Rule 13. In other words, not only must the Defendant show that there was good cause in not appearing in answer to the writ of summons, but that he has at-least prima facie material which would entitle him to leave to defend the suit filed under the provisions of Order XXXVII.14. In the facts of the present case we have found that service was properly effected. However, even if we were to assume that there was some irregularity in effecting service, it would not carry the case of the Defendant any further. On a careful perusal of the affidavit in support of the Notice of Motion filed by the Defendant, there is not a word that is mentioned that refers to the merits of the matter. The only point raised in the affidavit in support is that M/s Ankur Drugs and Pharma Limited (the said Company) was before the BIFR and therefore a stay would operate by virtue of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. To our mind, firstly, this can never be a defence touching the merits of the matter. On the basis of this, the Defendant cannot say that he is entitled for leave to defend the suit. At the highest what he can contend is that only once the company comes out of BIFR, or until the Plaintiff obtains permission from the BIFR to proceed with the suit, the same has to be stayed. It does not mean that he would be entitled to leave to defend the suit. Even otherwise, in the facts of the present case, we find that admittedly when the ex-parte decree was passed, the said company (M/s Ankur Drugs and Pharma Limited) was not before the BIFR. It approached the BIFR only thereafter. Therefore, there was no impediment in this Court passing the decree on the date that it did. Apart from this, there is absolutely no defence raised on merits in the affidavit in support. This being the case and going by the ratio as laid down by the Supreme Court in the case of Rajni Kumar v/s Suresh Kumar Malhotra (2003) 5 SCC 315 ), we have no hesitation in holding that the learned Single Judge was fully justified in dismissing the Notice of Motion filed by the Defendant for setting aside the ex-parte decree. There were no special circumstances (as required under Order XXXVII Rule 4) even pleaded in the affidavit in support for the learned Judge to exercise his discretion and set aside the ex-parte decree.
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the court is satisfied that facts disclosed by the defendant do not indicate substantial defence or that defence intended to be put up is frivolous or vexatious. Where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, no leave to defend the suit can be granted unless the admitted amount is deposited by him in court. Inasmuch as Order 37 does not speak of the procedure when leave to defend the suit is granted, the procedure applicable to suits instituted in the ordinary manner, will apply.11. It is important to note here that the power under Rule 4 of Order 37 is not confined to setting aside the ex parte decree, it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We may point out that as the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the court to grant leave to the defendant to appear to summons and defend the suit if the court considers it reasonable so to do, on such terms as the court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified reliefs may be granted by the court, all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. That is why where an application under Rule 4 of Order 37 is filed to set aside a decree either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed period, the court is empowered to grant leave to the defendant to appear to the summons and to defend the suit in the same application. It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is different from Rule 13 of Order 9.12. Now adverting to the facts of this case, though the appellant has shown sufficient cause for his absence on the date of passing ex parte decree, he failed to disclose facts which would entitle him to defend the case. The respondent was right in his submission that in the application under Rule 4 of Order 37, the appellant did not say a word about any amount being in deposit with the respondent or that the suit was not maintainable under Order 37. From a perusal of the order under challenge, it appears to us that the High Court was right in accepting existence of special circumstances justifying his not seeking leave of the court to defend, but in declining to grant relief since he had mentioned no circumstances justifying any defence.13. As clearly held by the Supreme Court, it is not enough to show the special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, the facts which would entitle him to leave to defend the suit. In that respect, Rule 4 of Order XXXVII is different from Order IX Rule 13. In other words, not only must the Defendant show that there was good cause in not appearing in answer to the writ of summons, but that he hasprima facie material which would entitle him to leave to defend the suit filed under the provisions of Order XXXVII.14. In the facts of the present case we have found that service was properly effected. However, even if we were to assume that there was some irregularity in effecting service, it would not carry the case of the Defendant any further. On a careful perusal of the affidavit in support of the Notice of Motion filed by the Defendant, there is not a word that is mentioned that refers to the merits of the matter. The only point raised in the affidavit in support is that M/s Ankur Drugs and Pharma Limited (the said Company) was before the BIFR and therefore a stay would operate by virtue of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. To our mind, firstly, this can never be a defence touching the merits of the matter. On the basis of this, the Defendant cannot say that he is entitled for leave to defend the suit. At the highest what he can contend is that only once the company comes out of BIFR, or until the Plaintiff obtains permission from the BIFR to proceed with the suit, the same has to be stayed. It does not mean that he would be entitled to leave to defend the suit. Even otherwise, in the facts of the present case, we find that admittedly when thedecree was passed, the said company (M/s Ankur Drugs and Pharma Limited) was not before the BIFR. It approached the BIFR only thereafter. Therefore, there was no impediment in this Court passing the decree on the date that it did. Apart from this, there is absolutely no defence raised on merits in the affidavit in support. This being the case and going by the ratio as laid down by the Supreme Court in the case of Rajni Kumar v/s Suresh Kumar Malhotra (2003) 5 SCC 315 ), we have no hesitation in holding that the learned Single Judge was fully justified in dismissing the Notice of Motion filed by the Defendant for setting aside thedecree. There were no special circumstances (as required under Order XXXVII Rule 4) even pleaded in the affidavit in support for the learned Judge to exercise his discretion and set aside the
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Kanai Lal Sur Vs. Paramnidhi Sadhukhan | by a Court of competent jurisdiction and to insist upon its execution. Similarly the proceedings contemplated by S. 5, sub-s. (1) cannot, in our opinion be said to include execution proceedings of this type. Section 5, sub-s. (1) deals with cases where the landlord initiates original proceedings for ejecting his thika tenant. This sub-section refers to a landlord wishing to eject a thika tenant on one or more of the grounds specified in S.3.Now this description is wholly inapplicable to a Landlord who holds a decree for ejectment in his favour. That is why we feel no hesitation in coming to the conclusion that landlords who have obtained decrees of ejectment against their thika tenants cannot be required to apply under the provisions of S.5, sub-s. (1) of the Act. That is one aspect, of the matter. The other provisions of the said sub-section also point to the Same conclusion.When an application for ejectment is made under S. 5, sub-s. (1), notice is ordered to be issued to the thika tenant and enquiry follows in the light of the provisions of S.3. It is only if the Controller is satisfied that one or more of the grounds recognized by S.3 is proved by the landlord that an order for ejectment would be passed by him and this order would be followed by a direction in consequence of which the landlord would be put in possession of the promises.Section 5, sub-s. (1) thus provides for a self-contained procedure for dealing with applications for ejectment made by a landlord against his thika tenant before the Controller. 8. Mr. Chatterjee, however, suggests that the deletion of the words "subject to the provisions of S. 28" which originally occurred in S. 5 indicates that the Controller has been given jurisdiction not only to entertain original applications for ejectment made by the landlords but also to deal with decrees already passed in their favour. Whether or not the use of the deleted words in the original S. 5(1) served any useful purpose and what exactly was their denotation are matters on which it is unnecessary to pronounce a judgment in the present case. It is clear that since S. 28 along with S. 29 has been deleted from the Act by the subsequent amending Act VI of 1953, any reference to S.28 in S. 5 (1) would have been entirely out of place.But the deletion of the material words does not enlarge the jurisdiction of the Controller to reopen disputes between the landlords and their thika tenants when in respect of such disputes decrees have already been passed by Courts of competent jurisdiction in favour of landlords. All the relevant provisions of S. 5, sub-ss. (1) are absolutely inapplicable to cases of such decrees and so we are unable to accept the argument that even where a decree has been passed in favour of the landlord a claim for the execution of the decree would have to be entertained and considered by the Controller under S. 5; sub-s. (1). 9. Then it is urged that it would be unreasonable to hold that a certain class of thika tenants was precluded from obtaining the benefit of the Act merely because decrees for ejectment were passed before the Act came into force; and it is emphasised that the scheme of the original Act as evidenced by Ss. 5, 28, and 29 clearly was to afford protection to all thika tenants even where decrees for ejectment had been passed against them. It must be conceded that under the original Act, S. 28 purported to give protection to judgment-debtors and required that the decrees passed against thika tenants should be examined by the Courts that passed the decrees in the light of the provisions of the Thika Tenancy Act. But, later on, it appears to have been though prudent to limit the protection to such judgment-debtors in the manner contemplated by S. 5, sub-s. (2) of the amending Ordinance of 1952. Such judgment-debtors were allowed liberty to apply for setting aside the decrees passed against them within three months after the commencement of the said Ordinance and such applications were required to be dealt with according to law even after the Ordinance ceased to be operative. As we have already pointed out, the decree with which we are concerned in the present appeal falls within the purview of the provision of S. 5, sub-s. (2) of the Ordinance. If the judgment-debtor did not avail himself of the right conferred on him by this provision, he cannot now seek to rectify the omission by relying on the provisions of S. 5, sub-s. (1) as amended. It may be unfortunate that owing to the steps that he was taking in several proceedings adapted by him in the present litigation he was probably not advised to make a proper application under S. 5, sub-s. (2) of the Ordinance; but that is the only protection that he and judgment-debtors of his class were entitled to after the amending Ordinance of 1952 came into force. It would, therefore, not be reasonable to complain that no protection whatever has been given to this class of thika tenants. It may be that the extent of the protection now afforded to this class may not be as wide as it originally was under S. 28 of Act II of 1949 but the deletion of S. 28 clearly indicates that the Legislature wanted to revise its policy in this matter. The position, therefore, is that the conclusion which follows from a reasonable construction of S. 5, sub-s. (1) is corroborated by the deletion of S. 28 from the Act and by the provision of S. 5, sub-S. (2) of the amending Ordinance of 1952 and S. 9 of the amending Act VI of 1953. We must, accordingly, hold that the Calcutta High Court was right in rejecting the appellants argument that civil Courts had no jurisdiction to entertain the execution petition filed by the respondent against the appellant. | 0[ds]It is clear that since S. 28 along with S. 29 has been deleted from the Act by the subsequent amending Act VI of 1953, any reference to S.28 in S. 5 (1) would have been entirely out of place.But the deletion of the material words does not enlarge the jurisdiction of the Controller to reopen disputes between the landlords and their thika tenants when in respect of such disputes decrees have already been passed by Courts of competent jurisdiction in favour of landlordsIt would, therefore, not be reasonable to complain that no protection whatever has been given to this class of thika tenants. It may be that the extent of the protection now afforded to this class may not be as wide as it originally was under S. 28 of Act II of 1949 but the deletion of S. 28 clearly indicates that the Legislature wanted to revise its policy in this matter. The position, therefore, is that the conclusion which follows from a reasonable construction of S. 5, sub-s. (1) is corroborated by the deletion of S. 28 from the Act and by the provision of S. 5, sub-S. (2) of the amending Ordinance of 1952 and S. 9 of the amending Act VI of 1953We must, accordingly, hold that the Calcutta High Court was right in rejecting the appellants argument that civil Courts had no jurisdiction to entertain the execution petition filed by the respondent against the appellant. | 0 | 4,337 | 263 | ### 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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by a Court of competent jurisdiction and to insist upon its execution. Similarly the proceedings contemplated by S. 5, sub-s. (1) cannot, in our opinion be said to include execution proceedings of this type. Section 5, sub-s. (1) deals with cases where the landlord initiates original proceedings for ejecting his thika tenant. This sub-section refers to a landlord wishing to eject a thika tenant on one or more of the grounds specified in S.3.Now this description is wholly inapplicable to a Landlord who holds a decree for ejectment in his favour. That is why we feel no hesitation in coming to the conclusion that landlords who have obtained decrees of ejectment against their thika tenants cannot be required to apply under the provisions of S.5, sub-s. (1) of the Act. That is one aspect, of the matter. The other provisions of the said sub-section also point to the Same conclusion.When an application for ejectment is made under S. 5, sub-s. (1), notice is ordered to be issued to the thika tenant and enquiry follows in the light of the provisions of S.3. It is only if the Controller is satisfied that one or more of the grounds recognized by S.3 is proved by the landlord that an order for ejectment would be passed by him and this order would be followed by a direction in consequence of which the landlord would be put in possession of the promises.Section 5, sub-s. (1) thus provides for a self-contained procedure for dealing with applications for ejectment made by a landlord against his thika tenant before the Controller. 8. Mr. Chatterjee, however, suggests that the deletion of the words "subject to the provisions of S. 28" which originally occurred in S. 5 indicates that the Controller has been given jurisdiction not only to entertain original applications for ejectment made by the landlords but also to deal with decrees already passed in their favour. Whether or not the use of the deleted words in the original S. 5(1) served any useful purpose and what exactly was their denotation are matters on which it is unnecessary to pronounce a judgment in the present case. It is clear that since S. 28 along with S. 29 has been deleted from the Act by the subsequent amending Act VI of 1953, any reference to S.28 in S. 5 (1) would have been entirely out of place.But the deletion of the material words does not enlarge the jurisdiction of the Controller to reopen disputes between the landlords and their thika tenants when in respect of such disputes decrees have already been passed by Courts of competent jurisdiction in favour of landlords. All the relevant provisions of S. 5, sub-ss. (1) are absolutely inapplicable to cases of such decrees and so we are unable to accept the argument that even where a decree has been passed in favour of the landlord a claim for the execution of the decree would have to be entertained and considered by the Controller under S. 5; sub-s. (1). 9. Then it is urged that it would be unreasonable to hold that a certain class of thika tenants was precluded from obtaining the benefit of the Act merely because decrees for ejectment were passed before the Act came into force; and it is emphasised that the scheme of the original Act as evidenced by Ss. 5, 28, and 29 clearly was to afford protection to all thika tenants even where decrees for ejectment had been passed against them. It must be conceded that under the original Act, S. 28 purported to give protection to judgment-debtors and required that the decrees passed against thika tenants should be examined by the Courts that passed the decrees in the light of the provisions of the Thika Tenancy Act. But, later on, it appears to have been though prudent to limit the protection to such judgment-debtors in the manner contemplated by S. 5, sub-s. (2) of the amending Ordinance of 1952. Such judgment-debtors were allowed liberty to apply for setting aside the decrees passed against them within three months after the commencement of the said Ordinance and such applications were required to be dealt with according to law even after the Ordinance ceased to be operative. As we have already pointed out, the decree with which we are concerned in the present appeal falls within the purview of the provision of S. 5, sub-s. (2) of the Ordinance. If the judgment-debtor did not avail himself of the right conferred on him by this provision, he cannot now seek to rectify the omission by relying on the provisions of S. 5, sub-s. (1) as amended. It may be unfortunate that owing to the steps that he was taking in several proceedings adapted by him in the present litigation he was probably not advised to make a proper application under S. 5, sub-s. (2) of the Ordinance; but that is the only protection that he and judgment-debtors of his class were entitled to after the amending Ordinance of 1952 came into force. It would, therefore, not be reasonable to complain that no protection whatever has been given to this class of thika tenants. It may be that the extent of the protection now afforded to this class may not be as wide as it originally was under S. 28 of Act II of 1949 but the deletion of S. 28 clearly indicates that the Legislature wanted to revise its policy in this matter. The position, therefore, is that the conclusion which follows from a reasonable construction of S. 5, sub-s. (1) is corroborated by the deletion of S. 28 from the Act and by the provision of S. 5, sub-S. (2) of the amending Ordinance of 1952 and S. 9 of the amending Act VI of 1953. We must, accordingly, hold that the Calcutta High Court was right in rejecting the appellants argument that civil Courts had no jurisdiction to entertain the execution petition filed by the respondent against the appellant.
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0
### Explanation:
It is clear that since S. 28 along with S. 29 has been deleted from the Act by the subsequent amending Act VI of 1953, any reference to S.28 in S. 5 (1) would have been entirely out of place.But the deletion of the material words does not enlarge the jurisdiction of the Controller to reopen disputes between the landlords and their thika tenants when in respect of such disputes decrees have already been passed by Courts of competent jurisdiction in favour of landlordsIt would, therefore, not be reasonable to complain that no protection whatever has been given to this class of thika tenants. It may be that the extent of the protection now afforded to this class may not be as wide as it originally was under S. 28 of Act II of 1949 but the deletion of S. 28 clearly indicates that the Legislature wanted to revise its policy in this matter. The position, therefore, is that the conclusion which follows from a reasonable construction of S. 5, sub-s. (1) is corroborated by the deletion of S. 28 from the Act and by the provision of S. 5, sub-S. (2) of the amending Ordinance of 1952 and S. 9 of the amending Act VI of 1953We must, accordingly, hold that the Calcutta High Court was right in rejecting the appellants argument that civil Courts had no jurisdiction to entertain the execution petition filed by the respondent against the appellant.
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New India Assurance Co.Ltd Vs. Priya Blue Industries Pvt. Ltd | of attempting to beach the vessel at the designated plot. It is under those circumstances the complainant contended that there was no justifiable reason or ground for repudiating the claim. 11. On behalf of the appellant insurance Company, it was merely contended that there was no deficiency of service on the part of the appellant insurance Company which was repelled by the National Commission. It was also contended on behalf of the appellant Insurance Company that there was no `total and/or constructive loss as defined under Sections 57 and 60 of the Marine Insurance Act, 1963 inasmuch as the insured has recovered more than Rs. 13.00 crores by sale of the vessel. The Commission having meticulously examined the rival contentions with regard to this particular point, found that there was actual total loss of the vessel to the complaint because the complainant could not bring the vessel to the destined point for its breaking. The Commission found that the vessel was brought for the sole purpose of `breaking and the complainant has lost its purpose as it could not bring it to the destined point because of the sea peril. It was impossible for the complainant to refloat the vessel for bringing it to the destined point for the purpose for which it was purchased. The National Commission also rejected the contention of the appellant insurance Company that the respondent complainant has committed utmost breach of the principles of good faith. It was the contention of the appellant insurance Company that the respondent complainant did not disclose at or before taking the insurance policy that:(a) one engine of the vessel (viz. starboard engine) was not working.(b) the Addendum no. 2 dated 3.6.97, which records that the starboard engine of the vessel was not working. This plea of the appellant insurance Company was resisted by the respondent mainly contending that the issue has been raised for the first time at the time of filing the written statement alleging non-disclosure of material facts. The National Commission, after a critical analysis of the material available on record, found that the contract is liable to be repudiated for non-observance of good faith or non-disclosure of the material facts. At all points of time, the contract was sought to be repudiated on the one and only ground that there was no total loss. In this connection, the National Commission examined the complete correspondence that has taken place between the parties prior to filing of the complaint and written statement before the National Commission and found that at no point of time the insurance company took any plea or stand that there was any suppression on the part of the complainant in not disclosing that one engine of the vessel was not functioning. The Commission referred to the evidence led by the appellant insurance Company in which it was specifically admitted that repudiation was only on the ground that the vessel had encountered neither total loss nor a constructive total loss. It is under those circumstances the Commission found that the issue has been raised by the insurance Company for the first time in the proceedings before it only as an afterthought. 12. The Commission also found that at the time of making insurance proposals, the respondent had given Memorandum of Agreement (MOA) along with two addendums and one addendum clearly stated that the vessel was with one engine, and it has come from Singapore to Alang Anchorage for its funeral voyage. The Commission found that there is no reason to disbelieve this version of the respondent. Neither the agent of the insurance Company nor the Development Officer stated that addendum No. 2 was not given to the insurance Company at the time of issuing the policy. The Commission also noticed that the vessel sailed from Singapore with one engine without any difficulty and in such view of the matter, the Commission found that it would be of no significance in the present case even if there is non-disclosure of fact that only one engine was working. 13. We do not wish to refer to other issues raised by the insurance Company before the Commission which were dealt with since the only question that was argued before us in this appeal relates to non-disclosure of the material facts. The learned counsel for the appellant submitted that the respondent complainant suppressed the material fact that one engine of the vessel was not working and therefore, not entitled to any relief. We do not find any merit whatsoever in the submission made by the learned counsel for the appellant. The material available on record which has been taken into consideration by the National Commission clearly demonstrates that the respondent complainant never made any representation that the vessel had two functional engines. On the other hand, addendum No. 2 to MOA expressly speaks about the fact that starboard engine was not working. The MOA that was forwarded included both the addendums and in fact it was one of the reasons for demolishing the vessel. At any rate, as observed by the National Commission, at no point of time the insurance Company took this plea to repudiate the contract. This plea was raised for the first time in the written statement filed in the National Commission as an afterthought. 14. The learned counsel for the appellant did not show any material available on record in support of her submission. Nor the counsel could point out any material or evidence which has a bearing on the issue that had escaped the attention of the Commission. Thus it is not a case of non-consideration of any evidence available on record by the Commission. The findings and conclusions drawn by the National Commission are based on proper appreciation and elaborate consideration of the entire material available on record. The Commission did not commit any error in appreciating the evidence available on record. The contention urged before us in this appeal is accordingly rejected. No other contention was raised. 15. For the same reasons, | 0[ds]The material available on record which has been taken into consideration by the National Commission clearly demonstrates that the respondent complainant never made any representation that the vessel had two functional engines. On the other hand, addendum No. 2 to MOA expressly speaks about the fact that starboard engine was not working. The MOA that was forwarded included both the addendums and in fact it was one of the reasons for demolishing the vessel. At any rate, as observed by the National Commission, at no point of time the insurance Company took this plea to repudiate the contract. This plea was raised for the first time in the written statement filed in the National Commission as an afterthought. | 0 | 2,496 | 131 | ### 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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of attempting to beach the vessel at the designated plot. It is under those circumstances the complainant contended that there was no justifiable reason or ground for repudiating the claim. 11. On behalf of the appellant insurance Company, it was merely contended that there was no deficiency of service on the part of the appellant insurance Company which was repelled by the National Commission. It was also contended on behalf of the appellant Insurance Company that there was no `total and/or constructive loss as defined under Sections 57 and 60 of the Marine Insurance Act, 1963 inasmuch as the insured has recovered more than Rs. 13.00 crores by sale of the vessel. The Commission having meticulously examined the rival contentions with regard to this particular point, found that there was actual total loss of the vessel to the complaint because the complainant could not bring the vessel to the destined point for its breaking. The Commission found that the vessel was brought for the sole purpose of `breaking and the complainant has lost its purpose as it could not bring it to the destined point because of the sea peril. It was impossible for the complainant to refloat the vessel for bringing it to the destined point for the purpose for which it was purchased. The National Commission also rejected the contention of the appellant insurance Company that the respondent complainant has committed utmost breach of the principles of good faith. It was the contention of the appellant insurance Company that the respondent complainant did not disclose at or before taking the insurance policy that:(a) one engine of the vessel (viz. starboard engine) was not working.(b) the Addendum no. 2 dated 3.6.97, which records that the starboard engine of the vessel was not working. This plea of the appellant insurance Company was resisted by the respondent mainly contending that the issue has been raised for the first time at the time of filing the written statement alleging non-disclosure of material facts. The National Commission, after a critical analysis of the material available on record, found that the contract is liable to be repudiated for non-observance of good faith or non-disclosure of the material facts. At all points of time, the contract was sought to be repudiated on the one and only ground that there was no total loss. In this connection, the National Commission examined the complete correspondence that has taken place between the parties prior to filing of the complaint and written statement before the National Commission and found that at no point of time the insurance company took any plea or stand that there was any suppression on the part of the complainant in not disclosing that one engine of the vessel was not functioning. The Commission referred to the evidence led by the appellant insurance Company in which it was specifically admitted that repudiation was only on the ground that the vessel had encountered neither total loss nor a constructive total loss. It is under those circumstances the Commission found that the issue has been raised by the insurance Company for the first time in the proceedings before it only as an afterthought. 12. The Commission also found that at the time of making insurance proposals, the respondent had given Memorandum of Agreement (MOA) along with two addendums and one addendum clearly stated that the vessel was with one engine, and it has come from Singapore to Alang Anchorage for its funeral voyage. The Commission found that there is no reason to disbelieve this version of the respondent. Neither the agent of the insurance Company nor the Development Officer stated that addendum No. 2 was not given to the insurance Company at the time of issuing the policy. The Commission also noticed that the vessel sailed from Singapore with one engine without any difficulty and in such view of the matter, the Commission found that it would be of no significance in the present case even if there is non-disclosure of fact that only one engine was working. 13. We do not wish to refer to other issues raised by the insurance Company before the Commission which were dealt with since the only question that was argued before us in this appeal relates to non-disclosure of the material facts. The learned counsel for the appellant submitted that the respondent complainant suppressed the material fact that one engine of the vessel was not working and therefore, not entitled to any relief. We do not find any merit whatsoever in the submission made by the learned counsel for the appellant. The material available on record which has been taken into consideration by the National Commission clearly demonstrates that the respondent complainant never made any representation that the vessel had two functional engines. On the other hand, addendum No. 2 to MOA expressly speaks about the fact that starboard engine was not working. The MOA that was forwarded included both the addendums and in fact it was one of the reasons for demolishing the vessel. At any rate, as observed by the National Commission, at no point of time the insurance Company took this plea to repudiate the contract. This plea was raised for the first time in the written statement filed in the National Commission as an afterthought. 14. The learned counsel for the appellant did not show any material available on record in support of her submission. Nor the counsel could point out any material or evidence which has a bearing on the issue that had escaped the attention of the Commission. Thus it is not a case of non-consideration of any evidence available on record by the Commission. The findings and conclusions drawn by the National Commission are based on proper appreciation and elaborate consideration of the entire material available on record. The Commission did not commit any error in appreciating the evidence available on record. The contention urged before us in this appeal is accordingly rejected. No other contention was raised. 15. For the same reasons,
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0
### Explanation:
The material available on record which has been taken into consideration by the National Commission clearly demonstrates that the respondent complainant never made any representation that the vessel had two functional engines. On the other hand, addendum No. 2 to MOA expressly speaks about the fact that starboard engine was not working. The MOA that was forwarded included both the addendums and in fact it was one of the reasons for demolishing the vessel. At any rate, as observed by the National Commission, at no point of time the insurance Company took this plea to repudiate the contract. This plea was raised for the first time in the written statement filed in the National Commission as an afterthought.
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Carona Ltd Vs. M/S. Parvathy Swaminathan & Sons | possession immediately thereafter from the tenant is affected. The provisions of Section 12 prevent a landlord from recovering possession of the property from a tenant even after a lawful termination of his tenancy, provided the tenant fulfils the conditions mentioned in Section 12. Section 12 does not take away the right of the landlord to recover possession of the premises but merely postpones the enforcement of this right of the landlord so long as the tenant fulfils the conditions laid down in that section. Having put this impediment in the enforcement of the right of possession of the landlord or in other words, having clothed the tenant with an immunity from dispossession, the Legislature proceeds in Section 13 to lay down those conditions on the fulfillment of which the landlord is entitled to recover possession of the premises from the tenant. Section 13, therefore, provides for those contingencies on proof of which the tenant loses the immunity from dispossession under Section 12. Some discussion took place on the question whether the tenant has a right of possession or whether he has merely an immunity from being dispossessed. Whether it be called an immunity from dispossession or whether it be called a personal right of possession, the fact remains that by Section 13, the Legislature has provided for dispossession of tenant, despite provisions of Section 12, if the Court is satisfied that any one of the grounds mentioned in Section 13 does exist. One of such grounds is the subletting of the premises or a part thereof by the tenant. In view of this scheme of the provisions in Sections 12 and 13 of the Act, it is necessary for us to construe the meaning of the words has sub-let keeping in mind that the verb sub-let is used in the present perfect tense. First, it must be a completed past action, that is the subletting must be completed. A subletting is complete as soon as the sub-tenant is put in possession of the premises given to him on sublease. Now, this completed act of subletting must have a result. What would be that result in the context of Sections 12 and 13 of the Act? The result of subletting would be removal of the impediment in the way of the landlord to recover possession of the premises. In other words, the result of subletting would be to take away that personal right of possession which the tenant enjoyed under the provisions of the Rent Act. Now, this result must be connected with the present moment. The present moment will be the moment when the suit is filed. How is this result connected with the filing of the suit? The answer is quite obvious. It is this removal of the impediment in the way of the landlords recovery of possession which induces him to go forthwith to the Court and file a suit for possession. Therefore, the words has sub-let mean that a sub-letting has taken place and as a result of that subletting the impediment in the way of the landlord to recover possession has been removed, thus, inducing him to go to Court and ask for recovery of possession. It is the result of the completed act, i.e. the removal of the impediment in his way, which permits the landlord to go to the Court and ask for a decree for possession. It is not necessary, therefore, that subletting must continue enough if the premises have been sub-let sometime after the coming into operation of the Act. The provisions of Section 15 of the Saurashtra Rent Control Act make subletting unlawful. Therefore, any subletting by the tenant after the Act came into operation immediately removes the impediment in the way of the landlord to recover possession and entitles him immediately to go to the Court and ask for recovery of possession. In order to convey the correct meaning of the words has sub-let it is not necessary to show that the subletting was in existence on the date of suit. It is enough that the subletting has taken place sometime after the Act came into operation; it does not matter that the subletting came to an end before the landlord gave notice or before the landlord filed a suit". (emphasis supplied) 44. In our opinion, the ratio laid down in the above cases applies to the present case as well. Admittedly, on the date the tenancy was terminated, the tenant (Public Limited Company) was having a paid up share capital of rupees more than one crore. Under clause (b) of Section 3(1) of the Act, therefore, the provisions of the Act were not applicable to the suit-premises. It is true that a resolution was passed by the Company to reduce the paid up share capital to less than rupees one crore, but the said resolution was never approved by BIFR. But even otherwise, once it is proved that the tenancy was legally terminated and the Act would not apply to such premises, a unilateral act of tenant would not take away the accrued right in favour of the landlord. Unless compelled, a Court of Law would not interpret a provision which would frustrate the legislative intent and primary object underlying such provision. We, therefore, see no infirmity in the conclusions arrived at by the courts below. EQUITABLE CONSIDERATIONS 45. The learned counsel for the respondent-landlord is also right in submitting that the appellant-tenant does not deserve equitable relief under Article 136 of the Constitution. The tenant has not paid rent/mesne profits since more than ten years. Even after approaching this Court, it had made part payment pursuant to interim order made in April, 2005. But nothing was paid/deposited thereafter even though two years have passed. These facts have not been disputed by the appellant. We are, therefore, of the view that even on that ground, the appellant-tenant cannot ask for discretionary and equitable relief and we are not inclined to grant such relief. 46. For the foregoing reasons, the | 0[ds]In our opinion, the ratio laid down in the above cases applies to the present case as well. Admittedly, on the date the tenancy was terminated, the tenant (Public Limited Company) was having a paid up share capital of rupees more than one crore. Under clause (b) of Section 3(1) of the Act, therefore, the provisions of the Act were not applicable to the suit-premises. It is true that a resolution was passed by the Company to reduce the paid up share capital to less than rupees one crore, but the said resolution was never approved by BIFR. But even otherwise, once it is proved that the tenancy was legally terminated and the Act would not apply to such premises, a unilateral act of tenant would not take away the accrued right in favour of the landlord. Unless compelled, a Court of Law would not interpret a provision which would frustrate the legislative intent and primary object underlying such provision. We, therefore, see no infirmity in the conclusions arrived at by the courts below. | 0 | 8,832 | 203 | ### 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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possession immediately thereafter from the tenant is affected. The provisions of Section 12 prevent a landlord from recovering possession of the property from a tenant even after a lawful termination of his tenancy, provided the tenant fulfils the conditions mentioned in Section 12. Section 12 does not take away the right of the landlord to recover possession of the premises but merely postpones the enforcement of this right of the landlord so long as the tenant fulfils the conditions laid down in that section. Having put this impediment in the enforcement of the right of possession of the landlord or in other words, having clothed the tenant with an immunity from dispossession, the Legislature proceeds in Section 13 to lay down those conditions on the fulfillment of which the landlord is entitled to recover possession of the premises from the tenant. Section 13, therefore, provides for those contingencies on proof of which the tenant loses the immunity from dispossession under Section 12. Some discussion took place on the question whether the tenant has a right of possession or whether he has merely an immunity from being dispossessed. Whether it be called an immunity from dispossession or whether it be called a personal right of possession, the fact remains that by Section 13, the Legislature has provided for dispossession of tenant, despite provisions of Section 12, if the Court is satisfied that any one of the grounds mentioned in Section 13 does exist. One of such grounds is the subletting of the premises or a part thereof by the tenant. In view of this scheme of the provisions in Sections 12 and 13 of the Act, it is necessary for us to construe the meaning of the words has sub-let keeping in mind that the verb sub-let is used in the present perfect tense. First, it must be a completed past action, that is the subletting must be completed. A subletting is complete as soon as the sub-tenant is put in possession of the premises given to him on sublease. Now, this completed act of subletting must have a result. What would be that result in the context of Sections 12 and 13 of the Act? The result of subletting would be removal of the impediment in the way of the landlord to recover possession of the premises. In other words, the result of subletting would be to take away that personal right of possession which the tenant enjoyed under the provisions of the Rent Act. Now, this result must be connected with the present moment. The present moment will be the moment when the suit is filed. How is this result connected with the filing of the suit? The answer is quite obvious. It is this removal of the impediment in the way of the landlords recovery of possession which induces him to go forthwith to the Court and file a suit for possession. Therefore, the words has sub-let mean that a sub-letting has taken place and as a result of that subletting the impediment in the way of the landlord to recover possession has been removed, thus, inducing him to go to Court and ask for recovery of possession. It is the result of the completed act, i.e. the removal of the impediment in his way, which permits the landlord to go to the Court and ask for a decree for possession. It is not necessary, therefore, that subletting must continue enough if the premises have been sub-let sometime after the coming into operation of the Act. The provisions of Section 15 of the Saurashtra Rent Control Act make subletting unlawful. Therefore, any subletting by the tenant after the Act came into operation immediately removes the impediment in the way of the landlord to recover possession and entitles him immediately to go to the Court and ask for recovery of possession. In order to convey the correct meaning of the words has sub-let it is not necessary to show that the subletting was in existence on the date of suit. It is enough that the subletting has taken place sometime after the Act came into operation; it does not matter that the subletting came to an end before the landlord gave notice or before the landlord filed a suit". (emphasis supplied) 44. In our opinion, the ratio laid down in the above cases applies to the present case as well. Admittedly, on the date the tenancy was terminated, the tenant (Public Limited Company) was having a paid up share capital of rupees more than one crore. Under clause (b) of Section 3(1) of the Act, therefore, the provisions of the Act were not applicable to the suit-premises. It is true that a resolution was passed by the Company to reduce the paid up share capital to less than rupees one crore, but the said resolution was never approved by BIFR. But even otherwise, once it is proved that the tenancy was legally terminated and the Act would not apply to such premises, a unilateral act of tenant would not take away the accrued right in favour of the landlord. Unless compelled, a Court of Law would not interpret a provision which would frustrate the legislative intent and primary object underlying such provision. We, therefore, see no infirmity in the conclusions arrived at by the courts below. EQUITABLE CONSIDERATIONS 45. The learned counsel for the respondent-landlord is also right in submitting that the appellant-tenant does not deserve equitable relief under Article 136 of the Constitution. The tenant has not paid rent/mesne profits since more than ten years. Even after approaching this Court, it had made part payment pursuant to interim order made in April, 2005. But nothing was paid/deposited thereafter even though two years have passed. These facts have not been disputed by the appellant. We are, therefore, of the view that even on that ground, the appellant-tenant cannot ask for discretionary and equitable relief and we are not inclined to grant such relief. 46. For the foregoing reasons, the
### Response:
0
### Explanation:
In our opinion, the ratio laid down in the above cases applies to the present case as well. Admittedly, on the date the tenancy was terminated, the tenant (Public Limited Company) was having a paid up share capital of rupees more than one crore. Under clause (b) of Section 3(1) of the Act, therefore, the provisions of the Act were not applicable to the suit-premises. It is true that a resolution was passed by the Company to reduce the paid up share capital to less than rupees one crore, but the said resolution was never approved by BIFR. But even otherwise, once it is proved that the tenancy was legally terminated and the Act would not apply to such premises, a unilateral act of tenant would not take away the accrued right in favour of the landlord. Unless compelled, a Court of Law would not interpret a provision which would frustrate the legislative intent and primary object underlying such provision. We, therefore, see no infirmity in the conclusions arrived at by the courts below.
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Northern Dooars Tea Co. Ltd Vs. Workmen of Demdima Tea Estate | to be paid to the respondents, we cannot altogether ignore their conduct at the relevant time. That is why we would like to modify the order passed by the Tribunal by directing that the respondents should be paid the 1/2 of their full wages for the period and that too, not from the 13th September to 6th October but from the 16th September to the 6th October. We are making this modification because the token strike lasted for three days and we do not think the respondents are entitled to their wages during these days. 15th September was a holiday.12. The next question which calls for our decision is about the dismissal of six workmen which was the other item of dispute referred for adjudication under the first reference. Proceedings were taken against these six workmen under Clause 13(c)(iii) of the Standing Orders, the charge against them being that they left the factory premises and caused wilful damage and loss to the companys goods. It appears that the appellant held an enquiry into these charges and as a result of this enquiry, dismissed the said six workmen. The enquiry, officer has not made a proper finding recording his conclusions at the end of the enquiry. He has drawn some notes in that behalf, but then cannot be treated as a finding recorded in the enquiry as such. That is why the Tribunal had to consider the merits of the dispute for itself. It has held that on the evidence adduced at the domestic enquiry, there was nothing to show that any wilful damage had been caused by the six workmen to the property of the appellant. The Tribunal has elaborately considered the work which was assigned to each one of these six workmen and has given satisfactory reasons for holding that the charge of causing wilful damage to the property of the appellant cannot possibly be sustained against any one of them. Besides, it has taken notice of the fact that the appellant was unable to give any reasonable or rational explanation why these six workmen were chosen out of a large number of strikers and proceeded against. If the charge had been framed against them under Cl. 14 (c) (12) of the Standing Order, it might perhaps have been a different matter. So, in the opinion of the Tribunal the action of the appellant in dismissing these six workmen was mala fide inasmuch as it was based on irrational and unreasonable discrimination. In our opinion, this finding cannot be successfully challenged by the appellant in the present appeal. In view of the infirmity in the domestic enquiry resulting from the fact that a proper finding had not been recorded, coupled particularly with the conclusion of the Tribunal that no evidence whatever was led before the domestic enquiry to show wilful damage or loss caused by the six workmen, we do not see how it is possible to contend that the conclusion of the Tribunal about the invalidity of the order of dismissal is not right. Therefore, we must hold that the Tribunal was justified in directing the reinstatement of these six workmen. In this connection, we ought to add that evidence shows that the ownership in respect of the Demdima Tea Estate had charged hands in 1960 and so, the order of reinstatement will be enforced against the transferee of the said Tea Estate who has become the owner of the property pending the present dispute.13. That takes us to the dispute with which we are concerned in Appeal No 754 of 62. As we have already seen this dispute relates to the laying off the workmen by the appellant from October 7, 1957. The appellant has filed a list Ex. 1 showing the details of this laying off and how it was lifted and giving the number of workmen with respect to whom the lay-off operated and the period for which it so operated. In other words, the facts in regard to the 1ay-off are not in dispute. The Tribunal has ordered that the lay-off compensation should be paid by the appellant to its workmen under the provisions of S. 25C of the Industrial Disputes Act. Mr. Sastri attempted to raise two contentions against this award. His first argument was that the appellant was not liable to pay any lay-off compensation because this lay-off was the result of a settlement between the parties reached on October 4, 1957 We have already noticed how this settlement brought the closure or lock- out of the garden to an end One of the terms of this settlement was that the management will reopen the garden with effect from October 7, 1957 and provide immediate employment to as many workers as possible and will lay-off the remainder of the labour force in accordance with 1aw. The argument is that since this lay-off was agreed to by the parties, no compensation can be claimed by the respondents. In our opinion, there is no substance in this argument. It is true that the parties contemplated and agreed that some workmen may have to be laid-off and so, the agreement postulated that no dispute would be raised by the workmen in regard to such a lay-off. But the parties also agreed expressly that the lay-off will be in accordance with law and that necessarily involves the payment of compensation as provided by S. 25C.14. Then Mr Sastri wanted to suggest that no compensation could be claimed for the lay-off in question under S 25E (iii). Under this provision no compensation is payable if laying-off in question is due to a strike or showing down of production on the part of workmen in another part of the establishment It is difficult to see how on the materia1 available on the record, this provision can be invoked. It is not the appellants case that the strike in one part of its concern led to the lay-off in another part, and so, S. 25E (iii) is wholly inapplicable. | 0[ds]There is no doubt some force in this contention, and in dealing with the question as to whether the Tribunal was right in holding that thewas unjustified, we will no doubt bear this fact inconsidering the questions as to whether the strike of the 12th September was justified or not, it is relevant to bear in mind the reasons why the respondents decided to go on a token strike for 3 days. It appears that the action which the appellant proposed to take against six workmen and the haste with which the enquiry against them was conducted, created dissatisfaction in the minds of the respondents, and so, at a meeting held on August 30, 1957, the General Body of the Demdima Primary Umt of West Bengal Cha Shramik Union passed a resolution that they would go on a token strike from 12th to 14th September 1957, unless the appellant refrained from dismissing the said six workmen. Two things are thus clear, that the strike was going to be only in the form of a token strike and that it wasto last for only three days. It is true that a token strike need not have extended for such a long period as 3 days and the criticism made by Mr. Sastri against this resolution on that account is well founded. It is also true that if the respondents felt aggrieved by the action which the appellant proposed to take against the six workmen, a token strike was not the only remedy open to them In fact, they should have adopted the ordinary remedy of making a protest and taking the proceedings before a conciliation officer. Therefore, the token strike which the respondents adopted may be regarded as inappropriate. Even so, the grievance felt by the respondents which led to the strike cannot be dismissed as wholly unsubstantial or unjustified.9. In regard to this strike, there is, however another important fact which cannot be ignored. The Tribunal has found that the Union of the respondents served a copy of the resolution on the appellant in due course by a memo, dated September 4, 1957, and yet the appellant took no action in that behalf and merely waited until the 12th September when the strike began.from the fact that the finding in question being a finding of fact cannot be effectively challenged by the appellant in an appeal under Art. 136 of the Constitution, we are satisfied that the Tribunal was right in recording that finding. It appears that the respondents specifically averred in their written statement before the Tribunal that the notice of this resolution was served on the appellant and this allegation was not expressly denied by the appellant in its written statement, though an allegation that another notice had been served on the appellant by the respondents in respect of another dispute we expressly denied. Besides, we have the testimony of Devan Sarkar who took the oath that the letter containing the resolutions had been sent by him by ordinary post on the 4th September to the Manager according to the usual practice. He was no doubt asked some question about the number of the letter and such other details, but, in our opinion, the evidence given by the witness which appeared to the Tribunal to be satisfactory is not open to any serious criticism. The denial by Mr. Austin in this particular matter appears to us, as it did appear to the Tribunal, to be unsatisfactory. In considering Mr. Austins statement, it may be useful to refer to a letter written by Mr. Moore to Mr. Austin on September 16, 1957, (Item No. 45). This letter seems to suggest that Mr. Austin knew at least on the 11th September about the threatened strike which was to commence on the 12th September. Therefore, in deciding the question as to the merits of thedeclared by the appellant, we must proceed on the basis that the appellant had at least a weeks notice that the respondents had decided to go on a token strike for three days from the 12th September.10. Considered in the light of this fact, the attitude adopted by the appellant is open to serious criticism. If the appellant wanted to avoid ait should have immediately intimated to the respondents by writing a letter to their Union or otherwise informing them that if they went on strike, the appellant would be compelled to declare aThe appellant might also have invoked the assistance of the Conciliator in that behalf and might in any case have given a sufficient warning to the respondents about its intention to lock them out. Instead, the appellant purported to put a notice on the board at 9 A.M. on the 12th September when the strike had commenced. Having regard to the place where this notice was put up, it would be idle to contend that the appellant genuinely expected that the strikers would come and see the notice on the board and respond to it. In the circumstances, the putting up of the notice at 9 A.M. on the 12th September strikes one as an empty formality and that leads one to the conclusion that the appellant wanted the strike to commence so that it would be open to it to lock the workmen out as aTribunal took the view that in prolonging the period of thewith a view to obtain an oral assurance from each workman of his/ her good behaviour, the appellant could not be said to have acted fairly and so it held that both in declaring theand in continuing it until the 6th October the appellant acted indictively. In our opinion this conclusion of the Tribunal is well founded. In this connection, it is significant that though the workmen offered to resume work on the 16th September, the appellant did not open the gates and refused permission to the workmen to resume work. That is the effect of the evidence given by Lakhan Das (P. W. 1). His oral statement is corroborated by the communication made by the Union to the respective authorities on the 19th September 1957 (Ex. 13). Therefore, the grievance made by Mr. Sastri that the Tribunal should not have directed the appellant to pay to the respondents their wages during the period of thecannot be sustained. However in deciding the quantum of wages to be paid to the respondents, we cannot altogether ignore their conduct at the relevant time. That is why we would like to modify the order passed by the Tribunal by directing that the respondents should be paid the 1/2 of their full wages for the period and that too, not from the 13th September to 6th October but from the 16th September to the 6th October. We are making this modification because the token strike lasted for three days and we do not think the respondents are entitled to their wages during these days. 15th September was awere taken against these six workmen under Clause 13(c)(iii) of the Standing Orders, the charge against them being that they left the factory premises and caused wilful damage and loss to the companys goods. It appears that the appellant held an enquiry into these charges and as a result of this enquiry, dismissed the said six workmen. The enquiry, officer has not made a proper finding recording his conclusions at the end of the enquiry. He has drawn some notes in that behalf, but then cannot be treated as a finding recorded in the enquiry as such. That is why the Tribunal had to consider the merits of the dispute for itself. It has held that on the evidence adduced at the domestic enquiry, there was nothing to show that any wilful damage had been caused by the six workmen to the property of the appellant. The Tribunal has elaborately considered the work which was assigned to each one of these six workmen and has given satisfactory reasons for holding that the charge of causing wilful damage to the property of the appellant cannot possibly be sustained against any one of them. Besides, it has taken notice of the fact that the appellant was unable to give any reasonable or rational explanation why these six workmen were chosen out of a large number of strikers and proceeded against. If the charge had been framed against them under Cl. 14 (c) (12) of the Standing Order, it might perhaps have been a different matter. So, in the opinion of the Tribunal the action of the appellant in dismissing these six workmen was mala fide inasmuch as it was based on irrational and unreasonable discrimination. In our opinion, this finding cannot be successfully challenged by the appellant in the present appeal. In view of the infirmity in the domestic enquiry resulting from the fact that a proper finding had not been recorded, coupled particularly with the conclusion of the Tribunal that no evidence whatever was led before the domestic enquiry to show wilful damage or loss caused by the six workmen, we do not see how it is possible to contend that the conclusion of the Tribunal about the invalidity of the order of dismissal is not right. Therefore, we must hold that the Tribunal was justified in directing the reinstatement of these six workmen. In this connection, we ought to add that evidence shows that the ownership in respect of the Demdima Tea Estate had charged hands in 1960 and so, the order of reinstatement will be enforced against the transferee of the said Tea Estate who has become the owner of the property pending the presenthave already noticed how this settlement brought the closure or lockout of the garden to an end One of the terms of this settlement was that the management will reopen the garden with effect from October 7, 1957 and provide immediate employment to as many workers as possible and willthe remainder of the labour force in accordance with 1aw. Theargument is that since thiss agreed to by the parties, no compensation can be claimed by the respondents.In our opinion, there is no substance in this argument. It is true that the parties contemplated and agreed that some workmen may have to beand so, the agreement postulated that no dispute would be raised by the workmen in regard to such aBut the parties also agreed expressly that thewill be in accordance with law and that necessarily involves the payment of compensation as provided by S. 25C.Under this provision no compensation is payable ifin question is due to a strike or showing down of production on the part of workmen in another part of the establishment It is difficult to see how on the materia1 available on the record, this provision can be invoked. It is not the appellants case that the strike in one part of its concern led to thein another part, and so, S. 25E (iii) is wholly inapplicable. | 0 | 3,887 | 1,963 | ### Instruction:
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to be paid to the respondents, we cannot altogether ignore their conduct at the relevant time. That is why we would like to modify the order passed by the Tribunal by directing that the respondents should be paid the 1/2 of their full wages for the period and that too, not from the 13th September to 6th October but from the 16th September to the 6th October. We are making this modification because the token strike lasted for three days and we do not think the respondents are entitled to their wages during these days. 15th September was a holiday.12. The next question which calls for our decision is about the dismissal of six workmen which was the other item of dispute referred for adjudication under the first reference. Proceedings were taken against these six workmen under Clause 13(c)(iii) of the Standing Orders, the charge against them being that they left the factory premises and caused wilful damage and loss to the companys goods. It appears that the appellant held an enquiry into these charges and as a result of this enquiry, dismissed the said six workmen. The enquiry, officer has not made a proper finding recording his conclusions at the end of the enquiry. He has drawn some notes in that behalf, but then cannot be treated as a finding recorded in the enquiry as such. That is why the Tribunal had to consider the merits of the dispute for itself. It has held that on the evidence adduced at the domestic enquiry, there was nothing to show that any wilful damage had been caused by the six workmen to the property of the appellant. The Tribunal has elaborately considered the work which was assigned to each one of these six workmen and has given satisfactory reasons for holding that the charge of causing wilful damage to the property of the appellant cannot possibly be sustained against any one of them. Besides, it has taken notice of the fact that the appellant was unable to give any reasonable or rational explanation why these six workmen were chosen out of a large number of strikers and proceeded against. If the charge had been framed against them under Cl. 14 (c) (12) of the Standing Order, it might perhaps have been a different matter. So, in the opinion of the Tribunal the action of the appellant in dismissing these six workmen was mala fide inasmuch as it was based on irrational and unreasonable discrimination. In our opinion, this finding cannot be successfully challenged by the appellant in the present appeal. In view of the infirmity in the domestic enquiry resulting from the fact that a proper finding had not been recorded, coupled particularly with the conclusion of the Tribunal that no evidence whatever was led before the domestic enquiry to show wilful damage or loss caused by the six workmen, we do not see how it is possible to contend that the conclusion of the Tribunal about the invalidity of the order of dismissal is not right. Therefore, we must hold that the Tribunal was justified in directing the reinstatement of these six workmen. In this connection, we ought to add that evidence shows that the ownership in respect of the Demdima Tea Estate had charged hands in 1960 and so, the order of reinstatement will be enforced against the transferee of the said Tea Estate who has become the owner of the property pending the present dispute.13. That takes us to the dispute with which we are concerned in Appeal No 754 of 62. As we have already seen this dispute relates to the laying off the workmen by the appellant from October 7, 1957. The appellant has filed a list Ex. 1 showing the details of this laying off and how it was lifted and giving the number of workmen with respect to whom the lay-off operated and the period for which it so operated. In other words, the facts in regard to the 1ay-off are not in dispute. The Tribunal has ordered that the lay-off compensation should be paid by the appellant to its workmen under the provisions of S. 25C of the Industrial Disputes Act. Mr. Sastri attempted to raise two contentions against this award. His first argument was that the appellant was not liable to pay any lay-off compensation because this lay-off was the result of a settlement between the parties reached on October 4, 1957 We have already noticed how this settlement brought the closure or lock- out of the garden to an end One of the terms of this settlement was that the management will reopen the garden with effect from October 7, 1957 and provide immediate employment to as many workers as possible and will lay-off the remainder of the labour force in accordance with 1aw. The argument is that since this lay-off was agreed to by the parties, no compensation can be claimed by the respondents. In our opinion, there is no substance in this argument. It is true that the parties contemplated and agreed that some workmen may have to be laid-off and so, the agreement postulated that no dispute would be raised by the workmen in regard to such a lay-off. But the parties also agreed expressly that the lay-off will be in accordance with law and that necessarily involves the payment of compensation as provided by S. 25C.14. Then Mr Sastri wanted to suggest that no compensation could be claimed for the lay-off in question under S 25E (iii). Under this provision no compensation is payable if laying-off in question is due to a strike or showing down of production on the part of workmen in another part of the establishment It is difficult to see how on the materia1 available on the record, this provision can be invoked. It is not the appellants case that the strike in one part of its concern led to the lay-off in another part, and so, S. 25E (iii) is wholly inapplicable.
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and see the notice on the board and respond to it. In the circumstances, the putting up of the notice at 9 A.M. on the 12th September strikes one as an empty formality and that leads one to the conclusion that the appellant wanted the strike to commence so that it would be open to it to lock the workmen out as aTribunal took the view that in prolonging the period of thewith a view to obtain an oral assurance from each workman of his/ her good behaviour, the appellant could not be said to have acted fairly and so it held that both in declaring theand in continuing it until the 6th October the appellant acted indictively. In our opinion this conclusion of the Tribunal is well founded. In this connection, it is significant that though the workmen offered to resume work on the 16th September, the appellant did not open the gates and refused permission to the workmen to resume work. That is the effect of the evidence given by Lakhan Das (P. W. 1). His oral statement is corroborated by the communication made by the Union to the respective authorities on the 19th September 1957 (Ex. 13). Therefore, the grievance made by Mr. Sastri that the Tribunal should not have directed the appellant to pay to the respondents their wages during the period of thecannot be sustained. However in deciding the quantum of wages to be paid to the respondents, we cannot altogether ignore their conduct at the relevant time. That is why we would like to modify the order passed by the Tribunal by directing that the respondents should be paid the 1/2 of their full wages for the period and that too, not from the 13th September to 6th October but from the 16th September to the 6th October. We are making this modification because the token strike lasted for three days and we do not think the respondents are entitled to their wages during these days. 15th September was awere taken against these six workmen under Clause 13(c)(iii) of the Standing Orders, the charge against them being that they left the factory premises and caused wilful damage and loss to the companys goods. It appears that the appellant held an enquiry into these charges and as a result of this enquiry, dismissed the said six workmen. The enquiry, officer has not made a proper finding recording his conclusions at the end of the enquiry. He has drawn some notes in that behalf, but then cannot be treated as a finding recorded in the enquiry as such. That is why the Tribunal had to consider the merits of the dispute for itself. It has held that on the evidence adduced at the domestic enquiry, there was nothing to show that any wilful damage had been caused by the six workmen to the property of the appellant. The Tribunal has elaborately considered the work which was assigned to each one of these six workmen and has given satisfactory reasons for holding that the charge of causing wilful damage to the property of the appellant cannot possibly be sustained against any one of them. Besides, it has taken notice of the fact that the appellant was unable to give any reasonable or rational explanation why these six workmen were chosen out of a large number of strikers and proceeded against. If the charge had been framed against them under Cl. 14 (c) (12) of the Standing Order, it might perhaps have been a different matter. So, in the opinion of the Tribunal the action of the appellant in dismissing these six workmen was mala fide inasmuch as it was based on irrational and unreasonable discrimination. In our opinion, this finding cannot be successfully challenged by the appellant in the present appeal. In view of the infirmity in the domestic enquiry resulting from the fact that a proper finding had not been recorded, coupled particularly with the conclusion of the Tribunal that no evidence whatever was led before the domestic enquiry to show wilful damage or loss caused by the six workmen, we do not see how it is possible to contend that the conclusion of the Tribunal about the invalidity of the order of dismissal is not right. Therefore, we must hold that the Tribunal was justified in directing the reinstatement of these six workmen. In this connection, we ought to add that evidence shows that the ownership in respect of the Demdima Tea Estate had charged hands in 1960 and so, the order of reinstatement will be enforced against the transferee of the said Tea Estate who has become the owner of the property pending the presenthave already noticed how this settlement brought the closure or lockout of the garden to an end One of the terms of this settlement was that the management will reopen the garden with effect from October 7, 1957 and provide immediate employment to as many workers as possible and willthe remainder of the labour force in accordance with 1aw. Theargument is that since thiss agreed to by the parties, no compensation can be claimed by the respondents.In our opinion, there is no substance in this argument. It is true that the parties contemplated and agreed that some workmen may have to beand so, the agreement postulated that no dispute would be raised by the workmen in regard to such aBut the parties also agreed expressly that thewill be in accordance with law and that necessarily involves the payment of compensation as provided by S. 25C.Under this provision no compensation is payable ifin question is due to a strike or showing down of production on the part of workmen in another part of the establishment It is difficult to see how on the materia1 available on the record, this provision can be invoked. It is not the appellants case that the strike in one part of its concern led to thein another part, and so, S. 25E (iii) is wholly inapplicable.
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Shripad Gajanan Suthankar Vs. Dattaram Kashinath Suthankar And Ors | partition in order that the property should be redivided on a fair and equitable basis."17. Shri Javali pressed before us that Balajis case 47 Bom LR 121 = (AIR 1945 Bom 229 FB) was a closer parallel to our case, forgetting that as Chagla, C. J., explained in Bhimji, 52 Bom LR 290 = (AIR 1950 Bom 271 ) that Lokur, J., decided that case on the footing that a partition was not an alienation and the conclusion would have been different had he treated a partition as a transfer. But now, this Court has laid down that a post-partition adoption cannot reunite the family even though it may not deprive him of a share so long as some coparcenary property existed. The Full Bench case in Sankaralingam Pillai v. Velu Chami Pillai, ILR (1943) Mad 309 = (AIR 1943 Mad 43 (FB)) also does not militate against the Bombay view. Leach, C. J., in the course of the judgment, observed:"If the law recognises in an adopted son of a deceased coparcener the right to share in the estate as it existed before the partition, propertywhich has not been lawfully alienated in the meantimeis still within his reach."(emphasis supplied).Mysore also has fallen in line with this strand of thought. In Somasekharappa v. Basappa Channabasappa, (1960) 38 Mys LJ 687 = (AIR 1961 Mys 141) a Bench of that Court laid down the law condensed in the headnote thus:"A son adopted by a widow of a deceased coparcenr cannot claim the joint family property in the hand of a transferee from the heir of the last surviving coparcener, even though the transfer took place before the adoption. The doctrine of relation back will not extend to a case where a transfer has already been made either by the sole surviving coparcener or by his heir. The principle is that when a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away, no rights of a son who is subsequently adopted can affect that portion which is disposed of."True the decision under appeal before us also is from Mysore and takes the opposite view.18. We reach the end of the journey of precedents, ignoring as inessential other citations. The balance sheet is clear.The propositions that emerge are that: i) A widows adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he were begotten and alive when the adoptive father breathed his last: ii) Nevertheless, the factum of partition is not wiped out by the later adoption; iii) Any disposition testamentary or inter vivos, lawfully made antecedent to the adoption is immune to challenge by the adopted son; iv) lawful alienation, in this context, means not necessarily for a family necessity but alienation made competently in accordance with law: v) A widows power of alienation is limited and if - and only if - the conditions set by the Hindu Law are fulfilled will the alienation bind a subsequently adopted son. So also alienation by the Karta of an undivided Hindu family or transfer by a coparcener governed by the Banaras school; vi) Once partitioned validly, the share of a member of a Mitakshara Hindu family in which his own issue has no right by birth can be transferred by him at his will and such transfers, be they by will, gift or sale, bind the adopted son who comes later on the scene.Of course, the position of a void or voidable transfer by such a sharer may stand on a separate footing but we need not investigate it here.19. Applying the above formulations to the present facts, the conclusion is clear.The plaintiff will be eligible to get one-third of the available joint family property. In computing net property the gift by Mahadev to the 2nd defendant has to be excluded. But the allotment for maintenance of the 3rd defendant will have to be ignored, brought into the corpus and, in the division by metes and bounds allotted to the share of the plaintiff.20. One more problem, rather ticklish, remains - the equitable effectuation of the partition. The Full Bench decision of the Bombay High Court in Krishtappa, AIR 1957 Bom 214 (FB) emphasized that the adopted sons right, arising long after other proprietary events, should be worked out not rigidly but justly.Chagla, C. J., laid down the guidelines already extracted while dealing with the case earlier. We agree with this sensitive approach and proceed to adopt it here. The plaintiff has to be given his onethird share as in 1944, when the partition took place. Assuming that the entire estate was then worth 3 lakhs, the adopted son would have got a lakh of rupees, say. But Mahadevs share has been entirely gifted away and must be ignored. Which means that the plaintiffs one-third share valued at one lakh will have to come out of Gajanans properties which, on our arithmetical assumption, would be one-half of three lakhs, i. e. 11/2 lakhs. It would be unfair to deprive Gajanan of a lions share out of his allotment merely because, before adoption, he had not parted with his properties. It would be eminently just to make the first defendant bear only one-half the burden cast by the notional re-entry of the plaintiff into the coparcenary and we direct a division into two equal shares of such of the properties which fell to the first defendants share in the 1944 partition as were with the first defendant at the date of adoption, and award one share to the plaintiff. The justice and equity of the situation, not any inflexible legal principle, prompts this course. We confess that the pre-statutory law of adoption, in its conflict between fiction and fact, has had zigzag course in Courts and we have read the diverse dicta imbued by the Holmseian thought that the life of the law is not logic but experience. | 1[ds]6. It is established law that the adoption by a widow relates back to the date of the death of the adoptive father, which, in this case, took place in 1921. Indeed the complexity of the present case arises from the application of this legal fiction of "relation back" and the limitations on the amplitude of that fiction vis-a-vis the partition of 1944, in the light of the rulings of the various High Courts and of the Judical Committee of the Privy Council, and of this Court, the last of which is Govind v. Nagappa (1972) 3 SCR 200 : (AIR 1972 SCIt is settled law that the rights of an adopted son spring into existence only from the moment of the adoption and all alienations made by the widow before the adoption, if they are made for legal necessity or otherwise lawfully, such as with the consent of the next reversioners, are binding on the adopted son. The narrow but important question that arises here is as to whether the adoption made in 1956 can upset the partition of 1944, validly made under the then conditions, and whether the gift by Mahadev of properties exclusively set apart to him and, therefore alienable by him, could be retroactively invalidated by the plaintiff on the application of the legal fiction of "relation-back". It is unlikely that a similar question will arise hereafter since Section 4 ofthe Hindu Succession Act, 1956 has practically swept off texts, rules and the like in Hindu Law, which were part of the law in force immediately before the commencement of the Act, till provisions have been made for such matters in the Act. Since on the husbands death the widow takes an absolute estate, questions of the type which engage us in this appeal will be stilled for ever. Of course we need not investigate this aspect of the matter as the present case relates to a prestatutory adoption. Even Section 12 ofthe Hindu Adoptions and Maintenance Act, 1956, makes it plain that an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of theprinciples compete in this jurisdiction and judges have struck a fair balance between the two, animated by a sense of realism, impelled by desire to do equity and to avoid unsettling vested rights and concluded transactions, lest a legal fiction should by invading actual facts of life become an instrumentality or instability. Law and order are jurisprudential twins and this perspective has inarticulately informed judicial pronouncements in this branch of Hindu Law. In short, the principle of relating the birth of the adopted son to the last day of the adoptive fathers life is put in peaceful co-existence with recognition of rights lawfully vested on the basis of the realities then existing. The law frowns on divesting vested rights and keeping in cold storage or suspended animation normal legal events like competent transfers and collateral succession, except when compelled by jural mandate. So viewed, the partition of 1944 was valid; so also the gift of his exclusive share by Mahadev, Defendant No. 1 to Shripad, Defendant No. 2. The plaintiff could reopen the partition only to the limited extent rights flowing from these two facts viz., disruption of jointness and alienation by one share permitted. Nor is law inhuman or inequitable or abstract, its essence being social engineering. Therefore, the humane endeavour to work out equities in a given case has engaged the conscience of judges in the reported rulings. Here, the circumstances that the whole share of Mahadev has gone out of the corpus of the coparcenary on account of the gift inflicts an injustice on the plaintiff if he is to get only one-third of the properties which were allotted to Gajanan whose branch still remained intact; equally unjust it would be on Gajanan if out of his allotment the plaintiff were to slice off what is equal to one-half of the total assets as at the time of partition in 1944 merely because of the misfortune that he had still kept it as the asset of his branch at the time of the adoption. Equitable considerations would suggest a modification. When the adoption was made there were only two coparceners and the corpus available only to Gajanans properties. So a half share out of those items may be fair, in the totality of circumstances. Maintenance to the mother and profits due to the plaintiff are minor matters and will be gone into last.By parity of reasoning we have to give the plaintiff a one-third share, which alone even an aurasa son of late Kashinath would have got stirpitally. To undo the divided status and continue the coparcenary till the date of the suit so as to award a half share to the plaintiff as representing one of the two surviving branches would be legal fiction run riot. Neither principle nor precedent compels that course.14. We now sail into still more troubled waters. Where is this share to come from? From the coparcenary property, less what has legitimately gone out of it. If the widow of a deceased coparcener had alienated for binding necessity, such property has to be excluded - although a strict projection of the fiction would mean that the adopted son was alive at the time succession opened and the widow could not have the right to even a limited estate and a fortiori could not competently alienate for necessity or otherwise. Liberties with the legal fiction have been taken in this and other aspects of the "relation back" theory. If a property has validly gone out of the hotch-potch the adopted son cannot recall it. The fact of partition cannot be drowned by the subsequent adoption because when it was entered into there was no legal impediment in doing it. Likewise, if a manager or widow alienates for binding necessity the constructive antedated nativity of the adopted son cannot nullify what has taken place before he in actuality entered the coparcenary. By the same token, a sole surviving coparcener (except perhaps in the Banaras School where unlike in other schools he has no independent power of transferring his share) may dispose of the estate before adoption by a deceased coparceners widow and that act defeats the claim of a later adoptee. Such is the inexorable operation of time and circumstance on long later adoptions and their proprietary failout.We reach the end of the journey of precedents, ignoring as inessential other citations. The balance sheet is clear.The propositions that emerge are that: i) A widows adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he were begotten and alive when the adoptive father breathed his last: ii) Nevertheless, the factum of partition is not wiped out by the later adoption; iii) Any disposition testamentary or inter vivos, lawfully made antecedent to the adoption is immune to challenge by the adopted son; iv) lawful alienation, in this context, means not necessarily for a family necessity but alienation made competently in accordance with law: v) A widows power of alienation is limited and if - and only if - the conditions set by the Hindu Law are fulfilled will the alienation bind a subsequently adopted son. So also alienation by the Karta of an undivided Hindu family or transfer by a coparcener governed by the Banaras school; vi) Once partitioned validly, the share of a member of a Mitakshara Hindu family in which his own issue has no right by birth can be transferred by him at his will and such transfers, be they by will, gift or sale, bind the adopted son who comes later on the scene.Of course, the position of a void or voidable transfer by such a sharer may stand on a separate footing but we need not investigate it here.19. Applying the above formulations to the present facts, the conclusion is clear.The plaintiff will be eligible to get one-third of the available joint family property. In computing net property the gift by Mahadev to the 2nd defendant has to be excluded. But the allotment for maintenance of the 3rd defendant will have to be ignored, brought into the corpus and, in the division by metes and bounds allotted to the share of the plaintiff.20. One more problem, rather ticklish, remains - the equitable effectuation of the partition. The Full Bench decision of the Bombay High Court in Krishtappa, AIR 1957 Bom 214 (FB) emphasized that the adopted sons right, arising long after other proprietary events, should be worked out not rigidly but justly.Chagla, C. J., laid down the guidelines already extracted while dealing with the case earlier. We agree with this sensitive approach and proceed to adopt it here. The plaintiff has to be given his onethird share as in 1944, when the partition took place. Assuming that the entire estate was then worth 3 lakhs, the adopted son would have got a lakh of rupees, say. But Mahadevs share has been entirely gifted away and must be ignored. Which means that the plaintiffs one-third share valued at one lakh will have to come out of Gajanans properties which, on our arithmetical assumption, would be one-half of three lakhs, i. e. 11/2 lakhs. It would be unfair to deprive Gajanan of a lions share out of his allotment merely because, before adoption, he had not parted with his properties. It would be eminently just to make the first defendant bear only one-half the burden cast by the notional re-entry of the plaintiff into the coparcenary and we direct a division into two equal shares of such of the properties which fell to the first defendants share in the 1944 partition as were with the first defendant at the date of adoption, and award one share to the plaintiff. The justice and equity of the situation, not any inflexible legal principle, prompts this course. We confess that the pre-statutory law of adoption, in its conflict between fiction and fact, has had zigzag course in Courts and we have read the diverse dicta imbued by the Holmseian thought that the life of the law is not logic but experience. | 1 | 6,562 | 1,868 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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partition in order that the property should be redivided on a fair and equitable basis."17. Shri Javali pressed before us that Balajis case 47 Bom LR 121 = (AIR 1945 Bom 229 FB) was a closer parallel to our case, forgetting that as Chagla, C. J., explained in Bhimji, 52 Bom LR 290 = (AIR 1950 Bom 271 ) that Lokur, J., decided that case on the footing that a partition was not an alienation and the conclusion would have been different had he treated a partition as a transfer. But now, this Court has laid down that a post-partition adoption cannot reunite the family even though it may not deprive him of a share so long as some coparcenary property existed. The Full Bench case in Sankaralingam Pillai v. Velu Chami Pillai, ILR (1943) Mad 309 = (AIR 1943 Mad 43 (FB)) also does not militate against the Bombay view. Leach, C. J., in the course of the judgment, observed:"If the law recognises in an adopted son of a deceased coparcener the right to share in the estate as it existed before the partition, propertywhich has not been lawfully alienated in the meantimeis still within his reach."(emphasis supplied).Mysore also has fallen in line with this strand of thought. In Somasekharappa v. Basappa Channabasappa, (1960) 38 Mys LJ 687 = (AIR 1961 Mys 141) a Bench of that Court laid down the law condensed in the headnote thus:"A son adopted by a widow of a deceased coparcenr cannot claim the joint family property in the hand of a transferee from the heir of the last surviving coparcener, even though the transfer took place before the adoption. The doctrine of relation back will not extend to a case where a transfer has already been made either by the sole surviving coparcener or by his heir. The principle is that when a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away, no rights of a son who is subsequently adopted can affect that portion which is disposed of."True the decision under appeal before us also is from Mysore and takes the opposite view.18. We reach the end of the journey of precedents, ignoring as inessential other citations. The balance sheet is clear.The propositions that emerge are that: i) A widows adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he were begotten and alive when the adoptive father breathed his last: ii) Nevertheless, the factum of partition is not wiped out by the later adoption; iii) Any disposition testamentary or inter vivos, lawfully made antecedent to the adoption is immune to challenge by the adopted son; iv) lawful alienation, in this context, means not necessarily for a family necessity but alienation made competently in accordance with law: v) A widows power of alienation is limited and if - and only if - the conditions set by the Hindu Law are fulfilled will the alienation bind a subsequently adopted son. So also alienation by the Karta of an undivided Hindu family or transfer by a coparcener governed by the Banaras school; vi) Once partitioned validly, the share of a member of a Mitakshara Hindu family in which his own issue has no right by birth can be transferred by him at his will and such transfers, be they by will, gift or sale, bind the adopted son who comes later on the scene.Of course, the position of a void or voidable transfer by such a sharer may stand on a separate footing but we need not investigate it here.19. Applying the above formulations to the present facts, the conclusion is clear.The plaintiff will be eligible to get one-third of the available joint family property. In computing net property the gift by Mahadev to the 2nd defendant has to be excluded. But the allotment for maintenance of the 3rd defendant will have to be ignored, brought into the corpus and, in the division by metes and bounds allotted to the share of the plaintiff.20. One more problem, rather ticklish, remains - the equitable effectuation of the partition. The Full Bench decision of the Bombay High Court in Krishtappa, AIR 1957 Bom 214 (FB) emphasized that the adopted sons right, arising long after other proprietary events, should be worked out not rigidly but justly.Chagla, C. J., laid down the guidelines already extracted while dealing with the case earlier. We agree with this sensitive approach and proceed to adopt it here. The plaintiff has to be given his onethird share as in 1944, when the partition took place. Assuming that the entire estate was then worth 3 lakhs, the adopted son would have got a lakh of rupees, say. But Mahadevs share has been entirely gifted away and must be ignored. Which means that the plaintiffs one-third share valued at one lakh will have to come out of Gajanans properties which, on our arithmetical assumption, would be one-half of three lakhs, i. e. 11/2 lakhs. It would be unfair to deprive Gajanan of a lions share out of his allotment merely because, before adoption, he had not parted with his properties. It would be eminently just to make the first defendant bear only one-half the burden cast by the notional re-entry of the plaintiff into the coparcenary and we direct a division into two equal shares of such of the properties which fell to the first defendants share in the 1944 partition as were with the first defendant at the date of adoption, and award one share to the plaintiff. The justice and equity of the situation, not any inflexible legal principle, prompts this course. We confess that the pre-statutory law of adoption, in its conflict between fiction and fact, has had zigzag course in Courts and we have read the diverse dicta imbued by the Holmseian thought that the life of the law is not logic but experience.
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only two coparceners and the corpus available only to Gajanans properties. So a half share out of those items may be fair, in the totality of circumstances. Maintenance to the mother and profits due to the plaintiff are minor matters and will be gone into last.By parity of reasoning we have to give the plaintiff a one-third share, which alone even an aurasa son of late Kashinath would have got stirpitally. To undo the divided status and continue the coparcenary till the date of the suit so as to award a half share to the plaintiff as representing one of the two surviving branches would be legal fiction run riot. Neither principle nor precedent compels that course.14. We now sail into still more troubled waters. Where is this share to come from? From the coparcenary property, less what has legitimately gone out of it. If the widow of a deceased coparcener had alienated for binding necessity, such property has to be excluded - although a strict projection of the fiction would mean that the adopted son was alive at the time succession opened and the widow could not have the right to even a limited estate and a fortiori could not competently alienate for necessity or otherwise. Liberties with the legal fiction have been taken in this and other aspects of the "relation back" theory. If a property has validly gone out of the hotch-potch the adopted son cannot recall it. The fact of partition cannot be drowned by the subsequent adoption because when it was entered into there was no legal impediment in doing it. Likewise, if a manager or widow alienates for binding necessity the constructive antedated nativity of the adopted son cannot nullify what has taken place before he in actuality entered the coparcenary. By the same token, a sole surviving coparcener (except perhaps in the Banaras School where unlike in other schools he has no independent power of transferring his share) may dispose of the estate before adoption by a deceased coparceners widow and that act defeats the claim of a later adoptee. Such is the inexorable operation of time and circumstance on long later adoptions and their proprietary failout.We reach the end of the journey of precedents, ignoring as inessential other citations. The balance sheet is clear.The propositions that emerge are that: i) A widows adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he were begotten and alive when the adoptive father breathed his last: ii) Nevertheless, the factum of partition is not wiped out by the later adoption; iii) Any disposition testamentary or inter vivos, lawfully made antecedent to the adoption is immune to challenge by the adopted son; iv) lawful alienation, in this context, means not necessarily for a family necessity but alienation made competently in accordance with law: v) A widows power of alienation is limited and if - and only if - the conditions set by the Hindu Law are fulfilled will the alienation bind a subsequently adopted son. So also alienation by the Karta of an undivided Hindu family or transfer by a coparcener governed by the Banaras school; vi) Once partitioned validly, the share of a member of a Mitakshara Hindu family in which his own issue has no right by birth can be transferred by him at his will and such transfers, be they by will, gift or sale, bind the adopted son who comes later on the scene.Of course, the position of a void or voidable transfer by such a sharer may stand on a separate footing but we need not investigate it here.19. Applying the above formulations to the present facts, the conclusion is clear.The plaintiff will be eligible to get one-third of the available joint family property. In computing net property the gift by Mahadev to the 2nd defendant has to be excluded. But the allotment for maintenance of the 3rd defendant will have to be ignored, brought into the corpus and, in the division by metes and bounds allotted to the share of the plaintiff.20. One more problem, rather ticklish, remains - the equitable effectuation of the partition. The Full Bench decision of the Bombay High Court in Krishtappa, AIR 1957 Bom 214 (FB) emphasized that the adopted sons right, arising long after other proprietary events, should be worked out not rigidly but justly.Chagla, C. J., laid down the guidelines already extracted while dealing with the case earlier. We agree with this sensitive approach and proceed to adopt it here. The plaintiff has to be given his onethird share as in 1944, when the partition took place. Assuming that the entire estate was then worth 3 lakhs, the adopted son would have got a lakh of rupees, say. But Mahadevs share has been entirely gifted away and must be ignored. Which means that the plaintiffs one-third share valued at one lakh will have to come out of Gajanans properties which, on our arithmetical assumption, would be one-half of three lakhs, i. e. 11/2 lakhs. It would be unfair to deprive Gajanan of a lions share out of his allotment merely because, before adoption, he had not parted with his properties. It would be eminently just to make the first defendant bear only one-half the burden cast by the notional re-entry of the plaintiff into the coparcenary and we direct a division into two equal shares of such of the properties which fell to the first defendants share in the 1944 partition as were with the first defendant at the date of adoption, and award one share to the plaintiff. The justice and equity of the situation, not any inflexible legal principle, prompts this course. We confess that the pre-statutory law of adoption, in its conflict between fiction and fact, has had zigzag course in Courts and we have read the diverse dicta imbued by the Holmseian thought that the life of the law is not logic but experience.
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Vijay Mallya Vs. Enforcement Directorate,Min.Of Finance | averments in the complaint show that the summons dated 21st December, 1999 were refused by the appellant and earlier summons were not carried out deliberately. The averments in paras 3 and 4 of the complaint are as follows : “3. That the complainant issued a summons dated 21.12.1999 under Section 40 of FERA, 1973 in connection with the impending investigations for the appearance of the accused on 3.1.2000 but the same have been returned back by the postal authorities with the remarks “refused”. It is submitted that the accused has deliberately avoided his appearance before the Investigating Officer and on account of his non co-operative attitude the investigation has come to a standstill.4. It is respectfully submitted that the accused has been intentionally avoiding his appearance before the Enforcement Directorate knowing fully well that non compliance of the directions made under Section 40 of the Act renders the person liable for prosecution in a Court of law under Section 56 of the Act which is a non-bailable offence. It is further submitted that by virtue of Section 40(3) of the Act, the accused was bound to appear before the Officers of the Enforcement Directorate in the best interest of investigation. Section 40(3) is reproduced below for kind perusal and ready reference to this Hon’ble Court :“Section 40(3) :(3) All persons so summoned shall be bound to attend either in person or by authorised agents, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents as may be required.” It is respectfully submitted that non compliance of any rule, directions or law is punishable under Section 56 of the Act. The accused willfully failed to appear before the Enforcement Directorate at the given venue, time and dates mentioned in the respective summons and has thus, contravened the provisions of Section 56 of the Act.” 12. As regards summons dated 8th November, 1999, learned senior counsel for the appellant has referred to the explanation offered by the appellant. Letter dated 22nd November, 1999 is as follows : “As you will appreciate, I am the Chairman of several public Companies both in India as well as in the USA and, therefore, my schedule is finalized several months in advance. During the fiscal year end period, the problem only gets compounded.I would, therefore, request you to excuse me from the personal appearance on November 26, 1999 as I will be out of India.I am willing to fix a mutually convenient date to appear before you.” 13. From the tenor of the letter, it appears that it was not a case of mere seeking accommodation by the appellant but requiring date to be fixed by his convenience. Such stand by a person facing allegation of serious nature could hardly be appreciated. Obviously, the enormous money power makes him believe that the State should adjust its affairs to suit his commercial convenience. 14. In our opinion, the appeal is required to be dismissed for more than one reason. The fact that the adjudicating officer chose to drop the proceedings against the appellant herein does not absolve the appellant of the criminal liability incurred by him by virtue of the operation of Section 40 read with Section 56 of the Act. The offence under Section 56 read with Section 40 of the Act is an independent offence. If the factual allegations contained in the charge are to be proved eventually at the trial of the criminal case, the appellant is still liable for the punishment notwithstanding the fact that the presence of the appellant was required by the adjudicating officer in connection with an enquiry into certain alleged violations of the various provisions of the Act, but at a subsequent stage the adjudicating officer opined that there was either insufficient or no material to proceed against the appellant for the alleged violations of the Act, is immaterial. The observations made by this Court in Roshanlal Agarwal (supra), in our opinion, must be confined to the facts of that case because this Court recorded such a conclusion “having regard to the material existing against the respondent and the reasons and findings given in the aforesaid orders…..”. The said case cannot be read as laying down a general statement of law that the prosecution of the accused, who is alleged to be guilty of an offence of not responding to the summons issued by a lawful authority for the purpose of either an inquiry or investigation into another substantive offence, would not be justified. Exonerating such an accused, who successfully evades the process of law and thereby commits an independent offence on the ground that he is found to be not guilty of the substantive offence would be destructive of law and order, apart from being against public interest. Such an exposition of law would only encourage unscrupulous elements in the society to defy the authority conferred upon the public servants to enforce the law with impunity. It is also possible, in certain cases that the time gained by such evasive tactics adopted by a person summoned itself would result in the destruction of the material which might otherwise constitute valuable evidence for establishing the commission of a substantive offence by such a recalcitrant accused.15. Secondly, an appeal against the conclusion of the adjudicating officer that the proceedings against the appellant herein for the alleged violation of the various provisions of the FERA Act are required to be dropped has not even attained finality. Admittedly, such an order of the adjudicating officer confirmed by the statutory appellate authority is pending consideration in an appeal before the High Court. Though, in our opinion, the result of such an appeal is immaterial for determining the culpability of the appellant for the alleged violation of Section 40 read with Section 56, we must record that the submission made on behalf of the appellant in this regard itself is inherently untenable. | 0[ds]14. In our opinion, the appeal is required to be dismissed for more than one reason. The fact that the adjudicating officer chose to drop the proceedings against the appellant herein does not absolve the appellant of the criminal liability incurred by him by virtue of the operation of Section 40 read with Section 56 of the Act. The offence under Section 56 read with Section 40 of the Act is an independent offence. If the factual allegations contained in the charge are to be proved eventually at the trial of the criminal case, the appellant is still liable for the punishment notwithstanding the fact that the presence of the appellant was required by the adjudicating officer in connection with an enquiry into certain alleged violations of the various provisions of the Act, but at a subsequent stage the adjudicating officer opined that there was either insufficient or no material to proceed against the appellant for the alleged violations of the Act, is immaterial. The observations made by this Court in Roshanlal Agarwal (supra), in our opinion, must be confined to the facts of that case because this Court recorded such a conclusionregard to the material existing against the respondent and the reasons and findings given in the aforesaid orders…..The said case cannot be read as laying down a general statement of law that the prosecution of the accused, who is alleged to be guilty of an offence of not responding to the summons issued by a lawful authority for the purpose of either an inquiry or investigation into another substantive offence, would not be justified. Exonerating such an accused, who successfully evades the process of law and thereby commits an independent offence on the ground that he is found to be not guilty of the substantive offence would be destructive of law and order, apart from being against public interest. Such an exposition of law would only encourage unscrupulous elements in the society to defy the authority conferred upon the public servants to enforce the law with impunity. It is also possible, in certain cases that the time gained by such evasive tactics adopted by a person summoned itself would result in the destruction of the material which might otherwise constitute valuable evidence for establishing the commission of a substantive offence by such a recalcitrant accused.15. Secondly, an appeal against the conclusion of the adjudicating officer that the proceedings against the appellant herein for the alleged violation of the various provisions of the FERA Act are required to be dropped has not even attained finality. Admittedly, such an order of the adjudicating officer confirmed by the statutory appellate authority is pending consideration in an appeal before the High Court. Though, in our opinion, the result of such an appeal is immaterial for determining the culpability of the appellant for the alleged violation of Section 40 read with Section 56, we must record that the submission made on behalf of the appellant in this regard itself is inherently untenable. | 0 | 3,053 | 536 | ### 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:
averments in the complaint show that the summons dated 21st December, 1999 were refused by the appellant and earlier summons were not carried out deliberately. The averments in paras 3 and 4 of the complaint are as follows : “3. That the complainant issued a summons dated 21.12.1999 under Section 40 of FERA, 1973 in connection with the impending investigations for the appearance of the accused on 3.1.2000 but the same have been returned back by the postal authorities with the remarks “refused”. It is submitted that the accused has deliberately avoided his appearance before the Investigating Officer and on account of his non co-operative attitude the investigation has come to a standstill.4. It is respectfully submitted that the accused has been intentionally avoiding his appearance before the Enforcement Directorate knowing fully well that non compliance of the directions made under Section 40 of the Act renders the person liable for prosecution in a Court of law under Section 56 of the Act which is a non-bailable offence. It is further submitted that by virtue of Section 40(3) of the Act, the accused was bound to appear before the Officers of the Enforcement Directorate in the best interest of investigation. Section 40(3) is reproduced below for kind perusal and ready reference to this Hon’ble Court :“Section 40(3) :(3) All persons so summoned shall be bound to attend either in person or by authorised agents, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents as may be required.” It is respectfully submitted that non compliance of any rule, directions or law is punishable under Section 56 of the Act. The accused willfully failed to appear before the Enforcement Directorate at the given venue, time and dates mentioned in the respective summons and has thus, contravened the provisions of Section 56 of the Act.” 12. As regards summons dated 8th November, 1999, learned senior counsel for the appellant has referred to the explanation offered by the appellant. Letter dated 22nd November, 1999 is as follows : “As you will appreciate, I am the Chairman of several public Companies both in India as well as in the USA and, therefore, my schedule is finalized several months in advance. During the fiscal year end period, the problem only gets compounded.I would, therefore, request you to excuse me from the personal appearance on November 26, 1999 as I will be out of India.I am willing to fix a mutually convenient date to appear before you.” 13. From the tenor of the letter, it appears that it was not a case of mere seeking accommodation by the appellant but requiring date to be fixed by his convenience. Such stand by a person facing allegation of serious nature could hardly be appreciated. Obviously, the enormous money power makes him believe that the State should adjust its affairs to suit his commercial convenience. 14. In our opinion, the appeal is required to be dismissed for more than one reason. The fact that the adjudicating officer chose to drop the proceedings against the appellant herein does not absolve the appellant of the criminal liability incurred by him by virtue of the operation of Section 40 read with Section 56 of the Act. The offence under Section 56 read with Section 40 of the Act is an independent offence. If the factual allegations contained in the charge are to be proved eventually at the trial of the criminal case, the appellant is still liable for the punishment notwithstanding the fact that the presence of the appellant was required by the adjudicating officer in connection with an enquiry into certain alleged violations of the various provisions of the Act, but at a subsequent stage the adjudicating officer opined that there was either insufficient or no material to proceed against the appellant for the alleged violations of the Act, is immaterial. The observations made by this Court in Roshanlal Agarwal (supra), in our opinion, must be confined to the facts of that case because this Court recorded such a conclusion “having regard to the material existing against the respondent and the reasons and findings given in the aforesaid orders…..”. The said case cannot be read as laying down a general statement of law that the prosecution of the accused, who is alleged to be guilty of an offence of not responding to the summons issued by a lawful authority for the purpose of either an inquiry or investigation into another substantive offence, would not be justified. Exonerating such an accused, who successfully evades the process of law and thereby commits an independent offence on the ground that he is found to be not guilty of the substantive offence would be destructive of law and order, apart from being against public interest. Such an exposition of law would only encourage unscrupulous elements in the society to defy the authority conferred upon the public servants to enforce the law with impunity. It is also possible, in certain cases that the time gained by such evasive tactics adopted by a person summoned itself would result in the destruction of the material which might otherwise constitute valuable evidence for establishing the commission of a substantive offence by such a recalcitrant accused.15. Secondly, an appeal against the conclusion of the adjudicating officer that the proceedings against the appellant herein for the alleged violation of the various provisions of the FERA Act are required to be dropped has not even attained finality. Admittedly, such an order of the adjudicating officer confirmed by the statutory appellate authority is pending consideration in an appeal before the High Court. Though, in our opinion, the result of such an appeal is immaterial for determining the culpability of the appellant for the alleged violation of Section 40 read with Section 56, we must record that the submission made on behalf of the appellant in this regard itself is inherently untenable.
### Response:
0
### Explanation:
14. In our opinion, the appeal is required to be dismissed for more than one reason. The fact that the adjudicating officer chose to drop the proceedings against the appellant herein does not absolve the appellant of the criminal liability incurred by him by virtue of the operation of Section 40 read with Section 56 of the Act. The offence under Section 56 read with Section 40 of the Act is an independent offence. If the factual allegations contained in the charge are to be proved eventually at the trial of the criminal case, the appellant is still liable for the punishment notwithstanding the fact that the presence of the appellant was required by the adjudicating officer in connection with an enquiry into certain alleged violations of the various provisions of the Act, but at a subsequent stage the adjudicating officer opined that there was either insufficient or no material to proceed against the appellant for the alleged violations of the Act, is immaterial. The observations made by this Court in Roshanlal Agarwal (supra), in our opinion, must be confined to the facts of that case because this Court recorded such a conclusionregard to the material existing against the respondent and the reasons and findings given in the aforesaid orders…..The said case cannot be read as laying down a general statement of law that the prosecution of the accused, who is alleged to be guilty of an offence of not responding to the summons issued by a lawful authority for the purpose of either an inquiry or investigation into another substantive offence, would not be justified. Exonerating such an accused, who successfully evades the process of law and thereby commits an independent offence on the ground that he is found to be not guilty of the substantive offence would be destructive of law and order, apart from being against public interest. Such an exposition of law would only encourage unscrupulous elements in the society to defy the authority conferred upon the public servants to enforce the law with impunity. It is also possible, in certain cases that the time gained by such evasive tactics adopted by a person summoned itself would result in the destruction of the material which might otherwise constitute valuable evidence for establishing the commission of a substantive offence by such a recalcitrant accused.15. Secondly, an appeal against the conclusion of the adjudicating officer that the proceedings against the appellant herein for the alleged violation of the various provisions of the FERA Act are required to be dropped has not even attained finality. Admittedly, such an order of the adjudicating officer confirmed by the statutory appellate authority is pending consideration in an appeal before the High Court. Though, in our opinion, the result of such an appeal is immaterial for determining the culpability of the appellant for the alleged violation of Section 40 read with Section 56, we must record that the submission made on behalf of the appellant in this regard itself is inherently untenable.
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Bootamal Vs. Union Of India | a part has not been delivered, for in such a case in the absence of special circumstances it should be easy to see that the reasonable time is that within which the bulk of the goods have been delivered. We may in this connection refer to Union of India v. Meghraj Agarwalla, AIR 1958 Cal 434 and Gajanand Rajgoria v. Union of India (S) AIR 1955 Pat 182 where it has been held that where a part of the consignment has been delivered, that should, in spite of the correspondence regarding inquiries and in the absence of circumstances leading to the contrary view, be taken to be the date when the goods ought to have been delivered as a whole within the meaning of those words in Art.31. The view taken therefore by the High Court in Aminchand Bholanaths case, C.A. No. 97 of 1949 D/- 2-5-1956 : ((S) AIR 1957 Punj 49) as to the interpretation of the words in the third column of Art. 31 is in our opinion correct. 13. Let us therefore see what was the reasonable time within which the goods ought to have reached Jagadhari from Gujranwala in the present case. The appellant himself in his replication stated that the goods in ordinary course should have reached Jagadhari before August 15, 1947. Further in the notice that he gave on January 22, 1948, he stated that the cause of action arose on August 21 and 30, 1947, and on subsequent dates when he met with refusal to deliver the goods. The fact that the appellant gave notice under S. 80 of the Code of Civil Procedure in January 1948 in our opinion shows that even taking into account the extraordinary conditions prevailing on account of the partition of India in August 1947, the appellant was satisfied that the goods ought to have been delivered before January 22, 1948 when he gave the notice. If that was not so and if the clause of action had not arisen, there was no reason why the appellant should have given the notice under S. 80 in January 1948. We can see no difficulty therefore on the facts of this case in agreeing with the High Court that the goods ought to have been delivered even taking into account the extraordinary circumstances prevailing on account of partition within five or six months of the date on which they were sent, namely, August 5, 1947. This is also borne out by the fact that the appellant gave notice on January 22, 1948 i.e. about 5 1/2 months after the good had been consigned. In the circumstances the suit which was brought in December 1949 would be clearly barred by time, for we cannot take the reasonable time within which the goods ought to have been delivered in the circumstances of this case beyond January 22, 1948, when the notice under S. 80 was given. As to the correspondence between the parties it is enough to say that there is nothing in the correspondence which has any bearing on the reasonable time taken for the carriage of goods from Gujranwala to Jagadhari. It is true that on December 1, 1948, the appellant was informed by the Railway that the goods were still lying in Gujranwala because of the restrictions imposed by the Pakistan Government and he was asked to get the necessary permits from that government; but that in our opinion has nothing to do with the question of reasonable time to be taken for the carriage of goods from Gujranwala to Jagadhari. In the circumstances, the High Court was right in holding that the suit was barred by limitation under Art. 31. 14. Learned counsel for the appellant however drew our attention to the Displaced Persons (Institution of Suits) Act (No. XLVII of 1948) as amended by the Displace Persons (Institution of Suits and Legal Proceedings) Amendment Act (No. LXVIII of 1950) and contended that the appellant being a displaced person would be entitled to file this suit under S. 8 of this Act as amended up to March 31, 1952. It appears that in para. 9 of the plaint, the appellant relied on his being a displaced person in order to give jurisdiction to the court in Delhi where he filed the suit. But he does not seem to have relied on his being a displaced person on the question of limitation. The respondent in the written-statement denied that the appellant was a displaced person and nothing further happened with respect to this aspect of the matter. Learned counsel for the appellant urges that in fact the appellant is a displaced person and would be entitled to the benefit of the Act of 1948 as amended by the Act of 1950 and on that basis his suit would be within time and that the suit might be remanded to allow the appellant to bring his case under the Act of 1948 as amended. Ordinarily we would not have allowed such a prayer when the point was not raised in the plaint; but considering that the appellant claims to be a displaced person who is registered in Delhi and also considering that he had to file this suit in forma pauperis probably on account of the circumstances arising from the partition of India, we think that the appellant should be given a chance to prove his case under the Act of 1948 as amended by the Act of 1950. We express no opinion on the question whether the appellant is a displaced person or whether he is entitled to the benefit of the Act of 1948 as amended by the Act of 1950. But we think in the interest of justice he should be given a chance to bring his case under the Act of 1948 as amended by the Act of 1950 in the matter of limitation subject to his paying all the costs incurred by the respondent up to date irrespective of the result of the suit. | 1[ds]5. Two lines of reasoning seem to have governed the decisions of various High Courts on the interpretation of these words in the third column of Art. 31. The first is based on the consideration that it was for the railway to prove what time ought to be taken for the delivery of the goods and therefore limitation can only start when the railway says finally that it cannot deliver the goods. The second line of reasoning seems to be based on the principle of estoppel and is to the effect that where the railway enters into correspondence and says that efforts are being made to trace the goods the railway would be estopped from pleading that the time began to run from sometime anterior to the period before the correspondence on the question came to an end. It may however be noted that though the majority of the decisions follow these two lines of reasoning and hold that time begins to run only when the railway finally refuses to deliver the goods here and there a dissentient note has also seen struck. We shall consider some of these cases later6. Let us first see what these words in Art. 31 mean on a plain grammatical construction. It would be noticed that Art. 31 as it now stands after the Limitation Acts of 1877 and 1908, governs two class of cases, namely, (i) where there has been no delivery of goods and (ii) where there has been delay in delivering goods. In both class of cases the time begins to run from the date when the goods ought to be delivered. These words therefore in column three of the article must have a meaning which will apply equally to the two situations envisaged in column one. Whether there has been non-delivery or there has been delay in delivery, in either case limitation would run from the date when the goods ought to be delivered. Now it is not in dispute that if there is a term in a contract of carriage fixing when the goods have to be delivered that would be the time when the goods ought to be delivered within the meaning of the words used in the third column of Art. 31. The difficulty however arises in that class of cases where there is no term in the contract of carriage whether express or implied, from which the date on which the goods have to be delivered, can be inferred. It is in these cases that the question of interpretation of the words in the third column of Art. 31 seriously arises. But these words can only mean one thing whether it is a case of late delivery or of non-delivery. Reading the words in their plain grammatical meaning they are in our opinion capable of only one interpretation, namely, that they contemplate that the time would begin to run after a reasonable period has elapsed on the expiry of which the delivery ought to have been made. The words when the goods ought to be delivered can only mean the reasonable time taken in the absence of any term in the contract from which the time can be inferred expressly or impliedly in the carriage of the goods from the place of despatch to the place of destination. Take the case, where the cause of action is based on delay in delivering the goods. In such a case the goods have been delivered and the claim is based on the delay caused in the delivery. Obviously the question of delay can only be decided on the basis of what would be the reasonable time for the carriage of goods from the place of despatch to the place of destination. Any time taken over and above that would be a case of delay. Therefore, when we consider the interpretation of these words, in the third column with respect to the case of non-delivery, they must mean the same thing, namely, the reasonable time taken for the carriage of goods from the place of despatch to the place of destination. The view therefore taken by some of the High Courts that the time begins from the date when the railway finally refuses to deliver cannot be correct, for the words in the third column of Art. 31 are incapable of being interpreted as meaning the final refusal of the carrier to deliver. We may in this connection compare the language used in the third column of Art. 31 with certain other articles of the Limitation Act which will show that where the legislature intended that time should run from the date of refusal it has used appropriate words in that connection. For example, in Art. 18, which provides for a suit for compensation against Government when the acquisition is not completed, the time begins to run from the date of the refusal to complete. Similarly, in Art. 78 which provides for a suit by the payee against the drawer of a bill of exchange which has been dishonoured by non-acceptance, time begins to run from the date of the refusal to accept. Again in Art. 131 which provides for a suit to establish a periodically recurring right, the limitation begins to run when the plaintiff is first refused the enjoyment of the right. Therefore, if the legislature intended that in case of non-delivery, the limitation would start on the final refusal of the carrier to deliver, such a case would have been provided for by a separate article and we would have found appropriate words in the third column thereof. The very fact that Art. 31 deals with both cases of non-delivery of goods and delay in delivering the goods shows that in either arise the starting point of limitation is after reasonable time has elapsed for the carriage of goods from the place of despatch to the place of destination. The fact that what is reasonable time must depend upon the circumstances of each case and the further fact that the carrier may have to show eventually what is the reasonable time for carriage of goods would in our opinion make no difference to the interpretation of the words used in the third column of Art. 31. Nor do we think that there could be generally speaking any question of estoppel in the matter of the starting point of limitation because of any correspondence carried on between the carrier and the person whose goods are carried. But undoubtedly, if the correspondence discloses anything which may amount to an acknowledgment of liability of the carrier that will give a fresh starting point of limitation. As we have said already, the words in the third column refer to reasonable time taken for the carriage of goods from the place of despatch to the place of destination and this reasonable time generally speaking cannot be affected by the subsequent conduct of the parties. We are therefore of opinion that the answer given by the Full Bench in the case of Aminchand-Bholanath C. A. No. 97 of 1949 D/- 2-5-1956 : ((S) AIR 1957 Punj 49) (supra) that the limitation in such cases starts on the expiry of the time fixed between the parties and in the absence of any such agreement the limitation starts on the expiry of reasonable time which is to be decided according to the circumstances of each case, is correct8. This decision seems to suggest that the meaning of the relevant words in the third column is that limitation starts from the expiry of the reasonable time within which the goods should have been delivered. But it has taken into account the subsequent conduct of the railway and the fact that there was no refusal to deliver the goods till much later. It was therefore held that as the suit was brought within one year of the final refusal to deliver, it was within time. With respect, it is rather difficult to understand how the subsequent correspondence between the railway and the consignor or the consignee can make any difference to the starting point of limitation, when that correspondence only showed that the railway was trying to trace the goods. The period that might be taken in tracing the goods can have no relevance in determining the reasonable time that is required for the carriage of the goods from the place of despatch to the place of destination13. Let us therefore see what was the reasonable time within which the goods ought to have reached Jagadhari from Gujranwala in the present case. The appellant himself in his replication stated that the goods in ordinary course should have reached Jagadhari before August 15, 1947. Further in the notice that he gave on January 22, 1948, he stated that the cause of action arose on August 21 and 30, 1947, and on subsequent dates when he met with refusal to deliver the goods. The fact that the appellant gave notice under S. 80 of the Code of Civil Procedure in January 1948 in our opinion shows that even taking into account the extraordinary conditions prevailing on account of the partition of India in August 1947, the appellant was satisfied that the goods ought to have been delivered before January 22, 1948 when he gave the notice. If that was not so and if the clause of action had not arisen, there was no reason why the appellant should have given the notice under S. 80 in January 1948. We can see no difficulty therefore on the facts of this case in agreeing with the High Court that the goods ought to have been delivered even taking into account the extraordinary circumstances prevailing on account of partition within five or six months of the date on which they were sent, namely, August 5, 1947. This is also borne out by the fact that the appellant gave notice on January 22, 1948 i.e. about 5 1/2 months after the good had been consigned. In the circumstances the suit which was brought in December 1949 would be clearly barred by time, for we cannot take the reasonable time within which the goods ought to have been delivered in the circumstances of this case beyond January 22, 1948, when the notice under S. 80 was given. As to the correspondence between the parties it is enough to say that there is nothing in the correspondence which has any bearing on the reasonable time taken for the carriage of goods from Gujranwala to Jagadhari. It is true that on December 1, 1948, the appellant was informed by the Railway that the goods were still lying in Gujranwala because of the restrictions imposed by the Pakistan Government and he was asked to get the necessary permits from that government; but that in our opinion has nothing to do with the question of reasonable time to be taken for the carriage of goods from Gujranwala to Jagadhari. In the circumstances, the High Court was right in holding that the suit was barred by limitation under Art. 31It appears that in para. 9 of the plaint, the appellant relied on his being a displaced person in order to give jurisdiction to the court in Delhi where he filed the suit. But he does not seem to have relied on his being a displaced person on the question of limitation. The respondent in the written-statement denied that the appellant was a displaced person and nothing further happened with respect to this aspect of the matterOrdinarily we would not have allowed such a prayer when the point was not raised in the plaint; but considering that the appellant claims to be a displaced person who is registered in Delhi and also considering that he had to file this suit in forma pauperis probably on account of the circumstances arising from the partition of India, we think that the appellant should be given a chance to prove his case under the Act of 1948 as amended by the Act of 1950. We express no opinion on the question whether the appellant is a displaced person or whether he is entitled to the benefit of the Act of 1948 as amended by the Act of 1950. But we think in the interest of justice he should be given a chance to bring his case under the Act of 1948 as amended by the Act of 1950 in the matter of limitation subject to his paying all the costs incurred by the respondent up to date irrespective of the result of the suit. | 1 | 4,923 | 2,233 | ### Instruction:
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a part has not been delivered, for in such a case in the absence of special circumstances it should be easy to see that the reasonable time is that within which the bulk of the goods have been delivered. We may in this connection refer to Union of India v. Meghraj Agarwalla, AIR 1958 Cal 434 and Gajanand Rajgoria v. Union of India (S) AIR 1955 Pat 182 where it has been held that where a part of the consignment has been delivered, that should, in spite of the correspondence regarding inquiries and in the absence of circumstances leading to the contrary view, be taken to be the date when the goods ought to have been delivered as a whole within the meaning of those words in Art.31. The view taken therefore by the High Court in Aminchand Bholanaths case, C.A. No. 97 of 1949 D/- 2-5-1956 : ((S) AIR 1957 Punj 49) as to the interpretation of the words in the third column of Art. 31 is in our opinion correct. 13. Let us therefore see what was the reasonable time within which the goods ought to have reached Jagadhari from Gujranwala in the present case. The appellant himself in his replication stated that the goods in ordinary course should have reached Jagadhari before August 15, 1947. Further in the notice that he gave on January 22, 1948, he stated that the cause of action arose on August 21 and 30, 1947, and on subsequent dates when he met with refusal to deliver the goods. The fact that the appellant gave notice under S. 80 of the Code of Civil Procedure in January 1948 in our opinion shows that even taking into account the extraordinary conditions prevailing on account of the partition of India in August 1947, the appellant was satisfied that the goods ought to have been delivered before January 22, 1948 when he gave the notice. If that was not so and if the clause of action had not arisen, there was no reason why the appellant should have given the notice under S. 80 in January 1948. We can see no difficulty therefore on the facts of this case in agreeing with the High Court that the goods ought to have been delivered even taking into account the extraordinary circumstances prevailing on account of partition within five or six months of the date on which they were sent, namely, August 5, 1947. This is also borne out by the fact that the appellant gave notice on January 22, 1948 i.e. about 5 1/2 months after the good had been consigned. In the circumstances the suit which was brought in December 1949 would be clearly barred by time, for we cannot take the reasonable time within which the goods ought to have been delivered in the circumstances of this case beyond January 22, 1948, when the notice under S. 80 was given. As to the correspondence between the parties it is enough to say that there is nothing in the correspondence which has any bearing on the reasonable time taken for the carriage of goods from Gujranwala to Jagadhari. It is true that on December 1, 1948, the appellant was informed by the Railway that the goods were still lying in Gujranwala because of the restrictions imposed by the Pakistan Government and he was asked to get the necessary permits from that government; but that in our opinion has nothing to do with the question of reasonable time to be taken for the carriage of goods from Gujranwala to Jagadhari. In the circumstances, the High Court was right in holding that the suit was barred by limitation under Art. 31. 14. Learned counsel for the appellant however drew our attention to the Displaced Persons (Institution of Suits) Act (No. XLVII of 1948) as amended by the Displace Persons (Institution of Suits and Legal Proceedings) Amendment Act (No. LXVIII of 1950) and contended that the appellant being a displaced person would be entitled to file this suit under S. 8 of this Act as amended up to March 31, 1952. It appears that in para. 9 of the plaint, the appellant relied on his being a displaced person in order to give jurisdiction to the court in Delhi where he filed the suit. But he does not seem to have relied on his being a displaced person on the question of limitation. The respondent in the written-statement denied that the appellant was a displaced person and nothing further happened with respect to this aspect of the matter. Learned counsel for the appellant urges that in fact the appellant is a displaced person and would be entitled to the benefit of the Act of 1948 as amended by the Act of 1950 and on that basis his suit would be within time and that the suit might be remanded to allow the appellant to bring his case under the Act of 1948 as amended. Ordinarily we would not have allowed such a prayer when the point was not raised in the plaint; but considering that the appellant claims to be a displaced person who is registered in Delhi and also considering that he had to file this suit in forma pauperis probably on account of the circumstances arising from the partition of India, we think that the appellant should be given a chance to prove his case under the Act of 1948 as amended by the Act of 1950. We express no opinion on the question whether the appellant is a displaced person or whether he is entitled to the benefit of the Act of 1948 as amended by the Act of 1950. But we think in the interest of justice he should be given a chance to bring his case under the Act of 1948 as amended by the Act of 1950 in the matter of limitation subject to his paying all the costs incurred by the respondent up to date irrespective of the result of the suit.
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of liability of the carrier that will give a fresh starting point of limitation. As we have said already, the words in the third column refer to reasonable time taken for the carriage of goods from the place of despatch to the place of destination and this reasonable time generally speaking cannot be affected by the subsequent conduct of the parties. We are therefore of opinion that the answer given by the Full Bench in the case of Aminchand-Bholanath C. A. No. 97 of 1949 D/- 2-5-1956 : ((S) AIR 1957 Punj 49) (supra) that the limitation in such cases starts on the expiry of the time fixed between the parties and in the absence of any such agreement the limitation starts on the expiry of reasonable time which is to be decided according to the circumstances of each case, is correct8. This decision seems to suggest that the meaning of the relevant words in the third column is that limitation starts from the expiry of the reasonable time within which the goods should have been delivered. But it has taken into account the subsequent conduct of the railway and the fact that there was no refusal to deliver the goods till much later. It was therefore held that as the suit was brought within one year of the final refusal to deliver, it was within time. With respect, it is rather difficult to understand how the subsequent correspondence between the railway and the consignor or the consignee can make any difference to the starting point of limitation, when that correspondence only showed that the railway was trying to trace the goods. The period that might be taken in tracing the goods can have no relevance in determining the reasonable time that is required for the carriage of the goods from the place of despatch to the place of destination13. Let us therefore see what was the reasonable time within which the goods ought to have reached Jagadhari from Gujranwala in the present case. The appellant himself in his replication stated that the goods in ordinary course should have reached Jagadhari before August 15, 1947. Further in the notice that he gave on January 22, 1948, he stated that the cause of action arose on August 21 and 30, 1947, and on subsequent dates when he met with refusal to deliver the goods. The fact that the appellant gave notice under S. 80 of the Code of Civil Procedure in January 1948 in our opinion shows that even taking into account the extraordinary conditions prevailing on account of the partition of India in August 1947, the appellant was satisfied that the goods ought to have been delivered before January 22, 1948 when he gave the notice. If that was not so and if the clause of action had not arisen, there was no reason why the appellant should have given the notice under S. 80 in January 1948. We can see no difficulty therefore on the facts of this case in agreeing with the High Court that the goods ought to have been delivered even taking into account the extraordinary circumstances prevailing on account of partition within five or six months of the date on which they were sent, namely, August 5, 1947. This is also borne out by the fact that the appellant gave notice on January 22, 1948 i.e. about 5 1/2 months after the good had been consigned. In the circumstances the suit which was brought in December 1949 would be clearly barred by time, for we cannot take the reasonable time within which the goods ought to have been delivered in the circumstances of this case beyond January 22, 1948, when the notice under S. 80 was given. As to the correspondence between the parties it is enough to say that there is nothing in the correspondence which has any bearing on the reasonable time taken for the carriage of goods from Gujranwala to Jagadhari. It is true that on December 1, 1948, the appellant was informed by the Railway that the goods were still lying in Gujranwala because of the restrictions imposed by the Pakistan Government and he was asked to get the necessary permits from that government; but that in our opinion has nothing to do with the question of reasonable time to be taken for the carriage of goods from Gujranwala to Jagadhari. In the circumstances, the High Court was right in holding that the suit was barred by limitation under Art. 31It appears that in para. 9 of the plaint, the appellant relied on his being a displaced person in order to give jurisdiction to the court in Delhi where he filed the suit. But he does not seem to have relied on his being a displaced person on the question of limitation. The respondent in the written-statement denied that the appellant was a displaced person and nothing further happened with respect to this aspect of the matterOrdinarily we would not have allowed such a prayer when the point was not raised in the plaint; but considering that the appellant claims to be a displaced person who is registered in Delhi and also considering that he had to file this suit in forma pauperis probably on account of the circumstances arising from the partition of India, we think that the appellant should be given a chance to prove his case under the Act of 1948 as amended by the Act of 1950. We express no opinion on the question whether the appellant is a displaced person or whether he is entitled to the benefit of the Act of 1948 as amended by the Act of 1950. But we think in the interest of justice he should be given a chance to bring his case under the Act of 1948 as amended by the Act of 1950 in the matter of limitation subject to his paying all the costs incurred by the respondent up to date irrespective of the result of the suit.
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Dhian Singh Sobha Singh & Another Vs. The Union Of India | the owner is entitled to a reasonable hire. If the wrongdoer had asked the owner for permission to use the goods, the owner would be entitled to ask for a reasonable remuneration as the price of his permission. The wrongdoer cannot be better off by doing wrong than he would be by doing right. He must therefore pay a reasonable hire. 55. Mr. B. Sen, who appeared on behalf of the respondent, urged before us on the authority of Anderson v. Passman, 1835-7 C and P 193 (Z), that as the gist of the grievance is mere unlawful detention, the damages will be nominal unless the plaintiff proves that he has suffered special damage. This position is, however, of no avail to the respondent because it cannot be said that the appellants grievance here is merely in regard to the wrongful detention of the trucks. The appellants in this instant case have also claimed to recover from the respondent future damages from the date of detention till the date of delivery of the trucks and apart from any claim laid in special damages, these are damages which naturally flow for the wrongful act of the respondent and which the appellants would be entitled to recover in the event of non-delivery of the trucks to them by the respondent. 56. This is certainly not a case of nominal damages. As Earl of Halsbury L. C. pointed out in Owners of the Steamship Mediana v. Owners, Master and Crew of Lightship Comet 1900 AC 113 at p. 118 (ZI): the unlawful keeping back of what belongs to another person is of itself a ground for real damages, not nominal damages at all. The quantum of damages may be big or small but it does not make any difference to the principle. The principle of assessing the damages is the same and that is that where by the wrongful act of one man something belonging to another is either itself so injured as not to e capable of being used or is taken away so that it cannot be used at all, that of itself is a ground for damages. (Ibid p. 116). 57. In the case before us the appellants were the owners of the two trucks and they used to hire out the same to others. Hiring out of the trucks was regular business of theirs and if the said trucks had been re-delivered by the respondent to them on August 1,1942 they would have immediately put the same to the user viz., that of hiring them out to outsiders and earning thereby a certain sum by way of rent for each truck per day. The appellants might not have been able to hire them out for every day of the period of wrongful detention by the respondent viz., from August 1,1942 to July 7, 1944. As the learned Judges of the High Court have observed, there might be days when the days when the trucks would be out of use; there might be days when the trucks would lie idle for repairs and overhaul and so forth; that would only go to reduce the number of days for which the appellants would be entitled to recover the damages for such wrongful detention. If the learned Judges of the High Court had on taking all the circumstances into consideration arrived at the figure of Rs. 5,953 as the amount of hire which could have been reasonably earned by the appellants in the event of the re-delivery of the trucks by the respondent to them on August 1,1942, their judgment in this behalf could not have been successfully impeached. What they did, however was to confine the appellants claim to Rs. 5,953 on the ground that the appellants had claimed that amount in the first instance and had paid the court-fee on the same. They, therefore, took it that that sum of Rs. 5,953 represented a fair amount of damages for wrongful detention of the trucks according to the appellants. 58. We are of opinion that the High Court was clearly in error in adopting this basis for the award of damages. The payment of court fee stamp of Rs.5,953 was certainly not conclusive against the appellants because on its being pointed out by the Office of the Registrar, the appellants paid an additional court-fee stamp of Rs. 1,279-11-0 on February 28, 1945, and that was done because the appellants did not confine their claim merely to the said sum of Rs. 5,953. If, according to the judgment of the learned Judges of the High Court the appellants were entitled to damages for the wrongful detention of the said two trucks at the rate of Rs. 17 per day per truck from August 1,1942 to 7-71944, they ought to have made a reasonable calculation of the number of days for which the trucks would have been put to use by the appellants and awarded damages to the appellants accordingly. This, however, they failed to do. 59. In our opinion, the appellants are entitled to recover such damages from the respondent at the rate of Rs. 17 per truck per day for such reasonable period between August 1, 1942 to July 7, 1944, for which the appellants would have hired out the trucks to outside parties.The trucks were in a fairly good running conditions but were old models of 1938 and it will be quite reasonable to hold that they would have been in commission approximately for one year during that period. Calculating the hire of these trucks at the rate of Rs. 17 per truck per day the total amount of damages which the appellants would be entitled to recover from the respondent works out at Rs. 12,410. The appellants would therefore be entitled to recover over and above the sum of Rs. 5,953 already awarded to them by the High Court an additional sum of Rs. 6,457 by way of damages for wrongful detention of the said trucks by the respondent. | 1[ds]24.It is clear therefore that a bailor in the event of the non-delivery of the goods by the bailee on a demand made by him in that behalf is entitled at his election to sue the bailee either for wrongful conversion of the goods or the wrongful detention thereof and if the bailor pursues his remedy against the bailee for wrongful detention of the goods it would be no answer for the bailee to say that he was guilty of wrongful conversion of the goods at an earlier date which fact of conversion of the goods the plaintiff knew or ought to have known at or about that time and is therefore not liable to the plaintiff for wrongful detention thereof. It is the option of the plaintiff to pursue either remedy against the bailee just as it suits him having regard to all the circumstances of the case and the bailee cannot be heard to say anything to the contrary for the simple reason that he cannot take advantage of his won wrong and cannot ask the plaintiff to chose a remedy with may be less beneficial to him26. In the present case, however, we are not fettered by any such consideration. The respondent was the bailee of the two trucks and was bound to return the same to the appellants on the termination of the bailment. The bailment came to an end on August 1, 1942, and the appellants attended the office of the Officer Commanding 4 M. T. T. Centre, Kamptee on the said date for having the trucks re-delivered to them. When the said trucks were not so delivered the appellants immediately on August 14, 1948, gave the statutory notice to the res under S. 80 of the Code of Civil Procedure. The period of the said notice expired on or about October 14, 1942, and the appellants filed their action for wrongful detention on January 8, 1943. There was no delay on the part of the appellants which would spell out any intention on their part to take advantage of the rising market or to waive their remedy in wrongful conversion with a view to take advantage of the statute of litigation. There is no evidence to show that the market value of the trucks had appreciated perceptibly between August 1, 1942, and January 8, 1943, and it is significant to note that the only claim which the appellants had made in their notice dated August 4, 1942, was for specific delivery of the said trucks by the respondent. Even though the appellants knew that the said trucks had been re-delivered by the respondent to Surjan Singh and they could have, if they had been so minded, sued the respondent for wrongful conversion of the said trucks, they elected to have the said trucks re-delivered to them and asked for the specific delivery thereof and filed their action for wrongful detention of the said trucks. They were, in our opinion, perfectly entitled to do so and we have to consider the further questions that arise before us on the basis that the action for wrongful detention had been rightly instituted by the appellants against the respondentIn our judgment an assessment of the value of the goods detained (and not subsequently returned) at the date of the accrual of the cause of action (i.e., of the refusal of the plaintiffs demand) must presuppose that on that date the plaintiff abandoned his property in the goods: and such a premise is inconsistent with the pursuit by the plaintiff of his action of detinue. The significance of the date of the refusal of the plaintiffs demand is that the defendants failure to return the goods after that date becomes and continues to be, wrongful. Moreover, the plaintiff may recover damages in respect of the wrongful detention after that date, e.g., where the plaintiff has suffered loss from a fall in value of the goods between the date of the defendants refusal and the date of actual return, (See Willan v, Archer, (1847) 5 CB 318 (S) and such damages must equally continue to run until the return of the goods or (in default of return) until payment of their value. There is (as appears from the forms of judgment mentioned) a clear distinction between the value of the goods claimed in default of their return and damages for their detention, whether returned or not. The date of the refusal of the plaintiffs demand is the date from which the latter commence to run, but appears to be irrelevant to the former and cannot convert a claim for the return of the goods into a claim for payment of their value on that date52.It is, therefore, clear that in actions for wrongful detention the plaintiff is entitled on default of the defendant in re-delivering the goods to him, to payment in the alternative of the value of the goods thus wrongfully detained as at the date of the verdict or judgment, in other words, at the date of the decree. We are, therefore, of opinion, that the appellants were entitled to recover from the respondent the value of the said trucks which, as has been already stated, was Rs. 7,000 in the alternative on default committed by the respondent in redelivery of the same to the appellants58. We are of opinion that the High Court was clearly in error in adopting this basis for the award of damages. The payment of court fee stamp of Rs.5,953 was certainly not conclusive against the appellants because on its being pointed out by the Office of the Registrar, the appellants paid an additional court-fee stamp of Rs. 1,279-11-0 on February 28, 1945, and that was done because the appellants did not confine their claim merely to the said sum of Rs. 5,9559. In our opinion, the appellants are entitled to recover such damages from the respondent at the rate of Rs. 17 per truck per day for such reasonable period between August 1, 1942 to July 7, 1944, for which the appellants would have hired out the trucks to outside parties.The trucks were in a fairly good running conditions but were old models of 1938 and it will be quite reasonable to hold that they would have been in commission approximately for one year during that period. Calculating the hire of these trucks at the rate of Rs. 17 per truck per day the total amount of damages which the appellants would be entitled to recover from the respondent works out at Rs. 12,410. The appellants would therefore be entitled to recover over and above the sum of Rs. 5,953 already awarded to them by the High Court an additional sum of Rs. 6,457 by way of damages for wrongful detention of the said trucks by the respondent | 1 | 13,764 | 1,234 | ### Instruction:
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the owner is entitled to a reasonable hire. If the wrongdoer had asked the owner for permission to use the goods, the owner would be entitled to ask for a reasonable remuneration as the price of his permission. The wrongdoer cannot be better off by doing wrong than he would be by doing right. He must therefore pay a reasonable hire. 55. Mr. B. Sen, who appeared on behalf of the respondent, urged before us on the authority of Anderson v. Passman, 1835-7 C and P 193 (Z), that as the gist of the grievance is mere unlawful detention, the damages will be nominal unless the plaintiff proves that he has suffered special damage. This position is, however, of no avail to the respondent because it cannot be said that the appellants grievance here is merely in regard to the wrongful detention of the trucks. The appellants in this instant case have also claimed to recover from the respondent future damages from the date of detention till the date of delivery of the trucks and apart from any claim laid in special damages, these are damages which naturally flow for the wrongful act of the respondent and which the appellants would be entitled to recover in the event of non-delivery of the trucks to them by the respondent. 56. This is certainly not a case of nominal damages. As Earl of Halsbury L. C. pointed out in Owners of the Steamship Mediana v. Owners, Master and Crew of Lightship Comet 1900 AC 113 at p. 118 (ZI): the unlawful keeping back of what belongs to another person is of itself a ground for real damages, not nominal damages at all. The quantum of damages may be big or small but it does not make any difference to the principle. The principle of assessing the damages is the same and that is that where by the wrongful act of one man something belonging to another is either itself so injured as not to e capable of being used or is taken away so that it cannot be used at all, that of itself is a ground for damages. (Ibid p. 116). 57. In the case before us the appellants were the owners of the two trucks and they used to hire out the same to others. Hiring out of the trucks was regular business of theirs and if the said trucks had been re-delivered by the respondent to them on August 1,1942 they would have immediately put the same to the user viz., that of hiring them out to outsiders and earning thereby a certain sum by way of rent for each truck per day. The appellants might not have been able to hire them out for every day of the period of wrongful detention by the respondent viz., from August 1,1942 to July 7, 1944. As the learned Judges of the High Court have observed, there might be days when the days when the trucks would be out of use; there might be days when the trucks would lie idle for repairs and overhaul and so forth; that would only go to reduce the number of days for which the appellants would be entitled to recover the damages for such wrongful detention. If the learned Judges of the High Court had on taking all the circumstances into consideration arrived at the figure of Rs. 5,953 as the amount of hire which could have been reasonably earned by the appellants in the event of the re-delivery of the trucks by the respondent to them on August 1,1942, their judgment in this behalf could not have been successfully impeached. What they did, however was to confine the appellants claim to Rs. 5,953 on the ground that the appellants had claimed that amount in the first instance and had paid the court-fee on the same. They, therefore, took it that that sum of Rs. 5,953 represented a fair amount of damages for wrongful detention of the trucks according to the appellants. 58. We are of opinion that the High Court was clearly in error in adopting this basis for the award of damages. The payment of court fee stamp of Rs.5,953 was certainly not conclusive against the appellants because on its being pointed out by the Office of the Registrar, the appellants paid an additional court-fee stamp of Rs. 1,279-11-0 on February 28, 1945, and that was done because the appellants did not confine their claim merely to the said sum of Rs. 5,953. If, according to the judgment of the learned Judges of the High Court the appellants were entitled to damages for the wrongful detention of the said two trucks at the rate of Rs. 17 per day per truck from August 1,1942 to 7-71944, they ought to have made a reasonable calculation of the number of days for which the trucks would have been put to use by the appellants and awarded damages to the appellants accordingly. This, however, they failed to do. 59. In our opinion, the appellants are entitled to recover such damages from the respondent at the rate of Rs. 17 per truck per day for such reasonable period between August 1, 1942 to July 7, 1944, for which the appellants would have hired out the trucks to outside parties.The trucks were in a fairly good running conditions but were old models of 1938 and it will be quite reasonable to hold that they would have been in commission approximately for one year during that period. Calculating the hire of these trucks at the rate of Rs. 17 per truck per day the total amount of damages which the appellants would be entitled to recover from the respondent works out at Rs. 12,410. The appellants would therefore be entitled to recover over and above the sum of Rs. 5,953 already awarded to them by the High Court an additional sum of Rs. 6,457 by way of damages for wrongful detention of the said trucks by the respondent.
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as it suits him having regard to all the circumstances of the case and the bailee cannot be heard to say anything to the contrary for the simple reason that he cannot take advantage of his won wrong and cannot ask the plaintiff to chose a remedy with may be less beneficial to him26. In the present case, however, we are not fettered by any such consideration. The respondent was the bailee of the two trucks and was bound to return the same to the appellants on the termination of the bailment. The bailment came to an end on August 1, 1942, and the appellants attended the office of the Officer Commanding 4 M. T. T. Centre, Kamptee on the said date for having the trucks re-delivered to them. When the said trucks were not so delivered the appellants immediately on August 14, 1948, gave the statutory notice to the res under S. 80 of the Code of Civil Procedure. The period of the said notice expired on or about October 14, 1942, and the appellants filed their action for wrongful detention on January 8, 1943. There was no delay on the part of the appellants which would spell out any intention on their part to take advantage of the rising market or to waive their remedy in wrongful conversion with a view to take advantage of the statute of litigation. There is no evidence to show that the market value of the trucks had appreciated perceptibly between August 1, 1942, and January 8, 1943, and it is significant to note that the only claim which the appellants had made in their notice dated August 4, 1942, was for specific delivery of the said trucks by the respondent. Even though the appellants knew that the said trucks had been re-delivered by the respondent to Surjan Singh and they could have, if they had been so minded, sued the respondent for wrongful conversion of the said trucks, they elected to have the said trucks re-delivered to them and asked for the specific delivery thereof and filed their action for wrongful detention of the said trucks. They were, in our opinion, perfectly entitled to do so and we have to consider the further questions that arise before us on the basis that the action for wrongful detention had been rightly instituted by the appellants against the respondentIn our judgment an assessment of the value of the goods detained (and not subsequently returned) at the date of the accrual of the cause of action (i.e., of the refusal of the plaintiffs demand) must presuppose that on that date the plaintiff abandoned his property in the goods: and such a premise is inconsistent with the pursuit by the plaintiff of his action of detinue. The significance of the date of the refusal of the plaintiffs demand is that the defendants failure to return the goods after that date becomes and continues to be, wrongful. Moreover, the plaintiff may recover damages in respect of the wrongful detention after that date, e.g., where the plaintiff has suffered loss from a fall in value of the goods between the date of the defendants refusal and the date of actual return, (See Willan v, Archer, (1847) 5 CB 318 (S) and such damages must equally continue to run until the return of the goods or (in default of return) until payment of their value. There is (as appears from the forms of judgment mentioned) a clear distinction between the value of the goods claimed in default of their return and damages for their detention, whether returned or not. The date of the refusal of the plaintiffs demand is the date from which the latter commence to run, but appears to be irrelevant to the former and cannot convert a claim for the return of the goods into a claim for payment of their value on that date52.It is, therefore, clear that in actions for wrongful detention the plaintiff is entitled on default of the defendant in re-delivering the goods to him, to payment in the alternative of the value of the goods thus wrongfully detained as at the date of the verdict or judgment, in other words, at the date of the decree. We are, therefore, of opinion, that the appellants were entitled to recover from the respondent the value of the said trucks which, as has been already stated, was Rs. 7,000 in the alternative on default committed by the respondent in redelivery of the same to the appellants58. We are of opinion that the High Court was clearly in error in adopting this basis for the award of damages. The payment of court fee stamp of Rs.5,953 was certainly not conclusive against the appellants because on its being pointed out by the Office of the Registrar, the appellants paid an additional court-fee stamp of Rs. 1,279-11-0 on February 28, 1945, and that was done because the appellants did not confine their claim merely to the said sum of Rs. 5,9559. In our opinion, the appellants are entitled to recover such damages from the respondent at the rate of Rs. 17 per truck per day for such reasonable period between August 1, 1942 to July 7, 1944, for which the appellants would have hired out the trucks to outside parties.The trucks were in a fairly good running conditions but were old models of 1938 and it will be quite reasonable to hold that they would have been in commission approximately for one year during that period. Calculating the hire of these trucks at the rate of Rs. 17 per truck per day the total amount of damages which the appellants would be entitled to recover from the respondent works out at Rs. 12,410. The appellants would therefore be entitled to recover over and above the sum of Rs. 5,953 already awarded to them by the High Court an additional sum of Rs. 6,457 by way of damages for wrongful detention of the said trucks by the respondent
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THE DIVISIONAL MANAGER, APSRTC & ANR Vs. B. VENKATAIAH | of the learned Single Judge was affirmed by the Division Bench in a Writ Appeal. 6. Mr. Gourab Banerji, learned senior counsel appearing on behalf of the appellants submits that there was a manifest error on the part of both the learned Single Judge and the Division Bench. In the present case, a disciplinary enquiry was held against the workman after which an initial decision was taken to terminate him from service. In a departmental review, he was granted fresh appointment. Neither the termination nor the order granting him fresh appointment as a contract driver were challenged. As a matter of fact, it has also been submitted that in certain other cases, the workmen had taken recourse to proceedings before the Industrial Court but in the present case that was not done. Be that as it may, the learned Single Judge relied on the earlier decision and issued directions, to govern the entire batch of cases. This direction was confirmed by the Division Bench without having regard to the facts of individual cases.7. Since the order of the learned Single Judge in the present case, was exclusively based on the earlier decision dated 29.02.2012, a copy of that judgment has been placed on the record. The judgment of the Single Judge indicates that the earlier case also dealt with persons who were working as contract employees who were appointed after a regular selection. In some cases, termination orders were passed without an enquiry on allegations of misconduct while in other cases, an enquiry was conducted. The learned Single Judge, issued the following directions in terms as agreed in that case:?(1) In cases where the appellate/revisional authority has directed reengagement of the contract employees as fresh employees, such employees shall be entitled to benefit of continuity of service from the date of termination till the date of reengagement, except for the period during which they were absent, and the said continuity of service granted to the employees shall be without any monetary benefit and shall be counted only for the purpose of regularization at a future date. (2)The continuity of service so ordered in para (1) shall not, however, be counted for the purpose of seniority and shall not be allowed to affect the seniority of regularly working employees or for other benefits, but shall be counted only for the purpose of considering their cases for regularization.(3)There are also cases where the orders of termination are challenged, either before the appellate/revisional authorities or before this Court, after six or seven years of date of termination. In all such cases the benefit of continuity of service without any monetary benefit and reengagement so ordered in para (1) shall be available to only to such of those employees who have approached the appellate/revisional authorities or this Court within three years from the date of termination.(4)In cases where appeals/revisions or writ petitions are filed after three years of the orders of termination, it is directed that the such petitioner/s shall be considered for re-engagement as fresh contract employee/s, subject to medical fitness and other formalities, but he/they shall not be entitled to continuity of past service as under para(1) above.(5)In cases where contract employees have preferred appeals/revisions, but no orders have been passed therein, the appellate/revisional authorities shall entertain and dispose of those appeals/revisions in the light of the directions referred to above, preferably on or before 31st March, 2012.(6)In cases where no enquiry was conducted, the respondent Corporation shall be free to conduct enquiry as per law into the allegations of unauthorised absence of its employees from duty or other allegations of misconduct.? 8. In the present case, the workman did not choose to assail either the termination of his services following the enquiry or the fresh appointment. All that was sought was that he should have the benefit of continuity of service from the date of the earlier termination until reengagement.9. Such a direction could not have been issued by the learned Single Judge without the termination being put into question. The grant of continuity was not sustainable for the simple reason that unless the order of termination and of the fresh appointment were challenged and adjudicated upon, seniority would necessarily have to count with effect from the date of the fresh appointment. As a matter of first principle, continuity can be granted when an order of termination is set aside, to ensure that there is no hiatus in service.10. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived.11. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct.12. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case. | 1[ds]In the present case, a disciplinary enquiry was held against the workman after which an initial decision was taken to terminate him from service. In a departmental review, he was granted fresh appointment. Neither the termination nor the order granting him fresh appointment as a contract driver were challenged. As a matter of fact, it has also been submitted that in certain other cases, the workmen had taken recourse to proceedings before the Industrial Court but in the present case that was not done. Be that as it may, the learned Single Judge relied on the earlier decision and issued directions, to govern the entire batch of cases. This direction was confirmed by the Division Bench without having regard to the facts of individual cases7. Since the order of the learned Single Judge in the present case, was exclusively based on the earlier decision dated 29.02.2012, a copy of that judgment has been placed on the record. The judgment of the Single Judge indicates that the earlier case also dealt with persons who were working as contract employees who were appointed after a regular selection. In some cases, termination orders were passed without an enquiry on allegations of misconduct while in other cases, an enquiry was conducted8. In the present case, the workman did not choose to assail either the termination of his services following the enquiry or the fresh appointment. All that was sought was that he should have the benefit of continuity of service from the date of the earlier termination until reengagement9. Such a direction could not have been issued by the learned Single Judge without the termination being put into question. The grant of continuity was not sustainable for the simple reason that unless the order of termination and of the fresh appointment were challenged and adjudicated upon, seniority would necessarily have to count with effect from the date of the fresh appointment. As a matter of first principle, continuity can be granted when an order of termination is set aside, to ensure that there is no hiatus in service10. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived11. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct12. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case. | 1 | 1,559 | 657 | ### Instruction:
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of the learned Single Judge was affirmed by the Division Bench in a Writ Appeal. 6. Mr. Gourab Banerji, learned senior counsel appearing on behalf of the appellants submits that there was a manifest error on the part of both the learned Single Judge and the Division Bench. In the present case, a disciplinary enquiry was held against the workman after which an initial decision was taken to terminate him from service. In a departmental review, he was granted fresh appointment. Neither the termination nor the order granting him fresh appointment as a contract driver were challenged. As a matter of fact, it has also been submitted that in certain other cases, the workmen had taken recourse to proceedings before the Industrial Court but in the present case that was not done. Be that as it may, the learned Single Judge relied on the earlier decision and issued directions, to govern the entire batch of cases. This direction was confirmed by the Division Bench without having regard to the facts of individual cases.7. Since the order of the learned Single Judge in the present case, was exclusively based on the earlier decision dated 29.02.2012, a copy of that judgment has been placed on the record. The judgment of the Single Judge indicates that the earlier case also dealt with persons who were working as contract employees who were appointed after a regular selection. In some cases, termination orders were passed without an enquiry on allegations of misconduct while in other cases, an enquiry was conducted. The learned Single Judge, issued the following directions in terms as agreed in that case:?(1) In cases where the appellate/revisional authority has directed reengagement of the contract employees as fresh employees, such employees shall be entitled to benefit of continuity of service from the date of termination till the date of reengagement, except for the period during which they were absent, and the said continuity of service granted to the employees shall be without any monetary benefit and shall be counted only for the purpose of regularization at a future date. (2)The continuity of service so ordered in para (1) shall not, however, be counted for the purpose of seniority and shall not be allowed to affect the seniority of regularly working employees or for other benefits, but shall be counted only for the purpose of considering their cases for regularization.(3)There are also cases where the orders of termination are challenged, either before the appellate/revisional authorities or before this Court, after six or seven years of date of termination. In all such cases the benefit of continuity of service without any monetary benefit and reengagement so ordered in para (1) shall be available to only to such of those employees who have approached the appellate/revisional authorities or this Court within three years from the date of termination.(4)In cases where appeals/revisions or writ petitions are filed after three years of the orders of termination, it is directed that the such petitioner/s shall be considered for re-engagement as fresh contract employee/s, subject to medical fitness and other formalities, but he/they shall not be entitled to continuity of past service as under para(1) above.(5)In cases where contract employees have preferred appeals/revisions, but no orders have been passed therein, the appellate/revisional authorities shall entertain and dispose of those appeals/revisions in the light of the directions referred to above, preferably on or before 31st March, 2012.(6)In cases where no enquiry was conducted, the respondent Corporation shall be free to conduct enquiry as per law into the allegations of unauthorised absence of its employees from duty or other allegations of misconduct.? 8. In the present case, the workman did not choose to assail either the termination of his services following the enquiry or the fresh appointment. All that was sought was that he should have the benefit of continuity of service from the date of the earlier termination until reengagement.9. Such a direction could not have been issued by the learned Single Judge without the termination being put into question. The grant of continuity was not sustainable for the simple reason that unless the order of termination and of the fresh appointment were challenged and adjudicated upon, seniority would necessarily have to count with effect from the date of the fresh appointment. As a matter of first principle, continuity can be granted when an order of termination is set aside, to ensure that there is no hiatus in service.10. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived.11. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct.12. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case.
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In the present case, a disciplinary enquiry was held against the workman after which an initial decision was taken to terminate him from service. In a departmental review, he was granted fresh appointment. Neither the termination nor the order granting him fresh appointment as a contract driver were challenged. As a matter of fact, it has also been submitted that in certain other cases, the workmen had taken recourse to proceedings before the Industrial Court but in the present case that was not done. Be that as it may, the learned Single Judge relied on the earlier decision and issued directions, to govern the entire batch of cases. This direction was confirmed by the Division Bench without having regard to the facts of individual cases7. Since the order of the learned Single Judge in the present case, was exclusively based on the earlier decision dated 29.02.2012, a copy of that judgment has been placed on the record. The judgment of the Single Judge indicates that the earlier case also dealt with persons who were working as contract employees who were appointed after a regular selection. In some cases, termination orders were passed without an enquiry on allegations of misconduct while in other cases, an enquiry was conducted8. In the present case, the workman did not choose to assail either the termination of his services following the enquiry or the fresh appointment. All that was sought was that he should have the benefit of continuity of service from the date of the earlier termination until reengagement9. Such a direction could not have been issued by the learned Single Judge without the termination being put into question. The grant of continuity was not sustainable for the simple reason that unless the order of termination and of the fresh appointment were challenged and adjudicated upon, seniority would necessarily have to count with effect from the date of the fresh appointment. As a matter of first principle, continuity can be granted when an order of termination is set aside, to ensure that there is no hiatus in service10. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived11. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct12. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case.
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VVF (India) Limited Vs. The State of Maharashtra & Ors | against an order, in which claim against declaration or certificate, has been disallowed on the ground of non-production of such declaration or, as the case may be, certificate then, amount of tax, as provided in the proviso to sub-section (6), (b) in case of an appeal against an order, which involves disallowance of claims as stated in clause (a) above and also tax liability on other grounds, then, an amount equal to 10 per cent of the amount of tax, disputed by the appellant so far as such tax liability pertains to tax, on grounds, other than those mentioned in clause (a), (c) in case of an appeal against an order, other than an order, described in clauses (a) and (b) above, an amount equal to 10 per cent. of the amount of tax disputed by the appellant, (d) in case of an appeal against a separate order imposing only penalty, deposit of an amount, as directed by the appellate authority, which shall not in any case, exceed 10 per cent of the amount of penalty, disputed by appellant. 9. Mr V Sridharan, Senior Counsel appearing on behalf of the appellant, submits that: (i) clauses (b) and (c) of Section 26(6A) stipulate that the appeal has to be filed, together with proof of payment of an amount equal to 10 per cent of the amount of tax disputed by the appellant; (ii) The statutory provision does not stipulate that 10 per cent of the tax in arrears has to be deposited, but requires that 10 per cent of the tax disputed by the appellant has to accompany the filing of the appeal, together with the full amount of the undisputed tax; and (iii) Since the entirety of the tax, as assessed and demanded, has been disputed, 10 per cent of that amount was required to be deposited, together with the appeal and the amount which was paid under protest, cannot be excluded from consideration. 10. On the other hand, Mr Rahul Chitnis, Chief Standing Counsel for the State of Maharashtra, submitted that the dispute arises after the order of assessment, which was made under the provisions of Section 23 of the MVAT Act. Consequently, 10 per cent of the amount of tax, as demanded in pursuance of the order of assessment, has to be paid as a condition precedent for filing the appeal. 11. While analyzing the rival submissions, it is necessary to note, at the outset, that, under the provisions of Section 26(6A), the aggregate of the amounts stipulated in the sub-clauses of the provision has to be deposited and proof of payment is required to be produced together with the filing of the appeal. Both clauses (b) and (c) employ the expression an amount equal to ten per cent of the amount of tax disputed by the appellant. The entirety of the undisputed amount has to be deposited and 10 per cent of the disputed amount of tax is required to be deposited by the appellant. In the present case, the appellant disputes the entirety of the tax demand. Consequently, on the plain language of the statute, 10 per cent of the entire disputed tax liability would have to be deposited in pursuance of Section 26(6A). The amount which has been deposited by the appellant anterior to the order of assessment cannot be excluded from consideration, in the absence of statutory language to that effect. A taxing statute must be construed strictly and literally. There is no room for intendment. If the legislature intended that the protest payment should not be set off as the deposit amount, then a provision would have to be made to the effect that 10 per cent of the amount of tax in arrears is required to be deposited which is not the case. Justice Bhagwati in A.V Fernandez v. State of Kerala AIR 1957 SC 657 , writing for a Constitution Bench, elucidated the principle of strict interpretation in construing a taxing statue as follows: 29. In construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law. If the revenue satisfies the court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case of not covered within the four corners of the provisions of the taxing statue, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the Legislature and by considering what was the substance of the matter. 12. The High Court, while rejecting the petition, placed reliance on the fact that there has to be a proof of payment of the aggregate of the amounts, as set out in clauses (a) to (d) of Section 26(6A). The second reason which weighed with the High Court, is that any payment, which has been made albeit under protest, will be adjusted against the total liability and demand to follow. Neither of these considerations can affect the interpretation of the plain language of the words which have been used by the legislature in Section 26(6A). The provisions of a taxing statute have to be construed as they stand, adopting the plain and grammatical meaning of the words used. Consequently, the appellant was liable to pay, in terms of Section 26(6A), 10 per cent of the tax disputed together with the filing of the appeal. There is no reason why the amount which was paid under protest, should not be taken into consideration. It is common ground that if that amount is taken into account, the provisions of the statute were duly complied with. Hence, the rejection of the appeal was not in order and the appeal would have to be restored to the file of the appellate authority, subject to due verification that 10 per cent of the amount of tax disputed, as interpreted by the terms of this judgment, has been duly deposited by the appellant. | 1[ds]11. While analyzing the rival submissions, it is necessary to note, at the outset, that, under the provisions of Section 26(6A), the aggregate of the amounts stipulated in the sub-clauses of the provision has to be deposited and proof of payment is required to be produced together with the filing of the appeal. Both clauses (b) and (c) employ the expression an amount equal to ten per cent of the amount of tax disputed by the appellant. The entirety of the undisputed amount has to be deposited and 10 per cent of the disputed amount of tax is required to be deposited by the appellant. In the present case, the appellant disputes the entirety of the tax demand. Consequently, on the plain language of the statute, 10 per cent of the entire disputed tax liability would have to be deposited in pursuance of Section 26(6A). The amount which has been deposited by the appellant anterior to the order of assessment cannot be excluded from consideration, in the absence of statutory language to that effect. A taxing statute must be construed strictly and literally. There is no room for intendment. If the legislature intended that the protest payment should not be set off as the deposit amount, then a provision would have to be made to the effect that 10 per cent of the amount of tax in arrears is required to be deposited which is not the case. Justice Bhagwati in A.V Fernandez v. State of Kerala AIR 1957 SC 657 , writing for a Constitution Bench, elucidated the principle of strict interpretation in construing a taxing statue as follows:29. In construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law. If the revenue satisfies the court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case of not covered within the four corners of the provisions of the taxing statue, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the Legislature and by considering what was the substance of the matter.12. The High Court, while rejecting the petition, placed reliance on the fact that there has to be a proof of payment of the aggregate of the amounts, as set out in clauses (a) to (d) of Section 26(6A). The second reason which weighed with the High Court, is that any payment, which has been made albeit under protest, will be adjusted against the total liability and demand to follow. Neither of these considerations can affect the interpretation of the plain language of the words which have been used by the legislature in Section 26(6A). The provisions of a taxing statute have to be construed as they stand, adopting the plain and grammatical meaning of the words used. Consequently, the appellant was liable to pay, in terms of Section 26(6A), 10 per cent of the tax disputed together with the filing of the appeal. There is no reason why the amount which was paid under protest, should not be taken into consideration. It is common ground that if that amount is taken into account, the provisions of the statute were duly complied with. Hence, the rejection of the appeal was not in order and the appeal would have to be restored to the file of the appellate authority, subject to due verification that 10 per cent of the amount of tax disputed, as interpreted by the terms of this judgment, has been duly deposited by the appellant. | 1 | 1,866 | 686 | ### 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:
against an order, in which claim against declaration or certificate, has been disallowed on the ground of non-production of such declaration or, as the case may be, certificate then, amount of tax, as provided in the proviso to sub-section (6), (b) in case of an appeal against an order, which involves disallowance of claims as stated in clause (a) above and also tax liability on other grounds, then, an amount equal to 10 per cent of the amount of tax, disputed by the appellant so far as such tax liability pertains to tax, on grounds, other than those mentioned in clause (a), (c) in case of an appeal against an order, other than an order, described in clauses (a) and (b) above, an amount equal to 10 per cent. of the amount of tax disputed by the appellant, (d) in case of an appeal against a separate order imposing only penalty, deposit of an amount, as directed by the appellate authority, which shall not in any case, exceed 10 per cent of the amount of penalty, disputed by appellant. 9. Mr V Sridharan, Senior Counsel appearing on behalf of the appellant, submits that: (i) clauses (b) and (c) of Section 26(6A) stipulate that the appeal has to be filed, together with proof of payment of an amount equal to 10 per cent of the amount of tax disputed by the appellant; (ii) The statutory provision does not stipulate that 10 per cent of the tax in arrears has to be deposited, but requires that 10 per cent of the tax disputed by the appellant has to accompany the filing of the appeal, together with the full amount of the undisputed tax; and (iii) Since the entirety of the tax, as assessed and demanded, has been disputed, 10 per cent of that amount was required to be deposited, together with the appeal and the amount which was paid under protest, cannot be excluded from consideration. 10. On the other hand, Mr Rahul Chitnis, Chief Standing Counsel for the State of Maharashtra, submitted that the dispute arises after the order of assessment, which was made under the provisions of Section 23 of the MVAT Act. Consequently, 10 per cent of the amount of tax, as demanded in pursuance of the order of assessment, has to be paid as a condition precedent for filing the appeal. 11. While analyzing the rival submissions, it is necessary to note, at the outset, that, under the provisions of Section 26(6A), the aggregate of the amounts stipulated in the sub-clauses of the provision has to be deposited and proof of payment is required to be produced together with the filing of the appeal. Both clauses (b) and (c) employ the expression an amount equal to ten per cent of the amount of tax disputed by the appellant. The entirety of the undisputed amount has to be deposited and 10 per cent of the disputed amount of tax is required to be deposited by the appellant. In the present case, the appellant disputes the entirety of the tax demand. Consequently, on the plain language of the statute, 10 per cent of the entire disputed tax liability would have to be deposited in pursuance of Section 26(6A). The amount which has been deposited by the appellant anterior to the order of assessment cannot be excluded from consideration, in the absence of statutory language to that effect. A taxing statute must be construed strictly and literally. There is no room for intendment. If the legislature intended that the protest payment should not be set off as the deposit amount, then a provision would have to be made to the effect that 10 per cent of the amount of tax in arrears is required to be deposited which is not the case. Justice Bhagwati in A.V Fernandez v. State of Kerala AIR 1957 SC 657 , writing for a Constitution Bench, elucidated the principle of strict interpretation in construing a taxing statue as follows: 29. In construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law. If the revenue satisfies the court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case of not covered within the four corners of the provisions of the taxing statue, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the Legislature and by considering what was the substance of the matter. 12. The High Court, while rejecting the petition, placed reliance on the fact that there has to be a proof of payment of the aggregate of the amounts, as set out in clauses (a) to (d) of Section 26(6A). The second reason which weighed with the High Court, is that any payment, which has been made albeit under protest, will be adjusted against the total liability and demand to follow. Neither of these considerations can affect the interpretation of the plain language of the words which have been used by the legislature in Section 26(6A). The provisions of a taxing statute have to be construed as they stand, adopting the plain and grammatical meaning of the words used. Consequently, the appellant was liable to pay, in terms of Section 26(6A), 10 per cent of the tax disputed together with the filing of the appeal. There is no reason why the amount which was paid under protest, should not be taken into consideration. It is common ground that if that amount is taken into account, the provisions of the statute were duly complied with. Hence, the rejection of the appeal was not in order and the appeal would have to be restored to the file of the appellate authority, subject to due verification that 10 per cent of the amount of tax disputed, as interpreted by the terms of this judgment, has been duly deposited by the appellant.
### Response:
1
### Explanation:
11. While analyzing the rival submissions, it is necessary to note, at the outset, that, under the provisions of Section 26(6A), the aggregate of the amounts stipulated in the sub-clauses of the provision has to be deposited and proof of payment is required to be produced together with the filing of the appeal. Both clauses (b) and (c) employ the expression an amount equal to ten per cent of the amount of tax disputed by the appellant. The entirety of the undisputed amount has to be deposited and 10 per cent of the disputed amount of tax is required to be deposited by the appellant. In the present case, the appellant disputes the entirety of the tax demand. Consequently, on the plain language of the statute, 10 per cent of the entire disputed tax liability would have to be deposited in pursuance of Section 26(6A). The amount which has been deposited by the appellant anterior to the order of assessment cannot be excluded from consideration, in the absence of statutory language to that effect. A taxing statute must be construed strictly and literally. There is no room for intendment. If the legislature intended that the protest payment should not be set off as the deposit amount, then a provision would have to be made to the effect that 10 per cent of the amount of tax in arrears is required to be deposited which is not the case. Justice Bhagwati in A.V Fernandez v. State of Kerala AIR 1957 SC 657 , writing for a Constitution Bench, elucidated the principle of strict interpretation in construing a taxing statue as follows:29. In construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law. If the revenue satisfies the court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case of not covered within the four corners of the provisions of the taxing statue, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the Legislature and by considering what was the substance of the matter.12. The High Court, while rejecting the petition, placed reliance on the fact that there has to be a proof of payment of the aggregate of the amounts, as set out in clauses (a) to (d) of Section 26(6A). The second reason which weighed with the High Court, is that any payment, which has been made albeit under protest, will be adjusted against the total liability and demand to follow. Neither of these considerations can affect the interpretation of the plain language of the words which have been used by the legislature in Section 26(6A). The provisions of a taxing statute have to be construed as they stand, adopting the plain and grammatical meaning of the words used. Consequently, the appellant was liable to pay, in terms of Section 26(6A), 10 per cent of the tax disputed together with the filing of the appeal. There is no reason why the amount which was paid under protest, should not be taken into consideration. It is common ground that if that amount is taken into account, the provisions of the statute were duly complied with. Hence, the rejection of the appeal was not in order and the appeal would have to be restored to the file of the appellate authority, subject to due verification that 10 per cent of the amount of tax disputed, as interpreted by the terms of this judgment, has been duly deposited by the appellant.
|
Shadab Ahmed Khan and Ors Vs. Mujahid Beg and Ors | Appellants and Respondent Nos. 6 and 7 from being appointed as Professor. The High Court did not go into any other issue in view of the findings recorded on the lack of qualification on the part of the Appellants and Respondent Nos. 6 and 7.4. The Aligarh Muslim University is a Central University governed by the Universities Act, 1920. It is an autonomous organization fully funded by the Government of India. The Regulations framed by the University Grants Commission (UGC) are applicable to the University. The service conditions, appointments and promotions of teachers in the University are governed by the statutes of the University and the Ordinances promulgated by the Executive Council/Academic Council.5. For a better understanding of the controversy it would be relevant to refer to the provisions of the UGC Regulations. The UGC Regulations of Minimum qualification for Appointment of teachers and other Academic Staff in Universities, Colleges and measures for maintenance of Standards in Higher Education (hereinafter referred to as UGC Regulations) were framed in 2010. The Regulations were made applicable to the University and college teachers, lecturers, directors of physical education admitted to the privileges of the University. Clause 1.1.1 provides that for teachers in the faculty of medicine, the norms/Regulations of Ministry of Health and Family Welfare, Government of India shall apply. Clause 4.1.0 which deals with the direct recruitment for the post of Professors provides for Ph.D. qualification for appointment to the said post. Clause 6.4.8 of the UGC Regulations concerns the promotion to be granted under the Career Advancement Scheme and provides that the educational qualification for appointment/promotion as a Professor and Associate Professor is a Ph.D. Clause 4.1.0 and Clause 6.4.8 are not applicable to teachers working in the faculty of medicine as they would be governed by Regulations of Ministry of Health and Family Welfare, Government of India as per Clause 1.1.1.6. The Aligarh Muslim University made suitable amendments to the Ordinances (Executive) for promotion under the Career Advancement Scheme to bring it in accord with the UGC Regulations of 2010. Clause 12.5 of Chapter IV of the Ordinance (Executive) contemplates that no teacher shall be promoted without a Ph.D. degree. Clause 12 (19) of the Ordinances (Executive) provides for prescription of the minimum qualifications for candidates from the faculty of medicine by the Medical Council of India (MCI) and it reads as follows:12 (19) the candidates from the faculty of medicine and Unani Medicine possessing minimum qualifications as prescribed by the MCI and CCIM/AYUSH, respectively for the posts of Associate Professor and Professor may also apply for promotion under these Ordinances subject to their fulfilling other conditions as laid down in these Ordinances.7. A perusal of the UGC Regulations, 2010, referred to above, would clearly show that the minimum qualifications prescribed by the Government of India are applicable to the teachers working in the faculty of medicine in the University. Clause 12 (19) of Chapter IV of the Ordinances (Executive) makes it clear that teachers in the faculty of medicine should possess qualification as prescribed by the MCI. The MCI Regulations, placed before us, shows that MD/MS is the minimum qualification for appointment to the post of Professor in a medical college.8. The UGC has to be blamed for the confusion that was created in determining the eligibility criterion for promotion to the post of Professor. The Counsel for the UGC appearing in the High Court relied upon Clause 6.4.8 of the UGC Regulations and argued that Ph.D. was required for promotion to the post of Professor in a medical college. A counter affidavit was filed before us on 24.10.2016 taking the same stand. The UGC filed an additional counter affidavit in November, 2016 in which they corrected the mistake committed earlier and stated that the qualification for the teaching post in the faculty of medicine shall be those prescribed by the Ministry of Health and Family Welfare in consultation with the statutory Council i.e. Medical Council of India. We are unable to accept the contention of the Respondent that the MCI Regulations are not applicable as the UGC Regulations speak of Regulations to be framed by the Ministry of Health and Family Welfare, Government of India.9. The High Court relied upon the submissions of the Counsel for the UGC to hold that Appellants and Respondent Nos. 6 and 7 could not be promoted to the post of Professor under the Career Advancement Scheme without possessing the qualification of Ph.D. Further, the High Court committed an error in its interpretation of Clause 12 (19) of the amended Ordinances (Executive). As noted above, Clause 12 (19) states that the qualifications for faculty of medicine are to be prescribed by the MCI. Clause 12 (19) provides that candidates can apply for promotion under the Ordinances subject to their fulfilling other conditions as laid down in the Ordinances. The High Court wrongly held that fulfillment of other conditions as laid down in the Ordinances (Executive) would include Clause 12 (5) which mandates a Ph.D. degree for promotion to the post of Professor. The qualifications that are required for promotion to the post of Professor in a medical college are not governed by the Regulations as is clear from Clause 1.1.1 of the UGC Regulations, 2010. The other conditions laid down in the Ordinances (Executive) are with reference to Clauses 12(6) to 12(18) and not Clause 12 (5). The finding of the High Court that the teaching staff in the medical college should have qualification as prescribed in Clause 12 (5) would be rendering Clause 12 (19) otiose. Clause 6.4.8 and Clause 12.5 are inapplicable to the teaching staff working in medical colleges as they would be governed by the Regulations framed by the MCI.10. The High Court did not adjudicate the other points raised by the Respondent No. 1 in the Writ Petition in view of the finding recorded by it on the point of the ineligibility of the Appellants and Respondent Nos. 6 and 7 for promotion to the post of Professor. | 1[ds]7. A perusal of the UGC Regulations, 2010, referred to above, would clearly show that the minimum qualifications prescribed by the Government of India are applicable to the teachers working in the faculty of medicine in the University. Clause 12 (19) of Chapter IV of the Ordinances (Executive) makes it clear that teachers in the faculty of medicine should possess qualification as prescribed by the MCI. The MCI Regulations, placed before us, shows that MD/MS is the minimum qualification for appointment to the post of Professor in a medical college8. The UGC has to be blamed for the confusion that was created in determining the eligibility criterion for promotion to the post of Professor. The Counsel for the UGC appearing in the High Court relied upon Clause 6.4.8 of the UGC Regulations and argued that Ph.D. was required for promotion to the post of Professor in a medical college. A counter affidavit was filed before us on 24.10.2016 taking the same stand. The UGC filed an additional counter affidavit in November, 2016 in which they corrected the mistake committed earlier and stated that the qualification for the teaching post in the faculty of medicine shall be those prescribed by the Ministry of Health and Family Welfare in consultation with the statutory Council i.e. Medical Council of India. We are unable to accept the contention of the Respondent that the MCI Regulations are not applicable as the UGC Regulations speak of Regulations to be framed by the Ministry of Health and Family Welfare, Government of India9. The High Court relied upon the submissions of the Counsel for the UGC to hold that Appellants and Respondent Nos. 6 and 7 could not be promoted to the post of Professor under the Career Advancement Scheme without possessing the qualification of Ph.D. Further, the High Court committed an error in its interpretation of Clause 12 (19) of the amended Ordinances (Executive). As noted above, Clause 12 (19) states that the qualifications for faculty of medicine are to be prescribed by the MCI. Clause 12 (19) provides that candidates can apply for promotion under the Ordinances subject to their fulfilling other conditions as laid down in the Ordinances. The High Court wrongly held that fulfillment of other conditions as laid down in the Ordinances (Executive) would include Clause 12 (5) which mandates a Ph.D. degree for promotion to the post of Professor. The qualifications that are required for promotion to the post of Professor in a medical college are not governed by the Regulations as is clear from Clause 1.1.1 of the UGC Regulations, 2010. The other conditions laid down in the Ordinances (Executive) are with reference to Clauses 12(6) to 12(18) and not Clause 12 (5). The finding of the High Court that the teaching staff in the medical college should have qualification as prescribed in Clause 12 (5) would be rendering Clause 12 (19) otiose. Clause 6.4.8 and Clause 12.5 are inapplicable to the teaching staff working in medical colleges as they would be governed by the Regulations framed by the MCI10. The High Court did not adjudicate the other points raised by the Respondent No. 1 in the Writ Petition in view of the finding recorded by it on the point of the ineligibility of the Appellants and Respondent Nos. 6 and 7 for promotion to the post of Professor. | 1 | 1,572 | 624 | ### 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:
Appellants and Respondent Nos. 6 and 7 from being appointed as Professor. The High Court did not go into any other issue in view of the findings recorded on the lack of qualification on the part of the Appellants and Respondent Nos. 6 and 7.4. The Aligarh Muslim University is a Central University governed by the Universities Act, 1920. It is an autonomous organization fully funded by the Government of India. The Regulations framed by the University Grants Commission (UGC) are applicable to the University. The service conditions, appointments and promotions of teachers in the University are governed by the statutes of the University and the Ordinances promulgated by the Executive Council/Academic Council.5. For a better understanding of the controversy it would be relevant to refer to the provisions of the UGC Regulations. The UGC Regulations of Minimum qualification for Appointment of teachers and other Academic Staff in Universities, Colleges and measures for maintenance of Standards in Higher Education (hereinafter referred to as UGC Regulations) were framed in 2010. The Regulations were made applicable to the University and college teachers, lecturers, directors of physical education admitted to the privileges of the University. Clause 1.1.1 provides that for teachers in the faculty of medicine, the norms/Regulations of Ministry of Health and Family Welfare, Government of India shall apply. Clause 4.1.0 which deals with the direct recruitment for the post of Professors provides for Ph.D. qualification for appointment to the said post. Clause 6.4.8 of the UGC Regulations concerns the promotion to be granted under the Career Advancement Scheme and provides that the educational qualification for appointment/promotion as a Professor and Associate Professor is a Ph.D. Clause 4.1.0 and Clause 6.4.8 are not applicable to teachers working in the faculty of medicine as they would be governed by Regulations of Ministry of Health and Family Welfare, Government of India as per Clause 1.1.1.6. The Aligarh Muslim University made suitable amendments to the Ordinances (Executive) for promotion under the Career Advancement Scheme to bring it in accord with the UGC Regulations of 2010. Clause 12.5 of Chapter IV of the Ordinance (Executive) contemplates that no teacher shall be promoted without a Ph.D. degree. Clause 12 (19) of the Ordinances (Executive) provides for prescription of the minimum qualifications for candidates from the faculty of medicine by the Medical Council of India (MCI) and it reads as follows:12 (19) the candidates from the faculty of medicine and Unani Medicine possessing minimum qualifications as prescribed by the MCI and CCIM/AYUSH, respectively for the posts of Associate Professor and Professor may also apply for promotion under these Ordinances subject to their fulfilling other conditions as laid down in these Ordinances.7. A perusal of the UGC Regulations, 2010, referred to above, would clearly show that the minimum qualifications prescribed by the Government of India are applicable to the teachers working in the faculty of medicine in the University. Clause 12 (19) of Chapter IV of the Ordinances (Executive) makes it clear that teachers in the faculty of medicine should possess qualification as prescribed by the MCI. The MCI Regulations, placed before us, shows that MD/MS is the minimum qualification for appointment to the post of Professor in a medical college.8. The UGC has to be blamed for the confusion that was created in determining the eligibility criterion for promotion to the post of Professor. The Counsel for the UGC appearing in the High Court relied upon Clause 6.4.8 of the UGC Regulations and argued that Ph.D. was required for promotion to the post of Professor in a medical college. A counter affidavit was filed before us on 24.10.2016 taking the same stand. The UGC filed an additional counter affidavit in November, 2016 in which they corrected the mistake committed earlier and stated that the qualification for the teaching post in the faculty of medicine shall be those prescribed by the Ministry of Health and Family Welfare in consultation with the statutory Council i.e. Medical Council of India. We are unable to accept the contention of the Respondent that the MCI Regulations are not applicable as the UGC Regulations speak of Regulations to be framed by the Ministry of Health and Family Welfare, Government of India.9. The High Court relied upon the submissions of the Counsel for the UGC to hold that Appellants and Respondent Nos. 6 and 7 could not be promoted to the post of Professor under the Career Advancement Scheme without possessing the qualification of Ph.D. Further, the High Court committed an error in its interpretation of Clause 12 (19) of the amended Ordinances (Executive). As noted above, Clause 12 (19) states that the qualifications for faculty of medicine are to be prescribed by the MCI. Clause 12 (19) provides that candidates can apply for promotion under the Ordinances subject to their fulfilling other conditions as laid down in the Ordinances. The High Court wrongly held that fulfillment of other conditions as laid down in the Ordinances (Executive) would include Clause 12 (5) which mandates a Ph.D. degree for promotion to the post of Professor. The qualifications that are required for promotion to the post of Professor in a medical college are not governed by the Regulations as is clear from Clause 1.1.1 of the UGC Regulations, 2010. The other conditions laid down in the Ordinances (Executive) are with reference to Clauses 12(6) to 12(18) and not Clause 12 (5). The finding of the High Court that the teaching staff in the medical college should have qualification as prescribed in Clause 12 (5) would be rendering Clause 12 (19) otiose. Clause 6.4.8 and Clause 12.5 are inapplicable to the teaching staff working in medical colleges as they would be governed by the Regulations framed by the MCI.10. The High Court did not adjudicate the other points raised by the Respondent No. 1 in the Writ Petition in view of the finding recorded by it on the point of the ineligibility of the Appellants and Respondent Nos. 6 and 7 for promotion to the post of Professor.
### Response:
1
### Explanation:
7. A perusal of the UGC Regulations, 2010, referred to above, would clearly show that the minimum qualifications prescribed by the Government of India are applicable to the teachers working in the faculty of medicine in the University. Clause 12 (19) of Chapter IV of the Ordinances (Executive) makes it clear that teachers in the faculty of medicine should possess qualification as prescribed by the MCI. The MCI Regulations, placed before us, shows that MD/MS is the minimum qualification for appointment to the post of Professor in a medical college8. The UGC has to be blamed for the confusion that was created in determining the eligibility criterion for promotion to the post of Professor. The Counsel for the UGC appearing in the High Court relied upon Clause 6.4.8 of the UGC Regulations and argued that Ph.D. was required for promotion to the post of Professor in a medical college. A counter affidavit was filed before us on 24.10.2016 taking the same stand. The UGC filed an additional counter affidavit in November, 2016 in which they corrected the mistake committed earlier and stated that the qualification for the teaching post in the faculty of medicine shall be those prescribed by the Ministry of Health and Family Welfare in consultation with the statutory Council i.e. Medical Council of India. We are unable to accept the contention of the Respondent that the MCI Regulations are not applicable as the UGC Regulations speak of Regulations to be framed by the Ministry of Health and Family Welfare, Government of India9. The High Court relied upon the submissions of the Counsel for the UGC to hold that Appellants and Respondent Nos. 6 and 7 could not be promoted to the post of Professor under the Career Advancement Scheme without possessing the qualification of Ph.D. Further, the High Court committed an error in its interpretation of Clause 12 (19) of the amended Ordinances (Executive). As noted above, Clause 12 (19) states that the qualifications for faculty of medicine are to be prescribed by the MCI. Clause 12 (19) provides that candidates can apply for promotion under the Ordinances subject to their fulfilling other conditions as laid down in the Ordinances. The High Court wrongly held that fulfillment of other conditions as laid down in the Ordinances (Executive) would include Clause 12 (5) which mandates a Ph.D. degree for promotion to the post of Professor. The qualifications that are required for promotion to the post of Professor in a medical college are not governed by the Regulations as is clear from Clause 1.1.1 of the UGC Regulations, 2010. The other conditions laid down in the Ordinances (Executive) are with reference to Clauses 12(6) to 12(18) and not Clause 12 (5). The finding of the High Court that the teaching staff in the medical college should have qualification as prescribed in Clause 12 (5) would be rendering Clause 12 (19) otiose. Clause 6.4.8 and Clause 12.5 are inapplicable to the teaching staff working in medical colleges as they would be governed by the Regulations framed by the MCI10. The High Court did not adjudicate the other points raised by the Respondent No. 1 in the Writ Petition in view of the finding recorded by it on the point of the ineligibility of the Appellants and Respondent Nos. 6 and 7 for promotion to the post of Professor.
|
Jitendra Vora Vs. Bhavana Y. Shah & Another | submitted that Section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the NI Act’) has no application because the partnership firm was not arrayed as an accused. He further submitted that respondent No.2 is liable being a signatory of both the cheques and he was incharge of M/s. Shah Enterprises. 8. On the contrary, it is submitted by the learned counsel appearing on behalf of the respondents that both the Trial Court as well as the High Court rightly came to the conclusion that the complaint was not maintainable against the partnership firm since cheques were issued on behalf of the first respondent. Furthermore M/s. Shah Enterprises was never given any statutory notice nor it was arrayed as an accused before the Metropolitan Magistrate. He further submitted that a three Judge Bench of this Court in the case of Aneetha Hada vs. Godfather Travel and Tours Pvt. Ltd., (2012) 5 SCC 661 , held that for maintaining the prosecution under the NI Act, the company should be made a party irrespective of the fact that its Director has been arrayed as an accused. Learned counsel for the respondents further submitted that this appeal should be dismissed since the material facts have been suppressed from the Court. The appellant ceased to be the Proprietor of M/s. Satyen Polymer as per the deed of assignment cum conveyance dated 3.4.2008. The said fact was deliberately suppressed from the High Court as well as from the Trial Court. The appellant did not make M/s. Shah Enterprises as a party on whose account the cheque was drawn. Furthermore, M/s. Shah Enterprises had no outstanding liabilities. The complainant himself admitted in his cross-examination that nothing was sold to Shah Enterprises and at no point of time Shah Agencies has been prosecuted. The appellant further admits that he has no account with Shah Enterprises and he has running account with Shah Agencies. He also admitted that the transactions and dealings with Shah Agencies are reflected in the books of accounts. He further admitted that Shah Enterprises is not liable to pay any amount M/s. Satyen Polymers, and there were no transactions with Shah Enterprises. Learned counsel for the respondents submitted that in these circumstances, this appeal should be dismissed. 9. We have heard the learned counsel appearing for the parties and we have perused the evidence placed before us. From a bare reading of Section 138 of the NI Act, the first and foremost essential ingredient for attracting a liability under this Section is that the person who is to be made liable should be the drawer of the cheque and should have drawn the cheque on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for discharge, in whole or part, of any debt or other liability. In this context, this Court in the case of Krishna Texport and Capital Markets Ltd. v. Ila A. Agrawal & Ors, (AIR 2015 SC 2091 ), has held as under - “The notice under Section 138 is required to be given to the ‘drawer’ of the cheque so as to give the drawer an opportunity to make the payment and escape the penal consequences. No other person is contemplated by Section 138 as being entitled to be issued such notice. The plain language of Section 138 is very clear and leaves no room for any doubt or ambiguity. There is nothing in Section 138 which may even remotely suggest the issuance of notice to anyone other than the drawer.” 10. The learned counsel for the respondents has relied upon the case of Anil Hada v. Indian Acrylic Ltd., (2000) 1 SCC 1 , wherein this Court held – “Normally an offence can be committed by human beings who are natural persons. Such offence can be tried according to the procedure established by law. But there are offences which could be attributed to juristic person also. If the drawer of a cheque happens to be a juristic person like a body corporate it can be prosecuted for the offence under Section 138 of the Act. Now there is no scope for doubt regarding that aspect in view of the clear language employed in Section 141 of the Act. In the expanded ambit of the word ‘company’ even firms or any other associations of persons are included and as a necessary adjunct thereof a partner of the firm is treated as director of that company.”(Emphasis supplied) “Thus when the drawer of the cheque who falls within the ambit of Section 138 of the Act is a human being or a body corporate or even firm, prosecution proceedings can be initiated against such drawer. In this context the phrase ‘as well as’ used in Sub-section (1) of Section 141 of the Act has some importance. The said phrase would embroil the persons mentioned in the first category within the tentacles of the offence on a par with the offending company. Similarly the words ‘shall also’ in Sub-section (2) are capable of bringing the third category persons additionally within the dragnet of the offence on an equal par. The effect of reading Section 141 is that when the company is the drawer of the cheque such company is the principal offender under Section 138 of the Act and the remaining persons are made offenders by virtue of the legal fiction created by the legislature as per the section. Hence the actual offence should have been committed by the company, and then alone the other two categories of persons can also become liable for the offence.” 11. In our opinion, the High Court has correctly come to the conclusion that the liabilities of M/s. Shah Agencies were never taken over by M/s. Shah Enterprises. Therefore, the reasoning given by the High Court, in our opinion, is absolutely flawless and we find no ground to interfere with the concurrent findings of the Trial Court and the High Court. | 0[ds]From a bare reading of Section 138 of the NI Act, the first and foremost essential ingredient for attracting a liability under this Section is that the person who is to be made liable should be the drawer of the cheque and should have drawn the cheque on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for discharge, in whole or part, of any debt or other liability.In our opinion, the High Court has correctly come to the conclusion that the liabilities of M/s. Shah Agencies were never taken over by M/s. Shah Enterprises. Therefore, the reasoning given by the High Court, in our opinion, is absolutely flawless and we find no ground to interfere with the concurrent findings of the Trial Court and the High Court. | 0 | 2,393 | 157 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
submitted that Section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the NI Act’) has no application because the partnership firm was not arrayed as an accused. He further submitted that respondent No.2 is liable being a signatory of both the cheques and he was incharge of M/s. Shah Enterprises. 8. On the contrary, it is submitted by the learned counsel appearing on behalf of the respondents that both the Trial Court as well as the High Court rightly came to the conclusion that the complaint was not maintainable against the partnership firm since cheques were issued on behalf of the first respondent. Furthermore M/s. Shah Enterprises was never given any statutory notice nor it was arrayed as an accused before the Metropolitan Magistrate. He further submitted that a three Judge Bench of this Court in the case of Aneetha Hada vs. Godfather Travel and Tours Pvt. Ltd., (2012) 5 SCC 661 , held that for maintaining the prosecution under the NI Act, the company should be made a party irrespective of the fact that its Director has been arrayed as an accused. Learned counsel for the respondents further submitted that this appeal should be dismissed since the material facts have been suppressed from the Court. The appellant ceased to be the Proprietor of M/s. Satyen Polymer as per the deed of assignment cum conveyance dated 3.4.2008. The said fact was deliberately suppressed from the High Court as well as from the Trial Court. The appellant did not make M/s. Shah Enterprises as a party on whose account the cheque was drawn. Furthermore, M/s. Shah Enterprises had no outstanding liabilities. The complainant himself admitted in his cross-examination that nothing was sold to Shah Enterprises and at no point of time Shah Agencies has been prosecuted. The appellant further admits that he has no account with Shah Enterprises and he has running account with Shah Agencies. He also admitted that the transactions and dealings with Shah Agencies are reflected in the books of accounts. He further admitted that Shah Enterprises is not liable to pay any amount M/s. Satyen Polymers, and there were no transactions with Shah Enterprises. Learned counsel for the respondents submitted that in these circumstances, this appeal should be dismissed. 9. We have heard the learned counsel appearing for the parties and we have perused the evidence placed before us. From a bare reading of Section 138 of the NI Act, the first and foremost essential ingredient for attracting a liability under this Section is that the person who is to be made liable should be the drawer of the cheque and should have drawn the cheque on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for discharge, in whole or part, of any debt or other liability. In this context, this Court in the case of Krishna Texport and Capital Markets Ltd. v. Ila A. Agrawal & Ors, (AIR 2015 SC 2091 ), has held as under - “The notice under Section 138 is required to be given to the ‘drawer’ of the cheque so as to give the drawer an opportunity to make the payment and escape the penal consequences. No other person is contemplated by Section 138 as being entitled to be issued such notice. The plain language of Section 138 is very clear and leaves no room for any doubt or ambiguity. There is nothing in Section 138 which may even remotely suggest the issuance of notice to anyone other than the drawer.” 10. The learned counsel for the respondents has relied upon the case of Anil Hada v. Indian Acrylic Ltd., (2000) 1 SCC 1 , wherein this Court held – “Normally an offence can be committed by human beings who are natural persons. Such offence can be tried according to the procedure established by law. But there are offences which could be attributed to juristic person also. If the drawer of a cheque happens to be a juristic person like a body corporate it can be prosecuted for the offence under Section 138 of the Act. Now there is no scope for doubt regarding that aspect in view of the clear language employed in Section 141 of the Act. In the expanded ambit of the word ‘company’ even firms or any other associations of persons are included and as a necessary adjunct thereof a partner of the firm is treated as director of that company.”(Emphasis supplied) “Thus when the drawer of the cheque who falls within the ambit of Section 138 of the Act is a human being or a body corporate or even firm, prosecution proceedings can be initiated against such drawer. In this context the phrase ‘as well as’ used in Sub-section (1) of Section 141 of the Act has some importance. The said phrase would embroil the persons mentioned in the first category within the tentacles of the offence on a par with the offending company. Similarly the words ‘shall also’ in Sub-section (2) are capable of bringing the third category persons additionally within the dragnet of the offence on an equal par. The effect of reading Section 141 is that when the company is the drawer of the cheque such company is the principal offender under Section 138 of the Act and the remaining persons are made offenders by virtue of the legal fiction created by the legislature as per the section. Hence the actual offence should have been committed by the company, and then alone the other two categories of persons can also become liable for the offence.” 11. In our opinion, the High Court has correctly come to the conclusion that the liabilities of M/s. Shah Agencies were never taken over by M/s. Shah Enterprises. Therefore, the reasoning given by the High Court, in our opinion, is absolutely flawless and we find no ground to interfere with the concurrent findings of the Trial Court and the High Court.
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0
### Explanation:
From a bare reading of Section 138 of the NI Act, the first and foremost essential ingredient for attracting a liability under this Section is that the person who is to be made liable should be the drawer of the cheque and should have drawn the cheque on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for discharge, in whole or part, of any debt or other liability.In our opinion, the High Court has correctly come to the conclusion that the liabilities of M/s. Shah Agencies were never taken over by M/s. Shah Enterprises. Therefore, the reasoning given by the High Court, in our opinion, is absolutely flawless and we find no ground to interfere with the concurrent findings of the Trial Court and the High Court.
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Brijesh Kanubhai Patel and Ors Vs. The State of Maharashtra and Ors | the act of the accused must be proximate, immediate or efficient cause of death of victim without the intervention of any other persons negligence. The court had also observed that there had been no allegation against the directors for an offence attributed to the company and thus the directors cannot be held vicariously liable. Said decision refers to the decision in S.K. Alag vs. State of Uttar Pradesh and others - (2008) 5 SCC 662 , wherein the Apex Court has observed that, save and except some provisions specifically providing therefor, Indian Penal Code does not contemplate any vicarious liability on the part of a party who is not charged directly for commission of an offence. The division bench has also considered the decision of the Apex Court in the case of M/s. Thermax Ltd. And others vs. K.M. Johny and others - 2011 (11) SCALE 128 , wherein it has been observed that, concept of vicarious liability is unknown to criminal law and in absence of any specific details no person can be prosecuted under the alleged complaint. The court has also, with reference to the decision in the case of Arvind Navinchandra Mafatlal and others vs. Palakavayalli Joseph Thomas and others - 2010(4) ABR (NOC) 385 (Bom.), and Pramod Parmeshwarlal Banka and others vs. State of Maharashtra and another – 2011 (5) AIR Bom. R. 679, observed that, reference to said Judgments may not be necessary since they take the same view. 20. The case of Sunil Bharti Mittal vs. Central Bureau of Investigation – (2015) 4 SCC 609 shows that, directors can be roped in only if there is sufficient incriminating evidence against them coupled with criminal intent or the statutory regime attracts the doctrine of vicarious liability. The said decision takes into account decision in the case of Keki Hormusji Gharda vs. Mehervan Rustom Irani – (2009) 6 SCC 475 , wherein it has been observed that, Indian Penal Code, save and except in some matters does not contemplate any vicarious liability on the part of a person and commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. 21. The judgment in the case of S.K. Alagh vs. State of U.P. and others, supra, is to the effect that that, in absence of any provision laid down under the statute, a director of a company or an employee cannot be held to be vicariously liable for any offence committed by the company itself. Albeit, in the same decision it has been observed that, whereas a person in-charge of the affairs of the company and in control thereof has been made vicariously liable for the offence committed by the company along with the company but even in a case falling under section 406 of the Indian Penal Code vicarious liability has been held to be not extendable to the directors or officers of the company. 22. In the case of Maksud Saiyed vs. State of Gujarat and others – (2008) 5 SCC 668 , the Apex Court has observed that, vicarious liability of the managing director and director would arise provided any provision exists in that behalf in the statute and even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. In the case of Pramod Parmeshwarlal Banka and others vs. State of Maharashtra and others, supra, it has been observed to the aforesaid effect, as also decision in the case of Arvind Navinchandra Mafatlal and others vs. Palakavayalli Joseph Thomas and others, supra, says similar. 23. The decision in the case of State of Gujarat vs. Haidarali Kalubhai – (1976) 1 SCC 889 holds that, section 304-A by its own definition totally excludes the ingredient of section 299 or section 300 of the Indian Penal Code. Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a persons death are ingredients of the offence of culpable homicide. Further, it has been observed that, the case as stated in the first information report does not make out a case of any wilful or deliberate act on the part of the accused in order to cause death of deceased nor any enmity of the accused with the deceased established. Similar are the observations of the Supreme Court in the case of Keshub Mahindra vs. State of M.P. - (1996) 6 SCC 129. 24. While cases, referred to above, say as aforesaid, in present matter it is not the case of the informant at all, even for the sake of argument, that excavation has been done by the applicants with an intention to cause death of a person. There is absence of mens rea which would exclude application of the provision. The accusations in the first information report would not be sufficient to constitute an offence by applicants punishable under section 304 of the Indian Penal Code. The first information report, therefore, falls short of making out case against applicants for offence punishable under section 304 of the Indian Penal Code and thus is untenable. 25. There is an affidavit in reply by the informant dated 21st June 2021 stating that his statement has been recorded before judicial magistrate, first class, Badnapur and pursuant to the same it is being filed. It has been referred to in the same that son of the informant died due to accident as he slipped into the river and drowned. The informant as well as his wife have given a declaration that the first information report has been lodged under misgivings and under pressure from political leader. 26. All these gives indication that further prosecution of the proceeding under section 304 of the Indian Penal Code is unlikely to lead to its logical end and would be an exercise in futility and an abuse of process of law. | 1[ds]16. The applicants have been sought to be charged of commission of offences under section 304 read with section 34 of the Indian Penal Code, along with sections 3 and 4 of the the Mines and Minerals Act.17. Perusal of the provisions under sections 3 and 4 of the Mines and Minerals Act makes it clear that section 3 deals with definitions, whereas section 4 requires prospecting or mining operations to be under licence or lease. It is queer as to what for those are referred to in the first information report.In the present matter, it is not the case at all, nor there is any accusation in the first information report that the alleged acts attributed to the applicants have been done with a view to cause death. As submitted on behalf of the applicants, such a mens rea or actus reus is absolutely absent. It is nobodys case that, any direct act is attributable to the applicants nor their presence has been alleged on the spot at any time before the incident or even at any time while the pits were dug and / or that the thing happened under their directions. The accusation is that mines and minerals have been excavated unauthorizedly from the site for construction of the road undertaken by the applicants joint venture. The investigations on record have not gone beyond recording the statements of the persons. The notice referred to in the investigation is not for the excavation on the spot of incident and is of a place from different taluka. The same is being dealt with by the applicants separately. The investigation discloses there is correspondence by the authorities to the effect that the joint venture had not been authorized to cause excavation of mines and minerals. No material emerges which can attribute act of mining on the spot of the incident to the applicants. In such a situation, it is not a case where it can be said that it is a culpable homicide at the instance of the applicants. Apart from aforesaid, the first information report has been lodged almost one month after the incident, based on the information supplied by the villagers. There are only bare statements that large scale excavation has been done unauthorizedly for supplying raw material for construction of road.19. In Civil Application (CAO) No.1287 of 2016 in Public Interest Litigation No.56 of 2016 (Shahbaz Abrar Siddiqui vs. the State of Maharashtra and others), a division bench of this court in its decision dated 28th July 2016, taking stock of the legal position, has observed that, perusal of section 304-A, section 336 and 337 of the Indian Penal Code would show that to constitute an offence under said provisions, a person is required to do any rash or negligent act and even neglect to do something which a prudent man is supposed to do, leading to the consequences as provided under said sections, may also constitute ingredients of offences under said provisions. The provisions as observed thereunder would require a specific role attributed to an individual of doing any rash or negligent act, or at least, there will have to be an assertion that a person who was required to do something in law, has failed and neglected to do the same, leading to the consequences referred to in the provisions. It has further been observed that, there had been no particular averment either in the complaint or in the petition. The decision also further extracts a portion from decision of the Apex Court in the case of Sushil Ansal vs. State through C.B.I., - 2014 SC 190, as under:-We may now advert to the second and an equally, if not more important dimensions of the offence punishable under Section 304-A Indian Penal Code, viz. that the act of the accused must be the proximate, immediate or efficient cause of the death of the victim without the intervention of any other persons negligence. This aspect of the legal requirement is also settled by a long line of decisions of Courts in this country. We may at the outset refer to a Division Bench decision of the High Court of Bombay in Emperor v. Omkar Rampratap (1902) 4 Bom L.R. 679.The division bench had further observed, it will have to be shown that the act of the accused must be proximate, immediate or efficient cause of death of victim without the intervention of any other persons negligence. The court had also observed that there had been no allegation against the directors for an offence attributed to the company and thus the directors cannot be held vicariously liable.Said decision refers to the decision in S.K. Alag vs. State of Uttar Pradesh and others - (2008) 5 SCC 662 , wherein the Apex Court has observed that, save and except some provisions specifically providing therefor, Indian Penal Code does not contemplate any vicarious liability on the part of a party who is not charged directly for commission of an offence. The division bench has also considered the decision of the Apex Court in the case of M/s. Thermax Ltd. And others vs. K.M. Johny and others - 2011 (11) SCALE 128 , wherein it has been observed that, concept of vicarious liability is unknown to criminal law and in absence of any specific details no person can be prosecuted under the alleged complaint.The court has also, with reference to the decision in the case of Arvind Navinchandra Mafatlal and others vs. Palakavayalli Joseph Thomas and others - 2010(4) ABR (NOC) 385 (Bom.), and Pramod Parmeshwarlal Banka and others vs. State of Maharashtra and another – 2011 (5) AIR Bom. R. 679, observed that, reference to said Judgments may not be necessary since they take the same view.22. In the case of Maksud Saiyed vs. State of Gujarat and others – (2008) 5 SCC 668 , the Apex Court has observed that, vicarious liability of the managing director and director would arise provided any provision exists in that behalf in the statute and even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. In the case of Pramod Parmeshwarlal Banka and others vs. State of Maharashtra and others, supra, it has been observed to the aforesaid effect, as also decision in the case of Arvind Navinchandra Mafatlal and others vs. Palakavayalli Joseph Thomas and others, supra, says similar.23. The decision in the case of State of Gujarat vs. Haidarali Kalubhai – (1976) 1 SCC 889 holds that, section 304-A by its own definition totally excludes the ingredient of section 299 or section 300 of the Indian Penal Code. Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a persons death are ingredients of the offence of culpable homicide. Further, it has been observed that, the case as stated in the first information report does not make out a case of any wilful or deliberate act on the part of the accused in order to cause death of deceased nor any enmity of the accused with the deceased established. Similar are the observations of the Supreme Court in the case of Keshub Mahindra vs. State of M.P. - (1996) 6 SCC 129. 24. While cases, referred to above, say as aforesaid, in present matter it is not the case of the informant at all, even for the sake of argument, that excavation has been done by the applicants with an intention to cause death of a person. There is absence of mens rea which would exclude application of the provision. The accusations in the first information report would not be sufficient to constitute an offence by applicants punishable under section 304 of the Indian Penal Code. The first information report, therefore, falls short of making out case against applicants for offence punishable under section 304 of the Indian Penal Code and thus is untenable.25. There is an affidavit in reply by the informant dated 21st June 2021 stating that his statement has been recorded before judicial magistrate, first class, Badnapur and pursuant to the same it is being filed. It has been referred to in the same that son of the informant died due to accident as he slipped into the river and drowned. The informant as well as his wife have given a declaration that the first information report has been lodged under misgivings and under pressure from political leader.26. All these gives indication that further prosecution of the proceeding under section 304 of the Indian Penal Code is unlikely to lead to its logical end and would be an exercise in futility and an abuse of process of law. | 1 | 3,857 | 1,591 | ### 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:
the act of the accused must be proximate, immediate or efficient cause of death of victim without the intervention of any other persons negligence. The court had also observed that there had been no allegation against the directors for an offence attributed to the company and thus the directors cannot be held vicariously liable. Said decision refers to the decision in S.K. Alag vs. State of Uttar Pradesh and others - (2008) 5 SCC 662 , wherein the Apex Court has observed that, save and except some provisions specifically providing therefor, Indian Penal Code does not contemplate any vicarious liability on the part of a party who is not charged directly for commission of an offence. The division bench has also considered the decision of the Apex Court in the case of M/s. Thermax Ltd. And others vs. K.M. Johny and others - 2011 (11) SCALE 128 , wherein it has been observed that, concept of vicarious liability is unknown to criminal law and in absence of any specific details no person can be prosecuted under the alleged complaint. The court has also, with reference to the decision in the case of Arvind Navinchandra Mafatlal and others vs. Palakavayalli Joseph Thomas and others - 2010(4) ABR (NOC) 385 (Bom.), and Pramod Parmeshwarlal Banka and others vs. State of Maharashtra and another – 2011 (5) AIR Bom. R. 679, observed that, reference to said Judgments may not be necessary since they take the same view. 20. The case of Sunil Bharti Mittal vs. Central Bureau of Investigation – (2015) 4 SCC 609 shows that, directors can be roped in only if there is sufficient incriminating evidence against them coupled with criminal intent or the statutory regime attracts the doctrine of vicarious liability. The said decision takes into account decision in the case of Keki Hormusji Gharda vs. Mehervan Rustom Irani – (2009) 6 SCC 475 , wherein it has been observed that, Indian Penal Code, save and except in some matters does not contemplate any vicarious liability on the part of a person and commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. 21. The judgment in the case of S.K. Alagh vs. State of U.P. and others, supra, is to the effect that that, in absence of any provision laid down under the statute, a director of a company or an employee cannot be held to be vicariously liable for any offence committed by the company itself. Albeit, in the same decision it has been observed that, whereas a person in-charge of the affairs of the company and in control thereof has been made vicariously liable for the offence committed by the company along with the company but even in a case falling under section 406 of the Indian Penal Code vicarious liability has been held to be not extendable to the directors or officers of the company. 22. In the case of Maksud Saiyed vs. State of Gujarat and others – (2008) 5 SCC 668 , the Apex Court has observed that, vicarious liability of the managing director and director would arise provided any provision exists in that behalf in the statute and even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. In the case of Pramod Parmeshwarlal Banka and others vs. State of Maharashtra and others, supra, it has been observed to the aforesaid effect, as also decision in the case of Arvind Navinchandra Mafatlal and others vs. Palakavayalli Joseph Thomas and others, supra, says similar. 23. The decision in the case of State of Gujarat vs. Haidarali Kalubhai – (1976) 1 SCC 889 holds that, section 304-A by its own definition totally excludes the ingredient of section 299 or section 300 of the Indian Penal Code. Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a persons death are ingredients of the offence of culpable homicide. Further, it has been observed that, the case as stated in the first information report does not make out a case of any wilful or deliberate act on the part of the accused in order to cause death of deceased nor any enmity of the accused with the deceased established. Similar are the observations of the Supreme Court in the case of Keshub Mahindra vs. State of M.P. - (1996) 6 SCC 129. 24. While cases, referred to above, say as aforesaid, in present matter it is not the case of the informant at all, even for the sake of argument, that excavation has been done by the applicants with an intention to cause death of a person. There is absence of mens rea which would exclude application of the provision. The accusations in the first information report would not be sufficient to constitute an offence by applicants punishable under section 304 of the Indian Penal Code. The first information report, therefore, falls short of making out case against applicants for offence punishable under section 304 of the Indian Penal Code and thus is untenable. 25. There is an affidavit in reply by the informant dated 21st June 2021 stating that his statement has been recorded before judicial magistrate, first class, Badnapur and pursuant to the same it is being filed. It has been referred to in the same that son of the informant died due to accident as he slipped into the river and drowned. The informant as well as his wife have given a declaration that the first information report has been lodged under misgivings and under pressure from political leader. 26. All these gives indication that further prosecution of the proceeding under section 304 of the Indian Penal Code is unlikely to lead to its logical end and would be an exercise in futility and an abuse of process of law.
### Response:
1
### Explanation:
do any rash or negligent act and even neglect to do something which a prudent man is supposed to do, leading to the consequences as provided under said sections, may also constitute ingredients of offences under said provisions. The provisions as observed thereunder would require a specific role attributed to an individual of doing any rash or negligent act, or at least, there will have to be an assertion that a person who was required to do something in law, has failed and neglected to do the same, leading to the consequences referred to in the provisions. It has further been observed that, there had been no particular averment either in the complaint or in the petition. The decision also further extracts a portion from decision of the Apex Court in the case of Sushil Ansal vs. State through C.B.I., - 2014 SC 190, as under:-We may now advert to the second and an equally, if not more important dimensions of the offence punishable under Section 304-A Indian Penal Code, viz. that the act of the accused must be the proximate, immediate or efficient cause of the death of the victim without the intervention of any other persons negligence. This aspect of the legal requirement is also settled by a long line of decisions of Courts in this country. We may at the outset refer to a Division Bench decision of the High Court of Bombay in Emperor v. Omkar Rampratap (1902) 4 Bom L.R. 679.The division bench had further observed, it will have to be shown that the act of the accused must be proximate, immediate or efficient cause of death of victim without the intervention of any other persons negligence. The court had also observed that there had been no allegation against the directors for an offence attributed to the company and thus the directors cannot be held vicariously liable.Said decision refers to the decision in S.K. Alag vs. State of Uttar Pradesh and others - (2008) 5 SCC 662 , wherein the Apex Court has observed that, save and except some provisions specifically providing therefor, Indian Penal Code does not contemplate any vicarious liability on the part of a party who is not charged directly for commission of an offence. The division bench has also considered the decision of the Apex Court in the case of M/s. Thermax Ltd. And others vs. K.M. Johny and others - 2011 (11) SCALE 128 , wherein it has been observed that, concept of vicarious liability is unknown to criminal law and in absence of any specific details no person can be prosecuted under the alleged complaint.The court has also, with reference to the decision in the case of Arvind Navinchandra Mafatlal and others vs. Palakavayalli Joseph Thomas and others - 2010(4) ABR (NOC) 385 (Bom.), and Pramod Parmeshwarlal Banka and others vs. State of Maharashtra and another – 2011 (5) AIR Bom. R. 679, observed that, reference to said Judgments may not be necessary since they take the same view.22. In the case of Maksud Saiyed vs. State of Gujarat and others – (2008) 5 SCC 668 , the Apex Court has observed that, vicarious liability of the managing director and director would arise provided any provision exists in that behalf in the statute and even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. In the case of Pramod Parmeshwarlal Banka and others vs. State of Maharashtra and others, supra, it has been observed to the aforesaid effect, as also decision in the case of Arvind Navinchandra Mafatlal and others vs. Palakavayalli Joseph Thomas and others, supra, says similar.23. The decision in the case of State of Gujarat vs. Haidarali Kalubhai – (1976) 1 SCC 889 holds that, section 304-A by its own definition totally excludes the ingredient of section 299 or section 300 of the Indian Penal Code. Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a persons death are ingredients of the offence of culpable homicide. Further, it has been observed that, the case as stated in the first information report does not make out a case of any wilful or deliberate act on the part of the accused in order to cause death of deceased nor any enmity of the accused with the deceased established. Similar are the observations of the Supreme Court in the case of Keshub Mahindra vs. State of M.P. - (1996) 6 SCC 129. 24. While cases, referred to above, say as aforesaid, in present matter it is not the case of the informant at all, even for the sake of argument, that excavation has been done by the applicants with an intention to cause death of a person. There is absence of mens rea which would exclude application of the provision. The accusations in the first information report would not be sufficient to constitute an offence by applicants punishable under section 304 of the Indian Penal Code. The first information report, therefore, falls short of making out case against applicants for offence punishable under section 304 of the Indian Penal Code and thus is untenable.25. There is an affidavit in reply by the informant dated 21st June 2021 stating that his statement has been recorded before judicial magistrate, first class, Badnapur and pursuant to the same it is being filed. It has been referred to in the same that son of the informant died due to accident as he slipped into the river and drowned. The informant as well as his wife have given a declaration that the first information report has been lodged under misgivings and under pressure from political leader.26. All these gives indication that further prosecution of the proceeding under section 304 of the Indian Penal Code is unlikely to lead to its logical end and would be an exercise in futility and an abuse of process of law.
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Union Vs. Transport and Dock Workers'New Dholera Steamships, Limited, and Others | the year 1962, and any subsequent accounting year was pending before the appropriate Government or before any tribunal or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947), or under any corresponding law relating to investigation and settlement of industrial disputes in a State, such disputes shall be decided in accordance with the provisions of this Ordinance.Explanation. - A dispute shall be deemed to be pending before the appropriate Government where no decision of that Government on any application made to it under the said Act or such corresponding law for reference of that dispute to adjudication has been made or where having received the report of the conciliation officer (by whatever designation known) under the said Act or law, the appropriate Government has not passed any order refusing to make such reference".4. The Ordinance came into force on 6 January, 1965 and the present award was made on 30 January, 1965. The Ordinance was prima facie applicable under S. 33 because immediately before 2 September, 1964 this dispute regarding payment of bonus was pending before a tribunal constituted under the Industrial Disputes Act and it related to payment of bonus for an accounting year subsequent to an accounting year ending on any day in the year 1962. At an earlier hearing the workmen intended invoking in their favour S. 10 of the Ordinance which read :"10. Payment of minimum bonus. - Every employer shall be bound to pay to every employee who has worked in the establishment for all the working days in an accounting year a minimum bonus which shall be 4 per cent of the salary or wages of the employee for the accounting year or forty rupees, whichever is higher, whether there are profits in the accounting year or not :Provided that where such employee has not completed fifteen years of age at the beginning of the accounting year, the provisions of this selection shall have effect in relation to such employee as if for the words forty rupees, the words twenty-five rupees were substituted."5. However as it was stated on behalf of the companies that the provisions of the Ordinance were going to be challenged as ultra vires the Constitution we ordered that noticed be issued to the Attorney-General. Before the appeal came up for hearing the Payment of Bonus Act, 1965 (Act 21 of 1965), was enacted which came into force on 25 September, 1965. The Act re-enacted S. 33 of the Ordinance but with some significant changes.The sectionnow reads :"33. Act to apply to certain pending disputes regarding payment of bonus. - Where, immediately before 29 May, 1965, any industrial dispute regarding payment of bonus relating to any accounting year, not being an accounting year earlier than the accounting year ending, on any day in the year 1962, was pending before the appropriate Government or before any tribunal or other authority under the Industrial Dispute Act, 1947, or under any corresponding law relating to investigation and settlement of industrial disputes in a State, then, the bonus shall be payable in accordance with the provisions of this Act in relation to the accounting year to which the dispute relates and any subsequent accounting year, notwithstanding that in respect of that subsequent accounting year no such dispute was pending.Explanation. - A dispute shall be deemed to be pending before the appropriate Government where no decision of that Government on any application made to it under the said Act or such corresponding law for reference of that dispute to adjudication has been made or where having received the report of the conciliation officer (by whatever designation known) under the said Act or law, the appropriate Government has not passed any order refusing to make such reference".The change of date in the section from 2 September, 1964 to 29 May, 1965, takes this case out of the application of the new section because immediately before 29 May, 1965 there was no dispute regarding payment of bonus pending before the tribunal. The dispute had already been disposed of on 30 January, 1965.6. It was contended before us that as an appeal is a continuation of the original proceeding the repeal should not affect the enforcement of the provisions of the Ordinance in this case. Reliance is placed upon S.6 of the General Clauses Act, 1897, wherein is indicated the effect of repeal of an enactment by another. It is contended that as the Payment of Bonus Ordinance has been repealed by S. 40(1), the consequences envisaged in S.6 of the General Clauses Act must follow and the present matter must be disposed of in accordance with the Ordinance as if the Act had not been passed. It is submitted that there was a right and a corresponding obligation to pay bonus under S. 10 of the Ordinance and that right and obligation cannot be obliterated because of the repeal of the Ordinance. This argument is not acceptable because of the provisions of Sub-sec. (2) of S. 40. That sub-section reads as follows :"40. Repeal and saving. -(1) * * *(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under this Act as if this Act had commenced on 29 May, 1965."Section6 of the General Clauses Act applies ordinarily but it does not apply if a different intention is made to appear expressly and the special saving incorporated in the repealing Act protects only anything (sic) Ordinance which is deemed to have been done or taken under this Act as if the Act had commenced on 29 May, 1965. Nothing had been done under the Ordinance and no action was taken which needs protection; nor was anything pending under the Ordinance which could be continued as if the Act had not been passed. There was thus nothing which was to be saved after the repeal of the Ordinance and this question which might have arisen under the Ordinance now ceases to exist. | 0[ds]This is a matter of evidence and there was ample evidence before Sri Meher on which he could reach his conclusion and this Court does not interfere with a finding of fact reached on evidence to be found on the record. This point must also fail.When special leave was granted by this Court on 3 August, 1965, the Payment of Bonus Ordinance, 1965 (Ordinance 3 of 1965), had already been passed and the provisions of the Ordinance might have become applicable in this case because of the operation of S. 33 of the Ordinance.4. The Ordinance came into force on 6 January, 1965 and the present award was made on 30 January, 1965. The Ordinance was prima facie applicable under S. 33 because immediately before 2 September, 1964 this dispute regarding payment of bonus was pending before a tribunal constituted under the Industrial Disputes Act and it related to payment of bonus for an accounting year subsequent to an accounting year ending on any day in the year 1962. At an earlier hearing the workmen intended invoking in their favour S. 10 of the Ordinance which read :"10. Payment of minimum bonus.Every employer shall be bound to pay to every employee who has worked in the establishment for all the working days in an accounting year a minimum bonus which shall be 4 per cent of the salary or wages of the employee for the accounting year or forty rupees, whichever is higher, whether there are profits in the accounting year orchange of date in the section from 2 September, 1964 to 29 May, 1965, takes this case out of the application of the new section because immediately before 29 May, 1965 there was no dispute regarding payment of bonus pending before the tribunal. The dispute had already been disposed of on 30 January,argument is not acceptable because of the provisions of(2) of S. 40.Nothing had been done under the Ordinance and no action was taken which needs protection; nor was anything pending under the Ordinance which could be continued as if the Act had not been passed. There was thus nothing which was to be saved after the repeal of the Ordinance and this question which might have arisen under the Ordinance now ceases to exist. | 0 | 2,020 | 412 | ### 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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the year 1962, and any subsequent accounting year was pending before the appropriate Government or before any tribunal or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947), or under any corresponding law relating to investigation and settlement of industrial disputes in a State, such disputes shall be decided in accordance with the provisions of this Ordinance.Explanation. - A dispute shall be deemed to be pending before the appropriate Government where no decision of that Government on any application made to it under the said Act or such corresponding law for reference of that dispute to adjudication has been made or where having received the report of the conciliation officer (by whatever designation known) under the said Act or law, the appropriate Government has not passed any order refusing to make such reference".4. The Ordinance came into force on 6 January, 1965 and the present award was made on 30 January, 1965. The Ordinance was prima facie applicable under S. 33 because immediately before 2 September, 1964 this dispute regarding payment of bonus was pending before a tribunal constituted under the Industrial Disputes Act and it related to payment of bonus for an accounting year subsequent to an accounting year ending on any day in the year 1962. At an earlier hearing the workmen intended invoking in their favour S. 10 of the Ordinance which read :"10. Payment of minimum bonus. - Every employer shall be bound to pay to every employee who has worked in the establishment for all the working days in an accounting year a minimum bonus which shall be 4 per cent of the salary or wages of the employee for the accounting year or forty rupees, whichever is higher, whether there are profits in the accounting year or not :Provided that where such employee has not completed fifteen years of age at the beginning of the accounting year, the provisions of this selection shall have effect in relation to such employee as if for the words forty rupees, the words twenty-five rupees were substituted."5. However as it was stated on behalf of the companies that the provisions of the Ordinance were going to be challenged as ultra vires the Constitution we ordered that noticed be issued to the Attorney-General. Before the appeal came up for hearing the Payment of Bonus Act, 1965 (Act 21 of 1965), was enacted which came into force on 25 September, 1965. The Act re-enacted S. 33 of the Ordinance but with some significant changes.The sectionnow reads :"33. Act to apply to certain pending disputes regarding payment of bonus. - Where, immediately before 29 May, 1965, any industrial dispute regarding payment of bonus relating to any accounting year, not being an accounting year earlier than the accounting year ending, on any day in the year 1962, was pending before the appropriate Government or before any tribunal or other authority under the Industrial Dispute Act, 1947, or under any corresponding law relating to investigation and settlement of industrial disputes in a State, then, the bonus shall be payable in accordance with the provisions of this Act in relation to the accounting year to which the dispute relates and any subsequent accounting year, notwithstanding that in respect of that subsequent accounting year no such dispute was pending.Explanation. - A dispute shall be deemed to be pending before the appropriate Government where no decision of that Government on any application made to it under the said Act or such corresponding law for reference of that dispute to adjudication has been made or where having received the report of the conciliation officer (by whatever designation known) under the said Act or law, the appropriate Government has not passed any order refusing to make such reference".The change of date in the section from 2 September, 1964 to 29 May, 1965, takes this case out of the application of the new section because immediately before 29 May, 1965 there was no dispute regarding payment of bonus pending before the tribunal. The dispute had already been disposed of on 30 January, 1965.6. It was contended before us that as an appeal is a continuation of the original proceeding the repeal should not affect the enforcement of the provisions of the Ordinance in this case. Reliance is placed upon S.6 of the General Clauses Act, 1897, wherein is indicated the effect of repeal of an enactment by another. It is contended that as the Payment of Bonus Ordinance has been repealed by S. 40(1), the consequences envisaged in S.6 of the General Clauses Act must follow and the present matter must be disposed of in accordance with the Ordinance as if the Act had not been passed. It is submitted that there was a right and a corresponding obligation to pay bonus under S. 10 of the Ordinance and that right and obligation cannot be obliterated because of the repeal of the Ordinance. This argument is not acceptable because of the provisions of Sub-sec. (2) of S. 40. That sub-section reads as follows :"40. Repeal and saving. -(1) * * *(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under this Act as if this Act had commenced on 29 May, 1965."Section6 of the General Clauses Act applies ordinarily but it does not apply if a different intention is made to appear expressly and the special saving incorporated in the repealing Act protects only anything (sic) Ordinance which is deemed to have been done or taken under this Act as if the Act had commenced on 29 May, 1965. Nothing had been done under the Ordinance and no action was taken which needs protection; nor was anything pending under the Ordinance which could be continued as if the Act had not been passed. There was thus nothing which was to be saved after the repeal of the Ordinance and this question which might have arisen under the Ordinance now ceases to exist.
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This is a matter of evidence and there was ample evidence before Sri Meher on which he could reach his conclusion and this Court does not interfere with a finding of fact reached on evidence to be found on the record. This point must also fail.When special leave was granted by this Court on 3 August, 1965, the Payment of Bonus Ordinance, 1965 (Ordinance 3 of 1965), had already been passed and the provisions of the Ordinance might have become applicable in this case because of the operation of S. 33 of the Ordinance.4. The Ordinance came into force on 6 January, 1965 and the present award was made on 30 January, 1965. The Ordinance was prima facie applicable under S. 33 because immediately before 2 September, 1964 this dispute regarding payment of bonus was pending before a tribunal constituted under the Industrial Disputes Act and it related to payment of bonus for an accounting year subsequent to an accounting year ending on any day in the year 1962. At an earlier hearing the workmen intended invoking in their favour S. 10 of the Ordinance which read :"10. Payment of minimum bonus.Every employer shall be bound to pay to every employee who has worked in the establishment for all the working days in an accounting year a minimum bonus which shall be 4 per cent of the salary or wages of the employee for the accounting year or forty rupees, whichever is higher, whether there are profits in the accounting year orchange of date in the section from 2 September, 1964 to 29 May, 1965, takes this case out of the application of the new section because immediately before 29 May, 1965 there was no dispute regarding payment of bonus pending before the tribunal. The dispute had already been disposed of on 30 January,argument is not acceptable because of the provisions of(2) of S. 40.Nothing had been done under the Ordinance and no action was taken which needs protection; nor was anything pending under the Ordinance which could be continued as if the Act had not been passed. There was thus nothing which was to be saved after the repeal of the Ordinance and this question which might have arisen under the Ordinance now ceases to exist.
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Travancore Rubber & Tea Co. Ltd. & Another Vs. State of Kerala & Another | no deduction should be allowed for the expenses incurred in the upkeep and maintenance of immature plants. Such an intention of the Legislature is manifest as Explanation 2 was enacted after the decision of this Court in the Travancore Rubber and Tea Co. Ltd., case, 1963-3 SCR 279 : (AIR 1961 SC 604 ) to the effect that such expenses are to be deducted in view of the provisions of cl. (j) of S. 5 of the Agricultural Income-tax Act. 7. We are therefore of the opinion that the State Legislature was competent to enact Explanation 2 to S. 5 and thereby provide for the non-deduction of the expenses incurred in the upkeep or maintenance of immature plants from which no income has been derived in the accounting year. 8. It is however contended that apart from the provisions of cl. (j) of S. 5, the word income does not mean the gross receipts of a person but such receipts after deducting the necessary expenses incurred for the purpose of getting those receipts and that such had been the concept of the Constitution makers when they used the word income in Entry No. 82 of List I and Entry No. 46 of List II, of the Seventh Schedule to the Constitution. In support of this contention reference was made to the legislative practice in the law of income-tax in England, to the dictionary meaning of the word income and to certain meanings mentioned in Strouds Judicial Dictionary and Words and Phrases by Burrows. We do not consider it necessary to deal with this contention at length as this Court had occasion to consider this aspect thoroughly in Navinchandra Mafatlal v. Commissioner of Income-tax, Bombay City, 1955 -1 SCR 829 : ( (S) AIR 1955 SC 58 ) Das J., as he then was, said at p. 833 (of SCR) : (at p. 60 of AIR) :"Our attention has not, however, been drawn to any enactment other than fiscal statues like the Finance Act and the Income-tax Act where the word income has been used and, therefore, it is not possible to say that the critical word had acquired any particular meaning by reason of any legislative practice. Reference has been made to several cases where the word income has been construed by the Court. What is, therefore, described as legislative practice is nothing but judicial interpretations of the word income as appearing in the fiscal statutes mentioned above ....... These guarded observations quite clearly indicate that they relate to the term income or profit as used in the Income-tax Act. There is no warrant for saying that these observations cut down the natural meaning of the ordinary English word income in any way." In discussing the natural and grammatical meaning of the word income, reference was made to its dictionary meaning and to the interpretation of the word in a wide sense in the United States of America and in Australia and then it was said at p. 837 (of SCR) : (at p. 61 of AIR) :"The relevant observations of learned Judges deciding those cases which have been quoted in the judgment of Tendolkar, J., quite clearly indicate that such wide meaning was put on the word income not because of any particular legislative practice either 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." It is therefore clear that the word income in the relevant provisions of the Constitution has a very wide meaning and is not restricted in its meaning as suggested for the petitioner. 9. The next contention for the appellant is that Explanation 2 is discriminatory and contravenes the provision of Art. 14 of the Constitution. There is nothing discriminatory in the provisions of Explanation 2 to S. 5. It is applicable to agricultural income derived from all crops except tea. 10. The question of the applicability of Explanation 2 to S. 5 to the agricultural income derived from tea plantations was before us for determination in Karimtharuvi Tea Estates Ltd., Kottayam v. State of Kerala W. P. Nos. 234 and 236 of 1961 D/- 1-11-1962 : (AIR 1963 SC 760 ). We have held in that case that Explanation 2 to S. 5 does not apply to the agricultural income from tea plantations. It was argued that if such be the view of this Court, the Explanation would bring about discrimination between agricultural income arising from rubber plantations and similar income arising from tea plantations and that therefore the Explanation would contravene the provisions of Art, 14 of the Constitution. It was, however, fairly conceded that in case the decision that this Explanation does not apply to agricultural income from tea plantations is based on the special provisions in the Income-tax Act and the rules made thereunder in connection with the computation of agricultural income from tea plantations, there would be no such discrimination. Our decision in Karimtharuvi Tea Estates case, W .P. Nos. 234 and 236 of 1961 D/- 1-11-1962 : (AIR 1963 SC 760 ) is based on such special provisions. 11. The income derived from the sale of tea grown and manufactured by the seller is partly derived from land by agriculture and partly from business. Such is not the case with the income derived from the sale of rubber. The provision for the computation of agricultural income from tea plantations has to be different and is to be found in the rules made under S. 59(3) of the Income-tax Act for determining the proportions of agricultural income and income from business in the entire income from the sale of tea. The difference in the provisions for the computation of agricultural income from tea plantations and from rubber plantations is therefore based on good reasons. 12. We hold that the provisions of Explanation 2 are not discriminatory against agricultural income from rubber plantations. | 0[ds]6. The State Legislature has full powers to tax such income as come within the expression agricultural income as defined in the Agricultural Income-tax Act, the definition being in conformity with the definition of agricultural income in the Income-tax Act. It is for the State Legislature to provide such deductions from such income as it considers fit. Section 5 of the Agricultural Income-tax Act makes provisions for the deductions considered necessary by the Legislature. Explanation 2 added to S. 5 by the Amendment Act makes it clear that the Legislature was of opinion that no deduction should be allowed for the expenses incurred in the upkeep and maintenance of immature plants. Such an intention of the Legislature is manifest as Explanation 2 was enacted after the decision of this Court in the Travancore Rubber and Tea Co. Ltd., case, 1963-3 SCR 279 : (AIR 1961 SC 604 ) to the effect that such expenses are to be deducted in view of the provisions of cl. (j) of S. 5 of the Agricultural Income-tax Act11. The income derived from the sale of tea grown and manufactured by the seller is partly derived from land by agriculture and partly from business. Such is not the case with the income derived from the sale of rubber. The provision for the computation of agricultural income from tea plantations has to be different and is to be found in the rules made under S. 59(3) of the Income-tax Act for determining the proportions of agricultural income and income from business in the entire income from the sale of tea. The difference in the provisions for the computation of agricultural income from tea plantations and from rubber plantations is therefore based on good reasons12. We hold that the provisions of Explanation 2 are not discriminatory against agricultural income from rubber plantations. | 0 | 2,038 | 330 | ### 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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no deduction should be allowed for the expenses incurred in the upkeep and maintenance of immature plants. Such an intention of the Legislature is manifest as Explanation 2 was enacted after the decision of this Court in the Travancore Rubber and Tea Co. Ltd., case, 1963-3 SCR 279 : (AIR 1961 SC 604 ) to the effect that such expenses are to be deducted in view of the provisions of cl. (j) of S. 5 of the Agricultural Income-tax Act. 7. We are therefore of the opinion that the State Legislature was competent to enact Explanation 2 to S. 5 and thereby provide for the non-deduction of the expenses incurred in the upkeep or maintenance of immature plants from which no income has been derived in the accounting year. 8. It is however contended that apart from the provisions of cl. (j) of S. 5, the word income does not mean the gross receipts of a person but such receipts after deducting the necessary expenses incurred for the purpose of getting those receipts and that such had been the concept of the Constitution makers when they used the word income in Entry No. 82 of List I and Entry No. 46 of List II, of the Seventh Schedule to the Constitution. In support of this contention reference was made to the legislative practice in the law of income-tax in England, to the dictionary meaning of the word income and to certain meanings mentioned in Strouds Judicial Dictionary and Words and Phrases by Burrows. We do not consider it necessary to deal with this contention at length as this Court had occasion to consider this aspect thoroughly in Navinchandra Mafatlal v. Commissioner of Income-tax, Bombay City, 1955 -1 SCR 829 : ( (S) AIR 1955 SC 58 ) Das J., as he then was, said at p. 833 (of SCR) : (at p. 60 of AIR) :"Our attention has not, however, been drawn to any enactment other than fiscal statues like the Finance Act and the Income-tax Act where the word income has been used and, therefore, it is not possible to say that the critical word had acquired any particular meaning by reason of any legislative practice. Reference has been made to several cases where the word income has been construed by the Court. What is, therefore, described as legislative practice is nothing but judicial interpretations of the word income as appearing in the fiscal statutes mentioned above ....... These guarded observations quite clearly indicate that they relate to the term income or profit as used in the Income-tax Act. There is no warrant for saying that these observations cut down the natural meaning of the ordinary English word income in any way." In discussing the natural and grammatical meaning of the word income, reference was made to its dictionary meaning and to the interpretation of the word in a wide sense in the United States of America and in Australia and then it was said at p. 837 (of SCR) : (at p. 61 of AIR) :"The relevant observations of learned Judges deciding those cases which have been quoted in the judgment of Tendolkar, J., quite clearly indicate that such wide meaning was put on the word income not because of any particular legislative practice either 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." It is therefore clear that the word income in the relevant provisions of the Constitution has a very wide meaning and is not restricted in its meaning as suggested for the petitioner. 9. The next contention for the appellant is that Explanation 2 is discriminatory and contravenes the provision of Art. 14 of the Constitution. There is nothing discriminatory in the provisions of Explanation 2 to S. 5. It is applicable to agricultural income derived from all crops except tea. 10. The question of the applicability of Explanation 2 to S. 5 to the agricultural income derived from tea plantations was before us for determination in Karimtharuvi Tea Estates Ltd., Kottayam v. State of Kerala W. P. Nos. 234 and 236 of 1961 D/- 1-11-1962 : (AIR 1963 SC 760 ). We have held in that case that Explanation 2 to S. 5 does not apply to the agricultural income from tea plantations. It was argued that if such be the view of this Court, the Explanation would bring about discrimination between agricultural income arising from rubber plantations and similar income arising from tea plantations and that therefore the Explanation would contravene the provisions of Art, 14 of the Constitution. It was, however, fairly conceded that in case the decision that this Explanation does not apply to agricultural income from tea plantations is based on the special provisions in the Income-tax Act and the rules made thereunder in connection with the computation of agricultural income from tea plantations, there would be no such discrimination. Our decision in Karimtharuvi Tea Estates case, W .P. Nos. 234 and 236 of 1961 D/- 1-11-1962 : (AIR 1963 SC 760 ) is based on such special provisions. 11. The income derived from the sale of tea grown and manufactured by the seller is partly derived from land by agriculture and partly from business. Such is not the case with the income derived from the sale of rubber. The provision for the computation of agricultural income from tea plantations has to be different and is to be found in the rules made under S. 59(3) of the Income-tax Act for determining the proportions of agricultural income and income from business in the entire income from the sale of tea. The difference in the provisions for the computation of agricultural income from tea plantations and from rubber plantations is therefore based on good reasons. 12. We hold that the provisions of Explanation 2 are not discriminatory against agricultural income from rubber plantations.
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### Explanation:
6. The State Legislature has full powers to tax such income as come within the expression agricultural income as defined in the Agricultural Income-tax Act, the definition being in conformity with the definition of agricultural income in the Income-tax Act. It is for the State Legislature to provide such deductions from such income as it considers fit. Section 5 of the Agricultural Income-tax Act makes provisions for the deductions considered necessary by the Legislature. Explanation 2 added to S. 5 by the Amendment Act makes it clear that the Legislature was of opinion that no deduction should be allowed for the expenses incurred in the upkeep and maintenance of immature plants. Such an intention of the Legislature is manifest as Explanation 2 was enacted after the decision of this Court in the Travancore Rubber and Tea Co. Ltd., case, 1963-3 SCR 279 : (AIR 1961 SC 604 ) to the effect that such expenses are to be deducted in view of the provisions of cl. (j) of S. 5 of the Agricultural Income-tax Act11. The income derived from the sale of tea grown and manufactured by the seller is partly derived from land by agriculture and partly from business. Such is not the case with the income derived from the sale of rubber. The provision for the computation of agricultural income from tea plantations has to be different and is to be found in the rules made under S. 59(3) of the Income-tax Act for determining the proportions of agricultural income and income from business in the entire income from the sale of tea. The difference in the provisions for the computation of agricultural income from tea plantations and from rubber plantations is therefore based on good reasons12. We hold that the provisions of Explanation 2 are not discriminatory against agricultural income from rubber plantations.
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Atma Das Vs. Suriya Prasad | the tools supplied to him were returned to pay the cost of the tools also. The appellant was called upon to deposit the amount demanded and the letter proceeded to state : "Further more, you are hereby informed that you have not to proceed with the work any more." By letter, dated June 27, 1958, the Superintendent, Department of Archaeology, addressed a memorandum to the appellant in continuation of the letter, dated August 13, 1958, reiterating that the cost of cement and stones may be reimbursed, and the tools may be returned. The appellant was informed that he "will be paid for the cost of R.C.C. work done by him", but that he was bound to rectify the defects in the work executed by him, as pointed out at the site. 9. By letter, dated July 19, 1959, the appellant wrote to the Superintendent, Department of Archaeology, that he was willing to carry out the orders regarding the repairs to the Burj, and that arrangements may be made to send the "work in-charge" at the site so that the work may be done according to his instructions. He also stated that he had never refused to comply with the orders. By letter, dated September 27, 1959, the appellant again reiterated his desire to rectify the defects pointed out to him. 10. It appears, however, that nothing concrete was done, and on April 12, 1961, the appellants lawyer addressed a letter to the Director-General, Department of Archaeology, asserting that the appellant had completed his "part of the work almost entirely" and that he was shown certain defects which he had also removed, but when the appellant demanded payment for the work done the Department asked him to do certain other things which were not to be done by him. He denied that the work done by him was defective. He also stated that if the defects were not intimated to him in writing and their photographs were not supplied within a month from the receipt of the letter, it will be presumed that there were no defects in the work done and that he will be entitled to receive the full amount for the work done. 11. This correspondence clearly evidences an intention to treat the original contract as determined. The appellant was told that the amount payable to him if he returned the building materials and the tools supplied to him, and rectified the defects pointed. The letters do not evidence a subsisting contract; they emphasise that the contract was treated as determined. 12. After April 12, 1961, there is on the record no correspondence between the appellant and the Government. The Government had claimed damages against the appellant for defective work executed by him and for return of certain materials supplied and the value of the tools and had called upon the appellant to carry out the repairs. The appellants claim was that he was entitled to payment for the work done by him, and that he had carried out the repairs. The security deposit had not been returned to the appellant, nor has he been paid the amount claimed by him. The amount alleged to be due by the appellant on account of defective workmanship and for the value of the materials supplied to him has also not been demanded by the Government. Failure to settle the respective claims does not evidence an intention to keep the original contract as subsisting. For more than 5 years 8 months the appellant and the Government of India have not taken steps for settlement of their respective claims. The alience was evidence of [acquiescence in the abandonment of the contract, an not of a subsisting contract. Even if the demand that the defects pointed out in the work executed by the appellant be repaired and the offer made by the appellant to carry out the repairs establish a contractual relation, inaction for nearly six years on the part of the Government and the appellant is evidence of abandonment of the contractual relation. 13. The learned Trial judge observed in his report in Paragraph 33 that : "No paper whatsoever, either from Bhopal Office or Delhi Office has been produced on record by the parties to this litigation showing that the Government expressly abandoned this part of the work at any time after the lawyers notice, dated April 12, 1961 till Shri Atma Das filed his nomination paper on January 19, 1967. So there was no express abandonment on the part of the Government as far as this part of the incomplete work is concerned. But the position seems to have been altered because of the attendant circumstances, conduct of the parties and inordinate delay during which neither party insisted on the performance of this part of the incomplete work." The learned Judge concluded : "Accordingly where, as here, neither party has insisted on the performance of this part of the work, namely, the rectification of the defects for more than 5 1/4 years which is undoubtedly an inordinate length of time, it is reasonable to infer that the parties, i.e., the Government and Shri Atma Das have mutually abandoned its performance before Shri Atma Das filed his nomination paper." The two letters, dated July 23, 1958 and August 13, 1958, clearly evince an intention on the part of the Government to determine the contract, and the demand for rectification of the defects did not evidence an intention either to keep the original contract outstanding or to enter into a fresh contract for carrying out the repairs in the work already executed. Even if insistence upon rectification of the defects be treated as an offer, and the willingness of the appellant to carry out the repairs he treated as acceptance of the offer, studied inaction for nearly six years by the appellant as well as by the Government in our judgment leads to an inference of abandonment. We accordingly agree with the finding recorded by the High Court on the second issue. | 1[ds]4. Under the terms of the contract the appellant had undertaken to raise the height of the Burj to 46 feet. It is common ground that he did not raise the height of the Burj above 35 feet. The authorities were dissatisfied with the work done by him till the end of March 1956. Work was inspected by the Archaeological Engineer in 1957 and was found to be "defective, unsatisfactory and incomplete". The Archaeological Engineer made adverse remarks against the appellant and further work was discontinued. The Director-General visited the site in July 1958 and found the work incomplete, unsatisfactory and defective. He remarked that the contractor may "be categorically told that he is not to proceed with the work", and that "the remaining work which may include the heightening of the Burj by not more than two feet, filling up its interior and rendering its top water-tight may be done by departmental labour". Accordingly the appellant was informed by letter, dated August 13, 1958, that he was "not to proceed with the work any more". The appellant was clearly informed that he was not to raise the height of the Burj up to 46 feet as originally agreed : he was only asked to rectify the defects in the construction work executed by him. This was unmistakable evidence of determination of the contract10. It appears, however, that nothing concrete was done, and on April 12, 1961, the appellants lawyer addressed a letter to the Director-General, Department of Archaeology, asserting that the appellant had completed his "part of the work almost entirely" and that he was shown certain defects which he had also removed, but when the appellant demanded payment for the work done the Department asked him to do certain other things which were not to be done by him. He denied that the work done by him was defective. He also stated that if the defects were not intimated to him in writing and their photographs were not supplied within a month from the receipt of the letter, it will be presumed that there were no defects in the work done and that he will be entitled to receive the full amount for the work done11. This correspondence clearly evidences an intention to treat the original contract as determined. The appellant was told that the amount payable to him if he returned the building materials and the tools supplied to him, and rectified the defects pointed. The letters do not evidence a subsisting contract; they emphasise that the contract was treated as determined12. After April 12, 1961, there is on the record no correspondence between the appellant and the Government. The Government had claimed damages against the appellant for defective work executed by him and for return of certain materials supplied and the value of the tools and had called upon the appellant to carry out the repairs. The appellants claim was that he was entitled to payment for the work done by him, and that he had carried out the repairs. The security deposit had not been returned to the appellant, nor has he been paid the amount claimed by him. The amount alleged to be due by the appellant on account of defective workmanship and for the value of the materials supplied to him has also not been demanded by the Government. Failure to settle the respective claims does not evidence an intention to keep the original contract as subsisting. For more than 5 years 8 months the appellant and the Government of India have not taken steps for settlement of their respective claims. The alience was evidence of [acquiescence in the abandonment of the contract, an not of a subsisting contract. Even if the demand that the defects pointed out in the work executed by the appellant be repaired and the offer made by the appellant to carry out the repairs establish a contractual relation, inaction for nearly six years on the part of the Government and the appellant is evidence of abandonment of the contractual relationThe two letters, dated July 23, 1958 and August 13, 1958, clearly evince an intention on the part of the Government to determine the contract, and the demand for rectification of the defects did not evidence an intention either to keep the original contract outstanding or to enter into a fresh contract for carrying out the repairs in the work already executed. Even if insistence upon rectification of the defects be treated as an offer, and the willingness of the appellant to carry out the repairs he treated as acceptance of the offer, studied inaction for nearly six years by the appellant as well as by the Government in our judgment leads to an inference of abandonment. We accordingly agree with the finding recorded by the High Court on the second issue. | 1 | 2,970 | 877 | ### 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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the tools supplied to him were returned to pay the cost of the tools also. The appellant was called upon to deposit the amount demanded and the letter proceeded to state : "Further more, you are hereby informed that you have not to proceed with the work any more." By letter, dated June 27, 1958, the Superintendent, Department of Archaeology, addressed a memorandum to the appellant in continuation of the letter, dated August 13, 1958, reiterating that the cost of cement and stones may be reimbursed, and the tools may be returned. The appellant was informed that he "will be paid for the cost of R.C.C. work done by him", but that he was bound to rectify the defects in the work executed by him, as pointed out at the site. 9. By letter, dated July 19, 1959, the appellant wrote to the Superintendent, Department of Archaeology, that he was willing to carry out the orders regarding the repairs to the Burj, and that arrangements may be made to send the "work in-charge" at the site so that the work may be done according to his instructions. He also stated that he had never refused to comply with the orders. By letter, dated September 27, 1959, the appellant again reiterated his desire to rectify the defects pointed out to him. 10. It appears, however, that nothing concrete was done, and on April 12, 1961, the appellants lawyer addressed a letter to the Director-General, Department of Archaeology, asserting that the appellant had completed his "part of the work almost entirely" and that he was shown certain defects which he had also removed, but when the appellant demanded payment for the work done the Department asked him to do certain other things which were not to be done by him. He denied that the work done by him was defective. He also stated that if the defects were not intimated to him in writing and their photographs were not supplied within a month from the receipt of the letter, it will be presumed that there were no defects in the work done and that he will be entitled to receive the full amount for the work done. 11. This correspondence clearly evidences an intention to treat the original contract as determined. The appellant was told that the amount payable to him if he returned the building materials and the tools supplied to him, and rectified the defects pointed. The letters do not evidence a subsisting contract; they emphasise that the contract was treated as determined. 12. After April 12, 1961, there is on the record no correspondence between the appellant and the Government. The Government had claimed damages against the appellant for defective work executed by him and for return of certain materials supplied and the value of the tools and had called upon the appellant to carry out the repairs. The appellants claim was that he was entitled to payment for the work done by him, and that he had carried out the repairs. The security deposit had not been returned to the appellant, nor has he been paid the amount claimed by him. The amount alleged to be due by the appellant on account of defective workmanship and for the value of the materials supplied to him has also not been demanded by the Government. Failure to settle the respective claims does not evidence an intention to keep the original contract as subsisting. For more than 5 years 8 months the appellant and the Government of India have not taken steps for settlement of their respective claims. The alience was evidence of [acquiescence in the abandonment of the contract, an not of a subsisting contract. Even if the demand that the defects pointed out in the work executed by the appellant be repaired and the offer made by the appellant to carry out the repairs establish a contractual relation, inaction for nearly six years on the part of the Government and the appellant is evidence of abandonment of the contractual relation. 13. The learned Trial judge observed in his report in Paragraph 33 that : "No paper whatsoever, either from Bhopal Office or Delhi Office has been produced on record by the parties to this litigation showing that the Government expressly abandoned this part of the work at any time after the lawyers notice, dated April 12, 1961 till Shri Atma Das filed his nomination paper on January 19, 1967. So there was no express abandonment on the part of the Government as far as this part of the incomplete work is concerned. But the position seems to have been altered because of the attendant circumstances, conduct of the parties and inordinate delay during which neither party insisted on the performance of this part of the incomplete work." The learned Judge concluded : "Accordingly where, as here, neither party has insisted on the performance of this part of the work, namely, the rectification of the defects for more than 5 1/4 years which is undoubtedly an inordinate length of time, it is reasonable to infer that the parties, i.e., the Government and Shri Atma Das have mutually abandoned its performance before Shri Atma Das filed his nomination paper." The two letters, dated July 23, 1958 and August 13, 1958, clearly evince an intention on the part of the Government to determine the contract, and the demand for rectification of the defects did not evidence an intention either to keep the original contract outstanding or to enter into a fresh contract for carrying out the repairs in the work already executed. Even if insistence upon rectification of the defects be treated as an offer, and the willingness of the appellant to carry out the repairs he treated as acceptance of the offer, studied inaction for nearly six years by the appellant as well as by the Government in our judgment leads to an inference of abandonment. We accordingly agree with the finding recorded by the High Court on the second issue.
### Response:
1
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4. Under the terms of the contract the appellant had undertaken to raise the height of the Burj to 46 feet. It is common ground that he did not raise the height of the Burj above 35 feet. The authorities were dissatisfied with the work done by him till the end of March 1956. Work was inspected by the Archaeological Engineer in 1957 and was found to be "defective, unsatisfactory and incomplete". The Archaeological Engineer made adverse remarks against the appellant and further work was discontinued. The Director-General visited the site in July 1958 and found the work incomplete, unsatisfactory and defective. He remarked that the contractor may "be categorically told that he is not to proceed with the work", and that "the remaining work which may include the heightening of the Burj by not more than two feet, filling up its interior and rendering its top water-tight may be done by departmental labour". Accordingly the appellant was informed by letter, dated August 13, 1958, that he was "not to proceed with the work any more". The appellant was clearly informed that he was not to raise the height of the Burj up to 46 feet as originally agreed : he was only asked to rectify the defects in the construction work executed by him. This was unmistakable evidence of determination of the contract10. It appears, however, that nothing concrete was done, and on April 12, 1961, the appellants lawyer addressed a letter to the Director-General, Department of Archaeology, asserting that the appellant had completed his "part of the work almost entirely" and that he was shown certain defects which he had also removed, but when the appellant demanded payment for the work done the Department asked him to do certain other things which were not to be done by him. He denied that the work done by him was defective. He also stated that if the defects were not intimated to him in writing and their photographs were not supplied within a month from the receipt of the letter, it will be presumed that there were no defects in the work done and that he will be entitled to receive the full amount for the work done11. This correspondence clearly evidences an intention to treat the original contract as determined. The appellant was told that the amount payable to him if he returned the building materials and the tools supplied to him, and rectified the defects pointed. The letters do not evidence a subsisting contract; they emphasise that the contract was treated as determined12. After April 12, 1961, there is on the record no correspondence between the appellant and the Government. The Government had claimed damages against the appellant for defective work executed by him and for return of certain materials supplied and the value of the tools and had called upon the appellant to carry out the repairs. The appellants claim was that he was entitled to payment for the work done by him, and that he had carried out the repairs. The security deposit had not been returned to the appellant, nor has he been paid the amount claimed by him. The amount alleged to be due by the appellant on account of defective workmanship and for the value of the materials supplied to him has also not been demanded by the Government. Failure to settle the respective claims does not evidence an intention to keep the original contract as subsisting. For more than 5 years 8 months the appellant and the Government of India have not taken steps for settlement of their respective claims. The alience was evidence of [acquiescence in the abandonment of the contract, an not of a subsisting contract. Even if the demand that the defects pointed out in the work executed by the appellant be repaired and the offer made by the appellant to carry out the repairs establish a contractual relation, inaction for nearly six years on the part of the Government and the appellant is evidence of abandonment of the contractual relationThe two letters, dated July 23, 1958 and August 13, 1958, clearly evince an intention on the part of the Government to determine the contract, and the demand for rectification of the defects did not evidence an intention either to keep the original contract outstanding or to enter into a fresh contract for carrying out the repairs in the work already executed. Even if insistence upon rectification of the defects be treated as an offer, and the willingness of the appellant to carry out the repairs he treated as acceptance of the offer, studied inaction for nearly six years by the appellant as well as by the Government in our judgment leads to an inference of abandonment. We accordingly agree with the finding recorded by the High Court on the second issue.
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Commissioner of Income-Tax - Central-I Vs. Income Tax Settlement Commission | failure to make a true and full disclosure was not an issue for consideration before the Apex Court. This is so as it was not a subject matter of challenge by the revenue either before the High Court or before the Supreme Court. In view of the above, the above observations of the Apex Court in the Ajmera Housing Corpn. (supra), cannot be said to be a ratio-decidendi of the decision. It is trite law that a decision of a Court is not to be read as a statutory provision. The observation of Court must be read in the context of the facts before the Court.10. The above observations equally apply to the present case. Moreover, the facts as pointed out herein above in the present case, are very different from the facts which arose for consideration before the Apex Court in Ajmera Housing Corpn. (supra). Consequently, the same in the peculiar facts of the present case, cannot be applied. Therefore we do not agree with the submission of the Petitioner that there has been a failure to disclose truly and fully undisclosed income in the settlement application in the peculiar facts of the Petitioners case.11. So far as the other objection is concerned viz failure to disclose the manner in which this income has been derived, we find that the application for settlement sufficiently explains the source of the income being declared. The application mentions how the additional income which is being disclosed as been derived i.e. on application of the ALP in respect of exports made to its Associated Enterprise viz holding company. We do not see any merit in the above submission on behalf of the petitioner.12. The other jurisdictional objection to the impugned order urged by the petitioner is the grant of immunity from penalty and prosecution under Section 245H of the Act. It is submitted that before immunity can be granted, the Statute requires the Commission to be satisfied that the person who has made an application for settlement:(a) has cooperated in the proceedings before the Commission;(b) has made a full and true disclosure of his income; and(c) disclosed the manner in which such income has been earned.Attention is invited to the impugned order to contend that the question of unbilled revenue was not raised in its application for settlement but raised only during the course of the hearing. Thus not a full and true disclosure. This is factually not correct. In fact in the statement of facts filed by Respondent No. 2 along with the application for settlement does mention at para 25 as under:" ** ** **In so far as the income which has been disclosed as per profit and loss Account is at a higher figure and the applicant cannot reduce its income, whether it would remain taxable as such or on its being abated could a lower figure be is a circumstance which deserves consideration by the Commission. In view of such concession which the applicant is willing to offer, the disputable issues regarding the taxability of real income and book profits requires settlement."In any event on consideration of the submissions made before it the impugned order at Para 47.3 records its satisfaction in respect of all the three prerequisites for grant of immunity from penalty and prosecution. Thus the immunity from penalty and prosecution was granted only on satisfaction of the jurisdictional requirements. This satisfaction has not been shown to be perverse.13. The last grievance of the petitioner is that the impugned order is bad on merits. It is submitted that concepts like real income have been invoked when the same has no application. In support reliance is placed upon the decision of the Apex Court in State Bank of Travancore v. CIT [1986]158 ITR 102 /24 Taxman 337 and CIT v. Shiv Prakash Janak Raj & Co. (P.) Ltd. [1996] 222 ITR 583 /88 Taxman 536 (SC) [relies upon State Bank of Travancore (supra)]. The decision of the Apex Court in State Bank of Travancore (supra) was reversed to the extent it held that accrued interest is real income in UCO Bank v. CIT [1999] 237 ITR 889 /104 Taxman 547 (SC) Be that as it may, the Counsel for the Revenue places reliance upon the propositions set out by the Apex Court in relation to the theory of real income. The Counsel for Respondent No. 2 also has no quarrel with the same and according to him the view on real income taken by Commission is in line with those directions/propositions. On application of the first proposition set out therein that real income is income which has really accrued or arisen to the assessee that is taxable. Whether the income has really accrued or arisen must be judged in the light of the reality of the situation. It is on application of the above principle that the Commission has come to the conclusion that unbilled revenue was only a book entry and no real income accrued or arose. This view of the Commission in the impugned order cannot be said to be perverse in the least. It is a possible view. Therefore, keeping in view the self imposed limitations as set out in Jyotinderesinhji (supra) we see no reason to interfere with the merits of the decision in the present facts.14. Before we close, one aspect of matter may be adverted to and that is the impugned order was passed on 28th December, 2012. It was on the basis of the impugned order that the Assessing Officer raised a demand upon Respondent No. 2, payable in installments up to 31st March, 2013. The impugned order was accepted by the Revenue and at no point of time, was the Respondent No. 2 informed of the likely challenge to the impugned order. It was only in July 2013 that this Petition was filed. Not a whisper in the Petition, why the delay occurred.15. In the above, view we see no reason to interfere with the impugned order of the Commission. | 0[ds]13. The last grievance of the petitioner is that the impugned order is bad on merits. It is submitted that concepts like real income have been invoked when the same has no application. In support reliance is placed upon the decision of the Apex Court in State Bank of Travancore v. CIT [1986]158 ITR 102 /24 Taxman 337 and CIT v. Shiv Prakash Janak RajCo. (P.) Ltd. [1996] 222 ITR 583 /88 Taxman 536 (SC) [relies upon State Bank of Travancore (supra)]. The decision of the Apex Court in State Bank of Travancore (supra) was reversed to the extent it held that accrued interest is real income in UCO Bank v. CIT [1999] 237 ITR 889 /104 Taxman 547 (SC) Be that as it may, the Counsel for the Revenue places reliance upon the propositions set out by the Apex Court in relation to the theory of real income. The Counsel for Respondent No. 2 also has no quarrel with the same and according to him the view on real income taken by Commission is in line with those directions/propositions. On application of the first proposition set out therein that real income is income which has really accrued or arisen to the assessee that is taxable. Whether the income has really accrued or arisen must be judged in the light of the reality of the situation. It is on application of the above principle that the Commission has come to the conclusion that unbilled revenue was only a book entry and no real income accrued or arose. This view of the Commission in the impugned order cannot be said to be perverse in the least. It is a possible view. Therefore, keeping in view the self imposed limitations as set out in Jyotinderesinhji (supra) we see no reason to interfere with the merits of the decision in the present facts.14. Before we close, one aspect of matter may be adverted to and that is the impugned order was passed on 28th December, 2012. It was on the basis of the impugned order that the Assessing Officer raised a demand upon Respondent No. 2, payable in installments up to 31st March, 2013. The impugned order was accepted by the Revenue and at no point of time, was the Respondent No. 2 informed of the likely challenge to the impugned order. It was only in July 2013 that this Petition was filed. Not a whisper in the Petition, why the delay occurred.15. In the above, view we see no reason to interfere with the impugned order of theany event on consideration of the submissions made before it the impugned order at Para 47.3 records its satisfaction in respect of all the three prerequisites for grant of immunity from penalty and prosecution. Thus the immunity from penalty and prosecution was granted only on satisfaction of the jurisdictional requirements. This satisfaction has not been shown to be perverse. | 0 | 4,949 | 543 | ### 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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failure to make a true and full disclosure was not an issue for consideration before the Apex Court. This is so as it was not a subject matter of challenge by the revenue either before the High Court or before the Supreme Court. In view of the above, the above observations of the Apex Court in the Ajmera Housing Corpn. (supra), cannot be said to be a ratio-decidendi of the decision. It is trite law that a decision of a Court is not to be read as a statutory provision. The observation of Court must be read in the context of the facts before the Court.10. The above observations equally apply to the present case. Moreover, the facts as pointed out herein above in the present case, are very different from the facts which arose for consideration before the Apex Court in Ajmera Housing Corpn. (supra). Consequently, the same in the peculiar facts of the present case, cannot be applied. Therefore we do not agree with the submission of the Petitioner that there has been a failure to disclose truly and fully undisclosed income in the settlement application in the peculiar facts of the Petitioners case.11. So far as the other objection is concerned viz failure to disclose the manner in which this income has been derived, we find that the application for settlement sufficiently explains the source of the income being declared. The application mentions how the additional income which is being disclosed as been derived i.e. on application of the ALP in respect of exports made to its Associated Enterprise viz holding company. We do not see any merit in the above submission on behalf of the petitioner.12. The other jurisdictional objection to the impugned order urged by the petitioner is the grant of immunity from penalty and prosecution under Section 245H of the Act. It is submitted that before immunity can be granted, the Statute requires the Commission to be satisfied that the person who has made an application for settlement:(a) has cooperated in the proceedings before the Commission;(b) has made a full and true disclosure of his income; and(c) disclosed the manner in which such income has been earned.Attention is invited to the impugned order to contend that the question of unbilled revenue was not raised in its application for settlement but raised only during the course of the hearing. Thus not a full and true disclosure. This is factually not correct. In fact in the statement of facts filed by Respondent No. 2 along with the application for settlement does mention at para 25 as under:" ** ** **In so far as the income which has been disclosed as per profit and loss Account is at a higher figure and the applicant cannot reduce its income, whether it would remain taxable as such or on its being abated could a lower figure be is a circumstance which deserves consideration by the Commission. In view of such concession which the applicant is willing to offer, the disputable issues regarding the taxability of real income and book profits requires settlement."In any event on consideration of the submissions made before it the impugned order at Para 47.3 records its satisfaction in respect of all the three prerequisites for grant of immunity from penalty and prosecution. Thus the immunity from penalty and prosecution was granted only on satisfaction of the jurisdictional requirements. This satisfaction has not been shown to be perverse.13. The last grievance of the petitioner is that the impugned order is bad on merits. It is submitted that concepts like real income have been invoked when the same has no application. In support reliance is placed upon the decision of the Apex Court in State Bank of Travancore v. CIT [1986]158 ITR 102 /24 Taxman 337 and CIT v. Shiv Prakash Janak Raj & Co. (P.) Ltd. [1996] 222 ITR 583 /88 Taxman 536 (SC) [relies upon State Bank of Travancore (supra)]. The decision of the Apex Court in State Bank of Travancore (supra) was reversed to the extent it held that accrued interest is real income in UCO Bank v. CIT [1999] 237 ITR 889 /104 Taxman 547 (SC) Be that as it may, the Counsel for the Revenue places reliance upon the propositions set out by the Apex Court in relation to the theory of real income. The Counsel for Respondent No. 2 also has no quarrel with the same and according to him the view on real income taken by Commission is in line with those directions/propositions. On application of the first proposition set out therein that real income is income which has really accrued or arisen to the assessee that is taxable. Whether the income has really accrued or arisen must be judged in the light of the reality of the situation. It is on application of the above principle that the Commission has come to the conclusion that unbilled revenue was only a book entry and no real income accrued or arose. This view of the Commission in the impugned order cannot be said to be perverse in the least. It is a possible view. Therefore, keeping in view the self imposed limitations as set out in Jyotinderesinhji (supra) we see no reason to interfere with the merits of the decision in the present facts.14. Before we close, one aspect of matter may be adverted to and that is the impugned order was passed on 28th December, 2012. It was on the basis of the impugned order that the Assessing Officer raised a demand upon Respondent No. 2, payable in installments up to 31st March, 2013. The impugned order was accepted by the Revenue and at no point of time, was the Respondent No. 2 informed of the likely challenge to the impugned order. It was only in July 2013 that this Petition was filed. Not a whisper in the Petition, why the delay occurred.15. In the above, view we see no reason to interfere with the impugned order of the Commission.
### Response:
0
### Explanation:
13. The last grievance of the petitioner is that the impugned order is bad on merits. It is submitted that concepts like real income have been invoked when the same has no application. In support reliance is placed upon the decision of the Apex Court in State Bank of Travancore v. CIT [1986]158 ITR 102 /24 Taxman 337 and CIT v. Shiv Prakash Janak RajCo. (P.) Ltd. [1996] 222 ITR 583 /88 Taxman 536 (SC) [relies upon State Bank of Travancore (supra)]. The decision of the Apex Court in State Bank of Travancore (supra) was reversed to the extent it held that accrued interest is real income in UCO Bank v. CIT [1999] 237 ITR 889 /104 Taxman 547 (SC) Be that as it may, the Counsel for the Revenue places reliance upon the propositions set out by the Apex Court in relation to the theory of real income. The Counsel for Respondent No. 2 also has no quarrel with the same and according to him the view on real income taken by Commission is in line with those directions/propositions. On application of the first proposition set out therein that real income is income which has really accrued or arisen to the assessee that is taxable. Whether the income has really accrued or arisen must be judged in the light of the reality of the situation. It is on application of the above principle that the Commission has come to the conclusion that unbilled revenue was only a book entry and no real income accrued or arose. This view of the Commission in the impugned order cannot be said to be perverse in the least. It is a possible view. Therefore, keeping in view the self imposed limitations as set out in Jyotinderesinhji (supra) we see no reason to interfere with the merits of the decision in the present facts.14. Before we close, one aspect of matter may be adverted to and that is the impugned order was passed on 28th December, 2012. It was on the basis of the impugned order that the Assessing Officer raised a demand upon Respondent No. 2, payable in installments up to 31st March, 2013. The impugned order was accepted by the Revenue and at no point of time, was the Respondent No. 2 informed of the likely challenge to the impugned order. It was only in July 2013 that this Petition was filed. Not a whisper in the Petition, why the delay occurred.15. In the above, view we see no reason to interfere with the impugned order of theany event on consideration of the submissions made before it the impugned order at Para 47.3 records its satisfaction in respect of all the three prerequisites for grant of immunity from penalty and prosecution. Thus the immunity from penalty and prosecution was granted only on satisfaction of the jurisdictional requirements. This satisfaction has not been shown to be perverse.
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G.M. ONGC, SHILCHAR Vs. ONGC CONTRACTUAL WORKERS UNION | decision. Hence, in our opinion, Uma Devis case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devis case (supra) inapplicable to the facts of that case. In the present case the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-a-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board in the same manner and position. Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the Society. Since they were all appointed in the society because 4.5.1990 they cannot be denied the benefit of the decision of the Electricity Board dated 28.11.1996 permitting regularization of the employees of the Electricity Board who were working from before 4.5.1990. To take a contrary view would violate Article 14 of the Constitution. We have to read Uma Devis case (supra) in conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with Article 14. The Constitution is the supreme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution. 11. It will be seen therefore that each case has to be examined to a very large extent on its specific facts, and a universal yardstick should not be attempted. 12. In the instant case, on a consideration of material produced before it, the Tribunal came to the following conclusions: (1) That there existed a relationship of master and servant. (2) That there was no contractor appointed by ONGC. 3) That the ONGC used to supervise and allot works to individual workers. (4) That the ONGC took disciplinary action and called for explanations from the workers. (5) The workers were paid wages though they did not attend their duties due to Cachar Bandh and due to flood. (6) The wages were paid direct to the workers by the ONGC and the acquaintance roll was prepared by the Management to make payment to the workmen. 13. It has also been observed that even the ONGC had admitted that since 1988, there was no licensed contractor and that the wages were being paid through one of the leaders of the Union and one such contractor, Manik has been named. The Tribunal then opined that it appeared from the record that Manik himself was a workman and not a contractor as he too was shown in the acquaintance roll to have received wages. We find that the real issue was as to the status of the workmen as employees of the ONGC or of the contractor, and it having been found that the workmen were the employees of the ONGC they would ipso-facto be entitled to all benefits available in that capacity, and the issue of regularization would, therefore, pale into insignificance. We find that in this situation, the Industrial Tribunal and the Division Bench of the High Court were justified in lifting the veil in order to determine as to the nature of employment in the light of the judgments quoted above. We, therefore, find that the ratio of the judgment in Uma Devis case (supra) would not be applicable and that the facts of Pandeys case are on the contrary more akin to the facts of the present one. 14. We are therefore of the opinion that in the light of the aforesaid observations, Mr. Daves argument that the workmen being on a contractual, were not entitled to any relief, cannot be accepted and the large number of judgments cited by Mr. Dave, on this aspect, cannot be applied to the facts of the case. 15. We have also considered Mr. Daves argument with regard to the nature of the reference. We re-produce the reference as made: Whether the demand of the ONGC `Contractual Workers Union, Silchar on the management of ONGC, Cachar Project, Silchar for regularization of the services of the contractual workers is justified. If so, what relief are the workmen concerned entitled to? 16. It is true that the underlined portion of the reference prima facie does give the impression that it presupposes that the workmen were contractual employees and the only dispute was with regard to the regularization of their services. It is equally true that the reference appears to have been rather loosely worded but as observed by the Industrial Tribunal and the Division Bench, both parties were aware of the real issues involved in the light of the protracted litigation and the efforts made during conciliation proceedings. The Division Bench has, thus, rightly observed that it was open to the Industrial Tribunal to have lifted the veil so as to determine the nature of the employment and the dispute between the parties and for that purpose to look into the pleadings and evidence produced before it. 17. In Delhi Cloth & General Mils Co. Ltd. vs. The workmen & Others AIR 1967 SC 469 , this is what the Court had to say: In our opinion, the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute, because in most cases the order of reference is so cryptic that it is impossible to cull out there from the various points about which the parties were at variance leading to the trouble. In this case, the order of reference was based on the report of the Conciliation Officer and it was certainly open to the Management to show that the dispute which had been referred was not an industrial dispute at all so as to attract jurisdiction under the Industrial Disputes Act. But the parties cannot be allowed to go a stage further and contend that the foundation of the dispute mentioned in the order of reference was non-existent and that the true dispute was something else. | 0[ds]This Court has held time and again that the High Court had the authority to enquire as to whether a finding arrived at by the Tribunal was based on evidence and to correct an error apparent on the face of the record. The observations in Trambak Rubber Industries Ltd.s case (supra) are to this effect and it has been highlighted that the High Court would be fully justified in interfering with an Award of an Industrial Court on account of a patent illegality. In Seema Ghoshs case (Supra), this Court observed that the High Courts interference under Articles 226 and 227 of the Constitution with an Award of the Labour Court was justified as the Award had been rendered contrary to the law laid down by this Court and as a measure of misplaced sympathy, and was thus perverse. The other judgments cited by Mr. Dave lay down similar principles and need not be dealt with individually. It will be seen therefore that the interference would be limited to a few cases and as already noted above, in the case of a patent illegality or perversity. On the contrary, Mr. Sanyals reliance on Sadhu Rams case (supra) is more appropriate to the circumstances herein. It has been observed as under: The jurisdiction under Article 226 of the Constitution of India is truly wide but, for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court over tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to re-adjudicate upon questions of fact decided by those tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management9. We are therefore of the opinion that in the light of the facts that have come on record we find no perversity or patent illegality in the Award of the Industrial Tribunal and on the contrary must appreciate that it has minutely examined the evidence in arriving at its decision. In this view of the matter, it was inappropriate for the Learned Single Judge to have re- appraised the evidence and come to a different conclusion10. Mr. Dave has also laid great emphasis on the fact that in the light of several judgments of the Supreme Court there was no inflexible right in a workman who had put in 240 days or more to have his/her services regularized and that contractual workers were in any case precluded from claiming this relief. Mr. Sanyal has, however, submitted that most of the workmen had joined in the year 1979 and 1984 though they had two orders in their favour, one of the Industrial Tribunal and the other of the Division Bench, they had not been able to enforce their rights in some cases for almost 30 years. We have accordingly chosen to deal with these issues together. There are several observations which do suggest that a workman who has put in 240 days or is a contractual worker, is not entitled automatically to regularization. We, however, believe that the present case is not one of regularization simpliciter such as in the case of an ad-hoc or casual employee claiming this privilege. The basic issue in the present case is the status of the workmen and whether they were the employees of the ONGC or the contractor and in the event that they were employees of the former, a claim to be treated at par with other such employees. As would be clear from the discussion a little later, this was the basic issue on which the parties went to trial, notwithstanding the confusion created by the ill-worded reference. The Division Bench has examined the evidence on this aspect and has endorsed the finding of the Industrial Tribunal. We also find that the observations in R.K. Pandas case(supra) are significant:10. It was contended by Mr. Dave that this Court in Uma Devis case (supra) has clearly opined that the contract or casual labour could not claim regularization and he has in particular emphasized that in the light of the admitted position that at some stage, the workmen were indeed contract employees the ratio of the aforesaid was clearly applicable to the facts of the case. We, however, observe that the aforesaid decision was considered by another Bench of this Court in Pandeys case (supra) wherein it has been held that the ratio of any decision must be understood in the background of the facts of that case and that the case is only an authority for what it logically decides and what logically flows from it. In Pandeys case (supra) the question was as to whether casual employees working in the Electricity Board were entitled to regularization of their services. This is what the Division Bench had to say in paragraphs 16 and 17:13. It has also been observed that even the ONGC had admitted that since 1988, there was no licensed contractor and that the wages were being paid through one of the leaders of the Union and one such contractor, Manik has been named. The Tribunal then opined that it appeared from the record that Manik himself was a workman and not a contractor as he too was shown in the acquaintance roll to have received wages. We find that the real issue was as to the status of the workmen as employees of the ONGC or of the contractor, and it having been found that the workmen were the employees of the ONGC they would ipso-facto be entitled to all benefits available in that capacity, and the issue of regularization would, therefore, pale into insignificance. We find that in this situation, the Industrial Tribunal and the Division Bench of the High Court were justified in lifting the veil in order to determine as to the nature of employment in the light of the judgments quoted above. We, therefore, find that the ratio of the judgment in Uma Devis case (supra) would not be applicable and that the facts of Pandeys case are on the contrary more akin to the facts of the present one14. We are therefore of the opinion that in the light of the aforesaid observations, Mr. Daves argument that the workmen being on a contractual, were not entitled to any relief, cannot be accepted and the large number of judgments cited by Mr. Dave, on this aspect, cannot be applied to the facts of the case16. It is true that the underlined portion of the reference prima facie does give the impression that it presupposes that the workmen were contractual employees and the only dispute was with regard to the regularization of their services. It is equally true that the reference appears to have been rather loosely worded but as observed by the Industrial Tribunal and the Division Bench, both parties were aware of the real issues involved in the light of the protracted litigation and the efforts made during conciliation proceedings. The Division Bench has, thus, rightly observed that it was open to the Industrial Tribunal to have lifted the veil so as to determine the nature of the employment and the dispute between the parties and for that purpose to look into the pleadings and evidence produced before it. | 0 | 4,613 | 1,411 | ### 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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decision. Hence, in our opinion, Uma Devis case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devis case (supra) inapplicable to the facts of that case. In the present case the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-a-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board in the same manner and position. Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the Society. Since they were all appointed in the society because 4.5.1990 they cannot be denied the benefit of the decision of the Electricity Board dated 28.11.1996 permitting regularization of the employees of the Electricity Board who were working from before 4.5.1990. To take a contrary view would violate Article 14 of the Constitution. We have to read Uma Devis case (supra) in conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with Article 14. The Constitution is the supreme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution. 11. It will be seen therefore that each case has to be examined to a very large extent on its specific facts, and a universal yardstick should not be attempted. 12. In the instant case, on a consideration of material produced before it, the Tribunal came to the following conclusions: (1) That there existed a relationship of master and servant. (2) That there was no contractor appointed by ONGC. 3) That the ONGC used to supervise and allot works to individual workers. (4) That the ONGC took disciplinary action and called for explanations from the workers. (5) The workers were paid wages though they did not attend their duties due to Cachar Bandh and due to flood. (6) The wages were paid direct to the workers by the ONGC and the acquaintance roll was prepared by the Management to make payment to the workmen. 13. It has also been observed that even the ONGC had admitted that since 1988, there was no licensed contractor and that the wages were being paid through one of the leaders of the Union and one such contractor, Manik has been named. The Tribunal then opined that it appeared from the record that Manik himself was a workman and not a contractor as he too was shown in the acquaintance roll to have received wages. We find that the real issue was as to the status of the workmen as employees of the ONGC or of the contractor, and it having been found that the workmen were the employees of the ONGC they would ipso-facto be entitled to all benefits available in that capacity, and the issue of regularization would, therefore, pale into insignificance. We find that in this situation, the Industrial Tribunal and the Division Bench of the High Court were justified in lifting the veil in order to determine as to the nature of employment in the light of the judgments quoted above. We, therefore, find that the ratio of the judgment in Uma Devis case (supra) would not be applicable and that the facts of Pandeys case are on the contrary more akin to the facts of the present one. 14. We are therefore of the opinion that in the light of the aforesaid observations, Mr. Daves argument that the workmen being on a contractual, were not entitled to any relief, cannot be accepted and the large number of judgments cited by Mr. Dave, on this aspect, cannot be applied to the facts of the case. 15. We have also considered Mr. Daves argument with regard to the nature of the reference. We re-produce the reference as made: Whether the demand of the ONGC `Contractual Workers Union, Silchar on the management of ONGC, Cachar Project, Silchar for regularization of the services of the contractual workers is justified. If so, what relief are the workmen concerned entitled to? 16. It is true that the underlined portion of the reference prima facie does give the impression that it presupposes that the workmen were contractual employees and the only dispute was with regard to the regularization of their services. It is equally true that the reference appears to have been rather loosely worded but as observed by the Industrial Tribunal and the Division Bench, both parties were aware of the real issues involved in the light of the protracted litigation and the efforts made during conciliation proceedings. The Division Bench has, thus, rightly observed that it was open to the Industrial Tribunal to have lifted the veil so as to determine the nature of the employment and the dispute between the parties and for that purpose to look into the pleadings and evidence produced before it. 17. In Delhi Cloth & General Mils Co. Ltd. vs. The workmen & Others AIR 1967 SC 469 , this is what the Court had to say: In our opinion, the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute, because in most cases the order of reference is so cryptic that it is impossible to cull out there from the various points about which the parties were at variance leading to the trouble. In this case, the order of reference was based on the report of the Conciliation Officer and it was certainly open to the Management to show that the dispute which had been referred was not an industrial dispute at all so as to attract jurisdiction under the Industrial Disputes Act. But the parties cannot be allowed to go a stage further and contend that the foundation of the dispute mentioned in the order of reference was non-existent and that the true dispute was something else.
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that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management9. We are therefore of the opinion that in the light of the facts that have come on record we find no perversity or patent illegality in the Award of the Industrial Tribunal and on the contrary must appreciate that it has minutely examined the evidence in arriving at its decision. In this view of the matter, it was inappropriate for the Learned Single Judge to have re- appraised the evidence and come to a different conclusion10. Mr. Dave has also laid great emphasis on the fact that in the light of several judgments of the Supreme Court there was no inflexible right in a workman who had put in 240 days or more to have his/her services regularized and that contractual workers were in any case precluded from claiming this relief. Mr. Sanyal has, however, submitted that most of the workmen had joined in the year 1979 and 1984 though they had two orders in their favour, one of the Industrial Tribunal and the other of the Division Bench, they had not been able to enforce their rights in some cases for almost 30 years. We have accordingly chosen to deal with these issues together. There are several observations which do suggest that a workman who has put in 240 days or is a contractual worker, is not entitled automatically to regularization. We, however, believe that the present case is not one of regularization simpliciter such as in the case of an ad-hoc or casual employee claiming this privilege. The basic issue in the present case is the status of the workmen and whether they were the employees of the ONGC or the contractor and in the event that they were employees of the former, a claim to be treated at par with other such employees. As would be clear from the discussion a little later, this was the basic issue on which the parties went to trial, notwithstanding the confusion created by the ill-worded reference. The Division Bench has examined the evidence on this aspect and has endorsed the finding of the Industrial Tribunal. We also find that the observations in R.K. Pandas case(supra) are significant:10. It was contended by Mr. Dave that this Court in Uma Devis case (supra) has clearly opined that the contract or casual labour could not claim regularization and he has in particular emphasized that in the light of the admitted position that at some stage, the workmen were indeed contract employees the ratio of the aforesaid was clearly applicable to the facts of the case. We, however, observe that the aforesaid decision was considered by another Bench of this Court in Pandeys case (supra) wherein it has been held that the ratio of any decision must be understood in the background of the facts of that case and that the case is only an authority for what it logically decides and what logically flows from it. In Pandeys case (supra) the question was as to whether casual employees working in the Electricity Board were entitled to regularization of their services. This is what the Division Bench had to say in paragraphs 16 and 17:13. It has also been observed that even the ONGC had admitted that since 1988, there was no licensed contractor and that the wages were being paid through one of the leaders of the Union and one such contractor, Manik has been named. The Tribunal then opined that it appeared from the record that Manik himself was a workman and not a contractor as he too was shown in the acquaintance roll to have received wages. We find that the real issue was as to the status of the workmen as employees of the ONGC or of the contractor, and it having been found that the workmen were the employees of the ONGC they would ipso-facto be entitled to all benefits available in that capacity, and the issue of regularization would, therefore, pale into insignificance. We find that in this situation, the Industrial Tribunal and the Division Bench of the High Court were justified in lifting the veil in order to determine as to the nature of employment in the light of the judgments quoted above. We, therefore, find that the ratio of the judgment in Uma Devis case (supra) would not be applicable and that the facts of Pandeys case are on the contrary more akin to the facts of the present one14. We are therefore of the opinion that in the light of the aforesaid observations, Mr. Daves argument that the workmen being on a contractual, were not entitled to any relief, cannot be accepted and the large number of judgments cited by Mr. Dave, on this aspect, cannot be applied to the facts of the case16. It is true that the underlined portion of the reference prima facie does give the impression that it presupposes that the workmen were contractual employees and the only dispute was with regard to the regularization of their services. It is equally true that the reference appears to have been rather loosely worded but as observed by the Industrial Tribunal and the Division Bench, both parties were aware of the real issues involved in the light of the protracted litigation and the efforts made during conciliation proceedings. The Division Bench has, thus, rightly observed that it was open to the Industrial Tribunal to have lifted the veil so as to determine the nature of the employment and the dispute between the parties and for that purpose to look into the pleadings and evidence produced before it.
|
ANITTA JOB Vs. THE STATE OF KERALA | adhered to the law with the result that the Petitioner became a victim of circumstances giving him a cause of action to proceed against the College and the State of Chhattisgarh being a victim of their maladministration. The plight of the Petitioner is unfortunate but it cannot be helped. 16. We were told during the course of submissions that some similarly placed students participated in NEET and qualified in the examination. Those students like the Petitioner who did not participate in NEET and placed their trust only in the College and the State of Chhattisgarh took a gamble and that gamble has unfortunately not succeeded. While our sympathies may be with the Petitioner and similarly placed students, we cannot go contrary to the orders passed by this Court from time to time, only for their benefit. 25. The case of Rishabh Choudhary (supra) was a case of candidate who was admitted by the College in the year 2016-2017 in MBBS Course on the basis of examination conducted by the College. This Court noticed in the aforesaid judgment that this Court having already passed an order dated 11.04.2016 recalling the judgment of this Court dated 18.07.2013 in Christian Medical College, Vellore and Ors. v. Union of Inida and Ors (2014) 2 SCC 305 , the notification issued by the Medical Council of India on 21.12.2010 reviewed that the examination was to be conducted by NEET. This Court in Rishabh Choudhary case (supra) has also noticed the order of this Court dated 06.05.2016 in Sankalp Charitable Trust (supra) where this Court has directed that no examination shall be permitted to be held for admission to MBBS or BDS studies by any private college. In paragraphs 9 to 12 following was held:9. By an order dated 6-5-2016 in Sankalp Charitable Trust, it was made clear that no examination shall be permitted to be held for admission for MBBS studies by any private college or association or any private/deemed university. 10. Subsequently on 9-5-2016 this Court declined to modify the order dated 28-4-2016. An order was also passed making it clear that all such candidates who could not appear in NEET I and those who had appeared but had an apprehension that they had not prepared well, would be permitted to appear in NEET II subject to an option from these candidates to give up their candidature for NEET I. It was further clarified that only NEET would enable students to get admission to MBBS studies. 11. In view of all these orders passed by this Court from time to time, it is more than abundantly clear that the Notification dated 21-12-2010 stood resurrected and that admissions to the MBBS course could only be through NEET I and NEET II. No other process of admission was permissible. Given this background, the Director of Medical Education in Chhattisgarh wrote to the College on or about 13-7-2016 to take steps to cancel all the admissions made by the College in terms of the examination CGMAT-2016 held for students for the management quota and NRI quota. Eventually by a Letter dated 28-7-2016 the Director of Medical Education in Chhattisgarh recommended to the College to cancel admissions made to the MBBS course. This prompted the Petitioner to file a writ petition in this Court. 12. It is submitted and prayed by the Petitioner that since he had already been granted admission by the College after the examination CGMAT-2016 was conducted by the College and supervised and monitored by the State of Chhattisgarh and in which there were no allegations of impropriety, his admission should not be disturbed. It is submitted that the Petitioner was certainly not at fault and there is no reason why he should be the victim of an apparent wrong committed by the College as also by the State of Chhattisgarh. 26. The observations were made in paragraphs 15 and 16 in the background of facts in that case. Present is not a case where the Appellants did not appear in the NEET examination or they were granted admission disregarding the merits of other candidates in NEET. No details of any candidate who secured higher rank or merit to the Appellants and was not given admission in the College has been brought to our notice. It may be true that the order of the ASC dated 22.09.2016 did not expressly permit the College to invite all the candidates who had earlier made their unsuccessful attempts for on-line registration to come up for being included in the list of eligible candidates of the College but the College having given such opportunity to others in addition to 7 candidates who had complained to the ASC, such action of the College cannot be termed the mala fide or with oblique motive especially when similarly situated candidates were included in the list of eligible candidates. The High Court had not given due consideration to the important condition which was put by the College in the notice dated 23.09.2016 that candidates who come, claiming that they made unsuccessful attempts for on-line registration and come up with proof to show that they had prepared demand draft of fee which was of prior date to the last date of admission. The above safeguard was enough to ward of applicants who never thought of admission in the College prior to last date of admission. 27. It is not disputed that the Appellants had proof of demand drafts in the name of College which were prior to the last date of admission. In the facts of the present case where admission was also notified by the University on 30.09.2016 and the ASC for the first time disapproved their admissions only on 03.06.2016 and further the Appellants were also permitted to appear in the examination of MBBS First Year by the High Court, at this distance of time, we are not inclined to throw the Appellants out of the College on account of the above shortcomings as pointed by the ASC and the High Court. | 1[ds]17. There cannot be any dispute with the procedure which was prescribed for admissions in MBBS Course, students were to make applications on-line and last date for making such applications was 09.09.2016. There is also no dispute that Appellants could not succeed in making any on-line application prior to 09.09.2016 although they claim to have prepared a demand draft before the last date of admission.21. The order dated 22.09.2016 has to be treated as passed by the ASC in exercise of the abovesaid statutory power. It is true that in the order dated 22.09.2016, there was no clear direction that names of other candidates who have not even submitted complaints should be included or any fresh applications be invited but College taking guidance from the aforesaid order issued the notice extending the similar protection to all the candidates who come with their unsuccessful attempts for registration but with the rider that they should come up along with demand drafts taken before the scheduled cut off date. The requirement of demand draft taken before the scheduled cut off date was an important factor which prohibited the candidates who had never thought of making an application in the College to come up with their applications with any fresh demand draft. Notice dated 23.09.2016 clearly prohibited all the candidates who had not taken demand draft prior to 09.09.2016 which was the last date of admission. In the present case College had filed details of demand drafts of the Appellants and it was not disputed that they submitted their applications with demand drafts taken before the last date of application. The High Court has taken a view that since they have not made on-line applications prior to 09.09.2016 they were not entitled for admission and requirement of submitting on-line application was a condition which having not been fulfilled, their applications were disapproved by the ASC and the High Court has also come to the conclusion that their applications were made after 09.09.2016 and they were admitted in the College on 28.09.2016. There cannot be any dispute that as per procedure prescribed and the interim order of the Kerala High Court dated 26.08.2016 students were to submit admission applications to the respective Colleges on-line and the admissions were to be taken on merit as reflected in the NEET examination22. During the course of hearing we had repeatedly asked learned Counsel appearing for the Respondents as to whether any candidate having merit higher to the Appellants in the NEET examination, has submitted any complaint or made any protest to any authority complaining that he had made application to the College having secured higher rank to the Appellants and has been denied the admission. The Respondents could not point out any such details of any candidate who was included in the list published by the College and who had higher NEET rank to the Appellants and has raised grievance regarding non-admission. It is also on the record that in fact after admission made in the Management quota and NRI quota still 8 seats were not filled up which were surrendered to the Government by the College23. Details of names of eight candidates, invited for spot admission against the still vacant seats, forwarded to the College were admitted on 07.10.2016 (within the date as extended). The details of 8 candidates who were admitted on the basis of the allotment made by the Government is found at Annexure P-7 and on perusal of the names along with their NEET rank, the inter se ranks of the candidates which were admitted subsequent to the Appellants clearly indicate that four candidates are lower in the NEET rank to the Appellants. After receiving the applications from Appellants and after being satisfied that they had demand draft prior to 09.09.2016 and had made unsuccessful attempts for their registration the College published their names on 27.09.2016 which list is also on the record. The ASC which is entrusted to supervise and guide entire admission process having issued the order dated 22.09.2016 asking the College to include the names of 7 candidates whose names were not earlier included, the College extended the said benefit and the facility to other candidates who come with proof of unsuccessful attempts for registration along with demand drafts taken before the scheduled cut off date of admission. We are unable to see any mala fide or any oblique motive in publishing notice dated 23.09.2016 by the College. They received order for inclusion of 7 such candidates whose names were included in the list and extended the same benefits to other similarly situated.25. The case of Rishabh Choudhary (supra) was a case of candidate who was admitted by the College in the year 2016-2017 in MBBS Course on the basis of examination conducted by the College. This Court noticed in the aforesaid judgment that this Court having already passed an order dated 11.04.2016 recalling the judgment of this Court dated 18.07.2013 in Christian Medical College, Vellore and Ors. v. Union of Inida and Ors (2014) 2 SCC 305 , the notification issued by the Medical Council of India on 21.12.2010 reviewed that the examination was to be conducted by NEET. This Court in Rishabh Choudhary case (supra) has also noticed the order of this Court dated 06.05.2016 in Sankalp Charitable Trust (supra) where this Court has directed that no examination shall be permitted to be held for admission to MBBS or BDS studies by any private college.Present is not a case where the Appellants did not appear in the NEET examination or they were granted admission disregarding the merits of other candidates in NEET. No details of any candidate who secured higher rank or merit to the Appellants and was not given admission in the College has been brought to our notice. It may be true that the order of the ASC dated 22.09.2016 did not expressly permit the College to invite all the candidates who had earlier made their unsuccessful attempts for on-line registration to come up for being included in the list of eligible candidates of the College but the College having given such opportunity to others in addition to 7 candidates who had complained to the ASC, such action of the College cannot be termed the mala fide or with oblique motive especially when similarly situated candidates were included in the list of eligible candidates. The High Court had not given due consideration to the important condition which was put by the College in the notice dated 23.09.2016 that candidates who come, claiming that they made unsuccessful attempts for on-line registration and come up with proof to show that they had prepared demand draft of fee which was of prior date to the last date of admission. The above safeguard was enough to ward of applicants who never thought of admission in the College prior to last date of admission27. It is not disputed that the Appellants had proof of demand drafts in the name of College which were prior to the last date of admission. In the facts of the present case where admission was also notified by the University on 30.09.2016 and the ASC for the first time disapproved their admissions only on 03.06.2016 and further the Appellants were also permitted to appear in the examination of MBBS First Year by the High Court, at this distance of time, we are not inclined to throw the Appellants out of the College on account of the above shortcomings as pointed by the ASC and the High Court. | 1 | 4,895 | 1,309 | ### 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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adhered to the law with the result that the Petitioner became a victim of circumstances giving him a cause of action to proceed against the College and the State of Chhattisgarh being a victim of their maladministration. The plight of the Petitioner is unfortunate but it cannot be helped. 16. We were told during the course of submissions that some similarly placed students participated in NEET and qualified in the examination. Those students like the Petitioner who did not participate in NEET and placed their trust only in the College and the State of Chhattisgarh took a gamble and that gamble has unfortunately not succeeded. While our sympathies may be with the Petitioner and similarly placed students, we cannot go contrary to the orders passed by this Court from time to time, only for their benefit. 25. The case of Rishabh Choudhary (supra) was a case of candidate who was admitted by the College in the year 2016-2017 in MBBS Course on the basis of examination conducted by the College. This Court noticed in the aforesaid judgment that this Court having already passed an order dated 11.04.2016 recalling the judgment of this Court dated 18.07.2013 in Christian Medical College, Vellore and Ors. v. Union of Inida and Ors (2014) 2 SCC 305 , the notification issued by the Medical Council of India on 21.12.2010 reviewed that the examination was to be conducted by NEET. This Court in Rishabh Choudhary case (supra) has also noticed the order of this Court dated 06.05.2016 in Sankalp Charitable Trust (supra) where this Court has directed that no examination shall be permitted to be held for admission to MBBS or BDS studies by any private college. In paragraphs 9 to 12 following was held:9. By an order dated 6-5-2016 in Sankalp Charitable Trust, it was made clear that no examination shall be permitted to be held for admission for MBBS studies by any private college or association or any private/deemed university. 10. Subsequently on 9-5-2016 this Court declined to modify the order dated 28-4-2016. An order was also passed making it clear that all such candidates who could not appear in NEET I and those who had appeared but had an apprehension that they had not prepared well, would be permitted to appear in NEET II subject to an option from these candidates to give up their candidature for NEET I. It was further clarified that only NEET would enable students to get admission to MBBS studies. 11. In view of all these orders passed by this Court from time to time, it is more than abundantly clear that the Notification dated 21-12-2010 stood resurrected and that admissions to the MBBS course could only be through NEET I and NEET II. No other process of admission was permissible. Given this background, the Director of Medical Education in Chhattisgarh wrote to the College on or about 13-7-2016 to take steps to cancel all the admissions made by the College in terms of the examination CGMAT-2016 held for students for the management quota and NRI quota. Eventually by a Letter dated 28-7-2016 the Director of Medical Education in Chhattisgarh recommended to the College to cancel admissions made to the MBBS course. This prompted the Petitioner to file a writ petition in this Court. 12. It is submitted and prayed by the Petitioner that since he had already been granted admission by the College after the examination CGMAT-2016 was conducted by the College and supervised and monitored by the State of Chhattisgarh and in which there were no allegations of impropriety, his admission should not be disturbed. It is submitted that the Petitioner was certainly not at fault and there is no reason why he should be the victim of an apparent wrong committed by the College as also by the State of Chhattisgarh. 26. The observations were made in paragraphs 15 and 16 in the background of facts in that case. Present is not a case where the Appellants did not appear in the NEET examination or they were granted admission disregarding the merits of other candidates in NEET. No details of any candidate who secured higher rank or merit to the Appellants and was not given admission in the College has been brought to our notice. It may be true that the order of the ASC dated 22.09.2016 did not expressly permit the College to invite all the candidates who had earlier made their unsuccessful attempts for on-line registration to come up for being included in the list of eligible candidates of the College but the College having given such opportunity to others in addition to 7 candidates who had complained to the ASC, such action of the College cannot be termed the mala fide or with oblique motive especially when similarly situated candidates were included in the list of eligible candidates. The High Court had not given due consideration to the important condition which was put by the College in the notice dated 23.09.2016 that candidates who come, claiming that they made unsuccessful attempts for on-line registration and come up with proof to show that they had prepared demand draft of fee which was of prior date to the last date of admission. The above safeguard was enough to ward of applicants who never thought of admission in the College prior to last date of admission. 27. It is not disputed that the Appellants had proof of demand drafts in the name of College which were prior to the last date of admission. In the facts of the present case where admission was also notified by the University on 30.09.2016 and the ASC for the first time disapproved their admissions only on 03.06.2016 and further the Appellants were also permitted to appear in the examination of MBBS First Year by the High Court, at this distance of time, we are not inclined to throw the Appellants out of the College on account of the above shortcomings as pointed by the ASC and the High Court.
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### Explanation:
disputed that they submitted their applications with demand drafts taken before the last date of application. The High Court has taken a view that since they have not made on-line applications prior to 09.09.2016 they were not entitled for admission and requirement of submitting on-line application was a condition which having not been fulfilled, their applications were disapproved by the ASC and the High Court has also come to the conclusion that their applications were made after 09.09.2016 and they were admitted in the College on 28.09.2016. There cannot be any dispute that as per procedure prescribed and the interim order of the Kerala High Court dated 26.08.2016 students were to submit admission applications to the respective Colleges on-line and the admissions were to be taken on merit as reflected in the NEET examination22. During the course of hearing we had repeatedly asked learned Counsel appearing for the Respondents as to whether any candidate having merit higher to the Appellants in the NEET examination, has submitted any complaint or made any protest to any authority complaining that he had made application to the College having secured higher rank to the Appellants and has been denied the admission. The Respondents could not point out any such details of any candidate who was included in the list published by the College and who had higher NEET rank to the Appellants and has raised grievance regarding non-admission. It is also on the record that in fact after admission made in the Management quota and NRI quota still 8 seats were not filled up which were surrendered to the Government by the College23. Details of names of eight candidates, invited for spot admission against the still vacant seats, forwarded to the College were admitted on 07.10.2016 (within the date as extended). The details of 8 candidates who were admitted on the basis of the allotment made by the Government is found at Annexure P-7 and on perusal of the names along with their NEET rank, the inter se ranks of the candidates which were admitted subsequent to the Appellants clearly indicate that four candidates are lower in the NEET rank to the Appellants. After receiving the applications from Appellants and after being satisfied that they had demand draft prior to 09.09.2016 and had made unsuccessful attempts for their registration the College published their names on 27.09.2016 which list is also on the record. The ASC which is entrusted to supervise and guide entire admission process having issued the order dated 22.09.2016 asking the College to include the names of 7 candidates whose names were not earlier included, the College extended the said benefit and the facility to other candidates who come with proof of unsuccessful attempts for registration along with demand drafts taken before the scheduled cut off date of admission. We are unable to see any mala fide or any oblique motive in publishing notice dated 23.09.2016 by the College. They received order for inclusion of 7 such candidates whose names were included in the list and extended the same benefits to other similarly situated.25. The case of Rishabh Choudhary (supra) was a case of candidate who was admitted by the College in the year 2016-2017 in MBBS Course on the basis of examination conducted by the College. This Court noticed in the aforesaid judgment that this Court having already passed an order dated 11.04.2016 recalling the judgment of this Court dated 18.07.2013 in Christian Medical College, Vellore and Ors. v. Union of Inida and Ors (2014) 2 SCC 305 , the notification issued by the Medical Council of India on 21.12.2010 reviewed that the examination was to be conducted by NEET. This Court in Rishabh Choudhary case (supra) has also noticed the order of this Court dated 06.05.2016 in Sankalp Charitable Trust (supra) where this Court has directed that no examination shall be permitted to be held for admission to MBBS or BDS studies by any private college.Present is not a case where the Appellants did not appear in the NEET examination or they were granted admission disregarding the merits of other candidates in NEET. No details of any candidate who secured higher rank or merit to the Appellants and was not given admission in the College has been brought to our notice. It may be true that the order of the ASC dated 22.09.2016 did not expressly permit the College to invite all the candidates who had earlier made their unsuccessful attempts for on-line registration to come up for being included in the list of eligible candidates of the College but the College having given such opportunity to others in addition to 7 candidates who had complained to the ASC, such action of the College cannot be termed the mala fide or with oblique motive especially when similarly situated candidates were included in the list of eligible candidates. The High Court had not given due consideration to the important condition which was put by the College in the notice dated 23.09.2016 that candidates who come, claiming that they made unsuccessful attempts for on-line registration and come up with proof to show that they had prepared demand draft of fee which was of prior date to the last date of admission. The above safeguard was enough to ward of applicants who never thought of admission in the College prior to last date of admission27. It is not disputed that the Appellants had proof of demand drafts in the name of College which were prior to the last date of admission. In the facts of the present case where admission was also notified by the University on 30.09.2016 and the ASC for the first time disapproved their admissions only on 03.06.2016 and further the Appellants were also permitted to appear in the examination of MBBS First Year by the High Court, at this distance of time, we are not inclined to throw the Appellants out of the College on account of the above shortcomings as pointed by the ASC and the High Court.
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OM PRAKASH AGARWAL SINCE DECEASED THR LRS Vs. VISHAN DAYAL RAJPOOT | amendments made in Section 21 in the year 1976. Following was stated in paragraph 34, 37 and 41:-?34. It may be noted that Section 21 provided that no objection as to place of the suing can be allowed by even an appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and unless there has been a consequent failure of justice. In 1976, the existing section was numbered as sub-section (1) and sub-section (2) was added relating to pecuniary jurisdiction by providing that no objection as to competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional court unless such objection had been taken in the first instance at the earliest possible opportunity and unless there had been a consequent failure of justice……… 37. As can be seen, Amendment Act 104 of 1976 introduced sub-section (2) relating to pecuniary jurisdiction and put it on a par with the objection to territorial jurisdiction and the competence to raise an objection in that regard even in an appeal from the very decree. This was obviously done in the light of the interpretation placed on Section 21 of the Code as it existed and Section 11 of the Suits Valuation Act by this Court in Kiran Singh v. Chaman Paswan5 followed by Hiralal Patni v. Kali Nath6 and Bahrein Petroleum Co. Ltd. v. P.J. Pappu4. Therefore, there is no justification in understanding the expression ?objection as to place of suing? occurring in Section 21-A as being confined to an objection only in the territorial sense and not in the pecuniary sense. Both could be understood, especially in the context of the amendment to Section 21 brought about by the Amendment Act, as objection to place of suing. 41. In the light of the above, it is clear that no objection to the pecuniary jurisdiction of the court which tried OS No. 61 of 1971 could be raised successfully even in an appeal against that very decree unless it had been raised at the earliest opportunity and a failure of justice or prejudice was shown. Obviously therefore, it could not be collaterally challenged. That too not by the plaintiffs therein, but by a defendant whose alienation was unsuccessfully challenged by the plaintiffs in that suit.?56. Now, reverting back to facts of this case it is apparent from the judgment dated 22.10.2016 of Additional District Judge, that no objection to the competence of Additional District Judge to decide the case was taken by any of the parties. No objection having been taken to the pecuniary jurisdiction of the Additional District Judge, Section 21 of the Civil Procedure Code comes into play. Sub-section (2) of Section 21 provides that no objection as to the competence of the Court with reference to the pecuniary limits of the jurisdiction shall be allowed by any Appellate or Revisional Court unless conditions mentioned therein are fulfilled. No objection having been raised by respondent tenant regarding competence of the Court. Sub-section (2) precludes the revisionist to raise any objection regarding competence of the court and further revisional court ought not to have allowed such objection regarding competence of Court of Additional District Judge to decide the suit. The respondent tenant did not raise any objection regarding competence of the Court and took a chance to obtain judgments in his favour on merits, he cannot be allowed to turn-round and contend that the court of Additional District Judge had no jurisdiction to try the Small Cause Suit and the judgment is without jurisdiction and nullity. Section 21 has been enacted to thwart any such objection by unsuccessful party who did not raise any objection regarding competence of court and allowed the matter to be heard on merits. Further, in deciding the small cause suit by Additional District Judge, the tenant has not proved that there has been a consequent failure of justice. 57. The High Court in the impugned judgment has not adverted to Section 21 of the Code of Civil Procedure. In judgment of Shobhit Nigam(Supra) also, affect of Section 21 was neither considered nor raised. Section 21 contains a legislative policy which policy has an object and purpose. The object is also to avoid retrial of cases on merit on basis of technical objections. 58. There is another judgment of Single Judge of the High Court referred to by the learned counsel for the respondent i.e. SCC Revision No.305 of 2016, Tejumal vs. Mohd. Sarfraz, 2017 (121) ALR 392. In the above case, learned Single Judge had allowed the revision under Section 25 against the judgment dated 12.08.2016 passed by Additional District and Sessions Judge on the ground that the judgment of Additional District Judge was without jurisdiction. In paragraph 6 of the judgment, High Court had noticed judgment of this court in R.S.D.V. Finance Company Private Limited vs. Shree Vallabh Glass Works Ltd. where it was held that in view of Section 21(1) of the Code of Civil Procedure, objection as to the place of suing should be taken by the party concerned in the court of first instance at the earliest possible opportunity and the objection to this effect shall not be allowed by the Appellate or Revisional Court but relying on the judgment of this Court in Kiran Singh Vs. Chaman Paswan, learned Single Judge held that defect of jurisdiction whether pecuniary or territorial or to the subject matter cannot be cured and can be set up at any stage of the proceeding. 59. We are of the view that the above view of the learned Single Judge is neither in consonance with the judgment of this Court in Kiran Singh?s case nor with R.S.D.V. Finance Company Private Limited (supra) which has been noted and referred to by learned Single Judge. Section 21 is statutory recognition of the legislative policy which cannot be ignored or given a go-by by the litigants who challenges an unfavourable decision. | 1[ds]31. It is true that District Judge or Additional District Judge functioning as Small Causes Courts can take cognizance of all suits irrespective of their value. But use of the words ?irrespective of their value? was in contradiction of the pecuniary value, which was given to Judge of Small Causes Courts presided by Civil Judge. The fact that District Judge or Additional District Judge can take cognizance of all suits irrespective of their value shall not whittle down or dilute the line of separation between two courts in taking cognizance of small cause cases. The mere fact that District Judge or Additional District Judge can take cognizance of suits of unlimited value will not empower them to take cognizance of cases, which, according to statutory Scheme can be taken only by small causes courts presided by Civil Judge. It is relevant to notice that the Allahabad High Court had occasion to consider the provisions of the Provincial Small Cause Courts Act, 1887 as applicable in the State of Uttar Pradesh. A reference is made to M.P. Mishra Vs. Sangam Lal Agarwal, AIR 1975 Allahabad 425. In the above case before the Allahabad High Court, a small cause suit was decided by the Additional District Judge, which had valuation of more than five thousand rupees. Arguments were raised that valuation of small cause case is more than five thousand rupees, hence Additional District Judge could not have decided the case as small cause case rather it ought to have been decided as a normal civil suit. In the above context, provision of U.P. Act No. 37 of 1972 and U.P. Act No. 19 of 1973 by which Section 25 of Bengal, Agra and Assam Civil Courts Act, 1887 was amended by adding another sub-section, i.e. sub-section(4), and the notifications issued by the High Court in above respect were noticed.The purpose of Section 15 is obvious that even though more than one court has jurisdiction to try the suit, it should be instituted in the Court of lowest grade. For example, a small cause case can be instituted in Court of Small Cause presided by Civil Judge having valuation of upto Rs. 1 lakh as on date and small cause suit having valuation of more than Rs. 1 lakh can be instituted in the Court of District Judge or Additional District Judge. As per Section 15 of the Code of Civil Procedure, suit of less than Rs. 1 lakh valuation has to be instituted in Small Causes Court presided by Civil Judge. Although, District Judge or Additional District Judge has unlimited pecuniary jurisdiction but under the legislative Scheme, the suit is not to be taken cognizance by the District Judge or Additional District Judge, which has valuation upto Rs. 1 lakh. Even though if Section 15 of the C.P.C. is a provision, which regulate the institution of suits and does not affect the jurisdiction of Courts, reading the provision ofalongwith relevant provisions of the Provincial Small Cause Courts Act, 1887 and the Bengal, Agra, Assam Civil Courts Act, 1887, the legislative Scheme is clear that small cause cases should be taken cognizance by Small Cause Courts presided by Civil Judge upto the valuation of Rs. 1 lakh and cases having valuation of more than Rs. 1 lakh by District Judge or Additional District Judge, who have been invested with the power of Small Cause Courts. Unless the above legislative intent and Scheme is followed, there shall be confusion and inconsistency. The legislative provisions have to be interpreted in a manner, which may advance the object and purpose of the Act. When clear dichotomy regarding taking cognizance of small causes suits presided by Civil Judge and by District Judge or Additional District Judge have been provided for, the said dichotomy and separation to take cognizance of cases has to be followed to further the object and purpose of legislation.common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.It is true that statement of objects noticed that value of subject matters brought to the courts has increased substantially, hence, pecuniary jurisdiction of the Civil Courts as well those of Small Causes Courts in State of Uttar Pradesh requires to be raised for the institution of civil suits and appeals. The amendment has raised pecuniary limits in Provincial Small Cause Courts Act, 1887. The statement of objects and reasons explains the reason for increase of pecuniary jurisdiction but use of word ‘for institution? in statement of object cannot control the express language of the statutory provisions.48. We further observe that learned Single Judge in Pankaj Hotels case having noticed an earlier view of learned Single Judge in Shobhit Nigam?s case, and he being of the opinion that judgment does not lay down the correct law, appropriate course open for Single Judge was to refer the matter for consideration by a larger bench. The judgments of the High Court are relied on and followed by all sub-ordinate courts in the State. It is always better to achieve certainty by an authoritative opinion by the High Court instead of giving conflicting views by different learned Single Judges which may confuse the litigants, lawyers and sub-ordinate courts in applying the law.Now, reverting back to facts of this case it is apparent from the judgment dated 22.10.2016 of Additional District Judge, that no objection to the competence of Additional District Judge to decide the case was taken by any of the parties. No objection having been taken to the pecuniary jurisdiction of the Additional District Judge, Section 21 of the Civil Procedure Code comes into play. Sub-section (2) of Section 21 provides that no objection as to the competence of the Court with reference to the pecuniary limits of the jurisdiction shall be allowed by any Appellate or Revisional Court unless conditions mentioned therein are fulfilled. No objection having been raised by respondent tenant regarding competence of the Court. Sub-section (2) precludes the revisionist to raise any objection regarding competence of the court and further revisional court ought not to have allowed such objection regarding competence of Court of Additional District Judge to decide the suit. The respondent tenant did not raise any objection regarding competence of the Court and took a chance to obtain judgments in his favour on merits, he cannot be allowed to turn-round and contend that the court of Additional District Judge had no jurisdiction to try the Small Cause Suit and the judgment is without jurisdiction and nullity. Section 21 has been enacted to thwart any such objection by unsuccessful party who did not raise any objection regarding competence of court and allowed the matter to be heard on merits. Further, in deciding the small cause suit by Additional District Judge, the tenant has not proved that there has been a consequent failure of justice.59. We are of the view that the above view of the learned Single Judge is neither in consonance with the judgment of this Court in Kiran Singh?s case nor with R.S.D.V. Finance Company Private Limited (supra) which has been noted and referred to by learned Single Judge. Section 21 is statutory recognition of the legislative policy which cannot be ignored or given a go-by by the litigants who challenges an unfavourable decision. | 1 | 14,902 | 1,358 | ### 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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amendments made in Section 21 in the year 1976. Following was stated in paragraph 34, 37 and 41:-?34. It may be noted that Section 21 provided that no objection as to place of the suing can be allowed by even an appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and unless there has been a consequent failure of justice. In 1976, the existing section was numbered as sub-section (1) and sub-section (2) was added relating to pecuniary jurisdiction by providing that no objection as to competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional court unless such objection had been taken in the first instance at the earliest possible opportunity and unless there had been a consequent failure of justice……… 37. As can be seen, Amendment Act 104 of 1976 introduced sub-section (2) relating to pecuniary jurisdiction and put it on a par with the objection to territorial jurisdiction and the competence to raise an objection in that regard even in an appeal from the very decree. This was obviously done in the light of the interpretation placed on Section 21 of the Code as it existed and Section 11 of the Suits Valuation Act by this Court in Kiran Singh v. Chaman Paswan5 followed by Hiralal Patni v. Kali Nath6 and Bahrein Petroleum Co. Ltd. v. P.J. Pappu4. Therefore, there is no justification in understanding the expression ?objection as to place of suing? occurring in Section 21-A as being confined to an objection only in the territorial sense and not in the pecuniary sense. Both could be understood, especially in the context of the amendment to Section 21 brought about by the Amendment Act, as objection to place of suing. 41. In the light of the above, it is clear that no objection to the pecuniary jurisdiction of the court which tried OS No. 61 of 1971 could be raised successfully even in an appeal against that very decree unless it had been raised at the earliest opportunity and a failure of justice or prejudice was shown. Obviously therefore, it could not be collaterally challenged. That too not by the plaintiffs therein, but by a defendant whose alienation was unsuccessfully challenged by the plaintiffs in that suit.?56. Now, reverting back to facts of this case it is apparent from the judgment dated 22.10.2016 of Additional District Judge, that no objection to the competence of Additional District Judge to decide the case was taken by any of the parties. No objection having been taken to the pecuniary jurisdiction of the Additional District Judge, Section 21 of the Civil Procedure Code comes into play. Sub-section (2) of Section 21 provides that no objection as to the competence of the Court with reference to the pecuniary limits of the jurisdiction shall be allowed by any Appellate or Revisional Court unless conditions mentioned therein are fulfilled. No objection having been raised by respondent tenant regarding competence of the Court. Sub-section (2) precludes the revisionist to raise any objection regarding competence of the court and further revisional court ought not to have allowed such objection regarding competence of Court of Additional District Judge to decide the suit. The respondent tenant did not raise any objection regarding competence of the Court and took a chance to obtain judgments in his favour on merits, he cannot be allowed to turn-round and contend that the court of Additional District Judge had no jurisdiction to try the Small Cause Suit and the judgment is without jurisdiction and nullity. Section 21 has been enacted to thwart any such objection by unsuccessful party who did not raise any objection regarding competence of court and allowed the matter to be heard on merits. Further, in deciding the small cause suit by Additional District Judge, the tenant has not proved that there has been a consequent failure of justice. 57. The High Court in the impugned judgment has not adverted to Section 21 of the Code of Civil Procedure. In judgment of Shobhit Nigam(Supra) also, affect of Section 21 was neither considered nor raised. Section 21 contains a legislative policy which policy has an object and purpose. The object is also to avoid retrial of cases on merit on basis of technical objections. 58. There is another judgment of Single Judge of the High Court referred to by the learned counsel for the respondent i.e. SCC Revision No.305 of 2016, Tejumal vs. Mohd. Sarfraz, 2017 (121) ALR 392. In the above case, learned Single Judge had allowed the revision under Section 25 against the judgment dated 12.08.2016 passed by Additional District and Sessions Judge on the ground that the judgment of Additional District Judge was without jurisdiction. In paragraph 6 of the judgment, High Court had noticed judgment of this court in R.S.D.V. Finance Company Private Limited vs. Shree Vallabh Glass Works Ltd. where it was held that in view of Section 21(1) of the Code of Civil Procedure, objection as to the place of suing should be taken by the party concerned in the court of first instance at the earliest possible opportunity and the objection to this effect shall not be allowed by the Appellate or Revisional Court but relying on the judgment of this Court in Kiran Singh Vs. Chaman Paswan, learned Single Judge held that defect of jurisdiction whether pecuniary or territorial or to the subject matter cannot be cured and can be set up at any stage of the proceeding. 59. We are of the view that the above view of the learned Single Judge is neither in consonance with the judgment of this Court in Kiran Singh?s case nor with R.S.D.V. Finance Company Private Limited (supra) which has been noted and referred to by learned Single Judge. Section 21 is statutory recognition of the legislative policy which cannot be ignored or given a go-by by the litigants who challenges an unfavourable decision.
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1
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rather it ought to have been decided as a normal civil suit. In the above context, provision of U.P. Act No. 37 of 1972 and U.P. Act No. 19 of 1973 by which Section 25 of Bengal, Agra and Assam Civil Courts Act, 1887 was amended by adding another sub-section, i.e. sub-section(4), and the notifications issued by the High Court in above respect were noticed.The purpose of Section 15 is obvious that even though more than one court has jurisdiction to try the suit, it should be instituted in the Court of lowest grade. For example, a small cause case can be instituted in Court of Small Cause presided by Civil Judge having valuation of upto Rs. 1 lakh as on date and small cause suit having valuation of more than Rs. 1 lakh can be instituted in the Court of District Judge or Additional District Judge. As per Section 15 of the Code of Civil Procedure, suit of less than Rs. 1 lakh valuation has to be instituted in Small Causes Court presided by Civil Judge. Although, District Judge or Additional District Judge has unlimited pecuniary jurisdiction but under the legislative Scheme, the suit is not to be taken cognizance by the District Judge or Additional District Judge, which has valuation upto Rs. 1 lakh. Even though if Section 15 of the C.P.C. is a provision, which regulate the institution of suits and does not affect the jurisdiction of Courts, reading the provision ofalongwith relevant provisions of the Provincial Small Cause Courts Act, 1887 and the Bengal, Agra, Assam Civil Courts Act, 1887, the legislative Scheme is clear that small cause cases should be taken cognizance by Small Cause Courts presided by Civil Judge upto the valuation of Rs. 1 lakh and cases having valuation of more than Rs. 1 lakh by District Judge or Additional District Judge, who have been invested with the power of Small Cause Courts. Unless the above legislative intent and Scheme is followed, there shall be confusion and inconsistency. The legislative provisions have to be interpreted in a manner, which may advance the object and purpose of the Act. When clear dichotomy regarding taking cognizance of small causes suits presided by Civil Judge and by District Judge or Additional District Judge have been provided for, the said dichotomy and separation to take cognizance of cases has to be followed to further the object and purpose of legislation.common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.It is true that statement of objects noticed that value of subject matters brought to the courts has increased substantially, hence, pecuniary jurisdiction of the Civil Courts as well those of Small Causes Courts in State of Uttar Pradesh requires to be raised for the institution of civil suits and appeals. The amendment has raised pecuniary limits in Provincial Small Cause Courts Act, 1887. The statement of objects and reasons explains the reason for increase of pecuniary jurisdiction but use of word ‘for institution? in statement of object cannot control the express language of the statutory provisions.48. We further observe that learned Single Judge in Pankaj Hotels case having noticed an earlier view of learned Single Judge in Shobhit Nigam?s case, and he being of the opinion that judgment does not lay down the correct law, appropriate course open for Single Judge was to refer the matter for consideration by a larger bench. The judgments of the High Court are relied on and followed by all sub-ordinate courts in the State. It is always better to achieve certainty by an authoritative opinion by the High Court instead of giving conflicting views by different learned Single Judges which may confuse the litigants, lawyers and sub-ordinate courts in applying the law.Now, reverting back to facts of this case it is apparent from the judgment dated 22.10.2016 of Additional District Judge, that no objection to the competence of Additional District Judge to decide the case was taken by any of the parties. No objection having been taken to the pecuniary jurisdiction of the Additional District Judge, Section 21 of the Civil Procedure Code comes into play. Sub-section (2) of Section 21 provides that no objection as to the competence of the Court with reference to the pecuniary limits of the jurisdiction shall be allowed by any Appellate or Revisional Court unless conditions mentioned therein are fulfilled. No objection having been raised by respondent tenant regarding competence of the Court. Sub-section (2) precludes the revisionist to raise any objection regarding competence of the court and further revisional court ought not to have allowed such objection regarding competence of Court of Additional District Judge to decide the suit. The respondent tenant did not raise any objection regarding competence of the Court and took a chance to obtain judgments in his favour on merits, he cannot be allowed to turn-round and contend that the court of Additional District Judge had no jurisdiction to try the Small Cause Suit and the judgment is without jurisdiction and nullity. Section 21 has been enacted to thwart any such objection by unsuccessful party who did not raise any objection regarding competence of court and allowed the matter to be heard on merits. Further, in deciding the small cause suit by Additional District Judge, the tenant has not proved that there has been a consequent failure of justice.59. We are of the view that the above view of the learned Single Judge is neither in consonance with the judgment of this Court in Kiran Singh?s case nor with R.S.D.V. Finance Company Private Limited (supra) which has been noted and referred to by learned Single Judge. Section 21 is statutory recognition of the legislative policy which cannot be ignored or given a go-by by the litigants who challenges an unfavourable decision.
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Income Tax Officer, Raichur Vs. Dandi Mohamad Hussain and Others | GOVINDA BRAT J. 1. This writ petition is directed against the order of the Mysore Revenue Appellate Tribunal dated 4th October, 1966, made in Revision No. 281 of 1965 (H.L.R.) by which the Tribunal, while allowing the revision petition, cancelled the attachment and sale proclamation of the properties belonging to the 1st respondent, Dandi Mohamad Hussain The matter arises in this way 2. The 1st respondent filed a revision petition before the Mysore Revenue Appellate Tribunal, Bangalore, alleging that his properties were attached for recovery of arrears of income-tax due not from him but from one Dandi Mohammad Ismail and that the 1st respondent is not the defaulter under section 46 of the Indian Income-tax Act, 1922. It is common ground that the properties of the list respondent, Dandi Mohamad Hussain, were attached by the Tahsildar of Raichur, pursuant to a certificate issued by the Income-tax Officer under section 46 of the Income-tax Act, 1922, on January 8, 1963. The 1st respondent whose properties were attached did not file any claim petition before the Collector ; but he filed a revision petition before the Mysore Revenue Appellate Tribunal alleging that he is not the assessee to income-tax nor a defaulter and that his properties were unlawfully attached and brought to sale by the revenue authorities. On the said petition, the Revenue Appellate Tribunal set aside the attachment of the properties of the 1st respondent holding that the 1st respondent is not the assessee and he is not a defaulter. At the hearing before the Tribunal, the Income-tax Officer was set ex parte and, therefore, a review petition was unsuccessfully filed and it was rejected on the ground that there was no error apparent on the face of the record 3. In our opinion, this writ petition has to succeed. The revision petition filed by the 1st respondent before the Mysore Revenue Appellate Tribunal, in our opinion, was wholly misconceived. If it was the case of the 1st respondent that he was not a defaulter under the Indian Income-tax Act, 1922, and that his properties were attached and brought to sale for recovery of tax due from some other persons, his remedy was to file a claim petition before the Collector under Order 21, rule 58, of the Code of Civil Procedure. Such a claim must be enquired into and disposed of, though summarily, by the Collector in the same way as a court would be bound to dispose of a claim in the course of execution of a decree. It would also follow that the unsuccessful party, the claimant or the income-tax department, as the case may be, will have the right to file a suit to establish the right claimed by either : vide C. Dhanalakshmi Ammal v. Income-tax Officer, Madras. Without preferring a claim petition before the Collector, the 1st respondent has approached the Revenue Appellate Tribunal to deal with his claim, and the Revenue Appellate Tribunal has usurped the jurisdiction of the Collector to enquire into a claim petition. The entire proceedings before the Mysore Revenue Appellate Tribunal were clearly without jurisdiction and accordingly we quash the order made in Revision Petition No. 281 of 1965 (H.L.R.) dated 4th October, 1966 | 1[ds]In our opinion, this writ petition has to succeed. The revision petition filed by the 1st respondent before the Mysore Revenue Appellate Tribunal, in our opinion, was wholly misconceived. If it was the case of the 1st respondent that he was not a defaulter under the Indianx Act, 1922, and that his properties were attached and brought to sale for recovery of tax due from some other persons, his remedy was to file a claim petition before the Collector under Order 21, rule 58, of the Code of Civil Procedure. Such a claim must be enquired into and disposed of, though summarily, by the Collector in the same way as a court would be bound to dispose of a claim in the course of execution of a decree. It would also follow that the unsuccessful party, the claimant or thex department, as the case may be, will have the right to file a suit to establish the right claimed by either : vide C. Dhanalakshmi Ammal v.x Officer, Madras. Without preferring a claim petition before the Collector, the 1st respondent has approached the Revenue Appellate Tribunal to deal with his claim, and the Revenue Appellate Tribunal has usurped the jurisdiction of the Collector to enquire into a claim petition. The entire proceedings before the Mysore Revenue Appellate Tribunal were clearly without jurisdiction and accordingly we quash the order made in Revision Petition No. 281 of 1965 (H.L.R.) dated 4th October, 1966 | 1 | 591 | 272 | ### 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:
GOVINDA BRAT J. 1. This writ petition is directed against the order of the Mysore Revenue Appellate Tribunal dated 4th October, 1966, made in Revision No. 281 of 1965 (H.L.R.) by which the Tribunal, while allowing the revision petition, cancelled the attachment and sale proclamation of the properties belonging to the 1st respondent, Dandi Mohamad Hussain The matter arises in this way 2. The 1st respondent filed a revision petition before the Mysore Revenue Appellate Tribunal, Bangalore, alleging that his properties were attached for recovery of arrears of income-tax due not from him but from one Dandi Mohammad Ismail and that the 1st respondent is not the defaulter under section 46 of the Indian Income-tax Act, 1922. It is common ground that the properties of the list respondent, Dandi Mohamad Hussain, were attached by the Tahsildar of Raichur, pursuant to a certificate issued by the Income-tax Officer under section 46 of the Income-tax Act, 1922, on January 8, 1963. The 1st respondent whose properties were attached did not file any claim petition before the Collector ; but he filed a revision petition before the Mysore Revenue Appellate Tribunal alleging that he is not the assessee to income-tax nor a defaulter and that his properties were unlawfully attached and brought to sale by the revenue authorities. On the said petition, the Revenue Appellate Tribunal set aside the attachment of the properties of the 1st respondent holding that the 1st respondent is not the assessee and he is not a defaulter. At the hearing before the Tribunal, the Income-tax Officer was set ex parte and, therefore, a review petition was unsuccessfully filed and it was rejected on the ground that there was no error apparent on the face of the record 3. In our opinion, this writ petition has to succeed. The revision petition filed by the 1st respondent before the Mysore Revenue Appellate Tribunal, in our opinion, was wholly misconceived. If it was the case of the 1st respondent that he was not a defaulter under the Indian Income-tax Act, 1922, and that his properties were attached and brought to sale for recovery of tax due from some other persons, his remedy was to file a claim petition before the Collector under Order 21, rule 58, of the Code of Civil Procedure. Such a claim must be enquired into and disposed of, though summarily, by the Collector in the same way as a court would be bound to dispose of a claim in the course of execution of a decree. It would also follow that the unsuccessful party, the claimant or the income-tax department, as the case may be, will have the right to file a suit to establish the right claimed by either : vide C. Dhanalakshmi Ammal v. Income-tax Officer, Madras. Without preferring a claim petition before the Collector, the 1st respondent has approached the Revenue Appellate Tribunal to deal with his claim, and the Revenue Appellate Tribunal has usurped the jurisdiction of the Collector to enquire into a claim petition. The entire proceedings before the Mysore Revenue Appellate Tribunal were clearly without jurisdiction and accordingly we quash the order made in Revision Petition No. 281 of 1965 (H.L.R.) dated 4th October, 1966
### Response:
1
### Explanation:
In our opinion, this writ petition has to succeed. The revision petition filed by the 1st respondent before the Mysore Revenue Appellate Tribunal, in our opinion, was wholly misconceived. If it was the case of the 1st respondent that he was not a defaulter under the Indianx Act, 1922, and that his properties were attached and brought to sale for recovery of tax due from some other persons, his remedy was to file a claim petition before the Collector under Order 21, rule 58, of the Code of Civil Procedure. Such a claim must be enquired into and disposed of, though summarily, by the Collector in the same way as a court would be bound to dispose of a claim in the course of execution of a decree. It would also follow that the unsuccessful party, the claimant or thex department, as the case may be, will have the right to file a suit to establish the right claimed by either : vide C. Dhanalakshmi Ammal v.x Officer, Madras. Without preferring a claim petition before the Collector, the 1st respondent has approached the Revenue Appellate Tribunal to deal with his claim, and the Revenue Appellate Tribunal has usurped the jurisdiction of the Collector to enquire into a claim petition. The entire proceedings before the Mysore Revenue Appellate Tribunal were clearly without jurisdiction and accordingly we quash the order made in Revision Petition No. 281 of 1965 (H.L.R.) dated 4th October, 1966
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William Jacks and Company Limited Vs. State of Orissa | collections only under the terms of the third press note ?"6. By its judgment dated April 22, 1964, the High Court held that the first press not dated June 5, 1954, had statutory effect but the second and the third press notes had no statutory force and did not in any way affect the validity of the assessment orders made against the appellant-company after the coming into force of the Sales Tax Laws Validation Act, 1956, by which the effect of the judgment of this court in the Bengal Immunity Co. case ([1955] 6 S.T.C. 446; [1955] 2 S.C.R. 603) was taken away in respect of the "explanation sales" which took place between April 1, 1951, and September 6, 1955, and the levy and collection of sales tax in such cases was also validated. Section 7 of the Act states :"Power of the Provincial Government to exempt dealers from tax. - The State Government may, subject to such restrictions and conditions as may be prescribed including conditions as to registration and registration fees, by order, exempt in whole or in part any class of dealers from the payment of the tax."Section 9-B provides :"9-B. (1) No person who is not a registered dealer shall realise any tax as such on sale of goods from the purchasers.9-B. (3) The amount realised by any person by way of tax on sale of any goods, shall, notwithstanding anything contained in any provision of this Act, be deposited by him in a Government treasury within such period, as may be prescribed, if the amount so realised exceeds the amount payable as tax in respect of that sale or if no tax is payable in respect thereof."7. Section 2 of the Sales Tax Laws Validation Act, 1956, is to the following effect :"Validation of State laws imposing, or authorising the imposition of, taxes on sale or purchase of goods in the course of inter-State trade or commerce. - Notwithstanding any judgment, decree or order of any court, no law of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any goods where such sale or purchase took place in the course of inter-State trade or commerce during the period between the 1st day of April, 1951, and the 6th day of September, 1955, shall be deemed to be invalid or ever to have been invalid merely by reason of the fact that such sale or purchase took place in the course of inter-State trade or commerce; and all such taxes levied or collected or purporting to have been levied or collected during the aforesaid period shall be deemed always to have been validly levied or collected in accordance with law.Explanation. - In this section, law of a State in relation to a State specified in Part C of the First Schedule to the Constitution, means any law made by the Legislative Assembly, if any, of that State or extended to that State by a notification issued under section 2 of the Part C States (Laws) Act, 1950."8. The main contention on behalf of the appellant is that the second press note issued by the Orissa Government on November 2, 1955, must be deemed to be an order of the State Government exempting non-resident dealers from liability to tax on inter-State transactions for the period from April 1, 1951, to September 6, 1955. It was argued that the press note should be deemed to have statutory effect and the sales tax authorities had therefore no jurisdiction to pass orders of assessment against the appellant-company on December 4, 1956. In our opinion, the argument put forward on behalf of the appellant is not warranted. In the first place, it is obvious that after the decision of this court in the Bengal Immunity case ([1955] 6 S.T.C. 446; [1955] 2 S.C.R. 603) the Orissa Government could not have lawfully levied any sales tax on the "explanation sales" and therefore the issue of the press note dated November 2, 1955, suspending the levy of sales tax on such sales with effect from that date could not be reasonably construed as an order of exemption contemplated by section 7 of the Act since no such exemption was necessary in view of the law declared by this court in the Bengal Immunity case ([1955] 6 S.T.C. 446; [1955] 2 S.C.R. 603). The second press note must therefore be treated to be merely an administrative direction indicating what would be the effect of the decision of this court in the Bengal Immunity case ([1955] 6 S.T.C. 446; [1955] 2 S.C.R. 603) and it was not intended to be an order of exemption made under the provisions of section 7 of the Act. In the second place, it should be noticed that the word "exemption" appears nowhere in the second press note which merely states that the levy of sales tax on the "explanation sales" has been "suspended" with immediate effect. It is therefore not possible to accept the argument on behalf of the appellant that the second press note must be deemed to be an order of the State Government granting exemption under section 7 of the Act with regard to "explanation sales". On behalf of the appellant reference was made by Mr. S. T. Desai to the decision of this court in State of Kerala v. Cochin Coal Co., Ltd. ([1961] 12 S.T.C. 1; [1961] 2 S.C.R. 219) in which it was held that a notification of the State of Travancore-Cochin dated February 5, 1954, had the effect of exempting the respondent from liability to sales tax. But the principle of this decision has, however, no application to the present case because the language of the second press note is quite different from the language of the notification which was the subject-matter of debate in State of Kerala v. Cochin Coal Co., Ltd. ([1961] 12 S.T.C. 1; [1961] 2 S.C.R. 219). We accordingly reject the argument of Mr. S. T. Desai on this point.9. | 0[ds]In our opinion, the argument put forward on behalf of the appellant is not warranted. In the first place, it is obvious that after the decision of this court in the Bengal Immunity case ([1955] 6 S.T.C. 446; [1955] 2 S.C.R. 603) the Orissa Government could not have lawfully levied any sales tax on the "explanation sales" and therefore the issue of the press note dated November 2, 1955, suspending the levy of sales tax on such sales with effect from that date could not be reasonably construed as an order of exemption contemplated by section 7 of the Act since no such exemption was necessary in view of the law declared by this court in the Bengal Immunity case ([1955] 6 S.T.C. 446; [1955] 2 S.C.R. 603). The second press note must therefore be treated to be merely an administrative direction indicating what would be the effect of the decision of this court in the Bengal Immunity case ([1955] 6 S.T.C. 446; [1955] 2 S.C.R. 603) and it was not intended to be an order of exemption made under the provisions of section 7 of the Act. In the second place, it should be noticed that the word "exemption" appears nowhere in the second press note which merely states that the levy of sales tax on the "explanation sales" has been "suspended" with immediate effect. It is therefore not possible to accept the argument on behalf of the appellant that the second press note must be deemed to be an order of the State Government granting exemption under section 7 of the Act with regard to "explanation sales". On behalf of the appellant reference was made by Mr. S. T. Desai to the decision of this court in State of Kerala v. Cochin Coal Co., Ltd. ([1961] 12 S.T.C. 1; [1961] 2 S.C.R. 219) in which it was held that a notification of the State ofdated February 5, 1954, had the effect of exempting the respondent from liability to sales tax. But the principle of this decision has, however, no application to the present case because the language of the second press note is quite different from the language of the notification which was theof debate in State of Kerala v. Cochin Coal Co., Ltd. ([1961] 12 S.T.C. 1; [1961] 2 S.C.R. 219). We accordingly reject the argument of Mr. S. T. Desai on this point. | 0 | 2,948 | 475 | ### 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:
collections only under the terms of the third press note ?"6. By its judgment dated April 22, 1964, the High Court held that the first press not dated June 5, 1954, had statutory effect but the second and the third press notes had no statutory force and did not in any way affect the validity of the assessment orders made against the appellant-company after the coming into force of the Sales Tax Laws Validation Act, 1956, by which the effect of the judgment of this court in the Bengal Immunity Co. case ([1955] 6 S.T.C. 446; [1955] 2 S.C.R. 603) was taken away in respect of the "explanation sales" which took place between April 1, 1951, and September 6, 1955, and the levy and collection of sales tax in such cases was also validated. Section 7 of the Act states :"Power of the Provincial Government to exempt dealers from tax. - The State Government may, subject to such restrictions and conditions as may be prescribed including conditions as to registration and registration fees, by order, exempt in whole or in part any class of dealers from the payment of the tax."Section 9-B provides :"9-B. (1) No person who is not a registered dealer shall realise any tax as such on sale of goods from the purchasers.9-B. (3) The amount realised by any person by way of tax on sale of any goods, shall, notwithstanding anything contained in any provision of this Act, be deposited by him in a Government treasury within such period, as may be prescribed, if the amount so realised exceeds the amount payable as tax in respect of that sale or if no tax is payable in respect thereof."7. Section 2 of the Sales Tax Laws Validation Act, 1956, is to the following effect :"Validation of State laws imposing, or authorising the imposition of, taxes on sale or purchase of goods in the course of inter-State trade or commerce. - Notwithstanding any judgment, decree or order of any court, no law of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any goods where such sale or purchase took place in the course of inter-State trade or commerce during the period between the 1st day of April, 1951, and the 6th day of September, 1955, shall be deemed to be invalid or ever to have been invalid merely by reason of the fact that such sale or purchase took place in the course of inter-State trade or commerce; and all such taxes levied or collected or purporting to have been levied or collected during the aforesaid period shall be deemed always to have been validly levied or collected in accordance with law.Explanation. - In this section, law of a State in relation to a State specified in Part C of the First Schedule to the Constitution, means any law made by the Legislative Assembly, if any, of that State or extended to that State by a notification issued under section 2 of the Part C States (Laws) Act, 1950."8. The main contention on behalf of the appellant is that the second press note issued by the Orissa Government on November 2, 1955, must be deemed to be an order of the State Government exempting non-resident dealers from liability to tax on inter-State transactions for the period from April 1, 1951, to September 6, 1955. It was argued that the press note should be deemed to have statutory effect and the sales tax authorities had therefore no jurisdiction to pass orders of assessment against the appellant-company on December 4, 1956. In our opinion, the argument put forward on behalf of the appellant is not warranted. In the first place, it is obvious that after the decision of this court in the Bengal Immunity case ([1955] 6 S.T.C. 446; [1955] 2 S.C.R. 603) the Orissa Government could not have lawfully levied any sales tax on the "explanation sales" and therefore the issue of the press note dated November 2, 1955, suspending the levy of sales tax on such sales with effect from that date could not be reasonably construed as an order of exemption contemplated by section 7 of the Act since no such exemption was necessary in view of the law declared by this court in the Bengal Immunity case ([1955] 6 S.T.C. 446; [1955] 2 S.C.R. 603). The second press note must therefore be treated to be merely an administrative direction indicating what would be the effect of the decision of this court in the Bengal Immunity case ([1955] 6 S.T.C. 446; [1955] 2 S.C.R. 603) and it was not intended to be an order of exemption made under the provisions of section 7 of the Act. In the second place, it should be noticed that the word "exemption" appears nowhere in the second press note which merely states that the levy of sales tax on the "explanation sales" has been "suspended" with immediate effect. It is therefore not possible to accept the argument on behalf of the appellant that the second press note must be deemed to be an order of the State Government granting exemption under section 7 of the Act with regard to "explanation sales". On behalf of the appellant reference was made by Mr. S. T. Desai to the decision of this court in State of Kerala v. Cochin Coal Co., Ltd. ([1961] 12 S.T.C. 1; [1961] 2 S.C.R. 219) in which it was held that a notification of the State of Travancore-Cochin dated February 5, 1954, had the effect of exempting the respondent from liability to sales tax. But the principle of this decision has, however, no application to the present case because the language of the second press note is quite different from the language of the notification which was the subject-matter of debate in State of Kerala v. Cochin Coal Co., Ltd. ([1961] 12 S.T.C. 1; [1961] 2 S.C.R. 219). We accordingly reject the argument of Mr. S. T. Desai on this point.9.
### Response:
0
### Explanation:
In our opinion, the argument put forward on behalf of the appellant is not warranted. In the first place, it is obvious that after the decision of this court in the Bengal Immunity case ([1955] 6 S.T.C. 446; [1955] 2 S.C.R. 603) the Orissa Government could not have lawfully levied any sales tax on the "explanation sales" and therefore the issue of the press note dated November 2, 1955, suspending the levy of sales tax on such sales with effect from that date could not be reasonably construed as an order of exemption contemplated by section 7 of the Act since no such exemption was necessary in view of the law declared by this court in the Bengal Immunity case ([1955] 6 S.T.C. 446; [1955] 2 S.C.R. 603). The second press note must therefore be treated to be merely an administrative direction indicating what would be the effect of the decision of this court in the Bengal Immunity case ([1955] 6 S.T.C. 446; [1955] 2 S.C.R. 603) and it was not intended to be an order of exemption made under the provisions of section 7 of the Act. In the second place, it should be noticed that the word "exemption" appears nowhere in the second press note which merely states that the levy of sales tax on the "explanation sales" has been "suspended" with immediate effect. It is therefore not possible to accept the argument on behalf of the appellant that the second press note must be deemed to be an order of the State Government granting exemption under section 7 of the Act with regard to "explanation sales". On behalf of the appellant reference was made by Mr. S. T. Desai to the decision of this court in State of Kerala v. Cochin Coal Co., Ltd. ([1961] 12 S.T.C. 1; [1961] 2 S.C.R. 219) in which it was held that a notification of the State ofdated February 5, 1954, had the effect of exempting the respondent from liability to sales tax. But the principle of this decision has, however, no application to the present case because the language of the second press note is quite different from the language of the notification which was theof debate in State of Kerala v. Cochin Coal Co., Ltd. ([1961] 12 S.T.C. 1; [1961] 2 S.C.R. 219). We accordingly reject the argument of Mr. S. T. Desai on this point.
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Steel Authority of India Ltd Vs. Choudhary Tilotama Das | in the year 2013. In the said additional affidavit dated 22nd January, 2018 it has been further stated that the SAIL is now engaged in the process of enhancing the annual capacity of the RSP to 7.5 million tons per annum for which a huge infrastructural investment will have to be made running into almost Rs. 2.6 million crores. It is further stated by the appellant in the said additional affidavit dated 22nd January, 2018 that keeping in mind that the optimum number of employees per million ton of production should be 3200, once the production capacity is raised to 7.5 million tons the RSP will have about 24000 employees. It is contended that the entire township of Rourkela is established and maintained by the RSP itself which is, therefore, required to provide additional accommodation to various Government Agencies like Police, Revenue Officers, Government employees, employees of Government School/Colleges, Banks, Public Sector Undertakings (PSUs), etc. In the said additional affidavit dated 22nd January, 2018, the appellant has further stated that as per the directive received from the Union Cabinet Secretariat long-term lease is presently prohibited. It is further stated that presently the available quarters are about 19916 of which about 18300 quarters are already occupied by the employees/ex-employees and various other employees of the State Government, PSUs, etc. It is further stated that about 250-300 quarters are in a dilapidated condition. The remaining/ vacant quarters would be required not only to house the in-coming employees but also various Agencies that would be working at the site in connection with the expansion/modernization plans. On the strength of the aforesaid statements and the official correspondences/decisions enclosed in this regard to the additional affidavit dated 22nd January, 2018 the appellant submits that the order of the High Court should be appropriately interfered with. 8. Shri Ratnakar Dash, learned Senior Counsel appearing for the respondents – writ petitioners has disputed the statements made by the appellant in the additional affidavit dated 22nd January, 2018 and has drawn the attention of the Court to the reply of the respondent to the said additional affidavit dated 22nd January, 2018 filed by the appellant. The learned counsel for the respondents–writ petitioners, apart from contesting the various statements made in the additional affidavit dated 22nd January, 2018 filed by the appellant, has submitted that the RSP is a loss making concern and admittedly is reducing its workforce. It is claimed that huge number of vacant quarters are available and even if the production capacity of the RSP is enhanced to 7.5 million tons there would still be surplus of accommodation/quarters.9. The respondents-writ petitioners have brought on record a Circular dated 23rd August, 2017 by which applications have been invited for allotment of one room/1 BR(L.T) quarters on licence basis for a period of 33 (thirty three) months. Such applications have been invited from employees, ex-employees of the RSP who would be separating from the RSP/Company. The said fact, according to the respondents – writ petitioners, has belied the claim made by the appellant – Steel Authority of India Limited. 10. Insofar as the State of Odisha is concerned, Shri Shibashish Misra, learned counsel appearing for the State of Odisha has taken a stand that the appellant – Steel Authority of India Limited is free to take its decision in the matter subject to the conditions of lease under which the land has been allotted to the Steel Authority of India Limited. 11. We have considered the matter. 12. “Sail Scheme for Leasing of Houses to Employees, 2002” was valid for a period of three months. The operation of it had not been extended. Under the said Scheme of 2002, ex-employees, to which category the respondents–writ petitioners belong, were not vested with any right for consideration of their cases for allotment on long-term lease. In fact, the lease deed between the State of Orissa and Steel Authority of India Limited makes it very clear that the lands can be used only for the Steel plant and for the purposes ancillary thereto and that the Steel Authority of India Limited shall not use the land for any other purpose except with the previous sanction of the Government. 13. “Sail Scheme for Leasing of Houses to Employees, 2002” was introduced in the year 2002. Considerable time has elapsed in the meantime. The Scheme of 2002 was applicable only to regular/serving employees and not to ex-employees. In the long period of interval that has been occasioned by the pendency of the present litigation the very basis for introduction of the Scheme of 2002 has changed and the facts now stated in the additional affidavit dated 22nd January, 2018 of the appellant – Steel Authority of India Limited would indicate that today any long-term lease of quarters built/maintained by the RSP is not feasible. In fact, according to the appellant – Steel Authority of India Limited, there would be a shortage of accommodation/quarters in the immediate future and, perhaps, new constructions will have to be raised to meet the increasing demand for accommodation on account of increase of production levels of the RSP. 14. In a situation where no legal right can be understood to have been vested in the respondents – writ petitioners under the Scheme of 2002 and operation of the said Scheme of 2002 today is not considered feasible or necessary by the appellant on account of the reasons stated in the additional affidavit dated 22nd January, 2018, as noticed herein above, we do not see how the appellant can be compelled to grant any long-term lease of the official quarters in the RSP to the respondents – writ petitioners who are its ex-employees. Such subsequent facts and developments that have taken place during the interregnum would certainly be material in moulding the relief(s) and answering the issues arising before this Court.15. Consequently and in the light of the above we are of the view that no relief can be afforded to the respondents–writ petitioners, at this point of time. | 1[ds]14. In a situation where no legal right can be understood to have been vested in the respondents – writ petitioners under the Scheme of 2002 and operation of the said Scheme of 2002 today is not considered feasible or necessary by the appellant on account of the reasons stated in the additional affidavit dated 22nd January, 2018, as noticed herein above, we do not see how the appellant can be compelled to grant anylease of the official quarters in the RSP to the respondents – writ petitioners who are itsSuch subsequent facts and developments that have taken place during the interregnum would certainly be material in moulding the relief(s) and answering the issues arising before this Court.15. Consequently and in the light of the above we are of the view that no relief can be afforded to the respondents–writ petitioners, at this point of time. | 1 | 1,897 | 160 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
in the year 2013. In the said additional affidavit dated 22nd January, 2018 it has been further stated that the SAIL is now engaged in the process of enhancing the annual capacity of the RSP to 7.5 million tons per annum for which a huge infrastructural investment will have to be made running into almost Rs. 2.6 million crores. It is further stated by the appellant in the said additional affidavit dated 22nd January, 2018 that keeping in mind that the optimum number of employees per million ton of production should be 3200, once the production capacity is raised to 7.5 million tons the RSP will have about 24000 employees. It is contended that the entire township of Rourkela is established and maintained by the RSP itself which is, therefore, required to provide additional accommodation to various Government Agencies like Police, Revenue Officers, Government employees, employees of Government School/Colleges, Banks, Public Sector Undertakings (PSUs), etc. In the said additional affidavit dated 22nd January, 2018, the appellant has further stated that as per the directive received from the Union Cabinet Secretariat long-term lease is presently prohibited. It is further stated that presently the available quarters are about 19916 of which about 18300 quarters are already occupied by the employees/ex-employees and various other employees of the State Government, PSUs, etc. It is further stated that about 250-300 quarters are in a dilapidated condition. The remaining/ vacant quarters would be required not only to house the in-coming employees but also various Agencies that would be working at the site in connection with the expansion/modernization plans. On the strength of the aforesaid statements and the official correspondences/decisions enclosed in this regard to the additional affidavit dated 22nd January, 2018 the appellant submits that the order of the High Court should be appropriately interfered with. 8. Shri Ratnakar Dash, learned Senior Counsel appearing for the respondents – writ petitioners has disputed the statements made by the appellant in the additional affidavit dated 22nd January, 2018 and has drawn the attention of the Court to the reply of the respondent to the said additional affidavit dated 22nd January, 2018 filed by the appellant. The learned counsel for the respondents–writ petitioners, apart from contesting the various statements made in the additional affidavit dated 22nd January, 2018 filed by the appellant, has submitted that the RSP is a loss making concern and admittedly is reducing its workforce. It is claimed that huge number of vacant quarters are available and even if the production capacity of the RSP is enhanced to 7.5 million tons there would still be surplus of accommodation/quarters.9. The respondents-writ petitioners have brought on record a Circular dated 23rd August, 2017 by which applications have been invited for allotment of one room/1 BR(L.T) quarters on licence basis for a period of 33 (thirty three) months. Such applications have been invited from employees, ex-employees of the RSP who would be separating from the RSP/Company. The said fact, according to the respondents – writ petitioners, has belied the claim made by the appellant – Steel Authority of India Limited. 10. Insofar as the State of Odisha is concerned, Shri Shibashish Misra, learned counsel appearing for the State of Odisha has taken a stand that the appellant – Steel Authority of India Limited is free to take its decision in the matter subject to the conditions of lease under which the land has been allotted to the Steel Authority of India Limited. 11. We have considered the matter. 12. “Sail Scheme for Leasing of Houses to Employees, 2002” was valid for a period of three months. The operation of it had not been extended. Under the said Scheme of 2002, ex-employees, to which category the respondents–writ petitioners belong, were not vested with any right for consideration of their cases for allotment on long-term lease. In fact, the lease deed between the State of Orissa and Steel Authority of India Limited makes it very clear that the lands can be used only for the Steel plant and for the purposes ancillary thereto and that the Steel Authority of India Limited shall not use the land for any other purpose except with the previous sanction of the Government. 13. “Sail Scheme for Leasing of Houses to Employees, 2002” was introduced in the year 2002. Considerable time has elapsed in the meantime. The Scheme of 2002 was applicable only to regular/serving employees and not to ex-employees. In the long period of interval that has been occasioned by the pendency of the present litigation the very basis for introduction of the Scheme of 2002 has changed and the facts now stated in the additional affidavit dated 22nd January, 2018 of the appellant – Steel Authority of India Limited would indicate that today any long-term lease of quarters built/maintained by the RSP is not feasible. In fact, according to the appellant – Steel Authority of India Limited, there would be a shortage of accommodation/quarters in the immediate future and, perhaps, new constructions will have to be raised to meet the increasing demand for accommodation on account of increase of production levels of the RSP. 14. In a situation where no legal right can be understood to have been vested in the respondents – writ petitioners under the Scheme of 2002 and operation of the said Scheme of 2002 today is not considered feasible or necessary by the appellant on account of the reasons stated in the additional affidavit dated 22nd January, 2018, as noticed herein above, we do not see how the appellant can be compelled to grant any long-term lease of the official quarters in the RSP to the respondents – writ petitioners who are its ex-employees. Such subsequent facts and developments that have taken place during the interregnum would certainly be material in moulding the relief(s) and answering the issues arising before this Court.15. Consequently and in the light of the above we are of the view that no relief can be afforded to the respondents–writ petitioners, at this point of time.
### Response:
1
### Explanation:
14. In a situation where no legal right can be understood to have been vested in the respondents – writ petitioners under the Scheme of 2002 and operation of the said Scheme of 2002 today is not considered feasible or necessary by the appellant on account of the reasons stated in the additional affidavit dated 22nd January, 2018, as noticed herein above, we do not see how the appellant can be compelled to grant anylease of the official quarters in the RSP to the respondents – writ petitioners who are itsSuch subsequent facts and developments that have taken place during the interregnum would certainly be material in moulding the relief(s) and answering the issues arising before this Court.15. Consequently and in the light of the above we are of the view that no relief can be afforded to the respondents–writ petitioners, at this point of time.
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Kusum Lata and Ors Vs. Satbir and Ors | turning at Mahendergarh road a tempo bearing No. HR-34-8010 of white colour being driven in a rash and negligent manner came from behind and overtook their scooter. Dheeraj Kumar was not driving the scooter. Dheeraj Kumar saw that the tempo hit Surender, the victim, as a result of which he fell down but the tempo did not stop after the accident. However, the evidence of Dheeraj Kumar is that they followed the same and caught the driver. On their asking, the driver disclosed his name as Satbir son of Shri Ram Avtar. Thereafter, they went to Mahendergarh Hospital and on the next day when they were returning, they found police and other persons were present at the spot. Dheeraj Kumar told the name of the driver and gave the number of the tempo to the police. Dheeraj Kumar claims to have seen the incident with his own eyes. When Dheeraj Kumar was cross-examined, he stated that the deceased Surender is not related to him nor was he his neighbour. He was his co-villager. Dheeraj Kumar also told that he knows the driver of the vehicle bearing No. HR-34-8010. He denied all suggestions that he was giving his evidence to help the victim. Both the Tribunal and the High Court have refused to accept the presence of Dheeraj Kumar as his name was not disclosed in the FIR by the brother of the victim. 8. This Court is unable to appreciate the aforesaid approach of the Tribunal and the High Court. This Court is of the opinion that when a person is seeing that his brother, being knocked down by a speeding vehicle, was suffering in pain and was in need of immediate medical attention, that person is obviously under a traumatic condition. His first attempt will be to take his brother to a hospital or to a doctor. It is but natural for such a person not to be conscious of the presence of any person in the vicinity especially when Dheeraj did not stop at the spot after the accident and gave a chase to the offending vehicle. Under such mental strain if the brother of the victim forgot to take down the number of the offending vehicle it was also not unnatural. 9. There is no reason why the Tribunal and the High Court would ignore the otherwise reliable evidence of Dheeraj Kumar. In fact, no cogent reason has been assigned either by the Tribunal or by the High Court for discarding the evidence of Dheeraj Kumar. The so-called reason that as the name of Dheeraj Kumar was not mentioned in the FIR, so it was not possible for Dheeraj Kumar to see the incident, is not a proper assessment of the fact-situation in this case. It is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. 10. Reference in this connection may be made to the decision of this Court in Bimla Devi and others v. Himachal Road Transport Corporation and others [(2009) 13 SCC 530] , in which the relevant observation on this point has been made and which is very pertinent and is quoted below:- "In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied." 11. In respect of the finding reached by the Tribunal on the assessment of compensation, this Court finds that the Tribunal has used the multiplier of 16, even though the age of the deceased has been determined to be 29. We find that the Tribunal erred by applying the multiplier of 16. However, considering the age of the victim, the multiplier of 17 should be applied in view of the decision of this Court in Sarla Verma (Smt) and others v. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 , and the chart at page 139. It is not in dispute that in the instant case the claim for compensation has been filed under Section 166 of the Motor Vehicles Act. This Court finds that if the multiplier of 17 is applied then the amount comes to Rs.3,93,428.45 apart from the amount of funeral expenses and the amount granted for loss of consortium. Taking all these together the amount comes to a little more than four lacs of rupees. 12. The Court, however, in exercise of its power under Article 142 and considering the number of claimants, of which three are minor children, is of the opinion that for doing complete justice in the case and by taking a broad and comprehensive view of the matter, an amount of Rs.6 lacs including the amounts of consortium and funeral expenses would meet the ends of justice. The Court, therefore, grants a compensation of Rs.6 lacs considering the fact that the victim was the sole wage earner in the family and he left behind three minor children and a widow. The said amount is to be paid along with interest @ 7% from the date of presentation of the claim petition till the date of actual payment. 13. In respect of the dispute about licence, the Tribunal has held and, in our view rightly, that the insurance company has to pay and then may recover it from the owner of the vehicle. This Court is affirming that direction in view of the principles laid down by a three-Judge Bench of this Court in the case of National Insurance Company Limited v. Swaran Singh and others reported in (2004) 3 SCC 297 . | 1[ds]6. The main reason why both the Tribunal and the High Court reached their respective findings that vehicle No.HR-34-8010 was not involved in the accident are primarily because of the fact that in the FIR which was lodged by one Ashok Kumar, brother of the victim, neither the number of the vehicle nor the name of the driver was mentioned7. Admittedly, the facts were that the brother of the deceased, Ashok Kumar while walking on the road heard some noise and then saw that a white colour tempo had hit his brother and sped away. Immediately, he found that his brother, being seriously injured, was in an urgent need of medical aid and he took him to the hospital. Under such circumstances it may be natural for him not to note the number of the offending vehicle. That may be perfectly consistent with normal human conduct. Therefore, that by itself cannot justify the findings reached by the Tribunal and which have been affirmed by the High Court. In the present case, evidence has come on record from the deposition of one Dheeraj Kumar, who clearly proved the number of the vehicle. The evidence of Dheeraj Kumar is that he was going along with one Ashok Kumar on a scooter to know the condition of one of their relative in Mahendergarh Hospital. As they reached at turning at Mahendergarh road a tempo bearing No. HR-34-8010 of white colour being driven in a rash and negligent manner came from behind and overtook their scooter. Dheeraj Kumar was not driving the scooter. Dheeraj Kumar saw that the tempo hit Surender, the victim, as a result of which he fell down but the tempo did not stop after the accident. However, the evidence of Dheeraj Kumar is that they followed the same and caught the driver. On their asking, the driver disclosed his name as Satbir son of Shri Ram Avtar. Thereafter, they went to Mahendergarh Hospital and on the next day when they were returning, they found police and other persons were present at the spot. Dheeraj Kumar told the name of the driver and gave the number of the tempo to the police. Dheeraj Kumar claims to have seen the incident with his own eyes. When Dheeraj Kumar was cross-examined, he stated that the deceased Surender is not related to him nor was he his neighbour. He was his co-villager. Dheeraj Kumar also told that he knows the driver of the vehicle bearing No. HR-34-8010. He denied all suggestions that he was giving his evidence to help the victim. Both the Tribunal and the High Court have refused to accept the presence of Dheeraj Kumar as his name was not disclosed in the FIR by the brother of the victim8. This Court is unable to appreciate the aforesaid approach of the Tribunal and the High Court. This Court is of the opinion that when a person is seeing that his brother, being knocked down by a speeding vehicle, was suffering in pain and was in need of immediate medical attention, that person is obviously under a traumatic condition. His first attempt will be to take his brother to a hospital or to a doctor. It is but natural for such a person not to be conscious of the presence of any person in the vicinity especially when Dheeraj did not stop at the spot after the accident and gave a chase to the offending vehicle. Under such mental strain if the brother of the victim forgot to take down the number of the offending vehicle it was also not unnatural11. In respect of the finding reached by the Tribunal on the assessment of compensation, this Court finds that the Tribunal has used the multiplier of 16, even though the age of the deceased has been determined to be 29. We find that the Tribunal erred by applying the multiplier of 16. However, considering the age of the victim, the multiplier of 17 should be applied in view of the decision of this Court in Sarla Verma (Smt) and others v. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 , and the chart at page 139. It is not in dispute that in the instant case the claim for compensation has been filed under Section 166 of the Motor Vehicles Act. This Court finds that if the multiplier of 17 is applied then the amount comes to Rs.3,93,428.45 apart from the amount of funeral expenses and the amount granted for loss of consortium. Taking all these together the amount comes to a little more than four lacs of rupees12. The Court, however, in exercise of its power under Article 142 and considering the number of claimants, of which three are minor children, is of the opinion that for doing complete justice in the case and by taking a broad and comprehensive view of the matter, an amount of Rs.6 lacs including the amounts of consortium and funeral expenses would meet the ends of justice. The Court, therefore, grants a compensation of Rs.6 lacs considering the fact that the victim was the sole wage earner in the family and he left behind three minor children and a widow. The said amount is to be paid along with interest @ 7% from the date of presentation of the claim petition till the date of actual payment13. In respect of the dispute about licence, the Tribunal has held and, in our view rightly, that the insurance company has to pay and then may recover it from the owner of the vehicle. This Court is affirming that direction in view of the principles laid down by a three-Judge Bench of this Court in the case of National Insurance Company Limited v. Swaran Singh and others reported in (2004) 3 SCC 297 | 1 | 1,661 | 1,052 | ### 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:
turning at Mahendergarh road a tempo bearing No. HR-34-8010 of white colour being driven in a rash and negligent manner came from behind and overtook their scooter. Dheeraj Kumar was not driving the scooter. Dheeraj Kumar saw that the tempo hit Surender, the victim, as a result of which he fell down but the tempo did not stop after the accident. However, the evidence of Dheeraj Kumar is that they followed the same and caught the driver. On their asking, the driver disclosed his name as Satbir son of Shri Ram Avtar. Thereafter, they went to Mahendergarh Hospital and on the next day when they were returning, they found police and other persons were present at the spot. Dheeraj Kumar told the name of the driver and gave the number of the tempo to the police. Dheeraj Kumar claims to have seen the incident with his own eyes. When Dheeraj Kumar was cross-examined, he stated that the deceased Surender is not related to him nor was he his neighbour. He was his co-villager. Dheeraj Kumar also told that he knows the driver of the vehicle bearing No. HR-34-8010. He denied all suggestions that he was giving his evidence to help the victim. Both the Tribunal and the High Court have refused to accept the presence of Dheeraj Kumar as his name was not disclosed in the FIR by the brother of the victim. 8. This Court is unable to appreciate the aforesaid approach of the Tribunal and the High Court. This Court is of the opinion that when a person is seeing that his brother, being knocked down by a speeding vehicle, was suffering in pain and was in need of immediate medical attention, that person is obviously under a traumatic condition. His first attempt will be to take his brother to a hospital or to a doctor. It is but natural for such a person not to be conscious of the presence of any person in the vicinity especially when Dheeraj did not stop at the spot after the accident and gave a chase to the offending vehicle. Under such mental strain if the brother of the victim forgot to take down the number of the offending vehicle it was also not unnatural. 9. There is no reason why the Tribunal and the High Court would ignore the otherwise reliable evidence of Dheeraj Kumar. In fact, no cogent reason has been assigned either by the Tribunal or by the High Court for discarding the evidence of Dheeraj Kumar. The so-called reason that as the name of Dheeraj Kumar was not mentioned in the FIR, so it was not possible for Dheeraj Kumar to see the incident, is not a proper assessment of the fact-situation in this case. It is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. 10. Reference in this connection may be made to the decision of this Court in Bimla Devi and others v. Himachal Road Transport Corporation and others [(2009) 13 SCC 530] , in which the relevant observation on this point has been made and which is very pertinent and is quoted below:- "In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied." 11. In respect of the finding reached by the Tribunal on the assessment of compensation, this Court finds that the Tribunal has used the multiplier of 16, even though the age of the deceased has been determined to be 29. We find that the Tribunal erred by applying the multiplier of 16. However, considering the age of the victim, the multiplier of 17 should be applied in view of the decision of this Court in Sarla Verma (Smt) and others v. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 , and the chart at page 139. It is not in dispute that in the instant case the claim for compensation has been filed under Section 166 of the Motor Vehicles Act. This Court finds that if the multiplier of 17 is applied then the amount comes to Rs.3,93,428.45 apart from the amount of funeral expenses and the amount granted for loss of consortium. Taking all these together the amount comes to a little more than four lacs of rupees. 12. The Court, however, in exercise of its power under Article 142 and considering the number of claimants, of which three are minor children, is of the opinion that for doing complete justice in the case and by taking a broad and comprehensive view of the matter, an amount of Rs.6 lacs including the amounts of consortium and funeral expenses would meet the ends of justice. The Court, therefore, grants a compensation of Rs.6 lacs considering the fact that the victim was the sole wage earner in the family and he left behind three minor children and a widow. The said amount is to be paid along with interest @ 7% from the date of presentation of the claim petition till the date of actual payment. 13. In respect of the dispute about licence, the Tribunal has held and, in our view rightly, that the insurance company has to pay and then may recover it from the owner of the vehicle. This Court is affirming that direction in view of the principles laid down by a three-Judge Bench of this Court in the case of National Insurance Company Limited v. Swaran Singh and others reported in (2004) 3 SCC 297 .
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6. The main reason why both the Tribunal and the High Court reached their respective findings that vehicle No.HR-34-8010 was not involved in the accident are primarily because of the fact that in the FIR which was lodged by one Ashok Kumar, brother of the victim, neither the number of the vehicle nor the name of the driver was mentioned7. Admittedly, the facts were that the brother of the deceased, Ashok Kumar while walking on the road heard some noise and then saw that a white colour tempo had hit his brother and sped away. Immediately, he found that his brother, being seriously injured, was in an urgent need of medical aid and he took him to the hospital. Under such circumstances it may be natural for him not to note the number of the offending vehicle. That may be perfectly consistent with normal human conduct. Therefore, that by itself cannot justify the findings reached by the Tribunal and which have been affirmed by the High Court. In the present case, evidence has come on record from the deposition of one Dheeraj Kumar, who clearly proved the number of the vehicle. The evidence of Dheeraj Kumar is that he was going along with one Ashok Kumar on a scooter to know the condition of one of their relative in Mahendergarh Hospital. As they reached at turning at Mahendergarh road a tempo bearing No. HR-34-8010 of white colour being driven in a rash and negligent manner came from behind and overtook their scooter. Dheeraj Kumar was not driving the scooter. Dheeraj Kumar saw that the tempo hit Surender, the victim, as a result of which he fell down but the tempo did not stop after the accident. However, the evidence of Dheeraj Kumar is that they followed the same and caught the driver. On their asking, the driver disclosed his name as Satbir son of Shri Ram Avtar. Thereafter, they went to Mahendergarh Hospital and on the next day when they were returning, they found police and other persons were present at the spot. Dheeraj Kumar told the name of the driver and gave the number of the tempo to the police. Dheeraj Kumar claims to have seen the incident with his own eyes. When Dheeraj Kumar was cross-examined, he stated that the deceased Surender is not related to him nor was he his neighbour. He was his co-villager. Dheeraj Kumar also told that he knows the driver of the vehicle bearing No. HR-34-8010. He denied all suggestions that he was giving his evidence to help the victim. Both the Tribunal and the High Court have refused to accept the presence of Dheeraj Kumar as his name was not disclosed in the FIR by the brother of the victim8. This Court is unable to appreciate the aforesaid approach of the Tribunal and the High Court. This Court is of the opinion that when a person is seeing that his brother, being knocked down by a speeding vehicle, was suffering in pain and was in need of immediate medical attention, that person is obviously under a traumatic condition. His first attempt will be to take his brother to a hospital or to a doctor. It is but natural for such a person not to be conscious of the presence of any person in the vicinity especially when Dheeraj did not stop at the spot after the accident and gave a chase to the offending vehicle. Under such mental strain if the brother of the victim forgot to take down the number of the offending vehicle it was also not unnatural11. In respect of the finding reached by the Tribunal on the assessment of compensation, this Court finds that the Tribunal has used the multiplier of 16, even though the age of the deceased has been determined to be 29. We find that the Tribunal erred by applying the multiplier of 16. However, considering the age of the victim, the multiplier of 17 should be applied in view of the decision of this Court in Sarla Verma (Smt) and others v. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 , and the chart at page 139. It is not in dispute that in the instant case the claim for compensation has been filed under Section 166 of the Motor Vehicles Act. This Court finds that if the multiplier of 17 is applied then the amount comes to Rs.3,93,428.45 apart from the amount of funeral expenses and the amount granted for loss of consortium. Taking all these together the amount comes to a little more than four lacs of rupees12. The Court, however, in exercise of its power under Article 142 and considering the number of claimants, of which three are minor children, is of the opinion that for doing complete justice in the case and by taking a broad and comprehensive view of the matter, an amount of Rs.6 lacs including the amounts of consortium and funeral expenses would meet the ends of justice. The Court, therefore, grants a compensation of Rs.6 lacs considering the fact that the victim was the sole wage earner in the family and he left behind three minor children and a widow. The said amount is to be paid along with interest @ 7% from the date of presentation of the claim petition till the date of actual payment13. In respect of the dispute about licence, the Tribunal has held and, in our view rightly, that the insurance company has to pay and then may recover it from the owner of the vehicle. This Court is affirming that direction in view of the principles laid down by a three-Judge Bench of this Court in the case of National Insurance Company Limited v. Swaran Singh and others reported in (2004) 3 SCC 297
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SUDHIR KUMAR @ S. BALIYAN Vs. VINAY KUMAR G.B | plaint. 8. Having considered the statutory provisions in detail, the order passed by the learned Commercial Court, confirmed by the High Court, rejecting the application of the plaintiff for leave to rely on the additional documents is required to be tested and considered. 8.1 It emerges from the record that the first suit was filed by the plaintiff in the month of October, 2018, bearing TM No.236 of 2018, restraining the defendant from infringing and passing-off plaintiffs Trade Marks. That an ex-parte interim injunction was passed in favour of the plaintiff by order dated 29.10.2018. It appears having realized and found that the earlier suit was not in consonance with the provisions of the Commercial Courts Act, the plaintiff withdrew the said suit being TM No.236 of 2018 on 27.07.2019 with liberty to file a fresh suit as per the Commercial Courts Act, 2015. Therefore, the second suit was filed on 31.08.2019 and within a period of thirty days from filing of the second suit the appellant herein – original plaintiff preferred the present application seeking leave of the court to file additional documents. In the application, it was specifically mentioned that so far as the invoices are concerned, the same were not in its possession at the time of the filing of the plaint and so far as the other documents are concerned they were not filed due to they being voluminous. Therefore, so far as the invoices sought to be relied on/produced as additional documents ought to have been permitted to be relied on/produced as it was specifically asserted that they were not in his possession at the time of filing of the plaint/suit. 8.2 The submissions on behalf of the defendant that the cause shown for non production was an afterthought cannot be accepted for the simple reason that the application was filed within a period of thirty days from the date of filing of the second suit and at the time when the application for interim injunction under Order XXXIX Rule 1 was not fully heard and kept for orders. 8.3 Even the reason given by the learned Commercial Court that the invoices being suspicious and therefore not granting leave to produce the said invoices cannot be accepted. At the stage of granting leave to place on record additional documents the court is not required to consider the genuineness of the documents/additional documents, the stage at which genuineness of the documents to be considered during the trial and/or even at the stage of deciding the application under Order XXXIX Rule 1 that too while considering prima facie case. Therefore, the learned Commercial Court ought to have granted leave to the plaintiff to rely on/produce the invoices as mentioned in the application as additional documents. 8.4 Now, so far as the other documents sought to be relied on/produced as additional documents other than the invoices are concerned the same stands on different footing. It is not disputed and in fact it was specifically admitted and so stated in the application that those additional documents other than the invoices were in their possession but not produced being voluminous and that the suit was filed urgently. However, it is to be noted that when the second suit was filed, it cannot be said to be urgent filing of the suit for injunction, as the first suit was filed in the month of October, 2018 and there was an ex- parte ad interim injunction vide order dated 29.10.2018 and thereafter plaintiff withdrew the said first suit on 27.07.2019 with liberty to file a fresh suit as per the Commercial Courts Act and the second suit came to be filed on 31.08.2019 after period of one month of the withdrawal of first suit. Therefore the case on behalf of the plaintiff that when the second suit was filed, it was urgently filed therefore, the additional documents sought to be relied upon other than the invoices were not filed as the same were voluminous cannot be accepted. And therefore as such Order XI Rule 1 (4) shall not be applicable, though the application was filed within thirty days of filing of the second suit. While seeking leave of the court to rely on documents, which were in his power, possession, control or custody and not disclosed along with plaint or within the extended period set out in Order XI Rule 1 (4), the plaintiff has to establish the reasonable cause for non disclosure along with plaint. 8.5 In view of the facts and circumstances narrated hereinabove and in view of the filing of the first suit in the month of October, 2018; the ex-parte ad interim injunction order in favour of the plaintiff dated 29.10.2018; withdrawal of the first suit on 27.07.2019 and subsequently the filing of the second suit on 31.08.2019, non filing of the additional documents other than the invoices on the ground of they being voluminous cannot be said to be a reasonable cause for non disclosure/filing along with plaint. There was sufficient time gap between the filing of the first suit and filing of the second suit i.e. approximately 10 months and therefore when the second suit was filed the plaintiff was having sufficient time after filing of the first suit, to file the additional documents other than the invoices at the time when the second suit was filed. Therefore as such, both the courts below have rightly not permitted the plaintiff to rely upon the documents, other than the invoices as additional documents in exercise of the powers under Order XI Rule 1 (4) read with Order XI Rule 1 (5). 9. In view of the above and for the reasons stated above, the plaintiff can be permitted to rely on the documents in the form of invoices as mentioned in the application as additional documents. However, such production shall not affect the outcome of interim injunction application submitted under Order XXXIX Rule 1 of the CPC, which as such is reported to be kept for orders. | 1[ds]8. Having considered the statutory provisions in detail, the order passed by the learned Commercial Court, confirmed by the High Court, rejecting the application of the plaintiff for leave to rely on the additional documents is required to be tested and considered.8.1 It emerges from the record that the first suit was filed by the plaintiff in the month of October, 2018, bearing TM No.236 of 2018, restraining the defendant from infringing and passing-off plaintiffs Trade Marks. That an ex-parte interim injunction was passed in favour of the plaintiff by order dated 29.10.2018. It appears having realized and found that the earlier suit was not in consonance with the provisions of the Commercial Courts Act, the plaintiff withdrew the said suit being TM No.236 of 2018 on 27.07.2019 with liberty to file a fresh suit as per the Commercial Courts Act, 2015. Therefore, the second suit was filed on 31.08.2019 and within a period of thirty days from filing of the second suit the appellant herein – original plaintiff preferred the present application seeking leave of the court to file additional documents. In the application, it was specifically mentioned that so far as the invoices are concerned, the same were not in its possession at the time of the filing of the plaint and so far as the other documents are concerned they were not filed due to they being voluminous. Therefore, so far as the invoices sought to be relied on/produced as additional documents ought to have been permitted to be relied on/produced as it was specifically asserted that they were not in his possession at the time of filing of the plaint/suit.8.2 The submissions on behalf of the defendant that the cause shown for non production was an afterthought cannot be accepted for the simple reason that the application was filed within a period of thirty days from the date of filing of the second suit and at the time when the application for interim injunction under Order XXXIX Rule 1 was not fully heard and kept for orders.8.3 Even the reason given by the learned Commercial Court that the invoices being suspicious and therefore not granting leave to produce the said invoices cannot be accepted. At the stage of granting leave to place on record additional documents the court is not required to consider the genuineness of the documents/additional documents, the stage at which genuineness of the documents to be considered during the trial and/or even at the stage of deciding the application under Order XXXIX Rule 1 that too while considering prima facie case.Therefore, the learned Commercial Court ought to have granted leave to the plaintiff to rely on/produce the invoices as mentioned in the application as additional documents.8.4 Now, so far as the other documents sought to be relied on/produced as additional documents other than the invoices are concerned the same stands on different footing. It is not disputed and in fact it was specifically admitted and so stated in the application that those additional documents other than the invoices were in their possession but not produced being voluminous and that the suit was filed urgently. However, it is to be noted that when the second suit was filed, it cannot be said to be urgent filing of the suit for injunction, as the first suit was filed in the month of October, 2018 and there was an ex- parte ad interim injunction vide order dated 29.10.2018 and thereafter plaintiff withdrew the said first suit on 27.07.2019 with liberty to file a fresh suit as per the Commercial Courts Act and the second suit came to be filed on 31.08.2019 after period of one month of the withdrawal of first suit. Therefore the case on behalf of the plaintiff that when the second suit was filed, it was urgently filed therefore, the additional documents sought to be relied upon other than the invoices were not filed as the same were voluminous cannot be accepted. And therefore as such Order XI Rule 1 (4) shall not be applicable, though the application was filed within thirty days of filing of the second suit. While seeking leave of the court to rely on documents, which were in his power, possession, control or custody and not disclosed along with plaint or within the extended period set out in Order XI Rule 1 (4), the plaintiff has to establish the reasonable cause for non disclosure along with plaint.8.5 In view of the facts and circumstances narrated hereinabove and in view of the filing of the first suit in the month of October, 2018; the ex-parte ad interim injunction order in favour of the plaintiff dated 29.10.2018; withdrawal of the first suit on 27.07.2019 and subsequently the filing of the second suit on 31.08.2019, non filing of the additional documents other than the invoices on the ground of they being voluminous cannot be said to be a reasonable cause for non disclosure/filing along with plaint. There was sufficient time gap between the filing of the first suit and filing of the second suit i.e. approximately 10 months and therefore when the second suit was filed the plaintiff was having sufficient time after filing of the first suit, to file the additional documents other than the invoices at the time when the second suit was filed. Therefore as such, both the courts below have rightly not permitted the plaintiff to rely upon the documents, other than the invoices as additional documents in exercise of the powers under Order XI Rule 1 (4) read with Order XI Rule 1 (5).9. In view of the above and for the reasons stated above, the plaintiff can be permitted to rely on the documents in the form of invoices as mentioned in the application as additional documents. However, such production shall not affect the outcome of interim injunction application submitted under Order XXXIX Rule 1 of the CPC, which as such is reported to be kept for orders. | 1 | 6,057 | 1,064 | ### 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:
plaint. 8. Having considered the statutory provisions in detail, the order passed by the learned Commercial Court, confirmed by the High Court, rejecting the application of the plaintiff for leave to rely on the additional documents is required to be tested and considered. 8.1 It emerges from the record that the first suit was filed by the plaintiff in the month of October, 2018, bearing TM No.236 of 2018, restraining the defendant from infringing and passing-off plaintiffs Trade Marks. That an ex-parte interim injunction was passed in favour of the plaintiff by order dated 29.10.2018. It appears having realized and found that the earlier suit was not in consonance with the provisions of the Commercial Courts Act, the plaintiff withdrew the said suit being TM No.236 of 2018 on 27.07.2019 with liberty to file a fresh suit as per the Commercial Courts Act, 2015. Therefore, the second suit was filed on 31.08.2019 and within a period of thirty days from filing of the second suit the appellant herein – original plaintiff preferred the present application seeking leave of the court to file additional documents. In the application, it was specifically mentioned that so far as the invoices are concerned, the same were not in its possession at the time of the filing of the plaint and so far as the other documents are concerned they were not filed due to they being voluminous. Therefore, so far as the invoices sought to be relied on/produced as additional documents ought to have been permitted to be relied on/produced as it was specifically asserted that they were not in his possession at the time of filing of the plaint/suit. 8.2 The submissions on behalf of the defendant that the cause shown for non production was an afterthought cannot be accepted for the simple reason that the application was filed within a period of thirty days from the date of filing of the second suit and at the time when the application for interim injunction under Order XXXIX Rule 1 was not fully heard and kept for orders. 8.3 Even the reason given by the learned Commercial Court that the invoices being suspicious and therefore not granting leave to produce the said invoices cannot be accepted. At the stage of granting leave to place on record additional documents the court is not required to consider the genuineness of the documents/additional documents, the stage at which genuineness of the documents to be considered during the trial and/or even at the stage of deciding the application under Order XXXIX Rule 1 that too while considering prima facie case. Therefore, the learned Commercial Court ought to have granted leave to the plaintiff to rely on/produce the invoices as mentioned in the application as additional documents. 8.4 Now, so far as the other documents sought to be relied on/produced as additional documents other than the invoices are concerned the same stands on different footing. It is not disputed and in fact it was specifically admitted and so stated in the application that those additional documents other than the invoices were in their possession but not produced being voluminous and that the suit was filed urgently. However, it is to be noted that when the second suit was filed, it cannot be said to be urgent filing of the suit for injunction, as the first suit was filed in the month of October, 2018 and there was an ex- parte ad interim injunction vide order dated 29.10.2018 and thereafter plaintiff withdrew the said first suit on 27.07.2019 with liberty to file a fresh suit as per the Commercial Courts Act and the second suit came to be filed on 31.08.2019 after period of one month of the withdrawal of first suit. Therefore the case on behalf of the plaintiff that when the second suit was filed, it was urgently filed therefore, the additional documents sought to be relied upon other than the invoices were not filed as the same were voluminous cannot be accepted. And therefore as such Order XI Rule 1 (4) shall not be applicable, though the application was filed within thirty days of filing of the second suit. While seeking leave of the court to rely on documents, which were in his power, possession, control or custody and not disclosed along with plaint or within the extended period set out in Order XI Rule 1 (4), the plaintiff has to establish the reasonable cause for non disclosure along with plaint. 8.5 In view of the facts and circumstances narrated hereinabove and in view of the filing of the first suit in the month of October, 2018; the ex-parte ad interim injunction order in favour of the plaintiff dated 29.10.2018; withdrawal of the first suit on 27.07.2019 and subsequently the filing of the second suit on 31.08.2019, non filing of the additional documents other than the invoices on the ground of they being voluminous cannot be said to be a reasonable cause for non disclosure/filing along with plaint. There was sufficient time gap between the filing of the first suit and filing of the second suit i.e. approximately 10 months and therefore when the second suit was filed the plaintiff was having sufficient time after filing of the first suit, to file the additional documents other than the invoices at the time when the second suit was filed. Therefore as such, both the courts below have rightly not permitted the plaintiff to rely upon the documents, other than the invoices as additional documents in exercise of the powers under Order XI Rule 1 (4) read with Order XI Rule 1 (5). 9. In view of the above and for the reasons stated above, the plaintiff can be permitted to rely on the documents in the form of invoices as mentioned in the application as additional documents. However, such production shall not affect the outcome of interim injunction application submitted under Order XXXIX Rule 1 of the CPC, which as such is reported to be kept for orders.
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8. Having considered the statutory provisions in detail, the order passed by the learned Commercial Court, confirmed by the High Court, rejecting the application of the plaintiff for leave to rely on the additional documents is required to be tested and considered.8.1 It emerges from the record that the first suit was filed by the plaintiff in the month of October, 2018, bearing TM No.236 of 2018, restraining the defendant from infringing and passing-off plaintiffs Trade Marks. That an ex-parte interim injunction was passed in favour of the plaintiff by order dated 29.10.2018. It appears having realized and found that the earlier suit was not in consonance with the provisions of the Commercial Courts Act, the plaintiff withdrew the said suit being TM No.236 of 2018 on 27.07.2019 with liberty to file a fresh suit as per the Commercial Courts Act, 2015. Therefore, the second suit was filed on 31.08.2019 and within a period of thirty days from filing of the second suit the appellant herein – original plaintiff preferred the present application seeking leave of the court to file additional documents. In the application, it was specifically mentioned that so far as the invoices are concerned, the same were not in its possession at the time of the filing of the plaint and so far as the other documents are concerned they were not filed due to they being voluminous. Therefore, so far as the invoices sought to be relied on/produced as additional documents ought to have been permitted to be relied on/produced as it was specifically asserted that they were not in his possession at the time of filing of the plaint/suit.8.2 The submissions on behalf of the defendant that the cause shown for non production was an afterthought cannot be accepted for the simple reason that the application was filed within a period of thirty days from the date of filing of the second suit and at the time when the application for interim injunction under Order XXXIX Rule 1 was not fully heard and kept for orders.8.3 Even the reason given by the learned Commercial Court that the invoices being suspicious and therefore not granting leave to produce the said invoices cannot be accepted. At the stage of granting leave to place on record additional documents the court is not required to consider the genuineness of the documents/additional documents, the stage at which genuineness of the documents to be considered during the trial and/or even at the stage of deciding the application under Order XXXIX Rule 1 that too while considering prima facie case.Therefore, the learned Commercial Court ought to have granted leave to the plaintiff to rely on/produce the invoices as mentioned in the application as additional documents.8.4 Now, so far as the other documents sought to be relied on/produced as additional documents other than the invoices are concerned the same stands on different footing. It is not disputed and in fact it was specifically admitted and so stated in the application that those additional documents other than the invoices were in their possession but not produced being voluminous and that the suit was filed urgently. However, it is to be noted that when the second suit was filed, it cannot be said to be urgent filing of the suit for injunction, as the first suit was filed in the month of October, 2018 and there was an ex- parte ad interim injunction vide order dated 29.10.2018 and thereafter plaintiff withdrew the said first suit on 27.07.2019 with liberty to file a fresh suit as per the Commercial Courts Act and the second suit came to be filed on 31.08.2019 after period of one month of the withdrawal of first suit. Therefore the case on behalf of the plaintiff that when the second suit was filed, it was urgently filed therefore, the additional documents sought to be relied upon other than the invoices were not filed as the same were voluminous cannot be accepted. And therefore as such Order XI Rule 1 (4) shall not be applicable, though the application was filed within thirty days of filing of the second suit. While seeking leave of the court to rely on documents, which were in his power, possession, control or custody and not disclosed along with plaint or within the extended period set out in Order XI Rule 1 (4), the plaintiff has to establish the reasonable cause for non disclosure along with plaint.8.5 In view of the facts and circumstances narrated hereinabove and in view of the filing of the first suit in the month of October, 2018; the ex-parte ad interim injunction order in favour of the plaintiff dated 29.10.2018; withdrawal of the first suit on 27.07.2019 and subsequently the filing of the second suit on 31.08.2019, non filing of the additional documents other than the invoices on the ground of they being voluminous cannot be said to be a reasonable cause for non disclosure/filing along with plaint. There was sufficient time gap between the filing of the first suit and filing of the second suit i.e. approximately 10 months and therefore when the second suit was filed the plaintiff was having sufficient time after filing of the first suit, to file the additional documents other than the invoices at the time when the second suit was filed. Therefore as such, both the courts below have rightly not permitted the plaintiff to rely upon the documents, other than the invoices as additional documents in exercise of the powers under Order XI Rule 1 (4) read with Order XI Rule 1 (5).9. In view of the above and for the reasons stated above, the plaintiff can be permitted to rely on the documents in the form of invoices as mentioned in the application as additional documents. However, such production shall not affect the outcome of interim injunction application submitted under Order XXXIX Rule 1 of the CPC, which as such is reported to be kept for orders.
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Gauri Shankar Vs. Rakesh Kumar | of Kanji Manji v. Trustee of Port of Bombay, AIR 1963 SC 468 ; H.C. Pandey v. G.C. Paul, 1989(1) R.C.R.(Rent) 493 : AIR 1989 SC 1470 ; and Harish Tandon v. Additional District Magistrate, Allahabad, AIR 1995 SC 676 , opined that notice of surrender of tenancy given by one of the co-tenants and a decree of possession of the tenanted premises passed on that basis will bind the other. The first appellate court found that the tenancy surrendered by one of the joint tenants, even if without the consent of the other, would bind the other joint tenant.3. Aggrieved, the Appellant filed a second appeal before the High Court of Delhi at New Delhi being RSA 146/2005. By the impugned judgment dated 02.12.2013, the second appeal was dismissed by the learned Single Judge on the sole ground that the question as to whether the tenancy rights could be surrendered by one of the joint-tenants without the consent or concurrence of the other is a question of fact and not a question of law much less a substantial question of law. The Appellant filed a review/recall application against the aforementioned impugned judgment before the High Court, which was rejected on 22.08.2014. The Appellant has challenged both these judgments of the High Court in the present appeals.4. The grievance of the Appellant is that the Appellant had raised substantial questions of law as articulated in the Memo of Second Appeal, in paragraph 8(K). The main grievance of the Appellant was that the Respondent No. 1 - joint-tenant had surrendered the entire tenancy rights in the suit shop without the consent or knowledge of the Appellant, in a deceitful and fraudulent manner. In that, the surrender of the tenancy was unilateral, unauthorized and collusive between the landlady who is the mother of Respondent No. 1 and the new tenant inducted in the suit shop (original defendant No. 3 before the Trial Court) who was none other than the father of Respondent No. 1. According to the Appellant, in the present case, the act of surrender of joint-tenancy by the Respondent No. 1 was a subterfuge and fraud played so as to defeat the rights of the Appellant in the suit shop. Further, the first appellate Court, without dealing with the finding of fact recorded by the trial court on this aspect, reversed the well considered view taken by the trial court. The first appellate court merely relied upon the decisions which could be distinguished and not relevant to the specific plea taken by the Appellant. This grievance made by the Appellant has been completely glossed over by the learned single Judge of the High Court. The High Court proceeded to reject the second appeal without addressing the real issues, by merely stating that the fact as to whether the tenancy rights could be surrendered by one of the partners is a question of fact.5. We have heard the learned counsel for the parties. With their able assistance, we have perused the relevant records and the judgments impugned in the present appeals. We agree with the Appellant that the learned single Judge of the High Court has failed to refer to the substantial questions of law formulated by the Appellant in the Memo of Appeal in Paragraph 8(K). Further, the specific plea taken by the Appellant, that the alleged surrender of joint tenancy by Respondent No. 1 was a deceitful and fraudulent act not binding on the Appellant nor could impact the joint tenancy in respect of the suit shop, has not been examined by the High Court. The material facts to establish that plea have been brought on record by the Appellant and duly noticed by the trial court. However, the efficacy thereof has not been considered either by the first appellate Court or the High Court. The High Court was obliged to examine the aforementioned pleas taken by the Appellant including that the decisions of this Court relied upon by the first appellate Court to answer the issue against the Appellant were inapplicable to the fact situation of the present case and could be distinguished.6. As a result, we find merit in the argument of the Appellant that the parties be relegated before the High Court for a fresh consideration of the second appeal on its own merit in accordance with law and more so, the substantial questions of law formulated by the Appellant which are as under:-"i. Whether the tenancy of Respondent No. 1 and 2 as created w.e.f. 01.09.1975 in respect of Suit premises No. 47, UB, Jawahar Nagar, Delhi - 11006 jointly in their name can be said to be joint tenancy as contemplated in the judgment AIR 1989 SC 1470 "H.C. Pandey v. G.C. Paul"; which were passed in the context of joint tenancy conferred on the body of the legal heir of deceased or not?ii. Whether the Ld. Appellate Court was duty bound to address all issues and give finding therein after re-appraisal of the facts and was not competent to uphold the finding summarily as sought to be done by the judgment dated 03.02.2005 or not?iii. Whether the Ld. Appellate Court was duty bound to deal with other issues except Issue No. 6?iv. Whether the Judgment/Decree of the Ld. Appellate Court dated 03.02.2005 was perverse and in breach of its jurisdiction as the appellate court by not giving independent finding passed on re-appraisal of pleading and evidence on record?v. Whether the Ld. Appellate Court upholding other issues ought to have passed such further direction for passing of the preliminary decree of rendition of account to its logical end as appointment of Local Commissioner and its terms set lapsed by then or not?"7. We may not be understood to have formulated the above noted questions while remitting the second appeal. It will be open to the High Court to reformulate the substantial questions of law or permit the parties to urge any further substantial questions of law that may require consideration by the High Court. | 1[ds]5. We have heard the learned counsel for the parties. With their able assistance, we have perused the relevant records and the judgments impugned in the present appeals. We agree with the Appellant that the learned single Judge of the High Court has failed to refer to the substantial questions of law formulated by the Appellant in the Memo of Appeal in Paragraph 8(K). Further, the specific plea taken by the Appellant, that the alleged surrender of joint tenancy by Respondent No. 1 was a deceitful and fraudulent act not binding on the Appellant nor could impact the joint tenancy in respect of the suit shop, has not been examined by the High Court. The material facts to establish that plea have been brought on record by the Appellant and duly noticed by the trial court. However, the efficacy thereof has not been considered either by the first appellate Court or the High Court. The High Court was obliged to examine the aforementioned pleas taken by the Appellant including that the decisions of this Court relied upon by the first appellate Court to answer the issue against the Appellant were inapplicable to the fact situation of the present case and could be distinguished.6. As a result, we find merit in the argument of the Appellant that the parties be relegated before the High Court for a fresh consideration of the second appeal on its own merit in accordance with law and more so, the substantial questions of law formulated by the Appellant which are asWhether the tenancy of Respondent No. 1 and 2 as created w.e.f. 01.09.1975 in respect of Suit premises No. 47, UB, Jawahar Nagar, Delhi11006 jointly in their name can be said to be joint tenancy as contemplated in the judgment AIR 1989 SC 1470 "H.C. Pandey v. G.C. Paul"; which were passed in the context of joint tenancy conferred on the body of the legal heir of deceased or not?ii. Whether the Ld. Appellate Court was duty bound to address all issues and give finding therein afterof the facts and was not competent to uphold the finding summarily as sought to be done by the judgment dated 03.02.2005 or not?iii. Whether the Ld. Appellate Court was duty bound to deal with other issues except Issue No. 6?iv. Whether the Judgment/Decree of the Ld. Appellate Court dated 03.02.2005 was perverse and in breach of its jurisdiction as the appellate court by not giving independent finding passed onof pleading and evidence on record?v. Whether the Ld. Appellate Court upholding other issues ought to have passed such further direction for passing of the preliminary decree of rendition of account to its logical end as appointment of Local Commissioner and its terms set lapsed by then orWe may not be understood to have formulated the above noted questions while remitting the second appeal. It will be open to the High Court to reformulate the substantial questions of law or permit the parties to urge any further substantial questions of law that may require consideration by the High Court. | 1 | 1,258 | 560 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
of Kanji Manji v. Trustee of Port of Bombay, AIR 1963 SC 468 ; H.C. Pandey v. G.C. Paul, 1989(1) R.C.R.(Rent) 493 : AIR 1989 SC 1470 ; and Harish Tandon v. Additional District Magistrate, Allahabad, AIR 1995 SC 676 , opined that notice of surrender of tenancy given by one of the co-tenants and a decree of possession of the tenanted premises passed on that basis will bind the other. The first appellate court found that the tenancy surrendered by one of the joint tenants, even if without the consent of the other, would bind the other joint tenant.3. Aggrieved, the Appellant filed a second appeal before the High Court of Delhi at New Delhi being RSA 146/2005. By the impugned judgment dated 02.12.2013, the second appeal was dismissed by the learned Single Judge on the sole ground that the question as to whether the tenancy rights could be surrendered by one of the joint-tenants without the consent or concurrence of the other is a question of fact and not a question of law much less a substantial question of law. The Appellant filed a review/recall application against the aforementioned impugned judgment before the High Court, which was rejected on 22.08.2014. The Appellant has challenged both these judgments of the High Court in the present appeals.4. The grievance of the Appellant is that the Appellant had raised substantial questions of law as articulated in the Memo of Second Appeal, in paragraph 8(K). The main grievance of the Appellant was that the Respondent No. 1 - joint-tenant had surrendered the entire tenancy rights in the suit shop without the consent or knowledge of the Appellant, in a deceitful and fraudulent manner. In that, the surrender of the tenancy was unilateral, unauthorized and collusive between the landlady who is the mother of Respondent No. 1 and the new tenant inducted in the suit shop (original defendant No. 3 before the Trial Court) who was none other than the father of Respondent No. 1. According to the Appellant, in the present case, the act of surrender of joint-tenancy by the Respondent No. 1 was a subterfuge and fraud played so as to defeat the rights of the Appellant in the suit shop. Further, the first appellate Court, without dealing with the finding of fact recorded by the trial court on this aspect, reversed the well considered view taken by the trial court. The first appellate court merely relied upon the decisions which could be distinguished and not relevant to the specific plea taken by the Appellant. This grievance made by the Appellant has been completely glossed over by the learned single Judge of the High Court. The High Court proceeded to reject the second appeal without addressing the real issues, by merely stating that the fact as to whether the tenancy rights could be surrendered by one of the partners is a question of fact.5. We have heard the learned counsel for the parties. With their able assistance, we have perused the relevant records and the judgments impugned in the present appeals. We agree with the Appellant that the learned single Judge of the High Court has failed to refer to the substantial questions of law formulated by the Appellant in the Memo of Appeal in Paragraph 8(K). Further, the specific plea taken by the Appellant, that the alleged surrender of joint tenancy by Respondent No. 1 was a deceitful and fraudulent act not binding on the Appellant nor could impact the joint tenancy in respect of the suit shop, has not been examined by the High Court. The material facts to establish that plea have been brought on record by the Appellant and duly noticed by the trial court. However, the efficacy thereof has not been considered either by the first appellate Court or the High Court. The High Court was obliged to examine the aforementioned pleas taken by the Appellant including that the decisions of this Court relied upon by the first appellate Court to answer the issue against the Appellant were inapplicable to the fact situation of the present case and could be distinguished.6. As a result, we find merit in the argument of the Appellant that the parties be relegated before the High Court for a fresh consideration of the second appeal on its own merit in accordance with law and more so, the substantial questions of law formulated by the Appellant which are as under:-"i. Whether the tenancy of Respondent No. 1 and 2 as created w.e.f. 01.09.1975 in respect of Suit premises No. 47, UB, Jawahar Nagar, Delhi - 11006 jointly in their name can be said to be joint tenancy as contemplated in the judgment AIR 1989 SC 1470 "H.C. Pandey v. G.C. Paul"; which were passed in the context of joint tenancy conferred on the body of the legal heir of deceased or not?ii. Whether the Ld. Appellate Court was duty bound to address all issues and give finding therein after re-appraisal of the facts and was not competent to uphold the finding summarily as sought to be done by the judgment dated 03.02.2005 or not?iii. Whether the Ld. Appellate Court was duty bound to deal with other issues except Issue No. 6?iv. Whether the Judgment/Decree of the Ld. Appellate Court dated 03.02.2005 was perverse and in breach of its jurisdiction as the appellate court by not giving independent finding passed on re-appraisal of pleading and evidence on record?v. Whether the Ld. Appellate Court upholding other issues ought to have passed such further direction for passing of the preliminary decree of rendition of account to its logical end as appointment of Local Commissioner and its terms set lapsed by then or not?"7. We may not be understood to have formulated the above noted questions while remitting the second appeal. It will be open to the High Court to reformulate the substantial questions of law or permit the parties to urge any further substantial questions of law that may require consideration by the High Court.
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### Explanation:
5. We have heard the learned counsel for the parties. With their able assistance, we have perused the relevant records and the judgments impugned in the present appeals. We agree with the Appellant that the learned single Judge of the High Court has failed to refer to the substantial questions of law formulated by the Appellant in the Memo of Appeal in Paragraph 8(K). Further, the specific plea taken by the Appellant, that the alleged surrender of joint tenancy by Respondent No. 1 was a deceitful and fraudulent act not binding on the Appellant nor could impact the joint tenancy in respect of the suit shop, has not been examined by the High Court. The material facts to establish that plea have been brought on record by the Appellant and duly noticed by the trial court. However, the efficacy thereof has not been considered either by the first appellate Court or the High Court. The High Court was obliged to examine the aforementioned pleas taken by the Appellant including that the decisions of this Court relied upon by the first appellate Court to answer the issue against the Appellant were inapplicable to the fact situation of the present case and could be distinguished.6. As a result, we find merit in the argument of the Appellant that the parties be relegated before the High Court for a fresh consideration of the second appeal on its own merit in accordance with law and more so, the substantial questions of law formulated by the Appellant which are asWhether the tenancy of Respondent No. 1 and 2 as created w.e.f. 01.09.1975 in respect of Suit premises No. 47, UB, Jawahar Nagar, Delhi11006 jointly in their name can be said to be joint tenancy as contemplated in the judgment AIR 1989 SC 1470 "H.C. Pandey v. G.C. Paul"; which were passed in the context of joint tenancy conferred on the body of the legal heir of deceased or not?ii. Whether the Ld. Appellate Court was duty bound to address all issues and give finding therein afterof the facts and was not competent to uphold the finding summarily as sought to be done by the judgment dated 03.02.2005 or not?iii. Whether the Ld. Appellate Court was duty bound to deal with other issues except Issue No. 6?iv. Whether the Judgment/Decree of the Ld. Appellate Court dated 03.02.2005 was perverse and in breach of its jurisdiction as the appellate court by not giving independent finding passed onof pleading and evidence on record?v. Whether the Ld. Appellate Court upholding other issues ought to have passed such further direction for passing of the preliminary decree of rendition of account to its logical end as appointment of Local Commissioner and its terms set lapsed by then orWe may not be understood to have formulated the above noted questions while remitting the second appeal. It will be open to the High Court to reformulate the substantial questions of law or permit the parties to urge any further substantial questions of law that may require consideration by the High Court.
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Lakkireddi Chinna Venkata Reddi Vs. Lakkireddi Lakshmama | If the conduct of the adult coparceners, or the claim made by them is prejudicial to the interest of the, minor the Court will readily presume that it is for his benefit to divide the estate. The conclusion recorded by the Trial Court and the High Court that partition would be for the benefit of the minor was amply supported by evidence. In the circumstances it is unnecessary to express any opinion on the question whether Lakshmama was entitled in her own right to file a suit for a share in the property of the joint family, and for the share of her husband Butchi Tirupati in the estate devised under the will of Venkata Konda Reddy and prosecute it after the death of her son Pulla Reddy.Action by a minor for a decree for partition and separate possession of his share in the family property is not founded on a cause of action personal to him. The right claimed is in property, , and devolves on his death even during minority upon his legal representative. The Court, it is true, will direct. partition only if partition is in the interest of the minor but that limitation arises not because of any peculiarity in the estate of the minor but is imposed for the protection of his interest. The effect of the decision of the Court granting a: decree for partition, in a suit instituted by a minor is not to create a new right which the minor did not possess, but merely to recognize the right which accrued to him when the action was commenced. It is the institution of the suit, subject to the decision of the Court, and not the decree of the Court that brings about the severance. In Kakumanu Peda Subbayyas v. Kakumanu Akkamma ([1959] S. C. R, 1249.), it was held by this Court that a suit filed on behalf of a Hindu minor for partition of, joint family properties does not on the death of the minor during the pendency of the suit abate, and may be continued by his legal representative and decree obtained therein if the Court holds that the institution of the suit was for the benefit of the minor. Death of the minor pulla Reddy during the pendency of the suit had not, therefore, on the view ultimately taken by the Court the effect of terminating the suit which was instituted for partition of the property in suit.5. We may now consider the second question, about the quantum of interest awardable to Lakshmama in the property devised under the will of Venkata Konda Reddy. Lakkireddi Tirupati had three sons, Venkata Konda Reddy, Pedda Tirupelu Reddy and Chinna Tirupelu Reddy. Venkata Konda Reddy executed a will on July 1, 1910 devising in favour of the four sons of his nephew Bala Konda, named, Pedda Venkata, Chinna Venkata, Bala Venkata and Butchi Tirupati (who were born before the date of the will), all his property which he claimed to have received on partition between him and his brothers. Bala Konda instituted on July 2, 1910 suit No. 466 of 1910 in the Court of the District Munsif, Proddatur for division of properties which he claimed were jointly enjoyed by him and his two uncles Venkata Konda Reddy and Chinna Tirupelu Reddy. Under a decree dated June 26, 1911 passed in the suit with the consent of parties the property in suit was divided into five shares one of which was allotted to Bala Konda and the rest was taken in two equal moieties by his two uncles. Venkata Konda Reddy died in 1915 and the property which fell to his share by the compromise decree devolved by virtue of the disposition under his will on the four sons of Bala Konda. It is contended by defendants 2, 3 and 4 that the property devised under the will of Venkata Konda Reddy became by subsequent blending, property of the joint family, and the plaintiffs were not entitled to claim a share larger than the share they had in the joint family property. It may be mentioned that Defendants 3 and 4 were born after the date of Venkata Kondas will, and they were not devices under that will.Law relating to blending of separate property with joint family property is well settled. Property separate or self- acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation. It is true that Butchi Tirupati who was one of the devisees under the will of Venkata Konda Reddy was a member of the joint family consisting of himself, his five brothers and his father Bala Konda. It is also true that there is no clear evidence as to how the property was dealt with, nor, as to the appropriation of the income thereof, But there is no evidence on the record to show that by any conscious art or exercise of volition Butchi Tirupati surrendered his interest in the property devised in his favour under the will of Venkata Konda Reddy so as to blend it with the joint family property. In the absence of any such evidence, the High Court was, in our judgment, right in holding that Lakshmama was entitled to a fourth share in the property devised under the will of Venkata Konda Reddy.6. | 0[ds]In the circumstances it is unnecessary to express any opinion on the question whether Lakshmama was entitled in her own right to file a suit for a share in the property of the joint family, and for the share of her husband Butchi Tirupati in the estate devised under the will of Venkata Konda Reddy and prosecute it after the death of her son Pulla Reddy.Action by a minor for a decree for partition and separate possession of his share in the family property is not founded on a cause of action personal to him. The right claimed is in property, , and devolves on his death even during minority upon his legal representative. The Court, it is true, will direct. partition only if partition is in the interest of the minor but that limitation arises not because of any peculiarity in the estate of the minor but is imposed for the protection of his interest. The effect of the decision of the Court granting a: decree for partition, in a suit instituted by a minor is not to create a new right which the minor did not possess, but merely to recognize the right which accrued to him when the action was commenced. It is the institution of the suit, subject to the decision of the Court, and not the decree of the Court that brings about the severance. In Kakumanu Peda Subbayyas v. Kakumanu Akkamma ([1959] S. C. R, 1249.), it was held by this Court that a suit filed on behalf of a Hindu minor for partition of, joint family properties does not on the death of the minor during the pendency of the suit abate, and may be continued by his legal representative and decree obtained therein if the Court holds that the institution of the suit was for the benefit of the minor. Death of the minor pulla Reddy during the pendency of the suit had not, therefore, on the view ultimately taken by the Court the effect of terminating the suit which was instituted for partition of the property inmay now consider the second question, about the quantum of interest awardable to Lakshmama in the property devised under the will of Venkata Konda Reddy. Lakkireddi Tirupati had three sons, Venkata Konda Reddy, Pedda Tirupelu Reddy and Chinna Tirupelu Reddy. Venkata Konda Reddy executed a will on July 1, 1910 devising in favour of the four sons of his nephew Bala Konda, named, Pedda Venkata, Chinna Venkata, Bala Venkata and Butchi Tirupati (who were born before the date of the will), all his property which he claimed to have received on partition between him and his brothers. Bala Konda instituted on July 2, 1910 suit No. 466 of 1910 in the Court of the District Munsif, Proddatur for division of properties which he claimed were jointly enjoyed by him and his two uncles Venkata Konda Reddy and Chinna Tirupelu Reddy. Under a decree dated June 26, 1911 passed in the suit with the consent of parties the property in suit was divided into five shares one of which was allotted to Bala Konda and the rest was taken in two equal moieties by his two uncles. Venkata Konda Reddy died in 1915 and the property which fell to his share by the compromise decree devolved by virtue of the disposition under his will on the four sons of Bala Konda. It is contended by defendants 2, 3 and 4 that the property devised under the will of Venkata Konda Reddy became by subsequent blending, property of the joint family, and the plaintiffs were not entitled to claim a share larger than the share they had in the joint family property. It may be mentioned that Defendants 3 and 4 were born after the date of Venkata Kondas will, and they were not devices under that will.Law relating to blending of separate property with joint family property is well settled. Property separate or self- acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation. It is true that Butchi Tirupati who was one of the devisees under the will of Venkata Konda Reddy was a member of the joint family consisting of himself, his five brothers and his father Bala Konda. It is also true that there is no clear evidence as to how the property was dealt with, nor, as to the appropriation of the income thereof, But there is no evidence on the record to show that by any conscious art or exercise of volition Butchi Tirupati surrendered his interest in the property devised in his favour under the will of Venkata Konda Reddy so as to blend it with the joint family property. In the absence of any such evidence, the High Court was, in our judgment, right in holding that Lakshmama was entitled to a fourth share in the property devised under the will of Venkata Konda Reddy. | 0 | 2,496 | 1,010 | ### Instruction:
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If the conduct of the adult coparceners, or the claim made by them is prejudicial to the interest of the, minor the Court will readily presume that it is for his benefit to divide the estate. The conclusion recorded by the Trial Court and the High Court that partition would be for the benefit of the minor was amply supported by evidence. In the circumstances it is unnecessary to express any opinion on the question whether Lakshmama was entitled in her own right to file a suit for a share in the property of the joint family, and for the share of her husband Butchi Tirupati in the estate devised under the will of Venkata Konda Reddy and prosecute it after the death of her son Pulla Reddy.Action by a minor for a decree for partition and separate possession of his share in the family property is not founded on a cause of action personal to him. The right claimed is in property, , and devolves on his death even during minority upon his legal representative. The Court, it is true, will direct. partition only if partition is in the interest of the minor but that limitation arises not because of any peculiarity in the estate of the minor but is imposed for the protection of his interest. The effect of the decision of the Court granting a: decree for partition, in a suit instituted by a minor is not to create a new right which the minor did not possess, but merely to recognize the right which accrued to him when the action was commenced. It is the institution of the suit, subject to the decision of the Court, and not the decree of the Court that brings about the severance. In Kakumanu Peda Subbayyas v. Kakumanu Akkamma ([1959] S. C. R, 1249.), it was held by this Court that a suit filed on behalf of a Hindu minor for partition of, joint family properties does not on the death of the minor during the pendency of the suit abate, and may be continued by his legal representative and decree obtained therein if the Court holds that the institution of the suit was for the benefit of the minor. Death of the minor pulla Reddy during the pendency of the suit had not, therefore, on the view ultimately taken by the Court the effect of terminating the suit which was instituted for partition of the property in suit.5. We may now consider the second question, about the quantum of interest awardable to Lakshmama in the property devised under the will of Venkata Konda Reddy. Lakkireddi Tirupati had three sons, Venkata Konda Reddy, Pedda Tirupelu Reddy and Chinna Tirupelu Reddy. Venkata Konda Reddy executed a will on July 1, 1910 devising in favour of the four sons of his nephew Bala Konda, named, Pedda Venkata, Chinna Venkata, Bala Venkata and Butchi Tirupati (who were born before the date of the will), all his property which he claimed to have received on partition between him and his brothers. Bala Konda instituted on July 2, 1910 suit No. 466 of 1910 in the Court of the District Munsif, Proddatur for division of properties which he claimed were jointly enjoyed by him and his two uncles Venkata Konda Reddy and Chinna Tirupelu Reddy. Under a decree dated June 26, 1911 passed in the suit with the consent of parties the property in suit was divided into five shares one of which was allotted to Bala Konda and the rest was taken in two equal moieties by his two uncles. Venkata Konda Reddy died in 1915 and the property which fell to his share by the compromise decree devolved by virtue of the disposition under his will on the four sons of Bala Konda. It is contended by defendants 2, 3 and 4 that the property devised under the will of Venkata Konda Reddy became by subsequent blending, property of the joint family, and the plaintiffs were not entitled to claim a share larger than the share they had in the joint family property. It may be mentioned that Defendants 3 and 4 were born after the date of Venkata Kondas will, and they were not devices under that will.Law relating to blending of separate property with joint family property is well settled. Property separate or self- acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation. It is true that Butchi Tirupati who was one of the devisees under the will of Venkata Konda Reddy was a member of the joint family consisting of himself, his five brothers and his father Bala Konda. It is also true that there is no clear evidence as to how the property was dealt with, nor, as to the appropriation of the income thereof, But there is no evidence on the record to show that by any conscious art or exercise of volition Butchi Tirupati surrendered his interest in the property devised in his favour under the will of Venkata Konda Reddy so as to blend it with the joint family property. In the absence of any such evidence, the High Court was, in our judgment, right in holding that Lakshmama was entitled to a fourth share in the property devised under the will of Venkata Konda Reddy.6.
### Response:
0
### Explanation:
In the circumstances it is unnecessary to express any opinion on the question whether Lakshmama was entitled in her own right to file a suit for a share in the property of the joint family, and for the share of her husband Butchi Tirupati in the estate devised under the will of Venkata Konda Reddy and prosecute it after the death of her son Pulla Reddy.Action by a minor for a decree for partition and separate possession of his share in the family property is not founded on a cause of action personal to him. The right claimed is in property, , and devolves on his death even during minority upon his legal representative. The Court, it is true, will direct. partition only if partition is in the interest of the minor but that limitation arises not because of any peculiarity in the estate of the minor but is imposed for the protection of his interest. The effect of the decision of the Court granting a: decree for partition, in a suit instituted by a minor is not to create a new right which the minor did not possess, but merely to recognize the right which accrued to him when the action was commenced. It is the institution of the suit, subject to the decision of the Court, and not the decree of the Court that brings about the severance. In Kakumanu Peda Subbayyas v. Kakumanu Akkamma ([1959] S. C. R, 1249.), it was held by this Court that a suit filed on behalf of a Hindu minor for partition of, joint family properties does not on the death of the minor during the pendency of the suit abate, and may be continued by his legal representative and decree obtained therein if the Court holds that the institution of the suit was for the benefit of the minor. Death of the minor pulla Reddy during the pendency of the suit had not, therefore, on the view ultimately taken by the Court the effect of terminating the suit which was instituted for partition of the property inmay now consider the second question, about the quantum of interest awardable to Lakshmama in the property devised under the will of Venkata Konda Reddy. Lakkireddi Tirupati had three sons, Venkata Konda Reddy, Pedda Tirupelu Reddy and Chinna Tirupelu Reddy. Venkata Konda Reddy executed a will on July 1, 1910 devising in favour of the four sons of his nephew Bala Konda, named, Pedda Venkata, Chinna Venkata, Bala Venkata and Butchi Tirupati (who were born before the date of the will), all his property which he claimed to have received on partition between him and his brothers. Bala Konda instituted on July 2, 1910 suit No. 466 of 1910 in the Court of the District Munsif, Proddatur for division of properties which he claimed were jointly enjoyed by him and his two uncles Venkata Konda Reddy and Chinna Tirupelu Reddy. Under a decree dated June 26, 1911 passed in the suit with the consent of parties the property in suit was divided into five shares one of which was allotted to Bala Konda and the rest was taken in two equal moieties by his two uncles. Venkata Konda Reddy died in 1915 and the property which fell to his share by the compromise decree devolved by virtue of the disposition under his will on the four sons of Bala Konda. It is contended by defendants 2, 3 and 4 that the property devised under the will of Venkata Konda Reddy became by subsequent blending, property of the joint family, and the plaintiffs were not entitled to claim a share larger than the share they had in the joint family property. It may be mentioned that Defendants 3 and 4 were born after the date of Venkata Kondas will, and they were not devices under that will.Law relating to blending of separate property with joint family property is well settled. Property separate or self- acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation. It is true that Butchi Tirupati who was one of the devisees under the will of Venkata Konda Reddy was a member of the joint family consisting of himself, his five brothers and his father Bala Konda. It is also true that there is no clear evidence as to how the property was dealt with, nor, as to the appropriation of the income thereof, But there is no evidence on the record to show that by any conscious art or exercise of volition Butchi Tirupati surrendered his interest in the property devised in his favour under the will of Venkata Konda Reddy so as to blend it with the joint family property. In the absence of any such evidence, the High Court was, in our judgment, right in holding that Lakshmama was entitled to a fourth share in the property devised under the will of Venkata Konda Reddy.
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Daffadar Bhagat Singh and Sons Vs. Joint Excise and Taxation Commissioner, Punjab, Patiala and Another | the terms of the contract between the petitioner and the army authorities clearly indicate that the meat could be in a dressed form or could be on hoofs. The goats or sheep (meet) would be supplied by the petitioner, and transported by the army to such destinations as it desired, and the petitioner was paid the price on the basis of the weight of the material supplied. The sheep or goats were not valued as such, but the value was calculated on the basis of the weight.9. That the contract between the petitioner and the army authorities clearly indicated that it related to the supply of meat, and it was for the army authorities to decide whether to receive the same in the dressed form or on hoofs. Of course, when the supply was made on hoofs, for the calculation of value, 50 per cent of the weight of the animal was considered to be dressed meat, and paid for accordingly."4. In answer to the allegations made in these two paragraphs, the counter-affidavit filed on behalf of the respondents, the Joint Excise and Taxation Commissioner, Punjab, Patiala, and the State of Punjab, stated that the terms of the contract between the dealer and the army authorities were not relevant and that the goods supplied were taxable.5. In the High Court, before the single Judge as also the Division Bench, two contentions were raised on behalf of the appellants before us : First, that even assuming "meat on hoof" meant live sheep and goats, no sales tax would still be payable as the definition of "goods" in section 2(e) of the Act did not include animals and, secondly, that what was sold under the contract was really meat and not live sheep and goats. The trail court negatived both the contentions. As the first contention raised in the High Court was given up before us by Mr. S. T. Desai appearing for the appellants, we are concerned only with the other contention that what was sold under the contract was meat, not live animals. On this question this is what the learned single Judge held :"The question that arises for decision is whether meat on hoofs as termed by the petitioner is exempt from the payment of sales tax. Meat is made or comes into being after the animal is slaughtered and till then the meat of the animal is encased in its natural packing, the skin, and is preserved in as such till the animal is slaughtered. Meat sold in tins, bottles or cartons is not exempt from the payment of sales tax under entry No. 18 in Schedule B to the Act, which leads to the conclusion that meat in preserved form is not exempt. Meat on hoofs is also preserved meat, the preservation being in the natural carton consisting of the skin of the animal. I, therefore, hold that meat on hoofs is not exempt from the levy of sales tax under entry No. 18 in Schedule B to the Act."The Division Bench hearing the Letters Patent appeal found no reason to differ from the finding of the learned single Judge on this point.6. Before us it was argued, as was done before the High Court, that on a correct reading of the contract between the appellants and the army authorities it would be clear that by meat on hoof what was meant was only the meat content of the animals. This would be clear, it was submitted from the fact that the price paid by the buyer was on the basis of the meat content of the animal, that 50 per cent of the weight of the animal was taken as the amount of dressed meat. It was pointed out that the learned single Judge had noted in his judgment that this position was not disputed.7. We find it difficult to appreciate the view taken by the learned single Judge which has been affirmed by the Division Bench that "meat on hoof is preserved meat, the preservation being the natural carton consisting of the skin of the animal". The skin covering the flesh of the animal preserves its life; to think that the skin is a carton for the flesh, which can be used for food after the animal is slaughtered, in our opinion, goes against commonsense. Counsel for the respondents submitted that "meat on hoof" in army vocabulary meant the live animal. Whether what was sold by the appellants to the army authorities as meat on hoof was really meat, or it was live animals that were sold, would depend on a correct reading of the contract between the parties. The contract was not annexed to the writ petition and the Division Bench of the High Court has observed that it was not shown to the learned Judges at the hearing of the appeal; it is however not clear whether the learned Judges asked for a copy of the contract which the appellants failed to produced. On behalf of the appellants extracts from the contract were handed over to us, but the counsel for the respondents seemed to think that there were other terms in the contract regarding skins, for instance, which have a bearing on what was sold. We are, therefore, not in a position to decided for ourselves what exactly was the contract between the parties. In a way the respondents are also responsible for this state of affairs having taken up the stand in the counter-affidavit filed in the High Court that the terms of the contract were not relevant. As we feel that the question can be answered only on a proper appreciation of the terms of the agreement between the appellants and the army authorities, the case must go back to the High Court for disposal of the matter according to law on a consideration of the relevant contract; the appellants will file copy of the contract, supported by an affidavit, before the hearing of the matter in the High Court. | 1[ds]The trail court negatived both the contentions. As the first contention raised in the High Court was given up before us by Mr. S. T. Desai appearing for the appellants, we are concerned only with the other contention that what was sold under the contract was meat, not live animals.We find it difficult to appreciate the view taken by the learned single Judge which has been affirmed by the Division Bench that "meat on hoof is preserved meat, the preservation being the natural carton consisting of the skin of the animal". The skin covering the flesh of the animal preserves its life; to think that the skin is a carton for the flesh, which can be used for food after the animal is slaughtered, in our opinion, goes against commonsense. Counsel for the respondents submitted that "meat on hoof" in army vocabulary meant the live animal. Whether what was sold by the appellants to the army authorities as meat on hoof was really meat, or it was live animals that were sold, would depend on a correct reading of the contract between the parties. The contract was not annexed to the writ petition and the Division Bench of the High Court has observed that it was not shown to the learned Judges at the hearing of the appeal; it is however not clear whether the learned Judges asked for a copy of the contract which the appellants failed to produced. On behalf of the appellants extracts from the contract were handed over to us, but the counsel for the respondents seemed to think that there were other terms in the contract regarding skins, for instance, which have a bearing on what was sold. We are, therefore, not in a position to decided for ourselves what exactly was the contract between the parties. In a way the respondents are also responsible for this state of affairs having taken up the stand in thefiled in the High Court that the terms of the contract were not relevant. As we feel that the question can be answered only on a proper appreciation of the terms of the agreement between the appellants and the army authorities, the case must go back to the High Court for disposal of the matter according to law on a consideration of the relevant contract; the appellants will file copy of the contract, supported by an affidavit, before the hearing of the matter in the High Court. | 1 | 1,437 | 445 | ### Instruction:
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the terms of the contract between the petitioner and the army authorities clearly indicate that the meat could be in a dressed form or could be on hoofs. The goats or sheep (meet) would be supplied by the petitioner, and transported by the army to such destinations as it desired, and the petitioner was paid the price on the basis of the weight of the material supplied. The sheep or goats were not valued as such, but the value was calculated on the basis of the weight.9. That the contract between the petitioner and the army authorities clearly indicated that it related to the supply of meat, and it was for the army authorities to decide whether to receive the same in the dressed form or on hoofs. Of course, when the supply was made on hoofs, for the calculation of value, 50 per cent of the weight of the animal was considered to be dressed meat, and paid for accordingly."4. In answer to the allegations made in these two paragraphs, the counter-affidavit filed on behalf of the respondents, the Joint Excise and Taxation Commissioner, Punjab, Patiala, and the State of Punjab, stated that the terms of the contract between the dealer and the army authorities were not relevant and that the goods supplied were taxable.5. In the High Court, before the single Judge as also the Division Bench, two contentions were raised on behalf of the appellants before us : First, that even assuming "meat on hoof" meant live sheep and goats, no sales tax would still be payable as the definition of "goods" in section 2(e) of the Act did not include animals and, secondly, that what was sold under the contract was really meat and not live sheep and goats. The trail court negatived both the contentions. As the first contention raised in the High Court was given up before us by Mr. S. T. Desai appearing for the appellants, we are concerned only with the other contention that what was sold under the contract was meat, not live animals. On this question this is what the learned single Judge held :"The question that arises for decision is whether meat on hoofs as termed by the petitioner is exempt from the payment of sales tax. Meat is made or comes into being after the animal is slaughtered and till then the meat of the animal is encased in its natural packing, the skin, and is preserved in as such till the animal is slaughtered. Meat sold in tins, bottles or cartons is not exempt from the payment of sales tax under entry No. 18 in Schedule B to the Act, which leads to the conclusion that meat in preserved form is not exempt. Meat on hoofs is also preserved meat, the preservation being in the natural carton consisting of the skin of the animal. I, therefore, hold that meat on hoofs is not exempt from the levy of sales tax under entry No. 18 in Schedule B to the Act."The Division Bench hearing the Letters Patent appeal found no reason to differ from the finding of the learned single Judge on this point.6. Before us it was argued, as was done before the High Court, that on a correct reading of the contract between the appellants and the army authorities it would be clear that by meat on hoof what was meant was only the meat content of the animals. This would be clear, it was submitted from the fact that the price paid by the buyer was on the basis of the meat content of the animal, that 50 per cent of the weight of the animal was taken as the amount of dressed meat. It was pointed out that the learned single Judge had noted in his judgment that this position was not disputed.7. We find it difficult to appreciate the view taken by the learned single Judge which has been affirmed by the Division Bench that "meat on hoof is preserved meat, the preservation being the natural carton consisting of the skin of the animal". The skin covering the flesh of the animal preserves its life; to think that the skin is a carton for the flesh, which can be used for food after the animal is slaughtered, in our opinion, goes against commonsense. Counsel for the respondents submitted that "meat on hoof" in army vocabulary meant the live animal. Whether what was sold by the appellants to the army authorities as meat on hoof was really meat, or it was live animals that were sold, would depend on a correct reading of the contract between the parties. The contract was not annexed to the writ petition and the Division Bench of the High Court has observed that it was not shown to the learned Judges at the hearing of the appeal; it is however not clear whether the learned Judges asked for a copy of the contract which the appellants failed to produced. On behalf of the appellants extracts from the contract were handed over to us, but the counsel for the respondents seemed to think that there were other terms in the contract regarding skins, for instance, which have a bearing on what was sold. We are, therefore, not in a position to decided for ourselves what exactly was the contract between the parties. In a way the respondents are also responsible for this state of affairs having taken up the stand in the counter-affidavit filed in the High Court that the terms of the contract were not relevant. As we feel that the question can be answered only on a proper appreciation of the terms of the agreement between the appellants and the army authorities, the case must go back to the High Court for disposal of the matter according to law on a consideration of the relevant contract; the appellants will file copy of the contract, supported by an affidavit, before the hearing of the matter in the High Court.
### Response:
1
### Explanation:
The trail court negatived both the contentions. As the first contention raised in the High Court was given up before us by Mr. S. T. Desai appearing for the appellants, we are concerned only with the other contention that what was sold under the contract was meat, not live animals.We find it difficult to appreciate the view taken by the learned single Judge which has been affirmed by the Division Bench that "meat on hoof is preserved meat, the preservation being the natural carton consisting of the skin of the animal". The skin covering the flesh of the animal preserves its life; to think that the skin is a carton for the flesh, which can be used for food after the animal is slaughtered, in our opinion, goes against commonsense. Counsel for the respondents submitted that "meat on hoof" in army vocabulary meant the live animal. Whether what was sold by the appellants to the army authorities as meat on hoof was really meat, or it was live animals that were sold, would depend on a correct reading of the contract between the parties. The contract was not annexed to the writ petition and the Division Bench of the High Court has observed that it was not shown to the learned Judges at the hearing of the appeal; it is however not clear whether the learned Judges asked for a copy of the contract which the appellants failed to produced. On behalf of the appellants extracts from the contract were handed over to us, but the counsel for the respondents seemed to think that there were other terms in the contract regarding skins, for instance, which have a bearing on what was sold. We are, therefore, not in a position to decided for ourselves what exactly was the contract between the parties. In a way the respondents are also responsible for this state of affairs having taken up the stand in thefiled in the High Court that the terms of the contract were not relevant. As we feel that the question can be answered only on a proper appreciation of the terms of the agreement between the appellants and the army authorities, the case must go back to the High Court for disposal of the matter according to law on a consideration of the relevant contract; the appellants will file copy of the contract, supported by an affidavit, before the hearing of the matter in the High Court.
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Jupudi Kesava Rao Vs. Pulavarthi Venkata Subbarao And Others | the original instrument itself or secondary evidence of its contents has in fact been admitted, that admission may not be called in question in the same suit, on the ground that the instrument was not duly stamped".In this view, they held that the terms of the deed of gift could be considered23. With all respect to the learned Judges it appears to us that both the premises of the last sentence of the above quotation and the conclusion based on the same are incorrect. Neither under the decision of the Judicial Committee nor the express words of Section 34 of the Stamp Act of 1879 mentioned in that judgment (present Section 36) allow the leading of secondary evidence of the contents of an insufficiently stamped document.24. As we have expressed our view already Section 35 imposed a bar on the reception of any but the original instrument and forbade the reception of secondary evidence. Section 36 only lifted that bar in the case of an original unstamped or insufficiently stamped document to which no exception as to admissibility was taken at the first stage. It did not create any exemption in the case of secondary evidence which a copy would undoubtedly be.In the case before the Judicial Committee the copy was one other than the final draft of the original document which had been lost through no fault on the part of the person intending to prove it and yet it was held that the Stamp Act ruled out its admissibility in evidence.25. For the same reason we must hold that the dictum in Satyavati v. Pallayya, AIR l937 Mad 431 at p. 432 that"Section 36 will also apply when secondary evidence of an instrument not duly stamped had been wrongly admitted". is not good law.26. Learned counsel for the appellant also relied on the decision in Ponnuswami v. Kailasam, AIR 1947 Mad 422 . In this case a suit was filed for recovery of two loans which were evidenced as two documents described as hand letters which were admittedly unstamped. Before the trial stamp duty and penalty was levied by the Court on the footing that they were bonds. The defendant admitted the execution of the two documents but pleaded that in substitution of his liability under them he had executed a promissory note and had made payments towards the same leaving a balance of Rs. 40/- only payable on the loan. Neither party let in any evidence. The defendant raised the only contention that-the suit was not sustainable on the two documents because they are inadmissible in evidence for any purpose. The learned Judge in revision took the view that it was not necessary for him to decide as to the exact nature of the two documents to determine whether they were admissible in evidence but he went on to add:"Assuming that these two documents should not have been legally, admitted in evidence, nevertheless is contended for the petitioner .......that as the defendant had admitted the execution of the documents and had only pleaded a substitution of liability by the execution another promissory note and a partial discharge towards it there was no necessity for the plaintiff to adduce proof of his claim by seeking to get the two documents admitted in evidence. In other words the plaintiff will be entitled to make out the plea set up by him in defence".We do not think this judgment helps the appellant. If a suit is based on a document which is admittedly unstamped the insufficiency of the stamp is cured by the payment of penalty. The learned Judge never meant to lay down, as is contended for by Mr. Sen, that the defect of insufficiency of stamp is cured by the admission of execution of the document. The learned Judge of the Madras High Court relied on an earlier decision of that Court in Alimane Sahiba v. Subbarayudu, AIR 1932 Mad 963 wherein a suit had been filed on a promissory note which bore a stamp paper but the same was not cancelled. The defendant admitted the execution of the promissory note sued on but pleaded discharge. Subsequently at the stage of the argument the defendant raised a legal objection to the maintainability of the suit on the ground that the stamp affixed to the promissory note had not been cancelled as required by Section 12 of the Stamp Act and contended that the promissory note should accordingly be treated as unstamped for any purpose. In Alimane Sahibas case, AIR 1932 Mad 693 (supra) the learned Judge stated in clear terms that:"Under the provisions of Section 12 (of the Stamp Act) therefore it must be taken that this promissory note was not duly stamped and accordingly if any question arose as to its admissibility in evidence the same may have to be held to be inadmissible".The learned Judge however took the view that as facts admitted need not be proved the circumstance that the promissory note was not admissible in evidence is immaterial for the purpose of this case. No doubt the learned Judge added (see at p. 696):"How when once this document has been admitted in evidence and marked as an exhibit then having regard to the provisions of Section 36, Stamp Act, its admissibility could not be re-opened on the ground of the document not having been duly stamped. That position being clear under the provisions of Section 30, Stamp Act, the whole discussion would thus seem to be entirely unnecessary and for no purpose, so far as the facts of this case are concerned".It was wholly unnecessary, as was pointed out by the learned judge himself, to consider the question of admissibility under Section 36 of the Act. His decision really rested on the conclusion that a fact which is admitted did not require proof.27. The case is not an authority for the proposition that secondary evidence of a document is to be treated on the same footing as an unstamped or insufficiently samped original document. | 0[ds]13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. Instrument is defined in Section 2 (14) as including every document by which any right or liability is, or purports to be created transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.14. If Section 35 only deals with original instruments and not copies Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words "an instrument" in Section 36 must have the same meaning as that in Section 35. The legislature only relented from the strict provisions of Section 35 in cases where original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding. In other words, although the objection is based on the insufficiency of the stamp affixed to the document, a party who has a right to object to the reception of it must do so when the document is first tendered. Once the time for raising objection to the admission of the documentary evidence is passed, no objection based on the same ground can be raised at a later stage. But this in no way extends the applicability of Sec. 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped.15. The above is our view on the question of admissibility of secondary evidence of a document which is unstamped or insufficiently stamped, as if the matter were res integra, It may be noted however that the course of decisions in India in the Indian High Courts, barring one or two exceptions, have consistently taken the same view.With all respect to the learned Judges it appears to us that both the premises of the last sentence of the above quotation and the conclusion based on the same are incorrect. Neither under the decision of the Judicial Committee nor the express words of Section 34 of the Stamp Act of 1879 mentioned in that judgment (present Section 36) allow the leading of secondary evidence of the contents of an insufficiently stamped document.24. As we have expressed our view already Section 35 imposed a bar on the reception of any but the original instrument and forbade the reception of secondary evidence. Section 36 only lifted that bar in the case of an original unstamped or insufficiently stamped document to which no exception as to admissibility was taken at the first stage. It did not create any exemption in the case of secondary evidence which a copy would undoubtedly be.In the case before the Judicial Committee the copy was one other than the final draft of the original document which had been lost through no fault on the part of the person intending to prove it and yet it was held that the Stamp Act ruled out its admissibility indo not think this judgment helps the appellant. If a suit is based on a document which is admittedly unstamped the insufficiency of the stamp is cured by the payment of penalty. The learned Judge never meant to lay down, as is contended for by Mr. Sen, that the defect of insufficiency of stamp is cured by the admission of execution of the document. The learned Judge of the Madras High Court relied on an earlier decision of that Court in Alimane Sahiba v. Subbarayudu, AIR 1932 Mad 963 wherein a suit had been filed on a promissory note which bore a stamp paper but the same was not cancelled. The defendant admitted the execution of the promissory note sued on but pleaded discharge. Subsequently at the stage of the argument the defendant raised a legal objection to the maintainability of the suit on the ground that the stamp affixed to the promissory note had not been cancelled as required by Section 12 of the Stamp Act and contended that the promissory note should accordingly be treated as unstamped for anywas wholly unnecessary, as was pointed out by the learned judge himself, to consider the question of admissibility under Section 36 of the Act. His decision really rested on the conclusion that a fact which is admitted did not require proof.27. The case is not an authority for the proposition that secondary evidence of a document is to be treated on the same footing as an unstamped or insufficiently samped original document.We find ourselves unable to accept the submissions made on behalf of the appellant. The Indian Evidence Act which was enacted in 1872 consolidates, defines and amends the law of evidence. By various Chapters it deals with matters as to how facts are to be proved and which facts need not be proved. Section 59 of the Act lays down that all facts except the contents of documents may be proved by oral evidence. Documentary evidence is dealt with in Chapter V and Section 61 provides that thecontents of the document may be proved either by primary evidence or secondary evidence. Under Section 62 primary evidence means the document itself produced for inspection of the Court. Section 63 shows the different kinds of secondary evidence admissible with regard to documents. It includes several kinds of copies as specified in(1) to (3) of the section, counterparts of documents as against the parties who did not execute them in terms of Clause (4) and oral accounts of the contents of a document given by some person who has himself seen it in terms of Clause (5). Under Section 64 documents must be proved by primary evidence except in cases mentioned thereafter. Section 65 allows secondary evidence to be given of the existence, condition or contents of a document in circumstances specified in Clauses (a) to (g) thereof. Under Section 91 when the relevant portion of a contract or of a grant or of any other disposition of property has been reduced to the form of a document, no evidence shall be given in proof of the terms except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.11. As the first Court of appeal recorded the finding that it was the defendants who were responsible for suppression of the original agreement to lease, a finding which was accepted by the High Court, it must be held that no objection to the reception of secondary evidence by way of oral evidence can be raised under the provisions of the Indian Evidence Act.12. The Indian Evidence Act however does not purport to deal with the admissibility of documents in evidence which require to be stamped under the provisions of the Indian Stamp Act. The Stamp Act which is now in force is an Act of 1899 but it had ain a statute of 1879. Chapter IV of the Stamp Act deals with instruments not duly stamped. | 0 | 6,223 | 1,446 | ### Instruction:
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the original instrument itself or secondary evidence of its contents has in fact been admitted, that admission may not be called in question in the same suit, on the ground that the instrument was not duly stamped".In this view, they held that the terms of the deed of gift could be considered23. With all respect to the learned Judges it appears to us that both the premises of the last sentence of the above quotation and the conclusion based on the same are incorrect. Neither under the decision of the Judicial Committee nor the express words of Section 34 of the Stamp Act of 1879 mentioned in that judgment (present Section 36) allow the leading of secondary evidence of the contents of an insufficiently stamped document.24. As we have expressed our view already Section 35 imposed a bar on the reception of any but the original instrument and forbade the reception of secondary evidence. Section 36 only lifted that bar in the case of an original unstamped or insufficiently stamped document to which no exception as to admissibility was taken at the first stage. It did not create any exemption in the case of secondary evidence which a copy would undoubtedly be.In the case before the Judicial Committee the copy was one other than the final draft of the original document which had been lost through no fault on the part of the person intending to prove it and yet it was held that the Stamp Act ruled out its admissibility in evidence.25. For the same reason we must hold that the dictum in Satyavati v. Pallayya, AIR l937 Mad 431 at p. 432 that"Section 36 will also apply when secondary evidence of an instrument not duly stamped had been wrongly admitted". is not good law.26. Learned counsel for the appellant also relied on the decision in Ponnuswami v. Kailasam, AIR 1947 Mad 422 . In this case a suit was filed for recovery of two loans which were evidenced as two documents described as hand letters which were admittedly unstamped. Before the trial stamp duty and penalty was levied by the Court on the footing that they were bonds. The defendant admitted the execution of the two documents but pleaded that in substitution of his liability under them he had executed a promissory note and had made payments towards the same leaving a balance of Rs. 40/- only payable on the loan. Neither party let in any evidence. The defendant raised the only contention that-the suit was not sustainable on the two documents because they are inadmissible in evidence for any purpose. The learned Judge in revision took the view that it was not necessary for him to decide as to the exact nature of the two documents to determine whether they were admissible in evidence but he went on to add:"Assuming that these two documents should not have been legally, admitted in evidence, nevertheless is contended for the petitioner .......that as the defendant had admitted the execution of the documents and had only pleaded a substitution of liability by the execution another promissory note and a partial discharge towards it there was no necessity for the plaintiff to adduce proof of his claim by seeking to get the two documents admitted in evidence. In other words the plaintiff will be entitled to make out the plea set up by him in defence".We do not think this judgment helps the appellant. If a suit is based on a document which is admittedly unstamped the insufficiency of the stamp is cured by the payment of penalty. The learned Judge never meant to lay down, as is contended for by Mr. Sen, that the defect of insufficiency of stamp is cured by the admission of execution of the document. The learned Judge of the Madras High Court relied on an earlier decision of that Court in Alimane Sahiba v. Subbarayudu, AIR 1932 Mad 963 wherein a suit had been filed on a promissory note which bore a stamp paper but the same was not cancelled. The defendant admitted the execution of the promissory note sued on but pleaded discharge. Subsequently at the stage of the argument the defendant raised a legal objection to the maintainability of the suit on the ground that the stamp affixed to the promissory note had not been cancelled as required by Section 12 of the Stamp Act and contended that the promissory note should accordingly be treated as unstamped for any purpose. In Alimane Sahibas case, AIR 1932 Mad 693 (supra) the learned Judge stated in clear terms that:"Under the provisions of Section 12 (of the Stamp Act) therefore it must be taken that this promissory note was not duly stamped and accordingly if any question arose as to its admissibility in evidence the same may have to be held to be inadmissible".The learned Judge however took the view that as facts admitted need not be proved the circumstance that the promissory note was not admissible in evidence is immaterial for the purpose of this case. No doubt the learned Judge added (see at p. 696):"How when once this document has been admitted in evidence and marked as an exhibit then having regard to the provisions of Section 36, Stamp Act, its admissibility could not be re-opened on the ground of the document not having been duly stamped. That position being clear under the provisions of Section 30, Stamp Act, the whole discussion would thus seem to be entirely unnecessary and for no purpose, so far as the facts of this case are concerned".It was wholly unnecessary, as was pointed out by the learned judge himself, to consider the question of admissibility under Section 36 of the Act. His decision really rested on the conclusion that a fact which is admitted did not require proof.27. The case is not an authority for the proposition that secondary evidence of a document is to be treated on the same footing as an unstamped or insufficiently samped original document.
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right to object to the reception of it must do so when the document is first tendered. Once the time for raising objection to the admission of the documentary evidence is passed, no objection based on the same ground can be raised at a later stage. But this in no way extends the applicability of Sec. 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped.15. The above is our view on the question of admissibility of secondary evidence of a document which is unstamped or insufficiently stamped, as if the matter were res integra, It may be noted however that the course of decisions in India in the Indian High Courts, barring one or two exceptions, have consistently taken the same view.With all respect to the learned Judges it appears to us that both the premises of the last sentence of the above quotation and the conclusion based on the same are incorrect. Neither under the decision of the Judicial Committee nor the express words of Section 34 of the Stamp Act of 1879 mentioned in that judgment (present Section 36) allow the leading of secondary evidence of the contents of an insufficiently stamped document.24. As we have expressed our view already Section 35 imposed a bar on the reception of any but the original instrument and forbade the reception of secondary evidence. Section 36 only lifted that bar in the case of an original unstamped or insufficiently stamped document to which no exception as to admissibility was taken at the first stage. It did not create any exemption in the case of secondary evidence which a copy would undoubtedly be.In the case before the Judicial Committee the copy was one other than the final draft of the original document which had been lost through no fault on the part of the person intending to prove it and yet it was held that the Stamp Act ruled out its admissibility indo not think this judgment helps the appellant. If a suit is based on a document which is admittedly unstamped the insufficiency of the stamp is cured by the payment of penalty. The learned Judge never meant to lay down, as is contended for by Mr. Sen, that the defect of insufficiency of stamp is cured by the admission of execution of the document. The learned Judge of the Madras High Court relied on an earlier decision of that Court in Alimane Sahiba v. Subbarayudu, AIR 1932 Mad 963 wherein a suit had been filed on a promissory note which bore a stamp paper but the same was not cancelled. The defendant admitted the execution of the promissory note sued on but pleaded discharge. Subsequently at the stage of the argument the defendant raised a legal objection to the maintainability of the suit on the ground that the stamp affixed to the promissory note had not been cancelled as required by Section 12 of the Stamp Act and contended that the promissory note should accordingly be treated as unstamped for anywas wholly unnecessary, as was pointed out by the learned judge himself, to consider the question of admissibility under Section 36 of the Act. His decision really rested on the conclusion that a fact which is admitted did not require proof.27. The case is not an authority for the proposition that secondary evidence of a document is to be treated on the same footing as an unstamped or insufficiently samped original document.We find ourselves unable to accept the submissions made on behalf of the appellant. The Indian Evidence Act which was enacted in 1872 consolidates, defines and amends the law of evidence. By various Chapters it deals with matters as to how facts are to be proved and which facts need not be proved. Section 59 of the Act lays down that all facts except the contents of documents may be proved by oral evidence. Documentary evidence is dealt with in Chapter V and Section 61 provides that thecontents of the document may be proved either by primary evidence or secondary evidence. Under Section 62 primary evidence means the document itself produced for inspection of the Court. Section 63 shows the different kinds of secondary evidence admissible with regard to documents. It includes several kinds of copies as specified in(1) to (3) of the section, counterparts of documents as against the parties who did not execute them in terms of Clause (4) and oral accounts of the contents of a document given by some person who has himself seen it in terms of Clause (5). Under Section 64 documents must be proved by primary evidence except in cases mentioned thereafter. Section 65 allows secondary evidence to be given of the existence, condition or contents of a document in circumstances specified in Clauses (a) to (g) thereof. Under Section 91 when the relevant portion of a contract or of a grant or of any other disposition of property has been reduced to the form of a document, no evidence shall be given in proof of the terms except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.11. As the first Court of appeal recorded the finding that it was the defendants who were responsible for suppression of the original agreement to lease, a finding which was accepted by the High Court, it must be held that no objection to the reception of secondary evidence by way of oral evidence can be raised under the provisions of the Indian Evidence Act.12. The Indian Evidence Act however does not purport to deal with the admissibility of documents in evidence which require to be stamped under the provisions of the Indian Stamp Act. The Stamp Act which is now in force is an Act of 1899 but it had ain a statute of 1879. Chapter IV of the Stamp Act deals with instruments not duly stamped.
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Pushpapriyadevi And Ors Vs. State Of Maharashtra And Anr | Madhya Pradesh After the passing of the Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, a notification was issued vesting the estate in the State and the appellant was prohibited from cutting timber in exercise of his rights under the contract. Later after some negotiations the appellant agreed to pay an additional sum of Rs. 17, 000 but reserved his right to claim a refund. The State Government rejected the appellants right to cut trees. The appellant thereafter lied a suit claiming specific performance of the contract on the ground that the forest and trees did not vest in the St-ate under the Act and even if they vested the standing timber having been sold to the appellant did not vest in the State and in any event a new contract was completed in February and the appellant was entitled to specific performance. This Court negatived all the pleas and held after considering the earlier decisions that it was too late in the day to contend that the forest and the trees did not vest in the State under the Act. Repelling the contention on behalf of the appellant that under the contract the plaintiff had become owner of the trees as goods, this Court observed that though the trees which were agreed to b e served before sale or under the contract of sale are goods for the purpose of Sale of Goods Act but before they cease to be proprietary rights or interest within the meaning of section 3 and 4(a) ol the Act, they must be felled under the contract. On the facts of the case the Court held that the property in cut timber would only pass to the appellant under the contract at the earliest when the trees were felled. It further added that, as the contract provided that the appellant was entitled to cut teak trees of more than 12" girth it would have to be ascertained which trees fell within the description and till that is ascertained they were not ascertained goods. Thus in order that the property in the goods passes under the Sale of Goods Act, it is necessary that the trees should be felled and ascertained before the relevant date. In the present case we agree with the conclusion arrived at by the High Court that the trees were not felled before 31st March, 1951 and further they were not ascertained as required under the contract for as pointed out the logs had to be checked and passed by State Forest staff by affixing the mark before they can be removed by the appellant. Thus the facts are similar and the decision in the case applies to the present case. Holding that the trees were not felled and that the goods were not ascertained, we find that the title in the goods had not passed to the appellant before 31st March, 1951, the date on which the estate vested in the State.When it is found that the title in the goods had not passed to the appellant, then the provisions of section 6(1) will be attracted and this being a transfer of right in property which is liable to vest in the State after 16th March, 1950, it shall be void from the date of vesting.10. We agree with the finding of the High Court that it is not possible to accept the appellants case that he paid Rs. 35, 000 to the second respondent. The appellant is the brother of the Zamindar, the second respondent. The appellant has not chosen to examine himself as a witness and speak to his payment of Rs. 3 5, 000 to the second respondent. On behalf of the appellant his agent was examined a s P.W. 1. According to him he paid in cash to the respondent a sum of Rs. 35, 000 on 30th September, 1951. The witness was questioned as to whether for making the payment he borrowed the money from second respondent himself. He denied any knowledge about such borrowing. It is most unlikely that any payment of Rs. 35, 000 was made on behalf of the appellant on 30th September, 1951. Without making sure that he would be able to remove timber contracted without any objection from the State, he would not have paid Rs. 35, 000. As pointed out by the High Court P.W. 3 does not state that he in fact received Rs. 35, 000 in cash. There is no material to show that the appellant had such an amount with him. In the correspondence that passed between the appellant and the Government, the appellant did not mention that he had already paid Rs. 35, 000 to the second respondent. In fact. when the Government demanded that he should pay Rs. 35, 000 the appellant paid the amount without any protest. Taking into account the fact that the appellant and the second respondent are brothers, the imminence of the vesting of the entire estate of the second respondent with the State, and the absence of any material to show that the appellant was possessed of the funds, we have no hesitation in agreeing with the finding of the High Court that the appellant would not have paid the amount to the second respondent.Lastly, it was contended that in any event as the Government permitted the appellant to remove the logs on payment of Rs. 35, 000 it should be construed as ratification of the contract entered into by the second respondent and as such the Government is not entitled to collect Rs. 35, 000 as if at all anyone was entitled to the amount it was only the second respondent. We have no hesitation in rejecting this argument for after the vesting of the forest in the Government, the Government under section 6(2) offered to permit the appellant to remove the trees on payment of Rs. 35, 000. Having agreed to the condition and paid Rs. 35, 000 the appellant cannot ask for any refund.11. | 0[ds]To, determine the question as to whether the transaction between the, plaintiff and the second respondent was complete before 31st March, 1951 it is useful to refer to the contract entered into between the parties. Ex. P-19 is the contract and is dated 15th March, 1951. The agreement is designated as Forest Contract and provided that the agreement is for the sale and purchase of forest produce and that it was agreed between the parties in the followingForest Produce sold and purchased under this agreement is the followingUn-Marked (Teak &Miscellaneous) Standing/cut/with fallen trees, situated in the coupe known as Teak trees coupe in the near Hachbodi-Nendwadi Forest Range in the Aheri Estate:-Teak 1000 Teak trees over 4 in girth near Hachbodi-Nendwadi at Rs. 501/-per tree sanctioned by Z. S. Ahiri on 14-3-1951. Clause 3 provided that the contract shall commence on 15th March, 1951 and will be in force up to 14th March, 1953 after which date the contractor will have no right to any material not removed from the contract area. The contractor agreed to remove the forest produce only during the above period. Clause 4 provided that the consideration payable by the contractor for this contract is Rs. 50, 000 and that the amount will be duly paid by the contractor by crediting it in the Ahiri Estate Treasury in installments of Rs. 15, 000 on 15th day of April and Rs. 35, 000 on 15th day of September. Clause 5 of the contract is important any may be extracted inThe contractor will not remove any forest produce from the site of the x (x torn) and until the logs are checked and passed by the Estate Forest Staff by affixing x (x torn) bed pas sing hammer. The contractor will not remove any forest produce between the sunset and sunrise. The contractor will make his own arrangements for stacking x (x torn) outside the contract area7 provided that the contractor will duly coppice the stumps of the trees felled by him. He agreed to carry out all his operations properly, according to the rules in force governing the forest area and in a workman-like manner and further agreed to abide by any directions and instructions in regard to the working of this contract that may be issued to him by the Estate Forest Staff and other estate authorities. Clause 8 provided that in the event of the contractors failure to pay any of the installments within the time fixed, the estate authorities will be entitled to stop and restrain all further extraction or other work in the contract area. Clause 9 provided that the contractor agrees to file every month accounts of the felling, logging and extraction done byclauses above extracted clearly show that the contract was to commence on 15th March, 1951 and be in force till 14th March, 1953 during which period the contractor agreed to file monthly a ccounts of felling, logging and extraction by him. Clause 5 also provided that the contractor will not remove any forest produce till the logs are checked and passed by the State Forest staff. The second installment of Rs. 35, 000 is to be paid on 15th September, 1951. These clauses make it very clear that what was contracted for was the sale of forest produce which is a proprietary right vested in the proprietor in the property which according to the Act is to vest in the State. The plea on behalf of the plaintiff that the contract was only for the sale of goods i.e. movable property and that as the trees had been marked and felled before 31st March the contract of sale of goods bad been concluded cannot be accepted. Apart from the fact that the contract was clearly not for sale of goods but for transfer of right in property, the facts also do hot support the plea of the plaintiff that the trees were marked and felled before 31st March, 1951. The evidence of P.W. 1 is that the marking and cutting was done at the same time simultaneously and that the plaintiff bad cut all the trees in the disputed contract. According to P.W. 2 the trees were being cut as they were marked. The trial court held that the title of the plaintiff to the trees was complete before 31st March, 1951 but the High Court came to the conclusion that there is no evidence to , how that the trees were cut before the date of vesting. The High Court may not be quite correct in stating that there is no evidence to show that the trees were cut before the date of vesting but there can be no doubt that the evidence cannot be accepted for it is impossible to have cut the trees before 31st March, 1951.Even assuming that the trees were cut the property will not pass to the plaintiff till requirements of clause 5 of the contract are complied with i.e. the logs have been checked and passed by the State Forest Officer by affixing marks and delivered to the plaintiff. This was admittedly not done. Before the logs are checked and passed the goods are not ascertained and the title cannot pass to thehave no hesitation in coming to the conclusion that the trees were not in fact cut before 31st March, much less the cut trees ascertained before 31st March,decision of this Court in Badri Prasad v. State of Madhya Pradesh &Anr.([1969] 2 S.C.R. 380.) was relied on by both the appellants and the respondents. The facts are similar and arise out of a forest contract in Madhya Pradesh and the case raised similar questions. The facts of the case briefly are that the appellant before this Court entered into a contract for removing forest produce in Madhya Pradesh After the passing of the Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, a notification was issued vesting the estate in the State and the appellant was prohibited from cutting timber in exercise of his rights under the contract. Later after some negotiations the appellant agreed to pay an additional sum of Rs. 17, 000 but reserved his right to claim a refund. The State Government rejected the appellants right to cut trees. The appellant thereafter lied a suit claiming specific performance of the contract on the ground that the forest and trees did not vest in the St-ate under the Act and even if they vested the standing timber having been sold to the appellant did not vest in the State and in any event a new contract was completed in February and the appellant was entitled to specific performance. This Court negatived all the pleas and held after considering the earlier decisions that it was too late in the day to contend that the forest and the trees did not vest in the State under the Act. Repelling the contention on behalf of the appellant that under the contract the plaintiff had become owner of the trees as goods, this Court observed that though the trees which were agreed to b e served before sale or under the contract of sale are goods for the purpose of Sale of Goods Act but before they cease to be proprietary rights or interest within the meaning of section 3 and 4(a) ol the Act, they must be felled under the contract. On the facts of the case the Court held that the property in cut timber would only pass to the appellant under the contract at the earliest when the trees were felled. It further added that, as the contract provided that the appellant was entitled to cut teak trees of more than 12" girth it would have to be ascertained which trees fell within the description and till that is ascertained they were not ascertained goods. Thus in order that the property in the goods passes under the Sale of Goods Act, it is necessary that the trees should be felled and ascertained before the relevant date. In the present case we agree with the conclusion arrived at by the High Court that the trees were not felled before 31st March, 1951 and further they were not ascertained as required under the contract for as pointed out the logs had to be checked and passed by State Forest staff by affixing the mark before they can be removed by the appellant. Thus the facts are similar and the decision in the case applies to the present case. Holding that the trees were not felled and that the goods were not ascertained, we find that the title in the goods had not passed to the appellant before 31st March, 1951, the date on which the estate vested in the State.When it is found that the title in the goods had not passed to the appellant, then the provisions of section 6(1) will be attracted and this being a transfer of right in property which is liable to vest in the State after 16th March, 1950, it shall be void from the date ofagree with the finding of the High Court that it is not possible to accept the appellants case that he paid Rs. 35, 000 to the second respondent. The appellant is the brother of the Zamindar, the second respondent. The appellant has not chosen to examine himself as a witness and speak to his payment of Rs. 3 5, 000 to the second respondent. On behalf of the appellant his agent was examined a s P.W. 1. According to him he paid in cash to the respondent a sum of Rs. 35, 000 on 30th September, 1951. The witness was questioned as to whether for making the payment he borrowed the money from second respondent himself. He denied any knowledge about such borrowing. It is most unlikely that any payment of Rs. 35, 000 was made on behalf of the appellant on 30th September, 1951. Without making sure that he would be able to remove timber contracted without any objection from the State, he would not have paid Rs. 35, 000. As pointed out by the High Court P.W. 3 does not state that he in fact received Rs. 35, 000 in cash. There is no material to show that the appellant had such an amount with him. In the correspondence that passed between the appellant and the Government, the appellant did not mention that he had already paid Rs. 35, 000 to the second respondent. In fact. when the Government demanded that he should pay Rs. 35, 000 the appellant paid the amount without any protest. Taking into account the fact that the appellant and the second respondent are brothers, the imminence of the vesting of the entire estate of the second respondent with the State, and the absence of any material to show that the appellant was possessed of the funds, we have no hesitation in agreeing with the finding of the High Court that the appellant would not have paid the amount to the second respondent.Lastly, it was contended that in any event as the Government permitted the appellant to remove the logs on payment of Rs. 35, 000 it should be construed as ratification of the contract entered into by the second respondent and as such the Government is not entitled to collect Rs. 35, 000 as if at all anyone was entitled to the amount it was only the second respondent. We have no hesitation in rejecting this argument for after the vesting of the forest in the Government, the Government under section 6(2) offered to permit the appellant to remove the trees on payment of Rs. 35, 000. Having agreed to the condition and paid Rs. 35, 000 the appellant cannot ask for any refund. | 0 | 3,848 | 2,142 | ### 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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Madhya Pradesh After the passing of the Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, a notification was issued vesting the estate in the State and the appellant was prohibited from cutting timber in exercise of his rights under the contract. Later after some negotiations the appellant agreed to pay an additional sum of Rs. 17, 000 but reserved his right to claim a refund. The State Government rejected the appellants right to cut trees. The appellant thereafter lied a suit claiming specific performance of the contract on the ground that the forest and trees did not vest in the St-ate under the Act and even if they vested the standing timber having been sold to the appellant did not vest in the State and in any event a new contract was completed in February and the appellant was entitled to specific performance. This Court negatived all the pleas and held after considering the earlier decisions that it was too late in the day to contend that the forest and the trees did not vest in the State under the Act. Repelling the contention on behalf of the appellant that under the contract the plaintiff had become owner of the trees as goods, this Court observed that though the trees which were agreed to b e served before sale or under the contract of sale are goods for the purpose of Sale of Goods Act but before they cease to be proprietary rights or interest within the meaning of section 3 and 4(a) ol the Act, they must be felled under the contract. On the facts of the case the Court held that the property in cut timber would only pass to the appellant under the contract at the earliest when the trees were felled. It further added that, as the contract provided that the appellant was entitled to cut teak trees of more than 12" girth it would have to be ascertained which trees fell within the description and till that is ascertained they were not ascertained goods. Thus in order that the property in the goods passes under the Sale of Goods Act, it is necessary that the trees should be felled and ascertained before the relevant date. In the present case we agree with the conclusion arrived at by the High Court that the trees were not felled before 31st March, 1951 and further they were not ascertained as required under the contract for as pointed out the logs had to be checked and passed by State Forest staff by affixing the mark before they can be removed by the appellant. Thus the facts are similar and the decision in the case applies to the present case. Holding that the trees were not felled and that the goods were not ascertained, we find that the title in the goods had not passed to the appellant before 31st March, 1951, the date on which the estate vested in the State.When it is found that the title in the goods had not passed to the appellant, then the provisions of section 6(1) will be attracted and this being a transfer of right in property which is liable to vest in the State after 16th March, 1950, it shall be void from the date of vesting.10. We agree with the finding of the High Court that it is not possible to accept the appellants case that he paid Rs. 35, 000 to the second respondent. The appellant is the brother of the Zamindar, the second respondent. The appellant has not chosen to examine himself as a witness and speak to his payment of Rs. 3 5, 000 to the second respondent. On behalf of the appellant his agent was examined a s P.W. 1. According to him he paid in cash to the respondent a sum of Rs. 35, 000 on 30th September, 1951. The witness was questioned as to whether for making the payment he borrowed the money from second respondent himself. He denied any knowledge about such borrowing. It is most unlikely that any payment of Rs. 35, 000 was made on behalf of the appellant on 30th September, 1951. Without making sure that he would be able to remove timber contracted without any objection from the State, he would not have paid Rs. 35, 000. As pointed out by the High Court P.W. 3 does not state that he in fact received Rs. 35, 000 in cash. There is no material to show that the appellant had such an amount with him. In the correspondence that passed between the appellant and the Government, the appellant did not mention that he had already paid Rs. 35, 000 to the second respondent. In fact. when the Government demanded that he should pay Rs. 35, 000 the appellant paid the amount without any protest. Taking into account the fact that the appellant and the second respondent are brothers, the imminence of the vesting of the entire estate of the second respondent with the State, and the absence of any material to show that the appellant was possessed of the funds, we have no hesitation in agreeing with the finding of the High Court that the appellant would not have paid the amount to the second respondent.Lastly, it was contended that in any event as the Government permitted the appellant to remove the logs on payment of Rs. 35, 000 it should be construed as ratification of the contract entered into by the second respondent and as such the Government is not entitled to collect Rs. 35, 000 as if at all anyone was entitled to the amount it was only the second respondent. We have no hesitation in rejecting this argument for after the vesting of the forest in the Government, the Government under section 6(2) offered to permit the appellant to remove the trees on payment of Rs. 35, 000. Having agreed to the condition and paid Rs. 35, 000 the appellant cannot ask for any refund.11.
### Response:
0
### Explanation:
forest produce in Madhya Pradesh After the passing of the Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, a notification was issued vesting the estate in the State and the appellant was prohibited from cutting timber in exercise of his rights under the contract. Later after some negotiations the appellant agreed to pay an additional sum of Rs. 17, 000 but reserved his right to claim a refund. The State Government rejected the appellants right to cut trees. The appellant thereafter lied a suit claiming specific performance of the contract on the ground that the forest and trees did not vest in the St-ate under the Act and even if they vested the standing timber having been sold to the appellant did not vest in the State and in any event a new contract was completed in February and the appellant was entitled to specific performance. This Court negatived all the pleas and held after considering the earlier decisions that it was too late in the day to contend that the forest and the trees did not vest in the State under the Act. Repelling the contention on behalf of the appellant that under the contract the plaintiff had become owner of the trees as goods, this Court observed that though the trees which were agreed to b e served before sale or under the contract of sale are goods for the purpose of Sale of Goods Act but before they cease to be proprietary rights or interest within the meaning of section 3 and 4(a) ol the Act, they must be felled under the contract. On the facts of the case the Court held that the property in cut timber would only pass to the appellant under the contract at the earliest when the trees were felled. It further added that, as the contract provided that the appellant was entitled to cut teak trees of more than 12" girth it would have to be ascertained which trees fell within the description and till that is ascertained they were not ascertained goods. Thus in order that the property in the goods passes under the Sale of Goods Act, it is necessary that the trees should be felled and ascertained before the relevant date. In the present case we agree with the conclusion arrived at by the High Court that the trees were not felled before 31st March, 1951 and further they were not ascertained as required under the contract for as pointed out the logs had to be checked and passed by State Forest staff by affixing the mark before they can be removed by the appellant. Thus the facts are similar and the decision in the case applies to the present case. Holding that the trees were not felled and that the goods were not ascertained, we find that the title in the goods had not passed to the appellant before 31st March, 1951, the date on which the estate vested in the State.When it is found that the title in the goods had not passed to the appellant, then the provisions of section 6(1) will be attracted and this being a transfer of right in property which is liable to vest in the State after 16th March, 1950, it shall be void from the date ofagree with the finding of the High Court that it is not possible to accept the appellants case that he paid Rs. 35, 000 to the second respondent. The appellant is the brother of the Zamindar, the second respondent. The appellant has not chosen to examine himself as a witness and speak to his payment of Rs. 3 5, 000 to the second respondent. On behalf of the appellant his agent was examined a s P.W. 1. According to him he paid in cash to the respondent a sum of Rs. 35, 000 on 30th September, 1951. The witness was questioned as to whether for making the payment he borrowed the money from second respondent himself. He denied any knowledge about such borrowing. It is most unlikely that any payment of Rs. 35, 000 was made on behalf of the appellant on 30th September, 1951. Without making sure that he would be able to remove timber contracted without any objection from the State, he would not have paid Rs. 35, 000. As pointed out by the High Court P.W. 3 does not state that he in fact received Rs. 35, 000 in cash. There is no material to show that the appellant had such an amount with him. In the correspondence that passed between the appellant and the Government, the appellant did not mention that he had already paid Rs. 35, 000 to the second respondent. In fact. when the Government demanded that he should pay Rs. 35, 000 the appellant paid the amount without any protest. Taking into account the fact that the appellant and the second respondent are brothers, the imminence of the vesting of the entire estate of the second respondent with the State, and the absence of any material to show that the appellant was possessed of the funds, we have no hesitation in agreeing with the finding of the High Court that the appellant would not have paid the amount to the second respondent.Lastly, it was contended that in any event as the Government permitted the appellant to remove the logs on payment of Rs. 35, 000 it should be construed as ratification of the contract entered into by the second respondent and as such the Government is not entitled to collect Rs. 35, 000 as if at all anyone was entitled to the amount it was only the second respondent. We have no hesitation in rejecting this argument for after the vesting of the forest in the Government, the Government under section 6(2) offered to permit the appellant to remove the trees on payment of Rs. 35, 000. Having agreed to the condition and paid Rs. 35, 000 the appellant cannot ask for any refund.
|
Karam Chand Vs. State of Jammu and Kashmir | 1. The petitioner, Karam Chand son of Khushi Ram in these proceedings for a writ in the nature of habeas corpus complains that he was arrested on February 9, 1968 without any warrant and has since then been kept in illegal custody. The grounds of detention have also not been communicated to him.2. According to the return, Shri. Bharat Bhushan, I.A.S., Divisional Commissioner, Jammu, had on February 16, 1968, made the following order under Section 3 (2), read with Section 5 of Jammu and Kashmir Preventive Detention Act 13 of 1964 for the petitioners detention :"ORDER NO. : 3/C/1968dated 16-2-1968.Whereas I, Bharat Bhushan, I.A.S., Divisional Commissioner, Jammu, am satisfied that with a view to preventing Shri Karam Chand s/o. Khushi Ram, r/o. Chand Gran, p/s. Kathua from acting in any manner prejudicial to the security of the State, it is necessary so to do : Now, therefore, in exercise of the powers conferred by Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964 I, Bharat Bhushan, I.A.S. Divisional Commissioner, Jammu hereby direct that the said Karam Chand be detained in the Central Jail, Jammu subject to such conditions as to maintenance of discipline and punishment for breaches of discipline as have been specified in the Jammu and Kashmir Detenu General Order, 1968.Sd. Bharat Bhushan, I.A.S.Divisional Commissioner, Jammu."On the same day the said officer made another order under Section 8, read with Section 13-A of the aforesaid Act directing that the detenu be informed that it is against the public interest to disclose to him the grounds on which his detention order was made. This order is in the following terms :"ORDER NO. 4-C of 1968Dated 16-2-1968.Whereas Shri. Karam Chand s/o. Shri. Khushi Ram, r/o. Chan Gran p/s. Kathua has been detained in pursuance of order No. 3/C of 1968, dated 16-2-1968 made by me under Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964, with a view to preventing him from acting in any manner prejudicial to the security of the State; andWhereas I consider it against the public interest to disclose the grounds of detention to the said Karam Chand.Now, therefore, in pursuance of Section 8, read with Section 13-A of the said Act I hereby direct that the said Karam Chand be informed that it is against the public interest to disclose to him the grounds on which his detention order was made.Sd. Bharat Bhushan, I.A.S.Divisional Commissioner, Jammu."The contents of both the orders were duly communicated to the petitioner. According to the Divisional Commissioner the papers were thereafter placed before the Chief Minister in charge of the Home Department and the Government duly confirmed the detention order on March 6, 1968. That order reads as under :"GOVERNMENT ORDER NO. I.S.D. - 327 of 1968Date 6-3-1968.The Government having considered the order of detention made by the Divisional Commissioner vide No. 3/C/1968 dated 16-2-1968 in respect of Shri Karam Chand s/o. Khushi Ram r/o. Chand Gran p/s. Kathua along with his report and the grounds on which the order has been made and other particulars having bearing on the matters, hereby approve the said detention order.By order of the Government of Jammu and Kashmir.Sd. Secretary to GovernmentHome Department."3. It was contended on behalf of the petitioner that non-disclosure of the grounds of his detention to the petitioner is violative of Article 22 (5) of the Constitution with the result that his detention must be struck down as illegal. This submission is misconceived. Article 35 (c) of the Constitution is a complete answer to this challenge. It provides :"No law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this part, but any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of fifteen years from the commencement of the said order, except as respects things done or omitted to be done before the expiration thereof."The period of 15 years mentioned therein has now been extended and the contrary was not contended on behalf of the petitioner.4. The submission that non-disclosure of grounds offends Section 8(1) of the aforesaid Act also ignores the proviso added to this sub-section which reads as under :"Provided that nothing in this sub-section shall apply to the case of any person detained with a view to preventing him from acting in any manner prejudicial to the security of the State, if the authority making the order, by the same or a subsequent order, directs that the person detained may be informed that it would be against public interest to communicate to him the grounds on which the detention order has been made."The petitioners detention, as is obvious from the order was directed with a view to preventing him from acting in any manner prejudicial to the security of the State.5. In Karam Chand v. State of Jammu and Kashmir (W.P. No. 157 of 1969) decided on September 3, 1969 it was conceded by the counsel for the detenu that it was competent for the Divisional Commissioner not to furnish the grounds of detention to the detenue. It appears to us that it was the present petitioner who had applied to this Court earlier also and from the records of that case we have verified that the parentage of the petitioner in that case as also the order of detention and the other relevant orders are identical with those in the present case. We are, however, not basing our decision on the ground of rejection of an earlier habeas corpus petition by the present petitioner because in the return, for reason best known to the respondent, this point was not raised. | 0[ds]3. It was contended on behalf of the petitioner thatof the grounds of his detention to the petitioner is violative of Article 22 (5) of the Constitution with the result that his detention must be struck down as illegal.This submission is misconceived. Article 35 (c) of the Constitution is a complete answer to thispetitioners detention, as is obvious from the order was directed with a view to preventing him from acting in any manner prejudicial to the security of the State.5. In Karam Chand v. State of Jammu and Kashmir (W.P. No. 157 of 1969) decided on September 3, 1969 it was conceded by the counsel for the detenu that it was competent for the Divisional Commissioner not to furnish the grounds of detention to the detenue. It appears to us that it was the present petitioner who had applied to this Court earlier also and from the records of that case we have verified that the parentage of the petitioner in that case as also the order of detention and the other relevant orders are identical with those in the present case. We are, however, not basing our decision on the ground of rejection of an earlier habeas corpus petition by the present petitioner because in the return, for reason best known to the respondent, this point was not raised. | 0 | 1,121 | 245 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
1. The petitioner, Karam Chand son of Khushi Ram in these proceedings for a writ in the nature of habeas corpus complains that he was arrested on February 9, 1968 without any warrant and has since then been kept in illegal custody. The grounds of detention have also not been communicated to him.2. According to the return, Shri. Bharat Bhushan, I.A.S., Divisional Commissioner, Jammu, had on February 16, 1968, made the following order under Section 3 (2), read with Section 5 of Jammu and Kashmir Preventive Detention Act 13 of 1964 for the petitioners detention :"ORDER NO. : 3/C/1968dated 16-2-1968.Whereas I, Bharat Bhushan, I.A.S., Divisional Commissioner, Jammu, am satisfied that with a view to preventing Shri Karam Chand s/o. Khushi Ram, r/o. Chand Gran, p/s. Kathua from acting in any manner prejudicial to the security of the State, it is necessary so to do : Now, therefore, in exercise of the powers conferred by Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964 I, Bharat Bhushan, I.A.S. Divisional Commissioner, Jammu hereby direct that the said Karam Chand be detained in the Central Jail, Jammu subject to such conditions as to maintenance of discipline and punishment for breaches of discipline as have been specified in the Jammu and Kashmir Detenu General Order, 1968.Sd. Bharat Bhushan, I.A.S.Divisional Commissioner, Jammu."On the same day the said officer made another order under Section 8, read with Section 13-A of the aforesaid Act directing that the detenu be informed that it is against the public interest to disclose to him the grounds on which his detention order was made. This order is in the following terms :"ORDER NO. 4-C of 1968Dated 16-2-1968.Whereas Shri. Karam Chand s/o. Shri. Khushi Ram, r/o. Chan Gran p/s. Kathua has been detained in pursuance of order No. 3/C of 1968, dated 16-2-1968 made by me under Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964, with a view to preventing him from acting in any manner prejudicial to the security of the State; andWhereas I consider it against the public interest to disclose the grounds of detention to the said Karam Chand.Now, therefore, in pursuance of Section 8, read with Section 13-A of the said Act I hereby direct that the said Karam Chand be informed that it is against the public interest to disclose to him the grounds on which his detention order was made.Sd. Bharat Bhushan, I.A.S.Divisional Commissioner, Jammu."The contents of both the orders were duly communicated to the petitioner. According to the Divisional Commissioner the papers were thereafter placed before the Chief Minister in charge of the Home Department and the Government duly confirmed the detention order on March 6, 1968. That order reads as under :"GOVERNMENT ORDER NO. I.S.D. - 327 of 1968Date 6-3-1968.The Government having considered the order of detention made by the Divisional Commissioner vide No. 3/C/1968 dated 16-2-1968 in respect of Shri Karam Chand s/o. Khushi Ram r/o. Chand Gran p/s. Kathua along with his report and the grounds on which the order has been made and other particulars having bearing on the matters, hereby approve the said detention order.By order of the Government of Jammu and Kashmir.Sd. Secretary to GovernmentHome Department."3. It was contended on behalf of the petitioner that non-disclosure of the grounds of his detention to the petitioner is violative of Article 22 (5) of the Constitution with the result that his detention must be struck down as illegal. This submission is misconceived. Article 35 (c) of the Constitution is a complete answer to this challenge. It provides :"No law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this part, but any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of fifteen years from the commencement of the said order, except as respects things done or omitted to be done before the expiration thereof."The period of 15 years mentioned therein has now been extended and the contrary was not contended on behalf of the petitioner.4. The submission that non-disclosure of grounds offends Section 8(1) of the aforesaid Act also ignores the proviso added to this sub-section which reads as under :"Provided that nothing in this sub-section shall apply to the case of any person detained with a view to preventing him from acting in any manner prejudicial to the security of the State, if the authority making the order, by the same or a subsequent order, directs that the person detained may be informed that it would be against public interest to communicate to him the grounds on which the detention order has been made."The petitioners detention, as is obvious from the order was directed with a view to preventing him from acting in any manner prejudicial to the security of the State.5. In Karam Chand v. State of Jammu and Kashmir (W.P. No. 157 of 1969) decided on September 3, 1969 it was conceded by the counsel for the detenu that it was competent for the Divisional Commissioner not to furnish the grounds of detention to the detenue. It appears to us that it was the present petitioner who had applied to this Court earlier also and from the records of that case we have verified that the parentage of the petitioner in that case as also the order of detention and the other relevant orders are identical with those in the present case. We are, however, not basing our decision on the ground of rejection of an earlier habeas corpus petition by the present petitioner because in the return, for reason best known to the respondent, this point was not raised.
### Response:
0
### Explanation:
3. It was contended on behalf of the petitioner thatof the grounds of his detention to the petitioner is violative of Article 22 (5) of the Constitution with the result that his detention must be struck down as illegal.This submission is misconceived. Article 35 (c) of the Constitution is a complete answer to thispetitioners detention, as is obvious from the order was directed with a view to preventing him from acting in any manner prejudicial to the security of the State.5. In Karam Chand v. State of Jammu and Kashmir (W.P. No. 157 of 1969) decided on September 3, 1969 it was conceded by the counsel for the detenu that it was competent for the Divisional Commissioner not to furnish the grounds of detention to the detenue. It appears to us that it was the present petitioner who had applied to this Court earlier also and from the records of that case we have verified that the parentage of the petitioner in that case as also the order of detention and the other relevant orders are identical with those in the present case. We are, however, not basing our decision on the ground of rejection of an earlier habeas corpus petition by the present petitioner because in the return, for reason best known to the respondent, this point was not raised.
|
Bir Singh and Others Vs. State of Uttar Pradesh | connection, the Sessions Judge relies on the fact that there is no. evidence to show as to how the body of the deceased was found at the Chaupal of his house. No. witness says that any one of the people who had assembled or any member of the family had removed the dead body to the place of the Chaupal. Even Surajpal Singh P.W. 1 the son of the deceased has categorically stated at page 19 of the paper book that he did not lift his father but only touched the body to find out whether he was dead or alive. Thus how the body of the deceased reached the Chaupal is a mystery which the prosecution has failed to explain. It was contended by counsel for the appellants that it would appear from the sketch map that it does not show that the place of occurrence contained any blood marks as the blood stained earth taken by the Investigating Officer does not reveal that it contained human blood. This also supports the suggestion of the defence that the occurrence did not take place in the manner as alleged. In our opinion there is some substance in the argument of the learned counsel and though not a very important circumstance, this is one of the circumstances which cumulatively discredit the prosecution case. 19. Another important argument advanced by counsel for the appellants is that there is absolutely no. evidence to show that there was any blood at the place where P.W. 2 fell down. It was contended that according to the Doctors version having regard to the injury, blood must have been oozing out. If the blood was there then the Investigating Officer could not have failed to notice the same. The fact that blood at that place was not indicated in the sketch map clearly shows that P.W. 2 did not receive injuries at that place. This is undoubtedly an important aspect which merits serious consideration. The Sessions Judge seems to have commented on the fact that P.W. 2 did not accompany the dead body but in our opinion nothing much turns on that because P.W. 1 must have been in a hurry to rush to the Police Station and as P.W. 2 was seriously injured, he may not have though it advisable to carry him. But the fact remains that the prosecution has not been able to show that there was any blood at the place where P.W. 2 fell down which raises a reasonable inference that P.W. 2 may have been assaulted elsewhere and once that is so then the case regarding the assault of the deceased at the place of occurrence also automatically fails because the two incidents are parts of the same transaction. 20. Another imported circumstance which seems to have been over-looked by the High Court is the fact that from the post mortem report it appears that 33 shots and a piece of wadding which were recovered from the body has been sent to S. P. Unnao under sealed cover. No. attempt appears to have been made by the prosecution to prove the weapon from which the shots had been fired. The High Court has come to a clear finding that in view of the admitted evidence that Ram Narain Singh and Vidya Vinod Singh had licensed rifle and gun respectively the possibility that one of these weapons was used for killing the deceased cannot be ruled out. In this connection the High Court observed as follows : There is no. direct evidence to substantiate that the said arms, licences whereof were with the said persons, had actually been used in the crime in question, yet the probability concerning the use thereof, as suggested by the prosecution cannot be ruled out. 21. P.W. 1 has clearly admitted in his evidence that both Ram Narain Singh and Vidya Vinod Singh had rifle and gun respectively and used to visit the village. In these circumstances therefore it was incumbent on the prosecution to have called upon Ram Narain Singh and Vidya Vinod Singh to produce their weapons and sent the same to the ballistic expert in order to establish that the shots recovered from the body of the deceased could have been fired from the gun of Vidya Vinod Singh. Otherwise it is impossible to believe wherefrom a boy of 14 years like Bir Singh would get hold of a gun. According to the prosecution after the altercation Bir Singh and others went into the house and then brought a gun which clearly shows that the gun was present in the house yet no. attempt was made by the Investigating Officer to search the houses of Ram Narain Singh and Vidya Vinod Singh on the night of the occurrence in order to recover the gun. The excuse given by the Investigating Officer that he had sent a constable to get the accused and as they were not found he could not make a search appears to be a lame one. It is true that the Investigating Officer made the search on the next day and that too in the house of Ram Narain Singh but he did not search the house of Ram Dularey Singh as he clearly admits in the following terms at page 48 of the paper book : The search of house of Ram Dularey accused was not taken at all, as I did not think it necessary. Thus a very valuable clue which may have clinched the issue was lost because the Investigating Officer was grossly negligent in conducting the investigation. 22. Taking therefore an over-all picture of the entire case it is difficult for us to hod that the view taken by the Sessions Judge on the evidence and circumstances of the present case was not reasonably possible. This being the position the High Court even if it chose to take a different view, was not justified in reversing the order of acquittal passed by the learned Additional Sessions Judge. | 1[ds]. In our opinion, if in the present state of the evidence the Sessions Judge refused to accept the prosecution case in the absence of the evidence of Bhikari and Shambhu, who according to the prosecution itself had seen the entire occurrence it could not be said that the view taken by the Sessions Judge was either manifestly wrong, perverse or unreasonable. It would however appear that there were other circumstances which were relied upon by the learned Sessions Judge for discrediting the prosecution case which seem to have been brushed aside by the High Court mostly on conjectural grounds6. The defence of the appellants was that they had absolutely nothing to do with the occurrence and had been falsely implicated due to enmity. A few admitted facts may be mentioned before we proceed to discuss the judgment of the two Courts. The witness Surajpal Singh clearly admits that Ram Narain Singh, father of the appellant Bir Singh, had a licensed rifle and Vidya Vinod Singh the other son of Ram Narain Singh had a licensed gun. One of the extraordinary features of this case is that no. attempt was made by the Investigating Officer at any time to ask Ram Narain Singh or Vidya Vinod Singh to produce their weapons so as to exclude the possibility of these weapons having been used by the appellants. On the other hand, when these weapons were available it is difficult to believe that Bir Singh a boy of 14 years would get a double barreled gun unless it was easily or readily available. The Investigating Officer clearly admits that he never searched the house of Ram Dularey Singh at all and the excuse given by him was that because he was informed that accused were not in the house therefore he did not search the house. Another remarkable feature of this case is as the Sessions judge has clearly pointed out, that there is a serious interpolation in the general diary maintained by the police and there was a good deal of delay in forwarding the general diary to the higher officers. The learned Sessions Judge who had the original diary before him had found that there were interpolations andg where the name of Ram Dularey Singh was written. The Sessions Judge after inspecting the diary found that the possibility of Ram Narain having been converted to Ram Dularey could not be excluded. Thus the defence seems to suggest that the prosecution had first decided to implicate Ram Narain Singh but when it found that at the time of the occurrence Ram Narain Singh was posted at Banda and could furnish a cast iron alibi which would have destroyed the prosecution case, the name of Ram Dalarey Singh was substitutedIn the instant case all thes had serious animus against the accused and they were interested in implicating the accused. The substitution of Ram Dularey Singh in the general diary was a suspicious circumstance. The fact that the police was not able to recover any weapon or to explain how the appellants got hold of the guns was yet another circumstances that required a reasonable explanation from the prosecution. According to the finding of the learned Sessions Judge even the F.I.R. wasd and although the High Court has not accepted this finding we feel, that the High Court on this aspect has entered into the domain of speculation. In view of these special circumstances it was incumbent on the prosecution to examine the two witnesses at least to corroborate the evidence and if they were not examined the Sessions Judge was justified in drawing an adverse inference against the prosecution. At any rate it cannot be said that if under these circumstances the Sessions Judge was not prepared to accept the evidence of these witnesses his judgment was wrong or unreasonable. It may be that the High Court could have taken a different view but that at by itself as held by this court is not a sufficient ground for reversing an order of acquittalIt seems to us that this witness has tried to support the prosecution case by showing his presence on 9th Nov. 1967 till 9 p.m. although in his previous statement before the same Court he categorically stated that on the 9th Nov. 1967 he had left the office at 7 p.m. In these circumstances we place no. reliance on the evidence of this witness. The High Court indulged in another conjecture that the F.I.R. must have been sent to the P.P. and to the Elaqa Magistrate. This was not however a matter of which judicial notice could be taken but had to be proved like any other fact. There was absolutely no. evidence led by the prosecution to show when the F.I.R. was sent to the Elaqa Magistrate or to the P.Ps. office and in the absence of any evidence on this point the High Court was not justified in drawing an inference in order to demolish the positive and categorical statement of P.W. 5 Umesh Chandra Verma the Investigating OfficerThe excuse given by the Investigating Officer that he had sent a constable to get the accused and as they were not found he could not make a search appears to be a lame one. It is true that the Investigating Officer made the search on the next day and that too in the house of Ram Narain Singh but he did not search the house of Ram Dularey Singh as he clearly admits in the following terms at page 48 of the paper book :The search of house of Ram Dularey accused was not taken at all, as I did not think it necessaryThus a very valuable clue which may have clinched the issue was lost because the Investigating Officer was grossly negligent in conducting the investigationl picture of the entire case it is difficult for us to hod that the view taken by the Sessions Judge on the evidence and circumstances of the present case was not reasonably possible. This being the position the High Court even if it chose to take a different view, was not justified in reversing the order of acquittal passed by the learned Additional Sessions Judge | 1 | 6,437 | 1,083 | ### 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:
connection, the Sessions Judge relies on the fact that there is no. evidence to show as to how the body of the deceased was found at the Chaupal of his house. No. witness says that any one of the people who had assembled or any member of the family had removed the dead body to the place of the Chaupal. Even Surajpal Singh P.W. 1 the son of the deceased has categorically stated at page 19 of the paper book that he did not lift his father but only touched the body to find out whether he was dead or alive. Thus how the body of the deceased reached the Chaupal is a mystery which the prosecution has failed to explain. It was contended by counsel for the appellants that it would appear from the sketch map that it does not show that the place of occurrence contained any blood marks as the blood stained earth taken by the Investigating Officer does not reveal that it contained human blood. This also supports the suggestion of the defence that the occurrence did not take place in the manner as alleged. In our opinion there is some substance in the argument of the learned counsel and though not a very important circumstance, this is one of the circumstances which cumulatively discredit the prosecution case. 19. Another important argument advanced by counsel for the appellants is that there is absolutely no. evidence to show that there was any blood at the place where P.W. 2 fell down. It was contended that according to the Doctors version having regard to the injury, blood must have been oozing out. If the blood was there then the Investigating Officer could not have failed to notice the same. The fact that blood at that place was not indicated in the sketch map clearly shows that P.W. 2 did not receive injuries at that place. This is undoubtedly an important aspect which merits serious consideration. The Sessions Judge seems to have commented on the fact that P.W. 2 did not accompany the dead body but in our opinion nothing much turns on that because P.W. 1 must have been in a hurry to rush to the Police Station and as P.W. 2 was seriously injured, he may not have though it advisable to carry him. But the fact remains that the prosecution has not been able to show that there was any blood at the place where P.W. 2 fell down which raises a reasonable inference that P.W. 2 may have been assaulted elsewhere and once that is so then the case regarding the assault of the deceased at the place of occurrence also automatically fails because the two incidents are parts of the same transaction. 20. Another imported circumstance which seems to have been over-looked by the High Court is the fact that from the post mortem report it appears that 33 shots and a piece of wadding which were recovered from the body has been sent to S. P. Unnao under sealed cover. No. attempt appears to have been made by the prosecution to prove the weapon from which the shots had been fired. The High Court has come to a clear finding that in view of the admitted evidence that Ram Narain Singh and Vidya Vinod Singh had licensed rifle and gun respectively the possibility that one of these weapons was used for killing the deceased cannot be ruled out. In this connection the High Court observed as follows : There is no. direct evidence to substantiate that the said arms, licences whereof were with the said persons, had actually been used in the crime in question, yet the probability concerning the use thereof, as suggested by the prosecution cannot be ruled out. 21. P.W. 1 has clearly admitted in his evidence that both Ram Narain Singh and Vidya Vinod Singh had rifle and gun respectively and used to visit the village. In these circumstances therefore it was incumbent on the prosecution to have called upon Ram Narain Singh and Vidya Vinod Singh to produce their weapons and sent the same to the ballistic expert in order to establish that the shots recovered from the body of the deceased could have been fired from the gun of Vidya Vinod Singh. Otherwise it is impossible to believe wherefrom a boy of 14 years like Bir Singh would get hold of a gun. According to the prosecution after the altercation Bir Singh and others went into the house and then brought a gun which clearly shows that the gun was present in the house yet no. attempt was made by the Investigating Officer to search the houses of Ram Narain Singh and Vidya Vinod Singh on the night of the occurrence in order to recover the gun. The excuse given by the Investigating Officer that he had sent a constable to get the accused and as they were not found he could not make a search appears to be a lame one. It is true that the Investigating Officer made the search on the next day and that too in the house of Ram Narain Singh but he did not search the house of Ram Dularey Singh as he clearly admits in the following terms at page 48 of the paper book : The search of house of Ram Dularey accused was not taken at all, as I did not think it necessary. Thus a very valuable clue which may have clinched the issue was lost because the Investigating Officer was grossly negligent in conducting the investigation. 22. Taking therefore an over-all picture of the entire case it is difficult for us to hod that the view taken by the Sessions Judge on the evidence and circumstances of the present case was not reasonably possible. This being the position the High Court even if it chose to take a different view, was not justified in reversing the order of acquittal passed by the learned Additional Sessions Judge.
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the prosecution itself had seen the entire occurrence it could not be said that the view taken by the Sessions Judge was either manifestly wrong, perverse or unreasonable. It would however appear that there were other circumstances which were relied upon by the learned Sessions Judge for discrediting the prosecution case which seem to have been brushed aside by the High Court mostly on conjectural grounds6. The defence of the appellants was that they had absolutely nothing to do with the occurrence and had been falsely implicated due to enmity. A few admitted facts may be mentioned before we proceed to discuss the judgment of the two Courts. The witness Surajpal Singh clearly admits that Ram Narain Singh, father of the appellant Bir Singh, had a licensed rifle and Vidya Vinod Singh the other son of Ram Narain Singh had a licensed gun. One of the extraordinary features of this case is that no. attempt was made by the Investigating Officer at any time to ask Ram Narain Singh or Vidya Vinod Singh to produce their weapons so as to exclude the possibility of these weapons having been used by the appellants. On the other hand, when these weapons were available it is difficult to believe that Bir Singh a boy of 14 years would get a double barreled gun unless it was easily or readily available. The Investigating Officer clearly admits that he never searched the house of Ram Dularey Singh at all and the excuse given by him was that because he was informed that accused were not in the house therefore he did not search the house. Another remarkable feature of this case is as the Sessions judge has clearly pointed out, that there is a serious interpolation in the general diary maintained by the police and there was a good deal of delay in forwarding the general diary to the higher officers. The learned Sessions Judge who had the original diary before him had found that there were interpolations andg where the name of Ram Dularey Singh was written. The Sessions Judge after inspecting the diary found that the possibility of Ram Narain having been converted to Ram Dularey could not be excluded. Thus the defence seems to suggest that the prosecution had first decided to implicate Ram Narain Singh but when it found that at the time of the occurrence Ram Narain Singh was posted at Banda and could furnish a cast iron alibi which would have destroyed the prosecution case, the name of Ram Dalarey Singh was substitutedIn the instant case all thes had serious animus against the accused and they were interested in implicating the accused. The substitution of Ram Dularey Singh in the general diary was a suspicious circumstance. The fact that the police was not able to recover any weapon or to explain how the appellants got hold of the guns was yet another circumstances that required a reasonable explanation from the prosecution. According to the finding of the learned Sessions Judge even the F.I.R. wasd and although the High Court has not accepted this finding we feel, that the High Court on this aspect has entered into the domain of speculation. In view of these special circumstances it was incumbent on the prosecution to examine the two witnesses at least to corroborate the evidence and if they were not examined the Sessions Judge was justified in drawing an adverse inference against the prosecution. At any rate it cannot be said that if under these circumstances the Sessions Judge was not prepared to accept the evidence of these witnesses his judgment was wrong or unreasonable. It may be that the High Court could have taken a different view but that at by itself as held by this court is not a sufficient ground for reversing an order of acquittalIt seems to us that this witness has tried to support the prosecution case by showing his presence on 9th Nov. 1967 till 9 p.m. although in his previous statement before the same Court he categorically stated that on the 9th Nov. 1967 he had left the office at 7 p.m. In these circumstances we place no. reliance on the evidence of this witness. The High Court indulged in another conjecture that the F.I.R. must have been sent to the P.P. and to the Elaqa Magistrate. This was not however a matter of which judicial notice could be taken but had to be proved like any other fact. There was absolutely no. evidence led by the prosecution to show when the F.I.R. was sent to the Elaqa Magistrate or to the P.Ps. office and in the absence of any evidence on this point the High Court was not justified in drawing an inference in order to demolish the positive and categorical statement of P.W. 5 Umesh Chandra Verma the Investigating OfficerThe excuse given by the Investigating Officer that he had sent a constable to get the accused and as they were not found he could not make a search appears to be a lame one. It is true that the Investigating Officer made the search on the next day and that too in the house of Ram Narain Singh but he did not search the house of Ram Dularey Singh as he clearly admits in the following terms at page 48 of the paper book :The search of house of Ram Dularey accused was not taken at all, as I did not think it necessaryThus a very valuable clue which may have clinched the issue was lost because the Investigating Officer was grossly negligent in conducting the investigationl picture of the entire case it is difficult for us to hod that the view taken by the Sessions Judge on the evidence and circumstances of the present case was not reasonably possible. This being the position the High Court even if it chose to take a different view, was not justified in reversing the order of acquittal passed by the learned Additional Sessions Judge
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Dinaram Chutiya and Others Vs. Kakajan Tea Estate (By Divisional Manager) | all unfavourable to the employees. 4. The authority considered the evidence led before it and came to the conclusion that the appellants were not in a position to dispute the genuineness of the latter circular and there was nothing on the record to show that the artisans "are in any way in receipt of less now after the issue of the circular" than before. In this order, the authority observed that at no stage had the appellants mentioned that by the cut in the servant allowance they were receiving less since the conditions of the circular of 1954 had been brought into force with retrospective effect from 15 August, 1954. That being so, it was held that no deduction can be said to have been illegally made by the respondent and accordingly, the appellants application was dismissed.The appellants then moved the Assam High Court by a petition under Art. 226 of the Constitution. Before the High Court, one of the preliminary points urged by the respondent was that the contention raised by the appellants by their writ petition cannot properly be agitated before the High Court under Art. 227; the finding made by the authority was a finding of fact and its correctness or propriety cannot be successfully challenged by a petition under Art 227. The High Court, however, dealt with the merits and confirmed the finding of the authority that the circular issued in 1954 did not reduce the total wages paid to the appellants before it was issued. In other words, according to the finding of the High Court, the appellants wages had not been adversely affected by the new circular at all. On that view, the High Court dismissed the appellants petition. It is against this order that the appellants have come to this Court with a certificate issued by the High Court. 5. Mr. Aggarwal for the appellants contends that under S.23 of the Act no contract can be made by an employee with his employer by which he purports to relinquish any right conferred on him by this Act, and if such a contract is made, it would be null and void. Mr. Aggarwal argues that what an individual employed person is prevented from doing under S. 23 will apply as much to a collective agreement between the employees and their employer and that even such a collective agreement cannot prejudicially affect the rights conferred on the employees by the provisions of the Act. In dealing with the present appeal, we are prepared to assume that the construction placed by Mr. Aggarwal on S. 23 is right, though, of course, we do not propose to decide that point in this case. The difficulty in Mr. Aggarwals way is that the finding made by the authority and confirmed by the High Court clearly shows that the right given to the appellants by the provisions of the Act has not been prejudicially affected. If it is found that the total wages which the appellants received even after the impugned circular was issued in 1954 are not shown to be less than before, it is impossible to accept the argument that mere deduction of the servant allowance, either partial or whole, can be said to contravene S. 23. The right claimed by the employees under S. 15 read with S. 7 is the right to receive the total wages agreed to between the parties and if the total wages are not affected, then that right cannot be said to have been contravened. On the finding recorded by the High Court and the authority, it is absolutely clear that there is no scope for the contention that S. 23 has been contravened by the respondent.Mr. Aggarwal, however, attempted to argue that in coming to the conclusion that the reduction of the servant allowance in respect of artisans in grade B and the total abolition of the said allowance in respect of artisans is grade C did not affect the appellants right, the authority and the High Court have gone wrong. He suggested that the authority compared the wages received by the appellants in 1950 and failed to take into account the increments which they had earned subsequent thereto; and in support of this case, he wanted to rely on annexure A which had been filed by the appellants along with their petition under Art. 227. 6. On the other hand, Mr. Goswami for the respondent argued that if the letters of the appointment in the case of some of the appellants which have been filed on the record and on which they rely are examined, it would be found that the figures in annexure A are wrong and he urged that the finding recorded by the High Court as well as the authority on this question is absolutely right. His case was that under the subsequent circular of 1954, basic wages as well as dearness allowance had been increased and so, the reduction or abolition of the servant allowance did not, in the least, prejudicially affect the totality of wages of the employees in any case. Besides he strenuously contended that it was not open to the appellants to challenge the correctness of the finding made by the authority in their petition under Art. 227 and if that is so, it would not be open to them to take that point even before us. In our opinion, this latter contention is well-founded and must be upheld. It may be that the evidence available on the record is not very satisfactory and the pleas taken by the respondent on this part of the case were not as clear or specific as they should have been; even so, we do not think that we can examine the correctness of the said finding. Therefore, without expressing any opinion on the merits of the finding, we hold that the appellants are precluded from disputing the validity of that finding, and so, no question arises as to the contravention of S.23 of the Act. | 0[ds]5. Mr. Aggarwal for the appellants contends that under S.23 of the Act no contract can be made by an employee with his employer by which he purports to relinquish any right conferred on him by this Act, and if such a contract is made, it would be null and void. Mr. Aggarwal argues that what an individual employed person is prevented from doing under S. 23 will apply as much to a collective agreement between the employees and their employer and that even such a collective agreement cannot prejudicially affect the rights conferred on the employees by the provisions of theAct.In dealing with the present appeal, we are prepared to assume that the construction placed by Mr. Aggarwal on S. 23 is right, though, of course, we do not propose to decide that point in this case. The difficulty in Mr. Aggarwals way is that the finding made by the authority and confirmed by the High Court clearly shows that the right given to the appellants by the provisions of the Act has not been prejudicially affected. If it is found that the total wages which the appellants received even after the impugned circular was issued in 1954 are not shown to be less than before, it is impossible to accept the argument that mere deduction of the servant allowance, either partial or whole, can be said to contravene S. 23. The right claimed by the employees under S. 15 read with S. 7 is the right to receive the total wages agreed to between the parties and if the total wages are not affected, then that right cannot be said to have been contravened. On the finding recorded by the High Court and the authority, it is absolutely clear that there is no scope for the contention that S. 23 has been contravened by the respondent6. On the other hand, Mr. Goswami for the respondent argued that if the letters of the appointment in the case of some of the appellants which have been filed on the record and on which they rely are examined, it would be found that the figures in annexure A are wrong and he urged that the finding recorded by the High Court as well as the authority on this question is absolutely right. His case was that under the subsequent circular of 1954, basic wages as well as dearness allowance had been increased and so, the reduction or abolition of the servant allowance did not, in the least, prejudicially affect the totality of wages of the employees in any case. Besides he strenuously contended that it was not open to the appellants to challenge the correctness of the finding made by the authority in their petition under Art. 227 and if that is so, it would not be open to them to take that point even before us.In our opinion, this latter contention isd and must be upheld. It may be that the evidence available on the record is not very satisfactory and the pleas taken by the respondent on this part of the case were not as clear or specific as they should have been; even so, we do not think that we can examine the correctness of the said finding. Therefore, without expressing any opinion on the merits of the finding, we hold that the appellants are precluded from disputing the validity of that finding, and so, no question arises as to the contravention of S.23 of the | 0 | 1,662 | 621 | ### Instruction:
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all unfavourable to the employees. 4. The authority considered the evidence led before it and came to the conclusion that the appellants were not in a position to dispute the genuineness of the latter circular and there was nothing on the record to show that the artisans "are in any way in receipt of less now after the issue of the circular" than before. In this order, the authority observed that at no stage had the appellants mentioned that by the cut in the servant allowance they were receiving less since the conditions of the circular of 1954 had been brought into force with retrospective effect from 15 August, 1954. That being so, it was held that no deduction can be said to have been illegally made by the respondent and accordingly, the appellants application was dismissed.The appellants then moved the Assam High Court by a petition under Art. 226 of the Constitution. Before the High Court, one of the preliminary points urged by the respondent was that the contention raised by the appellants by their writ petition cannot properly be agitated before the High Court under Art. 227; the finding made by the authority was a finding of fact and its correctness or propriety cannot be successfully challenged by a petition under Art 227. The High Court, however, dealt with the merits and confirmed the finding of the authority that the circular issued in 1954 did not reduce the total wages paid to the appellants before it was issued. In other words, according to the finding of the High Court, the appellants wages had not been adversely affected by the new circular at all. On that view, the High Court dismissed the appellants petition. It is against this order that the appellants have come to this Court with a certificate issued by the High Court. 5. Mr. Aggarwal for the appellants contends that under S.23 of the Act no contract can be made by an employee with his employer by which he purports to relinquish any right conferred on him by this Act, and if such a contract is made, it would be null and void. Mr. Aggarwal argues that what an individual employed person is prevented from doing under S. 23 will apply as much to a collective agreement between the employees and their employer and that even such a collective agreement cannot prejudicially affect the rights conferred on the employees by the provisions of the Act. In dealing with the present appeal, we are prepared to assume that the construction placed by Mr. Aggarwal on S. 23 is right, though, of course, we do not propose to decide that point in this case. The difficulty in Mr. Aggarwals way is that the finding made by the authority and confirmed by the High Court clearly shows that the right given to the appellants by the provisions of the Act has not been prejudicially affected. If it is found that the total wages which the appellants received even after the impugned circular was issued in 1954 are not shown to be less than before, it is impossible to accept the argument that mere deduction of the servant allowance, either partial or whole, can be said to contravene S. 23. The right claimed by the employees under S. 15 read with S. 7 is the right to receive the total wages agreed to between the parties and if the total wages are not affected, then that right cannot be said to have been contravened. On the finding recorded by the High Court and the authority, it is absolutely clear that there is no scope for the contention that S. 23 has been contravened by the respondent.Mr. Aggarwal, however, attempted to argue that in coming to the conclusion that the reduction of the servant allowance in respect of artisans in grade B and the total abolition of the said allowance in respect of artisans is grade C did not affect the appellants right, the authority and the High Court have gone wrong. He suggested that the authority compared the wages received by the appellants in 1950 and failed to take into account the increments which they had earned subsequent thereto; and in support of this case, he wanted to rely on annexure A which had been filed by the appellants along with their petition under Art. 227. 6. On the other hand, Mr. Goswami for the respondent argued that if the letters of the appointment in the case of some of the appellants which have been filed on the record and on which they rely are examined, it would be found that the figures in annexure A are wrong and he urged that the finding recorded by the High Court as well as the authority on this question is absolutely right. His case was that under the subsequent circular of 1954, basic wages as well as dearness allowance had been increased and so, the reduction or abolition of the servant allowance did not, in the least, prejudicially affect the totality of wages of the employees in any case. Besides he strenuously contended that it was not open to the appellants to challenge the correctness of the finding made by the authority in their petition under Art. 227 and if that is so, it would not be open to them to take that point even before us. In our opinion, this latter contention is well-founded and must be upheld. It may be that the evidence available on the record is not very satisfactory and the pleas taken by the respondent on this part of the case were not as clear or specific as they should have been; even so, we do not think that we can examine the correctness of the said finding. Therefore, without expressing any opinion on the merits of the finding, we hold that the appellants are precluded from disputing the validity of that finding, and so, no question arises as to the contravention of S.23 of the Act.
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5. Mr. Aggarwal for the appellants contends that under S.23 of the Act no contract can be made by an employee with his employer by which he purports to relinquish any right conferred on him by this Act, and if such a contract is made, it would be null and void. Mr. Aggarwal argues that what an individual employed person is prevented from doing under S. 23 will apply as much to a collective agreement between the employees and their employer and that even such a collective agreement cannot prejudicially affect the rights conferred on the employees by the provisions of theAct.In dealing with the present appeal, we are prepared to assume that the construction placed by Mr. Aggarwal on S. 23 is right, though, of course, we do not propose to decide that point in this case. The difficulty in Mr. Aggarwals way is that the finding made by the authority and confirmed by the High Court clearly shows that the right given to the appellants by the provisions of the Act has not been prejudicially affected. If it is found that the total wages which the appellants received even after the impugned circular was issued in 1954 are not shown to be less than before, it is impossible to accept the argument that mere deduction of the servant allowance, either partial or whole, can be said to contravene S. 23. The right claimed by the employees under S. 15 read with S. 7 is the right to receive the total wages agreed to between the parties and if the total wages are not affected, then that right cannot be said to have been contravened. On the finding recorded by the High Court and the authority, it is absolutely clear that there is no scope for the contention that S. 23 has been contravened by the respondent6. On the other hand, Mr. Goswami for the respondent argued that if the letters of the appointment in the case of some of the appellants which have been filed on the record and on which they rely are examined, it would be found that the figures in annexure A are wrong and he urged that the finding recorded by the High Court as well as the authority on this question is absolutely right. His case was that under the subsequent circular of 1954, basic wages as well as dearness allowance had been increased and so, the reduction or abolition of the servant allowance did not, in the least, prejudicially affect the totality of wages of the employees in any case. Besides he strenuously contended that it was not open to the appellants to challenge the correctness of the finding made by the authority in their petition under Art. 227 and if that is so, it would not be open to them to take that point even before us.In our opinion, this latter contention isd and must be upheld. It may be that the evidence available on the record is not very satisfactory and the pleas taken by the respondent on this part of the case were not as clear or specific as they should have been; even so, we do not think that we can examine the correctness of the said finding. Therefore, without expressing any opinion on the merits of the finding, we hold that the appellants are precluded from disputing the validity of that finding, and so, no question arises as to the contravention of S.23 of the
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S. Srinivasan Vs. Commissioner Of Income-Tax, Madras | be in the nature of deposits made by them with the firm, or in the nature of loans advanced by them to the firm, and interest earned on such deposits or loans can have no relationship with the membership of the firm of the wife or the admission to the benefits of the partnership of the minor sons. It appears to us that these accumulated profits remaining in the hands of the firm cannot, on any principle, be equated with deposits made or loans advanced. The profits accumulated to the credit of the wife and the minor sons, because they did not draw their share of profits when distribution of profits took place, and allowed those profits to remain with the firm; but there is no suggestion at all that, at that stage, either the wife or the minor sons, or anyone on their. behalf, purported to enter into an arrangement with the firm to keep these accumulated profits as deposits. Similarly, there was no such contract which could convert those accumulations into loans advanced to the firm by these persons. The facts and circumstances indicate that the wife and the minor sons had earned these profits because of their membership of the firm or because of their admission to the benefits of the firm, and having earned these profits in that capacity, they allowed the use of their profits to the firm without any specific arrangement as would naturally have been entered into if these funds had belonged to a stranger. They let the firm use funds of theirs, because they had interest in the profits of the firm. The facts also show that the use of these moneys was allowed to the firm without asking for any interest, and it was only at a later stage that the three partners of the firm decided to give interest on these amounts. When the decision was taken to give interest, the nature of the funds did not change. They did not get converted into deposits or loans. They still remained accumulations belonging to a partner or persons admitted to the benefits of the partnership and allowed to be used by the firm. The Interest also appears to have been allowed by the firm simply because these funds belonged either to a partner or to the minors who had been admitted to the benefits of the partnership. It is thus clear that the interest at least indirectly arose and accrued to the wife and the minor sons because of their capacity mentioned in Section 10 (3) (a) (i) and (ii) of the Income-tax Act.4. In this connection, learned counsel for the appellant relied on a decision of the Bombay High Court in Bhogilal Laherchand v. Commr. of Income-tax, Bombay City, (1954) 25 ITR 523 : (AIR 1955 Bom 16 ). It was held in that case that interest earned by minors on deposits maintained in the firm could not be held to be a benefit which the minors received from their admission to the partnership of the firm. The case is inapplicable, because, as we have indicated above in this case the interest arising to the wife and the minor sons of the appellant was not the result of any deposits made by them with the firm.5. Chouthmal Kairiwal v. Commr. of Income-tax, Assam (1961) 41 ITR 570 (Assam), and Akula Venkatasubbaiah v. Commr. of Income-tax, (1963) 47 ITR 458 (Andh Pra), were cases where interest was paid to the minors on the capital provided by them for the business of the partnership. In those cases, it was held that the interest on the capital contributed by the minor one was benefit arising from the admission of the minors to the benefits of the partnership, and consequently, that interest had to be included in the total income of the father in his assessment. These two cases are of no assistance, because the nature of the amount on which interest has accrued to the wife and the minor sons of the appellant is different and is not on capital advanced by them or on their behalf.6. Reference was also made by learned counsel to a decision of the Allahabad High Court in L. Ram Narain Garg v. Commr. of Income-tax, U. P., (1965) 55 ITR 435 (All), in which case also it was held that interest paid to a minor son admitted to the benefits of a partnership on his capital investment is income derived directly or indirectly by him from the admission and is includible in the income of the father under S. 16 (3) (a) (ii) of the Income-tax Act. It was further held that it cannot be stated as a matter of law that interest paid by a partnership to a minor admitted to its benefits can never be said to be connected even indirectly with the fact of his admission. It is connected with the fact if the interest paid is on capital investment by the minor or on a loan advanced to the partnership by the minor and the partnership deed forbids the raising of a loan from any person other than a partner or a person admitted to its benefits. It is not connected with the fact if the interest is paid on a deposit made, or loan advanced by the minor, and the partnership was free to accept a deposit or a loan from any person even if not connected with it. The principle enunciated by the Allahabad High Court does not envisage all circumstances in which interest may be earned by a minor on his moneys with the firm. The cases when interest is earned on a deposit or a loan differ from a case of the type before us where interest was earned on amounts of which the minors permitted the use by the firm, because they were their accumulated profits, arising from the firm itself and because of their interest in the firm as persons admitted to the benefits of the partnership. | 1[ds]2. So far as the first question is concerned, learned counsel appearing for the appellant himself did not press it before us in view of the decision of this Court in Balaji v.Officer, Special Investigation Circle, Akola, (1961) 43 ITR 393 : (AIR 1962 SC 123 ).That point was earlier decided by the Madras High Court in B. N. Amina Umma v.ITR 137: (AIR 1954 Mad 1120 ). It has been held by this Court in Balajis case, (1961) 43 ITR 393 : (AIR 1962 SC 123 ) (supra) that the provisions of Section 16 (3) (a) (i) and (ii) did not impose any unreasonable restriction on the fundamental rights of the assessee under Art. 19 (1) (f) and (g) of the Constitution, and were, consequently, valid. The first question has, therefore, been clearly answered correctly by the High Court against theappears to us that these accumulated profits remaining in the hands of the firm cannot, on any principle, be equated with deposits made or loans advanced. The profits accumulated to the credit of the wife and the minor sons, because they did not draw their share of profits when distribution of profits took place, and allowed those profits to remain with the firm; but there is no suggestion at all that, at that stage, either the wife or the minor sons, or anyone on their. behalf, purported to enter into an arrangement with the firm to keep these accumulated profits as deposits. Similarly, there was no such contract which could convert those accumulations into loans advanced to the firm by these persons. The facts and circumstances indicate that the wife and the minor sons had earned these profits because of their membership of the firm or because of their admission to the benefits of the firm, and having earned these profits in that capacity, they allowed the use of their profits to the firm without any specific arrangement as would naturally have been entered into if these funds had belonged to a stranger. They let the firm use funds of theirs, because they had interest in the profits of the firm. The facts also show that the use of these moneys was allowed to the firm without asking for any interest, and it was only at a later stage that the three partners of the firm decided to give interest on these amounts. When the decision was taken to give interest, the nature of the funds did not change. They did not get converted into deposits or loans. They still remained accumulations belonging to a partner or persons admitted to the benefits of the partnership and allowed to be used by the firm. The Interest also appears to have been allowed by the firm simply because these funds belonged either to a partner or to the minors who had been admitted to the benefits of the partnership. It is thus clear that the interest at least indirectly arose and accrued to the wife and the minor sons because of their capacity mentioned in Section 10 (3) (a) (i) and (ii) of the | 1 | 2,198 | 591 | ### Instruction:
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be in the nature of deposits made by them with the firm, or in the nature of loans advanced by them to the firm, and interest earned on such deposits or loans can have no relationship with the membership of the firm of the wife or the admission to the benefits of the partnership of the minor sons. It appears to us that these accumulated profits remaining in the hands of the firm cannot, on any principle, be equated with deposits made or loans advanced. The profits accumulated to the credit of the wife and the minor sons, because they did not draw their share of profits when distribution of profits took place, and allowed those profits to remain with the firm; but there is no suggestion at all that, at that stage, either the wife or the minor sons, or anyone on their. behalf, purported to enter into an arrangement with the firm to keep these accumulated profits as deposits. Similarly, there was no such contract which could convert those accumulations into loans advanced to the firm by these persons. The facts and circumstances indicate that the wife and the minor sons had earned these profits because of their membership of the firm or because of their admission to the benefits of the firm, and having earned these profits in that capacity, they allowed the use of their profits to the firm without any specific arrangement as would naturally have been entered into if these funds had belonged to a stranger. They let the firm use funds of theirs, because they had interest in the profits of the firm. The facts also show that the use of these moneys was allowed to the firm without asking for any interest, and it was only at a later stage that the three partners of the firm decided to give interest on these amounts. When the decision was taken to give interest, the nature of the funds did not change. They did not get converted into deposits or loans. They still remained accumulations belonging to a partner or persons admitted to the benefits of the partnership and allowed to be used by the firm. The Interest also appears to have been allowed by the firm simply because these funds belonged either to a partner or to the minors who had been admitted to the benefits of the partnership. It is thus clear that the interest at least indirectly arose and accrued to the wife and the minor sons because of their capacity mentioned in Section 10 (3) (a) (i) and (ii) of the Income-tax Act.4. In this connection, learned counsel for the appellant relied on a decision of the Bombay High Court in Bhogilal Laherchand v. Commr. of Income-tax, Bombay City, (1954) 25 ITR 523 : (AIR 1955 Bom 16 ). It was held in that case that interest earned by minors on deposits maintained in the firm could not be held to be a benefit which the minors received from their admission to the partnership of the firm. The case is inapplicable, because, as we have indicated above in this case the interest arising to the wife and the minor sons of the appellant was not the result of any deposits made by them with the firm.5. Chouthmal Kairiwal v. Commr. of Income-tax, Assam (1961) 41 ITR 570 (Assam), and Akula Venkatasubbaiah v. Commr. of Income-tax, (1963) 47 ITR 458 (Andh Pra), were cases where interest was paid to the minors on the capital provided by them for the business of the partnership. In those cases, it was held that the interest on the capital contributed by the minor one was benefit arising from the admission of the minors to the benefits of the partnership, and consequently, that interest had to be included in the total income of the father in his assessment. These two cases are of no assistance, because the nature of the amount on which interest has accrued to the wife and the minor sons of the appellant is different and is not on capital advanced by them or on their behalf.6. Reference was also made by learned counsel to a decision of the Allahabad High Court in L. Ram Narain Garg v. Commr. of Income-tax, U. P., (1965) 55 ITR 435 (All), in which case also it was held that interest paid to a minor son admitted to the benefits of a partnership on his capital investment is income derived directly or indirectly by him from the admission and is includible in the income of the father under S. 16 (3) (a) (ii) of the Income-tax Act. It was further held that it cannot be stated as a matter of law that interest paid by a partnership to a minor admitted to its benefits can never be said to be connected even indirectly with the fact of his admission. It is connected with the fact if the interest paid is on capital investment by the minor or on a loan advanced to the partnership by the minor and the partnership deed forbids the raising of a loan from any person other than a partner or a person admitted to its benefits. It is not connected with the fact if the interest is paid on a deposit made, or loan advanced by the minor, and the partnership was free to accept a deposit or a loan from any person even if not connected with it. The principle enunciated by the Allahabad High Court does not envisage all circumstances in which interest may be earned by a minor on his moneys with the firm. The cases when interest is earned on a deposit or a loan differ from a case of the type before us where interest was earned on amounts of which the minors permitted the use by the firm, because they were their accumulated profits, arising from the firm itself and because of their interest in the firm as persons admitted to the benefits of the partnership.
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1
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2. So far as the first question is concerned, learned counsel appearing for the appellant himself did not press it before us in view of the decision of this Court in Balaji v.Officer, Special Investigation Circle, Akola, (1961) 43 ITR 393 : (AIR 1962 SC 123 ).That point was earlier decided by the Madras High Court in B. N. Amina Umma v.ITR 137: (AIR 1954 Mad 1120 ). It has been held by this Court in Balajis case, (1961) 43 ITR 393 : (AIR 1962 SC 123 ) (supra) that the provisions of Section 16 (3) (a) (i) and (ii) did not impose any unreasonable restriction on the fundamental rights of the assessee under Art. 19 (1) (f) and (g) of the Constitution, and were, consequently, valid. The first question has, therefore, been clearly answered correctly by the High Court against theappears to us that these accumulated profits remaining in the hands of the firm cannot, on any principle, be equated with deposits made or loans advanced. The profits accumulated to the credit of the wife and the minor sons, because they did not draw their share of profits when distribution of profits took place, and allowed those profits to remain with the firm; but there is no suggestion at all that, at that stage, either the wife or the minor sons, or anyone on their. behalf, purported to enter into an arrangement with the firm to keep these accumulated profits as deposits. Similarly, there was no such contract which could convert those accumulations into loans advanced to the firm by these persons. The facts and circumstances indicate that the wife and the minor sons had earned these profits because of their membership of the firm or because of their admission to the benefits of the firm, and having earned these profits in that capacity, they allowed the use of their profits to the firm without any specific arrangement as would naturally have been entered into if these funds had belonged to a stranger. They let the firm use funds of theirs, because they had interest in the profits of the firm. The facts also show that the use of these moneys was allowed to the firm without asking for any interest, and it was only at a later stage that the three partners of the firm decided to give interest on these amounts. When the decision was taken to give interest, the nature of the funds did not change. They did not get converted into deposits or loans. They still remained accumulations belonging to a partner or persons admitted to the benefits of the partnership and allowed to be used by the firm. The Interest also appears to have been allowed by the firm simply because these funds belonged either to a partner or to the minors who had been admitted to the benefits of the partnership. It is thus clear that the interest at least indirectly arose and accrued to the wife and the minor sons because of their capacity mentioned in Section 10 (3) (a) (i) and (ii) of the
|
Munni Lal Vs. Bishwanath Prasad & Ors | such related to parjoti land. The custom that was prevailing was co-extensive with Mahomedan Law, whether it applied to parjoti land or not would depend upon the provisions of Mahomedan Law. The first appellate court which was apparently not unaware of the provisions of Mahomedan Law with respect to pre-emption seems to have held that though there vas some ground-rent payable, the holder of parjoti land was for all intents and purposes the owner. The High Court was therefore not right in saying that it had been found by the two courts below that the custom of pre-emption prevailing in the city of Benaras applied even to transfer of parjoti land. All that the two courts had found was that the custom prevailing in the city of Benaras was co-extensive with Mahomedan Law. 9. This immediately raises the question as to what is the extent of Mahomedan Law in the matter of pre-emption. The contention on behalf of the appellant is that Mahomedan Law recognises pre-emption only with respect to full proprietary rights and that it does not recognise pre-emption with respect to lease-hold rights. We are of opinion that this contention is well founded. In Principles of Mahomedan Law by D. F. Mulla (15th Edition), the extent of pre-emption in Mahomedan Law is thus stated at p. 207 :-"There must be also full ownership in the land pre-empted, and therefore the right of pre-emption does not arise on the sale of a leasehold interest in land. This statement of law is supported by a number of decisions to which reference may now be made. The earilest of these decisions is Baboo Ram Golam Singh v. Nursing Sahoy, (1875) 25 Suth WR 43. In that case, mokureree land was sold and the owner wanted to pre-empt the sale. The court held that the mokurereedar did not stand in the same position as the malik and the law of pre-emption only applied to the sales of land of a malik i. e., proprietor. Therefore there could be no pre-emption where the sale was of only mokureree rights which were permanent lease-hold rights. 10. The next case to which reference may be made is Phul Mohammad Khan v. Qazi Kutubuddin, ILR (1937) 16 Pat 519 = (AIR 1937 Pat 578 ). In that case the Patna High Court held that Mahomedan Law of pre-emption did not apply to pre-empting mukarrari and raiyati rights, the sale of such interests being not of full proprietary interests. 11. The next case to which reference may be made is Dashrathlal Chhaganlal v. Bai Dhondubai, ILR (1941) Bom 460 = AIR 1941 Bom 262 ) There also the right of pre-emption arose by custom and was co-extensive with Mahomedan Law. The property sold in that case was a plot of land with two rooms on it in which the vendors hat transferable and heritable rights and some rent was paid to Government on account of the permanent lease on which the land was held. The High Court held that Mahomedan Law of pre-emption with which the custom of pre-emption was co-extensive applied only as between freeholders, that is to say, the neighbouring land in respect of which the custom was claimed must be free hold and the land sought to be pre-empted must also be freehold. It did not arise on the sale of leasehold interest in land. 12. The next case to which reference may be made in Rameshwar Lal v. Ramdeo Jha, AIR 1957 Pat 695 . In that case rayati land had been sold and a suit was brought to pre-empt that sale. The Patna High Court held that there could be no pre-emption with respect to rayati land which amounted to a leasehold, whatsoever might be the ground on which the pre-emption might be sought under Mahomedan Law. 13. These cases bear out the proposition which has been accepted without dissent by High Courts that Mahomedan Law of pre-emption applies only to sales where they are of full ownership and pre-emptors must also base their claim on similar full ownership whether pre-emption is claimed on ground of co-sharership, vicinage or participation in amenities and appendages. 14. Learned counsel for the respondent relied on Bhagwati Prasad v. Balgobind, AIR 1933 Oudh 161 for the proposition that there could be pre-emption of leasehold interest also for that was a case of lease. Pre-emption there was claimed not under Mahomedan Law but under the Oudh Laws Act. That case therefore does not help the respondent.The law in our opinion is quite clear and it is that under the Mahomedan law of preemption there must be full ownership in the land pre-empted and therefore the right of pre-emption does not arise on the sale of leasehold interest in land. It may be added that the pre-emptor also must have full ownership in order to maintain a suit for pre-emption for reciprocity is the basis of. Mahomedan Law of pre-emption. 15. In this view of the matter, as the custom which was found proved was co-extensive with Mahomedan Law, there can be no pre-emption of the land which had been sold by the impugned sale-deed because the land was parjoti land i. e. leasehold. We may in this connection refer to Oudh Behari Singh v. Gajadhar Jaipuriya, AIR 1955 All 698 . That was also a case of pre-emption relating to this very mohalla in the city of Benaras, and the land pre-empted was parjoti land i e. leasehold. It was held by the Allahabad High Court that the sale of parjoti land corresponding to lessees right could not be a subject of pre-emption. The learned Judges pointed out in that case that no case had been brought to their notice in which lessees rights were held pre-emption under Mahomedan Law. As the property sold was leasehold land it was not open to the respondent to pre-empt it under a custom which was co-extensive with Mahomedan Law whatever might be the ground on which pre-emption was claimed. 16. | 1[ds]It is thus clear that all that was found by the two lower courts was that there was a custom of pre-emption prevailing in the city of Benaras which was co-extensive with Mahomedan Law and which bound Hindus also whether they were residents there or not, so long as the property to be pre-empted was in the city of Benaras8. It is true that the first appellate court held that the custom applied to leasehold land also because it was of opinion that the holder of parjoti land was for all intents and purposes the owner. But that does not mean that the two courts had found that the custom as such related to parjoti land. The custom that was prevailing was co-extensive with Mahomedan Law, whether it applied to parjoti land or not would depend upon the provisions of Mahomedan Law. The first appellate court which was apparently not unaware of the provisions of Mahomedan Law with respect to pre-emption seems to have held that though there vas some ground-rent payable, the holder of parjoti land was for all intents and purposes the owner. The High Court was therefore not right in saying that it had been found by the two courts below that the custom of pre-emption prevailing in the city of Benaras applied even to transfer of parjoti land. All that the two courts had found was that the custom prevailing in the city of Benaras was co-extensive with Mahomedan LawIn this view of the matter, as the custom which was found proved was co-extensive with Mahomedan Law, there can be no pre-emption of the land which had been sold by the impugned sale-deed because the land was parjoti land i. e. leasehold. We may in this connection refer to Oudh Behari Singh v. Gajadhar Jaipuriya, AIR 1955 All 698 . That was also a case of pre-emption relating to this very mohalla in the city of Benaras, and the land pre-empted was parjoti land i e. leasehold. It was held by the Allahabad High Court that the sale of parjoti land corresponding to lessees right could not be a subject of pre-emption. The learned Judges pointed out in that case that no case had been brought to their notice in which lessees rights were held pre-emption under Mahomedan Law. As the property sold was leasehold land it was not open to the respondent to pre-empt it under a custom which was co-extensive with Mahomedan Law whatever might be the ground on which pre-emption was claimed. | 1 | 2,503 | 441 | ### 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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such related to parjoti land. The custom that was prevailing was co-extensive with Mahomedan Law, whether it applied to parjoti land or not would depend upon the provisions of Mahomedan Law. The first appellate court which was apparently not unaware of the provisions of Mahomedan Law with respect to pre-emption seems to have held that though there vas some ground-rent payable, the holder of parjoti land was for all intents and purposes the owner. The High Court was therefore not right in saying that it had been found by the two courts below that the custom of pre-emption prevailing in the city of Benaras applied even to transfer of parjoti land. All that the two courts had found was that the custom prevailing in the city of Benaras was co-extensive with Mahomedan Law. 9. This immediately raises the question as to what is the extent of Mahomedan Law in the matter of pre-emption. The contention on behalf of the appellant is that Mahomedan Law recognises pre-emption only with respect to full proprietary rights and that it does not recognise pre-emption with respect to lease-hold rights. We are of opinion that this contention is well founded. In Principles of Mahomedan Law by D. F. Mulla (15th Edition), the extent of pre-emption in Mahomedan Law is thus stated at p. 207 :-"There must be also full ownership in the land pre-empted, and therefore the right of pre-emption does not arise on the sale of a leasehold interest in land. This statement of law is supported by a number of decisions to which reference may now be made. The earilest of these decisions is Baboo Ram Golam Singh v. Nursing Sahoy, (1875) 25 Suth WR 43. In that case, mokureree land was sold and the owner wanted to pre-empt the sale. The court held that the mokurereedar did not stand in the same position as the malik and the law of pre-emption only applied to the sales of land of a malik i. e., proprietor. Therefore there could be no pre-emption where the sale was of only mokureree rights which were permanent lease-hold rights. 10. The next case to which reference may be made is Phul Mohammad Khan v. Qazi Kutubuddin, ILR (1937) 16 Pat 519 = (AIR 1937 Pat 578 ). In that case the Patna High Court held that Mahomedan Law of pre-emption did not apply to pre-empting mukarrari and raiyati rights, the sale of such interests being not of full proprietary interests. 11. The next case to which reference may be made is Dashrathlal Chhaganlal v. Bai Dhondubai, ILR (1941) Bom 460 = AIR 1941 Bom 262 ) There also the right of pre-emption arose by custom and was co-extensive with Mahomedan Law. The property sold in that case was a plot of land with two rooms on it in which the vendors hat transferable and heritable rights and some rent was paid to Government on account of the permanent lease on which the land was held. The High Court held that Mahomedan Law of pre-emption with which the custom of pre-emption was co-extensive applied only as between freeholders, that is to say, the neighbouring land in respect of which the custom was claimed must be free hold and the land sought to be pre-empted must also be freehold. It did not arise on the sale of leasehold interest in land. 12. The next case to which reference may be made in Rameshwar Lal v. Ramdeo Jha, AIR 1957 Pat 695 . In that case rayati land had been sold and a suit was brought to pre-empt that sale. The Patna High Court held that there could be no pre-emption with respect to rayati land which amounted to a leasehold, whatsoever might be the ground on which the pre-emption might be sought under Mahomedan Law. 13. These cases bear out the proposition which has been accepted without dissent by High Courts that Mahomedan Law of pre-emption applies only to sales where they are of full ownership and pre-emptors must also base their claim on similar full ownership whether pre-emption is claimed on ground of co-sharership, vicinage or participation in amenities and appendages. 14. Learned counsel for the respondent relied on Bhagwati Prasad v. Balgobind, AIR 1933 Oudh 161 for the proposition that there could be pre-emption of leasehold interest also for that was a case of lease. Pre-emption there was claimed not under Mahomedan Law but under the Oudh Laws Act. That case therefore does not help the respondent.The law in our opinion is quite clear and it is that under the Mahomedan law of preemption there must be full ownership in the land pre-empted and therefore the right of pre-emption does not arise on the sale of leasehold interest in land. It may be added that the pre-emptor also must have full ownership in order to maintain a suit for pre-emption for reciprocity is the basis of. Mahomedan Law of pre-emption. 15. In this view of the matter, as the custom which was found proved was co-extensive with Mahomedan Law, there can be no pre-emption of the land which had been sold by the impugned sale-deed because the land was parjoti land i. e. leasehold. We may in this connection refer to Oudh Behari Singh v. Gajadhar Jaipuriya, AIR 1955 All 698 . That was also a case of pre-emption relating to this very mohalla in the city of Benaras, and the land pre-empted was parjoti land i e. leasehold. It was held by the Allahabad High Court that the sale of parjoti land corresponding to lessees right could not be a subject of pre-emption. The learned Judges pointed out in that case that no case had been brought to their notice in which lessees rights were held pre-emption under Mahomedan Law. As the property sold was leasehold land it was not open to the respondent to pre-empt it under a custom which was co-extensive with Mahomedan Law whatever might be the ground on which pre-emption was claimed. 16.
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### Explanation:
It is thus clear that all that was found by the two lower courts was that there was a custom of pre-emption prevailing in the city of Benaras which was co-extensive with Mahomedan Law and which bound Hindus also whether they were residents there or not, so long as the property to be pre-empted was in the city of Benaras8. It is true that the first appellate court held that the custom applied to leasehold land also because it was of opinion that the holder of parjoti land was for all intents and purposes the owner. But that does not mean that the two courts had found that the custom as such related to parjoti land. The custom that was prevailing was co-extensive with Mahomedan Law, whether it applied to parjoti land or not would depend upon the provisions of Mahomedan Law. The first appellate court which was apparently not unaware of the provisions of Mahomedan Law with respect to pre-emption seems to have held that though there vas some ground-rent payable, the holder of parjoti land was for all intents and purposes the owner. The High Court was therefore not right in saying that it had been found by the two courts below that the custom of pre-emption prevailing in the city of Benaras applied even to transfer of parjoti land. All that the two courts had found was that the custom prevailing in the city of Benaras was co-extensive with Mahomedan LawIn this view of the matter, as the custom which was found proved was co-extensive with Mahomedan Law, there can be no pre-emption of the land which had been sold by the impugned sale-deed because the land was parjoti land i. e. leasehold. We may in this connection refer to Oudh Behari Singh v. Gajadhar Jaipuriya, AIR 1955 All 698 . That was also a case of pre-emption relating to this very mohalla in the city of Benaras, and the land pre-empted was parjoti land i e. leasehold. It was held by the Allahabad High Court that the sale of parjoti land corresponding to lessees right could not be a subject of pre-emption. The learned Judges pointed out in that case that no case had been brought to their notice in which lessees rights were held pre-emption under Mahomedan Law. As the property sold was leasehold land it was not open to the respondent to pre-empt it under a custom which was co-extensive with Mahomedan Law whatever might be the ground on which pre-emption was claimed.
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The State Of Uttar Pradesh And Others Vs. Raja Syed Mohammad Saadat Ali Khan | "extra-territorial" powers. It is unnecessary to express any opinion on this argument, because the legislature of the State of Uttar Pradesh has, since the judgment delivered by the High Court in this group of cases, amended the U. P. Agricultural Income Tax Act (Act III of 1949) by Act XIV of 1956, giving retrospective operation to the amending provisions. By the amendment, Cl. 4 of S. 2 of the original Act has been substituted by two clauses, Cl. 4 and Cl. 4-a, and Cl. 4-a enacts that the expression "Collector" shall have and shall be deemed always to have the meaning as in the U. P. Land Revenue Act, 1901, and will include an Additional Collector appointed under the said Act. By S. 10(1) (b), all orders made, actions or proceedings taken, directions issued or jurisdictions exercised under or in accordance with the provisions of the Principal Act or of any rule framed thereunder prior to the amendment of that Act are to be deemed always to be as good and valid in law as if the amending Act had been in force at all material dates. By S. 10, sub-s. 1 (a) of the amending Act, it is provided that in R. 18 of the U. P. Agricultural Income Tax Rules, 1949, the expression "Collector" shall be deemed to have included an Additional Collector : and it is enacted by sub-s. 2 of that section that where any question arose as to the validity or legality of any assessment made by an Additional Collector in purported exercise of the powers under S. 14 or of the rules framed under Cl. (o) of sub-s. 2 of S. 44 of the Act III of 1949, the same shall be determined as if the provisions of this amending Act had been in force at all material dates. By the amending Act, the legislature has enacted in language which is clear and explicit that assessment proceedings held by an Additional Collector who is invested with the powers of a Collector under Act III of 1901 shall be deemed always to have been properly taken.5. This court is seized of an appeal from the order of the High Court quashing the assessment on the ground that the Additional Collector had no "extra-territorial" authority to assess agricultural income-tax. It is true that Act III of 1949 was amended after the High Court delivered its judgment; but in dealing with this appeal, we are bound to consider the amended law as it stands today (and which must be deemed to have so stood at all material times) and to give effect to it, having regard to the clearly expressed intention of the legislature in the amended provisions.Accordingly we hold that the Additional Collector was competent to assess the liability of the assessee to pay agricultural income-tax and super-tax under the United Provinces Agricultural Income-tax Act III of 1949.6. For the assessee, it is contended that before the High Court an application for review of the judgment was submitted by the State Government under S. 11 of the amending Act, and the High Court having rejected that application and no further proceeding having been initiated in this court challenging the correctness of that decision, it is not open to us to set aside the judgment under appeal. In support of this plea, it is urged that an application for review of judgment is the only remedy available to a person aggrieved by a decision of a court or authority for rectification of an order inconsistent with the provisions of the amending Act, and if, for any reason, that application for review is not filed or is filed and rejected, it is not open to a court or authority exercising appellate powers against that decision to adjudicate the dispute in the light of the amending Act.7. Section 11, in so far as it is material, provides:"Where before the commencement of this Act, any court or authority has, in any proceedings under the Principal Act, set aside any assessment made by an Additional Collector merely on the ground that the assessing authority had no jurisdiction to make the assessment, any party to the proceedings may, at any time, within ninety days from the commencement of the Act apply to the court or authority for a review of the proceedings in the light of the provisions of this Act, and the court or authority to which the application is made, shall review the proceedings accordingly."8. Relying on S. 11, the State of Uttar Pradesh, it is true, did submit an application for review of the judgment of the High Court and the High Court rejected that application observing:"That section (S. 11) applies however only to cases in which the assessment has been set aside in any proceedings under the Principal Act. In the cases before us, the assessment has not been set aside in any proceedings under the Principal Act but in exercise of the jurisdiction vested in this court under Art. 226 of the Constitution. These three petitions are therefore not maintainable.........".9. We need express no opinion on the correctness of this view, because in our judgment, the contention of the assessee that for setting aside an adverse order inconsistent with the provisions of the amending Act of 1956, a proceeding for review under S. 11 is the only remedy which is open to an aggrieved party, is without force. A court of appeal, in an appeal properly before it, must give effect to the law as it stands if the law has at some stage anterior to the hearing of the appeal been amended retrospectively with the object of conferring upon the authority or tribunal of first instance from the order whereof the appeal is filed jurisdiction which it originally lacked: and a provision for review like the one contained in S. 11 of the amending Act does not affect the power of the appellate court to deal with the appeal in the light of the amended law. | 1[ds]5. This court is seized of an appeal from the order of the High Court quashing the assessment on the ground that the Additional Collector had no "extra-territorial" authority to assess agricultural income-tax. It is true that Act III of 1949 was amended after the High Court delivered its judgment; but in dealing with this appeal, we are bound to consider the amended law as it stands today (and which must be deemed to have so stood at all material times) and to give effect to it, having regard to the clearly expressed intention of the legislature in the amended provisions.Accordingly we hold that the Additional Collector was competent to assess the liability of the assessee to pay agricultural income-tax and super-tax under the United Provinces Agricultural Income-tax Act III of 1949.We need express no opinion on the correctness of this view, because in our judgment, the contention of the assessee that for setting aside an adverse order inconsistent with the provisions of the amending Act of 1956, a proceeding for review under S. 11 is the only remedy which is open to an aggrieved party, is without force. A court of appeal, in an appeal properly before it, must give effect to the law as it stands if the law has at some stage anterior to the hearing of the appeal been amended retrospectively with the object of conferring upon the authority or tribunal of first instance from the order whereof the appeal is filed jurisdiction which it originally lacked: and a provision for review like the one contained in S. 11 of the amending Act does not affect the power of the appellate court to deal with the appeal in the light of the amended law. | 1 | 1,827 | 310 | ### 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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"extra-territorial" powers. It is unnecessary to express any opinion on this argument, because the legislature of the State of Uttar Pradesh has, since the judgment delivered by the High Court in this group of cases, amended the U. P. Agricultural Income Tax Act (Act III of 1949) by Act XIV of 1956, giving retrospective operation to the amending provisions. By the amendment, Cl. 4 of S. 2 of the original Act has been substituted by two clauses, Cl. 4 and Cl. 4-a, and Cl. 4-a enacts that the expression "Collector" shall have and shall be deemed always to have the meaning as in the U. P. Land Revenue Act, 1901, and will include an Additional Collector appointed under the said Act. By S. 10(1) (b), all orders made, actions or proceedings taken, directions issued or jurisdictions exercised under or in accordance with the provisions of the Principal Act or of any rule framed thereunder prior to the amendment of that Act are to be deemed always to be as good and valid in law as if the amending Act had been in force at all material dates. By S. 10, sub-s. 1 (a) of the amending Act, it is provided that in R. 18 of the U. P. Agricultural Income Tax Rules, 1949, the expression "Collector" shall be deemed to have included an Additional Collector : and it is enacted by sub-s. 2 of that section that where any question arose as to the validity or legality of any assessment made by an Additional Collector in purported exercise of the powers under S. 14 or of the rules framed under Cl. (o) of sub-s. 2 of S. 44 of the Act III of 1949, the same shall be determined as if the provisions of this amending Act had been in force at all material dates. By the amending Act, the legislature has enacted in language which is clear and explicit that assessment proceedings held by an Additional Collector who is invested with the powers of a Collector under Act III of 1901 shall be deemed always to have been properly taken.5. This court is seized of an appeal from the order of the High Court quashing the assessment on the ground that the Additional Collector had no "extra-territorial" authority to assess agricultural income-tax. It is true that Act III of 1949 was amended after the High Court delivered its judgment; but in dealing with this appeal, we are bound to consider the amended law as it stands today (and which must be deemed to have so stood at all material times) and to give effect to it, having regard to the clearly expressed intention of the legislature in the amended provisions.Accordingly we hold that the Additional Collector was competent to assess the liability of the assessee to pay agricultural income-tax and super-tax under the United Provinces Agricultural Income-tax Act III of 1949.6. For the assessee, it is contended that before the High Court an application for review of the judgment was submitted by the State Government under S. 11 of the amending Act, and the High Court having rejected that application and no further proceeding having been initiated in this court challenging the correctness of that decision, it is not open to us to set aside the judgment under appeal. In support of this plea, it is urged that an application for review of judgment is the only remedy available to a person aggrieved by a decision of a court or authority for rectification of an order inconsistent with the provisions of the amending Act, and if, for any reason, that application for review is not filed or is filed and rejected, it is not open to a court or authority exercising appellate powers against that decision to adjudicate the dispute in the light of the amending Act.7. Section 11, in so far as it is material, provides:"Where before the commencement of this Act, any court or authority has, in any proceedings under the Principal Act, set aside any assessment made by an Additional Collector merely on the ground that the assessing authority had no jurisdiction to make the assessment, any party to the proceedings may, at any time, within ninety days from the commencement of the Act apply to the court or authority for a review of the proceedings in the light of the provisions of this Act, and the court or authority to which the application is made, shall review the proceedings accordingly."8. Relying on S. 11, the State of Uttar Pradesh, it is true, did submit an application for review of the judgment of the High Court and the High Court rejected that application observing:"That section (S. 11) applies however only to cases in which the assessment has been set aside in any proceedings under the Principal Act. In the cases before us, the assessment has not been set aside in any proceedings under the Principal Act but in exercise of the jurisdiction vested in this court under Art. 226 of the Constitution. These three petitions are therefore not maintainable.........".9. We need express no opinion on the correctness of this view, because in our judgment, the contention of the assessee that for setting aside an adverse order inconsistent with the provisions of the amending Act of 1956, a proceeding for review under S. 11 is the only remedy which is open to an aggrieved party, is without force. A court of appeal, in an appeal properly before it, must give effect to the law as it stands if the law has at some stage anterior to the hearing of the appeal been amended retrospectively with the object of conferring upon the authority or tribunal of first instance from the order whereof the appeal is filed jurisdiction which it originally lacked: and a provision for review like the one contained in S. 11 of the amending Act does not affect the power of the appellate court to deal with the appeal in the light of the amended law.
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5. This court is seized of an appeal from the order of the High Court quashing the assessment on the ground that the Additional Collector had no "extra-territorial" authority to assess agricultural income-tax. It is true that Act III of 1949 was amended after the High Court delivered its judgment; but in dealing with this appeal, we are bound to consider the amended law as it stands today (and which must be deemed to have so stood at all material times) and to give effect to it, having regard to the clearly expressed intention of the legislature in the amended provisions.Accordingly we hold that the Additional Collector was competent to assess the liability of the assessee to pay agricultural income-tax and super-tax under the United Provinces Agricultural Income-tax Act III of 1949.We need express no opinion on the correctness of this view, because in our judgment, the contention of the assessee that for setting aside an adverse order inconsistent with the provisions of the amending Act of 1956, a proceeding for review under S. 11 is the only remedy which is open to an aggrieved party, is without force. A court of appeal, in an appeal properly before it, must give effect to the law as it stands if the law has at some stage anterior to the hearing of the appeal been amended retrospectively with the object of conferring upon the authority or tribunal of first instance from the order whereof the appeal is filed jurisdiction which it originally lacked: and a provision for review like the one contained in S. 11 of the amending Act does not affect the power of the appellate court to deal with the appeal in the light of the amended law.
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Naresh Kumar Vs. Kalawati and others | stated that both the respondents have killed his sister. He then states that the deceased had told him she was set on fire by respondent no.1. 9. A dying declaration is admissible in evidence under Section 32 of the Indian Evidence Act, 1872. It alone can also form the basis for conviction if it has been made voluntarily and inspires confidence. If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of doubt shall have to be given to the accused. Therefore much shall depend on the facts of a case. There can be no rigid standard or yardstick for acceptance or rejection of a dying declaration. 10. The first statement of the deceased made to P.W. 13 is based on hearsay as deposed by P.W. 20 that she was set on fire by respondent no.2. There is no reference to respondent no.1 in this statement and neither has she said anything about dowry demand. The next statement of the deceased, blaming respondent no.1 alone does not name respondent no1. It is not signed by anybody and the Doctor who recorded the statement has not been examined. Merely because his signature has been identified by P.W. 19 cannot establish the correctness of its contents. The next statement of the deceased has been recorded by P.W. 25, blaming respondent no.1 alone without any allegation against respondent no.2, and on the contrary states that she was brought to the hospital by respondent no.2. It again does not disclose any dowry demand. 11. P.W. 25 who recorded the dying declaration does not state that the deceased was in a fit state of mind to make the statement. He states that the Doctor had certified fitness of mind of the deceased, when the dying declaration itself contains no such statement. In cross examination he acknowledges that the fitness of the deceased was certified by a resident junior doctor separately but whose signature and endorsement is not available on the dying declaration. At this stage it is relevant to notice the statement of P.W. 19 who acknowledges that Dr. Anant Sinha has not signed in his presence and that at times doctors would come and put their signatures in the record room. 12. In Paparambaka Rosamma and others vs. State of Andhra Pradesh, (1999) 7 SCC 695, distinguishing between consciousness and fitness of state of mind to make a statement, it was observed: 9. It is true that the medical officer Dr K. Vishnupriya Devi (P.W. 10) at the end of the dying declaration had certified patient is conscious while recording the state- ment. It has come on record that the injured Smt Venkata Ramana had sustained extensive burn injuries on her person. Dr P. Koteswara Rao (P.W. 9) who per- formed the post-mortem stated that the injured had sustained 90% burn injuries. In this case as stated ear- lier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prose- cution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr Smt K. Vishnupriya Devi (P.W.10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that patient is conscious while recording the state- ment. In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P-14) as true and genuine and as made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below. 13. In the facts and circumstances of the present case, considering that the statements of the deceased have vacillated, there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remains suspect. It would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents. 14. Parthu (Supra) is distinguishable on its facts. Despite the absence of a certificate of fitness of state of mind on the dying declaration, the Doctor was examined as a witness and proved the fitness of the state of mind. 15. Sukanti (supra) is again distinguishable on its own facts as follows: 25. Further, though no specific endorsement has been made on the dying declaration but there is contemporaneous evidence in the form of Ext. 9/1 which makes it clear that the Doctor recording the dying declaration had recorded that the patient was oriented to time and place and mentally clear at the time of recording of the dying declaration. xxxxxxxxx 35. The Doctor who recorded the dying declaration was examined as a witness and he had in his deposition categorically stated that the deceased while making the aforesaid statement was conscious and in a fit mental condition to make such a statement. The aforesaid position makes it therefore clear that the aforesaid dying declaration could be relied upon as the same was truthfully recorded and the said statement gave a vivid account of the manner in which the incident had taken place. 16. In Heeralal (supra), noticing the discrepancies in the two dying declarations, it was held that the conviction could not be founded upon the dying declaration. | 0[ds]6. We have considered the submissions on behalf of the parties and have also perused the evidence available on the record. Though the discretionary jurisdiction of this Court under Article 136 of the Constitution is very wide, it has been a rule of practice and prudence not to interfere with concurrent finding of facts ar- rived at by two courts, by a reappreciation of evidence, to arrive at its own conclusion, unless there has been complete misappreciation of evidence, or there is gross perversity in arriving at the findings, causing serious miscarriage of justice. If the view taken by two courts is a reasonably possible view, this Court would be reluctant to interfere with a concurrent order of acquittal. In State of Goa vs. Sanjay Thakran & Ors., (2007) 3 SCC 755, it was observed:16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the or- der of acquittal the court of appeal would not ordinar- ily interfere with the order of acquittal unless the ap- proach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judg- ment delivered by the court below. However, the ap- pellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the ac- cused is connected with commission of the crime he is charged with.The deceased was married to respondent no. 2 about 1½ years ago. She suspected a promiscuous relationship between the respondents. The deceased even after 1½ of marriage was unable to conceive. A probable defence has been taken that she committed suicide out of frustration.8. The deceased had suffered 95% burn injuries at home on 17.09.1991 at about 4:30 pm while making tea. She was brought to Safdarjung Hospital at 6:00 pm. She is said to have initially told the police at the hospital that she had been set on fire by her husband. The deceased was examined by the said Dr. Anant Sinha at about 6:00 pm and prepared her MLC. She is stated to have told him that she had been set on fire by the wife of her husbands elder brother while making tea. The MLC records her as being fully conscious. It is signed only by the Doctor who has not been examined. The deceased is then stated to have made a dying declaration before P.W. 25 that she was set on fire by respondent no.1 by pouring kerosene oil while she was making tea and that her husband had brought her to the hospital. It bears her right toe impression as her hands were burnt. The statement bears the signature of Dr. Anant Sinha. His signature has been proved by P.W. 19. But it does not bear any endorsement by the Doctor with regard to his presence during the recording of the same and the fit state of mind by the deceased to make the statement. P.W. nos. 3 and 4 have stated that the deceased told them that she was set on fire by respondent no.1. P.W. 5 has stated that both the respondents have killed his sister. He then states that the deceased had told him she was set on fire by respondent no.1.9. A dying declaration is admissible in evidence under Section 32 of the Indian Evidence Act, 1872. It alone can also form the basis for conviction if it has been made voluntarily and inspires confidence. If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of doubt shall have to be given to the accused. Therefore much shall depend on the facts of a case. There can be no rigid standard or yardstick for acceptance or rejection of a dying declaration.10. The first statement of the deceased made to P.W. 13 is based on hearsay as deposed by P.W. 20 that she was set on fire by respondent no.2. There is no reference to respondent no.1 in this statement and neither has she said anything about dowry demand. The next statement of the deceased, blaming respondent no.1 alone does not name respondent no1. It is not signed by anybody and the Doctor who recorded the statement has not been examined. Merely because his signature has been identified by P.W. 19 cannot establish the correctness of its contents. The next statement of the deceased has been recorded by P.W. 25, blaming respondent no.1 alone without any allegation against respondent no.2, and on the contrary states that she was brought to the hospital by respondent no.2. It again does not disclose any dowry demand.11. P.W. 25 who recorded the dying declaration does not state that the deceased was in a fit state of mind to make the statement. He states that the Doctor had certified fitness of mind of the deceased, when the dying declaration itself contains no such statement. In cross examination he acknowledges that the fitness of the deceased was certified by a resident junior doctor separately but whose signature and endorsement is not available on the dying declaration. At this stage it is relevant to notice the statement of P.W. 19 who acknowledges that Dr. Anant Sinha has not signed in his presence and that at times doctors would come and put their signatures in the record room.12. In Paparambaka Rosamma and others vs. State of Andhra Pradesh, (1999) 7 SCC 695, distinguishing between consciousness and fitness of state of mind to make a statement, it was observed:9. It is true that the medical officer Dr K. Vishnupriya Devi (P.W. 10) at the end of the dying declaration had certified patient is conscious while recording the state- ment. It has come on record that the injured Smt Venkata Ramana had sustained extensive burn injuries on her person. Dr P. Koteswara Rao (P.W. 9) who per- formed the post-mortem stated that the injured had sustained 90% burn injuries. In this case as stated ear- lier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prose- cution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr Smt K. Vishnupriya Devi (P.W.10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that patient is conscious while recording the state- ment. In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P-14) as true and genuine and as made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below.13. In the facts and circumstances of the present case, considering that the statements of the deceased have vacillated, there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remains suspect. It would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents.14. Parthu (Supra) is distinguishable on its facts. Despite the absence of a certificate of fitness of state of mind on the dying declaration, the Doctor was examined as a witness and proved the fitness of the state of mind.15. Sukanti (supra) is again distinguishable on its own facts as follows:25. Further, though no specific endorsement has been made on the dying declaration but there is contemporaneous evidence in the form of Ext. 9/1 which makes it clear that the Doctor recording the dying declaration had recorded that the patient was oriented to time and place and mentally clear at the time of recording of the dying declaration.35. The Doctor who recorded the dying declaration was examined as a witness and he had in his deposition categorically stated that the deceased while making the aforesaid statement was conscious and in a fit mental condition to make such a statement. The aforesaid position makes it therefore clear that the aforesaid dying declaration could be relied upon as the same was truthfully recorded and the said statement gave a vivid account of the manner in which the incident had taken place.16. In Heeralal (supra), noticing the discrepancies in the two dying declarations, it was held that the conviction could not be founded upon the dying declaration. | 0 | 2,715 | 1,747 | ### Instruction:
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stated that both the respondents have killed his sister. He then states that the deceased had told him she was set on fire by respondent no.1. 9. A dying declaration is admissible in evidence under Section 32 of the Indian Evidence Act, 1872. It alone can also form the basis for conviction if it has been made voluntarily and inspires confidence. If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of doubt shall have to be given to the accused. Therefore much shall depend on the facts of a case. There can be no rigid standard or yardstick for acceptance or rejection of a dying declaration. 10. The first statement of the deceased made to P.W. 13 is based on hearsay as deposed by P.W. 20 that she was set on fire by respondent no.2. There is no reference to respondent no.1 in this statement and neither has she said anything about dowry demand. The next statement of the deceased, blaming respondent no.1 alone does not name respondent no1. It is not signed by anybody and the Doctor who recorded the statement has not been examined. Merely because his signature has been identified by P.W. 19 cannot establish the correctness of its contents. The next statement of the deceased has been recorded by P.W. 25, blaming respondent no.1 alone without any allegation against respondent no.2, and on the contrary states that she was brought to the hospital by respondent no.2. It again does not disclose any dowry demand. 11. P.W. 25 who recorded the dying declaration does not state that the deceased was in a fit state of mind to make the statement. He states that the Doctor had certified fitness of mind of the deceased, when the dying declaration itself contains no such statement. In cross examination he acknowledges that the fitness of the deceased was certified by a resident junior doctor separately but whose signature and endorsement is not available on the dying declaration. At this stage it is relevant to notice the statement of P.W. 19 who acknowledges that Dr. Anant Sinha has not signed in his presence and that at times doctors would come and put their signatures in the record room. 12. In Paparambaka Rosamma and others vs. State of Andhra Pradesh, (1999) 7 SCC 695, distinguishing between consciousness and fitness of state of mind to make a statement, it was observed: 9. It is true that the medical officer Dr K. Vishnupriya Devi (P.W. 10) at the end of the dying declaration had certified patient is conscious while recording the state- ment. It has come on record that the injured Smt Venkata Ramana had sustained extensive burn injuries on her person. Dr P. Koteswara Rao (P.W. 9) who per- formed the post-mortem stated that the injured had sustained 90% burn injuries. In this case as stated ear- lier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prose- cution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr Smt K. Vishnupriya Devi (P.W.10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that patient is conscious while recording the state- ment. In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P-14) as true and genuine and as made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below. 13. In the facts and circumstances of the present case, considering that the statements of the deceased have vacillated, there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remains suspect. It would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents. 14. Parthu (Supra) is distinguishable on its facts. Despite the absence of a certificate of fitness of state of mind on the dying declaration, the Doctor was examined as a witness and proved the fitness of the state of mind. 15. Sukanti (supra) is again distinguishable on its own facts as follows: 25. Further, though no specific endorsement has been made on the dying declaration but there is contemporaneous evidence in the form of Ext. 9/1 which makes it clear that the Doctor recording the dying declaration had recorded that the patient was oriented to time and place and mentally clear at the time of recording of the dying declaration. xxxxxxxxx 35. The Doctor who recorded the dying declaration was examined as a witness and he had in his deposition categorically stated that the deceased while making the aforesaid statement was conscious and in a fit mental condition to make such a statement. The aforesaid position makes it therefore clear that the aforesaid dying declaration could be relied upon as the same was truthfully recorded and the said statement gave a vivid account of the manner in which the incident had taken place. 16. In Heeralal (supra), noticing the discrepancies in the two dying declarations, it was held that the conviction could not be founded upon the dying declaration.
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she was set on fire by respondent no.1. P.W. 5 has stated that both the respondents have killed his sister. He then states that the deceased had told him she was set on fire by respondent no.1.9. A dying declaration is admissible in evidence under Section 32 of the Indian Evidence Act, 1872. It alone can also form the basis for conviction if it has been made voluntarily and inspires confidence. If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of doubt shall have to be given to the accused. Therefore much shall depend on the facts of a case. There can be no rigid standard or yardstick for acceptance or rejection of a dying declaration.10. The first statement of the deceased made to P.W. 13 is based on hearsay as deposed by P.W. 20 that she was set on fire by respondent no.2. There is no reference to respondent no.1 in this statement and neither has she said anything about dowry demand. The next statement of the deceased, blaming respondent no.1 alone does not name respondent no1. It is not signed by anybody and the Doctor who recorded the statement has not been examined. Merely because his signature has been identified by P.W. 19 cannot establish the correctness of its contents. The next statement of the deceased has been recorded by P.W. 25, blaming respondent no.1 alone without any allegation against respondent no.2, and on the contrary states that she was brought to the hospital by respondent no.2. It again does not disclose any dowry demand.11. P.W. 25 who recorded the dying declaration does not state that the deceased was in a fit state of mind to make the statement. He states that the Doctor had certified fitness of mind of the deceased, when the dying declaration itself contains no such statement. In cross examination he acknowledges that the fitness of the deceased was certified by a resident junior doctor separately but whose signature and endorsement is not available on the dying declaration. At this stage it is relevant to notice the statement of P.W. 19 who acknowledges that Dr. Anant Sinha has not signed in his presence and that at times doctors would come and put their signatures in the record room.12. In Paparambaka Rosamma and others vs. State of Andhra Pradesh, (1999) 7 SCC 695, distinguishing between consciousness and fitness of state of mind to make a statement, it was observed:9. It is true that the medical officer Dr K. Vishnupriya Devi (P.W. 10) at the end of the dying declaration had certified patient is conscious while recording the state- ment. It has come on record that the injured Smt Venkata Ramana had sustained extensive burn injuries on her person. Dr P. Koteswara Rao (P.W. 9) who per- formed the post-mortem stated that the injured had sustained 90% burn injuries. In this case as stated ear- lier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prose- cution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr Smt K. Vishnupriya Devi (P.W.10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that patient is conscious while recording the state- ment. In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P-14) as true and genuine and as made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below.13. In the facts and circumstances of the present case, considering that the statements of the deceased have vacillated, there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remains suspect. It would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents.14. Parthu (Supra) is distinguishable on its facts. Despite the absence of a certificate of fitness of state of mind on the dying declaration, the Doctor was examined as a witness and proved the fitness of the state of mind.15. Sukanti (supra) is again distinguishable on its own facts as follows:25. Further, though no specific endorsement has been made on the dying declaration but there is contemporaneous evidence in the form of Ext. 9/1 which makes it clear that the Doctor recording the dying declaration had recorded that the patient was oriented to time and place and mentally clear at the time of recording of the dying declaration.35. The Doctor who recorded the dying declaration was examined as a witness and he had in his deposition categorically stated that the deceased while making the aforesaid statement was conscious and in a fit mental condition to make such a statement. The aforesaid position makes it therefore clear that the aforesaid dying declaration could be relied upon as the same was truthfully recorded and the said statement gave a vivid account of the manner in which the incident had taken place.16. In Heeralal (supra), noticing the discrepancies in the two dying declarations, it was held that the conviction could not be founded upon the dying declaration.
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Sri Indra Das Vs. State of Assam | sale since a wider construction would have resulted in attributing to the Bihar Legislature an intention to legislate beyond its competence. 37. In Section 6(a) of the Hindu Minority and Guardianship Act, 1956 which provides that the natural guardian of a minors person or property will be `the father and after him, the mother, the words `after him were construed not to mean `only after the lifetime of the father but to mean `in the absence of, as the former construction would have made the section unconstitutional being violative of the constitutional provision against sex discrimination vide Githa Hariharan vs. Reserve Bank of India AIR 1999 SC 1149 . 38. In Govindlalji vs. State of Rajasthan AIR 1963 SC 1638 , where a question arose as to the Constitutional validity of the Rajasthan Nathdwara Temple Act (13 of 1959), the wordsaffairs of the temple occurring in Section 16 of the said Act were construed as restricted to secular affairs as on a wider construction the Section would have violated Articles 25 and 26 of the Constitution. 39. This Court in R.L. Arora vs. State of U.P. AIR 1964 SC 1230 applied the same principle in construing Section 40(1), clause (aa) of the Land Acquisition Act, 1894, as amended by Act 31 of 1962 so as to confine its application to such `building or work which will subserve the public purpose of the industry or work in which the company, for which acquisition is made, is engaged. A wider and a literal construction of the clause would have brought it in conflict with Article 31(2) of the Constitution and would have rendered it unconstitutional. 40. In Indian Oil Corporation vs. Municipal Corporation AIR 1993 SC 844 Section 123 of the Punjab Municipal Corporation Act, 1976 which empowered the Corporation to levy octroi on articles and animals `imported into the city was read down to mean articles and animals `imported into the municipal limits for purposes of consumption, use or sale only, as a wide construction would have made the provision unconstitutional being in excess of the power of the State Legislature conferred by Entry 52 of List II of Schedule VII of the Constitution. 41. A further illustration, where general words were read down to keep the legislation within permissible constitutional limits, is furnished in the construction of Section 5 of the Lotteries (Regulation) Act, 1998 which reads: `A State Government may, within the State prohibit the sale of tickets of a lottery organized conducted or promoted by every other State. To avoid the vice of discrimination and excessive delegation, the Section was construed to mean that a State can only ban lotteries of other States, when it decides as a policy to ban its own lotteries, or in other words, when it decides to make the State a lottery free zone vide BR Enterprises vs. State of U.P. AIR 1999 SC 1867 . 42. It may be mentioned that there were Constitutions in our country even under British Rule e.g. the Government of India Act, 1935, and the earlier Government of India Acts. These Constitutions, however, did not have fundamental right guaranteed to the people. In sharp contrast to these is the Constitution of 1950 which has fundamental rights in Part III. These fundamental rights are largely on the pattern of the Bill of Rights to the U.S. Constitution. 43. Had there been no Constitution having Fundamental Rights in it then of course a plain and literal meaning could be given to Section 3 (5) of TADA or Section 10 of the Unlawful Activities (Prevention) Act. But since there is a Constitution in our country providing for democracy and Fundamental Rights we cannot give these statutory provisions such a meaning as that would make them unconstitutional. 44. In State of Maharashtra & Ors. Vs. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 ( para 23) this Court observed : ...Personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights or the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental. The imperative necessity to protect these rights is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien Government trample upon human rights which the country had fought hard to preserve. They believed like Jefferson that an elective despotism was not the Government we fought for. And, therefore, while arming the Government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people. (vide A.K. Roy Vs. Union of India (1982) 1 SCC 271 , and Attorney General for India Vs. Amratlal Prajivandas, (1994) 5 SCC 54. [emphasis supplied] In M. Nagaraj & Ors. Vs. Union of India &Ors. (2006) 8 SCC 212 , (para 20) this Court observed : It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any Constitution by reason of the basic fact that they are members of the human race. In I.R. Coelho (dead) By LRs. Vs. State of T.N., (2007) 2 SCC 1 (vide paragraphs 109 and 49), this Court observed : It is necessary to always bear in mind that fundamental rights have been considered to be heart and soul of the Constitution.....Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as transcendental, inalienable, and primordial. | 1[ds]26. It has been submitted by the learned counsel for the Government before the TADA Court that under many laws mere membership of an organization is illegal e.g. Section 3(5) of Terrorists and Disruptive Activities, 1989, Section 10 of the Unlawful Activities (Prevention ) Act 1967, etc. In our opinion these statutory provisions cannot be read in isolation, but have to be read in consonance with the Fundamental Rights guaranteed by our Constitution31. Similarly, we are of the opinion that the provisions in various statutes i.e. 3 (5) of TADA or Section 10 of the Unlawful Activities (Prevention) which on their plain language make mere membership of a banned organization criminal have to be read down and we have to depart from the literal rule of interpretation in such cases, otherwise these provisions will become unconstitutional as violative of Articles 19 and 21 of the Constitution. It is true that ordinarily we should follow the literal rule of interpretation while construing a statutory provision, but if the literal interpretation makes the provision unconstitutional we can depart from it so that the provision becomes constitutional34. The rule was applied by the Supreme Court in Kedar Nath Singh vs. State of Bihar (we have already referred to this decision earlier) in its construction of Section 124A of the IPC. The Section which relates to the offence of sedition makes a person punishable who `by words, either spoken or written or by sign or visible representations, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law. The Section, as construed by the Privy Council in Bal Gangadhar Tilak vs. Queen Empress ILR 22 Bom 528 (PC); Annie Besant vs. A-G of Madras AIR 1919 PC 31; and Emperor vs. Sadasiv Narain AIR 1947 PC 84; did not make it essential for an activity to come within its mischief that the same should involve intention or tendency to create disorder, or disturbance of law and order or incitement to violence. The Federal Court in Niharendra Dutta vs. Emperor AIR 1942 FC 22 had, however, taken a different view. In the Supreme Court when the question came up as to the Constitutional validity of the Section, the Court differing from the Privy Council adopted the construction placed by the Federal Court and held that on a correct construction, the provisions of the Section are limited in their application to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence; and one of the reasons for adopting this construction was to avoid the result of unconstitutionality in view of Articles 19(1)(a) and 19(2) of the Constitution | 1 | 5,600 | 511 | ### 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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sale since a wider construction would have resulted in attributing to the Bihar Legislature an intention to legislate beyond its competence. 37. In Section 6(a) of the Hindu Minority and Guardianship Act, 1956 which provides that the natural guardian of a minors person or property will be `the father and after him, the mother, the words `after him were construed not to mean `only after the lifetime of the father but to mean `in the absence of, as the former construction would have made the section unconstitutional being violative of the constitutional provision against sex discrimination vide Githa Hariharan vs. Reserve Bank of India AIR 1999 SC 1149 . 38. In Govindlalji vs. State of Rajasthan AIR 1963 SC 1638 , where a question arose as to the Constitutional validity of the Rajasthan Nathdwara Temple Act (13 of 1959), the wordsaffairs of the temple occurring in Section 16 of the said Act were construed as restricted to secular affairs as on a wider construction the Section would have violated Articles 25 and 26 of the Constitution. 39. This Court in R.L. Arora vs. State of U.P. AIR 1964 SC 1230 applied the same principle in construing Section 40(1), clause (aa) of the Land Acquisition Act, 1894, as amended by Act 31 of 1962 so as to confine its application to such `building or work which will subserve the public purpose of the industry or work in which the company, for which acquisition is made, is engaged. A wider and a literal construction of the clause would have brought it in conflict with Article 31(2) of the Constitution and would have rendered it unconstitutional. 40. In Indian Oil Corporation vs. Municipal Corporation AIR 1993 SC 844 Section 123 of the Punjab Municipal Corporation Act, 1976 which empowered the Corporation to levy octroi on articles and animals `imported into the city was read down to mean articles and animals `imported into the municipal limits for purposes of consumption, use or sale only, as a wide construction would have made the provision unconstitutional being in excess of the power of the State Legislature conferred by Entry 52 of List II of Schedule VII of the Constitution. 41. A further illustration, where general words were read down to keep the legislation within permissible constitutional limits, is furnished in the construction of Section 5 of the Lotteries (Regulation) Act, 1998 which reads: `A State Government may, within the State prohibit the sale of tickets of a lottery organized conducted or promoted by every other State. To avoid the vice of discrimination and excessive delegation, the Section was construed to mean that a State can only ban lotteries of other States, when it decides as a policy to ban its own lotteries, or in other words, when it decides to make the State a lottery free zone vide BR Enterprises vs. State of U.P. AIR 1999 SC 1867 . 42. It may be mentioned that there were Constitutions in our country even under British Rule e.g. the Government of India Act, 1935, and the earlier Government of India Acts. These Constitutions, however, did not have fundamental right guaranteed to the people. In sharp contrast to these is the Constitution of 1950 which has fundamental rights in Part III. These fundamental rights are largely on the pattern of the Bill of Rights to the U.S. Constitution. 43. Had there been no Constitution having Fundamental Rights in it then of course a plain and literal meaning could be given to Section 3 (5) of TADA or Section 10 of the Unlawful Activities (Prevention) Act. But since there is a Constitution in our country providing for democracy and Fundamental Rights we cannot give these statutory provisions such a meaning as that would make them unconstitutional. 44. In State of Maharashtra & Ors. Vs. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 ( para 23) this Court observed : ...Personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights or the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental. The imperative necessity to protect these rights is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien Government trample upon human rights which the country had fought hard to preserve. They believed like Jefferson that an elective despotism was not the Government we fought for. And, therefore, while arming the Government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people. (vide A.K. Roy Vs. Union of India (1982) 1 SCC 271 , and Attorney General for India Vs. Amratlal Prajivandas, (1994) 5 SCC 54. [emphasis supplied] In M. Nagaraj & Ors. Vs. Union of India &Ors. (2006) 8 SCC 212 , (para 20) this Court observed : It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any Constitution by reason of the basic fact that they are members of the human race. In I.R. Coelho (dead) By LRs. Vs. State of T.N., (2007) 2 SCC 1 (vide paragraphs 109 and 49), this Court observed : It is necessary to always bear in mind that fundamental rights have been considered to be heart and soul of the Constitution.....Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as transcendental, inalienable, and primordial.
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26. It has been submitted by the learned counsel for the Government before the TADA Court that under many laws mere membership of an organization is illegal e.g. Section 3(5) of Terrorists and Disruptive Activities, 1989, Section 10 of the Unlawful Activities (Prevention ) Act 1967, etc. In our opinion these statutory provisions cannot be read in isolation, but have to be read in consonance with the Fundamental Rights guaranteed by our Constitution31. Similarly, we are of the opinion that the provisions in various statutes i.e. 3 (5) of TADA or Section 10 of the Unlawful Activities (Prevention) which on their plain language make mere membership of a banned organization criminal have to be read down and we have to depart from the literal rule of interpretation in such cases, otherwise these provisions will become unconstitutional as violative of Articles 19 and 21 of the Constitution. It is true that ordinarily we should follow the literal rule of interpretation while construing a statutory provision, but if the literal interpretation makes the provision unconstitutional we can depart from it so that the provision becomes constitutional34. The rule was applied by the Supreme Court in Kedar Nath Singh vs. State of Bihar (we have already referred to this decision earlier) in its construction of Section 124A of the IPC. The Section which relates to the offence of sedition makes a person punishable who `by words, either spoken or written or by sign or visible representations, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law. The Section, as construed by the Privy Council in Bal Gangadhar Tilak vs. Queen Empress ILR 22 Bom 528 (PC); Annie Besant vs. A-G of Madras AIR 1919 PC 31; and Emperor vs. Sadasiv Narain AIR 1947 PC 84; did not make it essential for an activity to come within its mischief that the same should involve intention or tendency to create disorder, or disturbance of law and order or incitement to violence. The Federal Court in Niharendra Dutta vs. Emperor AIR 1942 FC 22 had, however, taken a different view. In the Supreme Court when the question came up as to the Constitutional validity of the Section, the Court differing from the Privy Council adopted the construction placed by the Federal Court and held that on a correct construction, the provisions of the Section are limited in their application to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence; and one of the reasons for adopting this construction was to avoid the result of unconstitutionality in view of Articles 19(1)(a) and 19(2) of the Constitution
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Sandhya Rani Sarkar Vs. Sudha Rani Debi And Ors | which claim was thoroughly unjust and improper, and second, the demand of- Rs, 2, 000/- spent by her in making the tenant vacate a portion of the premises. The contract was to be completed by April 1956 it was not completed till 1957 even though the defendant after satisfying the queries of the plaintiff fixed different dates on different occasions calling upon the plaintiff to complete the transaction. Thereafter plaintiff filled a suit. The suit was de creed on 30th April 1962. We have already at another place referred to this decree. to point out that the plaintiff by that decree was called upon to deposit the balance of consideration within 30 days of the date of the decree. This would mean that she had to deposit the balance of consideration by the end of May 1962. She did not deposit the amount by the stipulated date.. She asked for extension of time. Thereafter she moved an application for ascertaining the area of excess land which was being sold to her. Under this pretext she did not deposit the balance of consideration. Thereafter when the Commissioner prepared the map and the Court fixed another date to deposit the amount, she questioned the order of the. Court in the High Court and after the High Court dismissed her revision application and called upon her to deposit the balance of consideration she again sought extension and ultimately deposited the amount on 6th February 1968. This would show that at the material point of time she did not have the necessary wherewithal to pay the balance of consideration and to take the conveyance and this would provide tell-tale evidence to explain her conduct in putting forth one or the other impediment in the path of performance of the contract. If in the background of this evidence the High Court reached the conclusion that she did not have the necessary wherewithal with her to pay the balance of consideration and take the deed of conveyance, one cannot take any exception to it. But in this connection Mr. Chatterjee contended that the plaintiff seeking specific performance of the contract is. not required to show that she has at all material time necessary cash wit h her to per- form her part of the contract. It is enough if the- plaintiff can show that she was in a position to raise the money required at or about the time when the contract was to be; performed and she discharges the obligation of provin g readiness and willingness so far as the financial aspect is concerned. Reliance was placed on Jitendra Nath Roy v. Smt. Maheswari Bose(A.I.R. 1965 Calcutta 45.). Undoubtedly, the question would be, while examining the readiness and willingness of the plaintiff to perform her part of the contract to find out whether she would be in a position to take the conveyance by paying the balance of consideration and that the enquiry may well be, made whether she would be in a position to raise the money. Reference was also made to Bank of India Ltd. v. Jamsetji A. H. Chinoy and Another(77 I.A. 76.), where it was held that the plaintiff seeking to prove that he was ready and willing to fulfil his financial obligations has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. After the High Court dismissed her revision application and fixed the date 8th January 1968 for depositing the amount, she had no further contention to put forth and she should have deposited the amount yet she sought extension of time. And along with this, one must keep in view her contention that she had to sell her ornaments to raise the amount for which she did not step into the witness box to prove her contention. In this background it does appear that the plaintiff had not the. necessary wherewithal to perform her part of the contract. It was next contended that the relief for specific performance being discretionary and the tri al Court having exercised its discretion one way in favour of the plaintiff, the High Court should not have interfered with the same. It may be recalled that on major points of dispute between the parties the trial Court and the High Court recorded concurrent findings to wit the claim of the plaintiff for sale of one foot of land to north of property and the demand of Rs. 2, 000/- spent by the plaintiff for removing the tenant. The third dispute was about removal of fixtures from t he northern wall by the defendant. The trial court held that the defendant committed default in removing the fixtures. Our attention was drawn to the relevant correspondence on the subject. It was urged that the defendant was required to remove the fixtures on the northern wan. On this point the trial court held that the defendant committed default in removing the fixtures. In fact, the correspondence would show, that the fixtures could be. removed in a short time and the defendant was always willing to remove the fixture. But the trial court held that the defendant committed a default in this behalf and recorded a finding that as both the plaintiff and the defendant committed default law must take its own course, viz., the plaintiff should get a decree for specific performance of that contract. The High Court examined this contention meticulously. , So have we done here. In fact, it prominently appears that the plaintiff put off performing her part of the contract presumably because she had not the necessary wherewithal to take the conveyance when she would be obliged to pay the balance of consideration and having obtained possession struck on to it without meeting her obligation. If in this background the High Court interfered with the decree of the trial court, we see nothing objectionable in it. The decree for specific performance in this case has been rightly refused and this appeal is liable to be dismissed. | 0[ds]We have gone through the application filed by the appellant before the High Court praying for condoning delay. It was asserted that the appeal, is within time and alternatively it was p rayed that delay, if any, be condoned. The High Court examined both limbs of the contention. We see no contradiction in what is stated in the application and what the High Court found as acontention is that decree was a preliminary decree and on deposit it became a final decree. Alternatively it was contended that various events that occurred since the decree did create an impression in the mind of the vendor appellant that till the balance of purchase price was deposited the right to file an appeal did not arise and that a final decree would be made. That was pleaded and that has been accepted. Therefore, there is no merit in this contention. Very serious exception is taken to one observation of the High Court that an application for condoning the delay was submitted simultaneously with filing the appeal though in fact it was done nearly four years after filing of the appeal, and that the office of the High Court was misled by certain averments made in the Memo of Appeal which the Registry prima facie accepted and numbered the appeal without insisting upon an application for condonation of delay or bringing that fact to the notice of the Court on whose cause list the appeal was listed for admission. Now, it is undoubtedly true that the application for condoning the delay was made on 8th August 1972 and there is some factual errorin the judgment that the application was simultaneously filed with the appeal. But this aspect is not very material as the delay had to be explained till the date of filing of the appeal and not at any rate after filing of the appeal or till the application for condoning the delay was made. It is true that in the Memo of Appeal it has been stated that the appeal is directed against the judgment and decree dated 30th April 1962 as amended and/or modified by orders dated 8th January 1968 and 2nd February 1968. The averments are factually correct and, therefore, it could not be said that they were made with a view to misleading the Registry of the High Court. By the decree dated 30th April 1962 purchaser was directed to deposit the balance of consideration within the stipulated time and at the request of the purchaser the time was first extended by the trial Court and then by the High Court in Civil Revision Application No. 3195 of 1965 on two different occasions, viz. on 8th January 1968 and 2nd February 1968. Therefore, no exception can be taken to those avertments which are factually correct though the appeal would lie obviously against the decree dated 30th April 1962. It, however, appears that as the appeal was numbered and was even admitted, though the application for condoning delay was not made till the appeal was placed on the cause list and was actually taken up for hearing when an objection was raised that the appeal was barred by limitation. It is obviously at that stage that the application for condoning delay was made.The appellant before the High Court did honestly believe that the decree was a preliminary decree and only after the deposit as directed therein was made by the plaintiff purchaser that a final decree would be made. The learned trial judge has also styled it as a preliminary decree. Subsequent steps which have been listed in detail above clearly show that the plaintiff purchaser did not deposit the amount and in fact got a Commissioner appointed for determining the area of excess land and when the report of the Commissioner was accepted by the trial Court, that decision was questioned by the plaintiff in Civil Revision No. 3195/65. If since the decree the plaintiff sought extension of time for depositing the amount which was the obligation imposed by the decree the performance of which will make the decree executable againstor may honestly, though erroneously, believe that there was no decree against which she could appeal unless the deposit was made. The decree also provided that failure to deposit would entail dismissal of the suit. The defendant may honestly believe that if the consideration is not deposited the suit would stand dismissed and it would not be necessary to prefer an appeal at all. Such a contention may not stand the scrutiny of a law Court but the question to which we must address ourselves is whether the defendant vendor on account of this peculiar situation could be said to be prevented by a sufficient cause from preferring an appeal in time ? Soon after the deposit was made she first requested the Court to draw up a final decree which request was turned down and she immediately preferred the appeal. These are relevant considerations while examining a request for condoning the delay in preferring an appeal and on these relevant considerations if the High Court is satisfied simultaneously keeping in view the conduct of the, Plaintiff since the date of the decree a case for condoning the delay is made out, and no exception can be taken to it. It is undoubtedly true that in dealing with the question of condoning the delay under s. 5 of the Limitation A ct the party seeking relief has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the, prescribed time and this has always been understood to mean that the explanation has to cover the whole period of delay, vide Sitaram Rancharan etc. v. M. N. Nagarshana &Others(1). However, it is not possible to lay down precisely as to what facts or matters would constitute sufficient cause under s. 5 of the Limitation Act. But those words should be liberally construed so as to advance substantial, justice when no negligence or any inaction or want of bona fides is imputable to a party, i.e., the delay in filing an appeal should not have been for. reasons which indicate the partys negligence in not taking necessary steps which he would have or should have taken. What would be such necessary steps will again depend upon. the circumstances of a particular case (vide State of West Bengal v. Administrator, Howrah Municipality and others([1970] 1 S.C.R. 875 at 889.). Discretion is conferred on the Court before which an application for condoning delay is made and if the Court after keeping in view relevant principles exercises its discretion granting relief unless it is shown to be manifestly unjust or perverse, this Court would be loathe, to interfere with it.The High Court took into consideration the fact that no affidavit in opposition to the application for condoning delay was filed even thorough copy of the application was served on the present appellant who was respondent before the High Court and accordingly it was concluded that averments in the application remained unrebutted. The High Court also took into consideration the relevant fact that plaintiff sought extension of time to deposit balance of consideration from time to time and this is important because if the deposit was not made the suit was likely to be dismissed as per the decree of the trial Court as well as the order of the High Court in Civil Revision Application No. 3195 of 1965. The High Court recapitulated the events since the judgment of the trial Court and concluded that it was satisfied that the appellant before it had sufficient cause for not preferring the appeal within the period as prescribed in law and accordingly condoned the delay in preferring the appeal. In our opinion these are vital and relevant considerations was considering the prayer for condoning the delay in prefer ring the appeal and no case is made out for interfering with theit be recalled that the contract of which plaintiff seeks performance is dated 8th February 1956 and the parties had agreed to complete the transaction by the end of April 1956. The contract provided that within a week from the date of the agreement the, vendor shall give to the purchaser for proper inspection all origin al documents of title and other papers connected therewith and necessary information and the purchaser shall within a period of 3 one and half months from such inspection of the documents and other papers and receipt of other particulars and information complete her searches in respect of the property and the vendors title being proved good and marketable So the satisfaction of the purchaser the deed of conveyance will be executed and registered within fifteen days thereof in favour of the purchaser or her nominee or nominees at the cost of the purchaser or such nominee or nominees. The vendor also, agreed and undertook to deliver to the purchaser vacant and peaceful possession of the property to be sold with the execution of the deed ofappears that the contention in the form it was canvassed before us was not raised before the High Court. Nor does it appear to have been contended before the trial Court. However, it must be stated that in a slightly different form this contention was pressed before the trial Court in support of the submission that the plaintiff was entitled as per terms of the contract to one foot of land to the north of the property to be purchased and the trial Court which bad in fact decreed the plaintiffs suit, had on this point held against the plaintiff. Mr. Mukherjee for the respondent submitted that title was approved by the plaintiff by 30th April 1956 and then she was put in possession of a substantial portion of the premises. At any rate, during the extended period the title of the vendor was accepted by the plaintiff and the draft of conveyance deed prepared by her attorney was accepted by the vendor and yet the plaintiff failed to take conveyance by the date next fixed for the samean untenable controversy about 1 foot of land to the north of the property to be sol d to her. Therefore, even if vendor failed to submit title deeds in time it loses all significance. Save this, the finding of the High Court that the defendant had complied with all the requests made by the plaintiff to complete the transaction in time could not be assailed.The High Court reversed the decree of the trial. Court holding that the plaintiff purchaser had under one pretext or other put off the taking of the deed of conveyance and delayed performing her part of the contract. The correctness of this finding was seriously assailed on behalf of the appellant. It was urged that the High Court itself has found in this case that time was not, the essence of the contract nor was it made essence of the contract because the date for performance was extended on number ofis undoubtedly true that the High Court has recorded a finding (p. 32) that time was not the essence of the contract nor was it made essence of the contract by a specific notice, but it is equally true that the plaintiff seeks relief for specific performance of contract and it is incumbent upon the plaint iff to affirmatively establish that all throughout he or she, as the case may be, was willing to perform his or her part of the contract, and that the failure on the part of the plaintiff to perform the contract or willingness to perform her part of the contract may in an appropriate case disentitle her to relief, one such situation being where there is inordinate delay on the part of the plaintiff to, perform his orof the contract and that is how the High Court has approached the matter in this case. One, aspect of the case which deserves notice is that by the terms of the contract the vendor had to put the purchase in possession of the property when conveyance is executed and balance of consideration is paid and, that was to be done by the end of April 1956. Even though the plaintiff purchaser had failed to perform any portion of her part of the contract by the end of April 1956, the vendor put the plaintiff in actual possession of the first and second floor s of the premises to be sold on 28th April 1956 and the plaintiff is in possession of the same till today that is after a lapse of more than 20 years. On the other hand, she deposited after struggle and procrastination the balance of consideration on 6th February 1968 that is nearly 12 years after the date of agreement. The plaintiff thus enjoyed actual possession of the property from April 1956 to February 1968 when she parted with consideration without paying a farthing for the use and occupation of the premises which, on a reasonable construction of the contract, she was not entitled at all, till she parted with the full consideration and took the conveyance. This has undoubtedly weighed with the High Court in coming to the conclusion that the plaintiff is disentitled to a relief of specific performance ofquestion whether relief of specific performance of the contract for the purchase of immoveable property should be granted or not always depends on the facts and circumstances of each case and the Court would not grant such a relief if it gives the plaintiff an unfair advantage over the, defendant. A few relevant facts of the case would unmistakably show that if a decree for specific performance in this case is grant ed it would give the plaintiff an unfair advantage over the defendant. The defendant was obliged to sell the property because it was mortgaged with HindustanInsurance Society Ltd., and the mortgagee Company had filed Title Suit No. 10/656 for realisation of mortgage dues. The vendor then had thus a compelling necessity to sell the, property to save the property from being sold at a Court auction. It is in this background that we have to appreciate the conduct of the plaintiff. The stages within which the contract was to be completed were clearly demarcated and set out in the contract itself and by the end of April 1956 the transaction was to be completed. In her anxiety to see that the transaction was completed the defendant vendor put the plaintiff in possession of a substantial portion of the property even when the plaintiff had not paid a major part of the consideration. This would clearly evidence the anxiety of t he defendant to successfully complete the contract within the stipulated time. To repel this submission on the flimsy ground that mortgage was not referred to in the contract for sale is to ignore the letter on behalf of the defendant date d 25th February 1956 in which it is specifically stated that the title deeds of the property in question were lying in the court ofat Alipore in which HindustanInsurance Society Ltd., had filed a suit for realisation of mortgage dues. And the procrastination on the part of the plaintiff put the defendant then in such a disadvantageous position that she was forced to sell the adjacent property86A, Rash BehariAvenue to Hindu Maha Sabha to raise enough money to pay off the dues in respect of the property which the plaintiff desired to purchase. If in this background the High Court took into consideration the fact that while the defendant did everything within her power to meet the requests made by the plaintiff, the latter avoided performing her part of the contract under one or the other pretext and, therefore, is disentitled to a decree for specific performance, no serious exception can be taken to this finding.Mr. Chatterjee, however, contended that assuming there was delay on the part of the plaintiff in performing her part of the contract, once she was put in possession of a substantial portion of the property which was intended to be purchased, a decree for specific performance could not be refused. In this connection be invited our attention to para 474, Halsburys Laws of England, III Edition, Vol. 36, p. 325, where it is observed that delay does not, however, bar a claim to specific performance if the plaintiff has been in substantial possession of the benefits under the contract and is merely claiming completion of the legal estate. Reference was also made toWilliams v. Greatrex.([1956] All E. R.705.) In that case the delay was of 10 years before entire period of 10 years neither side gave notice requiring bringing an action for specific performance. During the other to complete the transaction. In this background the fact that the intending purchaser was put in possession of the plots acquired considerable importance and after considering the question of laches, a decree for specific performance was granted. But the conclusion was reached on the facts of that case. In the case before us the defendant had on as many as three different occasions invited the plaintiff to complete the transaction. By Ext. 2H, 17th July 1956 was fixed as the date for execution and registration and by Ext. 2J dated 9th August 1956, 12th August 1956 was fixed as the date for execution and registration of the conveyance. Again by letter dated 27th August 1956, Ext. 2P, the plaintiff was informed that if the transaction was not completed within a week from 26th August 1956, the defendant would treat the agreement of sale a s cancelled, forfeit the earnest money and claim damages for wrongful use and occupation of the premises. In this background it is not possible to accept the submission that even if the plaintiff was guilty of delay in performing her part of the contract, in view of the fact that she is in possession of a substantial portion of the property which is theof this appeal, the delay should be overlooked and a decree for specific performance should be granted.The correspondence that passed between the parties prominently brought out three points of dispute between the parties. The plaintiff claimed sale of one foot of land to the north of the property involved in dispute. Reliance was placed in support of the submission on the map annexed to the agreement. The map prepared by the Commissioner was also referred to. It is not necessary to examine evidence on this point because both the trial Court which decreed the plaintiffs suit and the High Court which held against the plaintiff have recorded a concurrent finding that the plaintiff was not entitled as part of the agreement to purchase one foot of land to the north of the property. In fact, it has been held that this claim was purposely invented by the plaintiff fully knowing that to the north of the premises 88A, Rash Behari Avenue there was no land appurtenant to the said premises. Even if both the maps are compared it is not possible to come to the , conclusion that there was any such land which was included in the agreement of sale. If there was no such land which could be sold to the plaintiff and yet if the plaintiff persisted in making this demand, the High Court and the trial Court were both amply justified in coming to the conclusion that this claim was invented with a view to putting off the date for performing her part of thethis connection, the letter Ext. 2P on behalf of the defendant clearly shows that demarcation of the boundary was already done. The dispute about demarcation has hardly any relevance. In fact, the dispute is raised by the plaintiff when she claims one foot of land to the north of property. Even if one relies upon the map annexed to the agreement, the claim is not substantiated. Both the trial court and the High Court have concurrently found that no such land was agreed to be sold. If the plaintiff still persists in making such a demand she is asking the defendant to perform an agreement which was not entered into between the parties. However, this matter can be looked at from a slightly different angle also in that when the Commissioner prepared the map the plaintiff questioned it in the High Court and the High Court accepted the Commissioners map showing which was the property to be sold by the defendant to the plaintiff and this map did not contain one foot of land to the north of the property. The contention about one foot of land to the north was already negatived and could not be reagitated before the High Court. Even apart from this technical aspect substantially on evidence also the, plaintiff fails on this point. Yet she delayed performing her part by insisting upon buying one foot of land.Another dispute between the parties was with regard to the claim of Rs. 2, 000/which the plaintiff appears to have paid to the tenant to get him vacate a portion of the premises so that she could take over possession. Both the trial court and the High Court have rejected this claim observing that if the plaintiff voluntarily paid something for her own benefit she could not claim the same from the defendant. There is nothing to show that this amount was paid by the plaintiff on behalf of the defendant or with the consent or concurrence of the defendant. The plaintiff, till 1968 when she deposited the balance of consideration in the Court, was not entitled to be put in actual possession and yet if she was put in possession of a substantial portion of the premises and she for her own benefit paid something to the tenant in a portion of the premises to vacate the same so that she can enjoy it, it was a voluntary payment made by her for her own benefit and not for the benefit of the vendor. That amount was used by her for her own benefit and could not be recovered from the defendant. On the contrary, this claim would show that the plaintiff was putting hurdles in the way of performing the c ontract. Mr. Chatterjee argued that the High Court clearly committed an error in law in holding that the plaintiff had no wherewithal to pay the balance of consideration and it was further argued that the High Court took into consideration ext raneous circumstances such as the insolvency of the husband of the plaintiff to come to the conclusion that the plaintiff had not necessary wherewithal with her to pay the balance of consideration. In this connection the plaintiffs case is that th e amount of Rs. 2, 000/paid as earnest money was advanced by her husband and she was to procure the balance of consideration by selling her ornaments which she had with her. The plaintiff has not stepped into the witness box. There is no material to show that she bad enough ornaments which would have fetched nearly Rs. 45,reliance was placed on the pass books of the plaintiffs husband. The pass books show an overdraft account in the name of the husband of the plaintiff. Assuming that the entries in the pass book show that the husband of the plaintiff could have procured the amount, the plaintiffs case is that she was to sell the ornaments to procure the balance of consideration. If that wa s the case, she wanted to make out, it was incumbent upon her to step into the witness box. Now, as against this, there are some telltale facts on record which permit an irresistible inference that the plaintiff did not have necessary wherewithal to pay the balance of consideration and therefore, she put forth one or the other excuse to avoid the performance, of her part of the contract. Two such pretexts can be readily pointed out, one when she insisted for the, sale of one foot of land to the north of the property which claim was thoroughly unjust and improper, and second, the demand ofRs, 2, 000/spent by her in making the tenant vacate a portion of the premises. The contract was to be completed by April 1956 it was not completed till 1957 even though the defendant after satisfying the queries of the plaintiff fixed different dates on different occasions calling upon the plaintiff to complete the transaction. Thereafter plaintiff filled a suit. The suit was de creed on 30th April 1962. We have already at another place referred to this decree. to point out that the plaintiff by that decree was called upon to deposit the balance of consideration within 30 days of the date of the decree. This would mean that she had to deposit the balance of consideration by the end of May 1962. She did not deposit the amount by the stipulated date.. She asked for extension of time. Thereafter she moved an application for ascertaining the area of excess land which was being sold to her. Under this pretext she did not deposit the balance of consideration. Thereafter when the Commissioner prepared the map and the Court fixed another date to deposit the amount, she questioned the order of the. Court in the High Court and after the High Court dismissed her revision application and called upon her to deposit the balance of consideration she again sought extension and ultimately deposited the amount on 6th February 1968. This would show that at the material point of time she did not have the necessary wherewithal to pay the balance of consideration and to take the conveyance and this would provideevidence to explain her conduct in putting forth one or the other impediment in the path of performance of the contract. If in the background of this evidence the High Court reached the conclusion that she did not have the necessary wherewithal with her to pay the balance of consideration and take the deed of conveyance, one cannot take any exception to it. But in this connection Mr. Chatterjee contended that the plaintiff seeking specific performance of the contract is. not required to show that she has at all material time necessary cash wit h her to perform her part of the contract. It is enough if theplaintiff can show that she was in a position to raise the money required at or about the time when the contract was to be; performed and she discharges the obligation of provin g readiness and willingness so far as the financial aspect is concerned. Reliance was placed on Jitendra Nath Roy v. Smt. Maheswari Bose(A.I.R. 1965 Calcutta 45.). Undoubtedly, the question would be, while examining the readiness and willingness of the plaintiff to perform her part of the contract to find out whether she would be in a position to take the conveyance by paying the balance of consideration and that the enquiry may well be, made whether she would be in a position to raise the money. Reference was also made to Bankof India Ltd. v. Jamsetji A. H. Chinoy and Another(77 I.A. 76.),where it was held that the plaintiff seeking to prove that he was ready and willing to fulfil his financial obligations has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. After the High Court dismissed her revision application and fixed the date 8th January 1968 for depositing the amount, she had no further contention to put forth and she should have deposited the amount yet she sought extension of time. And along with this, one must keep in view her contention that she had to sell her ornaments to raise the amount for which she did not step into the witness box to prove her contention. In this background it does appear that the plaintiff had not the. necessary wherewithal to perform her part of the contract. It was next contended that the relief for specific performance being discretionary and the tri al Court having exercised its discretion one way in favour of the plaintiff, the High Court should not have interfered with the same. It may be recalled that on major points of dispute between the parties the trial Court and the High Court recorded concurrent findings to wit the claim of the plaintiff for sale of one foot of land to north of property and the demand of Rs. 2, 000/spent by the plaintiff for removing the tenant. The third dispute was about removal of fixtures from t he northern wall by the defendant. The trial court held that the defendant committed default in removing the fixtures. Our attention was drawn to the relevant correspondence on the subject. It was urged that the defendant was required to remove the fixtures on the northern wan. On this point the trial court held that the defendant committed default in removing the fixtures. In fact, the correspondence would show, that the fixtures could be. removed in a short time and the defendant was always willing to remove the fixture. But the trial court held that the defendant committed a default in this behalf and recorded a finding that as both the plaintiff and the defendant committed default law must take its own course, viz., the plaintiff should get a decree for specific performance of that contract. The High Court examined this contention meticulously. , So have we done here. In fact, it prominently appears that the plaintiff put off performing her part of the contract presumably because she had not the necessary wherewithal to take the conveyance when she would be obliged to pay the balance of consideration and having obtained possession struck on to it without meeting her obligation. If in this background the High Court interfered with the decree of the trial court, we see nothing objectionable in it. The decree for specific performance in this case has been rightly refused and this appeal is liable to be dismissed. | 0 | 8,179 | 5,315 | ### Instruction:
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which claim was thoroughly unjust and improper, and second, the demand of- Rs, 2, 000/- spent by her in making the tenant vacate a portion of the premises. The contract was to be completed by April 1956 it was not completed till 1957 even though the defendant after satisfying the queries of the plaintiff fixed different dates on different occasions calling upon the plaintiff to complete the transaction. Thereafter plaintiff filled a suit. The suit was de creed on 30th April 1962. We have already at another place referred to this decree. to point out that the plaintiff by that decree was called upon to deposit the balance of consideration within 30 days of the date of the decree. This would mean that she had to deposit the balance of consideration by the end of May 1962. She did not deposit the amount by the stipulated date.. She asked for extension of time. Thereafter she moved an application for ascertaining the area of excess land which was being sold to her. Under this pretext she did not deposit the balance of consideration. Thereafter when the Commissioner prepared the map and the Court fixed another date to deposit the amount, she questioned the order of the. Court in the High Court and after the High Court dismissed her revision application and called upon her to deposit the balance of consideration she again sought extension and ultimately deposited the amount on 6th February 1968. This would show that at the material point of time she did not have the necessary wherewithal to pay the balance of consideration and to take the conveyance and this would provide tell-tale evidence to explain her conduct in putting forth one or the other impediment in the path of performance of the contract. If in the background of this evidence the High Court reached the conclusion that she did not have the necessary wherewithal with her to pay the balance of consideration and take the deed of conveyance, one cannot take any exception to it. But in this connection Mr. Chatterjee contended that the plaintiff seeking specific performance of the contract is. not required to show that she has at all material time necessary cash wit h her to per- form her part of the contract. It is enough if the- plaintiff can show that she was in a position to raise the money required at or about the time when the contract was to be; performed and she discharges the obligation of provin g readiness and willingness so far as the financial aspect is concerned. Reliance was placed on Jitendra Nath Roy v. Smt. Maheswari Bose(A.I.R. 1965 Calcutta 45.). Undoubtedly, the question would be, while examining the readiness and willingness of the plaintiff to perform her part of the contract to find out whether she would be in a position to take the conveyance by paying the balance of consideration and that the enquiry may well be, made whether she would be in a position to raise the money. Reference was also made to Bank of India Ltd. v. Jamsetji A. H. Chinoy and Another(77 I.A. 76.), where it was held that the plaintiff seeking to prove that he was ready and willing to fulfil his financial obligations has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. After the High Court dismissed her revision application and fixed the date 8th January 1968 for depositing the amount, she had no further contention to put forth and she should have deposited the amount yet she sought extension of time. And along with this, one must keep in view her contention that she had to sell her ornaments to raise the amount for which she did not step into the witness box to prove her contention. In this background it does appear that the plaintiff had not the. necessary wherewithal to perform her part of the contract. It was next contended that the relief for specific performance being discretionary and the tri al Court having exercised its discretion one way in favour of the plaintiff, the High Court should not have interfered with the same. It may be recalled that on major points of dispute between the parties the trial Court and the High Court recorded concurrent findings to wit the claim of the plaintiff for sale of one foot of land to north of property and the demand of Rs. 2, 000/- spent by the plaintiff for removing the tenant. The third dispute was about removal of fixtures from t he northern wall by the defendant. The trial court held that the defendant committed default in removing the fixtures. Our attention was drawn to the relevant correspondence on the subject. It was urged that the defendant was required to remove the fixtures on the northern wan. On this point the trial court held that the defendant committed default in removing the fixtures. In fact, the correspondence would show, that the fixtures could be. removed in a short time and the defendant was always willing to remove the fixture. But the trial court held that the defendant committed a default in this behalf and recorded a finding that as both the plaintiff and the defendant committed default law must take its own course, viz., the plaintiff should get a decree for specific performance of that contract. The High Court examined this contention meticulously. , So have we done here. In fact, it prominently appears that the plaintiff put off performing her part of the contract presumably because she had not the necessary wherewithal to take the conveyance when she would be obliged to pay the balance of consideration and having obtained possession struck on to it without meeting her obligation. If in this background the High Court interfered with the decree of the trial court, we see nothing objectionable in it. The decree for specific performance in this case has been rightly refused and this appeal is liable to be dismissed.
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foot of land to the north of the property which claim was thoroughly unjust and improper, and second, the demand ofRs, 2, 000/spent by her in making the tenant vacate a portion of the premises. The contract was to be completed by April 1956 it was not completed till 1957 even though the defendant after satisfying the queries of the plaintiff fixed different dates on different occasions calling upon the plaintiff to complete the transaction. Thereafter plaintiff filled a suit. The suit was de creed on 30th April 1962. We have already at another place referred to this decree. to point out that the plaintiff by that decree was called upon to deposit the balance of consideration within 30 days of the date of the decree. This would mean that she had to deposit the balance of consideration by the end of May 1962. She did not deposit the amount by the stipulated date.. She asked for extension of time. Thereafter she moved an application for ascertaining the area of excess land which was being sold to her. Under this pretext she did not deposit the balance of consideration. Thereafter when the Commissioner prepared the map and the Court fixed another date to deposit the amount, she questioned the order of the. Court in the High Court and after the High Court dismissed her revision application and called upon her to deposit the balance of consideration she again sought extension and ultimately deposited the amount on 6th February 1968. This would show that at the material point of time she did not have the necessary wherewithal to pay the balance of consideration and to take the conveyance and this would provideevidence to explain her conduct in putting forth one or the other impediment in the path of performance of the contract. If in the background of this evidence the High Court reached the conclusion that she did not have the necessary wherewithal with her to pay the balance of consideration and take the deed of conveyance, one cannot take any exception to it. But in this connection Mr. Chatterjee contended that the plaintiff seeking specific performance of the contract is. not required to show that she has at all material time necessary cash wit h her to perform her part of the contract. It is enough if theplaintiff can show that she was in a position to raise the money required at or about the time when the contract was to be; performed and she discharges the obligation of provin g readiness and willingness so far as the financial aspect is concerned. Reliance was placed on Jitendra Nath Roy v. Smt. Maheswari Bose(A.I.R. 1965 Calcutta 45.). Undoubtedly, the question would be, while examining the readiness and willingness of the plaintiff to perform her part of the contract to find out whether she would be in a position to take the conveyance by paying the balance of consideration and that the enquiry may well be, made whether she would be in a position to raise the money. Reference was also made to Bankof India Ltd. v. Jamsetji A. H. Chinoy and Another(77 I.A. 76.),where it was held that the plaintiff seeking to prove that he was ready and willing to fulfil his financial obligations has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. After the High Court dismissed her revision application and fixed the date 8th January 1968 for depositing the amount, she had no further contention to put forth and she should have deposited the amount yet she sought extension of time. And along with this, one must keep in view her contention that she had to sell her ornaments to raise the amount for which she did not step into the witness box to prove her contention. In this background it does appear that the plaintiff had not the. necessary wherewithal to perform her part of the contract. It was next contended that the relief for specific performance being discretionary and the tri al Court having exercised its discretion one way in favour of the plaintiff, the High Court should not have interfered with the same. It may be recalled that on major points of dispute between the parties the trial Court and the High Court recorded concurrent findings to wit the claim of the plaintiff for sale of one foot of land to north of property and the demand of Rs. 2, 000/spent by the plaintiff for removing the tenant. The third dispute was about removal of fixtures from t he northern wall by the defendant. The trial court held that the defendant committed default in removing the fixtures. Our attention was drawn to the relevant correspondence on the subject. It was urged that the defendant was required to remove the fixtures on the northern wan. On this point the trial court held that the defendant committed default in removing the fixtures. In fact, the correspondence would show, that the fixtures could be. removed in a short time and the defendant was always willing to remove the fixture. But the trial court held that the defendant committed a default in this behalf and recorded a finding that as both the plaintiff and the defendant committed default law must take its own course, viz., the plaintiff should get a decree for specific performance of that contract. The High Court examined this contention meticulously. , So have we done here. In fact, it prominently appears that the plaintiff put off performing her part of the contract presumably because she had not the necessary wherewithal to take the conveyance when she would be obliged to pay the balance of consideration and having obtained possession struck on to it without meeting her obligation. If in this background the High Court interfered with the decree of the trial court, we see nothing objectionable in it. The decree for specific performance in this case has been rightly refused and this appeal is liable to be dismissed.
|
Hira Singh Pal Vs. Madan Lal | entered at S1. No. 504 of Part No. 2 of Arki Assembly Constituency Electoral Roll: despite opportunity he has not cared to correct the entry.(Sd.) R. C. Gupta,Returning Officer, 21-1-67,3-15 P. M.9-Arki AssemblyConstituency.Date 21-1-67* * * *5. In the first nomination paper, the proposer was one Anant Ram. It was mentioned in the nomination paper that he is the elector shown at serial No. 380 of Part 13 of the Electoral Roll of Arki Assembly Constituency. This was clearly a mistake. His name is really found at serial No. 380 of Part 23. In the second nomination paper the candidate is shown as the elector at serial No. 504 of Part 2 of 9-Arki Assembly Constituency; but really his name is found at serial No. 504 of Part 12 of that Constituency. Hence the question is whether the grounds on which the Returning Officer rejected the nomination papers of the respondent were substantial grounds as contemplated by Section 36 of the Representation of the People Act, 1951.6. Before we deal with that question, it is necessary to set out few more facts. According to the appellant the respondent was not a genuine candidate; he was a dummy Congress candidate; he never intended to contest the election. There is basis for this contention. The respondent was the General Secretary of the Mahasu District Congress Committee. He never applied for any Congress ticket; nor his name was considered either by the District Congress Committee or by the Pradesh Congress Committee. He did not give the contribution required to be given by the candidates to the party; nor did he give the security prescribed by the party. The Congress had selected Mr. Hari Dass, one of the then Ministers in the Himachal Pradesh Government for contesting the constituency in question. His name had been recommended by the District Congress Committee as well as by the Pradesh Congress Committee. It had been accepted by the Parliamentary Board. He had paid the necessary subscription. He had also deposited the prescribed security. It is found from the evidence of the appellant that both Mr. Hari Dass as well as the respondent went together to the Returning Officer for filing their nominations. In fact it is clear from the order of the Returning Officer that the appellant had told him that he was only a covering candidate for Mr Hari Dass. It may also be noted that the respondent had declared that he was a Congress nominee. He had also asked for the Congress symbols namely a pair of bullocks. It may further be noted that on the date of the scrutiny, the respondent was absent and there was nobody to represent him. The Advocate who represented the Congress organisation did not object to the rejection of the nomination of the respondent presumably because no one was interested in his nomination as the nomination of Mr. Hari Dass had been accepted. Possibly he is now challenging the election because his party candidate has been defeated. At this juncture, we may notice that the respondent did not even apply for a copy of the order of the Returning Officer rejecting his nomination till the election results were announced. He admitted during his cross-examination that he had acted as the counting agent of Mr. Hari Dass. It is proved from the evidence of the appellant that he actively canvassed for Mr. Hari Dass. From the facts and circumstances established in this case we have no doubt in our mind that the respondent was at no time a genuine candidate. He is merely availing himself of the opportunity of the rejection of his nomination paper for undoing the result of the election.7. That, however, is not the end of the matter. All that we have to consider in this appeal is whether the Returning Officer was right in rejecting the nomination of the respondent. As mentioned earlier, the errors found in the nomination papers are purely clerical errors. The Returning Officer had the duty to scrutinise the nomination papers when they were presented for finding out whether there were any clerical mistakes in the same. Under that provision he was required to find out whether the names of the candidates as well as their proposers and seconders were correctly mentioned in the nomination papers. He was also required to see whether their place in the electoral roll was correctly mentioned in the nomination papers. Evidently the Returning Officer failed in his duty. Further, when he scrutinised the nomination papers on January 21, 1967, he had before him all the required information. It may be that while scrutinising the first nomination paper (marked as No. 5) he had no material before him to find out whether the proposer of the candidate was really an elector in the constituency or not, but when he came to the second nomination paper where the proposers name as well as his place in the electoral roll is correctly mentioned, it was improper on his part to have rejected that nomination paper. It is true that in that nomination paper, it had been mentioned that the candidates name is found at serial No. 504 of Part 2 of 9-Arki Assembly Constituency though in fact it is found at serial No. 504 in Part 12 of that constituency, but from the first nomination paper, the Returning Officer could have easily found out the correct part of the electoral roll. All the required information was before him. Obviously he rejected the nomination papers for the reason that the respondent has only a dummy candidate but that was not a matter for him to decide. If he was a dummy candidate there was occasion for him to withdraw his candidature after the scrutiny of the nomination papers. Therefore it is quite clear that the respondents nomination papers were improperly rejected. Such a rejection was impermissible under S. 36 and the same is a ground for setting aside the election under Section 100 of the Representation of the People Act. | 0[ds]6. Before we deal with that question, it is necessary to set out few more facts. According to the appellant the respondent was not a genuine candidate; he was a dummy Congress candidate; he never intended to contest the election. There is basis for this contention. The respondent was the General Secretary of the Mahasu District Congress Committee. He never applied for any Congress ticket; nor his name was considered either by the District Congress Committee or by the Pradesh Congress Committee. He did not give the contribution required to be given by the candidates to the party; nor did he give the security prescribed by the party. The Congress had selected Mr. Hari Dass, one of the then Ministers in the Himachal Pradesh Government for contesting the constituency in question. His name had been recommended by the District Congress Committee as well as by the Pradesh Congress Committee. It had been accepted by the Parliamentary Board. He had paid the necessary subscription. He had also deposited the prescribed security. It is found from the evidence of the appellant that both Mr. Hari Dass as well as the respondent went together to the Returning Officer for filing their nominations. In fact it is clear from the order of the Returning Officer that the appellant had told him that he was only a covering candidate for Mr Hari Dass. It may also be noted that the respondent had declared that he was a Congress nominee. He had also asked for the Congress symbols namely a pair of bullocks. It may further be noted that on the date of the scrutiny, the respondent was absent and there was nobody to represent him. The Advocate who represented the Congress organisation did not object to the rejection of the nomination of the respondent presumably because no one was interested in his nomination as the nomination of Mr. Hari Dass had been accepted. Possibly he is now challenging the election because his party candidate has been defeated. At this juncture, we may notice that the respondent did not even apply for a copy of the order of the Returning Officer rejecting his nomination till the election results were announced. He admitted during his cross-examination that he had acted as the counting agent of Mr. Hari Dass. It is proved from the evidence of the appellant that he actively canvassed for Mr. Hari Dass. From the facts and circumstances established in this case we have no doubt in our mind that the respondent was at no time a genuine candidate. He is merely availing himself of the opportunity of the rejection of his nomination paper for undoing the result of the election.7. That, however, is not the end of the matter. All that we have to consider in this appeal is whether the Returning Officer was right in rejecting the nomination of the respondent. As mentioned earlier, the errors found in the nomination papers are purely clerical errors. The Returning Officer had the duty to scrutinise the nomination papers when they were presented for finding out whether there were any clerical mistakes in the same. Under that provision he was required to find out whether the names of the candidates as well as their proposers and seconders were correctly mentioned in the nomination papers. He was also required to see whether their place in the electoral roll was correctly mentioned in the nomination papers. Evidently the Returning Officer failed in his duty. Further, when he scrutinised the nomination papers on January 21, 1967, he had before him all the required information. It may be that while scrutinising the first nomination paper (marked as No. 5) he had no material before him to find out whether the proposer of the candidate was really an elector in the constituency or not, but when he came to the second nomination paper where the proposers name as well as his place in the electoral roll is correctly mentioned, it was improper on his part to have rejected that nomination paper. It is true that in that nomination paper, it had been mentioned that the candidates name is found at serial No. 504 of Part 2 of 9-Arki Assembly Constituency though in fact it is found at serial No. 504 in Part 12 of that constituency, but from the first nomination paper, the Returning Officer could have easily found out the correct part of the electoral roll. All the required information was before him. Obviously he rejected the nomination papers for the reason that the respondent has only a dummy candidate but that was not a matter for him to decide. If he was a dummy candidate there was occasion for him to withdraw his candidature after the scrutiny of the nomination papers. Therefore it is quite clear that the respondents nomination papers were improperly rejected. Such a rejection was impermissible under S. 36 and the same is a ground for setting aside the election under Section 100 of the Representation of the People Act. | 0 | 2,437 | 901 | ### Instruction:
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entered at S1. No. 504 of Part No. 2 of Arki Assembly Constituency Electoral Roll: despite opportunity he has not cared to correct the entry.(Sd.) R. C. Gupta,Returning Officer, 21-1-67,3-15 P. M.9-Arki AssemblyConstituency.Date 21-1-67* * * *5. In the first nomination paper, the proposer was one Anant Ram. It was mentioned in the nomination paper that he is the elector shown at serial No. 380 of Part 13 of the Electoral Roll of Arki Assembly Constituency. This was clearly a mistake. His name is really found at serial No. 380 of Part 23. In the second nomination paper the candidate is shown as the elector at serial No. 504 of Part 2 of 9-Arki Assembly Constituency; but really his name is found at serial No. 504 of Part 12 of that Constituency. Hence the question is whether the grounds on which the Returning Officer rejected the nomination papers of the respondent were substantial grounds as contemplated by Section 36 of the Representation of the People Act, 1951.6. Before we deal with that question, it is necessary to set out few more facts. According to the appellant the respondent was not a genuine candidate; he was a dummy Congress candidate; he never intended to contest the election. There is basis for this contention. The respondent was the General Secretary of the Mahasu District Congress Committee. He never applied for any Congress ticket; nor his name was considered either by the District Congress Committee or by the Pradesh Congress Committee. He did not give the contribution required to be given by the candidates to the party; nor did he give the security prescribed by the party. The Congress had selected Mr. Hari Dass, one of the then Ministers in the Himachal Pradesh Government for contesting the constituency in question. His name had been recommended by the District Congress Committee as well as by the Pradesh Congress Committee. It had been accepted by the Parliamentary Board. He had paid the necessary subscription. He had also deposited the prescribed security. It is found from the evidence of the appellant that both Mr. Hari Dass as well as the respondent went together to the Returning Officer for filing their nominations. In fact it is clear from the order of the Returning Officer that the appellant had told him that he was only a covering candidate for Mr Hari Dass. It may also be noted that the respondent had declared that he was a Congress nominee. He had also asked for the Congress symbols namely a pair of bullocks. It may further be noted that on the date of the scrutiny, the respondent was absent and there was nobody to represent him. The Advocate who represented the Congress organisation did not object to the rejection of the nomination of the respondent presumably because no one was interested in his nomination as the nomination of Mr. Hari Dass had been accepted. Possibly he is now challenging the election because his party candidate has been defeated. At this juncture, we may notice that the respondent did not even apply for a copy of the order of the Returning Officer rejecting his nomination till the election results were announced. He admitted during his cross-examination that he had acted as the counting agent of Mr. Hari Dass. It is proved from the evidence of the appellant that he actively canvassed for Mr. Hari Dass. From the facts and circumstances established in this case we have no doubt in our mind that the respondent was at no time a genuine candidate. He is merely availing himself of the opportunity of the rejection of his nomination paper for undoing the result of the election.7. That, however, is not the end of the matter. All that we have to consider in this appeal is whether the Returning Officer was right in rejecting the nomination of the respondent. As mentioned earlier, the errors found in the nomination papers are purely clerical errors. The Returning Officer had the duty to scrutinise the nomination papers when they were presented for finding out whether there were any clerical mistakes in the same. Under that provision he was required to find out whether the names of the candidates as well as their proposers and seconders were correctly mentioned in the nomination papers. He was also required to see whether their place in the electoral roll was correctly mentioned in the nomination papers. Evidently the Returning Officer failed in his duty. Further, when he scrutinised the nomination papers on January 21, 1967, he had before him all the required information. It may be that while scrutinising the first nomination paper (marked as No. 5) he had no material before him to find out whether the proposer of the candidate was really an elector in the constituency or not, but when he came to the second nomination paper where the proposers name as well as his place in the electoral roll is correctly mentioned, it was improper on his part to have rejected that nomination paper. It is true that in that nomination paper, it had been mentioned that the candidates name is found at serial No. 504 of Part 2 of 9-Arki Assembly Constituency though in fact it is found at serial No. 504 in Part 12 of that constituency, but from the first nomination paper, the Returning Officer could have easily found out the correct part of the electoral roll. All the required information was before him. Obviously he rejected the nomination papers for the reason that the respondent has only a dummy candidate but that was not a matter for him to decide. If he was a dummy candidate there was occasion for him to withdraw his candidature after the scrutiny of the nomination papers. Therefore it is quite clear that the respondents nomination papers were improperly rejected. Such a rejection was impermissible under S. 36 and the same is a ground for setting aside the election under Section 100 of the Representation of the People Act.
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0
### Explanation:
6. Before we deal with that question, it is necessary to set out few more facts. According to the appellant the respondent was not a genuine candidate; he was a dummy Congress candidate; he never intended to contest the election. There is basis for this contention. The respondent was the General Secretary of the Mahasu District Congress Committee. He never applied for any Congress ticket; nor his name was considered either by the District Congress Committee or by the Pradesh Congress Committee. He did not give the contribution required to be given by the candidates to the party; nor did he give the security prescribed by the party. The Congress had selected Mr. Hari Dass, one of the then Ministers in the Himachal Pradesh Government for contesting the constituency in question. His name had been recommended by the District Congress Committee as well as by the Pradesh Congress Committee. It had been accepted by the Parliamentary Board. He had paid the necessary subscription. He had also deposited the prescribed security. It is found from the evidence of the appellant that both Mr. Hari Dass as well as the respondent went together to the Returning Officer for filing their nominations. In fact it is clear from the order of the Returning Officer that the appellant had told him that he was only a covering candidate for Mr Hari Dass. It may also be noted that the respondent had declared that he was a Congress nominee. He had also asked for the Congress symbols namely a pair of bullocks. It may further be noted that on the date of the scrutiny, the respondent was absent and there was nobody to represent him. The Advocate who represented the Congress organisation did not object to the rejection of the nomination of the respondent presumably because no one was interested in his nomination as the nomination of Mr. Hari Dass had been accepted. Possibly he is now challenging the election because his party candidate has been defeated. At this juncture, we may notice that the respondent did not even apply for a copy of the order of the Returning Officer rejecting his nomination till the election results were announced. He admitted during his cross-examination that he had acted as the counting agent of Mr. Hari Dass. It is proved from the evidence of the appellant that he actively canvassed for Mr. Hari Dass. From the facts and circumstances established in this case we have no doubt in our mind that the respondent was at no time a genuine candidate. He is merely availing himself of the opportunity of the rejection of his nomination paper for undoing the result of the election.7. That, however, is not the end of the matter. All that we have to consider in this appeal is whether the Returning Officer was right in rejecting the nomination of the respondent. As mentioned earlier, the errors found in the nomination papers are purely clerical errors. The Returning Officer had the duty to scrutinise the nomination papers when they were presented for finding out whether there were any clerical mistakes in the same. Under that provision he was required to find out whether the names of the candidates as well as their proposers and seconders were correctly mentioned in the nomination papers. He was also required to see whether their place in the electoral roll was correctly mentioned in the nomination papers. Evidently the Returning Officer failed in his duty. Further, when he scrutinised the nomination papers on January 21, 1967, he had before him all the required information. It may be that while scrutinising the first nomination paper (marked as No. 5) he had no material before him to find out whether the proposer of the candidate was really an elector in the constituency or not, but when he came to the second nomination paper where the proposers name as well as his place in the electoral roll is correctly mentioned, it was improper on his part to have rejected that nomination paper. It is true that in that nomination paper, it had been mentioned that the candidates name is found at serial No. 504 of Part 2 of 9-Arki Assembly Constituency though in fact it is found at serial No. 504 in Part 12 of that constituency, but from the first nomination paper, the Returning Officer could have easily found out the correct part of the electoral roll. All the required information was before him. Obviously he rejected the nomination papers for the reason that the respondent has only a dummy candidate but that was not a matter for him to decide. If he was a dummy candidate there was occasion for him to withdraw his candidature after the scrutiny of the nomination papers. Therefore it is quite clear that the respondents nomination papers were improperly rejected. Such a rejection was impermissible under S. 36 and the same is a ground for setting aside the election under Section 100 of the Representation of the People Act.
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SECRETARY/CORRESPONDENT, ST. JOHN''S COLLEGE AND ANOTHER. ETC Vs. DR. S. WILSON AND OTHERS ETC | S.G. Kotturappa, (2005) 3 SCC 409 and Vivekanand Sethi vs. Chairman, J&K Bank Ltd., (2005) 5 SCC 337. 7. It is equally well settled that the principles of natural justice must not be stretched too far and in this connection, reference may be made to the decisions of this Court in Sohan Lal Gupta vs. Asha Devi Gupta, (2003) 7 SCC 492 ; Mardia Chemicals Ltd. vs. Union of India, (2004) 4 SCC 311 and Canara Bank vs. Shri Debasis Das, (2003) 2 SCR 968. In Hira Nath Mishra vs. Rajendra Medical College, Ranchi, (1973) 1 SCC 805 , this Court held that principles of natural justice are not inflexible and may differ in different circumstances. Rules of natural justice cannot remain the same applying to all conditions. In Chairman, Board of Mining Examination and Chief Inspector of Mines vs. Ramjee, (1977) 2 SCC 256 , the Court observed that natural justice is no unruly horse, no lurking landmine, nor a judicial cureall. The Court held: 13. The last violation regarded as a lethal objection is that the Board did not enquire of the respondent, independently of the one done by the Regional Inspector. Assuming it to be necessary, here the respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board. He has thus been heard and compliance with Regulation 26, in the circumstances, is complete. Natural justice is no unruly horse, no lurking land mine, nor a judicial cureall. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt -that is the conscience of the matter. 14. Shri Gambhir, who appeared as amicus curiae and industriously helped the Court by citing several decisions bearing on natural justice, could not convince us to reach a contrary conclusion. It is true that in the context of Article 311 of the Constitution this Court has interpreted the quality and amplitude of the opportunity to be extended to an affected public servant. Certainly we agree with the principles expounded therein. But then we cannot look at law in the abstract or natural justice as a mere artifact. Nor can we fit into a rigid mould the concept of reasonable opportunity. Shri Gambhir cited before us the decisions in State of Gujarat vs. R.G. Teredesai, (1969) 2 SCC 128 ; Management of DTU vs. B.B.L. Hajelay, (1972) 2 SCC 744 and Krishna Chandra Tandon vs. Union of India, (1974) 4 SCC 374 ; and one or two other rulings. The ratio therein hardly militates against the realism which must inform reasonable opportunity or the rule against bias. If the authority which takes the final decision acts mechanically and without applying its own mind, the order may be bad, but if the decision-making body, after fair and independent consideration, reaches a conclusion which tallies with the recommendations of the subordinate authority which held the preliminary enquiry, there is no error in law. Recommendations are not binding but are merely raw material for consideration. Where there is no surrender of judgment by the Board to the recommending Regional Inspector, there is no contravention of the canons of natural justice. We agree with Shri Gambhir that the adjudicating agency must indicate in the order, at least briefly, why it takes the decision it does, unless the circumstances are so clear that the concluding or decretal part of the order speaks for itself even regarding the reasons which have led to it. It is desirable also to communicate the report of the Inquiry Officer, including that part which relates to the recommendation in the matter of punishment so that the representation of the delinquent may be pointed and meaningful. 15. These general observations must be tested on the concrete facts of each case and every minuscule violation does not spell illegality. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures. (emphasis supplied) 8. We also take notice of fact that yet another order passed by a Division Bench of this Court on 11.12.2017 in which the State Government/Competent Authority did not approve such appointments on the ground that they were made by the incompetent persons, we are of the considered opinion, in the facts and circumstances of these cases, that no useful purpose will be served by grant of opportunity of hearing. Appointments were clearly made in an illegal manner, hence the services were rightly terminated on 17.11.2008 after the interim order had been vacated. It will be futile to afford opportunity of hearing, in the facts and circumstances of these cases. However, the order shall be treated as an order of termination simplicitor, the finding recorded that there was some collusion of the plaintiff with the persons who had been appointed is hereby set aside. Only on the ground of incompetence the termination orders are upheld. The approval of illegal appointments made by the Competent Authority would not change the scenario and confer the legality to appointments which were illegally made. It was further conceded by the learned counsel appearing for the respondents that the only consideration for the university while approving appointments is the required qualification. Be that as it may, possessing the qualification would not change the situation as the appointments had been illegally made. Any approval made by the State Government/University will not come to the rescue of the respondents. | 1[ds]5. We have heard the learned counsel for the parties at length. The aforesaid facts are not in dispute. Admittedly, no hearing was also afforded before termination of the services.In the instant case, the appointments had been made by the incumbents who had no right to hold the office, taking advantage of the interim order of maintenance of status quo ante passed on 21.7.2008, the appointments were made and that order was set aside on 18.8.2008, within a month of its grant. The appointments were clearly made in undue haste taking undue advantage of the interim order. They were admittedly made by an incumbent who was not, in fact, elected in the election that was held on 21.12.2007. Moreover, once interim order of status quo ante had been vacated giving a finding that it was obtained by playing fraud upon the Court, obviously, it was not open to them to order the appointments of the lecturers. Be that as it may, since the suit has been finally dismissed for want of jurisdiction of the Civil Court and dispute had not been taken any further and no dispute as to elected body is pending, the elections held on 21.12.2007 attained finality.6. It is apparent that the Lecturers having been appointed by the incumbents who were not in fact competent to appoint but they have made the appointments illegally under interim order of the Court that was ultimately vacated by the High Court with strictures upon them. No useful purpose would be served by grant of opportunity of hearing to those who were so appointed by the persons who were in fact incompetent to appoint and have taken undue advantage of the Courts order of status quo ante. The principles of natural justice cannot be put into a straitjacket formula and that its application will depend upon the fact situation of each and every case as laid down by this Court in K.L. Tripathi vs. State Bank of India, (1984) 1 SCC 43 ; N.K. Prasada vs. Govt. of India, (2004) 6 SCC 299 ; State Bank of Punjab vs. Jagir Singh, (2004) 8 SCC 129 ; Karnataka SRTC vs. S.G. Kotturappa, (2005) 3 SCC 409 and Vivekanand Sethi vs. Chairman, J&K Bank Ltd., (2005) 5 SCC 337. 7. It is equally well settled that the principles of natural justice must not be stretched too far and in this connection, reference may be made to the decisions of this Court in Sohan Lal Gupta vs. Asha Devi Gupta, (2003) 7 SCC 492 ; Mardia Chemicals Ltd. vs. Union of India, (2004) 4 SCC 311 and Canara Bank vs. Shri Debasis Das, (2003) 2 SCR 968. 8. We also take notice of fact that yet another order passed by a Division Bench of this Court on 11.12.2017 in which the State Government/Competent Authority did not approve such appointments on the ground that they were made by the incompetent persons, we are of the considered opinion, in the facts and circumstances of these cases, that no useful purpose will be served by grant of opportunity of hearing. Appointments were clearly made in an illegal manner, hence the services were rightly terminated on 17.11.2008 after the interim order had been vacated. It will be futile to afford opportunity of hearing, in the facts and circumstances of these cases. However, the order shall be treated as an order of termination simplicitor, the finding recorded that there was some collusion of the plaintiff with the persons who had been appointed is hereby set aside. Only on the ground of incompetence the termination orders are upheld. The approval of illegal appointments made by the Competent Authority would not change the scenario and confer the legality to appointments which were illegally made. It was further conceded by the learned counsel appearing for the respondents that the only consideration for the university while approving appointments is the required qualification. Be that as it may, possessing the qualification would not change the situation as the appointments had been illegally made. Any approval made by the State Government/University will not come to the rescue of the respondents. | 1 | 2,279 | 764 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
S.G. Kotturappa, (2005) 3 SCC 409 and Vivekanand Sethi vs. Chairman, J&K Bank Ltd., (2005) 5 SCC 337. 7. It is equally well settled that the principles of natural justice must not be stretched too far and in this connection, reference may be made to the decisions of this Court in Sohan Lal Gupta vs. Asha Devi Gupta, (2003) 7 SCC 492 ; Mardia Chemicals Ltd. vs. Union of India, (2004) 4 SCC 311 and Canara Bank vs. Shri Debasis Das, (2003) 2 SCR 968. In Hira Nath Mishra vs. Rajendra Medical College, Ranchi, (1973) 1 SCC 805 , this Court held that principles of natural justice are not inflexible and may differ in different circumstances. Rules of natural justice cannot remain the same applying to all conditions. In Chairman, Board of Mining Examination and Chief Inspector of Mines vs. Ramjee, (1977) 2 SCC 256 , the Court observed that natural justice is no unruly horse, no lurking landmine, nor a judicial cureall. The Court held: 13. The last violation regarded as a lethal objection is that the Board did not enquire of the respondent, independently of the one done by the Regional Inspector. Assuming it to be necessary, here the respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board. He has thus been heard and compliance with Regulation 26, in the circumstances, is complete. Natural justice is no unruly horse, no lurking land mine, nor a judicial cureall. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt -that is the conscience of the matter. 14. Shri Gambhir, who appeared as amicus curiae and industriously helped the Court by citing several decisions bearing on natural justice, could not convince us to reach a contrary conclusion. It is true that in the context of Article 311 of the Constitution this Court has interpreted the quality and amplitude of the opportunity to be extended to an affected public servant. Certainly we agree with the principles expounded therein. But then we cannot look at law in the abstract or natural justice as a mere artifact. Nor can we fit into a rigid mould the concept of reasonable opportunity. Shri Gambhir cited before us the decisions in State of Gujarat vs. R.G. Teredesai, (1969) 2 SCC 128 ; Management of DTU vs. B.B.L. Hajelay, (1972) 2 SCC 744 and Krishna Chandra Tandon vs. Union of India, (1974) 4 SCC 374 ; and one or two other rulings. The ratio therein hardly militates against the realism which must inform reasonable opportunity or the rule against bias. If the authority which takes the final decision acts mechanically and without applying its own mind, the order may be bad, but if the decision-making body, after fair and independent consideration, reaches a conclusion which tallies with the recommendations of the subordinate authority which held the preliminary enquiry, there is no error in law. Recommendations are not binding but are merely raw material for consideration. Where there is no surrender of judgment by the Board to the recommending Regional Inspector, there is no contravention of the canons of natural justice. We agree with Shri Gambhir that the adjudicating agency must indicate in the order, at least briefly, why it takes the decision it does, unless the circumstances are so clear that the concluding or decretal part of the order speaks for itself even regarding the reasons which have led to it. It is desirable also to communicate the report of the Inquiry Officer, including that part which relates to the recommendation in the matter of punishment so that the representation of the delinquent may be pointed and meaningful. 15. These general observations must be tested on the concrete facts of each case and every minuscule violation does not spell illegality. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures. (emphasis supplied) 8. We also take notice of fact that yet another order passed by a Division Bench of this Court on 11.12.2017 in which the State Government/Competent Authority did not approve such appointments on the ground that they were made by the incompetent persons, we are of the considered opinion, in the facts and circumstances of these cases, that no useful purpose will be served by grant of opportunity of hearing. Appointments were clearly made in an illegal manner, hence the services were rightly terminated on 17.11.2008 after the interim order had been vacated. It will be futile to afford opportunity of hearing, in the facts and circumstances of these cases. However, the order shall be treated as an order of termination simplicitor, the finding recorded that there was some collusion of the plaintiff with the persons who had been appointed is hereby set aside. Only on the ground of incompetence the termination orders are upheld. The approval of illegal appointments made by the Competent Authority would not change the scenario and confer the legality to appointments which were illegally made. It was further conceded by the learned counsel appearing for the respondents that the only consideration for the university while approving appointments is the required qualification. Be that as it may, possessing the qualification would not change the situation as the appointments had been illegally made. Any approval made by the State Government/University will not come to the rescue of the respondents.
### Response:
1
### Explanation:
5. We have heard the learned counsel for the parties at length. The aforesaid facts are not in dispute. Admittedly, no hearing was also afforded before termination of the services.In the instant case, the appointments had been made by the incumbents who had no right to hold the office, taking advantage of the interim order of maintenance of status quo ante passed on 21.7.2008, the appointments were made and that order was set aside on 18.8.2008, within a month of its grant. The appointments were clearly made in undue haste taking undue advantage of the interim order. They were admittedly made by an incumbent who was not, in fact, elected in the election that was held on 21.12.2007. Moreover, once interim order of status quo ante had been vacated giving a finding that it was obtained by playing fraud upon the Court, obviously, it was not open to them to order the appointments of the lecturers. Be that as it may, since the suit has been finally dismissed for want of jurisdiction of the Civil Court and dispute had not been taken any further and no dispute as to elected body is pending, the elections held on 21.12.2007 attained finality.6. It is apparent that the Lecturers having been appointed by the incumbents who were not in fact competent to appoint but they have made the appointments illegally under interim order of the Court that was ultimately vacated by the High Court with strictures upon them. No useful purpose would be served by grant of opportunity of hearing to those who were so appointed by the persons who were in fact incompetent to appoint and have taken undue advantage of the Courts order of status quo ante. The principles of natural justice cannot be put into a straitjacket formula and that its application will depend upon the fact situation of each and every case as laid down by this Court in K.L. Tripathi vs. State Bank of India, (1984) 1 SCC 43 ; N.K. Prasada vs. Govt. of India, (2004) 6 SCC 299 ; State Bank of Punjab vs. Jagir Singh, (2004) 8 SCC 129 ; Karnataka SRTC vs. S.G. Kotturappa, (2005) 3 SCC 409 and Vivekanand Sethi vs. Chairman, J&K Bank Ltd., (2005) 5 SCC 337. 7. It is equally well settled that the principles of natural justice must not be stretched too far and in this connection, reference may be made to the decisions of this Court in Sohan Lal Gupta vs. Asha Devi Gupta, (2003) 7 SCC 492 ; Mardia Chemicals Ltd. vs. Union of India, (2004) 4 SCC 311 and Canara Bank vs. Shri Debasis Das, (2003) 2 SCR 968. 8. We also take notice of fact that yet another order passed by a Division Bench of this Court on 11.12.2017 in which the State Government/Competent Authority did not approve such appointments on the ground that they were made by the incompetent persons, we are of the considered opinion, in the facts and circumstances of these cases, that no useful purpose will be served by grant of opportunity of hearing. Appointments were clearly made in an illegal manner, hence the services were rightly terminated on 17.11.2008 after the interim order had been vacated. It will be futile to afford opportunity of hearing, in the facts and circumstances of these cases. However, the order shall be treated as an order of termination simplicitor, the finding recorded that there was some collusion of the plaintiff with the persons who had been appointed is hereby set aside. Only on the ground of incompetence the termination orders are upheld. The approval of illegal appointments made by the Competent Authority would not change the scenario and confer the legality to appointments which were illegally made. It was further conceded by the learned counsel appearing for the respondents that the only consideration for the university while approving appointments is the required qualification. Be that as it may, possessing the qualification would not change the situation as the appointments had been illegally made. Any approval made by the State Government/University will not come to the rescue of the respondents.
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INDIA METERS LIMITED Vs. STATE OF TAMIL NADU | the excise duty to the purchaser. Ordinarily it is not shown as a separate item in the bill, but it is included in the price charged by him. The sale price in such a case could be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of the goods. True, the excise duty component of the price would not be an addition to the coffers of the dealer, as it would go to reimburse him in respect of the excise duty already paid by him on the manufacture of the goods. But even so, it would be part of the sale price because it forms a component of the consideration payable by the purchaser to the dealer. It is only as part of the consideration for the sale of the goods that the amount representing excise duty would be payable by the purchaser. There is no other manner of liability, statutory or otherwise, under which the purchases would be liable to pay the amount of excise duty to the dealer. And, on this reasoning, it would make no difference whether the amount of excise duty is included in the price charged by the dealer or is shown as a separate item in the bill. In either case, it would be part of the sale price. So also, the amount of sales tax payable by a dealer, whether included in the price or added to it as a separate item as is usually the case, forms part of the sale price. It is payable by the purchaser to the dealer as part of the consideration for the sale of the goods and hence falls within the first part of the definition. 33. This judgment has been followed in a large number of subsequent judgments in other cases by this Court. 34. In Cement Marketing Co. of India Ltd. Vs. Assistant Commissioner of Sales Tax, Indore and Others, similar question arose for consideration. In this case, while following the case of Hindustan Sugar Mills (supra) this Court came to the clear conclusion that the amount of freight formed part of the sale price within the meaning of the first part of the definition of the term contained in Section 2(p) of the Rajasthan Sales Tax Act, 1954. 35. In Cement Marketing Co. of India Ltd. v. Commissioner of Commercial Taxes, Karnataka 1980 (Supp) SCC 373 this Court observed as under: This question is no longer res integra and it stands concluded by a recent decision given by this Court in Hindusthan Sugar Mills Vs. State of Rajasthan and Others, . It has been held by this Court in that case that by reason of the provisions of the Cement Control Order which governed the transactions of sale of cement entered into by the assessee with the purchasers, the amount of freight formed part of the sale price within the meaning of the first part of the definition of that term in Section 2(h) of the Central Sales Tax Act, 1956 and was includible in the turnover of the assessee. This decision completely covers the present case and hence we must hold that the High Court was right in taking the view that the amount of freight formed part of the sale price and was rightly included in the taxable turnover of the appellant. 36. In TVL. Ramco Cement Distribution Co. Pvt. Ltd., Tamil Nadu Vs. State of Tamil Nadu, this Court while following the ratio in the case of Hindustan Sugar Mills (supra) observed as under: (i) that the freight charges should be included in arriving at the taxable turnover for purposes of Central Sales Tax and Tamil Nadu Sales Tax; and (ii) that packing charges and excise duty thereon should also be included in arriving at the taxable turnover for purposes of both Central Sales Tax and Tamil Nadu Sales Tax. 37. In Bihar State Electricity Board and another Vs. M/s. Usha Martin Industries and another, this Court relied on the judgment of this Court in the case of Hindustan Sugar Mills (supra) and reiterated legal position that sale price would be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of goods. 38. In the case of M/s. Black Diamond Beverages and another Vs. Commercial Tax Officer, Central Section Assessment Wing, Calcutta and others, this Court observed that freight and handling charges would be included in the sale price. 39. In Commissioner of Central Excise, Delhi Vs. Maruti Udyog Ltd., this Court observed as under: ...The sale price realized by the respondent has to be regarded as the entire price inclusive of excise duty because it is the respondent who has, by necessary implication, taken on the liability to pay all taxes on the goods sold and has not sought to realize any sum in addition to the price obtained by it from the purchaser. The purchaser was under no obligation to pay any amount in excess of what had already been paid as the price of the scrap. 40. In State of Andhra Pradesh Vs. A.P. Paper Mills Ltd., the short question arose for consideration was whether the transportation charges and agents commission paid by the respondent - M/s. A.P. Paper Mills Ltd. to the agent together with the cost of raw material constitute turnover u/s 2(s) and is liable to sales tax u/s 6A of the Andhra Pradesh General Sales Tax Act, 1957. This Court relied on Hindustan Sugar Mills (supra) and came to the conclusion that the transportation charges and agents commission would be inclusive in turnover u/s 2(s) and is liable to Sales Tax u/s 6(a) of the Andhra Pradesh General Sales Tax Act, 1957. 41. When we apply the ratio of the judgments of the English Courts and of our Courts, the conclusion becomes obvious that the amount of freight and insurance charges incurred by the dealer forms part of the sale price. | 0[ds]14. In the instant case, the obligation to pay the freight was clearly on the appellant as there was no sale at all, unless the goods were delivered at the premises of the buyer and in order to so deliver, the assessee necessarily had to incur freight charges.15. The transfer of title to the goods as provided in Clause 10 read with Clause 6 of the agreement was to be at the place of delivery in the premises of the buyer. Though the contract mentioned the price of the electric meters as ex-factory price, the delivery was not at the factory gate. The specification of what the price would be at the factory gate, therefore, does not in the context of the term subject to which the sale was agreed to be effected, render it the point or the location at which the sale can be said to have been completed. Had the sale been completed at the factory gate, the expenses incurred thereafter by way of freight charges would then be capable of being regarded as expenditure which was in the nature of a post-sale expenditure and, if paid by the seller, regarded as an amount paid by such seller on behalf of the buyer.16. Both the aforementioned cases emphasise the fact that expenses incurred by a seller on freight would be part of the sale price, as until the transfer of title to the goods takes place that being the only way made in which sale could have taken place prior to the introduction of Clause 29A of Article 366 of the Constitution.18. It is no doubt true that Rule 6(c) of the Rules permits deduction of the cost on freight while determining the taxable turnover. However, that provision must be read in the context of definition of turnover as also the definition of sale in Sections 2(r) and 2(n) respectively of the Act. Turnover is defined in the Act, inter alia, to mean the aggregate amount for which goods are bought or sold or delivered or supplied or otherwise disposed of in any of the ways referred to in Clause (n).20. When the transfer of the property or the goods is to be at the place of the buyer to which the seller is under an obligation to transport the goods, the expenditure incurred by the seller on freight in order to carry the goods from his place of manufacture to the place at which he is required under the contract to deliver, would thus become part of the amount for which the goods are sold by the seller to the buyer and would fall within the scope of turnover.Even if freight and insurance charges are shown separately in the Bill and added to the price of the goods, the character of payment would remain the same. Since freight and insurance charges represent expenditure incurred by the dealer in making the goods available to the purchaser at the place of sale, they would constitute an addition to the cost of the goods to the dealer and would clearly be a component of the price to the purchaser. The amount of freight and insurance charges would be payable by the purchaser not under any statutory or other liability but as part of the consideration for the sale of the goods and would therefore, form part of the sale price.26. According to the facts of this case, Dyer Meakin Breweries Ltd. is registered as a dealer in Indian made foreign liquor under the Kerala General Sales Tax Act, 1963. The company has a place of business at Ernakulam, Kerala. The liquor sold by the company is manufactured or produced in distilleries or breweries at different places in the State of U.P. and Haryana. Liquor is transported for sale by the company from its breweries and distilleries to its place of business at Ernakulam. It is the practice of the company to maintain a uniform ex-factory price in respect of each brand of liquor sold at different centers after adding to the ex-factory price the appropriate amount attributable to freight and other charges.31. This Court had an occasion to deal with identical issues in the case of Hindustan Sugar Mills (supra). P.N. Bhagwati, J. (as His Lordship then was), clearly held that by reason of the provisions of the Control Order which governed the transactions of sale of cement entered into by the assessee with the purchasers in both the appeals before us, the amount of freight formed part of the sale price.32. In this judgment, the court comprehensively explained the entire principle of law by giving an example in para 8 of the judgment which reads as under:8. Take for example, excise duty payable by a dealer who is a manufacturer. When he sells goods manufactured by him, he always passes on the excise duty to the purchaser. Ordinarily it is not shown as a separate item in the bill, but it is included in the price charged by him. The sale price in such a case could be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of the goods. True, the excise duty component of the price would not be an addition to the coffers of the dealer, as it would go to reimburse him in respect of the excise duty already paid by him on the manufacture of the goods. But even so, it would be part of the sale price because it forms a component of the consideration payable by the purchaser to the dealer. It is only as part of the consideration for the sale of the goods that the amount representing excise duty would be payable by the purchaser. There is no other manner of liability, statutory or otherwise, under which the purchases would be liable to pay the amount of excise duty to the dealer. And, on this reasoning, it would make no difference whether the amount of excise duty is included in the price charged by the dealer or is shown as a separate item in the bill. In either case, it would be part of the sale price. So also, the amount of sales tax payable by a dealer, whether included in the price or added to it as a separate item as is usually the case, forms part of the sale price. It is payable by the purchaser to the dealer as part of the consideration for the sale of the goods and hence falls within the first part of the definition.33. This judgment has been followed in a large number of subsequent judgments in other cases by this Court.37. In Bihar State Electricity Board and another Vs. M/s. Usha Martin Industries and another, this Court relied on the judgment of this Court in the case of Hindustan Sugar Mills (supra) and reiterated legal position that sale price would be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of goods.40. In State of Andhra Pradesh Vs. A.P. Paper Mills Ltd., the short question arose for consideration was whether the transportation charges and agents commission paid by the respondent - M/s. A.P. Paper Mills Ltd. to the agent together with the cost of raw material constitute turnover u/s 2(s) and is liable to sales tax u/s 6A of the Andhra Pradesh General Sales Tax Act, 1957. This Court relied on Hindustan Sugar Mills (supra) and came to the conclusion that the transportation charges and agents commission would be inclusive in turnover u/s 2(s) and is liable to Sales Tax u/s 6(a) of the Andhra Pradesh General Sales Tax Act, 1957.41. When we apply the ratio of the judgments of the English Courts and of our Courts, the conclusion becomes obvious that the amount of freight and insurance charges incurred by the dealer forms part of the sale price. | 0 | 4,366 | 1,444 | ### Instruction:
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the excise duty to the purchaser. Ordinarily it is not shown as a separate item in the bill, but it is included in the price charged by him. The sale price in such a case could be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of the goods. True, the excise duty component of the price would not be an addition to the coffers of the dealer, as it would go to reimburse him in respect of the excise duty already paid by him on the manufacture of the goods. But even so, it would be part of the sale price because it forms a component of the consideration payable by the purchaser to the dealer. It is only as part of the consideration for the sale of the goods that the amount representing excise duty would be payable by the purchaser. There is no other manner of liability, statutory or otherwise, under which the purchases would be liable to pay the amount of excise duty to the dealer. And, on this reasoning, it would make no difference whether the amount of excise duty is included in the price charged by the dealer or is shown as a separate item in the bill. In either case, it would be part of the sale price. So also, the amount of sales tax payable by a dealer, whether included in the price or added to it as a separate item as is usually the case, forms part of the sale price. It is payable by the purchaser to the dealer as part of the consideration for the sale of the goods and hence falls within the first part of the definition. 33. This judgment has been followed in a large number of subsequent judgments in other cases by this Court. 34. In Cement Marketing Co. of India Ltd. Vs. Assistant Commissioner of Sales Tax, Indore and Others, similar question arose for consideration. In this case, while following the case of Hindustan Sugar Mills (supra) this Court came to the clear conclusion that the amount of freight formed part of the sale price within the meaning of the first part of the definition of the term contained in Section 2(p) of the Rajasthan Sales Tax Act, 1954. 35. In Cement Marketing Co. of India Ltd. v. Commissioner of Commercial Taxes, Karnataka 1980 (Supp) SCC 373 this Court observed as under: This question is no longer res integra and it stands concluded by a recent decision given by this Court in Hindusthan Sugar Mills Vs. State of Rajasthan and Others, . It has been held by this Court in that case that by reason of the provisions of the Cement Control Order which governed the transactions of sale of cement entered into by the assessee with the purchasers, the amount of freight formed part of the sale price within the meaning of the first part of the definition of that term in Section 2(h) of the Central Sales Tax Act, 1956 and was includible in the turnover of the assessee. This decision completely covers the present case and hence we must hold that the High Court was right in taking the view that the amount of freight formed part of the sale price and was rightly included in the taxable turnover of the appellant. 36. In TVL. Ramco Cement Distribution Co. Pvt. Ltd., Tamil Nadu Vs. State of Tamil Nadu, this Court while following the ratio in the case of Hindustan Sugar Mills (supra) observed as under: (i) that the freight charges should be included in arriving at the taxable turnover for purposes of Central Sales Tax and Tamil Nadu Sales Tax; and (ii) that packing charges and excise duty thereon should also be included in arriving at the taxable turnover for purposes of both Central Sales Tax and Tamil Nadu Sales Tax. 37. In Bihar State Electricity Board and another Vs. M/s. Usha Martin Industries and another, this Court relied on the judgment of this Court in the case of Hindustan Sugar Mills (supra) and reiterated legal position that sale price would be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of goods. 38. In the case of M/s. Black Diamond Beverages and another Vs. Commercial Tax Officer, Central Section Assessment Wing, Calcutta and others, this Court observed that freight and handling charges would be included in the sale price. 39. In Commissioner of Central Excise, Delhi Vs. Maruti Udyog Ltd., this Court observed as under: ...The sale price realized by the respondent has to be regarded as the entire price inclusive of excise duty because it is the respondent who has, by necessary implication, taken on the liability to pay all taxes on the goods sold and has not sought to realize any sum in addition to the price obtained by it from the purchaser. The purchaser was under no obligation to pay any amount in excess of what had already been paid as the price of the scrap. 40. In State of Andhra Pradesh Vs. A.P. Paper Mills Ltd., the short question arose for consideration was whether the transportation charges and agents commission paid by the respondent - M/s. A.P. Paper Mills Ltd. to the agent together with the cost of raw material constitute turnover u/s 2(s) and is liable to sales tax u/s 6A of the Andhra Pradesh General Sales Tax Act, 1957. This Court relied on Hindustan Sugar Mills (supra) and came to the conclusion that the transportation charges and agents commission would be inclusive in turnover u/s 2(s) and is liable to Sales Tax u/s 6(a) of the Andhra Pradesh General Sales Tax Act, 1957. 41. When we apply the ratio of the judgments of the English Courts and of our Courts, the conclusion becomes obvious that the amount of freight and insurance charges incurred by the dealer forms part of the sale price.
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Act, inter alia, to mean the aggregate amount for which goods are bought or sold or delivered or supplied or otherwise disposed of in any of the ways referred to in Clause (n).20. When the transfer of the property or the goods is to be at the place of the buyer to which the seller is under an obligation to transport the goods, the expenditure incurred by the seller on freight in order to carry the goods from his place of manufacture to the place at which he is required under the contract to deliver, would thus become part of the amount for which the goods are sold by the seller to the buyer and would fall within the scope of turnover.Even if freight and insurance charges are shown separately in the Bill and added to the price of the goods, the character of payment would remain the same. Since freight and insurance charges represent expenditure incurred by the dealer in making the goods available to the purchaser at the place of sale, they would constitute an addition to the cost of the goods to the dealer and would clearly be a component of the price to the purchaser. The amount of freight and insurance charges would be payable by the purchaser not under any statutory or other liability but as part of the consideration for the sale of the goods and would therefore, form part of the sale price.26. According to the facts of this case, Dyer Meakin Breweries Ltd. is registered as a dealer in Indian made foreign liquor under the Kerala General Sales Tax Act, 1963. The company has a place of business at Ernakulam, Kerala. The liquor sold by the company is manufactured or produced in distilleries or breweries at different places in the State of U.P. and Haryana. Liquor is transported for sale by the company from its breweries and distilleries to its place of business at Ernakulam. It is the practice of the company to maintain a uniform ex-factory price in respect of each brand of liquor sold at different centers after adding to the ex-factory price the appropriate amount attributable to freight and other charges.31. This Court had an occasion to deal with identical issues in the case of Hindustan Sugar Mills (supra). P.N. Bhagwati, J. (as His Lordship then was), clearly held that by reason of the provisions of the Control Order which governed the transactions of sale of cement entered into by the assessee with the purchasers in both the appeals before us, the amount of freight formed part of the sale price.32. In this judgment, the court comprehensively explained the entire principle of law by giving an example in para 8 of the judgment which reads as under:8. Take for example, excise duty payable by a dealer who is a manufacturer. When he sells goods manufactured by him, he always passes on the excise duty to the purchaser. Ordinarily it is not shown as a separate item in the bill, but it is included in the price charged by him. The sale price in such a case could be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of the goods. True, the excise duty component of the price would not be an addition to the coffers of the dealer, as it would go to reimburse him in respect of the excise duty already paid by him on the manufacture of the goods. But even so, it would be part of the sale price because it forms a component of the consideration payable by the purchaser to the dealer. It is only as part of the consideration for the sale of the goods that the amount representing excise duty would be payable by the purchaser. There is no other manner of liability, statutory or otherwise, under which the purchases would be liable to pay the amount of excise duty to the dealer. And, on this reasoning, it would make no difference whether the amount of excise duty is included in the price charged by the dealer or is shown as a separate item in the bill. In either case, it would be part of the sale price. So also, the amount of sales tax payable by a dealer, whether included in the price or added to it as a separate item as is usually the case, forms part of the sale price. It is payable by the purchaser to the dealer as part of the consideration for the sale of the goods and hence falls within the first part of the definition.33. This judgment has been followed in a large number of subsequent judgments in other cases by this Court.37. In Bihar State Electricity Board and another Vs. M/s. Usha Martin Industries and another, this Court relied on the judgment of this Court in the case of Hindustan Sugar Mills (supra) and reiterated legal position that sale price would be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of goods.40. In State of Andhra Pradesh Vs. A.P. Paper Mills Ltd., the short question arose for consideration was whether the transportation charges and agents commission paid by the respondent - M/s. A.P. Paper Mills Ltd. to the agent together with the cost of raw material constitute turnover u/s 2(s) and is liable to sales tax u/s 6A of the Andhra Pradesh General Sales Tax Act, 1957. This Court relied on Hindustan Sugar Mills (supra) and came to the conclusion that the transportation charges and agents commission would be inclusive in turnover u/s 2(s) and is liable to Sales Tax u/s 6(a) of the Andhra Pradesh General Sales Tax Act, 1957.41. When we apply the ratio of the judgments of the English Courts and of our Courts, the conclusion becomes obvious that the amount of freight and insurance charges incurred by the dealer forms part of the sale price.
|
Motipur Zamindari Co. Ltd Vs. The State Of Bihar And Another.Raja Jankinath Roy And Nare | no worse position than the official assignee or official receiver of an individual proprietor who may happen to become insolvent in another State.5. Finally, Mr. P. R. Das strongly relies on section 41 of the Act and contends that that section would be wholly inapplicable to a company and that circumstance by itself would indicate that the Bihar Legislature did not intend that a company owning an estate should be governed by this Act. A corporation, it is true, cannot be made liable for treason, felony or any misdemeanor involving personal violence or for any offence for which the only penalty is imprisonment or corporal punishment. (Halsbury, 2nd Edition, Volume IX, article 5, p. 14). Section 41 does not prescribe punishment by imprisonment only. Mr. P. R. Das suggests that the infliction of imprisonment or fine would depend upon the gravity of the offence and not on the character of the offender. This argument, however, would seem to run counter to the opinion of Lord Blackburn set forth at pages 867-870 of the report of the very case relied on by Mr. P. R. Das. The resent cases of Director of Public Prosecutions v. Kent and Sussex Contractors Limited [[1944] 1 K.B. 146] and Rex v. I.C.R. Haulage, Limited and Another [[1944] 1 K.B. 551] seem to indicate that a corporation may be convicted even of an offence requiring an act of will or a state of mind. Apart, however, from the consideration whether a company may be held guilty of wilful failure or neglect, as to which we need not express any definite opinion on this occasion, there can be no difficulty in applying the provisions of section 41 to the officers or agents of the company. On a notification under section 3(1) being published the estate vests in the State. Section 4 sets out the consequences of such vesting. Clause (g) of that section empowers the Collector by written order served in the prescribed manner to require any person in possession of such an estate or tenure or any part thereof to give up possession of the same by a date specified in the order and to take such steps or use such force as may be necessary for securing compliance with the said order. If any officer or agent of the company in the possession of the estate wilfully fails or ignores to comply with such lawful order, then surely he can be proceeded against under section 41. Likewise, under section 40, the officers therein mentioned are authorized at any time before or after the date of vesting by a written order served in the prescribed manner to require a proprietor or tenure-holder or any other person in possession of such an estate or tenure or any agents or employees of such proprietor, tenure-holder or other person to produce at a time and place specified in the order such documents, papers or registers or to furnish such information relating to such estate or tenure as such officer may from time to time require for any of the purposes of this Act. A wilful failure or neglect to comply with such order would clearly bring the recalcitrant officer or agent of the company with in the penalty provided under section 41. Section 41, therefore, does not necessarily preclude the application of the Act to incorporated companies.It cannot be denied that a company is competent to own and hold property. The whole object of the impugned Act is thus stated by Mahajan J. in the State of Bihar v. Kameshwar Singh [[1952] S.C.R. 889 at p. 941] :"Now it is obvious that concentration of big blocks of land in the hands of a few individuals is contrary to the principle on which the Constitution of India is based. The purpose of the acquisition contemplated by the impugned Act therefore is to do away with the concentration of big blocks of land and means of production in the hands of a few individuals and to so distribute the ownership and control of the material resources which come in the hands of the State as to subserve the common good as best as possible. In other words, shortly put, the purpose behind the Act is to bring about a reform in the land distribution system of Bihar for the general benefit of the community as advised."6. In view of this purpose there is no reason to differentiate between an individual proprietor and a company which owns estates or tenures. Indeed, there is not only nothing repugnant in the subject or context of the Act which should prevent the inclusion of a company owning estate within the definition of "proprietor", such inclusion is necessary in order to give full effect to the very object of the Act.7. In Appeal No. 63 of 1953 Mr. P. R. Das raises an additional point namely, that the appellant company in that appeal owns estates which are situate in Purnea in the district Bihar and in Malda in the district of West Bengal but it has to pay a single Government revenue at Purnea. It is further alleged that the appellant company has let out portions of the estates on Patni leases, each of the Patnis comprising land situate both within and outside Bihar. The acquisition of that part of the estate which is situate in Bihar has made it difficult, if not impossible, for the appellant company to pay its revenue or recover its rent. That part of the estate which is in Bihar cannot be severed from the rest and therefore the notification covering only the portion of the estate situate in Bihar is invalid. We do not think there is any substance in this argument. As stated by the High Court it is a simple case of apportionment of the revenue and also apportionment of the rent. The necessity for such apportionment cannot possibly affect the validity of the notification. For reasons stated above these appeals fail and must be dismissed with costs.8. | 0[ds]We are unable to accept this contention. It is not disputed that a company can own an estate or a part of an estate and, indeed, the appellant companies are fighting these appeals only to protect the estates they own. Therefore, they come within the first part of the definition. The definition after stating what the word means proceeds to state what else the definition would include under specified circumstances, namely, the heirs and successor-in-interest etc. The word "heir" certainly is inappropriate with regard to a company, but there is nothing inappropriate in the company having a successor in-interest. It is pointed out that there is no provision in the definition of proprietor to include the directors, managing agents and, in case of winding up, the liquidator of the company. This circumstance does not appear to us to be a cogent reason for holding that the word "proprietor" as defined does not cover a company. It is to be noted that the agent or, in case of insolvency, the official assignee or receiver of an individual proprietor are also not included in the definition. Reference to proprietor who is a minor or of unsound mind or an idiot and his guardian etc., was obviously necessary because those proprietors suffer from legalIndeed, one cannot think of a company unless one has in view the provisions of the Companies Act, for a company is the creature of the Companies Act. Its existence, powers and rights are all regulated by that Act. The trend of the speeches of the noble Lords in the case relied on by Mr. P. R. Das is that the object of the particular Act under word "corporation" being included within the term "person" as used in that Act, and as we apprehend it, that decision lays down nothing beyond that.In support of his contention that a company owning an estate was never intended to be affected by the Act, Mr. P. R. Das draws our attention to the winding up sections of the Indian Companies Act and urges that it is not possible to fit in the scheme of winding up into the scheme of the Bihar Act. If the Zamindari assets of the company are taken over and compensation is paid by non-transferable bonds it will, he contends, be impossible to apply the law of winding up in case the company goes into liquidation. There will, according to him, be conflict of jurisdiction between the Court where the winding up is proceeding, which may conceivably be in another State, and the Bihar Government and its officers. We see no force in this contention. Upon a notification being issued under section 3, the Zamindari estate will vest in the State and the company will cease to have any interest in it. Its only right will be to receive compensation. In case of winding up the liquidator will have to pursue the remedy provided by this Act. He or the company will be in no worse position than the official assignee or official receiver of an individual proprietor who may happen to become insolvent in another State.A corporation, it is true, cannot be made liable for treason, felony or any misdemeanor involving personal violence or for any offence for which the only penalty is imprisonment or corporal punishment. (Halsbury, 2nd Edition, Volume IX, article 5, p. 14). Section 41 does not prescribe punishment by imprisonment only. Mr. P. R. Das suggests that the infliction of imprisonment or fine would depend upon the gravity of the offence and not on the character of the offender. This argument, however, would seem to run counter to the opinion of Lord Blackburn set forth at pages 867-870 of the report of the very case relied on by Mr. P. R. Das. The resent cases off Public Prosecutions v. Kent and Sussex Contractors Limited [[1944] 1 K.B.v. I.C.R. Haulage, Limited and Another [[1944] 1 K.B. 551]seem to indicate that a corporation may be convicted even of an offence requiring an act of will or a state of mind. Apart, however, from the consideration whether a company may be held guilty of wilful failure or neglect, as to which we need not express any definite opinion on this occasion, there can be no difficulty in applying the provisions of section 41 to the officers or agents of the company. On a notification under section 3(1) being published the estate vests in the State. Section 4 sets out the consequences of such vesting. Clause (g) of that section empowers the Collector by written order served in the prescribed manner to require any person in possession of such an estate or tenure or any part thereof to give up possession of the same by a date specified in the order and to take such steps or use such force as may be necessary for securing compliance with the said order. If any officer or agent of the company in the possession of the estate wilfully fails or ignores to comply with such lawful order, then surely he can be proceeded against under section 41. Likewise, under section 40, the officers therein mentioned are authorized at any time before or after the date of vesting by a written order served in the prescribed manner to require a proprietor or tenure-holder or any other person in possession of such an estate or tenure or any agents or employees of such proprietor, tenure-holder or other person to produce at a time and place specified in the order such documents, papers or registers or to furnish such information relating to such estate or tenure as such officer may from time to time require for any of the purposes of this Act. A wilful failure or neglect to comply with such order would clearly bring the recalcitrant officer or agent of the company with in the penalty provided under section 41. Section 41, therefore, does not necessarily preclude the application of the Act to incorporated companies.It cannot be denied that a company is competent to own and holdview of this purpose there is no reason to differentiate between an individual proprietor and a company which owns estates or tenures. Indeed, there is not only nothing repugnant in the subject or context of the Act which should prevent the inclusion of a company owning estate within the definition of "proprietor", such inclusion is necessary in order to give full effect to the very object of the Act.We do not think there is any substance in this argument. As stated by the High Court it is a simple case of apportionment of the revenue and also apportionment of the rent. The necessity for such apportionment cannot possibly affect the validity of the notification. For reasons stated above these appeals fail and must be dismissed with costs. | 0 | 3,498 | 1,251 | ### Instruction:
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no worse position than the official assignee or official receiver of an individual proprietor who may happen to become insolvent in another State.5. Finally, Mr. P. R. Das strongly relies on section 41 of the Act and contends that that section would be wholly inapplicable to a company and that circumstance by itself would indicate that the Bihar Legislature did not intend that a company owning an estate should be governed by this Act. A corporation, it is true, cannot be made liable for treason, felony or any misdemeanor involving personal violence or for any offence for which the only penalty is imprisonment or corporal punishment. (Halsbury, 2nd Edition, Volume IX, article 5, p. 14). Section 41 does not prescribe punishment by imprisonment only. Mr. P. R. Das suggests that the infliction of imprisonment or fine would depend upon the gravity of the offence and not on the character of the offender. This argument, however, would seem to run counter to the opinion of Lord Blackburn set forth at pages 867-870 of the report of the very case relied on by Mr. P. R. Das. The resent cases of Director of Public Prosecutions v. Kent and Sussex Contractors Limited [[1944] 1 K.B. 146] and Rex v. I.C.R. Haulage, Limited and Another [[1944] 1 K.B. 551] seem to indicate that a corporation may be convicted even of an offence requiring an act of will or a state of mind. Apart, however, from the consideration whether a company may be held guilty of wilful failure or neglect, as to which we need not express any definite opinion on this occasion, there can be no difficulty in applying the provisions of section 41 to the officers or agents of the company. On a notification under section 3(1) being published the estate vests in the State. Section 4 sets out the consequences of such vesting. Clause (g) of that section empowers the Collector by written order served in the prescribed manner to require any person in possession of such an estate or tenure or any part thereof to give up possession of the same by a date specified in the order and to take such steps or use such force as may be necessary for securing compliance with the said order. If any officer or agent of the company in the possession of the estate wilfully fails or ignores to comply with such lawful order, then surely he can be proceeded against under section 41. Likewise, under section 40, the officers therein mentioned are authorized at any time before or after the date of vesting by a written order served in the prescribed manner to require a proprietor or tenure-holder or any other person in possession of such an estate or tenure or any agents or employees of such proprietor, tenure-holder or other person to produce at a time and place specified in the order such documents, papers or registers or to furnish such information relating to such estate or tenure as such officer may from time to time require for any of the purposes of this Act. A wilful failure or neglect to comply with such order would clearly bring the recalcitrant officer or agent of the company with in the penalty provided under section 41. Section 41, therefore, does not necessarily preclude the application of the Act to incorporated companies.It cannot be denied that a company is competent to own and hold property. The whole object of the impugned Act is thus stated by Mahajan J. in the State of Bihar v. Kameshwar Singh [[1952] S.C.R. 889 at p. 941] :"Now it is obvious that concentration of big blocks of land in the hands of a few individuals is contrary to the principle on which the Constitution of India is based. The purpose of the acquisition contemplated by the impugned Act therefore is to do away with the concentration of big blocks of land and means of production in the hands of a few individuals and to so distribute the ownership and control of the material resources which come in the hands of the State as to subserve the common good as best as possible. In other words, shortly put, the purpose behind the Act is to bring about a reform in the land distribution system of Bihar for the general benefit of the community as advised."6. In view of this purpose there is no reason to differentiate between an individual proprietor and a company which owns estates or tenures. Indeed, there is not only nothing repugnant in the subject or context of the Act which should prevent the inclusion of a company owning estate within the definition of "proprietor", such inclusion is necessary in order to give full effect to the very object of the Act.7. In Appeal No. 63 of 1953 Mr. P. R. Das raises an additional point namely, that the appellant company in that appeal owns estates which are situate in Purnea in the district Bihar and in Malda in the district of West Bengal but it has to pay a single Government revenue at Purnea. It is further alleged that the appellant company has let out portions of the estates on Patni leases, each of the Patnis comprising land situate both within and outside Bihar. The acquisition of that part of the estate which is situate in Bihar has made it difficult, if not impossible, for the appellant company to pay its revenue or recover its rent. That part of the estate which is in Bihar cannot be severed from the rest and therefore the notification covering only the portion of the estate situate in Bihar is invalid. We do not think there is any substance in this argument. As stated by the High Court it is a simple case of apportionment of the revenue and also apportionment of the rent. The necessity for such apportionment cannot possibly affect the validity of the notification. For reasons stated above these appeals fail and must be dismissed with costs.8.
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does not appear to us to be a cogent reason for holding that the word "proprietor" as defined does not cover a company. It is to be noted that the agent or, in case of insolvency, the official assignee or receiver of an individual proprietor are also not included in the definition. Reference to proprietor who is a minor or of unsound mind or an idiot and his guardian etc., was obviously necessary because those proprietors suffer from legalIndeed, one cannot think of a company unless one has in view the provisions of the Companies Act, for a company is the creature of the Companies Act. Its existence, powers and rights are all regulated by that Act. The trend of the speeches of the noble Lords in the case relied on by Mr. P. R. Das is that the object of the particular Act under word "corporation" being included within the term "person" as used in that Act, and as we apprehend it, that decision lays down nothing beyond that.In support of his contention that a company owning an estate was never intended to be affected by the Act, Mr. P. R. Das draws our attention to the winding up sections of the Indian Companies Act and urges that it is not possible to fit in the scheme of winding up into the scheme of the Bihar Act. If the Zamindari assets of the company are taken over and compensation is paid by non-transferable bonds it will, he contends, be impossible to apply the law of winding up in case the company goes into liquidation. There will, according to him, be conflict of jurisdiction between the Court where the winding up is proceeding, which may conceivably be in another State, and the Bihar Government and its officers. We see no force in this contention. Upon a notification being issued under section 3, the Zamindari estate will vest in the State and the company will cease to have any interest in it. Its only right will be to receive compensation. In case of winding up the liquidator will have to pursue the remedy provided by this Act. He or the company will be in no worse position than the official assignee or official receiver of an individual proprietor who may happen to become insolvent in another State.A corporation, it is true, cannot be made liable for treason, felony or any misdemeanor involving personal violence or for any offence for which the only penalty is imprisonment or corporal punishment. (Halsbury, 2nd Edition, Volume IX, article 5, p. 14). Section 41 does not prescribe punishment by imprisonment only. Mr. P. R. Das suggests that the infliction of imprisonment or fine would depend upon the gravity of the offence and not on the character of the offender. This argument, however, would seem to run counter to the opinion of Lord Blackburn set forth at pages 867-870 of the report of the very case relied on by Mr. P. R. Das. The resent cases off Public Prosecutions v. Kent and Sussex Contractors Limited [[1944] 1 K.B.v. I.C.R. Haulage, Limited and Another [[1944] 1 K.B. 551]seem to indicate that a corporation may be convicted even of an offence requiring an act of will or a state of mind. Apart, however, from the consideration whether a company may be held guilty of wilful failure or neglect, as to which we need not express any definite opinion on this occasion, there can be no difficulty in applying the provisions of section 41 to the officers or agents of the company. On a notification under section 3(1) being published the estate vests in the State. Section 4 sets out the consequences of such vesting. Clause (g) of that section empowers the Collector by written order served in the prescribed manner to require any person in possession of such an estate or tenure or any part thereof to give up possession of the same by a date specified in the order and to take such steps or use such force as may be necessary for securing compliance with the said order. If any officer or agent of the company in the possession of the estate wilfully fails or ignores to comply with such lawful order, then surely he can be proceeded against under section 41. Likewise, under section 40, the officers therein mentioned are authorized at any time before or after the date of vesting by a written order served in the prescribed manner to require a proprietor or tenure-holder or any other person in possession of such an estate or tenure or any agents or employees of such proprietor, tenure-holder or other person to produce at a time and place specified in the order such documents, papers or registers or to furnish such information relating to such estate or tenure as such officer may from time to time require for any of the purposes of this Act. A wilful failure or neglect to comply with such order would clearly bring the recalcitrant officer or agent of the company with in the penalty provided under section 41. Section 41, therefore, does not necessarily preclude the application of the Act to incorporated companies.It cannot be denied that a company is competent to own and holdview of this purpose there is no reason to differentiate between an individual proprietor and a company which owns estates or tenures. Indeed, there is not only nothing repugnant in the subject or context of the Act which should prevent the inclusion of a company owning estate within the definition of "proprietor", such inclusion is necessary in order to give full effect to the very object of the Act.We do not think there is any substance in this argument. As stated by the High Court it is a simple case of apportionment of the revenue and also apportionment of the rent. The necessity for such apportionment cannot possibly affect the validity of the notification. For reasons stated above these appeals fail and must be dismissed with costs.
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State of Andhra Pradesh & Others Vs. Lavu Narendranath & Others | persons for whom it is essential to provide facilities for medical education. If the sources are properly classified whether on territorial, geographical or other reasonable basis it is not for the courts to interfere with the manner and method of making the classification." The above case is not directly in point but it at least shows that a candidate has not an unqualified right to a seat in a medical college merely because he has obtained higher marks than another candidate at the qualifying examination.14. Mr. Choudhury the learned advocate for the respondents put before us his contentions with regard to the above in three propositions, namely, (1) The State has no power to trench upon the powers given to the University. The test prescribed contravenes S. 23 of the Act. (2) Even if the matter is not covered by the Universities Act the executive cannot be allowed to usurp a law-making power in prescribing a test. (3) The rule affects prejudicially the right conferred on candidates by the University Regulations.15.In our view there is no substance in any of the contentions is will be apparent from our conclusions noted above and the decisions of this Court bearing on this point. The University Act, as pointed out, merely prescribed a minimum qualification for entry into the higher courses of study. There was no regulation to the effect that admission to higher course of study was guaranteed by the securing of eligibility. The Executive have a power to make any regulation which would have the effect of a law so long as it does not contravene any legislation already covering the field and the Government order in this case in no way affected the rights of candidates with regard to eligibility for admission: the test prescribed was a further hurdle by way of competition when mere eligibility could not be made the determining factor.16. Mr. Choudhury faintly tried to urge other points which may be briefly noted. One of the grounds was that some of the questions were not covered by the curricula by the P. U. C. or the S.S.L.C. examination. This was not a ground which has any merit. If some of the questions were outside the syllabi all the candidates were at an equal disadvantage. Alternatively the questions might have been put to find out whether the candidates knowledge was limited to the syllabus or whether he was sufficiently interested in the subjects so as to acquire knowledge beyond the prescribed curriculum.17. The next ground urged was that the written test was in substitution of the University examination and was altogether a novel experiment no such test having been held before. In our view there is no substance in this contention either. The written test was not in substitution of the University examination but it was something additional to that and the mere fact that a written test had been introduced in the year 1970 would be no ground for holding that the method of selection was invalid. Further no complaint can be made that the notice of examination was all too short or that it was never published in the Gazette. If it was short it affected everybody equally adversely and the figures showing how many candidates had taken the test demonstrates very clearly that everybody who had cared to sit for the examination had an opportunity of doing so. Publication of the notification in the Gazette was not called for by any law.18. Lastly it was urged that such test affected the personal liberty of the candidates secured under Article 21 of the Constitution.We fail to see how refusal of an application to enter a medical college can be said to affect ones personal liberty guaranteed under that Article. Everybody, subject to the eligibility prescribed by the University, was at liberty to apply for admission to the Medical College. The number of seats being limited compared to the number of applicants every candidate could not expect to be admitted. Once it is held that the test is not invalid the deprivation of personal liberty, if any, in the matter of admission to a medical College was according to procedure established by law.Our attention was drawn to the case of Spottswood v. Sharpe, (1953) 98 L- Ed. 884 in which it was held that due process clause of the Fifth Amendment of the American Constitution prohibited racial segregation in the District of Columbia. Incidentally the Court made a remark (at p. 887):"Although the Court has not assumed to define "liberty" with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full rouge of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause."The problem before us is altogether different. In this case everybody subject to the minimum qualification prescribed was at liberty to apply for admission. The Government objective in selecting a number of them was certainly not improper in the circumstances of the case.19. Learned counsel also referred us to an observation of this Court in Satwant Singh v. Passport Officer, (1967) 3 SCR 525 at P. 540 = (AIR 1967 SC 1836 at p. 1844) that:" liberty in our Constitution bears the same comprehensive meaning as is given to the expression "liberty" by the 5th and 14th Amendments to the U. S. Constitution and the expression "personal liberty" in Article 21 only excludes the ingredients of "liberty" enshrined in Article 19 of the Constitution."We do not find it necessary to dilate on this point in view of our conclusion that even if personal liberty extends to such conduct there has not been any deprivation thereof in violation of any procedure established by law. | 1[ds]11. With respect, it seems to us that the observations above quoted are equally applicable to the case before us, the only difference being that whereas in the Mysore case marks were awarded on the basis of the impression created at the interview and added in a certain manner to the marks obtained at the University examination in the case before us the marks obtained at the University only make candidates eligible to appear at the written test and it is the last test which is the determining factor as to who should be admitted and who should beabove case is not directly in point but it at least shows that a candidate has not an unqualified right to a seat in a medical college merely because he has obtained higher marks than another candidate at the qualifyingour view there is no substance in any of the contentions is will be apparent from our conclusions noted above and the decisions of this Court bearing on this point. The University Act, as pointed out, merely prescribed a minimum qualification for entry into the higher courses of study. There was no regulation to the effect that admission to higher course of study was guaranteed by the securing of eligibility. The Executive have a power to make any regulation which would have the effect of a law so long as it does not contravene any legislation already covering the field and the Government order in this case in no way affected the rights of candidates with regard to eligibility for admission: the test prescribed was a further hurdle by way of competition when mere eligibility could not be made the determiningour view there is no substance in this contention either. The written test was not in substitution of the University examination but it was something additional to that and the mere fact that a written test had been introduced in the year 1970 would be no ground for holding that the method of selection was invalid. Further no complaint can be made that the notice of examination was all too short or that it was never published in the Gazette. If it was short it affected everybody equally adversely and the figures showing how many candidates had taken the test demonstrates very clearly that everybody who had cared to sit for the examination had an opportunity of doing so. Publication of the notification in the Gazette was not called for by anyfail to see how refusal of an application to enter a medical college can be said to affect ones personal liberty guaranteed under that Article. Everybody, subject to the eligibility prescribed by the University, was at liberty to apply for admission to the Medical College. The number of seats being limited compared to the number of applicants every candidate could not expect to be admitted. Once it is held that the test is not invalid the deprivation of personal liberty, if any, in the matter of admission to a medical College was according to procedure established bydo not find it necessary to dilate on this point in view of our conclusion that even if personal liberty extends to such conduct there has not been any deprivation thereof in violation of any procedure established by law. | 1 | 4,621 | 568 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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persons for whom it is essential to provide facilities for medical education. If the sources are properly classified whether on territorial, geographical or other reasonable basis it is not for the courts to interfere with the manner and method of making the classification." The above case is not directly in point but it at least shows that a candidate has not an unqualified right to a seat in a medical college merely because he has obtained higher marks than another candidate at the qualifying examination.14. Mr. Choudhury the learned advocate for the respondents put before us his contentions with regard to the above in three propositions, namely, (1) The State has no power to trench upon the powers given to the University. The test prescribed contravenes S. 23 of the Act. (2) Even if the matter is not covered by the Universities Act the executive cannot be allowed to usurp a law-making power in prescribing a test. (3) The rule affects prejudicially the right conferred on candidates by the University Regulations.15.In our view there is no substance in any of the contentions is will be apparent from our conclusions noted above and the decisions of this Court bearing on this point. The University Act, as pointed out, merely prescribed a minimum qualification for entry into the higher courses of study. There was no regulation to the effect that admission to higher course of study was guaranteed by the securing of eligibility. The Executive have a power to make any regulation which would have the effect of a law so long as it does not contravene any legislation already covering the field and the Government order in this case in no way affected the rights of candidates with regard to eligibility for admission: the test prescribed was a further hurdle by way of competition when mere eligibility could not be made the determining factor.16. Mr. Choudhury faintly tried to urge other points which may be briefly noted. One of the grounds was that some of the questions were not covered by the curricula by the P. U. C. or the S.S.L.C. examination. This was not a ground which has any merit. If some of the questions were outside the syllabi all the candidates were at an equal disadvantage. Alternatively the questions might have been put to find out whether the candidates knowledge was limited to the syllabus or whether he was sufficiently interested in the subjects so as to acquire knowledge beyond the prescribed curriculum.17. The next ground urged was that the written test was in substitution of the University examination and was altogether a novel experiment no such test having been held before. In our view there is no substance in this contention either. The written test was not in substitution of the University examination but it was something additional to that and the mere fact that a written test had been introduced in the year 1970 would be no ground for holding that the method of selection was invalid. Further no complaint can be made that the notice of examination was all too short or that it was never published in the Gazette. If it was short it affected everybody equally adversely and the figures showing how many candidates had taken the test demonstrates very clearly that everybody who had cared to sit for the examination had an opportunity of doing so. Publication of the notification in the Gazette was not called for by any law.18. Lastly it was urged that such test affected the personal liberty of the candidates secured under Article 21 of the Constitution.We fail to see how refusal of an application to enter a medical college can be said to affect ones personal liberty guaranteed under that Article. Everybody, subject to the eligibility prescribed by the University, was at liberty to apply for admission to the Medical College. The number of seats being limited compared to the number of applicants every candidate could not expect to be admitted. Once it is held that the test is not invalid the deprivation of personal liberty, if any, in the matter of admission to a medical College was according to procedure established by law.Our attention was drawn to the case of Spottswood v. Sharpe, (1953) 98 L- Ed. 884 in which it was held that due process clause of the Fifth Amendment of the American Constitution prohibited racial segregation in the District of Columbia. Incidentally the Court made a remark (at p. 887):"Although the Court has not assumed to define "liberty" with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full rouge of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause."The problem before us is altogether different. In this case everybody subject to the minimum qualification prescribed was at liberty to apply for admission. The Government objective in selecting a number of them was certainly not improper in the circumstances of the case.19. Learned counsel also referred us to an observation of this Court in Satwant Singh v. Passport Officer, (1967) 3 SCR 525 at P. 540 = (AIR 1967 SC 1836 at p. 1844) that:" liberty in our Constitution bears the same comprehensive meaning as is given to the expression "liberty" by the 5th and 14th Amendments to the U. S. Constitution and the expression "personal liberty" in Article 21 only excludes the ingredients of "liberty" enshrined in Article 19 of the Constitution."We do not find it necessary to dilate on this point in view of our conclusion that even if personal liberty extends to such conduct there has not been any deprivation thereof in violation of any procedure established by law.
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1
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11. With respect, it seems to us that the observations above quoted are equally applicable to the case before us, the only difference being that whereas in the Mysore case marks were awarded on the basis of the impression created at the interview and added in a certain manner to the marks obtained at the University examination in the case before us the marks obtained at the University only make candidates eligible to appear at the written test and it is the last test which is the determining factor as to who should be admitted and who should beabove case is not directly in point but it at least shows that a candidate has not an unqualified right to a seat in a medical college merely because he has obtained higher marks than another candidate at the qualifyingour view there is no substance in any of the contentions is will be apparent from our conclusions noted above and the decisions of this Court bearing on this point. The University Act, as pointed out, merely prescribed a minimum qualification for entry into the higher courses of study. There was no regulation to the effect that admission to higher course of study was guaranteed by the securing of eligibility. The Executive have a power to make any regulation which would have the effect of a law so long as it does not contravene any legislation already covering the field and the Government order in this case in no way affected the rights of candidates with regard to eligibility for admission: the test prescribed was a further hurdle by way of competition when mere eligibility could not be made the determiningour view there is no substance in this contention either. The written test was not in substitution of the University examination but it was something additional to that and the mere fact that a written test had been introduced in the year 1970 would be no ground for holding that the method of selection was invalid. Further no complaint can be made that the notice of examination was all too short or that it was never published in the Gazette. If it was short it affected everybody equally adversely and the figures showing how many candidates had taken the test demonstrates very clearly that everybody who had cared to sit for the examination had an opportunity of doing so. Publication of the notification in the Gazette was not called for by anyfail to see how refusal of an application to enter a medical college can be said to affect ones personal liberty guaranteed under that Article. Everybody, subject to the eligibility prescribed by the University, was at liberty to apply for admission to the Medical College. The number of seats being limited compared to the number of applicants every candidate could not expect to be admitted. Once it is held that the test is not invalid the deprivation of personal liberty, if any, in the matter of admission to a medical College was according to procedure established bydo not find it necessary to dilate on this point in view of our conclusion that even if personal liberty extends to such conduct there has not been any deprivation thereof in violation of any procedure established by law.
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Commissioner of Wealth Tax, Bombay City III Vs. Michel Postel | HEGDE, J. 1. The only question that arises for decision in these appeals is whether the High Court was justified in rejecting the application of the department to call for a statement of case from the Tribunal along with the question of law " Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the provision in respect of additional super-tax under section 23A of the Indian Income-tax Act, 1922/section 104 of the Income-tax Act, 1961, should be deducted in computing the break-up value of the shares of Franco Indian Pharmaceutical Pvt. Ltd. for purposes of the wealth-tax assessments of the assessee for the assessment years 1960-61, 1961-62 and 1962-63 ?" 2. The Tribunal declined to submit that question and the High Court dismissed the application of the department to call upon the Tribunal to submit that question for its opinion along with the statement of case. 3. In these appeals we are concerned with the valuation of the assessees wealth during the years ending March 31, 1960, March 31, 1961, and March 31, 1962. One of the points contested by the department related to the computation of the value of the shares held by the assessee in two companies, viz., Franco Indian Manufacturers Pvt. Ltd. and Franco Indian Pharmaceutical Pvt. Ltd. To both these companies, section 23A of the Indian Income-tax Act, 1922, or its corresponding provision in the 1961 Act could be applied if the conditions prescribed therein are satisfied. It was found by the Tribunal that the provision was applied during the assessment year 1961-62. For the assessment year 1960-61 tax under section 23A was paid under a settlement. In calculating the break-up value of the shares in these companies, the assessee wanted the additional super-tax leviable under section 23A of the Indian Income-tax Act, 1922, or leviable under section 104 of the Income-tax Act, 1961, to be deducted in addition to the deduction of other liabilities. The Wealth-tax Officer rejected that claim. In appeal the Appellate Assistant Commissioner allowed the deductions. The Tribunal upheld the decision of the Appellate Assistant CommissionerFrom the facts set out above, it is quite clear that the question of law formulated by the department did arise for consideration. The Tribunal erred in opining that its finding that the additional tax payable under section 23A is deductible, is a finding of fact, . Hence, the Tribunal was wrong in refusing to refer that question for the opinion of the High Court under section 27(1) of the Act, The High Court also erred in not calling upon the Tribunal to refer that question for its opinion along with a statement of case. There is hardly any doubt that the question set out above did arise from the order of the Tribunal and that question is a question of law. 4. | 1[ds]In these appeals we are concerned with the valuation of the assessees wealth during the years ending March 31, 1960, March 31, 1961, and March 31, 1962. One of the points contested by the department related to the computation of the value of the shares held by the assessee in two companies, viz., Franco Indian Manufacturers Pvt. Ltd. and Franco Indian Pharmaceutical Pvt. Ltd. To both these companies, section 23A of the Indianx Act, 1922, or its corresponding provision in the 1961 Act could be applied if the conditions prescribed therein are satisfied. It was found by the Tribunal that the provision was applied during the assessment year. For the assessment year1 tax under section 23A was paid under a settlement. In calculating thep value of the shares in these companies, the assessee wanted the additionalx leviable under section 23A of the Indianx Act, 1922, or leviable under section 104 of thex Act, 1961, to be deducted in addition to the deduction of other liabilities. Thex Officer rejected that claim. In appeal the Appellate Assistant Commissioner allowed the deductions. The Tribunal upheld the decision of the Appellate Assistant CommissionerFrom the facts set out above, it is quite clear that the question of law formulated by the department did arise for consideration. The Tribunal erred in opining that its finding that the additional tax payable under section 23A is deductible, is a finding of fact, . Hence, the Tribunal was wrong in refusing to refer that question for the opinion of the High Court under section 27(1) of the Act, The High Court also erred in not calling upon the Tribunal to refer that question for its opinion along with a statement of case. There is hardly any doubt that the question set out above did arise from the order of the Tribunal and that question is a question of law. | 1 | 525 | 349 | ### 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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HEGDE, J. 1. The only question that arises for decision in these appeals is whether the High Court was justified in rejecting the application of the department to call for a statement of case from the Tribunal along with the question of law " Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the provision in respect of additional super-tax under section 23A of the Indian Income-tax Act, 1922/section 104 of the Income-tax Act, 1961, should be deducted in computing the break-up value of the shares of Franco Indian Pharmaceutical Pvt. Ltd. for purposes of the wealth-tax assessments of the assessee for the assessment years 1960-61, 1961-62 and 1962-63 ?" 2. The Tribunal declined to submit that question and the High Court dismissed the application of the department to call upon the Tribunal to submit that question for its opinion along with the statement of case. 3. In these appeals we are concerned with the valuation of the assessees wealth during the years ending March 31, 1960, March 31, 1961, and March 31, 1962. One of the points contested by the department related to the computation of the value of the shares held by the assessee in two companies, viz., Franco Indian Manufacturers Pvt. Ltd. and Franco Indian Pharmaceutical Pvt. Ltd. To both these companies, section 23A of the Indian Income-tax Act, 1922, or its corresponding provision in the 1961 Act could be applied if the conditions prescribed therein are satisfied. It was found by the Tribunal that the provision was applied during the assessment year 1961-62. For the assessment year 1960-61 tax under section 23A was paid under a settlement. In calculating the break-up value of the shares in these companies, the assessee wanted the additional super-tax leviable under section 23A of the Indian Income-tax Act, 1922, or leviable under section 104 of the Income-tax Act, 1961, to be deducted in addition to the deduction of other liabilities. The Wealth-tax Officer rejected that claim. In appeal the Appellate Assistant Commissioner allowed the deductions. The Tribunal upheld the decision of the Appellate Assistant CommissionerFrom the facts set out above, it is quite clear that the question of law formulated by the department did arise for consideration. The Tribunal erred in opining that its finding that the additional tax payable under section 23A is deductible, is a finding of fact, . Hence, the Tribunal was wrong in refusing to refer that question for the opinion of the High Court under section 27(1) of the Act, The High Court also erred in not calling upon the Tribunal to refer that question for its opinion along with a statement of case. There is hardly any doubt that the question set out above did arise from the order of the Tribunal and that question is a question of law. 4.
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### Explanation:
In these appeals we are concerned with the valuation of the assessees wealth during the years ending March 31, 1960, March 31, 1961, and March 31, 1962. One of the points contested by the department related to the computation of the value of the shares held by the assessee in two companies, viz., Franco Indian Manufacturers Pvt. Ltd. and Franco Indian Pharmaceutical Pvt. Ltd. To both these companies, section 23A of the Indianx Act, 1922, or its corresponding provision in the 1961 Act could be applied if the conditions prescribed therein are satisfied. It was found by the Tribunal that the provision was applied during the assessment year. For the assessment year1 tax under section 23A was paid under a settlement. In calculating thep value of the shares in these companies, the assessee wanted the additionalx leviable under section 23A of the Indianx Act, 1922, or leviable under section 104 of thex Act, 1961, to be deducted in addition to the deduction of other liabilities. Thex Officer rejected that claim. In appeal the Appellate Assistant Commissioner allowed the deductions. The Tribunal upheld the decision of the Appellate Assistant CommissionerFrom the facts set out above, it is quite clear that the question of law formulated by the department did arise for consideration. The Tribunal erred in opining that its finding that the additional tax payable under section 23A is deductible, is a finding of fact, . Hence, the Tribunal was wrong in refusing to refer that question for the opinion of the High Court under section 27(1) of the Act, The High Court also erred in not calling upon the Tribunal to refer that question for its opinion along with a statement of case. There is hardly any doubt that the question set out above did arise from the order of the Tribunal and that question is a question of law.
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Mallappa Basappa Desai Vs. Mallappa Veerabhadrappa Desai And Others | infancy, insanity or other disqualification, and have no near relations entitled and willing to take charge on their behalf, the Judge, within whose jurisdiction such property is, may appoint an administrator for the management thereof, until the lawful heir, executor or administrator appears, or the right of succession is determined, or the disqualification of the heir is removed, as the case may be, when the Judge on being satisfied of the facts, shall direct the administrator in charge to deliver over the property to such person, with a full account of all receipts and disbursements during the period of his administration".9. In the present case, the relevant clause is where the right of succession is disputed between two or more claimants, none of whom has taken possession it is common ground that the right of succession is disputed between the claimants who have moved the Additional District Judge. The point of dispute between the parties is whether any of the claimants has taken possession. The appellant contends that at the date when the administrator was appointed by the Additional District Judge he was in possession, and so, the requirement that none of the claimants should be in possession before an Administrator can be appointed is not satisfied. The argument is that the relevant date by reference to which the question of possession should be determined is, in the context, the date of the order, and if that be so, the appellant was in possession of the bulk of the properties and the appointment of an administrator was, therefore not justified. It is also urged in support of this plea that the fact that the rent notes were executed in favour of the appellant after the commencement of the present proceedings cannot obviously introduce considerations of lis pendens, and what the Court has to consider is just the bare question as to whether any of the claimants is in possession of the property or not, and the answer to this question should be in favour of the appellant because he produced before the Court rent notes executed by the tenants who were cultivating the lands in question.10. This argument is not well founded. What the Court has to consider in dealing with the question of possession is: was any of the claimants in possession of the properties succession to which is in dispute at the date of the commencement of the proceedings under this Regulation? The proceedings may commence either on an application made by one of the claimants, or may be started suo motu by the Judge; in either case, the relevant point of time by reference to which the requirement as to possession has to be judged is the date of the commencement of the proceedings. It may be that one of the claimants may have obtained possession soon after the death of the last holder, and before the proceedings commenced under the Regulation, he would be able to show that he was in possession; but if no one was in possession at the date when the proceedings commenced, the requirements of the relevant clause of R. 9 is satisfied, because possession obtained after the commencement of the proceedings would nor make any difference. If the appellants construction is accepted, it would lead to anomalous results. Take a case where none of the claimants is in possession at the date when the District Judge makes his order, and that when the matter is taken to the High Court under S. 115, some one or the other of the claimants manages to secure possession. on the appellants construction, the High Court would have to set aside the order appointing the administrator, because at the date when the High Court is passing the order one of the claimants has secured possession. Besides, the basic idea underlying the provisions of R. 9 is to provide for a smooth, peaceful and legal devolution of the estate on the rightful owner; and so, in cases where there is a dispute as to title amongst different persons and none of these persons has been able to secure possession soon after the succession opened, R. 9 steps in and provides for the appointment of an administrator. The appointment of the administrator does not prejudice the claim of any person who has set up a title to succession. The only result of the appointment of the administrator is that the property is taken under the charge of an administrator and is managed by him pending the final decision of the question of succession to the estate by a Court of competent jurisdiction. Therefore, we are satisfied that the Courts below were right in holding that since the appellant was not in possession at the date when the present proceedings commenced and obviously there is a dispute as to the title between two or more claimants, the material requirement of R. 9 is satisfied and that justifies the appointment of an administrator.11. We have already seen that R. 2 contemplates that an executor, heir or administrator may apply for formal recognition as a measure of safety and subsequent Rules provide for the manner in which such an application should be dealt with. If the application succeeds, a certificate is issued. If the application fails, the certificate is refused. But R. 8 specifically provides that the refusal of a certificate by the Judge shall not finally determine the rights of the person whose application is refused, but it shall be competent to him to institute a suit for the purpose of establishing his claim. Rule 8 and R. 9 both make it clear that the decision recorded by the Court under the provisions of the relevant Rules is a summary decision and it does not purport to bar the jurisdiction of the civil Courts by which questions of title would be finally determined. That being so, it seems clear that under the relevant clause of R. 9, the date of possession must be the date before the proceedings commenced. | 0[ds]The proceedings may commence either on an application made by one of the claimants, or may be started suo motu by the Judge; in either case, the relevant point of time by reference to which the requirement as to possession has to be judged is the date of the commencement of the proceedings. It may be that one of the claimants may have obtained possession soon after the death of the last holder, and before the proceedings commenced under the Regulation, he would be able to show that he was in possession; but if no one was in possession at the date when the proceedings commenced, the requirements of the relevant clause of R. 9 is satisfied, because possession obtained after the commencement of the proceedings would nor make any difference. If the appellants construction is accepted, it would lead to anomalous results. Take a case where none of the claimants is in possession at the date when the District Judge makes his order, and that when the matter is taken to the High Court under S. 115, some one or the other of the claimants manages to secure possession. on the appellants construction, the High Court would have to set aside the order appointing the administrator, because at the date when the High Court is passing the order one of the claimants has secured possession. Besides, the basic idea underlying the provisions of R. 9 is to provide for a smooth, peaceful and legal devolution of the estate on the rightful owner; and so, in cases where there is a dispute as to title amongst different persons and none of these persons has been able to secure possession soon after the succession opened, R. 9 steps in and provides for the appointment of an administrator. The appointment of the administrator does not prejudice the claim of any person who has set up a title to succession. The only result of the appointment of the administrator is that the property is taken under the charge of an administrator and is managed by him pending the final decision of the question of succession to the estate by a Court of competent jurisdiction. Therefore, we are satisfied that the Courts below were right in holding that since the appellant was not in possession at the date when the present proceedings commenced and obviously there is a dispute as to the title between two or more claimants, the material requirement of R. 9 is satisfied and that justifies the appointment of an administrator.11. We have already seen that R. 2 contemplates that an executor, heir or administrator may apply for formal recognition as a measure of safety and subsequent Rules provide for the manner in which such an application should be dealt with. If the application succeeds, a certificate is issued. If the application fails, the certificate is refused. But R. 8 specifically provides that the refusal of a certificate by the Judge shall not finally determine the rights of the person whose application is refused, but it shall be competent to him to institute a suit for the purpose of establishing his claim. Rule 8 and R. 9 both make it clear that the decision recorded by the Court under the provisions of the relevant Rules is a summary decision and it does not purport to bar the jurisdiction of the civil Courts by which questions of title would be finally determined. That being so, it seems clear that under the relevant clause of R. 9, the date of possession must be the date before the proceedings commenced. | 0 | 2,987 | 641 | ### 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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infancy, insanity or other disqualification, and have no near relations entitled and willing to take charge on their behalf, the Judge, within whose jurisdiction such property is, may appoint an administrator for the management thereof, until the lawful heir, executor or administrator appears, or the right of succession is determined, or the disqualification of the heir is removed, as the case may be, when the Judge on being satisfied of the facts, shall direct the administrator in charge to deliver over the property to such person, with a full account of all receipts and disbursements during the period of his administration".9. In the present case, the relevant clause is where the right of succession is disputed between two or more claimants, none of whom has taken possession it is common ground that the right of succession is disputed between the claimants who have moved the Additional District Judge. The point of dispute between the parties is whether any of the claimants has taken possession. The appellant contends that at the date when the administrator was appointed by the Additional District Judge he was in possession, and so, the requirement that none of the claimants should be in possession before an Administrator can be appointed is not satisfied. The argument is that the relevant date by reference to which the question of possession should be determined is, in the context, the date of the order, and if that be so, the appellant was in possession of the bulk of the properties and the appointment of an administrator was, therefore not justified. It is also urged in support of this plea that the fact that the rent notes were executed in favour of the appellant after the commencement of the present proceedings cannot obviously introduce considerations of lis pendens, and what the Court has to consider is just the bare question as to whether any of the claimants is in possession of the property or not, and the answer to this question should be in favour of the appellant because he produced before the Court rent notes executed by the tenants who were cultivating the lands in question.10. This argument is not well founded. What the Court has to consider in dealing with the question of possession is: was any of the claimants in possession of the properties succession to which is in dispute at the date of the commencement of the proceedings under this Regulation? The proceedings may commence either on an application made by one of the claimants, or may be started suo motu by the Judge; in either case, the relevant point of time by reference to which the requirement as to possession has to be judged is the date of the commencement of the proceedings. It may be that one of the claimants may have obtained possession soon after the death of the last holder, and before the proceedings commenced under the Regulation, he would be able to show that he was in possession; but if no one was in possession at the date when the proceedings commenced, the requirements of the relevant clause of R. 9 is satisfied, because possession obtained after the commencement of the proceedings would nor make any difference. If the appellants construction is accepted, it would lead to anomalous results. Take a case where none of the claimants is in possession at the date when the District Judge makes his order, and that when the matter is taken to the High Court under S. 115, some one or the other of the claimants manages to secure possession. on the appellants construction, the High Court would have to set aside the order appointing the administrator, because at the date when the High Court is passing the order one of the claimants has secured possession. Besides, the basic idea underlying the provisions of R. 9 is to provide for a smooth, peaceful and legal devolution of the estate on the rightful owner; and so, in cases where there is a dispute as to title amongst different persons and none of these persons has been able to secure possession soon after the succession opened, R. 9 steps in and provides for the appointment of an administrator. The appointment of the administrator does not prejudice the claim of any person who has set up a title to succession. The only result of the appointment of the administrator is that the property is taken under the charge of an administrator and is managed by him pending the final decision of the question of succession to the estate by a Court of competent jurisdiction. Therefore, we are satisfied that the Courts below were right in holding that since the appellant was not in possession at the date when the present proceedings commenced and obviously there is a dispute as to the title between two or more claimants, the material requirement of R. 9 is satisfied and that justifies the appointment of an administrator.11. We have already seen that R. 2 contemplates that an executor, heir or administrator may apply for formal recognition as a measure of safety and subsequent Rules provide for the manner in which such an application should be dealt with. If the application succeeds, a certificate is issued. If the application fails, the certificate is refused. But R. 8 specifically provides that the refusal of a certificate by the Judge shall not finally determine the rights of the person whose application is refused, but it shall be competent to him to institute a suit for the purpose of establishing his claim. Rule 8 and R. 9 both make it clear that the decision recorded by the Court under the provisions of the relevant Rules is a summary decision and it does not purport to bar the jurisdiction of the civil Courts by which questions of title would be finally determined. That being so, it seems clear that under the relevant clause of R. 9, the date of possession must be the date before the proceedings commenced.
### Response:
0
### Explanation:
The proceedings may commence either on an application made by one of the claimants, or may be started suo motu by the Judge; in either case, the relevant point of time by reference to which the requirement as to possession has to be judged is the date of the commencement of the proceedings. It may be that one of the claimants may have obtained possession soon after the death of the last holder, and before the proceedings commenced under the Regulation, he would be able to show that he was in possession; but if no one was in possession at the date when the proceedings commenced, the requirements of the relevant clause of R. 9 is satisfied, because possession obtained after the commencement of the proceedings would nor make any difference. If the appellants construction is accepted, it would lead to anomalous results. Take a case where none of the claimants is in possession at the date when the District Judge makes his order, and that when the matter is taken to the High Court under S. 115, some one or the other of the claimants manages to secure possession. on the appellants construction, the High Court would have to set aside the order appointing the administrator, because at the date when the High Court is passing the order one of the claimants has secured possession. Besides, the basic idea underlying the provisions of R. 9 is to provide for a smooth, peaceful and legal devolution of the estate on the rightful owner; and so, in cases where there is a dispute as to title amongst different persons and none of these persons has been able to secure possession soon after the succession opened, R. 9 steps in and provides for the appointment of an administrator. The appointment of the administrator does not prejudice the claim of any person who has set up a title to succession. The only result of the appointment of the administrator is that the property is taken under the charge of an administrator and is managed by him pending the final decision of the question of succession to the estate by a Court of competent jurisdiction. Therefore, we are satisfied that the Courts below were right in holding that since the appellant was not in possession at the date when the present proceedings commenced and obviously there is a dispute as to the title between two or more claimants, the material requirement of R. 9 is satisfied and that justifies the appointment of an administrator.11. We have already seen that R. 2 contemplates that an executor, heir or administrator may apply for formal recognition as a measure of safety and subsequent Rules provide for the manner in which such an application should be dealt with. If the application succeeds, a certificate is issued. If the application fails, the certificate is refused. But R. 8 specifically provides that the refusal of a certificate by the Judge shall not finally determine the rights of the person whose application is refused, but it shall be competent to him to institute a suit for the purpose of establishing his claim. Rule 8 and R. 9 both make it clear that the decision recorded by the Court under the provisions of the relevant Rules is a summary decision and it does not purport to bar the jurisdiction of the civil Courts by which questions of title would be finally determined. That being so, it seems clear that under the relevant clause of R. 9, the date of possession must be the date before the proceedings commenced.
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New India Assurance Co. Ltd Vs. Suresh Chandra Aggarwal | It is not the case of the claimant that the driver had applied for renewal of the licence within 30 days of the date of its expiry. On the contrary, it is the specific case of the appellant that the driving licence was renewed only with effect from 23rd March, 1992. From a plain reading of Section 15 of the Act, it is clear that if an application for renewal of licence is made within 30 days of the date of its expiry, the licence continues to be effective and valid without a break as the renewal dates back to the date of its expiry. Whereas, when an application for renewal is filed after more than 30 days after the date of its expiry, proviso to sub-section (1) of Section 15 of the Act, gets attracted and the licence is renewed only with effect from the date of its renewal, meaning thereby that in the interregnum between the date of expiry of the licence and the date of its renewal, there is no effective licence in existence. The provision is clear and admits of no ambiguity. However, the stand of the claimant before the District and State Fora as also before us was that since the deceased driver was holding a valid licence and had not been disqualified from holding an effective licence, the stipulation in the afore-extracted condition was not infringed. In our view, the argument is stated to be rejected. Admittedly, having failed to apply for renewal of the driving licence within 30 days from the date of its expiry in terms of Section 15 of the Act, the licence could not be renewed with effect from the date of its expiry and therefore, between the period from 26th October, 1991 to 22nd March, 1992, the deceased driver had no valid and effective driving licence as contemplated under Section 3 of the Act. We are convinced that during this period, he did not hold at all an effective driving licence, as required in the terms and conditions governing the policy on the date of accident i.e. 29th February, 1992.17. As a matter of fact, in view of the clear mandate of Section 3 of the Act, the deceased driver was not even permitted to drive the insured vehicle in a public place. Furthermore, the claimant not only committed breach of the terms of the policy, he also violated the provisions of Section 5 of the Act by entrusting the vehicle to a person who did not hold a valid licence on the date of the accident. Although it was not pleaded by learned counsel for the appellant, but we fail to understand as to how the licence was and could be renewed w.e.f. 23rd March, 1992 after the death of the licence-holder on 29th February, 1992. In our opinion, therefore, the appellant was not liable to indemnify the claimant for the loss suffered by him in the accident of the insured vehicle.18. We are fortified in our view by the decision of this Court in the case of Jarnail Singh (supra). In that case also, the driving licence of the driver, who drove the vehicle which got involved in the accident, had expired on 16th May, 1994. The accident took place more than five months thereafter i.e. on 20th October, 1994 and the driving licence was renewed only with effect from 28th October, 1996. On these facts, it was held that proviso to sub-section (1) of Section 15 applied; the driver had no licence to drive the vehicle on the date of accident; the condition in the policy identical to the one in the present case was violated and therefore, the Insurance Company was not liable to pay any amount to the insured.19. We are also of the opinion that Section 19 of the Act does not come to the aid of the claimant. Having found that between the period 26th October, 1991 and 22nd March, 1992, the driver of the insured vehicle had no valid licence, the latter part of the afore-extracted special condition did not come into play.20. We also find force in the contention of learned counsel for the appellant that the ratio of the decision of this Court in Ashok Gangadhars case (supra), relied upon by the National Commission, does not apply to the case at hand. In that case, the appellant was the owner of a Light Motor Vehicle, which was insured with the Insurance Company. The vehicle met with an accident and a claim was lodged by the complainant before the Consumer Commission. It was contended by the Insurance Company that the truck was a "goods carriage" or a "transport vehicle" and since the driver of the truck was holding a driving licence to drive only "Light Motor Vehicle", he was not authorized to drive transport vehicle without an endorsement on his driving licence authorizing him to drive such transport vehicle. The claim of the insured having been rejected by the Insurance Company which was upheld by the National Commission, the complainant approached this Court. Allowing the appeal, it was held that the driver of the vehicle was holding a valid driving licence for driving a Light Motor Vehicle and there was no material on record to show that he was disqualified from holding an effective and valid driving licence at the time of accident. On those facts, the Court held that the policy, which was not even placed on record, did not insist on the driver to have a licence to drive a transport vehicle by obtaining a specific endorsement and therefore, the Insurance Company was not justified in rejecting the claim by the insured. It was observed that the Insurance Company had neither pleaded nor proved that the vehicle was a transport vehicle. The permit issued by the transport authority had not been placed on record. In the present case, it stands proved that the driver did not have an effective and valid driving licence on the date of accident. | 1[ds]16. In the instant case, as noted above, as per the certificate issued by the licensing authority, the driving licence of the deceased driver had expired on 25th October, 1991 i.e. four months prior to the date of accident on 29th February, 1992 and it was renewed with effect from 23rd March, 1992. It is not the case of the claimant that the driver had applied for renewal of the licence within 30 days of the date of its expiry. On the contrary, it is the specific case of the appellant that the driving licence was renewed only with effect from 23rd March, 1992. From a plain reading of Section 15 of the Act, it is clear that if an application for renewal of licence is made within 30 days of the date of its expiry, the licence continues to be effective and valid without a break as the renewal dates back to the date of its expiry. Whereas, when an application for renewal is filed after more than 30 days after the date of its expiry, proviso to(1) of Section 15 of the Act, gets attracted and the licence is renewed only with effect from the date of its renewal, meaning thereby that in the interregnum between the date of expiry of the licence and the date of its renewal, there is no effective licence in existence. The provision is clear and admits of no ambiguity. However, the stand of the claimant before the District and State Fora as also before us was that since the deceased driver was holding a valid licence and had not been disqualified from holding an effective licence, the stipulation in thecondition was not infringed. In our view, the argument is stated to be rejected. Admittedly, having failed to apply for renewal of the driving licence within 30 days from the date of its expiry in terms of Section 15 of the Act, the licence could not be renewed with effect from the date of its expiry and therefore, between the period from 26th October, 1991 to 22nd March, 1992, the deceased driver had no valid and effective driving licence as contemplated under Section 3 of the Act. We are convinced that during this period, he did not hold at all an effective driving licence, as required in the terms and conditions governing the policy on the date of accident i.e. 29th February, 1992.17. As a matter of fact, in view of the clear mandate of Section 3 of the Act, the deceased driver was not even permitted to drive the insured vehicle in a public place. Furthermore, the claimant not only committed breach of the terms of the policy, he also violated the provisions of Section 5 of the Act by entrusting the vehicle to a person who did not hold a valid licence on the date of the accident. Although it was not pleaded by learned counsel for the appellant, but we fail to understand as to how the licence was and could be renewed w.e.f. 23rd March, 1992 after the death of theon 29th February, 1992. In our opinion, therefore, the appellant was not liable to indemnify the claimant for the loss suffered by him in the accident of the insured vehicle.18. We are fortified in our view by the decision of this Court in the case of Jarnail Singh (supra). In that case also, the driving licence of the driver, who drove the vehicle which got involved in the accident, had expired on 16th May, 1994. The accident took place more than five months thereafter i.e. on 20th October, 1994 and the driving licence was renewed only with effect from 28th October, 1996. On these facts, it was held that proviso to(1) of Section 15 applied; the driver had no licence to drive the vehicle on the date of accident; the condition in the policy identical to the one in the present case was violated and therefore, the Insurance Company was not liable to pay any amount to the insured.19. We are also of the opinion that Section 19 of the Act does not come to the aid of the claimant. Having found that between the period 26th October, 1991 and 22nd March, 1992, the driver of the insured vehicle had no valid licence, the latter part of thespecial condition did not come into play.20. We also find force in the contention of learned counsel for the appellant that the ratio of the decision of this Court in Ashok Gangadhars case (supra), relied upon by the National Commission, does not apply to the case at hand. In that case, the appellant was the owner of a Light Motor Vehicle, which was insured with the Insurance Company. The vehicle met with an accident and a claim was lodged by the complainant before the Consumer Commission. It was contended by the Insurance Company that the truck was a "goods carriage" or a "transport vehicle" and since the driver of the truck was holding a driving licence to drive only "Light Motor Vehicle", he was not authorized to drive transport vehicle without an endorsement on his driving licence authorizing him to drive such transport vehicle. The claim of the insured having been rejected by the Insurance Company which was upheld by the National Commission, the complainant approached this Court. Allowing the appeal, it was held that the driver of the vehicle was holding a valid driving licence for driving a Light Motor Vehicle and there was no material on record to show that he was disqualified from holding an effective and valid driving licence at the time of accident. On those facts, the Court held that the policy, which was not even placed on record, did not insist on the driver to have a licence to drive a transport vehicle by obtaining a specific endorsement and therefore, the Insurance Company was not justified in rejecting the claim by the insured. It was observed that the Insurance Company had neither pleaded nor proved that the vehicle was a transport vehicle. The permit issued by the transport authority had not been placed on record. In the present case, it stands proved that the driver did not have an effective and valid driving licence on the date of accident. | 1 | 2,982 | 1,160 | ### 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:
It is not the case of the claimant that the driver had applied for renewal of the licence within 30 days of the date of its expiry. On the contrary, it is the specific case of the appellant that the driving licence was renewed only with effect from 23rd March, 1992. From a plain reading of Section 15 of the Act, it is clear that if an application for renewal of licence is made within 30 days of the date of its expiry, the licence continues to be effective and valid without a break as the renewal dates back to the date of its expiry. Whereas, when an application for renewal is filed after more than 30 days after the date of its expiry, proviso to sub-section (1) of Section 15 of the Act, gets attracted and the licence is renewed only with effect from the date of its renewal, meaning thereby that in the interregnum between the date of expiry of the licence and the date of its renewal, there is no effective licence in existence. The provision is clear and admits of no ambiguity. However, the stand of the claimant before the District and State Fora as also before us was that since the deceased driver was holding a valid licence and had not been disqualified from holding an effective licence, the stipulation in the afore-extracted condition was not infringed. In our view, the argument is stated to be rejected. Admittedly, having failed to apply for renewal of the driving licence within 30 days from the date of its expiry in terms of Section 15 of the Act, the licence could not be renewed with effect from the date of its expiry and therefore, between the period from 26th October, 1991 to 22nd March, 1992, the deceased driver had no valid and effective driving licence as contemplated under Section 3 of the Act. We are convinced that during this period, he did not hold at all an effective driving licence, as required in the terms and conditions governing the policy on the date of accident i.e. 29th February, 1992.17. As a matter of fact, in view of the clear mandate of Section 3 of the Act, the deceased driver was not even permitted to drive the insured vehicle in a public place. Furthermore, the claimant not only committed breach of the terms of the policy, he also violated the provisions of Section 5 of the Act by entrusting the vehicle to a person who did not hold a valid licence on the date of the accident. Although it was not pleaded by learned counsel for the appellant, but we fail to understand as to how the licence was and could be renewed w.e.f. 23rd March, 1992 after the death of the licence-holder on 29th February, 1992. In our opinion, therefore, the appellant was not liable to indemnify the claimant for the loss suffered by him in the accident of the insured vehicle.18. We are fortified in our view by the decision of this Court in the case of Jarnail Singh (supra). In that case also, the driving licence of the driver, who drove the vehicle which got involved in the accident, had expired on 16th May, 1994. The accident took place more than five months thereafter i.e. on 20th October, 1994 and the driving licence was renewed only with effect from 28th October, 1996. On these facts, it was held that proviso to sub-section (1) of Section 15 applied; the driver had no licence to drive the vehicle on the date of accident; the condition in the policy identical to the one in the present case was violated and therefore, the Insurance Company was not liable to pay any amount to the insured.19. We are also of the opinion that Section 19 of the Act does not come to the aid of the claimant. Having found that between the period 26th October, 1991 and 22nd March, 1992, the driver of the insured vehicle had no valid licence, the latter part of the afore-extracted special condition did not come into play.20. We also find force in the contention of learned counsel for the appellant that the ratio of the decision of this Court in Ashok Gangadhars case (supra), relied upon by the National Commission, does not apply to the case at hand. In that case, the appellant was the owner of a Light Motor Vehicle, which was insured with the Insurance Company. The vehicle met with an accident and a claim was lodged by the complainant before the Consumer Commission. It was contended by the Insurance Company that the truck was a "goods carriage" or a "transport vehicle" and since the driver of the truck was holding a driving licence to drive only "Light Motor Vehicle", he was not authorized to drive transport vehicle without an endorsement on his driving licence authorizing him to drive such transport vehicle. The claim of the insured having been rejected by the Insurance Company which was upheld by the National Commission, the complainant approached this Court. Allowing the appeal, it was held that the driver of the vehicle was holding a valid driving licence for driving a Light Motor Vehicle and there was no material on record to show that he was disqualified from holding an effective and valid driving licence at the time of accident. On those facts, the Court held that the policy, which was not even placed on record, did not insist on the driver to have a licence to drive a transport vehicle by obtaining a specific endorsement and therefore, the Insurance Company was not justified in rejecting the claim by the insured. It was observed that the Insurance Company had neither pleaded nor proved that the vehicle was a transport vehicle. The permit issued by the transport authority had not been placed on record. In the present case, it stands proved that the driver did not have an effective and valid driving licence on the date of accident.
### Response:
1
### Explanation:
and it was renewed with effect from 23rd March, 1992. It is not the case of the claimant that the driver had applied for renewal of the licence within 30 days of the date of its expiry. On the contrary, it is the specific case of the appellant that the driving licence was renewed only with effect from 23rd March, 1992. From a plain reading of Section 15 of the Act, it is clear that if an application for renewal of licence is made within 30 days of the date of its expiry, the licence continues to be effective and valid without a break as the renewal dates back to the date of its expiry. Whereas, when an application for renewal is filed after more than 30 days after the date of its expiry, proviso to(1) of Section 15 of the Act, gets attracted and the licence is renewed only with effect from the date of its renewal, meaning thereby that in the interregnum between the date of expiry of the licence and the date of its renewal, there is no effective licence in existence. The provision is clear and admits of no ambiguity. However, the stand of the claimant before the District and State Fora as also before us was that since the deceased driver was holding a valid licence and had not been disqualified from holding an effective licence, the stipulation in thecondition was not infringed. In our view, the argument is stated to be rejected. Admittedly, having failed to apply for renewal of the driving licence within 30 days from the date of its expiry in terms of Section 15 of the Act, the licence could not be renewed with effect from the date of its expiry and therefore, between the period from 26th October, 1991 to 22nd March, 1992, the deceased driver had no valid and effective driving licence as contemplated under Section 3 of the Act. We are convinced that during this period, he did not hold at all an effective driving licence, as required in the terms and conditions governing the policy on the date of accident i.e. 29th February, 1992.17. As a matter of fact, in view of the clear mandate of Section 3 of the Act, the deceased driver was not even permitted to drive the insured vehicle in a public place. Furthermore, the claimant not only committed breach of the terms of the policy, he also violated the provisions of Section 5 of the Act by entrusting the vehicle to a person who did not hold a valid licence on the date of the accident. Although it was not pleaded by learned counsel for the appellant, but we fail to understand as to how the licence was and could be renewed w.e.f. 23rd March, 1992 after the death of theon 29th February, 1992. In our opinion, therefore, the appellant was not liable to indemnify the claimant for the loss suffered by him in the accident of the insured vehicle.18. We are fortified in our view by the decision of this Court in the case of Jarnail Singh (supra). In that case also, the driving licence of the driver, who drove the vehicle which got involved in the accident, had expired on 16th May, 1994. The accident took place more than five months thereafter i.e. on 20th October, 1994 and the driving licence was renewed only with effect from 28th October, 1996. On these facts, it was held that proviso to(1) of Section 15 applied; the driver had no licence to drive the vehicle on the date of accident; the condition in the policy identical to the one in the present case was violated and therefore, the Insurance Company was not liable to pay any amount to the insured.19. We are also of the opinion that Section 19 of the Act does not come to the aid of the claimant. Having found that between the period 26th October, 1991 and 22nd March, 1992, the driver of the insured vehicle had no valid licence, the latter part of thespecial condition did not come into play.20. We also find force in the contention of learned counsel for the appellant that the ratio of the decision of this Court in Ashok Gangadhars case (supra), relied upon by the National Commission, does not apply to the case at hand. In that case, the appellant was the owner of a Light Motor Vehicle, which was insured with the Insurance Company. The vehicle met with an accident and a claim was lodged by the complainant before the Consumer Commission. It was contended by the Insurance Company that the truck was a "goods carriage" or a "transport vehicle" and since the driver of the truck was holding a driving licence to drive only "Light Motor Vehicle", he was not authorized to drive transport vehicle without an endorsement on his driving licence authorizing him to drive such transport vehicle. The claim of the insured having been rejected by the Insurance Company which was upheld by the National Commission, the complainant approached this Court. Allowing the appeal, it was held that the driver of the vehicle was holding a valid driving licence for driving a Light Motor Vehicle and there was no material on record to show that he was disqualified from holding an effective and valid driving licence at the time of accident. On those facts, the Court held that the policy, which was not even placed on record, did not insist on the driver to have a licence to drive a transport vehicle by obtaining a specific endorsement and therefore, the Insurance Company was not justified in rejecting the claim by the insured. It was observed that the Insurance Company had neither pleaded nor proved that the vehicle was a transport vehicle. The permit issued by the transport authority had not been placed on record. In the present case, it stands proved that the driver did not have an effective and valid driving licence on the date of accident.
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Vikesh Kumar Gupta & Anr Vs. The State of Rajasthan & Ors | High Court. Not being satisfied with the revised Select List which included only a few candidates, certain unsuccessful candidates filed Appeals before the Division Bench which were disposed of on 12.03.2019. When the Division Bench was informed that the selections have been finalized on the basis of the 2 nd Answer Key, it refused to interfere with the Select List prepared on 17.09.2018. However, the Division Bench examined the correctness of the questions and Answer Keys pointed by the Appellants therein and arrived at a conclusion that the answer key to 5 questions was erroneous. On the basis of the said findings, the Division Bench directed the RPSC to prepare revised Select List and apply it only to the Appellants before it. 11. Though re-evaluation can be directed if rules permit, this Court has deprecated the practice of re- evaluation and scrutiny of the questions by the courts which lack expertise in academic matters. It is not permissible for the High Court to examine the question papers and answer sheets itself, particularly when the Commission has assessed the inter se merit of the candidates (Himachal Pradesh Public Service Commission v. Mukesh Thakur & Anr.) (2010) 6 SCC 759 Courts have to show deference and consideration to the recommendation of the Expert Committee who have the expertise to evaluate and make recommendations [See- Basavaiah (Dr.) v. Dr. H.L. Ramesh & Ors.) (2010) 8 SCC 372 . Examining the scope of judicial review with regards to re- evaluation of answer sheets, this Court in Ran Vijay Singh & Ors. v. State of Uttar Pradesh & Ors. (2018) 2 SCC 357 held that court should not re-evaluate or scrutinize the answer sheets of a candidate as it has no expertise in the matters and the academic matters are best left to academics. This Court in the said judgment further held as follows: 31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse — exclude the suspect or offending question. 32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination — whether they have passed or not; whether their result will be approved or disapproved by the court; whether they will get admission in a college or university or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybodys advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers. 12. In view of the above law laid down by this Court, it was not open to the Division Bench to have examined the correctness of the questions and the answer key to come to a conclusion different from that of the Expert Committee in its judgment dated 12.03.2019. Reliance was placed by the Appellants on Richal & Ors. v. Rajasthan Public Service Commission & Ors. (2018) 8 SCC 81 In the said judgment, this Court interfered with the selection process only after obtaining the opinion of an expert committee but did not enter into the correctness of the questions and answers by itself. Therefore, the said judgment is not relevant for adjudication of the dispute in this case. 13. A perusal of the above judgments would make it clear that courts should be very slow in interfering with expert opinion in academic matters. In any event, assessment of the questions by the courts itself to arrive at correct answers is not permissible. The delay in finalization of appointments to public posts is mainly caused due to pendency of cases challenging selections pending in courts for a long period of time. The cascading effect of delay in appointments is the continuance of those appointed on temporary basis and their claims for regularization. The other consequence resulting from delayed appointments to public posts is the serious damage caused to administration due to lack of sufficient personnel. 14. The submission made by the Respondents that the Appellants are not entitled to any relief as there is inordinate delay in approaching the Court is not necessary to be adjudicated upon in view of the findings in the preceding paragraphs. It is clear from the statement filed by the RPSC that there are vacancies existing which can be utilized for appointing the Appellants. | 1[ds]The 2nd Answer Key was released by the RPSC on the basis of the recommendations made by the Expert Committee constituted pursuant to the directions issued by the High Court. Not being satisfied with the revised Select List which included only a few candidates, certain unsuccessful candidates filed Appeals before the Division Bench which were disposed of on 12.03.2019. When the Division Bench was informed that the selections have been finalized on the basis of the 2 nd Answer Key, it refused to interfere with the Select List prepared on 17.09.2018. However, the Division Bench examined the correctness of the questions and Answer Keys pointed by the Appellants therein and arrived at a conclusion that the answer key to 5 questions was erroneous. On the basis of the said findings, the Division Bench directed the RPSC to prepare revised Select List and apply it only to the Appellants before it.11. Though re-evaluation can be directed if rules permit, this Court has deprecated the practice of re- evaluation and scrutiny of the questions by the courts which lack expertise in academic matters. It is not permissible for the High Court to examine the question papers and answer sheets itself, particularly when the Commission has assessed the inter se merit of the candidates (Himachal Pradesh Public Service Commission v. Mukesh Thakur & Anr.) (2010) 6 SCC 759 Courts have to show deference and consideration to the recommendation of the Expert Committee who have the expertise to evaluate and make recommendations [See- Basavaiah (Dr.) v. Dr. H.L. Ramesh & Ors.) (2010) 8 SCC 372 . Examining the scope of judicial review with regards to re- evaluation of answer sheets, this Court in Ran Vijay Singh & Ors. v. State of Uttar Pradesh & Ors. (2018) 2 SCC 357 held that court should not re-evaluate or scrutinize the answer sheets of a candidate as it has no expertise in the matters and the academic matters are best left to academics. This Court in the said judgment further held as follows:31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers.The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse — exclude the suspect or offending question.32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination — whether they have passed or not; whether their result will be approved or disapproved by the court; whether they will get admission in a college or university or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybodys advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers.12. In view of the above law laid down by this Court, it was not open to the Division Bench to have examined the correctness of the questions and the answer key to come to a conclusion different from that of the Expert Committee in its judgment dated 12.03.2019. Reliance was placed by the Appellants on Richal & Ors. v. Rajasthan Public Service Commission & Ors. (2018) 8 SCC 81 In the said judgment, this Court interfered with the selection process only after obtaining the opinion of an expert committee but did not enter into the correctness of the questions and answers by itself. Therefore, the said judgment is not relevant for adjudication of the dispute in this case.13. A perusal of the above judgments would make it clear that courts should be very slow in interfering with expert opinion in academic matters. In any event, assessment of the questions by the courts itself to arrive at correct answers is not permissible. The delay in finalization of appointments to public posts is mainly caused due to pendency of cases challenging selections pending in courts for a long period of time. The cascading effect of delay in appointments is the continuance of those appointed on temporary basis and their claims for regularization. The other consequence resulting from delayed appointments to public posts is the serious damage caused to administration due to lack of sufficient personnel.14. The submission made by the Respondents that the Appellants are not entitled to any relief as there is inordinate delay in approaching the Court is not necessary to be adjudicated upon in view of the findings in the preceding paragraphs. It is clear from the statement filed by the RPSC that there are vacancies existing which can be utilized for appointing the Appellants. | 1 | 2,920 | 1,099 | ### 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:
High Court. Not being satisfied with the revised Select List which included only a few candidates, certain unsuccessful candidates filed Appeals before the Division Bench which were disposed of on 12.03.2019. When the Division Bench was informed that the selections have been finalized on the basis of the 2 nd Answer Key, it refused to interfere with the Select List prepared on 17.09.2018. However, the Division Bench examined the correctness of the questions and Answer Keys pointed by the Appellants therein and arrived at a conclusion that the answer key to 5 questions was erroneous. On the basis of the said findings, the Division Bench directed the RPSC to prepare revised Select List and apply it only to the Appellants before it. 11. Though re-evaluation can be directed if rules permit, this Court has deprecated the practice of re- evaluation and scrutiny of the questions by the courts which lack expertise in academic matters. It is not permissible for the High Court to examine the question papers and answer sheets itself, particularly when the Commission has assessed the inter se merit of the candidates (Himachal Pradesh Public Service Commission v. Mukesh Thakur & Anr.) (2010) 6 SCC 759 Courts have to show deference and consideration to the recommendation of the Expert Committee who have the expertise to evaluate and make recommendations [See- Basavaiah (Dr.) v. Dr. H.L. Ramesh & Ors.) (2010) 8 SCC 372 . Examining the scope of judicial review with regards to re- evaluation of answer sheets, this Court in Ran Vijay Singh & Ors. v. State of Uttar Pradesh & Ors. (2018) 2 SCC 357 held that court should not re-evaluate or scrutinize the answer sheets of a candidate as it has no expertise in the matters and the academic matters are best left to academics. This Court in the said judgment further held as follows: 31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse — exclude the suspect or offending question. 32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination — whether they have passed or not; whether their result will be approved or disapproved by the court; whether they will get admission in a college or university or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybodys advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers. 12. In view of the above law laid down by this Court, it was not open to the Division Bench to have examined the correctness of the questions and the answer key to come to a conclusion different from that of the Expert Committee in its judgment dated 12.03.2019. Reliance was placed by the Appellants on Richal & Ors. v. Rajasthan Public Service Commission & Ors. (2018) 8 SCC 81 In the said judgment, this Court interfered with the selection process only after obtaining the opinion of an expert committee but did not enter into the correctness of the questions and answers by itself. Therefore, the said judgment is not relevant for adjudication of the dispute in this case. 13. A perusal of the above judgments would make it clear that courts should be very slow in interfering with expert opinion in academic matters. In any event, assessment of the questions by the courts itself to arrive at correct answers is not permissible. The delay in finalization of appointments to public posts is mainly caused due to pendency of cases challenging selections pending in courts for a long period of time. The cascading effect of delay in appointments is the continuance of those appointed on temporary basis and their claims for regularization. The other consequence resulting from delayed appointments to public posts is the serious damage caused to administration due to lack of sufficient personnel. 14. The submission made by the Respondents that the Appellants are not entitled to any relief as there is inordinate delay in approaching the Court is not necessary to be adjudicated upon in view of the findings in the preceding paragraphs. It is clear from the statement filed by the RPSC that there are vacancies existing which can be utilized for appointing the Appellants.
### Response:
1
### Explanation:
the revised Select List which included only a few candidates, certain unsuccessful candidates filed Appeals before the Division Bench which were disposed of on 12.03.2019. When the Division Bench was informed that the selections have been finalized on the basis of the 2 nd Answer Key, it refused to interfere with the Select List prepared on 17.09.2018. However, the Division Bench examined the correctness of the questions and Answer Keys pointed by the Appellants therein and arrived at a conclusion that the answer key to 5 questions was erroneous. On the basis of the said findings, the Division Bench directed the RPSC to prepare revised Select List and apply it only to the Appellants before it.11. Though re-evaluation can be directed if rules permit, this Court has deprecated the practice of re- evaluation and scrutiny of the questions by the courts which lack expertise in academic matters. It is not permissible for the High Court to examine the question papers and answer sheets itself, particularly when the Commission has assessed the inter se merit of the candidates (Himachal Pradesh Public Service Commission v. Mukesh Thakur & Anr.) (2010) 6 SCC 759 Courts have to show deference and consideration to the recommendation of the Expert Committee who have the expertise to evaluate and make recommendations [See- Basavaiah (Dr.) v. Dr. H.L. Ramesh & Ors.) (2010) 8 SCC 372 . Examining the scope of judicial review with regards to re- evaluation of answer sheets, this Court in Ran Vijay Singh & Ors. v. State of Uttar Pradesh & Ors. (2018) 2 SCC 357 held that court should not re-evaluate or scrutinize the answer sheets of a candidate as it has no expertise in the matters and the academic matters are best left to academics. This Court in the said judgment further held as follows:31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers.The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse — exclude the suspect or offending question.32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination — whether they have passed or not; whether their result will be approved or disapproved by the court; whether they will get admission in a college or university or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybodys advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers.12. In view of the above law laid down by this Court, it was not open to the Division Bench to have examined the correctness of the questions and the answer key to come to a conclusion different from that of the Expert Committee in its judgment dated 12.03.2019. Reliance was placed by the Appellants on Richal & Ors. v. Rajasthan Public Service Commission & Ors. (2018) 8 SCC 81 In the said judgment, this Court interfered with the selection process only after obtaining the opinion of an expert committee but did not enter into the correctness of the questions and answers by itself. Therefore, the said judgment is not relevant for adjudication of the dispute in this case.13. A perusal of the above judgments would make it clear that courts should be very slow in interfering with expert opinion in academic matters. In any event, assessment of the questions by the courts itself to arrive at correct answers is not permissible. The delay in finalization of appointments to public posts is mainly caused due to pendency of cases challenging selections pending in courts for a long period of time. The cascading effect of delay in appointments is the continuance of those appointed on temporary basis and their claims for regularization. The other consequence resulting from delayed appointments to public posts is the serious damage caused to administration due to lack of sufficient personnel.14. The submission made by the Respondents that the Appellants are not entitled to any relief as there is inordinate delay in approaching the Court is not necessary to be adjudicated upon in view of the findings in the preceding paragraphs. It is clear from the statement filed by the RPSC that there are vacancies existing which can be utilized for appointing the Appellants.
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Ramji Veerji Patel & Others Vs. Revenue Divisional Officer & Others | Government and a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State, being a co-operative society in which not less than fifty-one per centum of the paid-up share capital is held by the Central Government, or by any State Government or Governments or partly by the Central Government and partly by one or more State Governments;" 27. That Corporation and the TNSTC fall within the definition of Section 3(cc) is not in dispute. Both may not have been divested of their character as a government company but sub-clause (i) of Section 3(e) excludes a government company from the definition of company. Part VII (Sections 38 to 44B) of the Act provides for acquisition of land for companies. In view of the definition of the `company in Section 3(e) which excludes government company, the Corporation or for that matter its successor TNSTC does not fall within the definition of the `company and, therefore, is not covered by Part VII of the Act at all.28. In Raja Ram4, the definition of `company in Section 3 (e) of the Act prior to its substitution fell for consideration. The definition of `company under consideration read as follows : "the expression "company" means a company registered under the Indian Companies Act, 1890 or under the (English) Companies Acts, 1862 to 1882 or incorporated by an Act of Parliament of the United Kingdom or by an Indian law, or by Royal Charter or Letters Patent and includes a society registered under the Societies Registration Act, 1860, an a registered society within the meaning of the Cooperative Societies Act, 1912, or any other law relating to cooperative societies for the time being in force in any State." 29. It was in the context of the above definition that this Court held in Raj Ram4 that the Food Corporation of India was not divested of its character as a company within the meaning of definition of clause (e) of Section 3 of the Act. As noticed above, the definition of `company has undergone complete change and the government company has been expressly excluded from the expression `company for the purposes of the Act. 30. For the above reasons, it has to be held that Part VII of the Act has no application to the present case as the acquisition of land is not for a `company as defined in Section 3(e). 31. Mr. Pallav Shishodia, learned senior counsel also urged that the appellants are migrants from Gujarat. They have settled in Chidambaram about thirty years back and the livelihood of the entire family of the appellants which comprised of about 40 members is dependant on the saw mill existing on the subject land. Having regard to these facts, he would submit that we invoke our jurisdiction under Article 142 of the Constitution and declare the acquisition of the appellants land bad in law to do complete justice. There is no doubt that by compulsory acquisition of their land, the appellants have been put to hardship. As a matter of fact, the RDO was alive to this problem. In his report dated September 14, 1989, the RDO did observe that the land owners have spent considerable money to raise the level of the land for constructing compound wall and running saw mill. He was, however, of the opinion that the appellants land was very suitable for the expansion of the depot and the suitable compensation can be paid to the land-owners to enable them to purchase an alternative land. The appellants, however, proceeded to challenge the acquisition. The litigation has traversed upto this Court and taken about 22 years. The public purpose has been stalled for more than two decades. Being the Highest Court, an extraordinary power has been conferred on this Court under Article 142 to pass any decree, order or direction in the matter to do complete justice between the parties. The power is plenary in nature and not inhibited by constraints or limitations. However, the power under Article 142 is not exercised routinely. It is rather exercised sparingly and very rarely. In the name of justice to the appellants, under Article 142, nothing should be done that would result in frustrating the acquisition of land which has been completed long back by following the procedure under the Act and after giving full opportunity to the appellants under Section 5-A. The possession of the land has also been taken as far back as on July 25, 2001. The appellants made an application (I.A. No. 2 of 2002) for direction to the respondents not to interfere with the functioning of the saw mill and permit them to use the saw mill but this Court in its order dated May 8, 2002 only said that the saw mill shall not be demolished till further orders. No permission was granted to the appellants to use the saw mill. In other words, for more than ten years the saw mill is closed after possession was taken over from the appellants. In the circumstances, this is not a case fit for exercise of power under Article 142 and declare the acquisition of the appellants land bad although the acquisition proceedings have been completed in accordance with law. 32. Lastly, the learned senior counsel invited our attention to the application (I.A. No. 4) wherein the appellants offered for amicable settlement by expressing their readiness and willingness to give an area of land admeasuring 13250 square feet out of the total land of 1.45 acres (i.e. 1 acre and 19445 sq. ft.) free of cost to the Corporation. The offer is not acceptable to Mr. B. Balaji. He submitted that such a small area is of no use for expansion of the existing depot. We do not find any unreasonableness in the submission of the counsel that an area of 13250 square feet would not meet the purpose for which the appellants land has been acquired. 33. In view of the above, | 0[ds]That Corporation and the TNSTC fall within the definition of Section 3(cc) is not in dispute. Both may not have been divested of their character as a government company but sub-clause (i) of Section 3(e) excludes a government company from the definition of company. Part VII (Sections 38 to 44B) of the Act provides for acquisition of land for companies. In view of the definition of the `company in Section 3(e) which excludes government company, the Corporation or for that matter its successor TNSTC does not fall within the definition of the `company and, therefore, is not covered by Part VII of the Act at all.28. In Raja Ram4, the definition of `company in Section 3 (e) of the Act prior to its substitution fell for consideration. The definition of `company under consideration read as followsexpression "company" means a company registered under the Indian Companies Act, 1890 or under the (English) Companies Acts, 1862 to 1882 or incorporated by an Act of Parliament of the United Kingdom or by an Indian law, or by Royal Charter or Letters Patent and includes a society registered under the Societies Registration Act, 1860, an a registered society within the meaning of the Cooperative Societies Act, 1912, or any other law relating to cooperative societies for the time being in force in any State.It was in the context of the above definition that this Court held in Raj Ram4 that the Food Corporation of India was not divested of its character as a company within the meaning of definition of clause (e) of Section 3 of the Act. As noticed above, the definition of `company has undergone complete change and the government company has been expressly excluded from the expression `company for the purposes of the Act. | 0 | 4,423 | 343 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
Government and a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State, being a co-operative society in which not less than fifty-one per centum of the paid-up share capital is held by the Central Government, or by any State Government or Governments or partly by the Central Government and partly by one or more State Governments;" 27. That Corporation and the TNSTC fall within the definition of Section 3(cc) is not in dispute. Both may not have been divested of their character as a government company but sub-clause (i) of Section 3(e) excludes a government company from the definition of company. Part VII (Sections 38 to 44B) of the Act provides for acquisition of land for companies. In view of the definition of the `company in Section 3(e) which excludes government company, the Corporation or for that matter its successor TNSTC does not fall within the definition of the `company and, therefore, is not covered by Part VII of the Act at all.28. In Raja Ram4, the definition of `company in Section 3 (e) of the Act prior to its substitution fell for consideration. The definition of `company under consideration read as follows : "the expression "company" means a company registered under the Indian Companies Act, 1890 or under the (English) Companies Acts, 1862 to 1882 or incorporated by an Act of Parliament of the United Kingdom or by an Indian law, or by Royal Charter or Letters Patent and includes a society registered under the Societies Registration Act, 1860, an a registered society within the meaning of the Cooperative Societies Act, 1912, or any other law relating to cooperative societies for the time being in force in any State." 29. It was in the context of the above definition that this Court held in Raj Ram4 that the Food Corporation of India was not divested of its character as a company within the meaning of definition of clause (e) of Section 3 of the Act. As noticed above, the definition of `company has undergone complete change and the government company has been expressly excluded from the expression `company for the purposes of the Act. 30. For the above reasons, it has to be held that Part VII of the Act has no application to the present case as the acquisition of land is not for a `company as defined in Section 3(e). 31. Mr. Pallav Shishodia, learned senior counsel also urged that the appellants are migrants from Gujarat. They have settled in Chidambaram about thirty years back and the livelihood of the entire family of the appellants which comprised of about 40 members is dependant on the saw mill existing on the subject land. Having regard to these facts, he would submit that we invoke our jurisdiction under Article 142 of the Constitution and declare the acquisition of the appellants land bad in law to do complete justice. There is no doubt that by compulsory acquisition of their land, the appellants have been put to hardship. As a matter of fact, the RDO was alive to this problem. In his report dated September 14, 1989, the RDO did observe that the land owners have spent considerable money to raise the level of the land for constructing compound wall and running saw mill. He was, however, of the opinion that the appellants land was very suitable for the expansion of the depot and the suitable compensation can be paid to the land-owners to enable them to purchase an alternative land. The appellants, however, proceeded to challenge the acquisition. The litigation has traversed upto this Court and taken about 22 years. The public purpose has been stalled for more than two decades. Being the Highest Court, an extraordinary power has been conferred on this Court under Article 142 to pass any decree, order or direction in the matter to do complete justice between the parties. The power is plenary in nature and not inhibited by constraints or limitations. However, the power under Article 142 is not exercised routinely. It is rather exercised sparingly and very rarely. In the name of justice to the appellants, under Article 142, nothing should be done that would result in frustrating the acquisition of land which has been completed long back by following the procedure under the Act and after giving full opportunity to the appellants under Section 5-A. The possession of the land has also been taken as far back as on July 25, 2001. The appellants made an application (I.A. No. 2 of 2002) for direction to the respondents not to interfere with the functioning of the saw mill and permit them to use the saw mill but this Court in its order dated May 8, 2002 only said that the saw mill shall not be demolished till further orders. No permission was granted to the appellants to use the saw mill. In other words, for more than ten years the saw mill is closed after possession was taken over from the appellants. In the circumstances, this is not a case fit for exercise of power under Article 142 and declare the acquisition of the appellants land bad although the acquisition proceedings have been completed in accordance with law. 32. Lastly, the learned senior counsel invited our attention to the application (I.A. No. 4) wherein the appellants offered for amicable settlement by expressing their readiness and willingness to give an area of land admeasuring 13250 square feet out of the total land of 1.45 acres (i.e. 1 acre and 19445 sq. ft.) free of cost to the Corporation. The offer is not acceptable to Mr. B. Balaji. He submitted that such a small area is of no use for expansion of the existing depot. We do not find any unreasonableness in the submission of the counsel that an area of 13250 square feet would not meet the purpose for which the appellants land has been acquired. 33. In view of the above,
### Response:
0
### Explanation:
That Corporation and the TNSTC fall within the definition of Section 3(cc) is not in dispute. Both may not have been divested of their character as a government company but sub-clause (i) of Section 3(e) excludes a government company from the definition of company. Part VII (Sections 38 to 44B) of the Act provides for acquisition of land for companies. In view of the definition of the `company in Section 3(e) which excludes government company, the Corporation or for that matter its successor TNSTC does not fall within the definition of the `company and, therefore, is not covered by Part VII of the Act at all.28. In Raja Ram4, the definition of `company in Section 3 (e) of the Act prior to its substitution fell for consideration. The definition of `company under consideration read as followsexpression "company" means a company registered under the Indian Companies Act, 1890 or under the (English) Companies Acts, 1862 to 1882 or incorporated by an Act of Parliament of the United Kingdom or by an Indian law, or by Royal Charter or Letters Patent and includes a society registered under the Societies Registration Act, 1860, an a registered society within the meaning of the Cooperative Societies Act, 1912, or any other law relating to cooperative societies for the time being in force in any State.It was in the context of the above definition that this Court held in Raj Ram4 that the Food Corporation of India was not divested of its character as a company within the meaning of definition of clause (e) of Section 3 of the Act. As noticed above, the definition of `company has undergone complete change and the government company has been expressly excluded from the expression `company for the purposes of the Act.
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Raja Soap Factory And Others Vs. S. P. Shantharaj And Others | of a principal civil court- called the District Court-and includes the local limits of the ordinary original civil jurisdiction of a High Court. If therefore a High Court is possessed of ordinary original civil jurisdiction, it would, when exercising that jurisdiction be included, for the purpose of Act 43 of 1958, in the expression "District Court".4. Exercise of jurisdiction by the High Court of Mysore is governed by Mysore Act 5 of 1962. The Act is purely a regulatory Act enacted for regulating the business and exercise of the powers of the High Court in relation to the administration of justice : it does not purport to confer upon the High Court any jurisdiction original or appellate. It is true that by s. 12 of the Mysore High Court Act 1 of 1884 enacted by the Maharaja of Mysore to amend the constitution of the High Court of Mysore, and to provide for the administration of justice by that Court, the Government of Mysore was authorised by notification to invest the High Court with ordinary original civil jurisdiction of a District Court in all suits of a civil nature exercisable within such local limits as the Government may from time to time declare and appoint in that behalf. But s. 12 of the Mysore Act 1 of 1884 has been repealed by s. 14 of Mysore Act 5 of 1962.5. The High Court of Mysore is by its constitution primarily a court exercising appellate jurisdiction : it is competent to exercise original jurisdiction only in those matters in respect of which by special Acts it has been specifically invested with jurisdiction. The High Court is competent to exercise original jurisdiction under s. 105 of the Trade and Merchandise Marks Act 43 of 1958 if it is invested with the ordinary original civil jurisdiction of a District Court, and not otherwise, and the High Court of Mysore not being invested by any statute of under its constitution with that jurisdiction was incompetent to entertain a passing off action.6. But it was urged that in a State the High Court is at the apex of the hierarchy of civil courts and has all the powers which the subordinate courts may exercise, and it is competent to entertain all actions as a court of original jurisdiction which may lie in any court in the State. For this exalted claim, there is no warrant in our jurisprudence. Jurisdiction of a Court means the extent of the authority of a Court to administer justice prescribed with reference to the subject-matter, pecuniary value and local limits. Barring cases in which jurisdiction is expressly conferred upon it by special statutes, e.g. the Companies Act; the Banking Companies Act, the High Court of Mysore exercises appellate jurisdiction alone. As a Court of Appeal it undoubtedly stands at the apex within the State, but on that account it does not stand invested with original jurisdiction in matters not expressly declared within its cognizance.7. Section 24 of the Code of Civil Procedure on which counsel for the plaintiffs relied lends no assistance to his argument. Among the powers conferred upon a High Court by s. 24 Code of Civil Procedure, there is enumerated the power to withdraw any suit, appeal or other proceeding in any Court subordinate to it, and to try or dispose of the same : [S. 24(1) (b) (i)]. But jurisdiction to try a suit, appeal or proceeding by a High Court under the power reserved by s. 24(1) (b) (i) arises only if the suit, appeal or proceeding is properly instituted in a court subordinate to the High Court, and the suit, appeal or proceeding is in exercise of the power of the High Court transferred to it. Exercise of this jurisdiction is conditioned by the lawful institution of the proceeding in a subordinate court of competent jurisdiction, and transfer thereof to the High Court. Power to try and dispose of a proceeding after transfer from a court lawfully seized of it does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court.8. Section 151 of the Code of Civil Procedure preserves the in- herent power of the Court as may be necessary for the ends of justice or to prevent abuse of the process of the Court. That power may be exercised where there is a proceeding lawfully before the High Court : it does not however authorise the High Court to invest itself with jurisdiction where it is not conferred by law.9. Reliance was sought to be placed upon the summary of a judgment dated June 6, 1962 in a case decided by Narayana Pai, J : Kaverappa v. Narayanaswamy, which is found printed under the heading "Short Notes of Recent Decision" in the Mysore Law Journal (1962) at p. 1. The learned Judge is reported to have observed that s. 24 of the Code of Civil Procedure "read along with s. 151 which preserves to the High Court all inherent powers to make such orders as may be necessary for ends of justice necessarily implies that whenever an extraordinary situation so requires, a High Court may confer original jurisdiction upon itself to do or protect ends of justice". It does not appear that the judgment is reported in any series of reports-authorised or unauthorised, and we have not been supplied with a copy of the original judgment. But if the learned Judge, as reported in the summary of the judgment, was of the opinion that the High Court is competent to assume to itself jurisdiction Which it does not otherwise possess, merely because an "extraordinary situation" has arisen, with respect to the learned Judge, we are unable to approve of that view. By "jurisdiction" is meant the extent of the power Which is conferred upon the Court by its constitution to try a proceeding; its exercise cannot be enlarged because what the learned Judge calls an extraordinary situation "requires" the Court to exercise it.10. | 1[ds]Section 24 of theCode of Civil Procedure on which counsel for the plaintiffs relied lends no assistance to his argument. Among the powers conferred upon a High Court by s. 24Code of Civil Procedure, there is enumerated the power to withdraw any suit, appeal or other proceeding in any Court subordinate to it, and to try or dispose of the same : [S. 24(1) (b) (i)]. But jurisdiction to try a suit, appeal or proceeding by a High Court under the power reserved by s. 24(1) (b) (i) arises only if the suit, appeal or proceeding is properly instituted in a court subordinate to the High Court, and the suit, appeal or proceeding is in exercise of the power of the High Court transferred to it. Exercise of this jurisdiction is conditioned by the lawful institution of the proceeding in a subordinate court of competent jurisdiction, and transfer thereof to the High Court. Power to try and dispose of a proceeding after transfer from a court lawfully seized of it does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High151 of theCode of Civil Procedure preserves the in- herent power of the Court as may be necessary for the ends of justice or to prevent abuse of the process of the Court. That power may be exercised where there is a proceeding lawfully before the High Court : it does not however authorise the High Court to invest itself with jurisdiction where it is not conferred bywas sought to be placed upon the summary of a judgment dated June 6, 1962 in a case decided by Narayana Pai, J : Kaverappa v. Narayanaswamy, which is found printed under the heading "Short Notes of Recent Decision" in the Mysore Law Journal (1962) at p. 1. The learned Judge is reported to have observed that s. 24 of theCode of Civil Procedure "read along with s. 151 which preserves to the High Court all inherent powers to make such orders as may be necessary for ends of justice necessarily implies that whenever an extraordinary situation so requires, a High Court may confer original jurisdiction upon itself to do or protect ends of justice". It does not appear that the judgment is reported in any series of reports-authorised or unauthorised, and we have not been supplied with a copy of the original judgment. But if the learned Judge, as reported in the summary of the judgment, was of the opinion that the High Court is competent to assume to itself jurisdiction Which it does not otherwise possess, merely because an "extraordinary situation" has arisen, with respect to the learned Judge, we are unable to approve of that view. By "jurisdiction" is meant the extent of the power Which is conferred upon the Court by its constitution to try a proceeding; its exercise cannot be enlarged because what the learned Judge calls an extraordinary situation "requires" the Court to exercise it. | 1 | 1,482 | 558 | ### Instruction:
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of a principal civil court- called the District Court-and includes the local limits of the ordinary original civil jurisdiction of a High Court. If therefore a High Court is possessed of ordinary original civil jurisdiction, it would, when exercising that jurisdiction be included, for the purpose of Act 43 of 1958, in the expression "District Court".4. Exercise of jurisdiction by the High Court of Mysore is governed by Mysore Act 5 of 1962. The Act is purely a regulatory Act enacted for regulating the business and exercise of the powers of the High Court in relation to the administration of justice : it does not purport to confer upon the High Court any jurisdiction original or appellate. It is true that by s. 12 of the Mysore High Court Act 1 of 1884 enacted by the Maharaja of Mysore to amend the constitution of the High Court of Mysore, and to provide for the administration of justice by that Court, the Government of Mysore was authorised by notification to invest the High Court with ordinary original civil jurisdiction of a District Court in all suits of a civil nature exercisable within such local limits as the Government may from time to time declare and appoint in that behalf. But s. 12 of the Mysore Act 1 of 1884 has been repealed by s. 14 of Mysore Act 5 of 1962.5. The High Court of Mysore is by its constitution primarily a court exercising appellate jurisdiction : it is competent to exercise original jurisdiction only in those matters in respect of which by special Acts it has been specifically invested with jurisdiction. The High Court is competent to exercise original jurisdiction under s. 105 of the Trade and Merchandise Marks Act 43 of 1958 if it is invested with the ordinary original civil jurisdiction of a District Court, and not otherwise, and the High Court of Mysore not being invested by any statute of under its constitution with that jurisdiction was incompetent to entertain a passing off action.6. But it was urged that in a State the High Court is at the apex of the hierarchy of civil courts and has all the powers which the subordinate courts may exercise, and it is competent to entertain all actions as a court of original jurisdiction which may lie in any court in the State. For this exalted claim, there is no warrant in our jurisprudence. Jurisdiction of a Court means the extent of the authority of a Court to administer justice prescribed with reference to the subject-matter, pecuniary value and local limits. Barring cases in which jurisdiction is expressly conferred upon it by special statutes, e.g. the Companies Act; the Banking Companies Act, the High Court of Mysore exercises appellate jurisdiction alone. As a Court of Appeal it undoubtedly stands at the apex within the State, but on that account it does not stand invested with original jurisdiction in matters not expressly declared within its cognizance.7. Section 24 of the Code of Civil Procedure on which counsel for the plaintiffs relied lends no assistance to his argument. Among the powers conferred upon a High Court by s. 24 Code of Civil Procedure, there is enumerated the power to withdraw any suit, appeal or other proceeding in any Court subordinate to it, and to try or dispose of the same : [S. 24(1) (b) (i)]. But jurisdiction to try a suit, appeal or proceeding by a High Court under the power reserved by s. 24(1) (b) (i) arises only if the suit, appeal or proceeding is properly instituted in a court subordinate to the High Court, and the suit, appeal or proceeding is in exercise of the power of the High Court transferred to it. Exercise of this jurisdiction is conditioned by the lawful institution of the proceeding in a subordinate court of competent jurisdiction, and transfer thereof to the High Court. Power to try and dispose of a proceeding after transfer from a court lawfully seized of it does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court.8. Section 151 of the Code of Civil Procedure preserves the in- herent power of the Court as may be necessary for the ends of justice or to prevent abuse of the process of the Court. That power may be exercised where there is a proceeding lawfully before the High Court : it does not however authorise the High Court to invest itself with jurisdiction where it is not conferred by law.9. Reliance was sought to be placed upon the summary of a judgment dated June 6, 1962 in a case decided by Narayana Pai, J : Kaverappa v. Narayanaswamy, which is found printed under the heading "Short Notes of Recent Decision" in the Mysore Law Journal (1962) at p. 1. The learned Judge is reported to have observed that s. 24 of the Code of Civil Procedure "read along with s. 151 which preserves to the High Court all inherent powers to make such orders as may be necessary for ends of justice necessarily implies that whenever an extraordinary situation so requires, a High Court may confer original jurisdiction upon itself to do or protect ends of justice". It does not appear that the judgment is reported in any series of reports-authorised or unauthorised, and we have not been supplied with a copy of the original judgment. But if the learned Judge, as reported in the summary of the judgment, was of the opinion that the High Court is competent to assume to itself jurisdiction Which it does not otherwise possess, merely because an "extraordinary situation" has arisen, with respect to the learned Judge, we are unable to approve of that view. By "jurisdiction" is meant the extent of the power Which is conferred upon the Court by its constitution to try a proceeding; its exercise cannot be enlarged because what the learned Judge calls an extraordinary situation "requires" the Court to exercise it.10.
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Section 24 of theCode of Civil Procedure on which counsel for the plaintiffs relied lends no assistance to his argument. Among the powers conferred upon a High Court by s. 24Code of Civil Procedure, there is enumerated the power to withdraw any suit, appeal or other proceeding in any Court subordinate to it, and to try or dispose of the same : [S. 24(1) (b) (i)]. But jurisdiction to try a suit, appeal or proceeding by a High Court under the power reserved by s. 24(1) (b) (i) arises only if the suit, appeal or proceeding is properly instituted in a court subordinate to the High Court, and the suit, appeal or proceeding is in exercise of the power of the High Court transferred to it. Exercise of this jurisdiction is conditioned by the lawful institution of the proceeding in a subordinate court of competent jurisdiction, and transfer thereof to the High Court. Power to try and dispose of a proceeding after transfer from a court lawfully seized of it does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High151 of theCode of Civil Procedure preserves the in- herent power of the Court as may be necessary for the ends of justice or to prevent abuse of the process of the Court. That power may be exercised where there is a proceeding lawfully before the High Court : it does not however authorise the High Court to invest itself with jurisdiction where it is not conferred bywas sought to be placed upon the summary of a judgment dated June 6, 1962 in a case decided by Narayana Pai, J : Kaverappa v. Narayanaswamy, which is found printed under the heading "Short Notes of Recent Decision" in the Mysore Law Journal (1962) at p. 1. The learned Judge is reported to have observed that s. 24 of theCode of Civil Procedure "read along with s. 151 which preserves to the High Court all inherent powers to make such orders as may be necessary for ends of justice necessarily implies that whenever an extraordinary situation so requires, a High Court may confer original jurisdiction upon itself to do or protect ends of justice". It does not appear that the judgment is reported in any series of reports-authorised or unauthorised, and we have not been supplied with a copy of the original judgment. But if the learned Judge, as reported in the summary of the judgment, was of the opinion that the High Court is competent to assume to itself jurisdiction Which it does not otherwise possess, merely because an "extraordinary situation" has arisen, with respect to the learned Judge, we are unable to approve of that view. By "jurisdiction" is meant the extent of the power Which is conferred upon the Court by its constitution to try a proceeding; its exercise cannot be enlarged because what the learned Judge calls an extraordinary situation "requires" the Court to exercise it.
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AVITEL POST STUDIOZ LIMITED AND ORS Vs. HSBC PI HOLDING (MAURITIUS) LIMITED | it had been advised by the Jain Family (making the representations also on behalf of Avitel India), verbally, in writing and in the SSA itself, that Avitel India was about to and from 2 August 2011 had signed a contract with the BBC, for the BBC to use the services of Avitel India. This was false. Not only had a contract not been negotiated, let alone signed with the BBC, but the BBC had no knowledge of it. 20.4 The misrepresentations and deception of the Respondents included the arrangement of a meeting between a representative of HSBC and a person who was falsely held out by the Respondents and purported to be the Chief Technical Officer of the BBC and who falsely purported to corroborate the Respondents misrepresentations. The representations were made prior to the conclusion of the SSA and in the SSA itself. They were made knowingly to be untrue and were fraudulent. As a result thereof, it was found that HSBC, in respect of its claim for fraudulent misrepresentation, and its claim in tort for deceit, is entitled to damages in the total amount of USD 60 million plus interest and costs as awarded. The final declaration made in the Award then reads: 21.21 [The tribunal] Declares and Orders that upon the Respondents paying in full and unconditionally the sums awarded to the Claimant in paragraphs 21.15, 21.16, 21.18, 21.19 hereinabove and all costs arising out of and incidental to the cancellation of the Claimants Preference Subscription Shares and Equity Subscription Shares (as defined in the SSA) in Avitel India, that the said shares be cancelled and that in this regard, the Parties take the requisite steps to effect the said cancellation within 30 days of receipt of such payment. 21. There can be no doubt whatsoever after reading the issues and some of the material findings in the Foreign Final Award that the issues raised and answered are the subject matter of civil as opposed to criminal proceedings. The fact that a separate criminal proceeding was sought to be started and may have failed is of no consequence whatsoever. We, therefore, hold on a conspectus of these facts, and following our judgments, that the issues raised and answered in the Foreign Final Award would indicate: (i) That there is no such fraud as would vitiate the arbitration clause in the SSA entered into between the parties as it is clear that this clause has to be read as an independent clause. Further, any finding that the contract itself is either null and void or voidable as a result of fraud or misrepresentation does not entail the invalidity of the arbitration clause which is extremely wide, reading as follows: Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity, interpretation, breach or termination …… (emphasis supplied) (ii) That the impersonation, false representations made, and diversion of funds are all inter parties, having no public flavour as explained in paragraph 14 so as to attract the fraud exception. 22. Thus, a reading of the Foreign Final Award in this case would show that a strong prima facie case has indeed been made out as the Award holds the BBC transaction as a basis on which the contract was entered into and the USD 60 million paid by HSBC, which would clearly fall within fraudulent inducement to enter into a contract under section 17 of the Contract Act. Such a contract would be voidable at the instance of HSBC. Also, the findings on the siphoning off of monies that were meant to be allocated for the performance of the BBC contract would attract the tort of deceit. The measure of damages for such fraudulent misrepresentation is not the difference between the value of the shares on the date of making the contract and the value HSBC would have received, if it had resold those shares in the market, after the purchase. As has been held in the judgments stated hereinabove, the measure of such damages would be to put HSBC in the same position as if the contract had never been entered into, which is, the entitlement to recover the price paid for the shares and all consequential losses. This being the case, it is difficult to accede to the Division Benchs finding as to the measure of damages in such cases. 23. So far as the other points raised by M/s. Mukul Rohatgi and Saurabh Kirpal are concerned, we wish to say nothing, as any finding on these points even prima facie would prejudice the section 48 proceedings pending in the Bombay High Court. So far as the appeal of HSBC is concerned, we are of the view that it has substance in that the USD 60 million that was to be kept aside vide the Single Judges order, was fair and just in the facts of the case in that it is only the principal amount without any interest or costs that is ordered to be kept aside. Further, the reduction of USD 60 million to USD 30 million by the Division Bench is not justified given our finding on the measure of damages in the facts of this case. 24. It is clarified that any finding made on facts in this judgment is only prima facie for the purpose of deciding the section 9 petition. We have held that HSBC has made out a strong prima facie case necessitating that USD 60 million, being the principal amount awarded to them, is kept apart in the manner indicated by the learned Single Judge of the Bombay High Court. The balance of convenience is also in its favour. It is clear that in case HSBC was to enforce the Foreign Final Award in India in accordance with section 48 of the 1996 Act, irreparable loss would be caused to it unless at least the principal sum were kept aside for purposes of enforcement of the award in India. | 0[ds]5. First and foremost, it is correct to state that this prima facie case would necessarily depend upon what is the substantive law in India qua arbitrability when allegations of fraud are raised by one of the parties to the arbitration agreement.It will be seen from section 20 of the 1940 Act, as was held in Abdul Kadir (supra), that a wide discretion is vested in the Court if sufficient cause is made out not to refer parties to arbitration. It was in that context that the observations in Abdul Kadir (supra) as to serious allegations of fraud triable in a civil court, being sufficient cause shown under section 20(4) of the 1940 Act were made. Also, the approach of the 1940 Act is made clear by section 35(1), which is set out hereinbelow:35. Effect of legal proceedings on arbitration.—(1) No reference nor award shall be rendered invalid by reason only of the commencement of legal proceedings upon the subject-matter of the reference, but when legal proceedings upon the whole of the subject-matter of the reference have been commenced between all the parties to the reference and a notice thereof has been given to the arbitrators or umpire, all further proceedings in a pending reference shall, unless a stay of proceedings is granted under Section 34, be invalid.xxx xxx xxxThus, even where arbitral proceedings are ongoing, such proceedings become invalid the moment legal proceedings upon the whole of the subject matter of the reference have been commenced between all the parties to the reference and a notice thereof has been given to the arbitrators or umpire. As against this, sections 5, 8 and 16 of the 1996 Act reflect a completely new approach to arbitration, which is that when a judicial authority is shown an arbitration clause in an agreement, it is mandatory for the authority to refer parties to arbitration bearing in mind the fact that the arbitration clause is an agreement independent of the other terms of the contract and that, therefore, a decision by the arbitral tribunal that the contract is null and void does not entail ipso jure the invalidity of the arbitration clause. Even otherwise, N. Radhakrishnan (supra) did not refer to the ratio of Abdul Kadir (supra) correctly. As has been seen by us hereinabove, Abdul Kadir (supra) held that serious allegations of fraud are not made out when allegations of moral or other wrongdoing inter parties are made. In particular, it was held that discrepancies in account books are the usual subject matter in account suits, which are purely of a civil nature. For all these reasons, we are broadly in agreement with the observations of Nijjar, J. rendering N. Radhakrishnan (supra) lacking in precedential value.11. Now comes the important judgment in Ayyasamy (supra). Two separate judgments were delivered by a Division Bench of this Court. Sikri, J., after referring to the judgments in Abdul Kadir (supra), N. Radhakrishnan (supra), Swiss Timing (supra), and Booz Allen (supra), then referred to the 246 th Law Commission Report, in particular to paragraphs 50 and 51 thereof.12. It is a little difficult to apply this case to resurrect the ratio of N. Radhakrishnan (supra) as a binding precedent given the advance made in the law by this Court since N. Radhakrishnan (supra) was decided. Quite apart from what has been stated by us in paragraph 9 above, as to how N. Radhakrishnan (supra) cannot be considered to be a binding precedent for the reasons given in the said paragraph, we are of the view that the development of the law by this Court cannot be thwarted merely because a certain provision recommended in a Law Commission Report is not enacted by Parliament. Parliament may have felt, as was mentioned by Lord Reid in British Railways Board and Herrington, 1972 A.C. 877 [House of Lords], that it was unable to make up its mind and instead, leave it to the courts to continue, case by case, deciding upon what should constitute the fraud exception. Parliament may also have thought that section 16(7), proposed by the Law Commission, is clumsily worded as it speaks of a serious question of law, complicated questions of fact, or allegations of fraud, corruption, etc. N. Radhakrishnan (supra) did not lay down that serious questions of law or complicated questions of fact are non-arbitrable. Further, allegations of fraud, corruption, etc. is vague. For this reason also, Parliament may have left it to the courts to work out the fraud exception. In any case, we have pointed out that dehors any such provision, the ratio in N. Radhakrishnan (supra), being based upon a judgment under the 1940 Act, and without considering sections 5, 8 and 16 of the 1996 Act in their proper perspective, would all show that the law laid down in this case cannot now be applied as a precedent for application of the fraud mantra to negate arbitral proceedings. For the reasons given in this judgment, the House of Lords decision would have no application inasmuch as N. Radhakrishnan (supra) has been tackled on the judicial side and has been found to be wanting.After these judgments, it is clear that serious allegations of fraud arise only if either of the two tests laid down are satisfied, and not otherwise. The first test is satisfied only when it can be said that the arbitration clause or agreement itself cannot be said to exist in a clear case in which the court finds that the party against whom breach is alleged cannot be said to have entered into the agreement relating to arbitration at all. The second test can be said to have been met in cases in which allegations are made against the State or its instrumentalities of arbitrary, fraudulent, or malafide conduct, thus necessitating the hearing of the case by a writ court in which questions are raised which are not predominantly questions arising from the contract itself or breach thereof, but questions arising in the public law domain.15. At this stage, it is necessary to deal with the broad statement of the law in Afcons (supra) and Booz Allen (supra). When Afcons (supra) refers in paragraph 27(iv) to cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion, etc. , this must now be understood in the sense laid down in Ayyasamy (supra) and Rashid Raza (supra). When it comes to paragraph 27(vi) in Afcons (supra), and paragraph 36(i) in Booz Allen (supra), namely, cases involving prosecution for criminal offences, it is also important to remember that the same set of facts may have civil as well as criminal consequences.16. In the light of the aforesaid judgments, paragraph 27(vi) of Afcons (supra) and paragraph 36(i) of Booz Allen (supra), must now be read subject to the rider that the same set of facts may lead to civil and criminal proceedings and if it is clear that a civil dispute involves questions of fraud, misrepresentation, etc. which can be the subject matter of such proceeding under section 17 of the Contract Act, and/or the tort of deceit, the mere fact that criminal proceedings can or have been instituted in respect of the same subject matter would not lead to the conclusion that a dispute which is otherwise arbitrable, ceases to be so.It has been held by the Bombay High Court in Fazal D. Allana v. Mangaldas M. Pakvasa, AIR 1922 Bom 303 , that section 17 of the Contract Act only applies if the contract itself is obtained by fraud or cheating. However, a distinction is made between a contract being obtained by fraud and performance of a contract (which is perfectly valid) being vitiated by fraud or cheating. The latter would fall outside section 17 of the Contract Act, in which the remedy for damages would be available, but not the remedy for treating the contract itself as being void (see pp. 311-312). This is for the reason that the words with intent to deceive another party thereto or his agent must be read with the words or to induce him to enter into the contract, both sets of expressions speaking in relation to the formation of the contract itself. This is further made clear by sections 10, 14 and 19, which have already been referred to hereinabove, all of which deal with fraud at the stage of entering into the contract. Even section 17(5) which speaks of any such act or omission as the law specially deals to be fraudulent must mean such act or omission under such law at the stage of entering into the contract. Thus, fraud that is practiced outside of section 17 of the Contract Act, i.e., in the performance of the contract, may be governed by the tort of deceit, which would lead to damages, but not rescission of the contract itself.18. Both kinds of fraud are subsumed within the expression fraud when it comes to arbitrability of an agreement which contains an arbitration clause.21. There can be no doubt whatsoever after reading the issues and some of the material findings in the Foreign Final Award that the issues raised and answered are the subject matter of civil as opposed to criminal proceedings. The fact that a separate criminal proceeding was sought to be started and may have failed is of no consequence whatsoever. We, therefore, hold on a conspectus of these facts, and following our judgments, that the issues raised and answered in the Foreign Final Award would indicate:(i) That there is no such fraud as would vitiate the arbitration clause in the SSA entered into between the parties as it is clear that this clause has to be read as an independent clause. Further, any finding that the contract itself is either null and void or voidable as a result of fraud or misrepresentation does not entail the invalidity of the arbitration clause which is extremely wide, reading as follows:Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity, interpretation, breach or termination ……(ii) That the impersonation, false representations made, and diversion of funds are all inter parties, having no public flavour as explained in paragraph 14 so as to attract the fraud exception.22. Thus, a reading of the Foreign Final Award in this case would show that a strong prima facie case has indeed been made out as the Award holds the BBC transaction as a basis on which the contract was entered into and the USD 60 million paid by HSBC, which would clearly fall within fraudulent inducement to enter into a contract under section 17 of the Contract Act. Such a contract would be voidable at the instance of HSBC. Also, the findings on the siphoning off of monies that were meant to be allocated for the performance of the BBC contract would attract the tort of deceit. The measure of damages for such fraudulent misrepresentation is not the difference between the value of the shares on the date of making the contract and the value HSBC would have received, if it had resold those shares in the market, after the purchase. As has been held in the judgments stated hereinabove, the measure of such damages would be to put HSBC in the same position as if the contract had never been entered into, which is, the entitlement to recover the price paid for the shares and all consequential losses. This being the case, it is difficult to accede to the Division Benchs finding as to the measure of damages in such cases.23. So far as the other points raised by M/s. Mukul Rohatgi and Saurabh Kirpal are concerned, we wish to say nothing, as any finding on these points even prima facie would prejudice the section 48 proceedings pending in the Bombay High Court. So far as the appeal of HSBC is concerned, we are of the view that it has substance in that the USD 60 million that was to be kept aside vide the Single Judges order, was fair and just in the facts of the case in that it is only the principal amount without any interest or costs that is ordered to be kept aside. Further, the reduction of USD 60 million to USD 30 million by the Division Bench is not justified given our finding on the measure of damages in the facts of this case.24. It is clarified that any finding made on facts in this judgment is only prima facie for the purpose of deciding the section 9 petition. We have held that HSBC has made out a strong prima facie case necessitating that USD 60 million, being the principal amount awarded to them, is kept apart in the manner indicated by the learned Single Judge of the Bombay High Court. The balance of convenience is also in its favour. It is clear that in case HSBC was to enforce the Foreign Final Award in India in accordance with section 48 of the 1996 Act, irreparable loss would be caused to it unless at least the principal sum were kept aside for purposes of enforcement of the award in India.28. In view of the judgment in Civil Appeal No.5145 of 2016 and Civil Appeal No.5158 of 2016, we set aside the judgments of the learned ADJ and the learned Single Judge that are impugned in this appeal, and remand the matter for adjudication afresh by the ADJ, Mohali. | 0 | 24,423 | 2,533 | ### Instruction:
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it had been advised by the Jain Family (making the representations also on behalf of Avitel India), verbally, in writing and in the SSA itself, that Avitel India was about to and from 2 August 2011 had signed a contract with the BBC, for the BBC to use the services of Avitel India. This was false. Not only had a contract not been negotiated, let alone signed with the BBC, but the BBC had no knowledge of it. 20.4 The misrepresentations and deception of the Respondents included the arrangement of a meeting between a representative of HSBC and a person who was falsely held out by the Respondents and purported to be the Chief Technical Officer of the BBC and who falsely purported to corroborate the Respondents misrepresentations. The representations were made prior to the conclusion of the SSA and in the SSA itself. They were made knowingly to be untrue and were fraudulent. As a result thereof, it was found that HSBC, in respect of its claim for fraudulent misrepresentation, and its claim in tort for deceit, is entitled to damages in the total amount of USD 60 million plus interest and costs as awarded. The final declaration made in the Award then reads: 21.21 [The tribunal] Declares and Orders that upon the Respondents paying in full and unconditionally the sums awarded to the Claimant in paragraphs 21.15, 21.16, 21.18, 21.19 hereinabove and all costs arising out of and incidental to the cancellation of the Claimants Preference Subscription Shares and Equity Subscription Shares (as defined in the SSA) in Avitel India, that the said shares be cancelled and that in this regard, the Parties take the requisite steps to effect the said cancellation within 30 days of receipt of such payment. 21. There can be no doubt whatsoever after reading the issues and some of the material findings in the Foreign Final Award that the issues raised and answered are the subject matter of civil as opposed to criminal proceedings. The fact that a separate criminal proceeding was sought to be started and may have failed is of no consequence whatsoever. We, therefore, hold on a conspectus of these facts, and following our judgments, that the issues raised and answered in the Foreign Final Award would indicate: (i) That there is no such fraud as would vitiate the arbitration clause in the SSA entered into between the parties as it is clear that this clause has to be read as an independent clause. Further, any finding that the contract itself is either null and void or voidable as a result of fraud or misrepresentation does not entail the invalidity of the arbitration clause which is extremely wide, reading as follows: Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity, interpretation, breach or termination …… (emphasis supplied) (ii) That the impersonation, false representations made, and diversion of funds are all inter parties, having no public flavour as explained in paragraph 14 so as to attract the fraud exception. 22. Thus, a reading of the Foreign Final Award in this case would show that a strong prima facie case has indeed been made out as the Award holds the BBC transaction as a basis on which the contract was entered into and the USD 60 million paid by HSBC, which would clearly fall within fraudulent inducement to enter into a contract under section 17 of the Contract Act. Such a contract would be voidable at the instance of HSBC. Also, the findings on the siphoning off of monies that were meant to be allocated for the performance of the BBC contract would attract the tort of deceit. The measure of damages for such fraudulent misrepresentation is not the difference between the value of the shares on the date of making the contract and the value HSBC would have received, if it had resold those shares in the market, after the purchase. As has been held in the judgments stated hereinabove, the measure of such damages would be to put HSBC in the same position as if the contract had never been entered into, which is, the entitlement to recover the price paid for the shares and all consequential losses. This being the case, it is difficult to accede to the Division Benchs finding as to the measure of damages in such cases. 23. So far as the other points raised by M/s. Mukul Rohatgi and Saurabh Kirpal are concerned, we wish to say nothing, as any finding on these points even prima facie would prejudice the section 48 proceedings pending in the Bombay High Court. So far as the appeal of HSBC is concerned, we are of the view that it has substance in that the USD 60 million that was to be kept aside vide the Single Judges order, was fair and just in the facts of the case in that it is only the principal amount without any interest or costs that is ordered to be kept aside. Further, the reduction of USD 60 million to USD 30 million by the Division Bench is not justified given our finding on the measure of damages in the facts of this case. 24. It is clarified that any finding made on facts in this judgment is only prima facie for the purpose of deciding the section 9 petition. We have held that HSBC has made out a strong prima facie case necessitating that USD 60 million, being the principal amount awarded to them, is kept apart in the manner indicated by the learned Single Judge of the Bombay High Court. The balance of convenience is also in its favour. It is clear that in case HSBC was to enforce the Foreign Final Award in India in accordance with section 48 of the 1996 Act, irreparable loss would be caused to it unless at least the principal sum were kept aside for purposes of enforcement of the award in India.
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Act only applies if the contract itself is obtained by fraud or cheating. However, a distinction is made between a contract being obtained by fraud and performance of a contract (which is perfectly valid) being vitiated by fraud or cheating. The latter would fall outside section 17 of the Contract Act, in which the remedy for damages would be available, but not the remedy for treating the contract itself as being void (see pp. 311-312). This is for the reason that the words with intent to deceive another party thereto or his agent must be read with the words or to induce him to enter into the contract, both sets of expressions speaking in relation to the formation of the contract itself. This is further made clear by sections 10, 14 and 19, which have already been referred to hereinabove, all of which deal with fraud at the stage of entering into the contract. Even section 17(5) which speaks of any such act or omission as the law specially deals to be fraudulent must mean such act or omission under such law at the stage of entering into the contract. Thus, fraud that is practiced outside of section 17 of the Contract Act, i.e., in the performance of the contract, may be governed by the tort of deceit, which would lead to damages, but not rescission of the contract itself.18. Both kinds of fraud are subsumed within the expression fraud when it comes to arbitrability of an agreement which contains an arbitration clause.21. There can be no doubt whatsoever after reading the issues and some of the material findings in the Foreign Final Award that the issues raised and answered are the subject matter of civil as opposed to criminal proceedings. The fact that a separate criminal proceeding was sought to be started and may have failed is of no consequence whatsoever. We, therefore, hold on a conspectus of these facts, and following our judgments, that the issues raised and answered in the Foreign Final Award would indicate:(i) That there is no such fraud as would vitiate the arbitration clause in the SSA entered into between the parties as it is clear that this clause has to be read as an independent clause. Further, any finding that the contract itself is either null and void or voidable as a result of fraud or misrepresentation does not entail the invalidity of the arbitration clause which is extremely wide, reading as follows:Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity, interpretation, breach or termination ……(ii) That the impersonation, false representations made, and diversion of funds are all inter parties, having no public flavour as explained in paragraph 14 so as to attract the fraud exception.22. Thus, a reading of the Foreign Final Award in this case would show that a strong prima facie case has indeed been made out as the Award holds the BBC transaction as a basis on which the contract was entered into and the USD 60 million paid by HSBC, which would clearly fall within fraudulent inducement to enter into a contract under section 17 of the Contract Act. Such a contract would be voidable at the instance of HSBC. Also, the findings on the siphoning off of monies that were meant to be allocated for the performance of the BBC contract would attract the tort of deceit. The measure of damages for such fraudulent misrepresentation is not the difference between the value of the shares on the date of making the contract and the value HSBC would have received, if it had resold those shares in the market, after the purchase. As has been held in the judgments stated hereinabove, the measure of such damages would be to put HSBC in the same position as if the contract had never been entered into, which is, the entitlement to recover the price paid for the shares and all consequential losses. This being the case, it is difficult to accede to the Division Benchs finding as to the measure of damages in such cases.23. So far as the other points raised by M/s. Mukul Rohatgi and Saurabh Kirpal are concerned, we wish to say nothing, as any finding on these points even prima facie would prejudice the section 48 proceedings pending in the Bombay High Court. So far as the appeal of HSBC is concerned, we are of the view that it has substance in that the USD 60 million that was to be kept aside vide the Single Judges order, was fair and just in the facts of the case in that it is only the principal amount without any interest or costs that is ordered to be kept aside. Further, the reduction of USD 60 million to USD 30 million by the Division Bench is not justified given our finding on the measure of damages in the facts of this case.24. It is clarified that any finding made on facts in this judgment is only prima facie for the purpose of deciding the section 9 petition. We have held that HSBC has made out a strong prima facie case necessitating that USD 60 million, being the principal amount awarded to them, is kept apart in the manner indicated by the learned Single Judge of the Bombay High Court. The balance of convenience is also in its favour. It is clear that in case HSBC was to enforce the Foreign Final Award in India in accordance with section 48 of the 1996 Act, irreparable loss would be caused to it unless at least the principal sum were kept aside for purposes of enforcement of the award in India.28. In view of the judgment in Civil Appeal No.5145 of 2016 and Civil Appeal No.5158 of 2016, we set aside the judgments of the learned ADJ and the learned Single Judge that are impugned in this appeal, and remand the matter for adjudication afresh by the ADJ, Mohali.
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Swastik Rubber Products Limited Etc Vs. Municipal Corporation of The City of Poona and Another | is found necessary to make new rules relating to octroi under sub-section (I) of section 149 of the Bombay Provincial Municipal Corporations Act, 1949, the Municipal Corporation of the City of Poona under its Resolution No. 78, dated 7.8-1962 in pursuance of the power vesting in it under clause (7) and clause (17) of section 457 read with section 454 of the said Act is pleased to rescind the rules and bye- laws aforementioned and to make the new rules as follows." 13. It is true that seven rules covering the subject of octroi and contained in chapter VIII of the Schedule to the Bombay Provincial Municipal Corporation Act 1949 have been specifically mentioned in the preamble as being rescinded and rule 62B is conspicuous by its absence therefrom, which fact apparently supports Dr. Singhvis contention. A closer analysis of the preamble under which new rules were framed, however, makes it clear that rule 62B relating to octroi was repealed by implication. It is noteworthy that chapter VIII above mentioned does not contain any rule relating to octroi, except rule 62B, which did not find a place in the preamble. All rules relating to octroi and enacted under the 1901 and the 1925 Acts were also repealed without exception. Another pointer (which is perhaps the most important in this connection) is available in the fact that octroi was made the subject-matter of a new and comprehensive set of rules which not only deal with the matters covered by the rules contained in chapter VIII and specifically mentioned in the preamble but also the one covered b y rule 62B, namely, the matter of exemption of goods from octroi in areas considered suitable for industralisation. It does not stand to reason that the rule-making authority framed new rules, of which rule 5(8) covers the entire field of the earlier rule 62B, and yet left the latter intact. It could possibly not have been the intention of that authority to have two rules on the same subject and thus create confusion. The promulgation of rule 5(8) as a part of an exhaustive set of new rules, in our opinion, has the effect of a repeal of rule 62B by necessary implication, although not in express terms.Dr. Singhvi, however, as a second string to the bow banks upon the proviso to the resolution of the Corporation seeking to repeal rule 5(8) which is in these words:"Octroi Rule 5(8) is hereby repealed. Provided that notwithstanding such repeal the exemption already granted shall continue until the expiry of the respective periods of their grants." 14. The resolution so passed was sent to the Government and, as held in Municipal Corporation for the City of Poona etc. v. Bijlee Product (India) Ltd. etc., (1) the Government accepted it in full and sanctioned the repeal of rule S(8), as also the proposed proviso. But then the appellants would not be entitled to any benefit by reason of the proviso because they were never granted any exemption under rule 5(8). 15. The other contention raised by Dr. Singhvi is that the Corporation while denying the benefit of exemption from octroi has taken into consideration extraneous or irrelevant considerations. In support of his contention he referred to paragraph 7 of the counter affidavit filed by the Corporation in the writ petition, which is as follows:"7. The respondents grant exemptions to concerns on certain policies. The purpose of extending exemption from octroi duty is to attract new industries in the Corporation limits. This policy is also carried out with a view to develop the city and also to secure employment to citizens and thus to have progress in the economic conditions, commerce and trade for the welfare of the people in general. Moreover the aim of giving exemptions to new industries is to secure permanent sources of income for the respondents after a certain period, i.e, ten years. This is the main object in granting exemption in the cases of new industries to be started that help the development of the City and secure permanent sources of income for the respondents after a definite period. Side by side, there are certain other objects also which are kept in view while determining the question of granting exemptions. These are whether Defence needs are satisfied, whether in the interest of public health and sanitation the grant of exemptions is beneficial, whether foreign exchange is saved, whether the problem of housing accommodation is solved, to some extent and the like. The respondents will suffer huge loss in revenue if exemptions are granted to each and every industry falling within the industrial areas under the Town Planning Scheme. All these considerations are within the full discretion of the respondents while determining the question of grant of exemptions .... In our opinion the considerations which have weighed with the Corporation can not be said to be either irrelevant or extraneous. These considerations are within the ambit of rule 5(8) of the octroi Rules. 16. A lot of argument was advanced on behalf of the appellant by Dr. Singhvi on the nature of relief to be g ranted to the appellant. His contention was that a writ of certiorari may not be of much avail unless the Court grants a writ of mandamus directing the Corporation to demarcate the area in question under rule S(8) of the octroi Rules and grant him the exemption from octroi duty. A number of authorities were cited that the Court can issue a writ of mandamus in suitable cases even in respect of administrative orders. We do not think it is necessary to decide this point as in our opinion the appellants have not been able to make out a case for any relief. 17. In Civil Appeal No. 1600 of 1970 Shri R.B. Datar adopted the arguments advanced by Dr. Singhvi. In the third appeal, No. 1416 of 1970 also the same questions of fact and law are involved and, therefore, this judgment will govern the other two appeals. | 0[ds]11. The expression obviously includes not only a concern to be established but also one already established. But even then the appellant cannot get exemption unless he proves that there has been demarcation within the meaning ofe (8) of rule 5 of the octroi Rules. While demarcating an area for the purpose of rule 5(8) the Corporation may have to take into consideration various factors and circumstances different from those which might weigh with it for making out an area as industrial under the Town Planning Act. The purpose of that Act is to plan the town and thus to keep industrial areas away from the residential or commercial areas and no industries could be set up in an area other than the industrial area declared in pursuance of that Act, while the purpose of demarcation as industrial estate or area under rule 5(8) is the giving of incentive and impetus to industries in a particular area In so doing the Corporation has got to see whether a particular area is or is not suitably located in the interest of industrialisation irrespective of any consideration as to how the t own is to be plannedThere is no foundation for this ground. It has not been alleged, much less proved, that any other unit has been granted exemption even without a demarcation by the Corporation under rule 5(8). There is absolutely no force in this contention13. It is true that seven rules covering the subject of octroi and contained in chapter VIII of the Schedule to the Bombay Provincial Municipal Corporation Act 1949 have been specifically mentioned in the preamble as being rescinded and rule62Bis conspicuous by its absence therefrom, which fact apparently supports Dr. Singhvis contention. A closer analysis of the preamble under which new rules were framed, however, makes it clear that rule62Brelating to octroi was repealed by implication. It is noteworthy that chapter VIII above mentioned does not contain any rule relating to octroi, except rule, which did not find a place in the preamble. All rules relating to octroi and enacted under the 1901 and the 1925 Acts were also repealed without exception. Another pointer (which is perhaps the most important in this connection) is available in the fact that octroi was made ther of a new and comprehensive set of rules which not only deal with the matters covered by the rules contained in chapter VIII and specifically mentioned in the preamble but also the one covered b y rule, namely, the matter of exemption of goods from octroi in areas considered suitable for industralisation. It does not stand to reason that theg authority framed new rules, of which rule 5(8) covers the entire field of the earlier rule, and yet left the latter intact. It could possibly not have been the intention of that authority to have two rules on the same subject and thus create confusion. The promulgation of rule 5(8) as a part of an exhaustive set of new rules, in our opinion, has the effect of a repeal of rule62Bby necessary implication, although not in express terms.Dr. Singhvi, however, as a second string to the bow banks upon the proviso to the resolution of the Corporation seeking to repeal rule 5(8) which is in these words:"Octroi Rule 5(8) is herebyrepealed.Provided that notwithstanding such repeal the exemption already granted shall continue until the expiry of the respective periods of their grants."14. The resolution so passed was sent to the Government and, as held in Municipal Corporation for the City of Poona etc. v. Bijlee Product (India) Ltd. etc., (1) the Government accepted it in full and sanctioned the repeal of rule S(8), as also the proposed proviso. But then the appellants would not be entitled to any benefit by reason of the proviso because they were never granted any exemption under rule 5(8)In our opinion the considerations which have weighed with the Corporation can not be said to be either irrelevant or extraneous. These considerations are within the ambit of rule 5(8) of the octroi RulesWe do not think it is necessary to decide this point as in our opinion the appellants have not been able to make out a case for any relief17. In Civil Appeal No. 1600 of 1970 Shri R.B. Datar adopted the arguments advanced by Dr. Singhvi. In the third appeal, No. 1416 of 1970 also the same questions of fact and law are involved and, therefore, this judgment will govern the other two appeals. | 0 | 3,432 | 844 | ### 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:
is found necessary to make new rules relating to octroi under sub-section (I) of section 149 of the Bombay Provincial Municipal Corporations Act, 1949, the Municipal Corporation of the City of Poona under its Resolution No. 78, dated 7.8-1962 in pursuance of the power vesting in it under clause (7) and clause (17) of section 457 read with section 454 of the said Act is pleased to rescind the rules and bye- laws aforementioned and to make the new rules as follows." 13. It is true that seven rules covering the subject of octroi and contained in chapter VIII of the Schedule to the Bombay Provincial Municipal Corporation Act 1949 have been specifically mentioned in the preamble as being rescinded and rule 62B is conspicuous by its absence therefrom, which fact apparently supports Dr. Singhvis contention. A closer analysis of the preamble under which new rules were framed, however, makes it clear that rule 62B relating to octroi was repealed by implication. It is noteworthy that chapter VIII above mentioned does not contain any rule relating to octroi, except rule 62B, which did not find a place in the preamble. All rules relating to octroi and enacted under the 1901 and the 1925 Acts were also repealed without exception. Another pointer (which is perhaps the most important in this connection) is available in the fact that octroi was made the subject-matter of a new and comprehensive set of rules which not only deal with the matters covered by the rules contained in chapter VIII and specifically mentioned in the preamble but also the one covered b y rule 62B, namely, the matter of exemption of goods from octroi in areas considered suitable for industralisation. It does not stand to reason that the rule-making authority framed new rules, of which rule 5(8) covers the entire field of the earlier rule 62B, and yet left the latter intact. It could possibly not have been the intention of that authority to have two rules on the same subject and thus create confusion. The promulgation of rule 5(8) as a part of an exhaustive set of new rules, in our opinion, has the effect of a repeal of rule 62B by necessary implication, although not in express terms.Dr. Singhvi, however, as a second string to the bow banks upon the proviso to the resolution of the Corporation seeking to repeal rule 5(8) which is in these words:"Octroi Rule 5(8) is hereby repealed. Provided that notwithstanding such repeal the exemption already granted shall continue until the expiry of the respective periods of their grants." 14. The resolution so passed was sent to the Government and, as held in Municipal Corporation for the City of Poona etc. v. Bijlee Product (India) Ltd. etc., (1) the Government accepted it in full and sanctioned the repeal of rule S(8), as also the proposed proviso. But then the appellants would not be entitled to any benefit by reason of the proviso because they were never granted any exemption under rule 5(8). 15. The other contention raised by Dr. Singhvi is that the Corporation while denying the benefit of exemption from octroi has taken into consideration extraneous or irrelevant considerations. In support of his contention he referred to paragraph 7 of the counter affidavit filed by the Corporation in the writ petition, which is as follows:"7. The respondents grant exemptions to concerns on certain policies. The purpose of extending exemption from octroi duty is to attract new industries in the Corporation limits. This policy is also carried out with a view to develop the city and also to secure employment to citizens and thus to have progress in the economic conditions, commerce and trade for the welfare of the people in general. Moreover the aim of giving exemptions to new industries is to secure permanent sources of income for the respondents after a certain period, i.e, ten years. This is the main object in granting exemption in the cases of new industries to be started that help the development of the City and secure permanent sources of income for the respondents after a definite period. Side by side, there are certain other objects also which are kept in view while determining the question of granting exemptions. These are whether Defence needs are satisfied, whether in the interest of public health and sanitation the grant of exemptions is beneficial, whether foreign exchange is saved, whether the problem of housing accommodation is solved, to some extent and the like. The respondents will suffer huge loss in revenue if exemptions are granted to each and every industry falling within the industrial areas under the Town Planning Scheme. All these considerations are within the full discretion of the respondents while determining the question of grant of exemptions .... In our opinion the considerations which have weighed with the Corporation can not be said to be either irrelevant or extraneous. These considerations are within the ambit of rule 5(8) of the octroi Rules. 16. A lot of argument was advanced on behalf of the appellant by Dr. Singhvi on the nature of relief to be g ranted to the appellant. His contention was that a writ of certiorari may not be of much avail unless the Court grants a writ of mandamus directing the Corporation to demarcate the area in question under rule S(8) of the octroi Rules and grant him the exemption from octroi duty. A number of authorities were cited that the Court can issue a writ of mandamus in suitable cases even in respect of administrative orders. We do not think it is necessary to decide this point as in our opinion the appellants have not been able to make out a case for any relief. 17. In Civil Appeal No. 1600 of 1970 Shri R.B. Datar adopted the arguments advanced by Dr. Singhvi. In the third appeal, No. 1416 of 1970 also the same questions of fact and law are involved and, therefore, this judgment will govern the other two appeals.
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11. The expression obviously includes not only a concern to be established but also one already established. But even then the appellant cannot get exemption unless he proves that there has been demarcation within the meaning ofe (8) of rule 5 of the octroi Rules. While demarcating an area for the purpose of rule 5(8) the Corporation may have to take into consideration various factors and circumstances different from those which might weigh with it for making out an area as industrial under the Town Planning Act. The purpose of that Act is to plan the town and thus to keep industrial areas away from the residential or commercial areas and no industries could be set up in an area other than the industrial area declared in pursuance of that Act, while the purpose of demarcation as industrial estate or area under rule 5(8) is the giving of incentive and impetus to industries in a particular area In so doing the Corporation has got to see whether a particular area is or is not suitably located in the interest of industrialisation irrespective of any consideration as to how the t own is to be plannedThere is no foundation for this ground. It has not been alleged, much less proved, that any other unit has been granted exemption even without a demarcation by the Corporation under rule 5(8). There is absolutely no force in this contention13. It is true that seven rules covering the subject of octroi and contained in chapter VIII of the Schedule to the Bombay Provincial Municipal Corporation Act 1949 have been specifically mentioned in the preamble as being rescinded and rule62Bis conspicuous by its absence therefrom, which fact apparently supports Dr. Singhvis contention. A closer analysis of the preamble under which new rules were framed, however, makes it clear that rule62Brelating to octroi was repealed by implication. It is noteworthy that chapter VIII above mentioned does not contain any rule relating to octroi, except rule, which did not find a place in the preamble. All rules relating to octroi and enacted under the 1901 and the 1925 Acts were also repealed without exception. Another pointer (which is perhaps the most important in this connection) is available in the fact that octroi was made ther of a new and comprehensive set of rules which not only deal with the matters covered by the rules contained in chapter VIII and specifically mentioned in the preamble but also the one covered b y rule, namely, the matter of exemption of goods from octroi in areas considered suitable for industralisation. It does not stand to reason that theg authority framed new rules, of which rule 5(8) covers the entire field of the earlier rule, and yet left the latter intact. It could possibly not have been the intention of that authority to have two rules on the same subject and thus create confusion. The promulgation of rule 5(8) as a part of an exhaustive set of new rules, in our opinion, has the effect of a repeal of rule62Bby necessary implication, although not in express terms.Dr. Singhvi, however, as a second string to the bow banks upon the proviso to the resolution of the Corporation seeking to repeal rule 5(8) which is in these words:"Octroi Rule 5(8) is herebyrepealed.Provided that notwithstanding such repeal the exemption already granted shall continue until the expiry of the respective periods of their grants."14. The resolution so passed was sent to the Government and, as held in Municipal Corporation for the City of Poona etc. v. Bijlee Product (India) Ltd. etc., (1) the Government accepted it in full and sanctioned the repeal of rule S(8), as also the proposed proviso. But then the appellants would not be entitled to any benefit by reason of the proviso because they were never granted any exemption under rule 5(8)In our opinion the considerations which have weighed with the Corporation can not be said to be either irrelevant or extraneous. These considerations are within the ambit of rule 5(8) of the octroi RulesWe do not think it is necessary to decide this point as in our opinion the appellants have not been able to make out a case for any relief17. In Civil Appeal No. 1600 of 1970 Shri R.B. Datar adopted the arguments advanced by Dr. Singhvi. In the third appeal, No. 1416 of 1970 also the same questions of fact and law are involved and, therefore, this judgment will govern the other two appeals.
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Anilkumar Dadurao Dhekle Vs. Rukhiben | to the said notice nor disputed the standard rent. By producing Ex.27 receipt and other receipts, the appellant-landlord has established that the tenancy was a ‘monthly tenancy’.16. In this regard, the learned counsel for the appellant has drawn our attention to the notice issued by the Defendant No. 1/2-Dahyalal Manilal Valand dated 27.01.2004, wherein it is clearly stated that the tenancy is a ‘monthly tenancy’ at a monthly rent of Rs.30/-. As pointed out by the trial court, the defendants deposited the amount after a lapse of one month after the receipt of notice. Resultantly, the respondent-defendant Nos.1/2 and 1/3 are liable to be evicted on the ground of default in payment of rent. The First Appellate Court and the High Court erred in ignoring the material evidence that the tenancy was a monthly tenancy and that the case would fall under Section 12(3) (a). The finding of the High Court as also of the First Appellate Court that the present tenancy is covered under Section 12(3)(b) is liable to be set aside and the order of eviction passed by the trial court on the ground of default in payment of rent is to be restored.17. Next question falling for consideration is, after the death of Manilal, whether defendant’s heirs-defendant Nos.1/2 and 1/3 are entitled to continue in the shop. Appellant-landlord pleaded that none of the Manilal’s sons were doing business of hair cutting alongwith the defendant Manilal and under Section 5(11)(c) of the Bombay Rent Control Act, the defendant Nos.1/2 and 1/3 are not entitled to continue in tenancy after the death of deceased-tenant Manilal. Section 5(11)(c) reads as under:-(11) “tenant” means any person by whom or on whose account rent is payable for any premises and includes-(a) xxx(b) xxx(c) (i) any member of the tenant’s family residing with him at the time of his death as may be decided in default of agreement by the Court;(ii) in relation to premises let for business, trade or storage, any member of the tenant’s family carrying on business, trade or storage with the tenant in the said premises at the time of the death of the tenant as may continue, after his death, to carry on the business, trade or storage, as the case may be, in the said premises and as may be decided in default of agreement by the Court."18. It is brought on record that defendant No.1/2 Dahyabhai was serving in Alembic Glass Works as full time worker and, to prove the same Ex.39 Service Card was produced which shows that Dahyabhai was a full time worker and he never carried on business of Barber alongwith the original tenant Manilal. Though in his evidence, defendant No.1/2 Dahyabhai has stated that he was staying in the shop and was doing barber work alongwith his father nothing was produced to prove the same. As rightly pointed out by the trial court, no evidence was produced to show that defendant No.1/2 Dahyabhai had worked alongwith his father or that he had cut hair of even a single person in Baroda in the tenanted shop premises.19. So far as the other son Bhogilal-defendant No.1/3 is concerned, it is brought on record that he was running a separate barber shop in Navjivan Society and to prove the same, appellant-landlord has produced photographs Exs.49-50 which showed that Bhogilal was actually working in his separate shop in Navjivan Society while his father Manilal was alive. In this regard, it is relevant to refer to the observation of the trial court that to his identity and his photographs, how defendant No.1/3 came to the court with his head completely shaven and moustache removed to disguise himself as a different person from the photographs Exs.49, 50 and 51. Nothing was brought on record to show that defendant Nos.1/3 had been doing the business with his father at any point of time. Further, the appellant-landlord has also produced Exs.43 and 44 photographs to show that there was only one chair for the customers in the shop and that neither defendant No.1/2 nor defendant No.1/3 were present in the shop to carry on the business alongwith tenant-Manilal thereafter. The First Appellate Court and the High Court failed to appreciate that the defendant No.1/2 was a full time worker in Alembic Glass works and defendant No. 1/3 was carrying on his business separately. The findings of the trial court that the defendant Nos.1/2 and 1/3 are not entitled to the benefit of Section 5(11)(c), is well reasoned and based on evidence and the same is to be restored.20. So far as the sub-letting is concerned, the defendant No.1/2 stated that the second defendant Somabhai Dahyabhai was engaged as their worker and that he was being paid 50% of the charges as worker and as still Somabhai did not find it profitable and, he had left the job. The fact that a stranger was engaged in the shop and he was being paid 50% labour charges, as rightly observed by the trial court that it must have been either a case of partnership or of sub-letting. That apart, second defendant Somabhai has not been examined to substantiate the version of the defendants that he was engaged by the defendants as their worker. The findings of the First Appellate Court and the High Court on sub-letting is accordingly reversed, restoring the findings of the trial court that the defendants are liable to be evicted on the ground of sub-letting also.21. The findings and the reasonings recorded by the High Court are not based on evidence, cannot be sustained. As rightly held by the trial court, the respondents-tenants are liable to be evicted on three grounds:-(i) default in payment of rent; (ii) defendant Nos.1/2 and 1/3 not being entitled to the benefit of Section 5(11)(c); and (iii) sub-letting. It is unfortunate that the appellant-landlord is litigating for more than four decades to get back possession of his own premises and, therefore, the respondent-tenants are directed to handover vacant possession of the premises immediately. | 1[ds]12. So far as the first ground of eviction of arrears of rent is concerned, it is an admitted case that the tenant Manilal was in arrears of rent from 06.07.1974 to 05.05.1976 amounting to Rs.660/- and proper notice (Ex.31) was issued asking him to vacate premises in case he fails to make good the arrears of rent. Though the tenant Manilal received the said notice, no reply was sent there to; nor the dispute of standard rent was raised. It is only in the written statement filed by him, the dispute was raised for the first time as to the standard rent. Notably, the tenant Manilal had never applied for fixation of the standard rent earlier nor within one month of the service of notice had he applied for fixation of the standard rent. As noted earlier, the tenant Manilal did not even send reply notice disputing the standard rent.In this regard, thelearned counsel for the appellant has drawn our attention to the notice issued by the Defendant No. 1/2-Dahyalal Manilal Valand dated 27.01.2004, wherein it is clearly stated that the tenancy is a ‘monthlyat a monthly rent of Rs.30/-.As pointed out by the trial court, the defendants deposited the amount after a lapse of one month after the receipt of notice. Resultantly, the respondent-defendant Nos.1/2 and 1/3 are liable to be evicted on the ground of default in payment of rent. The First Appellate Court and the High Court erred in ignoring the material evidence that the tenancy was a monthly tenancy and that the case would fall under Section 12(3) (a). The finding of the High Court as also of the First Appellate Court that the present tenancy is covered under Section 12(3)(b) is liable to be set aside and the order of eviction passed by the trial court on the ground of default in payment of rent is to be restored.17. Next question falling for consideration is, after the death of Manilal, whetherheirs-defendant Nos.1/2 and 1/3 are entitled to continue in theshop. Appellant-landlord pleaded that none of thesons were doing business of hair cutting alongwith the defendant Manilal and under Section 5(11)(c) of the Bombay Rent Control Act, the defendant Nos.1/2 and 1/3 are not entitled to continue in tenancy after the death of deceased-tenant Manilal.It is brought on record that defendant No.1/2 Dahyabhai was serving in Alembic Glass Works as full time worker and, to prove the same Ex.39 Service Card was produced which shows that Dahyabhai was a full time worker and he never carried on business of Barber alongwith the original tenant Manilal. Though in his evidence, defendant No.1/2 Dahyabhai has stated that he was staying in the shop and was doing barber work alongwith his father nothing was produced to prove the same. As rightly pointed out by the trial court, no evidence was produced to show that defendant No.1/2 Dahyabhai had worked alongwith his father or that he had cut hair of even a single person in Baroda in the tenanted shop premises.19. So far as the other son Bhogilal-defendant No.1/3 is concerned, it is brought on record that he was running a separate barber shop in Navjivan Society and to prove the same, appellant-landlord has produced photographs Exs.49-50 which showed that Bhogilal was actually working in his separate shop in Navjivan Society while his father Manilal was alive. In this regard, it is relevant to refer to the observation of the trial court that to his identity and his photographs, how defendant No.1/3 came to the court with his head completely shaven and moustache removed to disguise himself as a different person from the photographs Exs.49, 50 and 51. Nothing was brought on record to show that defendant Nos.1/3 had been doing the business with his father at any point of time. Further, the appellant-landlord has also produced Exs.43 and 44 photographs to show that there was only one chair for the customers in the shop and that neither defendant No.1/2 nor defendant No.1/3 were present in the shop to carry on the business alongwith tenant-Manilal thereafter. The First Appellate Court and the High Court failed to appreciate that the defendant No.1/2 was a full time worker in Alembic Glass works and defendant No. 1/3 was carrying on his business separately. The findings of the trial court that the defendant Nos.1/2 and 1/3 are not entitled to the benefit of Section 5(11)(c), is well reasoned and based on evidence and the same is to be restored.20. So far as the sub-letting is concerned, the defendant No.1/2 stated that the second defendant Somabhai Dahyabhai was engaged as their worker and that he was being paid 50% of the charges as worker and as still Somabhai did not find it profitable and, he had left the job. The fact that a stranger was engaged in the shop and he was being paid 50% labour charges, as rightly observed by the trial court that it must have been either a case of partnership or of sub-letting. That apart, second defendant Somabhai has not been examined to substantiate the version of the defendants that he was engaged by the defendants as their worker. The findings of the First Appellate Court and the High Court on sub-letting is accordingly reversed, restoring the findings of the trial court that the defendants are liable to be evicted on the ground of sub-letting also.21. The findings and the reasonings recorded by the High Court are not based on evidence, cannot be sustained. As rightly held by the trial court, the respondents-tenants are liable to be evicted on three grounds:-(i) default in payment of rent; (ii) defendant Nos.1/2 and 1/3 not being entitled to the benefit of Section 5(11)(c); and (iii) sub-letting. It is unfortunate that the appellant-landlord is litigating for more than four decades to get back possession of his own premises and, therefore, the respondent-tenants are directed to handover vacant possession of the premises immediately. | 1 | 3,797 | 1,098 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
to the said notice nor disputed the standard rent. By producing Ex.27 receipt and other receipts, the appellant-landlord has established that the tenancy was a ‘monthly tenancy’.16. In this regard, the learned counsel for the appellant has drawn our attention to the notice issued by the Defendant No. 1/2-Dahyalal Manilal Valand dated 27.01.2004, wherein it is clearly stated that the tenancy is a ‘monthly tenancy’ at a monthly rent of Rs.30/-. As pointed out by the trial court, the defendants deposited the amount after a lapse of one month after the receipt of notice. Resultantly, the respondent-defendant Nos.1/2 and 1/3 are liable to be evicted on the ground of default in payment of rent. The First Appellate Court and the High Court erred in ignoring the material evidence that the tenancy was a monthly tenancy and that the case would fall under Section 12(3) (a). The finding of the High Court as also of the First Appellate Court that the present tenancy is covered under Section 12(3)(b) is liable to be set aside and the order of eviction passed by the trial court on the ground of default in payment of rent is to be restored.17. Next question falling for consideration is, after the death of Manilal, whether defendant’s heirs-defendant Nos.1/2 and 1/3 are entitled to continue in the shop. Appellant-landlord pleaded that none of the Manilal’s sons were doing business of hair cutting alongwith the defendant Manilal and under Section 5(11)(c) of the Bombay Rent Control Act, the defendant Nos.1/2 and 1/3 are not entitled to continue in tenancy after the death of deceased-tenant Manilal. Section 5(11)(c) reads as under:-(11) “tenant” means any person by whom or on whose account rent is payable for any premises and includes-(a) xxx(b) xxx(c) (i) any member of the tenant’s family residing with him at the time of his death as may be decided in default of agreement by the Court;(ii) in relation to premises let for business, trade or storage, any member of the tenant’s family carrying on business, trade or storage with the tenant in the said premises at the time of the death of the tenant as may continue, after his death, to carry on the business, trade or storage, as the case may be, in the said premises and as may be decided in default of agreement by the Court."18. It is brought on record that defendant No.1/2 Dahyabhai was serving in Alembic Glass Works as full time worker and, to prove the same Ex.39 Service Card was produced which shows that Dahyabhai was a full time worker and he never carried on business of Barber alongwith the original tenant Manilal. Though in his evidence, defendant No.1/2 Dahyabhai has stated that he was staying in the shop and was doing barber work alongwith his father nothing was produced to prove the same. As rightly pointed out by the trial court, no evidence was produced to show that defendant No.1/2 Dahyabhai had worked alongwith his father or that he had cut hair of even a single person in Baroda in the tenanted shop premises.19. So far as the other son Bhogilal-defendant No.1/3 is concerned, it is brought on record that he was running a separate barber shop in Navjivan Society and to prove the same, appellant-landlord has produced photographs Exs.49-50 which showed that Bhogilal was actually working in his separate shop in Navjivan Society while his father Manilal was alive. In this regard, it is relevant to refer to the observation of the trial court that to his identity and his photographs, how defendant No.1/3 came to the court with his head completely shaven and moustache removed to disguise himself as a different person from the photographs Exs.49, 50 and 51. Nothing was brought on record to show that defendant Nos.1/3 had been doing the business with his father at any point of time. Further, the appellant-landlord has also produced Exs.43 and 44 photographs to show that there was only one chair for the customers in the shop and that neither defendant No.1/2 nor defendant No.1/3 were present in the shop to carry on the business alongwith tenant-Manilal thereafter. The First Appellate Court and the High Court failed to appreciate that the defendant No.1/2 was a full time worker in Alembic Glass works and defendant No. 1/3 was carrying on his business separately. The findings of the trial court that the defendant Nos.1/2 and 1/3 are not entitled to the benefit of Section 5(11)(c), is well reasoned and based on evidence and the same is to be restored.20. So far as the sub-letting is concerned, the defendant No.1/2 stated that the second defendant Somabhai Dahyabhai was engaged as their worker and that he was being paid 50% of the charges as worker and as still Somabhai did not find it profitable and, he had left the job. The fact that a stranger was engaged in the shop and he was being paid 50% labour charges, as rightly observed by the trial court that it must have been either a case of partnership or of sub-letting. That apart, second defendant Somabhai has not been examined to substantiate the version of the defendants that he was engaged by the defendants as their worker. The findings of the First Appellate Court and the High Court on sub-letting is accordingly reversed, restoring the findings of the trial court that the defendants are liable to be evicted on the ground of sub-letting also.21. The findings and the reasonings recorded by the High Court are not based on evidence, cannot be sustained. As rightly held by the trial court, the respondents-tenants are liable to be evicted on three grounds:-(i) default in payment of rent; (ii) defendant Nos.1/2 and 1/3 not being entitled to the benefit of Section 5(11)(c); and (iii) sub-letting. It is unfortunate that the appellant-landlord is litigating for more than four decades to get back possession of his own premises and, therefore, the respondent-tenants are directed to handover vacant possession of the premises immediately.
### Response:
1
### Explanation:
12. So far as the first ground of eviction of arrears of rent is concerned, it is an admitted case that the tenant Manilal was in arrears of rent from 06.07.1974 to 05.05.1976 amounting to Rs.660/- and proper notice (Ex.31) was issued asking him to vacate premises in case he fails to make good the arrears of rent. Though the tenant Manilal received the said notice, no reply was sent there to; nor the dispute of standard rent was raised. It is only in the written statement filed by him, the dispute was raised for the first time as to the standard rent. Notably, the tenant Manilal had never applied for fixation of the standard rent earlier nor within one month of the service of notice had he applied for fixation of the standard rent. As noted earlier, the tenant Manilal did not even send reply notice disputing the standard rent.In this regard, thelearned counsel for the appellant has drawn our attention to the notice issued by the Defendant No. 1/2-Dahyalal Manilal Valand dated 27.01.2004, wherein it is clearly stated that the tenancy is a ‘monthlyat a monthly rent of Rs.30/-.As pointed out by the trial court, the defendants deposited the amount after a lapse of one month after the receipt of notice. Resultantly, the respondent-defendant Nos.1/2 and 1/3 are liable to be evicted on the ground of default in payment of rent. The First Appellate Court and the High Court erred in ignoring the material evidence that the tenancy was a monthly tenancy and that the case would fall under Section 12(3) (a). The finding of the High Court as also of the First Appellate Court that the present tenancy is covered under Section 12(3)(b) is liable to be set aside and the order of eviction passed by the trial court on the ground of default in payment of rent is to be restored.17. Next question falling for consideration is, after the death of Manilal, whetherheirs-defendant Nos.1/2 and 1/3 are entitled to continue in theshop. Appellant-landlord pleaded that none of thesons were doing business of hair cutting alongwith the defendant Manilal and under Section 5(11)(c) of the Bombay Rent Control Act, the defendant Nos.1/2 and 1/3 are not entitled to continue in tenancy after the death of deceased-tenant Manilal.It is brought on record that defendant No.1/2 Dahyabhai was serving in Alembic Glass Works as full time worker and, to prove the same Ex.39 Service Card was produced which shows that Dahyabhai was a full time worker and he never carried on business of Barber alongwith the original tenant Manilal. Though in his evidence, defendant No.1/2 Dahyabhai has stated that he was staying in the shop and was doing barber work alongwith his father nothing was produced to prove the same. As rightly pointed out by the trial court, no evidence was produced to show that defendant No.1/2 Dahyabhai had worked alongwith his father or that he had cut hair of even a single person in Baroda in the tenanted shop premises.19. So far as the other son Bhogilal-defendant No.1/3 is concerned, it is brought on record that he was running a separate barber shop in Navjivan Society and to prove the same, appellant-landlord has produced photographs Exs.49-50 which showed that Bhogilal was actually working in his separate shop in Navjivan Society while his father Manilal was alive. In this regard, it is relevant to refer to the observation of the trial court that to his identity and his photographs, how defendant No.1/3 came to the court with his head completely shaven and moustache removed to disguise himself as a different person from the photographs Exs.49, 50 and 51. Nothing was brought on record to show that defendant Nos.1/3 had been doing the business with his father at any point of time. Further, the appellant-landlord has also produced Exs.43 and 44 photographs to show that there was only one chair for the customers in the shop and that neither defendant No.1/2 nor defendant No.1/3 were present in the shop to carry on the business alongwith tenant-Manilal thereafter. The First Appellate Court and the High Court failed to appreciate that the defendant No.1/2 was a full time worker in Alembic Glass works and defendant No. 1/3 was carrying on his business separately. The findings of the trial court that the defendant Nos.1/2 and 1/3 are not entitled to the benefit of Section 5(11)(c), is well reasoned and based on evidence and the same is to be restored.20. So far as the sub-letting is concerned, the defendant No.1/2 stated that the second defendant Somabhai Dahyabhai was engaged as their worker and that he was being paid 50% of the charges as worker and as still Somabhai did not find it profitable and, he had left the job. The fact that a stranger was engaged in the shop and he was being paid 50% labour charges, as rightly observed by the trial court that it must have been either a case of partnership or of sub-letting. That apart, second defendant Somabhai has not been examined to substantiate the version of the defendants that he was engaged by the defendants as their worker. The findings of the First Appellate Court and the High Court on sub-letting is accordingly reversed, restoring the findings of the trial court that the defendants are liable to be evicted on the ground of sub-letting also.21. The findings and the reasonings recorded by the High Court are not based on evidence, cannot be sustained. As rightly held by the trial court, the respondents-tenants are liable to be evicted on three grounds:-(i) default in payment of rent; (ii) defendant Nos.1/2 and 1/3 not being entitled to the benefit of Section 5(11)(c); and (iii) sub-letting. It is unfortunate that the appellant-landlord is litigating for more than four decades to get back possession of his own premises and, therefore, the respondent-tenants are directed to handover vacant possession of the premises immediately.
|
N.SANKARANARAYANAN Vs. CHAIRMAN,TAMIL NADU HOUSING BOARD AND ORS | the land in question are illegal, hazardous and against the public safety inasmuch as they are being carried in violation of several provisions of the laws in force. 11. As mentioned above, the Division Bench dismissed the writ petition finding no merit therein with the following reasons in Para 17, which reads as under: 17. A perusal of the records produced before this Court leaves no iota of doubt that principally the dispute now raised before this Court is a private dispute between the various family members having contesting the claims to be on the Board apart from those relating to the affairs of the Company. It is an admitted fact that the company is a closely held company by a family members of six brothers. The present dispute is nothing but a trial for the show of their respective strength to each other herein. A petition before the Company Law Board is pending consideration as regards the continuance of the directorship of Mr. Muthusami. Whatever be the merits of the petition before the Company Law Board, taking note of the various contentions, which included a dispute with reference to the area occupied by the Theatre and the construction of the mandapam and the petrol pump, this Court in the order passed on 19.9.2007 in C.M.A. No.1900 of 2007 has rightly directed the Company Law Board to dispose of the main petition by 31.1.2008. 12. The question, which arises for consideration in these appeals, is whether the Division Bench was justified in dismissing the appellants writ petition on the aforementioned reasoning. 13. We heard the learned counsel for the parties and perused the record of the case. Having heard the learned counsel, we are inclined to agree with the reasoning and the conclusion arrived at by the Division Bench in the impugned order. 14. In our considered opinion also, the writ petition filed by the appellant was wholly misconceived and deserved dismissal at the threshold. 15. As rightly observed by the Division Bench, the dispute sought to be raised by the appellant in his writ petition was essentially a private property dispute between the members of one family of which the appellant and respondent No. 2 are the members. 16. By indirect means such as the one resorted to by the writ petitioner (appellant herein) by filing the writ petition, a dispute inter se private parties of the nature mentioned above could not be allowed to be raised in the writ petition under Article 226/227 of the Constitution for seeking issuance of mandamus against the State and its authorities in relation to the properties in question. 17. It is not in dispute that the appellant did not file the writ petition in his capacity as public¬ spirited person, i.e., Public Interest Litigation (PIL). It was, on the other hand, a writ petition was filed by the appellant essentially to settle his personal property rights disputes qua respondent Nos. 2 and 3. It is a settled law that no writ petition can be entertained for issuance of any writ against any private individual in respect of any private property dispute. The remedy in such case lies in civil Courts. 18. In other words, it is a settled law that the questions such as, who is the owner of the land in question, the appellant or respondent No. 2 or any other member of their family, whether the land in question was let out by respondent No. 2 to respondent No. 3 and, if so, when, why and for what purpose, who had the right to let out the said land (appellant or respondent No. 2 or any other member of the family), what was the arrangements, if any, made in the memorandum of settlement in relation to the land in question inter se members of the family, whether it was breached or not and, if so, by whom, what activities are being carried on the said land and, if so, by whom, whether such activities are legal or illegal etc. are not the questions which can be raised by any private individual against other private individual in the writ petition under Article 226 of the Constitution. 19. Even if the writ petitioner did not raise pointedly these questions for claiming reliefs in the writ petition yet, in our view, such questions have a material bearing while considering the grant of reliefs claimed by the writ petitioner in the writ petition. 20. It is not in dispute that some proceedings are pending before the Company Law Board between the parties in relation to their private property disputes. If that be so, the parties to such proceedings have to prosecute the proceedings before CLB in accordance with law for obtaining appropriate reliefs. 21. Before parting, we consider it apposite to mention that we have not expressed any opinion on the merits of the case. Rather, it is not possible to express any opinion for want of jurisdiction. The parties, therefore, will be at liberty to take recourse to all judicial remedies, as may be available to them in law, for adjudication of their respective grievances in appropriate judicial forum against each other. 22. Similarly, it is for the State authorities to see as to whether any person(s) has/have contravened or/and is/are contravening any provision(s) of any Act or Rules or Regulations or Statutory Schemes in any manner while using the properties and, if so, what action is called for qua such persons and against the activities carried on by such person(s) in law. We, however, express no opinion on any of these issues and leave it for the State authorities to act against any such person(s) in accordance with law. 23. We also make it clear that all such disputes between the parties concerned on its merits will be decided strictly in accordance with law by the Court/Tribunal/Authority, as the case may be, uninfluenced by any observation made by the High Court in the impugned order and by this Court in this order. | 0[ds]14. In our considered opinion also, the writ petition filed by the appellant was wholly misconceived and deserved dismissal at the threshold15. As rightly observed by the Division Bench, the dispute sought to be raised by the appellant in his writ petition was essentially a private property dispute between the members of one family of which the appellant and respondent No. 2 are the members16. By indirect means such as the one resorted to by the writ petitioner (appellant herein) by filing the writ petition, a dispute inter se private parties of the nature mentioned above could not be allowed to be raised in the writ petition under Article 226/227 of the Constitution for seeking issuance of mandamus against the State and its authorities in relation to the properties in question17. It is not in dispute that the appellant did not file the writ petition in his capacity as public¬ spirited person, i.e., Public Interest Litigation (PIL). It was, on the other hand, a writ petition was filed by the appellant essentially to settle his personal property rights disputes qua respondent Nos. 2 and 3. It is a settled law that no writ petition can be entertained for issuance of any writ against any private individual in respect of any private property dispute. The remedy in such case lies in civil Courts18. In other words, it is a settled law that the questions such as, who is the owner of the land in question, the appellant or respondent No. 2 or any other member of their family, whether the land in question was let out by respondent No. 2 to respondent No. 3 and, if so, when, why and for what purpose, who had the right to let out the said land (appellant or respondent No. 2 or any other member of the family), what was the arrangements, if any, made in the memorandum of settlement in relation to the land in question inter se members of the family, whether it was breached or not and, if so, by whom, what activities are being carried on the said land and, if so, by whom, whether such activities are legal or illegal etc. are not the questions which can be raised by any private individual against other private individual in the writ petition under Article 226 of the Constitution19. Even if the writ petitioner did not raise pointedly these questions for claiming reliefs in the writ petition yet, in our view, such questions have a material bearing while considering the grant of reliefs claimed by the writ petitioner in the writ petition20. It is not in dispute that some proceedings are pending before the Company Law Board between the parties in relation to their private property disputes. If that be so, the parties to such proceedings have to prosecute the proceedings before CLB in accordance with law for obtaining appropriate reliefs21. Before parting, we consider it apposite to mention that we have not expressed any opinion on the merits of the case. Rather, it is not possible to express any opinion for want of jurisdiction. The parties, therefore, will be at liberty to take recourse to all judicial remedies, as may be available to them in law, for adjudication of their respective grievances in appropriate judicial forum against each other22. Similarly, it is for the State authorities to see as to whether any person(s) has/have contravened or/and is/are contravening any provision(s) of any Act or Rules or Regulations or Statutory Schemes in any manner while using the properties and, if so, what action is called for qua such persons and against the activities carried on by such person(s) in law. We, however, express no opinion on any of these issues and leave it for the State authorities to act against any such person(s) in accordance with law23. We also make it clear that all such disputes between the parties concerned on its merits will be decided strictly in accordance with law by the Court/Tribunal/Authority, as the case may be, uninfluenced by any observation made by the High Court in the impugned order and by this Court in this order. | 0 | 1,850 | 776 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the land in question are illegal, hazardous and against the public safety inasmuch as they are being carried in violation of several provisions of the laws in force. 11. As mentioned above, the Division Bench dismissed the writ petition finding no merit therein with the following reasons in Para 17, which reads as under: 17. A perusal of the records produced before this Court leaves no iota of doubt that principally the dispute now raised before this Court is a private dispute between the various family members having contesting the claims to be on the Board apart from those relating to the affairs of the Company. It is an admitted fact that the company is a closely held company by a family members of six brothers. The present dispute is nothing but a trial for the show of their respective strength to each other herein. A petition before the Company Law Board is pending consideration as regards the continuance of the directorship of Mr. Muthusami. Whatever be the merits of the petition before the Company Law Board, taking note of the various contentions, which included a dispute with reference to the area occupied by the Theatre and the construction of the mandapam and the petrol pump, this Court in the order passed on 19.9.2007 in C.M.A. No.1900 of 2007 has rightly directed the Company Law Board to dispose of the main petition by 31.1.2008. 12. The question, which arises for consideration in these appeals, is whether the Division Bench was justified in dismissing the appellants writ petition on the aforementioned reasoning. 13. We heard the learned counsel for the parties and perused the record of the case. Having heard the learned counsel, we are inclined to agree with the reasoning and the conclusion arrived at by the Division Bench in the impugned order. 14. In our considered opinion also, the writ petition filed by the appellant was wholly misconceived and deserved dismissal at the threshold. 15. As rightly observed by the Division Bench, the dispute sought to be raised by the appellant in his writ petition was essentially a private property dispute between the members of one family of which the appellant and respondent No. 2 are the members. 16. By indirect means such as the one resorted to by the writ petitioner (appellant herein) by filing the writ petition, a dispute inter se private parties of the nature mentioned above could not be allowed to be raised in the writ petition under Article 226/227 of the Constitution for seeking issuance of mandamus against the State and its authorities in relation to the properties in question. 17. It is not in dispute that the appellant did not file the writ petition in his capacity as public¬ spirited person, i.e., Public Interest Litigation (PIL). It was, on the other hand, a writ petition was filed by the appellant essentially to settle his personal property rights disputes qua respondent Nos. 2 and 3. It is a settled law that no writ petition can be entertained for issuance of any writ against any private individual in respect of any private property dispute. The remedy in such case lies in civil Courts. 18. In other words, it is a settled law that the questions such as, who is the owner of the land in question, the appellant or respondent No. 2 or any other member of their family, whether the land in question was let out by respondent No. 2 to respondent No. 3 and, if so, when, why and for what purpose, who had the right to let out the said land (appellant or respondent No. 2 or any other member of the family), what was the arrangements, if any, made in the memorandum of settlement in relation to the land in question inter se members of the family, whether it was breached or not and, if so, by whom, what activities are being carried on the said land and, if so, by whom, whether such activities are legal or illegal etc. are not the questions which can be raised by any private individual against other private individual in the writ petition under Article 226 of the Constitution. 19. Even if the writ petitioner did not raise pointedly these questions for claiming reliefs in the writ petition yet, in our view, such questions have a material bearing while considering the grant of reliefs claimed by the writ petitioner in the writ petition. 20. It is not in dispute that some proceedings are pending before the Company Law Board between the parties in relation to their private property disputes. If that be so, the parties to such proceedings have to prosecute the proceedings before CLB in accordance with law for obtaining appropriate reliefs. 21. Before parting, we consider it apposite to mention that we have not expressed any opinion on the merits of the case. Rather, it is not possible to express any opinion for want of jurisdiction. The parties, therefore, will be at liberty to take recourse to all judicial remedies, as may be available to them in law, for adjudication of their respective grievances in appropriate judicial forum against each other. 22. Similarly, it is for the State authorities to see as to whether any person(s) has/have contravened or/and is/are contravening any provision(s) of any Act or Rules or Regulations or Statutory Schemes in any manner while using the properties and, if so, what action is called for qua such persons and against the activities carried on by such person(s) in law. We, however, express no opinion on any of these issues and leave it for the State authorities to act against any such person(s) in accordance with law. 23. We also make it clear that all such disputes between the parties concerned on its merits will be decided strictly in accordance with law by the Court/Tribunal/Authority, as the case may be, uninfluenced by any observation made by the High Court in the impugned order and by this Court in this order.
### Response:
0
### Explanation:
14. In our considered opinion also, the writ petition filed by the appellant was wholly misconceived and deserved dismissal at the threshold15. As rightly observed by the Division Bench, the dispute sought to be raised by the appellant in his writ petition was essentially a private property dispute between the members of one family of which the appellant and respondent No. 2 are the members16. By indirect means such as the one resorted to by the writ petitioner (appellant herein) by filing the writ petition, a dispute inter se private parties of the nature mentioned above could not be allowed to be raised in the writ petition under Article 226/227 of the Constitution for seeking issuance of mandamus against the State and its authorities in relation to the properties in question17. It is not in dispute that the appellant did not file the writ petition in his capacity as public¬ spirited person, i.e., Public Interest Litigation (PIL). It was, on the other hand, a writ petition was filed by the appellant essentially to settle his personal property rights disputes qua respondent Nos. 2 and 3. It is a settled law that no writ petition can be entertained for issuance of any writ against any private individual in respect of any private property dispute. The remedy in such case lies in civil Courts18. In other words, it is a settled law that the questions such as, who is the owner of the land in question, the appellant or respondent No. 2 or any other member of their family, whether the land in question was let out by respondent No. 2 to respondent No. 3 and, if so, when, why and for what purpose, who had the right to let out the said land (appellant or respondent No. 2 or any other member of the family), what was the arrangements, if any, made in the memorandum of settlement in relation to the land in question inter se members of the family, whether it was breached or not and, if so, by whom, what activities are being carried on the said land and, if so, by whom, whether such activities are legal or illegal etc. are not the questions which can be raised by any private individual against other private individual in the writ petition under Article 226 of the Constitution19. Even if the writ petitioner did not raise pointedly these questions for claiming reliefs in the writ petition yet, in our view, such questions have a material bearing while considering the grant of reliefs claimed by the writ petitioner in the writ petition20. It is not in dispute that some proceedings are pending before the Company Law Board between the parties in relation to their private property disputes. If that be so, the parties to such proceedings have to prosecute the proceedings before CLB in accordance with law for obtaining appropriate reliefs21. Before parting, we consider it apposite to mention that we have not expressed any opinion on the merits of the case. Rather, it is not possible to express any opinion for want of jurisdiction. The parties, therefore, will be at liberty to take recourse to all judicial remedies, as may be available to them in law, for adjudication of their respective grievances in appropriate judicial forum against each other22. Similarly, it is for the State authorities to see as to whether any person(s) has/have contravened or/and is/are contravening any provision(s) of any Act or Rules or Regulations or Statutory Schemes in any manner while using the properties and, if so, what action is called for qua such persons and against the activities carried on by such person(s) in law. We, however, express no opinion on any of these issues and leave it for the State authorities to act against any such person(s) in accordance with law23. We also make it clear that all such disputes between the parties concerned on its merits will be decided strictly in accordance with law by the Court/Tribunal/Authority, as the case may be, uninfluenced by any observation made by the High Court in the impugned order and by this Court in this order.
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Bhagwantrao Vs. Vishwasrao And Another | of the family, and his comment is that the "patelki inam" lands in Berar stand on a footing different from karnam service lands in Madras and there are decisions in which it has been held that co-shares have a right to a share in service grants in Berar. The first decision to which our attention has been drawn is Krishnarao v. Nilkantha, AIR 1922 Nag 52. That was a case of a jagir, and it was held that it came under the third class, and nothing regarding service was mentioned in the terms of the original sanad. The decision proceeded on the basis that the ordinary rule is that if persons are entitled beneficially to share in an estate, they may have a partition. It was further held that property consisting of an ordinary inam village was liable to partition at the suit of co-sharer except when it was held on a saranjam or other impartible tenure or where the terms of the grant impose a condition upon its enjoyment. We do not think that this decision establishes what the appellant is seeking to establish in this case, that is, that he has a share in the emoluments of the patels office. The next decision is that of the Privy Council in Subhan Ali v. Imami Begum, 21 Nag LR 117 : (AIR 1925 PC 184 ); all that was laid down there was that the devolution and incidents of an inam estate in Berar were regulated by the Inam Rules, 1859, but only in matters not mentioned in the sanad or certificate or other documents evidencing the special terms of the grant in the particular case. The fundamental question at issue there was one of construction, namely, whether the beneficial interest in the Inam granted to a common ancestor of the parties and continued by the British Government in 1866 passed under the terms of the grant then made to all heirs of the grantees according to Shia Mahomedan Law or whether the interest devolved on the male descendants only. It was not a service grant, and no question of a share in the emoluments of the patels office arose there. In Lakhamgouda Basavprubhu Sardesai v. Baswantrao, AIR 1931 PC 157 , the Privy Council pointed out the distinction between the granted of an office to be remunerated by the use of land and the grant of land burdened with service; it said that in the former case, the land would be prima facie resumable but not so in the latter case, unless the terms of the grant or the circumstances in which it was made established that it was resumable. In the case of Sahebrao Narayanrao v. Jaiwantrao Yadaorao, 29 Nag LR 210 : (AIR 1933 PC 171 ), the inam certificate issued to the head of the senior branch of a family of Deshmukh watandars stated that the village was granted "for personal maintenance to the claimant, his descendants and co-sharers"; accordingly, it was held that a co-sharer was entitled to possession of his share appearing from the inam statement. In Shrinivasrao v. Vinayakrao, ILR (1949) Nag 1 : (AIR 1949 PC 9 ), there was grant of two villages to the great-grandfather of the appellant and the respondent, who were brothers and "his lineal heirs" or "his successors". The question was whether primogeniture was to be the order of descent or the estate was impartible. It was held that the ordinary principles of Hindu Law were applicable and the earlier decision in 21 Nag LR 117 : (AIR 1925 PC 184 ), was referred to. Here again the grant was not a service grant, and no question of a claim of a share in the emoluments of office fell even for consideration, not to speak of decision. 17. We consider it unnecessary to multiply decisions. It is enough to state that no decision has been brought to our notice in which it has been held that a member of the patels family is entitled as of right to a share in the emoluments of the patels office and that Government has no right to resume "patelki inam" lands and regrant the same to the officiator. 18. It remains now to consider the special claim with regard to survey numbers 2/1A and 9/1A. The case of the appellant was that these two plots ceased to be inam lands, when they fell in the resumed portion of the Jagir; they were sold by Bannoobi Begum and Mahmudi Begum, the jagirdars, and the appellants and his brother Amrit brought suits and obtained decrees in respect of these two plots and in execution of the decrees they obtained possession. The learned trial Judge rightly point out that the decrees aforesaid related to property other than plots 2/1A and 9/1A. Moreover, it is not disputed that the entire "patelki inam" lands in possession of Amritrao Patel, including the plots which were made khalsa in 1904-05, were excluded from resumption and Amrits "patelki inam" lands were treated as a homogenous unit by the orders passed on August 28, 1922. The two plots, 2/1A and 9/1A, therefore, stand on the same footing as other "patelki inam" lands of Amritrao. 19. The claim of title by adverse possession can be disposed of in a few words. Once it is held that the lands were given by way of emoluments for the patels office, no question of title by adverse possession arises against Government, even though the lands were shown as excluded from the jagir of Nawabag in 1866. Amrit worked as patel till he died in 1920, and even though the appellant got possession by partition in 1923, it was open to Government to resume the lands in 1941 and regrant the same to respondent No. 1 The appellant can only succeed if he establishes that he had a right to a share in the "patelki inam" lands and Government had no right to resume the same. This the appellant has failed to establish. | 0[ds]5. As a result of a detailed enquiry, survey numbers 1 to 21 and 40 to 45 of the "patelki inam" lands fell in the resumed portion and survey numbers 22 to 39 were included in the jagir portion. As survey numbers 2/1A and 9/1A in possession of the Rokade family fell in the resumed portion, they were recorded as Khalsa and were assessed to revenue, while the remaining survey numbers viz. 29/1, 34/3, 36/2 and 37/2 continued to be in possession of the Rokade family free of assessment. There was another resumption proceeding in or about 1917 when it was discovered that the jagirdas had alienated lands falling in the jagir portion also. This time the lands resumed were not made Khalsa but were regranted to the jagirdars. As a result of this regrant the jagirdars thought that they were entitled to take possession of the "patelki inam" lands of the Rokade family also. This led to some more revenue proceedings, and we come now to one of the important documents in this case, viz, a letter dated August 28, 1922, by which sanction of Government was conveyed to the6. Now, apart from the alternative claim with regard to survey numbers 2/1A and 9/1A and the claim of title by adverse possession, which claims we shall consider later, the principal question which falls for decision in this appeal, is the true nature of these "patelki inam" lands; do they constitute a grant by way of remuneration or emoluments of the patels office by the use of the lands, as found by the High Court, or do they constitute a grant of land to the patelki family burdened with service and so long as the service is performed by any member of the family, the lands are joint family lands subject to partition etc., among the members of the family? On behalf of the appellant, it has been very strongly contended before us that the finding of the High Court on this point is wrong. On this part of the case learned counsel for the appellant has made a four-fold submission; firstly, that the rights which the Rokade family had in these lands were rights of dealing with the property as owners, subject to a member of the family rendering patelki service; or in other words, the grant was a grant of land burdened with service, secondly, the grant was made by the jagirdar of village Nawabag and not by the sovereign authority and neither the Inam Rules, nor the provisions of the Patels and Patwaris Law, 1900 applied; thirdly, even if the aforesaid Rules and provisions applied, the appellant still retained his herditary rights in the lands; and fourthly, the orders of Government dated August 28, 1922, did not confer any new right nor did they deprive anybody of any subsisting right in respect of the "petelki inam" lands and Government had no right to resume the lands and regrant them to respondent No. 18. There is, therefore, overwhelming evidence in this case to show that the patelki inams were separate from and independent of the jagir of Nawabag, though the lands lay within the jagir village9. This brings us to the more important question-what is the true character of the "patel inam" lands of this case? On this point also, we think that there is clear and unimpeachable evidence in support of the finding of the High Court. We have already referred to the Kararnama of 1771 and the inam entry of 1866. If the grants were a grant of land to the patelki families burdened with service, it is difficult to understand how there could arise a dispute about remuneration between the jagirdars and patels and why the remuneration of 1 1/2 bighas per netan should be fixed from year to year., In a revenue case of 1908 Amrit Patel had himself stated that the land was given to his ancestors in lieu of patelki huq and it should not be assessed to land revenue. Even in his plaint, the appellant had asserted that the "Patels were given certain lands out of the jagir village for their working as patels and for discharging other duties." There is another important document in this connection. In the second resumption proceedings of 1917 Government had first decided to resume the jagir and regrant it to the then Jagirdar Amerulla Khan. In the orders passed (Ex. 1D-18) it was stated that the Jagirdars would be at liberty to allow the working patels to hold such lands as were considered reasonable by the Deputy Commissioner free of revenue and in lieu of mushahara (emoluments or wages). It is important to note that everybody understood then that the "patelki inam" was in lieu of wages or emoluments for the office of patel. These orders led to an enquiry, and Amritrao made a statement that he was holding survey numbers 26, 27, 29, 34, 36 and 37 in lieu of patelki emoluments. He said that he was even willing to hold 4 acres 17 gunthas of survey No. 27 in lieu of his emoluments. It appears that the Sub-divisional officer then recommended that Amrit Patel should be given only 4 acres 17 gunthas, as emoluments for his office. Later, an application was made on behalf of Amrit17. We consider it unnecessary to multiply decisions. It is enough to state that no decision has been brought to our notice in which it has been held that a member of the patels family is entitled as of right to a share in the emoluments of the patels office and that Government has no right to resume "patelki inam" lands and regrant the same to the officiator18. It remains now to consider the special claim with regard to survey numbers 2/1A and 9/1A. The case of the appellant was that these two plots ceased to be inam lands, when they fell in the resumed portion of the Jagir; they were sold by Bannoobi Begum and Mahmudi Begum, the jagirdars, and the appellants and his brother Amrit brought suits and obtained decrees in respect of these two plots and in execution of the decrees they obtained possession. The learned trial Judge rightly point out that the decrees aforesaid related to property other than plots 2/1A and 9/1A. Moreover, it is not disputed that the entire "patelki inam" lands in possession of Amritrao Patel, including the plots which were made khalsa in 1904-05, were excluded from resumption and Amrits "patelki inam" lands were treated as a homogenous unit by the orders passed on August 28, 1922. The two plots, 2/1A and 9/1A, therefore, stand on the same footing as other "patelki inam" lands of Amritrao19. The claim of title by adverse possession can be disposed of in a few words. Once it is held that the lands were given by way of emoluments for the patels office, no question of title by adverse possession arises against Government, even though the lands were shown as excluded from the jagir of Nawabag in 1866. Amrit worked as patel till he died in 1920, and even though the appellant got possession by partition in 1923, it was open to Government to resume the lands in 1941 and regrant the same to respondent No. 1 The appellant can only succeed if he establishes that he had a right to a share in the "patelki inam" lands and Government had no right to resume the same. This the appellant has failed to establish. | 0 | 6,855 | 1,386 | ### 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 family, and his comment is that the "patelki inam" lands in Berar stand on a footing different from karnam service lands in Madras and there are decisions in which it has been held that co-shares have a right to a share in service grants in Berar. The first decision to which our attention has been drawn is Krishnarao v. Nilkantha, AIR 1922 Nag 52. That was a case of a jagir, and it was held that it came under the third class, and nothing regarding service was mentioned in the terms of the original sanad. The decision proceeded on the basis that the ordinary rule is that if persons are entitled beneficially to share in an estate, they may have a partition. It was further held that property consisting of an ordinary inam village was liable to partition at the suit of co-sharer except when it was held on a saranjam or other impartible tenure or where the terms of the grant impose a condition upon its enjoyment. We do not think that this decision establishes what the appellant is seeking to establish in this case, that is, that he has a share in the emoluments of the patels office. The next decision is that of the Privy Council in Subhan Ali v. Imami Begum, 21 Nag LR 117 : (AIR 1925 PC 184 ); all that was laid down there was that the devolution and incidents of an inam estate in Berar were regulated by the Inam Rules, 1859, but only in matters not mentioned in the sanad or certificate or other documents evidencing the special terms of the grant in the particular case. The fundamental question at issue there was one of construction, namely, whether the beneficial interest in the Inam granted to a common ancestor of the parties and continued by the British Government in 1866 passed under the terms of the grant then made to all heirs of the grantees according to Shia Mahomedan Law or whether the interest devolved on the male descendants only. It was not a service grant, and no question of a share in the emoluments of the patels office arose there. In Lakhamgouda Basavprubhu Sardesai v. Baswantrao, AIR 1931 PC 157 , the Privy Council pointed out the distinction between the granted of an office to be remunerated by the use of land and the grant of land burdened with service; it said that in the former case, the land would be prima facie resumable but not so in the latter case, unless the terms of the grant or the circumstances in which it was made established that it was resumable. In the case of Sahebrao Narayanrao v. Jaiwantrao Yadaorao, 29 Nag LR 210 : (AIR 1933 PC 171 ), the inam certificate issued to the head of the senior branch of a family of Deshmukh watandars stated that the village was granted "for personal maintenance to the claimant, his descendants and co-sharers"; accordingly, it was held that a co-sharer was entitled to possession of his share appearing from the inam statement. In Shrinivasrao v. Vinayakrao, ILR (1949) Nag 1 : (AIR 1949 PC 9 ), there was grant of two villages to the great-grandfather of the appellant and the respondent, who were brothers and "his lineal heirs" or "his successors". The question was whether primogeniture was to be the order of descent or the estate was impartible. It was held that the ordinary principles of Hindu Law were applicable and the earlier decision in 21 Nag LR 117 : (AIR 1925 PC 184 ), was referred to. Here again the grant was not a service grant, and no question of a claim of a share in the emoluments of office fell even for consideration, not to speak of decision. 17. We consider it unnecessary to multiply decisions. It is enough to state that no decision has been brought to our notice in which it has been held that a member of the patels family is entitled as of right to a share in the emoluments of the patels office and that Government has no right to resume "patelki inam" lands and regrant the same to the officiator. 18. It remains now to consider the special claim with regard to survey numbers 2/1A and 9/1A. The case of the appellant was that these two plots ceased to be inam lands, when they fell in the resumed portion of the Jagir; they were sold by Bannoobi Begum and Mahmudi Begum, the jagirdars, and the appellants and his brother Amrit brought suits and obtained decrees in respect of these two plots and in execution of the decrees they obtained possession. The learned trial Judge rightly point out that the decrees aforesaid related to property other than plots 2/1A and 9/1A. Moreover, it is not disputed that the entire "patelki inam" lands in possession of Amritrao Patel, including the plots which were made khalsa in 1904-05, were excluded from resumption and Amrits "patelki inam" lands were treated as a homogenous unit by the orders passed on August 28, 1922. The two plots, 2/1A and 9/1A, therefore, stand on the same footing as other "patelki inam" lands of Amritrao. 19. The claim of title by adverse possession can be disposed of in a few words. Once it is held that the lands were given by way of emoluments for the patels office, no question of title by adverse possession arises against Government, even though the lands were shown as excluded from the jagir of Nawabag in 1866. Amrit worked as patel till he died in 1920, and even though the appellant got possession by partition in 1923, it was open to Government to resume the lands in 1941 and regrant the same to respondent No. 1 The appellant can only succeed if he establishes that he had a right to a share in the "patelki inam" lands and Government had no right to resume the same. This the appellant has failed to establish.
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of the patels office by the use of the lands, as found by the High Court, or do they constitute a grant of land to the patelki family burdened with service and so long as the service is performed by any member of the family, the lands are joint family lands subject to partition etc., among the members of the family? On behalf of the appellant, it has been very strongly contended before us that the finding of the High Court on this point is wrong. On this part of the case learned counsel for the appellant has made a four-fold submission; firstly, that the rights which the Rokade family had in these lands were rights of dealing with the property as owners, subject to a member of the family rendering patelki service; or in other words, the grant was a grant of land burdened with service, secondly, the grant was made by the jagirdar of village Nawabag and not by the sovereign authority and neither the Inam Rules, nor the provisions of the Patels and Patwaris Law, 1900 applied; thirdly, even if the aforesaid Rules and provisions applied, the appellant still retained his herditary rights in the lands; and fourthly, the orders of Government dated August 28, 1922, did not confer any new right nor did they deprive anybody of any subsisting right in respect of the "petelki inam" lands and Government had no right to resume the lands and regrant them to respondent No. 18. There is, therefore, overwhelming evidence in this case to show that the patelki inams were separate from and independent of the jagir of Nawabag, though the lands lay within the jagir village9. This brings us to the more important question-what is the true character of the "patel inam" lands of this case? On this point also, we think that there is clear and unimpeachable evidence in support of the finding of the High Court. We have already referred to the Kararnama of 1771 and the inam entry of 1866. If the grants were a grant of land to the patelki families burdened with service, it is difficult to understand how there could arise a dispute about remuneration between the jagirdars and patels and why the remuneration of 1 1/2 bighas per netan should be fixed from year to year., In a revenue case of 1908 Amrit Patel had himself stated that the land was given to his ancestors in lieu of patelki huq and it should not be assessed to land revenue. Even in his plaint, the appellant had asserted that the "Patels were given certain lands out of the jagir village for their working as patels and for discharging other duties." There is another important document in this connection. In the second resumption proceedings of 1917 Government had first decided to resume the jagir and regrant it to the then Jagirdar Amerulla Khan. In the orders passed (Ex. 1D-18) it was stated that the Jagirdars would be at liberty to allow the working patels to hold such lands as were considered reasonable by the Deputy Commissioner free of revenue and in lieu of mushahara (emoluments or wages). It is important to note that everybody understood then that the "patelki inam" was in lieu of wages or emoluments for the office of patel. These orders led to an enquiry, and Amritrao made a statement that he was holding survey numbers 26, 27, 29, 34, 36 and 37 in lieu of patelki emoluments. He said that he was even willing to hold 4 acres 17 gunthas of survey No. 27 in lieu of his emoluments. It appears that the Sub-divisional officer then recommended that Amrit Patel should be given only 4 acres 17 gunthas, as emoluments for his office. Later, an application was made on behalf of Amrit17. We consider it unnecessary to multiply decisions. It is enough to state that no decision has been brought to our notice in which it has been held that a member of the patels family is entitled as of right to a share in the emoluments of the patels office and that Government has no right to resume "patelki inam" lands and regrant the same to the officiator18. It remains now to consider the special claim with regard to survey numbers 2/1A and 9/1A. The case of the appellant was that these two plots ceased to be inam lands, when they fell in the resumed portion of the Jagir; they were sold by Bannoobi Begum and Mahmudi Begum, the jagirdars, and the appellants and his brother Amrit brought suits and obtained decrees in respect of these two plots and in execution of the decrees they obtained possession. The learned trial Judge rightly point out that the decrees aforesaid related to property other than plots 2/1A and 9/1A. Moreover, it is not disputed that the entire "patelki inam" lands in possession of Amritrao Patel, including the plots which were made khalsa in 1904-05, were excluded from resumption and Amrits "patelki inam" lands were treated as a homogenous unit by the orders passed on August 28, 1922. The two plots, 2/1A and 9/1A, therefore, stand on the same footing as other "patelki inam" lands of Amritrao19. The claim of title by adverse possession can be disposed of in a few words. Once it is held that the lands were given by way of emoluments for the patels office, no question of title by adverse possession arises against Government, even though the lands were shown as excluded from the jagir of Nawabag in 1866. Amrit worked as patel till he died in 1920, and even though the appellant got possession by partition in 1923, it was open to Government to resume the lands in 1941 and regrant the same to respondent No. 1 The appellant can only succeed if he establishes that he had a right to a share in the "patelki inam" lands and Government had no right to resume the same. This the appellant has failed to establish.
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Shree Satish Prabhakar Padhye Vs. Union of India, Through The Secretary, Ministry of Law Justice & Company Affairs (Legislative Department) & Others | the living and does not beat its abstract wings in the jural void. Its functional fulfilment as social engineering depends on its sensitized response to situation, subject-matter and the complex of realities which require ordered control. A holistic understanding is simple justice to the meaning of all legislations. Fragmentary grasp of rules can misfire or even backfire as in this case."Upon considering as to how the narrow interpretation resulted in a situation so as "to see the skin and miss the soul of the Regulation," it was observed that it resulted in over judicialisation which could be subversive of the justice of the law.51. It has been contended on behalf of the Respondent that the marginal note to Section 47 gives a complete answer to excluding the Petitioner from the purview of the Act. The marginal note is "non-discrimination in Government employment". It is therefore contended that the requirement of not dispensing with the services of an employee who acquires the disability is for employees in Government employment. It can be seen that in this Section the marginal note is entirely out of contest. The Chapter under which Section 47 falls is Chapter VIII on "non-discrimination". The marginal notes to each of the Sections in Chapter VIII begin with "non-discrimination". The Chapter therefore deals with non-discrimination and transport (Section 44) non-discrimination on the road (Section 45), non-discrimination in built environment (Section 46) and non-discrimination in, what is called, "Government Employment" (Section 47). However, the Section itself does not begin with the expression "In any employment under appropriate Government or Local Authority....". It deals with "Establishment". It further deals with mandatory directions for persons already in employment. The proviso of Sub-Section 2 of Section 47 gives power to the appropriate Government to exempt any Establishment from the provisions of that Section. That proviso therefore, gives a clue to what an Establishment is - it is an undertaking which is not only a Government undertaking. It deals with employment of persons not only therein - otherwise the appropriate Government would exempt Government itself. 52. It may again be mentioned that in this light Section 47 must be contrasted with Section 33 of the Act under the Chapter of "employment". Hence, the mandate for reservation of the posts to the extent of 3% is only for appropriate Government. As against that, the directions for all the persons already employed is for all the Establishments under Section 47.53. The interpretation of the marginal note and its reading along with the main Section has been considered in a number of Judgments brought to our notice by Mr. Paralikar. In the earliest of those cases it was held by the Privy Council in the case of Emperor Vs. Sadashiv Narayan Bhalerao reported in A.I.R. 1947 Privy Council page 82 relating to the marginal note titled "Sedition" in Rule 124(a) of Defence of India Rules 1939 it was held that it cannot restrict the contents of the Section. It dealt with whether or not a sketch given by the Appellant Constituted a prejudicial Act within the meaning of those Rules. It was held that the two were different aspects and one could not restrict another by different expressions in the Rule and its marginal note.54. Further in the case of Nalinakhya Bysack Vs. Shyam Sunder Haldar reported in A.I.R.1953 Supreme Court, page 148. It has been held that:"Marginal note cannot control the Marginal note cannot control the Marginal note cannot control the meaning of the body of the section meaning of the body of the section meaning of the body of the section if the language employed therein is clear and unambiguous. If the language of the section is clear then it may be that there is an accidental slip in the marginal note rather than that the marginal note is correct and the accidental slip is in the body of the section itself."(Emphasis supplied)55. In the Constitutional Bench Judgment in the case of State of Bombay Vs. Bombay Education Society State of Bombay Vs. Bombay Education Society State of Bombay Vs. Bombay Education Society reported in A.I.R. 1954 Supreme Court 561, the marginal note of Article 29(2) of the Constitution and its contents came up for consideration. It was held that though the marginal note of the said Article was "Protection of Interest of Minorities", it was held that under Article 29(2) all citizens were conferred a special right for admissions into Education Institutions maintained or aided by the State. Such a right was not available only to citizens belonging to minority groups as they would then obtain double protection. It was available to all. 56. Similarly it is seen that Section 47 interpreted as above would confer rights upon the Petitioner, notwithstanding the marginal note mentioning only Government employment. 57. Upon such interpretation, there can be no doubt that Respondent No.5 is an Establishment as defined under Section 2(k) of the Act. Consequently Respondent No.5 is enjoined not to dispense with the services of the Petitioner or to reduce him in rank upon his having acquired disability during his service (and in fact he having acquired the said disability during service.) The Respondent No.5 is therefore bound to continue the services of the Petitioner or shift him to some other post with the same pay scale and service benefits in their Establishment. The Respondent No.5 is also bound to disburse the back-wages to the Petitioner from 1st January 2001, the date from which his services were dispensed with. 58. It may be mentioned that any such other post that may be offered to the Petitioner under the legislative mandate by Respondent NO.5 may be identified by Respondent No.5 That would meet the noble and humanist purpose and intent of the legislation which is itself in terms of the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Regions, which includes our Country. It should be as far as possible a post with equivalent pay and service conditions. | 1[ds]40. The case of the Petitioner therefore, goes further on humanitarian grounds. Having been employed in the foundry of Respondent No.5 and having had to work without acabin, and having had to discharge his duties as a Telephone Operator only with Auditory Modality usage, which solely caused his disability, the Petitioner deserves, even without the protection of the Act a shift in his posting after having put in about 23 years of service. It is a matter of regret that Respondentthinks otherwise. 41. It can therefore be seen that the scheme of the Act encompasses measures to be taken in a wide ambit. It is not confined to the measures to be taken by the State alone. Depending upon the gravity and strength of the measures, the duties and responsibilities are fixed either upon the Appropriate Governments alone or upon Appropriate Governments with Local Bodies or upon all the Establishments and even all Educational Institutions.42. The interpretation of the Act which is such a beneficent Socio Economic Legislation is required to be made such as to enhance its purport and object and make it available to all the disabled persons who would be beneficiaries under the Act. 43. The Advocate for the Petitioner has drawn our attention to various Judgments relating to such interpretation of other Socio Economic Legislations. In the case of Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation reported in A.I.R. 1986 S.C. 458, the principles of such interpretation are laid downoccurring in statutes of liberal import such as a social welfare legislation and Human Rights" legislation are not to be put in procrustean beds or shrunk to Lilliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognised and reduced. Judges ought to be more concerned with the "colour", the "content" and the "context" of such statues.(We have borrowed the words from Lord Wilberforces opinion in Prenn Vs. Simmonds, 1971 (3) All ER 237). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surendra Kumar Verma Vs. Central Govt. IndustrialCourt, we had occasion to say "Semantic luxuries are misplaced in the interpretation of "bread and butter" statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions."44. Such liberal construction of expressions in such Statutes, as against literal construction, requires the Court to include within the definition of the term "Establishment", all the Corporations which are Bodies Corporate Established either by or under either a Central, Provincial or a State Act including the Indian Companies Act I of 1956. It may be mentioned that only such Corporations in the Transport Sector would require to provide the facilities mentioned in Section 44 of the Act which are required to be within the limits of their economic capacity and development. Similarly such Corporations would be required to continue providing employment to those who were employed with them and thereafter acquired disability either in the same post or by shifting them to any other posts with the same pay scales and service benefits except if they are exempted by the Appropriate Government, regard being at to the type of work in that Corporation.45. The interpretation of the Dowry Prohibition Act which is also a Social Legislation has been similarly given by the Honourable Supreme Court in the case of S. Gopal Reddy Vs. State of Andhra Pradesh reported in A.I.R. 1996 S.C. 2184 drawing on the observations made in the earlier Supreme Court Judgment in the case of Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd. reported in A.I.R. 1987 Supreme Court 1023. It was observed that the Statute is best interpreted when we know why it was enacted and when the statute is looked at without the glasses provided by the context.The observation quoted in that Judgment runs thus:"With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."46. For interpreting a particular word in a judgment the observations of Lord Denning in the case of Seaford Court Estates Ltd. Vs. Asher reported in 1949 to All ER 155 (CA) cited in the aforesaid Judgments (supra) deserve to be looked into.Those observations runEnglish language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftment of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the 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 so 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 the creases."47. It may be mentioned that in the above judgment in the case of S. Gopal Reddy (supra) the interpretation of the term "dowry" in Dowry Prohibition Act, included the giving and taking of dowry before the marriage. The narrow interpretation that the Act did not apply until the boy and girl became the bridegroom and bride respectively was not taken. Upon the meaning of "dowry" being considered as property or valuable security given or agreed to be given either directly or indirectly, it was held that the expression must be liberally construed to include demands made before and after marriage.48. It can therefore, be seen that the word "Establishment" needs to be interpreted taking into account the intention of the Legislature to provide succour and benefits not only to the few disabled who would be employed in Government services but, as per the spirit of theProclamation to take its Sweep to as many as disabled persons in different walks of life and requiring different treatment and facilities in the countries which were signatories to the Proclamation as ours.49. Mr.Paralikar, learned Counsel on behalf of the Applicant, has further drawn our attention to the Judgment of the Honourable Supreme Court in the case of Regional Executive, Kerala Fishermens Welfare Fund Board Vs. M/s. Fancy Food and another reported in AIR 1995 Supreme Court 1620 in which the expression "processing for export" came up for interpretation. It was observed under the Kerala Fishermen Welfare Fund Act that the Dealer would be covered by that expression, since they were concerned with one of the steps leading to the export of fish. That Act was passed to upgrade the then traditional, miserable and pathetic condition of theand illiterate fishermen. In keeping with the object of the Act to ameliorate their bad condition one of the processes leading to export which included the function of the dealers was held to come within the purview of the expression "processing for export". It is in the same spirit that the expression "Establishment" in the present statute would require coverage. 50. In a judgment in the case of The Chairman, Board of Mining Examination and Chief Inspector of Mines Vs. Ramjee reported in AIR 1977 Supreme Court 965 Honourable Justice Krishna Iyer has elucidated the opinion of the Honourable Supreme Court under the perspective of "Social efficaciousness". In paragraph 5 of that Judgment whilst considering and striking down the narrow interpretation upon the procedure laid down under the Coal Mines Regulations (1957) by Madhya Pradesh High Court, it has been observed thus:"Law is meant to serve the living and does not beat its abstract wings in the jural void. Its functional fulfilment as social engineering depends on its sensitized response to situation,and the complex of realities which require ordered control. A holistic understanding is simple justice to the meaning of all legislations. Fragmentary grasp of rules can misfire or even backfire as in this case."Upon considering as to how the narrow interpretation resulted in a situation so as "to see the skin and miss the soul of the Regulation," it was observed that it resulted in over judicialisation which could be subversive of the justice of the law.51. It has been contended on behalf of the Respondent that the marginal note to Section 47 gives a complete answer to excluding the Petitioner from the purview of the Act. The marginal note isin Government employment". It is therefore contended that the requirement of not dispensing with the services of an employee who acquires the disability is for employees in Government employment. It can be seen that in this Section the marginal note is entirely out of contest. The Chapter under which Section 47 falls is Chapter VIII onThe marginal notes to each of the Sections in Chapter VIII begin withThe Chapter therefore deals withand transport (Section 44)on the road (Section 45),in built environment (Section 46) andin, what is called, "Government Employment" (Section 47). However, the Section itself does not begin with the expression "In any employment under appropriate Government or Local Authority....". It deals with "Establishment". It further deals with mandatory directions for persons already in employment. The proviso of2 of Section 47 gives power to the appropriate Government to exempt any Establishment from the provisions of that Section. That proviso therefore, gives a clue to what an Establishment isit is an undertaking which is not only a Government undertaking. It deals with employment of persons not only thereinotherwise the appropriate Government would exempt Government itself. 52. It may again be mentioned that in this light Section 47 must be contrasted with Section 33 of the Act under the Chapter of "employment". Hence, the mandate for reservation of the posts to the extent of 3% is only for appropriate Government. As against that, the directions for all the persons already employed is for all the Establishments under Section 47.53. The interpretation of the marginal note and its reading along with the main Section has been considered in a number of Judgments brought to our notice by Mr. Paralikar. In the earliest of those cases it was held by the Privy Council in the case of Emperor Vs. Sadashiv Narayan Bhalerao reported in A.I.R. 1947 Privy Council page 82 relating to the marginal note titled "Sedition" in Rule 124(a) of Defence of India Rules 1939 it was held that it cannot restrict the contents of the Section. It dealt with whether or not a sketch given by the Appellant Constituted a prejudicial Act within the meaning of those Rules. It was held that the two were different aspects and one could not restrict another by different expressions in the Rule and its marginal note.54. Further in the case of Nalinakhya Bysack Vs. Shyam Sunder Haldar reported in A.I.R.1953 Supreme Court, page 148. It has been held that:"Marginal note cannot control the Marginal note cannot control the Marginal note cannot control the meaning of the body of the section meaning of the body of the section meaning of the body of the section if the language employed therein is clear and unambiguous. If the language of the section is clear then it may be that there is an accidental slip in the marginal note rather than that the marginal note is correct and the accidental slip is in the body of the section itself."(Emphasis supplied)55. In the Constitutional Bench Judgment in the case of State of Bombay Vs. Bombay Education Society State of Bombay Vs. Bombay Education Society State of Bombay Vs. Bombay Education Society reported in A.I.R. 1954 Supreme Court 561, the marginal note of Article 29(2) of the Constitution and its contents came up for consideration. It was held that though the marginal note of the said Article was "Protection of Interest of Minorities", it was held that under Article 29(2) all citizens were conferred a special right for admissions into Education Institutions maintained or aided by the State. Such a right was not available only to citizens belonging to minority groups as they would then obtain double protection. It was available to all. 56. Similarly it is seen that Section 47 interpreted as above would confer rights upon the Petitioner, notwithstanding the marginal note mentioning only Government employment. 57. Upon such interpretation, there can be no doubt that Respondent No.5 is an Establishment as defined under Section 2(k) of the Act. Consequently Respondent No.5 is enjoined not to dispense with the services of the Petitioner or to reduce him in rank upon his having acquired disability during his service (and in fact he having acquired the said disability during service.) The Respondent No.5 is therefore bound to continue the services of the Petitioner or shift him to some other post with the same pay scale and service benefits in their Establishment. The Respondent No.5 is also bound to disburse theto the Petitioner from 1st January 2001, the date from which his services were dispensed with. 58. It may be mentioned that any such other post that may be offered to the Petitioner under the legislative mandate by Respondent NO.5 may be identified by Respondent No.5 That would meet the noble and humanist purpose and intent of the legislation which is itself in terms of the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Regions, which includes our Country. It should be as far as possible a post with equivalent pay and service conditions. | 1 | 7,512 | 2,759 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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the living and does not beat its abstract wings in the jural void. Its functional fulfilment as social engineering depends on its sensitized response to situation, subject-matter and the complex of realities which require ordered control. A holistic understanding is simple justice to the meaning of all legislations. Fragmentary grasp of rules can misfire or even backfire as in this case."Upon considering as to how the narrow interpretation resulted in a situation so as "to see the skin and miss the soul of the Regulation," it was observed that it resulted in over judicialisation which could be subversive of the justice of the law.51. It has been contended on behalf of the Respondent that the marginal note to Section 47 gives a complete answer to excluding the Petitioner from the purview of the Act. The marginal note is "non-discrimination in Government employment". It is therefore contended that the requirement of not dispensing with the services of an employee who acquires the disability is for employees in Government employment. It can be seen that in this Section the marginal note is entirely out of contest. The Chapter under which Section 47 falls is Chapter VIII on "non-discrimination". The marginal notes to each of the Sections in Chapter VIII begin with "non-discrimination". The Chapter therefore deals with non-discrimination and transport (Section 44) non-discrimination on the road (Section 45), non-discrimination in built environment (Section 46) and non-discrimination in, what is called, "Government Employment" (Section 47). However, the Section itself does not begin with the expression "In any employment under appropriate Government or Local Authority....". It deals with "Establishment". It further deals with mandatory directions for persons already in employment. The proviso of Sub-Section 2 of Section 47 gives power to the appropriate Government to exempt any Establishment from the provisions of that Section. That proviso therefore, gives a clue to what an Establishment is - it is an undertaking which is not only a Government undertaking. It deals with employment of persons not only therein - otherwise the appropriate Government would exempt Government itself. 52. It may again be mentioned that in this light Section 47 must be contrasted with Section 33 of the Act under the Chapter of "employment". Hence, the mandate for reservation of the posts to the extent of 3% is only for appropriate Government. As against that, the directions for all the persons already employed is for all the Establishments under Section 47.53. The interpretation of the marginal note and its reading along with the main Section has been considered in a number of Judgments brought to our notice by Mr. Paralikar. In the earliest of those cases it was held by the Privy Council in the case of Emperor Vs. Sadashiv Narayan Bhalerao reported in A.I.R. 1947 Privy Council page 82 relating to the marginal note titled "Sedition" in Rule 124(a) of Defence of India Rules 1939 it was held that it cannot restrict the contents of the Section. It dealt with whether or not a sketch given by the Appellant Constituted a prejudicial Act within the meaning of those Rules. It was held that the two were different aspects and one could not restrict another by different expressions in the Rule and its marginal note.54. Further in the case of Nalinakhya Bysack Vs. Shyam Sunder Haldar reported in A.I.R.1953 Supreme Court, page 148. It has been held that:"Marginal note cannot control the Marginal note cannot control the Marginal note cannot control the meaning of the body of the section meaning of the body of the section meaning of the body of the section if the language employed therein is clear and unambiguous. If the language of the section is clear then it may be that there is an accidental slip in the marginal note rather than that the marginal note is correct and the accidental slip is in the body of the section itself."(Emphasis supplied)55. In the Constitutional Bench Judgment in the case of State of Bombay Vs. Bombay Education Society State of Bombay Vs. Bombay Education Society State of Bombay Vs. Bombay Education Society reported in A.I.R. 1954 Supreme Court 561, the marginal note of Article 29(2) of the Constitution and its contents came up for consideration. It was held that though the marginal note of the said Article was "Protection of Interest of Minorities", it was held that under Article 29(2) all citizens were conferred a special right for admissions into Education Institutions maintained or aided by the State. Such a right was not available only to citizens belonging to minority groups as they would then obtain double protection. It was available to all. 56. Similarly it is seen that Section 47 interpreted as above would confer rights upon the Petitioner, notwithstanding the marginal note mentioning only Government employment. 57. Upon such interpretation, there can be no doubt that Respondent No.5 is an Establishment as defined under Section 2(k) of the Act. Consequently Respondent No.5 is enjoined not to dispense with the services of the Petitioner or to reduce him in rank upon his having acquired disability during his service (and in fact he having acquired the said disability during service.) The Respondent No.5 is therefore bound to continue the services of the Petitioner or shift him to some other post with the same pay scale and service benefits in their Establishment. The Respondent No.5 is also bound to disburse the back-wages to the Petitioner from 1st January 2001, the date from which his services were dispensed with. 58. It may be mentioned that any such other post that may be offered to the Petitioner under the legislative mandate by Respondent NO.5 may be identified by Respondent No.5 That would meet the noble and humanist purpose and intent of the legislation which is itself in terms of the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Regions, which includes our Country. It should be as far as possible a post with equivalent pay and service conditions.
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the procedure laid down under the Coal Mines Regulations (1957) by Madhya Pradesh High Court, it has been observed thus:"Law is meant to serve the living and does not beat its abstract wings in the jural void. Its functional fulfilment as social engineering depends on its sensitized response to situation,and the complex of realities which require ordered control. A holistic understanding is simple justice to the meaning of all legislations. Fragmentary grasp of rules can misfire or even backfire as in this case."Upon considering as to how the narrow interpretation resulted in a situation so as "to see the skin and miss the soul of the Regulation," it was observed that it resulted in over judicialisation which could be subversive of the justice of the law.51. It has been contended on behalf of the Respondent that the marginal note to Section 47 gives a complete answer to excluding the Petitioner from the purview of the Act. The marginal note isin Government employment". It is therefore contended that the requirement of not dispensing with the services of an employee who acquires the disability is for employees in Government employment. It can be seen that in this Section the marginal note is entirely out of contest. The Chapter under which Section 47 falls is Chapter VIII onThe marginal notes to each of the Sections in Chapter VIII begin withThe Chapter therefore deals withand transport (Section 44)on the road (Section 45),in built environment (Section 46) andin, what is called, "Government Employment" (Section 47). However, the Section itself does not begin with the expression "In any employment under appropriate Government or Local Authority....". It deals with "Establishment". It further deals with mandatory directions for persons already in employment. The proviso of2 of Section 47 gives power to the appropriate Government to exempt any Establishment from the provisions of that Section. That proviso therefore, gives a clue to what an Establishment isit is an undertaking which is not only a Government undertaking. It deals with employment of persons not only thereinotherwise the appropriate Government would exempt Government itself. 52. It may again be mentioned that in this light Section 47 must be contrasted with Section 33 of the Act under the Chapter of "employment". Hence, the mandate for reservation of the posts to the extent of 3% is only for appropriate Government. As against that, the directions for all the persons already employed is for all the Establishments under Section 47.53. The interpretation of the marginal note and its reading along with the main Section has been considered in a number of Judgments brought to our notice by Mr. Paralikar. In the earliest of those cases it was held by the Privy Council in the case of Emperor Vs. Sadashiv Narayan Bhalerao reported in A.I.R. 1947 Privy Council page 82 relating to the marginal note titled "Sedition" in Rule 124(a) of Defence of India Rules 1939 it was held that it cannot restrict the contents of the Section. It dealt with whether or not a sketch given by the Appellant Constituted a prejudicial Act within the meaning of those Rules. It was held that the two were different aspects and one could not restrict another by different expressions in the Rule and its marginal note.54. Further in the case of Nalinakhya Bysack Vs. Shyam Sunder Haldar reported in A.I.R.1953 Supreme Court, page 148. It has been held that:"Marginal note cannot control the Marginal note cannot control the Marginal note cannot control the meaning of the body of the section meaning of the body of the section meaning of the body of the section if the language employed therein is clear and unambiguous. If the language of the section is clear then it may be that there is an accidental slip in the marginal note rather than that the marginal note is correct and the accidental slip is in the body of the section itself."(Emphasis supplied)55. In the Constitutional Bench Judgment in the case of State of Bombay Vs. Bombay Education Society State of Bombay Vs. Bombay Education Society State of Bombay Vs. Bombay Education Society reported in A.I.R. 1954 Supreme Court 561, the marginal note of Article 29(2) of the Constitution and its contents came up for consideration. It was held that though the marginal note of the said Article was "Protection of Interest of Minorities", it was held that under Article 29(2) all citizens were conferred a special right for admissions into Education Institutions maintained or aided by the State. Such a right was not available only to citizens belonging to minority groups as they would then obtain double protection. It was available to all. 56. Similarly it is seen that Section 47 interpreted as above would confer rights upon the Petitioner, notwithstanding the marginal note mentioning only Government employment. 57. Upon such interpretation, there can be no doubt that Respondent No.5 is an Establishment as defined under Section 2(k) of the Act. Consequently Respondent No.5 is enjoined not to dispense with the services of the Petitioner or to reduce him in rank upon his having acquired disability during his service (and in fact he having acquired the said disability during service.) The Respondent No.5 is therefore bound to continue the services of the Petitioner or shift him to some other post with the same pay scale and service benefits in their Establishment. The Respondent No.5 is also bound to disburse theto the Petitioner from 1st January 2001, the date from which his services were dispensed with. 58. It may be mentioned that any such other post that may be offered to the Petitioner under the legislative mandate by Respondent NO.5 may be identified by Respondent No.5 That would meet the noble and humanist purpose and intent of the legislation which is itself in terms of the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Regions, which includes our Country. It should be as far as possible a post with equivalent pay and service conditions.
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The Jumma Masjid, Mercara Vs. Kodimaniandra Deviah | Judges were further of the opinion that in view of the decision of the Privy Council in Annanda Mohan Roy v. Gour Mohan Mullick, 50 Ind App 239 : ILR 50 Cal 929 : (AIR1923 PC 189) and the decision in Lakshmi Narayana Jagannada Raju v. Varada Lakshmi Narasimha, ILR 39 Mad 554 : (AIR 1916 Mad 579) which was approved therein, the illustration to S. 43 must be rejected as repugnant to it. In Jagannada Rajus case, ILR 39 Mad 554 : (AIR 1916 Mad 579) the question was whether a contract entered into by certain presumptive reversioners to sell the estate which was then held by a widow as heir could be specifically enforced, after the succession had opened. It was held that as S. 6 (a) forbade transfers of spes successionis, contracts to make such transfers would be void under S. 23 of the Contract Act, and could not be enforced. This decision was approved by the Privy Council in 50 Ind App 239: ILR 50 Cal 929: (AIR 1923 PC 189 ) where also the question was whether a contract by the nearest reversioner to sell property which was in the possession of a widow as heir was valid and enforceable, and it was held that the prohibition under S. 6(a) would become futile, if agreements to transfer could be enforced. These decisions have no bearing on the question now under consideration, as to the right of a person who for consideration takes a transfer of what is represented to be an interest in praesenti. The decision in 65 Mad LJ 588 : (AIR 1933 Mad 795 ) is, in our view, erroneous, and was rightly overruled in the decision now under appeal. 17. Proceeding on to the decisions of the other High Courts, the point under discussion arose directly for decision in Shyam Narain v. Mangal Prasad, ILR 57 All 474 : (AIR 1935 All 244). The facts were similar to those in 65 Mad LJ 588 : (AIR 1933 Mad 795 ). One Ram Narayan, who was the daughters son of the last male owner sold the properties in 1910 to the respondents, while they were vested in the daughter Akashi. On her death in 1926, he succeeded to the properties as heir and sold them in 1927 to the appellants. The appellants claimed the estate on the ground that the sale in 1910 conferred no title on the respondents as Ram Narayan had then only a spes successionis. The respondents contended that they became entitled to the properties when Ram Narayan acquired them as heir in 1926. The learned Judges, Sir S. M. Sulaiman, C. J., and Rachhpal Singh, J., held, agreeing with the decision in 29 Mad LJ 733 : (AIR 1915 Mad 972 ) and differing from 65 Mad LJ 588 : (AIR 1933 Mad 795 ) and Bindeshwari Singh v. Har Narain Singh, ILR 4 Luck 622 : (AIR 1929 oudh 185), that S. 43 applied and that the respondents had acquired a good title. In coming to this conclusion, they relied on the illustration to S. 43 as indicating its true scope, and observed : Section 6 (a) would, therefore, apply to cases where professedly there is a transfer of a mere spes successionis, the parties knowing that the transferor has no more right than that of a mere expectant heir. The result, of course, would be the same where the parties knowing the full facts fraudulently clothe the transaction in the garb of an out and out sale of the property, and there is no erroneous representation made by the transferor to transferee as to his ownership. But where an erroneous representation is made by the transferor to the transferee that he is the full owner of the property transferred and is authorized to transfer it and the property transferred is not a mere chance of succession but immovable property itself, and the transferee acts upon such erroneous representation, then if the transferor happens later, before the contract of transfer comes to an end, to acquire an interest in that property, no matter whether by private purchase, gift, legacy or by inheritance or otherwise, the previous transfer can at the option of the transferee operate on the interest which has been subsequently acquired, although it did not exist at the time of the transfer. (pp. 478-479) (of ILR All) : (at p. 246 of AIR). This decision was followed by the Bombay High Court in Vithabai v. Malhar Shankar, ILR (1938) Bom-155 : (AIR 1938 Bom 228 ), and by the Patna High Court in Ram Japan v. Jagesara Kuer, AIR 1939 Pat 116 . A similar view had been taken by the Nagpur High Court in Bismilla v. Manulal Chabildas, AIR 1931 Nag 51. 18. The preponderance of judicial opinion is in favour of the view taken by the Madras High Court in 29 Mad LJ 733 : (AIR 1915 Mad 972 ), and approved by the Full Bench in the decision now under appeal. In our judgment, the interpretation placed on S. 43 in those decisions is correct and the contrary opinion is erroneous. We accordingly hold that when a person transfers property representing that he has a present interest therein, whereas he has in fact, only a spes successionis, the transferee is entitled to the benefit of S. 43, if he has taken the transfer on the faith of that representation and for consideration. In the present case, Santhappa, the vendor in Ex. III, represented that he was entitled to the property in praesenti, and it has been found that the purchaser entered into the transaction acting on that representation. He therefore acquired title to the properties under S. 43 of the Transfer of Property Act, when Santhappa became in title on the death of Gangamma on February 17, 1933 and the subsequent dealing with them by Santhappa by way of release under Ex. A did not operate to vest any title in the appellant. | 0[ds]Considering the scope of the section on its term, it clearly applies whenever a person transfers property to which he has no title on a representation that he has a present and transferable interest therein, and acting on that representation, the transferee takes a transfer for consideration. When these conditions are satisfied, the section enacts that if the transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has not meantime been thrown up or cancelled and is subsisting. There is an exception in favour of transferees for consideration in good faith and without notice of the rights under the prior transfer. But apart from that, the section is absolute and unqualified in its operation. It applies to all transfers which fulfil the conditions prescribed therein, and it makes no difference in its application, whether the defect of title in the transferor arises by reason of his having no interest whatsoever in the property, or of his interest therein being that of an expectant heirSection 6(a) enacts a rule of substantive law, while S. 43 enacts a rule of estoppel which is one of evidence. The two provisions operate on different fields, and under different conditions, and we see no ground for reading a conflict between them or for cutting down the ambit of the one by reference to the other. In our opinion, both of them can be given full effect on their own terms, in their respective spheres. To hold that transfers by persons who have only a spes successionis at the date of transfer are not within the protection afforded by S. 43 would destroy its utility to a large extentThere would have been considerable force in this argument if the question fell to be decided solely on the terms of S. 6(a). Rules of estoppel are not to be resorted to for defeating or circumventing prohibitions enacted by statutes on grounds of public policy. But here the matter does not rest only on S. 6(a). We have, in addition, S. 43, which enacts a special provision for the protection of transferees for consideration from persons who represent that they have a present title, which, in fact, they have not. And the point for decision is simply whether on the facts the respondents are entitled to the benefit of this section. If they are, as found by the courts below, then the plea of estoppel raised by them on the terms of the section is one pleaded under, and not against the statute15. This reasoning is open to the criticism that it ignores the principle underlying S. 43. That section embodies, as already stated, a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given, the relevat words of S. 43 were, where a person erroneously represents, and now, as amended by Act 20 of 1929, they are where a person fraudulently or erroneously represents, and that emphasises that for the purpose of the section it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee has acted on it. Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer, Section 43 would then have no application, and the transfer will fail under S. 6(a). But where the transferee does act on the representation, there is no reason why he should not have the benefit of the equitable doctrine embodied in S. 43, however fraudulent the act of the transferor might have been16. The learned Judges were further of the opinion that in view of the decision of the Privy Council in Annanda Mohan Roy v. Gour Mohan Mullick, 50 Ind App 239 : ILR 50 Cal 929 : (AIR1923 PC 189) and the decision in Lakshmi Narayana Jagannada Raju v. Varada Lakshmi Narasimha, ILR 39 Mad 554 : (AIR 1916 Mad 579) which was approved therein, the illustration to S. 43 must be rejected as repugnant to it. In Jagannada Rajus case, ILR 39 Mad 554 : (AIR 1916 Mad 579) the question was whether a contract entered into by certain presumptive reversioners to sell the estate which was then held by a widow as heir could be specifically enforced, after the succession had opened. It was held that as S. 6 (a) forbade transfers of spes successionis, contracts to make such transfers would be void under S. 23 of the Contract Act, and could not be enforced. This decision was approved by the Privy Council in 50 Ind App 239: ILR 50 Cal 929: (AIR 1923 PC 189 ) where also the question was whether a contract by the nearest reversioner to sell property which was in the possession of a widow as heir was valid and enforceable, and it was held that the prohibition under S. 6(a) would become futile, if agreements to transfer could be enforced. These decisions have no bearing on the question now under consideration, as to the right of a person who for consideration takes a transfer of what is represented to be an interest in praesenti. The decision in 65 Mad LJ 588 : (AIR 1933 Mad 795 ) is, in our view, erroneous, and was rightly overruled in the decision now under appeal18. The preponderance of judicial opinion is in favour of the view taken by the Madras High Court in 29 Mad LJ 733 : (AIR 1915 Mad 972 ), and approved by the Full Bench in the decision now under appeal. In our judgment, the interpretation placed on S. 43 in those decisions is correct and the contrary opinion is erroneous. We accordingly hold that when a person transfers property representing that he has a present interest therein, whereas he has in fact, only a spes successionis, the transferee is entitled to the benefit of S. 43, if he has taken the transfer on the faith of that representation and for consideration. In the present case, Santhappa, the vendor in Ex. III, represented that he was entitled to the property in praesenti, and it has been found that the purchaser entered into the transaction acting on that representation. He therefore acquired title to the properties under S. 43 of the Transfer of Property Act, when Santhappa became in title on the death of Gangamma on February 17, 1933 and the subsequent dealing with them by Santhappa by way of release under Ex. A did not operate to vest any title in the appellant. | 0 | 5,222 | 1,294 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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Judges were further of the opinion that in view of the decision of the Privy Council in Annanda Mohan Roy v. Gour Mohan Mullick, 50 Ind App 239 : ILR 50 Cal 929 : (AIR1923 PC 189) and the decision in Lakshmi Narayana Jagannada Raju v. Varada Lakshmi Narasimha, ILR 39 Mad 554 : (AIR 1916 Mad 579) which was approved therein, the illustration to S. 43 must be rejected as repugnant to it. In Jagannada Rajus case, ILR 39 Mad 554 : (AIR 1916 Mad 579) the question was whether a contract entered into by certain presumptive reversioners to sell the estate which was then held by a widow as heir could be specifically enforced, after the succession had opened. It was held that as S. 6 (a) forbade transfers of spes successionis, contracts to make such transfers would be void under S. 23 of the Contract Act, and could not be enforced. This decision was approved by the Privy Council in 50 Ind App 239: ILR 50 Cal 929: (AIR 1923 PC 189 ) where also the question was whether a contract by the nearest reversioner to sell property which was in the possession of a widow as heir was valid and enforceable, and it was held that the prohibition under S. 6(a) would become futile, if agreements to transfer could be enforced. These decisions have no bearing on the question now under consideration, as to the right of a person who for consideration takes a transfer of what is represented to be an interest in praesenti. The decision in 65 Mad LJ 588 : (AIR 1933 Mad 795 ) is, in our view, erroneous, and was rightly overruled in the decision now under appeal. 17. Proceeding on to the decisions of the other High Courts, the point under discussion arose directly for decision in Shyam Narain v. Mangal Prasad, ILR 57 All 474 : (AIR 1935 All 244). The facts were similar to those in 65 Mad LJ 588 : (AIR 1933 Mad 795 ). One Ram Narayan, who was the daughters son of the last male owner sold the properties in 1910 to the respondents, while they were vested in the daughter Akashi. On her death in 1926, he succeeded to the properties as heir and sold them in 1927 to the appellants. The appellants claimed the estate on the ground that the sale in 1910 conferred no title on the respondents as Ram Narayan had then only a spes successionis. The respondents contended that they became entitled to the properties when Ram Narayan acquired them as heir in 1926. The learned Judges, Sir S. M. Sulaiman, C. J., and Rachhpal Singh, J., held, agreeing with the decision in 29 Mad LJ 733 : (AIR 1915 Mad 972 ) and differing from 65 Mad LJ 588 : (AIR 1933 Mad 795 ) and Bindeshwari Singh v. Har Narain Singh, ILR 4 Luck 622 : (AIR 1929 oudh 185), that S. 43 applied and that the respondents had acquired a good title. In coming to this conclusion, they relied on the illustration to S. 43 as indicating its true scope, and observed : Section 6 (a) would, therefore, apply to cases where professedly there is a transfer of a mere spes successionis, the parties knowing that the transferor has no more right than that of a mere expectant heir. The result, of course, would be the same where the parties knowing the full facts fraudulently clothe the transaction in the garb of an out and out sale of the property, and there is no erroneous representation made by the transferor to transferee as to his ownership. But where an erroneous representation is made by the transferor to the transferee that he is the full owner of the property transferred and is authorized to transfer it and the property transferred is not a mere chance of succession but immovable property itself, and the transferee acts upon such erroneous representation, then if the transferor happens later, before the contract of transfer comes to an end, to acquire an interest in that property, no matter whether by private purchase, gift, legacy or by inheritance or otherwise, the previous transfer can at the option of the transferee operate on the interest which has been subsequently acquired, although it did not exist at the time of the transfer. (pp. 478-479) (of ILR All) : (at p. 246 of AIR). This decision was followed by the Bombay High Court in Vithabai v. Malhar Shankar, ILR (1938) Bom-155 : (AIR 1938 Bom 228 ), and by the Patna High Court in Ram Japan v. Jagesara Kuer, AIR 1939 Pat 116 . A similar view had been taken by the Nagpur High Court in Bismilla v. Manulal Chabildas, AIR 1931 Nag 51. 18. The preponderance of judicial opinion is in favour of the view taken by the Madras High Court in 29 Mad LJ 733 : (AIR 1915 Mad 972 ), and approved by the Full Bench in the decision now under appeal. In our judgment, the interpretation placed on S. 43 in those decisions is correct and the contrary opinion is erroneous. We accordingly hold that when a person transfers property representing that he has a present interest therein, whereas he has in fact, only a spes successionis, the transferee is entitled to the benefit of S. 43, if he has taken the transfer on the faith of that representation and for consideration. In the present case, Santhappa, the vendor in Ex. III, represented that he was entitled to the property in praesenti, and it has been found that the purchaser entered into the transaction acting on that representation. He therefore acquired title to the properties under S. 43 of the Transfer of Property Act, when Santhappa became in title on the death of Gangamma on February 17, 1933 and the subsequent dealing with them by Santhappa by way of release under Ex. A did not operate to vest any title in the appellant.
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### Explanation:
rule of substantive law, while S. 43 enacts a rule of estoppel which is one of evidence. The two provisions operate on different fields, and under different conditions, and we see no ground for reading a conflict between them or for cutting down the ambit of the one by reference to the other. In our opinion, both of them can be given full effect on their own terms, in their respective spheres. To hold that transfers by persons who have only a spes successionis at the date of transfer are not within the protection afforded by S. 43 would destroy its utility to a large extentThere would have been considerable force in this argument if the question fell to be decided solely on the terms of S. 6(a). Rules of estoppel are not to be resorted to for defeating or circumventing prohibitions enacted by statutes on grounds of public policy. But here the matter does not rest only on S. 6(a). We have, in addition, S. 43, which enacts a special provision for the protection of transferees for consideration from persons who represent that they have a present title, which, in fact, they have not. And the point for decision is simply whether on the facts the respondents are entitled to the benefit of this section. If they are, as found by the courts below, then the plea of estoppel raised by them on the terms of the section is one pleaded under, and not against the statute15. This reasoning is open to the criticism that it ignores the principle underlying S. 43. That section embodies, as already stated, a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given, the relevat words of S. 43 were, where a person erroneously represents, and now, as amended by Act 20 of 1929, they are where a person fraudulently or erroneously represents, and that emphasises that for the purpose of the section it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee has acted on it. Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer, Section 43 would then have no application, and the transfer will fail under S. 6(a). But where the transferee does act on the representation, there is no reason why he should not have the benefit of the equitable doctrine embodied in S. 43, however fraudulent the act of the transferor might have been16. The learned Judges were further of the opinion that in view of the decision of the Privy Council in Annanda Mohan Roy v. Gour Mohan Mullick, 50 Ind App 239 : ILR 50 Cal 929 : (AIR1923 PC 189) and the decision in Lakshmi Narayana Jagannada Raju v. Varada Lakshmi Narasimha, ILR 39 Mad 554 : (AIR 1916 Mad 579) which was approved therein, the illustration to S. 43 must be rejected as repugnant to it. In Jagannada Rajus case, ILR 39 Mad 554 : (AIR 1916 Mad 579) the question was whether a contract entered into by certain presumptive reversioners to sell the estate which was then held by a widow as heir could be specifically enforced, after the succession had opened. It was held that as S. 6 (a) forbade transfers of spes successionis, contracts to make such transfers would be void under S. 23 of the Contract Act, and could not be enforced. This decision was approved by the Privy Council in 50 Ind App 239: ILR 50 Cal 929: (AIR 1923 PC 189 ) where also the question was whether a contract by the nearest reversioner to sell property which was in the possession of a widow as heir was valid and enforceable, and it was held that the prohibition under S. 6(a) would become futile, if agreements to transfer could be enforced. These decisions have no bearing on the question now under consideration, as to the right of a person who for consideration takes a transfer of what is represented to be an interest in praesenti. The decision in 65 Mad LJ 588 : (AIR 1933 Mad 795 ) is, in our view, erroneous, and was rightly overruled in the decision now under appeal18. The preponderance of judicial opinion is in favour of the view taken by the Madras High Court in 29 Mad LJ 733 : (AIR 1915 Mad 972 ), and approved by the Full Bench in the decision now under appeal. In our judgment, the interpretation placed on S. 43 in those decisions is correct and the contrary opinion is erroneous. We accordingly hold that when a person transfers property representing that he has a present interest therein, whereas he has in fact, only a spes successionis, the transferee is entitled to the benefit of S. 43, if he has taken the transfer on the faith of that representation and for consideration. In the present case, Santhappa, the vendor in Ex. III, represented that he was entitled to the property in praesenti, and it has been found that the purchaser entered into the transaction acting on that representation. He therefore acquired title to the properties under S. 43 of the Transfer of Property Act, when Santhappa became in title on the death of Gangamma on February 17, 1933 and the subsequent dealing with them by Santhappa by way of release under Ex. A did not operate to vest any title in the appellant.
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Sumersinbh Umedsinh Rajput @ Sumersinh Vs. State Of Gujarat | Bushirt is torn then shirt also should have hole on it or Bushirt worn is found torn. It is true that looking at trouser. I say that one circle is made on it with pencil. That is not torn with bullet. It is true that looking at the trouser I say that, it is not entry cut. It is true that if vest has hole then two holes should have found, one is entry and other exit hole. Otherwise, in case of scratch, vest is found in similar torn manner. It is true that I have not mentioned fire arms marks. It is true that if any injury is caused with fire arm or bullet then the edge has burn mark. In present case no burn injury is found. It is true that if shooter fires from point blank range then black colour is found near wound. When I saw injury of patient, it did not have such black mark on that. Shirt had black mark. It is true that scratch mark can occur due to rubbing on rough substance." 8. From the statements made by PW-5, it is evident that even in relation to the purported marks of entry of the bullet through the garments owned by the complainant, there existed a lot of discrepancies. Some sort of make-shift report was placed before him by way of "Yaadi", which prepared by the complainant and whereupon he completely relied. If no burn injury was found in the clothes, it is difficult to believe that some burn injury was noticed in the wound. Prosecution did not obtain any clarification from him as to whether the nature of the injury which the complainant suffered could not take place due to rubbing of the skin on a rough substance. 9. We must also notice that the injury received by the complainant was allegedly caused to his loin. How such a simple injury could be caused from a shot fired from a fire-arm is open to question. So far as the report of the Forensic Science Laboratory is concerned, the clothes had not been identified as belonging to the injured. It may also be recorded that two bullets were sent to the Forensic Science Laboratory, although the specific case of the prosecution is that only one shot was fired. Two bullet holes were, therefore, not possible to be caused, one in the trouser and other in the waist, by one shot of fire. It has not been disclosed as to wherefrom the bullet was recovered. The mazhar witnesses did not say that any bullet was recovered from the place of occurrence in their presence.10. According to PW-8, he came to know about the firing on hearing of sound of fire. He had immediately put his finger in the trigger of the revolver and caught the appellant from his wrist. If the finger of the complainant himself was on the trigger of the revolver, it is difficult to believe that the appellant was responsible for the act complained of. According to him, seizure took place at the place of occurrence but panch witnesses contradicted him as according to them, they were made to sign the seizure list only at the police station. In his statement before the investigating officer under Section 161 of the Code of Criminal Procedure, PW-8 stated: "three persons were there in Spacio but they all started running in the farm by opening the doors of the vehicle and as the driver of the vehicle was sitting on the stirring (sic for steering) wheel, we along with police personnel get down from our mobile van and approach to catch the driver of Spacio." 11. He resiled from the said statement and built up another story in his examination - in - chief that other police personnel chased them and that they had fled away.12. PW-9 Maan Singh in his deposition stated that Vaghela had held the hand of the appellant and had been asking him to get down from his vehicle only when the scuffle took place. The said witness stated that blood had oozed out but the vest of the complainant did not contain any blood stain. Significantly, PW-9 stated that the doors of the vehicle near the driving seat were locked. In his deposition, he stated: "That time I have not seen him pulling out revolver. However, I saw revolver in his hand. After firing sir hold his wrist. The hand of accused were tied from wrist. That time his hand were in up side. That time firing did not occur. That is not true. Accused has not done firing and sir did not get injury that is not true. Sir got scratch mark during scuffle. Three accused who escaped and ran away, they were not caught." 13. There, thus, exists a lot of discrepancies in regard to the manner in which the incident had taken place. The complainant himself in his evidence did not say that all the three persons, who had got down from the rear seat and ran away, were chased by anybody.14. Even assuming that PW-8 received a fire arm injury which in the facts and circumstances of the case does not appear to be plausible, having regard to the positive evidence of the prosecution as has been stated by PW-4 Neelabhai it seems certain that a scuffle had ensued. A case of Section 307 of the Indian Penal Code, therefore, has not been made out. The ingredients of Section 307 are: (i) an intention of or knowledge relating to commission of murder; and(ii) the doing of an act towards it. [See Parsuram Pandey and Others v. State of Bihar (2004) 13 SCC 189 , Sagayam v. State of Karnataka (2000) 4 SCC 454 and Merambhai Punjabhai Khachar and others v. State of Gujarat AIR 1996 SC 3236 ]15. If the prosecution case of attempt to murder of PW-8 by gun-shot injury fails, resultantly, the prosecution under Section 25 of the Arms Act would also fail. | 1[ds]e statements made by PW-5, it is evident that even in relation to the purported marks of entry of the bullet through the garments owned by the complainant, there existed a lot of discrepancies. Some sort of make-shift report was placed before him by way of "Yaadi", which prepared by the complainant and whereupon he completely relied. If no burn injury was found in the clothes, it is difficult to believe that some burn injury was noticed in the wound. Prosecution did not obtain any clarification from him as to whether the nature of the injury which the complainant suffered could not take place due to rubbing of the skin on a rough substance.We must also notice that the injury received by the complainant was allegedly caused to his loin. How such a simple injury could be caused from a shot fired from a fire-arm is open to question. So far as the report of the Forensic Science Laboratory is concerned, the clothes had not been identified as belonging to the injured. It may also be recorded that two bullets were sent to the Forensic Science Laboratory, although the specific case of the prosecution is that only one shot was fired. Two bullet holes were, therefore, not possible to be caused, one in the trouser and other in the waist, by one shot of fire. It has not been disclosed as to wherefrom the bullet was recovered. The mazhar witnesses did not say that any bullet was recovered from the place of occurrence in their presence.10. According to PW-8, he came to know about the firing on hearing of sound of fire. He had immediately put his finger in the trigger of the revolver and caught the appellant from his wrist. If the finger of the complainant himself was on the trigger of the revolver, it is difficult to believe that the appellant was responsible for the act complained of. According to him, seizure took place at the place of occurrence but panch witnesses contradicted him as according to them, they were made to sign the seizure list only at the police station. In his statement before the investigating officer under Section 161 of the Code of Criminal Procedure, PW-8persons were there in Spacio but they all started running in the farm by opening the doors of the vehicle and as the driver of the vehicle was sitting on the stirring (sic for steering) wheel, we along with police personnel get down from our mobile van and approach to catch the driver of Spacio.He resiled from the said statement and built up another story in his examination - in - chief that other police personnel chased them and that they had fled away.12. PW-9 Maan Singh in his deposition stated that Vaghela had held the hand of the appellant and had been asking him to get down from his vehicle only when the scuffle took place. The said witness stated that blood had oozed out but the vest of the complainant did not contain any blood stain. Significantly, PW-9 stated that the doors of the vehicle near the driving seat were locked. In his deposition, hetime I have not seen him pulling out revolver. However, I saw revolver in his hand. After firing sir hold his wrist. The hand of accused were tied from wrist. That time his hand were in up side. That time firing did not occur. That is not true. Accused has not done firing and sir did not get injury that is not true. Sir got scratch mark during scuffle. Three accused who escaped and ran away, they were not caught.There, thus, exists a lot of discrepancies in regard to the manner in which the incident had taken place. The complainant himself in his evidence did not say that all the three persons, who had got down from the rear seat and ran away, were chased by anybody.14. Even assuming that PW-8 received a fire arm injury which in the facts and circumstances of the case does not appear to be plausible, having regard to the positive evidence of the prosecution as has been stated by PW-4 Neelabhai it seems certain that a scuffle had ensued. A case of Section 307 of the Indian Penal Code, therefore, has not been made out. The ingredients of Section 307an intention of or knowledge relating to commission of murder; and(ii) the doing of an act towardsParsuram Pandey and Others v. State of Bihar (2004) 13 SCC 189 , Sagayam v. State of Karnataka (2000) 4 SCC 454 and Merambhai Punjabhai Khachar and others v. State of Gujarat AIR 1996 SC 3236 ]15. If the prosecution case of attempt to murder of PW-8 by gun-shot injury fails, resultantly, the prosecution under Section 25 of the Arms Act would also fail. | 1 | 2,229 | 879 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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Bushirt is torn then shirt also should have hole on it or Bushirt worn is found torn. It is true that looking at trouser. I say that one circle is made on it with pencil. That is not torn with bullet. It is true that looking at the trouser I say that, it is not entry cut. It is true that if vest has hole then two holes should have found, one is entry and other exit hole. Otherwise, in case of scratch, vest is found in similar torn manner. It is true that I have not mentioned fire arms marks. It is true that if any injury is caused with fire arm or bullet then the edge has burn mark. In present case no burn injury is found. It is true that if shooter fires from point blank range then black colour is found near wound. When I saw injury of patient, it did not have such black mark on that. Shirt had black mark. It is true that scratch mark can occur due to rubbing on rough substance." 8. From the statements made by PW-5, it is evident that even in relation to the purported marks of entry of the bullet through the garments owned by the complainant, there existed a lot of discrepancies. Some sort of make-shift report was placed before him by way of "Yaadi", which prepared by the complainant and whereupon he completely relied. If no burn injury was found in the clothes, it is difficult to believe that some burn injury was noticed in the wound. Prosecution did not obtain any clarification from him as to whether the nature of the injury which the complainant suffered could not take place due to rubbing of the skin on a rough substance. 9. We must also notice that the injury received by the complainant was allegedly caused to his loin. How such a simple injury could be caused from a shot fired from a fire-arm is open to question. So far as the report of the Forensic Science Laboratory is concerned, the clothes had not been identified as belonging to the injured. It may also be recorded that two bullets were sent to the Forensic Science Laboratory, although the specific case of the prosecution is that only one shot was fired. Two bullet holes were, therefore, not possible to be caused, one in the trouser and other in the waist, by one shot of fire. It has not been disclosed as to wherefrom the bullet was recovered. The mazhar witnesses did not say that any bullet was recovered from the place of occurrence in their presence.10. According to PW-8, he came to know about the firing on hearing of sound of fire. He had immediately put his finger in the trigger of the revolver and caught the appellant from his wrist. If the finger of the complainant himself was on the trigger of the revolver, it is difficult to believe that the appellant was responsible for the act complained of. According to him, seizure took place at the place of occurrence but panch witnesses contradicted him as according to them, they were made to sign the seizure list only at the police station. In his statement before the investigating officer under Section 161 of the Code of Criminal Procedure, PW-8 stated: "three persons were there in Spacio but they all started running in the farm by opening the doors of the vehicle and as the driver of the vehicle was sitting on the stirring (sic for steering) wheel, we along with police personnel get down from our mobile van and approach to catch the driver of Spacio." 11. He resiled from the said statement and built up another story in his examination - in - chief that other police personnel chased them and that they had fled away.12. PW-9 Maan Singh in his deposition stated that Vaghela had held the hand of the appellant and had been asking him to get down from his vehicle only when the scuffle took place. The said witness stated that blood had oozed out but the vest of the complainant did not contain any blood stain. Significantly, PW-9 stated that the doors of the vehicle near the driving seat were locked. In his deposition, he stated: "That time I have not seen him pulling out revolver. However, I saw revolver in his hand. After firing sir hold his wrist. The hand of accused were tied from wrist. That time his hand were in up side. That time firing did not occur. That is not true. Accused has not done firing and sir did not get injury that is not true. Sir got scratch mark during scuffle. Three accused who escaped and ran away, they were not caught." 13. There, thus, exists a lot of discrepancies in regard to the manner in which the incident had taken place. The complainant himself in his evidence did not say that all the three persons, who had got down from the rear seat and ran away, were chased by anybody.14. Even assuming that PW-8 received a fire arm injury which in the facts and circumstances of the case does not appear to be plausible, having regard to the positive evidence of the prosecution as has been stated by PW-4 Neelabhai it seems certain that a scuffle had ensued. A case of Section 307 of the Indian Penal Code, therefore, has not been made out. The ingredients of Section 307 are: (i) an intention of or knowledge relating to commission of murder; and(ii) the doing of an act towards it. [See Parsuram Pandey and Others v. State of Bihar (2004) 13 SCC 189 , Sagayam v. State of Karnataka (2000) 4 SCC 454 and Merambhai Punjabhai Khachar and others v. State of Gujarat AIR 1996 SC 3236 ]15. If the prosecution case of attempt to murder of PW-8 by gun-shot injury fails, resultantly, the prosecution under Section 25 of the Arms Act would also fail.
### Response:
1
### Explanation:
e statements made by PW-5, it is evident that even in relation to the purported marks of entry of the bullet through the garments owned by the complainant, there existed a lot of discrepancies. Some sort of make-shift report was placed before him by way of "Yaadi", which prepared by the complainant and whereupon he completely relied. If no burn injury was found in the clothes, it is difficult to believe that some burn injury was noticed in the wound. Prosecution did not obtain any clarification from him as to whether the nature of the injury which the complainant suffered could not take place due to rubbing of the skin on a rough substance.We must also notice that the injury received by the complainant was allegedly caused to his loin. How such a simple injury could be caused from a shot fired from a fire-arm is open to question. So far as the report of the Forensic Science Laboratory is concerned, the clothes had not been identified as belonging to the injured. It may also be recorded that two bullets were sent to the Forensic Science Laboratory, although the specific case of the prosecution is that only one shot was fired. Two bullet holes were, therefore, not possible to be caused, one in the trouser and other in the waist, by one shot of fire. It has not been disclosed as to wherefrom the bullet was recovered. The mazhar witnesses did not say that any bullet was recovered from the place of occurrence in their presence.10. According to PW-8, he came to know about the firing on hearing of sound of fire. He had immediately put his finger in the trigger of the revolver and caught the appellant from his wrist. If the finger of the complainant himself was on the trigger of the revolver, it is difficult to believe that the appellant was responsible for the act complained of. According to him, seizure took place at the place of occurrence but panch witnesses contradicted him as according to them, they were made to sign the seizure list only at the police station. In his statement before the investigating officer under Section 161 of the Code of Criminal Procedure, PW-8persons were there in Spacio but they all started running in the farm by opening the doors of the vehicle and as the driver of the vehicle was sitting on the stirring (sic for steering) wheel, we along with police personnel get down from our mobile van and approach to catch the driver of Spacio.He resiled from the said statement and built up another story in his examination - in - chief that other police personnel chased them and that they had fled away.12. PW-9 Maan Singh in his deposition stated that Vaghela had held the hand of the appellant and had been asking him to get down from his vehicle only when the scuffle took place. The said witness stated that blood had oozed out but the vest of the complainant did not contain any blood stain. Significantly, PW-9 stated that the doors of the vehicle near the driving seat were locked. In his deposition, hetime I have not seen him pulling out revolver. However, I saw revolver in his hand. After firing sir hold his wrist. The hand of accused were tied from wrist. That time his hand were in up side. That time firing did not occur. That is not true. Accused has not done firing and sir did not get injury that is not true. Sir got scratch mark during scuffle. Three accused who escaped and ran away, they were not caught.There, thus, exists a lot of discrepancies in regard to the manner in which the incident had taken place. The complainant himself in his evidence did not say that all the three persons, who had got down from the rear seat and ran away, were chased by anybody.14. Even assuming that PW-8 received a fire arm injury which in the facts and circumstances of the case does not appear to be plausible, having regard to the positive evidence of the prosecution as has been stated by PW-4 Neelabhai it seems certain that a scuffle had ensued. A case of Section 307 of the Indian Penal Code, therefore, has not been made out. The ingredients of Section 307an intention of or knowledge relating to commission of murder; and(ii) the doing of an act towardsParsuram Pandey and Others v. State of Bihar (2004) 13 SCC 189 , Sagayam v. State of Karnataka (2000) 4 SCC 454 and Merambhai Punjabhai Khachar and others v. State of Gujarat AIR 1996 SC 3236 ]15. If the prosecution case of attempt to murder of PW-8 by gun-shot injury fails, resultantly, the prosecution under Section 25 of the Arms Act would also fail.
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Chandra Mohini Srivastava Vs. Avinash Prasad Srivastava and Anr | party",As we read this provision, it is clear that before a decree for divorce can be granted thereunder, there must first be a decree for judicial separation and thereafter under the amendment a decree for divorce will follow if one of two conditions is satisfied, namely that (i) a period of two years has elapsed or (ii) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the other party. Sub-clause (b) in our opinion is not independent. That sub-clause only comes into operation after a decree of judicial separation has been passed. We cannot accept the contention that it is open to a Court under the amended provision to grant a decree of divorce on the grounded of exceptional hardship to the petitioner or of exceptional depravity on the part of the other party, even without a decree of judicial separation having been first made. Sub-clause (b) can only apply after a decree for judicial separation has been passed and it is not open to a Court to apply that clause and give a divorce forthwith as has been done in this case on the assumption that a decree of judicial separation could have been passed on the ground mentioned in S. 10 (1) (f).We are clearly of opinion that the amended clause [namely Cl. (viii) of S. 13 (1) still requires first a decree of judicial separation and thereafter a decree of divorce may follow under Cl. (b) without waiting for two years, which is the necessary period for the application of Cl. (a). The High Court, therefore, was not right in passing the decree of divorce in this case forthwith under sub-cl. (b) of Section 13 (1) (Viii) as amended in U. P.11. It has, however, been urged on behalf of the first respondent that we may now pass a decree of judicial separation instead of a decree of divorce passed by the High Court. We are of opinion that even that cannot be done in the present case. The only ground on which the decree of judicial separation can now be asked for is that mentioned in S. 10 (1) (f), namely that the appellant had sexual intercourse with any person other than her husband after the marriage. The only allegation in that respect was that the appellant had sexual intercourse with Chandra Prakash in 1955, and that is sought to be proved by the two letters to which we have referred already. We have held that those letters do not prove that there was any sexual intercourse between the appellant and Chandra Prakash in 1955. Therefore, there is no ground even for a decree of judicial separation in favour of the first respondent.12. Besides even if we were of opinion there had been sexual intercourse between the appellant and Chandra Prakash in 1955 (which we have no doubt is not true) this would be a case of condonation under S. 23 (1) (b) of the Act. Under that provision a decree of judicial separation cannot be passed under S. 10 (1) (b), if it appears to the Court that the petitioner has in any manner been accessory to or connived at or condoned the act or acts complained of. In his statement under 0. X, R. 2 of the Code of Civil Procedure, the first respondent stated that it was in the month of June or July 1955 or 1956 that illicit relations of the appellant with Chandra Prakash were confirmed to him. According to that statement the first respondent knew even in 1955 or 1956 that there had been adultery between the appellant and Chandra a Prakash. Even so, the first respondent continued to live with the appellant and a son was born to them in 1957. In his evidence the first respondent tried to resile from his statement made under O. X. R. 2 and said that what he meant was that in 1955/1956 he entertained suspicion only. This explanation is of course untrue, for the words used in the statement under O. X, R. 2 were that illicit relations between the appellant and Chandra Prakash were confirmed to him. Even in his evidence the first respondent stated that he was definite in May/June 1958 that there was illicit connection between the appellant and Chandra Prakash. It was admitted by the first respondent that he had sexual relation with the appellant right upto October 1958. It is only in February 1959 when the appellant came finally to live with the first respondent that he said that he had no sexual relations with her during her stay of fifteen days. He also admitted that even after May/June 1958 he was willing to keep the appellant at the instance of his friends.13. Reliance in this connection is placed on Perry v. Perry, ( 1952) 1 All ER 1076. as to the content of condonation, which involves forgiveness confirmed or made effective by reinstatement. That was however, a case of desertion.It is urged that in order that forgiveness may be confirmed or made effective, something more than stray acts of cohabitation between husband and wife have to be proved. But where as in this case, judicial separation is being claimed on the ground of S. 10 (1) (f), the fact that the husband cohabited with the wife even after the knowledge that she had been guilty of cohabiting with another person would in our opinion be sufficient to constitute condonation, particularly, as in this case, the first respondent knew of the alleged adultery in May/June 1958 and still continued to cohabit with the appellant thereafter upto October 1958.Further the statement of the first respondent to the effect that he kept his wife after May/June 1958 at the instance of his friends is a clear indication of condonation even in the sense of forgiveness confirmed or made effective by reinstatement. We are, therefore, of opinion that the first respondent is not even entitled to a decree of judicial separation. | 1[ds]7. We are of opinion that special leave cannot be revoked on grounds put forward behalf of the first respondent. Section 28 of the Act inter alla provides that all decrees and orders made by the Court in, any proceedings under the Act may be appealed from under any law for the time being in force, as if they were decrees and orders of the Court made in the exercise of its original civil jurisdiction. Section 15 provides that" when a marriage has been dissolved by a decree of divorce and there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissal, it shall be lawful for either party to the marriage to marry again." These two sections make it clear that where a marriage has been dissolved, either party to the marriage can lawfully marry only when there is no right of appeal against the decree dissolving the marriage or, if there is such a right of appeal, the time for fling appeal has expired without an appeal having been presented or if an appeal has been presented it has been dismissed. It is true that S. 15 does not in terms apply to a case of an application for special leave to this Court. Even so, we are of opinion that the party who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Courts decree and thus take away from the losing party the chance of presenting an application for special leave. Even though S. 15 may not apply in terms and it may not have been unlawful for the first respondent to have married immediately after the High Courts decree, for no appeal as of right lies from the decree of the High Court to this Court in this matter, we still think that it was for the first respondent to make sure whether an application for special leave had been filed in this Court and he could not by marrying immediately after the High Courts decree deprive the appellant of the chance to present a special leave petition to this Court. If a person does so, he takes a risk and cannot ask this Court to revoke the special leave on this ground. We need not consider the question as to whether the child born to the new wife on May 20, 1965 would be legitimate or not, except to say that in such a situation S. 16 of the Act may come to the aid of the new child. We cannot, therefore, revoke the special leave on the grounds put forward on behalf of the first respondent and hereby dismiss his application for revocation of special leave.8. Turning now to the merits of the appeal, we have already indicated that the High Court as well as the trial Court are agreed that the appellant was not living in adultery at the time when the petition was filed. They are also agreed that there was no such cruelty as would bring the case within the meaning of S.10 (1) (b) of the Act. But the High Court found that there had been adultery between the appellant and Chandra Prakash in 1955 and the evidence for that consisted of two letters said to have been written by Chandra Prakash to the appellant. We cannot agree with this conclusion of the High Court. Chandra Prakash was married to a cousin of the appellant. He was, therefore, not a stranger to the appellant and his writing letters to her would not, therefore, be a matter of any surprise. We cannot also forget that the appellant in her statement has denied on oath that she ever had illicit connection with Chandra Prakash. There is also no doubt that the attempt of the first respondent to prove that there had been illicit intimacy between the appellant and Chandra Prakash in May/June 1958 has failed and both the Courts have disbelieved the evidence in this behalf. It is in this background that we have to examine the two letters on which reliance has been placed by the High Court, that being the only evidence in proof of adultery in 1955.9. It is true that the appellant has denied receiving those letters and has also denied that she ever sent any letter to Chandra Prakash. One can understand this denial in the case of a person like the appellant who was facing a petition for divorce on the ground of adultery. But assuming that those two letters were received by the appellant, that does not in our opinion prove that there was any adultery between the appellant and Chandra Prakash in 1955. We have read those letters and we must say that they are most improper and should not have been written by a person like Chandra Prakash who was married to the cousin of the appellant. But the first thing that strikes us is that the mere fact that some male relation writes such letters to a married woman, does not necessarily prove the there was any illicit relationship between the writer of the letters and the married woman who received them. The matter may have been different if any letters of the appellant written to Chandra Prakash had been proved. Further there is intrinsic evidence in the letters themselves which shows that whatever might have been the feelings of Chanda Prakash towards the appellant, they were not necessarily reciprocated by the appellant. In Ex. 2, Chandra Prakash wrote to the appellant, "You love me as you love others and this is why my share is very small. You write me letters to satisfy your anger". I his seems to suggest as if Chandra Prakash getting no response from the appellant .Again in Ex. 3, Chandra Prakash wrote, "I know that you would be angry with me, but what can I do". This again suggests that Chandra Prakash was gelling no response from the appellant. Further in both these letters Chandra Prakash conveyed his respects to the appellants husband, and on the whole we are not satisfied that these letters indicate that there must have been sexual intercourse between the appellant and Chandra Prakash in 1955, which was the time when these let tens were written. When we have the clear denial of the appellant to the effect that she never had any sexual intercourse with Chandra Prakash, we have no hesitation in accepting that denial, for there is nothing in these letters which would even suggest that the denial was false. Nor does the evidence of the first respondent, once the incident of May/June 1958 has been disbelieved, show anything from which it can be inferred that there was any illicit relation between the appellant and Chandra Prakash in 1955 or at any other time. We are, therefore, in agreement with the trial Court that these letters do not show that there was any illicit relationship between the appellant and Chandra Prakash in 1955.10. We are further of opinion that even assuming that these letters indicate that there was some illicit intimacy between the appellant and Chandra Prakash, the High Court was still in error in granting divorce under S. 13 (1) (viii) as amended by the U. P.we read this provision, it is clear that before a decree for divorce can be granted thereunder, there must first be a decree for judicial separation and thereafter under the amendment a decree for divorce will follow if one of two conditions is satisfied, namely that (i) a period of two years has elapsed or (ii) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the other party. Sub-clause (b) in our opinion is not independent. That sub-clause only comes into operation after a decree of judicial separation has been passed. We cannot accept the contention that it is open to a Court under the amended provision to grant a decree of divorce on the grounded of exceptional hardship to the petitioner or of exceptional depravity on the part of the other party, even without a decree of judicial separation having been first made. Sub-clause (b) can only apply after a decree for judicial separation has been passed and it is not open to a Court to apply that clause and give a divorce forthwith as has been done in this case on the assumption that a decree of judicial separation could have been passed on the ground mentioned in S. 10 (1) (f).We are clearly of opinion that the amended clause [namely Cl. (viii) of S. 13 (1) still requires first a decree of judicial separation and thereafter a decree of divorce may follow under Cl. (b) without waiting for two years, which is the necessary period for the application of Cl. (a). The High Court, therefore, was not right in passing the decree of divorce in this case forthwith under sub-cl. (b) of Section 13 (1) (Viii) as amended in U.are of opinion that even that cannot be done in the present case. The only ground on which the decree of judicial separation can now be asked for is that mentioned in S. 10 (1) (f), namely that the appellant had sexual intercourse with any person other than her husband after the marriage. The only allegation in that respect was that the appellant had sexual intercourse with Chandra Prakash in 1955, and that is sought to be proved by the two letters to which we have referred already. We have held that those letters do not prove that there was any sexual intercourse between the appellant and Chandra Prakash in 1955. Therefore, there is no ground even for a decree of judicial separation in favour of the firstwhere as in this case, judicial separation is being claimed on the ground of S. 10 (1) (f), the fact that the husband cohabited with the wife even after the knowledge that she had been guilty of cohabiting with another person would in our opinion be sufficient to constitute condonation, particularly, as in this case, the first respondent knew of the alleged adultery in May/June 1958 and still continued to cohabit with the appellant thereafter upto October 1958.Further the statement of the first respondent to the effect that he kept his wife after May/June 1958 at the instance of his friends is a clear indication of condonation even in the sense of forgiveness confirmed or made effective by reinstatement. We are, therefore, of opinion that the first respondent is not even entitled to a decree of judicial separation. | 1 | 3,919 | 1,965 | ### Instruction:
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party",As we read this provision, it is clear that before a decree for divorce can be granted thereunder, there must first be a decree for judicial separation and thereafter under the amendment a decree for divorce will follow if one of two conditions is satisfied, namely that (i) a period of two years has elapsed or (ii) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the other party. Sub-clause (b) in our opinion is not independent. That sub-clause only comes into operation after a decree of judicial separation has been passed. We cannot accept the contention that it is open to a Court under the amended provision to grant a decree of divorce on the grounded of exceptional hardship to the petitioner or of exceptional depravity on the part of the other party, even without a decree of judicial separation having been first made. Sub-clause (b) can only apply after a decree for judicial separation has been passed and it is not open to a Court to apply that clause and give a divorce forthwith as has been done in this case on the assumption that a decree of judicial separation could have been passed on the ground mentioned in S. 10 (1) (f).We are clearly of opinion that the amended clause [namely Cl. (viii) of S. 13 (1) still requires first a decree of judicial separation and thereafter a decree of divorce may follow under Cl. (b) without waiting for two years, which is the necessary period for the application of Cl. (a). The High Court, therefore, was not right in passing the decree of divorce in this case forthwith under sub-cl. (b) of Section 13 (1) (Viii) as amended in U. P.11. It has, however, been urged on behalf of the first respondent that we may now pass a decree of judicial separation instead of a decree of divorce passed by the High Court. We are of opinion that even that cannot be done in the present case. The only ground on which the decree of judicial separation can now be asked for is that mentioned in S. 10 (1) (f), namely that the appellant had sexual intercourse with any person other than her husband after the marriage. The only allegation in that respect was that the appellant had sexual intercourse with Chandra Prakash in 1955, and that is sought to be proved by the two letters to which we have referred already. We have held that those letters do not prove that there was any sexual intercourse between the appellant and Chandra Prakash in 1955. Therefore, there is no ground even for a decree of judicial separation in favour of the first respondent.12. Besides even if we were of opinion there had been sexual intercourse between the appellant and Chandra Prakash in 1955 (which we have no doubt is not true) this would be a case of condonation under S. 23 (1) (b) of the Act. Under that provision a decree of judicial separation cannot be passed under S. 10 (1) (b), if it appears to the Court that the petitioner has in any manner been accessory to or connived at or condoned the act or acts complained of. In his statement under 0. X, R. 2 of the Code of Civil Procedure, the first respondent stated that it was in the month of June or July 1955 or 1956 that illicit relations of the appellant with Chandra Prakash were confirmed to him. According to that statement the first respondent knew even in 1955 or 1956 that there had been adultery between the appellant and Chandra a Prakash. Even so, the first respondent continued to live with the appellant and a son was born to them in 1957. In his evidence the first respondent tried to resile from his statement made under O. X. R. 2 and said that what he meant was that in 1955/1956 he entertained suspicion only. This explanation is of course untrue, for the words used in the statement under O. X, R. 2 were that illicit relations between the appellant and Chandra Prakash were confirmed to him. Even in his evidence the first respondent stated that he was definite in May/June 1958 that there was illicit connection between the appellant and Chandra Prakash. It was admitted by the first respondent that he had sexual relation with the appellant right upto October 1958. It is only in February 1959 when the appellant came finally to live with the first respondent that he said that he had no sexual relations with her during her stay of fifteen days. He also admitted that even after May/June 1958 he was willing to keep the appellant at the instance of his friends.13. Reliance in this connection is placed on Perry v. Perry, ( 1952) 1 All ER 1076. as to the content of condonation, which involves forgiveness confirmed or made effective by reinstatement. That was however, a case of desertion.It is urged that in order that forgiveness may be confirmed or made effective, something more than stray acts of cohabitation between husband and wife have to be proved. But where as in this case, judicial separation is being claimed on the ground of S. 10 (1) (f), the fact that the husband cohabited with the wife even after the knowledge that she had been guilty of cohabiting with another person would in our opinion be sufficient to constitute condonation, particularly, as in this case, the first respondent knew of the alleged adultery in May/June 1958 and still continued to cohabit with the appellant thereafter upto October 1958.Further the statement of the first respondent to the effect that he kept his wife after May/June 1958 at the instance of his friends is a clear indication of condonation even in the sense of forgiveness confirmed or made effective by reinstatement. We are, therefore, of opinion that the first respondent is not even entitled to a decree of judicial separation.
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our opinion prove that there was any adultery between the appellant and Chandra Prakash in 1955. We have read those letters and we must say that they are most improper and should not have been written by a person like Chandra Prakash who was married to the cousin of the appellant. But the first thing that strikes us is that the mere fact that some male relation writes such letters to a married woman, does not necessarily prove the there was any illicit relationship between the writer of the letters and the married woman who received them. The matter may have been different if any letters of the appellant written to Chandra Prakash had been proved. Further there is intrinsic evidence in the letters themselves which shows that whatever might have been the feelings of Chanda Prakash towards the appellant, they were not necessarily reciprocated by the appellant. In Ex. 2, Chandra Prakash wrote to the appellant, "You love me as you love others and this is why my share is very small. You write me letters to satisfy your anger". I his seems to suggest as if Chandra Prakash getting no response from the appellant .Again in Ex. 3, Chandra Prakash wrote, "I know that you would be angry with me, but what can I do". This again suggests that Chandra Prakash was gelling no response from the appellant. Further in both these letters Chandra Prakash conveyed his respects to the appellants husband, and on the whole we are not satisfied that these letters indicate that there must have been sexual intercourse between the appellant and Chandra Prakash in 1955, which was the time when these let tens were written. When we have the clear denial of the appellant to the effect that she never had any sexual intercourse with Chandra Prakash, we have no hesitation in accepting that denial, for there is nothing in these letters which would even suggest that the denial was false. Nor does the evidence of the first respondent, once the incident of May/June 1958 has been disbelieved, show anything from which it can be inferred that there was any illicit relation between the appellant and Chandra Prakash in 1955 or at any other time. We are, therefore, in agreement with the trial Court that these letters do not show that there was any illicit relationship between the appellant and Chandra Prakash in 1955.10. We are further of opinion that even assuming that these letters indicate that there was some illicit intimacy between the appellant and Chandra Prakash, the High Court was still in error in granting divorce under S. 13 (1) (viii) as amended by the U. P.we read this provision, it is clear that before a decree for divorce can be granted thereunder, there must first be a decree for judicial separation and thereafter under the amendment a decree for divorce will follow if one of two conditions is satisfied, namely that (i) a period of two years has elapsed or (ii) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the other party. Sub-clause (b) in our opinion is not independent. That sub-clause only comes into operation after a decree of judicial separation has been passed. We cannot accept the contention that it is open to a Court under the amended provision to grant a decree of divorce on the grounded of exceptional hardship to the petitioner or of exceptional depravity on the part of the other party, even without a decree of judicial separation having been first made. Sub-clause (b) can only apply after a decree for judicial separation has been passed and it is not open to a Court to apply that clause and give a divorce forthwith as has been done in this case on the assumption that a decree of judicial separation could have been passed on the ground mentioned in S. 10 (1) (f).We are clearly of opinion that the amended clause [namely Cl. (viii) of S. 13 (1) still requires first a decree of judicial separation and thereafter a decree of divorce may follow under Cl. (b) without waiting for two years, which is the necessary period for the application of Cl. (a). The High Court, therefore, was not right in passing the decree of divorce in this case forthwith under sub-cl. (b) of Section 13 (1) (Viii) as amended in U.are of opinion that even that cannot be done in the present case. The only ground on which the decree of judicial separation can now be asked for is that mentioned in S. 10 (1) (f), namely that the appellant had sexual intercourse with any person other than her husband after the marriage. The only allegation in that respect was that the appellant had sexual intercourse with Chandra Prakash in 1955, and that is sought to be proved by the two letters to which we have referred already. We have held that those letters do not prove that there was any sexual intercourse between the appellant and Chandra Prakash in 1955. Therefore, there is no ground even for a decree of judicial separation in favour of the firstwhere as in this case, judicial separation is being claimed on the ground of S. 10 (1) (f), the fact that the husband cohabited with the wife even after the knowledge that she had been guilty of cohabiting with another person would in our opinion be sufficient to constitute condonation, particularly, as in this case, the first respondent knew of the alleged adultery in May/June 1958 and still continued to cohabit with the appellant thereafter upto October 1958.Further the statement of the first respondent to the effect that he kept his wife after May/June 1958 at the instance of his friends is a clear indication of condonation even in the sense of forgiveness confirmed or made effective by reinstatement. We are, therefore, of opinion that the first respondent is not even entitled to a decree of judicial separation.
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Hindustan Times Limited, New Delhi Vs. Their Workmen | that the assumption that the existing retirement age is 55 is wrong in respect of most of the workmen and that except for a few persons appointed after 1955 no retirement age is fixed either to the letters of appointment or in the standing orders of the Company. For all these employees for whom no retirement age has been fixed already, the learned Attorney-General argues on the basis of the decision of this Court in Guest, Keen. Williams Private Ltd., v. P.J. Sterling, 1960-1 SCR 348 : (AIR 1959 SC 1279 ) that it would not be fair to fix any age of superannuation. It was held in that case that it was unfair to fix the age of superannuation of previous employees by a subsequent standing order. The Labour Appellate Tribunal had held that it would be unreasonable and unfair to introduce a condition of retirement at the age of 55 in regard to the prior employees having regard to the fact that when they entered service there was no such limitation. This Court felt that it would not be justified in reversing this decision of the Labour Appellate Tribunal Dealing next with the question whether it followed that there should be no rule of superannuation in regard to these previous employees the Court said :"In our opinion it is necessary to fix the prior of superannuation even with regard to the prior employees, and we feel no difficulty in holding that it would not be unfair or unreasonable to direct that these employees should retire on attaining the age of 60. An option to continue in service even thereafter which the respondent climbed is wholly unreasonable and is entirely in consistent with the notion of fixing the age of superannuation itself. Once the age of superannuation is fixed it may be open to the employer for special reasons to continue in its employment a workman who has passed the age; but it is inconceivable that when the age of superannuation is fixed it should be in the option of the employee to continue in service thereafter. We would accordingly hold that in the circumstances of this case the rule of retirement for the previous employees in the concern should be 60 instead of 55 and that the rule of 55 should apply to all employees who enter to service of the appellant after the relevant standing orders came into force."26. Assuming therefore that for the majority of the employees there is no existing retirement age it would on the authority of the above case, be open to the Tribunal to fix the age of superannuation even with respect to them. As however the Tribunals decision that this age should be 55 is vitiated by the incorrect assumption that there is an existing retirement age of 55 it has been necessary for us to consider the question for ourselves. It appears that before the Tribunal the Unions representative himself desired that the retirement age should be fixed at 58 years which may be extended upto 60 years in fit cases. Before us the Counsel for the Company did not seriously contest that in consideration of the present day circumstances in the country it would be fair to fix the retirement age at 58. Accordingly, we set aside the Tribunals award on this question of retirement age and fix the age at 58 years, subject to the proviso that it will be open to the Company to continue in its employment a workman who has passed that age. This rule should apply to all the employees of the Company.27. There remains for consideration the question of retrospective operation of the award. Under S. 17A of the Industrial Disputes Act, 1947 an award shall come into operation with effect from such date as may be specified therein but where no date is so specific it shall come into operation on the date when the award becomes enforceable. Even without a specific reference being made on this question it is open to an industrial tribunal to fix in its discretion a date from which it shall come into operation. The reference, in the present case, included as a matter in dispute the question of retrospective effect in these words :"Whether all the above demands should be made applicable retrospectively with effect from April, 1, 1956 and what directions are necessary in this respect."28. The Tribunal rejected the workmens claim for giving effect to its award from April 1956. Wherever however the Tribunal has given relief the Tribunal has directed that the award should come into effect from the date of reference, i.e. the 23rd January, 1958. On behalf of the Company Mr. Pathak contends that there is no reason why the award should be given effect to from any date prior to the date of its pronouncement. We are not impressed by this argument. No general formula can be laid down as to the date from which a Tribunal should make its award effective. That question has to be decided by the Tribunal on a consideration of circumstances of each case. There have been cases where this Court has made an award effective from the date when the demand was first made. There are other cases where the orders of the Tribunal directing the award to be made effective from the date of the award has not been interfered with. It is true that in some cases this Court has modified the Tribunals award in such case. But it does not appear however that any general principles have been laid down. Indeed, it is difficult and not even desirable that this Court should try to lay down general principles on such matters that require careful consideration of the peculiar circumstances of each case for the exercise of discretion. It is sufficient to say that we find no reason to interfere with the Tribunals direction in this case that the reliefs given by it would become effective from the date of the reference. | 1[ds]4. It is unnecessary to give more details of the difference between the old scale and the new scale as what has been mentioned above is sufficient to indicate that there has been some change in favour of the workmen, though this charge is not much.On an examination of the tribunals award as regards the wage scale, we are satisfied that all the considerations mentioned above were present in the mind of the adjudicator and we are of opinion that there is nothing that would justify us in modifying the award either in favour of the employer or in favour of themere passage of time and these revolutionary changes would be sufficient to convince any right thinking man of the need for revision of wage scales which, on the face of it, were far below the "living wage" and mostly also below the "fair wage", provided the industry could bear the additional burden. The case for revision becomes irresistible when one takes into consideration the further fact that the cost of living rose steeply during this period. On the basis of 1939 cost as 100, the index for 1946 was 282. By 1958 it had risen to 389. It may be mentioned that since then there has been further rise. Nor can it be seriously suggested that this concern cannot bear the burden of an increased wage scale. The Tribunal was, in our opinion, right in its conclusion that the material on record shows that the Company has been prospering and has financial stability. We have for ourselves examined the balance -sheets and the other materials on the record and have no hesitation in agreeing with that conclusion. Mr. Pathaks uphill task in the face of these balance-sheets already on the record shows that the Company would not be able to bear the burden of an increased wage scale has been made more difficult by the discovery that even after the implementation of the award the Company has made large profits during the years 1959-60, 1960-61 andis reasonable to think that with the progress of education in the country and the increasing news mindedness of the people the future prospects of the Company are no less bright. On a consideration of all this, we are clearly of opinion that Mr. Pathaks contention that the wage scale fixed by the Tribunal is too heavy for the Company to bear, must be rejected.10. Equally unacceptable is Mr. Pathaks next contention that the wage scale fixed by the Tribunal operates unfavorably on this Company vis-a-vis two other concerns in Delhi region, viz., The Times of India, Delhi and the Statesman, Delhi. We have compared the wage scales in these two concerns, viz, The Times of India, Delhi and the Statesman, Delhi, with the wage scale under the award and have for the purpose of comparison taken into consideration the dearness allowance as fixed by the Tribunal. The comparison shows that while in some cases the Company (the Hindustan Times) will have to pay more to its workmen that what is being paid to workmen of the same category by the Times of India, Delhi and the Statesman, Delhi, in several cases it will be less. It has also to be borne in mind that the Times of India, Delhi and the Statesman, Delhi, are much smaller units of the newspaper industry than the Hindustan Times.These companies are mere adjuncts to the Times of India, Bombay and the Statesman, Calcutta, respectively. Therefore, even if for same categories the wage scale under the award is higher than that in the Times of India, Delhi and the Statesman, Delhi, that would be no ground for modifying the award in favour of the Company. We have therefore come to the conclusion that there is no ground whatsoever for modifying the wage scale fixed by the award in favour of theis undoubtedly some force in the contention and it may be said that the Tribunal has been rather cautious in the matter of revision of wage scales. Even so, it has to be remembered that where, as in the present case, the proper principles have been applied by the Tribunal, it is not the practice of this Court to interfere, ordinarily, with details of this nature when exercising its special jurisdiction under Art. 136 of the Constitution. It also appears to us that the very fact that the Tribunal has been cautious in the matter of raising the wage scales has influenced it in the directions it has given onthe question ofadjustment of the present employees into the wage scale. In this way some relief has been given to the present employees which might otherwise have been given by raising the wage scale. On a consideration of all these facts we have reached the conclusion that it will not be proper for us to modify the wage scales fixed by the Tribunal in favour of the workmen also.13. Onthe question ofdearness allowance it is not disputed before us that in the circumstances of the present case the Tribunal acted rightly in awarding dearness allowance at a flat rate for all categories ofargument however overlooks the fact that the reference as regards the dearness allowance was in respect of all categories of workmen, though the reference as regards scales of pay did not cover some categories, viz., mazdoors and canteen boys. They therefore continue to remain on their old scale of Rs. 50-3-85. When the Tribunal in consideringthe question ofdearness allowance was thinking of the starting pay of the lowest paid worker it had obviously these categories in mind. Having concluded that the lowest paid worker should start at Rs. 75/- as the total amount of basic pay and dearness allowance the necessary conclusion reached by the Tribunal was that Rs. 25/- should be fixed as the dearness allowance. It is, in our opinion, proper and desirable that the dearness allowance should not remain fixed at this figure but should be on a slidingare not impressed by thisthese circumstances, we do not see any justification for interfering with the directions given by the Tribunal in the matter ofthe agreement therefore what has been received by the workmen as advance payment at Rs. 6/- or Rs. 7/- or Rs. 8/- or Rs. 10/- per month as interim relief has to be adjusted against what is due to be paid to them under the award. In other words, the Company is entitled under the agreement to deduct the payments made as interim relief from what is payments made as interim relief from what is payments made as interim relief from what is payable to these very employees under the award. The Tribunals direction that the interim unaffected is in effect an order that term (ii) of the agreement need not be complied with. We can find no justification for such an order. While it is true that industrial adjudication can and often has to modify existing contracts between an employer and its workmen, there can be no justification for modification of an agreement of this nature pending final settlement of a dispute such a direction that the solemn words of therepresentatives that interim relief which may be given will be adjusted against the relief finally given need not be complied with is not unfair to the employer but is also not calculated collated to serve the best interests of the workmen themselves. For one thing, an order of this nature in one case by a Tribunal that such an undertaking need not be carried out is likely to hamper interim settlements generally; it is also not desirable that workmen should be encouraged to treat their undertakings as of no value. Industrial adjudication must be careful not to encourage bad faith on the part of the workmen or the employer. A direction as given by the Tribunal in this case that the term in the agreement that payments made will be adjusted against the first outcome need not be complied with is unfortunately likely to have such effect on workmen. We therefore set aside the Tribunals direction that interim relief will remain unaffected and direct that adjustments should be made interim of the said interimappears that at present the Management grants 10 days, casual leave to the business staff and 7days casual leave to all the other categories and there is no sick leave facilityis difficult to see however how the benefit that the workmen will get under this Act can affectthe question ofsickness leave being provided for the workmen. This Act it has to be noticed does not provide for any leave to the workmen on the ground of sickness. It provides in S. 46(1) (a) for periodical treatment of any insured person in case of this sickness if certified by a duly appointed medical practitioner. It is unnecessary to mention here the several provisions in the Act; viz. Sections, 47, 48 and 49 which deal with the eligibility of workmen for sickness benefit and the extent of the benefit that may be granted Section 56 of the Act provides for medical benefits to the insured workmen or in certain cases to the members of his family. It appears to us clear however that in providing for periodical payments to an insured worker in case of sickness (sickness benefit) or for medical treatment or attendance to him or the members of his family, the legislature did not intend to substitute any of these benefits for the workmens right to get leave on full pay on the ground ofis thus clear that as regards those workmen to whom the Delhi Shops and Establishments Act, 1954 applies the Tribunal has acted illegally in fixing the period of sick leave at 15 days and permitting accumulation. We therefore set aside this direction in the award and direct instead that the Company shall allow to the workmen to whom the Delhi Shops and Establishments Act, 1954 applies, sickness or casual leave of a total of 12 days with full pay and allowance and that such leave shall not be accumulated. We are also of opinion that it will not be right to have two separate leave rules for the two classes of workmen one to whom the Delhi Shops and Establishments Act 1954 applies and the other to whom it does not apply. For that is likely to be a source of much discord and heart burning. Therefore, in respect also of those workmen to whom the Delhi Shops and Establishments Act, 1954 does not apply, we think that the same period of 12 days in a year with full pay and allowances should be fixed for sickness or casual leave, and there should be no accumulation of such leave; and we direct accordingly.22. We cannot find any justification for the direction of the Tribunal that the practice of insistence on previous application for the purpose of casual leave should be relaxed in cases where it cannot possibly be so done in emergent and unforeseen circumstances and that upto 3 days no medical certificate should be asked for. The leave rules of the Company as they now stand provide that ordinarily previous permission of the head of the department and the establishment Manager shall be obtained before casual leave is taken but that when this is not possible due to sudden illness, the head of the Department or the Manager as soon as may be practiable should be informed in writing of the absence from work and of the probable duration of such absence. In our opinion, this provision is reasonable and is calculated to meet the needs of workmen for taking leave without previous permission, in case of emergency. In these circumstances the further directions as regards this that have been given by the Tribunal appear to us to be unnecessary and are hereby sethave already expressed our agreement with the Tribunals conclusion that the Companys financial resources are strong and stable and that not only has the Company been prospering in recent years but that its future prospects are also bright. Therefore, we do not think that the scheme of gratuity as framed by the Tribunal is unduly favourable to the workmen or that it places any undue strain on the Companys financial resources.24. One provision in the gratuity scheme which ought to be mentioned is that under it an employee who is dismissed for misconduct shall not be entitled to any gratuity. It has been pointed out by this Court in more than one case that having regard to the nature of gratuity it will not be proper to deprive an employee of the gratuity earned by him because of his dismissal for misconduct and the proper provision to make in this connection is that where an employee is dismissed for misconduct which has resulted in financial loss to the employer the amount lost should be deducted from the amount of gratuity due. As however in the present case, the workmen have not appealed against the award as regards the gratuity scheme framed by the Tribunal, it will not be proper for us to make the modification as indicated above.25. Coming now tothe question ofretirement age on which the workmen have appealed, we find there is some controversy as regards the existingis not clear, therefore, how onthe question ofretirement age the Tribunal proceeded on the basis that the "existing retirement" age is 55. Proceeding on this basis the Tribunal directed "that the existing retirement age at 55 years should continue but the workers may be allowed to remain in employment and work upto 60 years if found fit. The question of the further extension should rest with the discretion of the Management.Assuming therefore that for the majority of the employees there is no existing retirement age it would on the authority of the above case, be open to the Tribunal to fix the age of superannuation even with respect to them. As however the Tribunals decision that this age should be 55 is vitiated by the incorrect assumption that there is an existing retirement age of 55 it has been necessary for us to consider the question for ourselves. It appears that before the Tribunal the Unions representative himself desired that the retirement age should be fixed at 58 years which may be extended upto 60 years in fit cases. Before us the Counsel for the Company did not seriously contest that in consideration of the present day circumstances in the country it would be fair to fix the retirement age at 58. Accordingly, we set aside the Tribunals award on thisquestion of retirementage and fix the age at 58 years, subject to the proviso that it will be open to the Company to continue in its employment a workman who has passed that age. This rule should apply to all the employees of thee not impressed by thisargument. No general formula can be laid down as to the date from which a Tribunal should make its award effective. That question has to be decided by the Tribunal on a consideration of circumstances of each case. There have been cases where this Court has made an award effective from the date when the demand was first made. There are other cases where the orders of the Tribunal directing the award to be made effective from the date of the award has not been interfered with. It is true that in some cases this Court has modified the Tribunals award in such case. But it does not appear however that any general principles have been laid down. Indeed, it is difficult and not even desirable that this Court should try to lay down general principles on such matters that require careful consideration of the peculiar circumstances of each case for the exercise of discretion. It is sufficient to say that we find no reason to interfere with the Tribunals direction in this case that the reliefs given by it would become effective from the date of the reference. | 1 | 7,936 | 2,840 | ### Instruction:
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that the assumption that the existing retirement age is 55 is wrong in respect of most of the workmen and that except for a few persons appointed after 1955 no retirement age is fixed either to the letters of appointment or in the standing orders of the Company. For all these employees for whom no retirement age has been fixed already, the learned Attorney-General argues on the basis of the decision of this Court in Guest, Keen. Williams Private Ltd., v. P.J. Sterling, 1960-1 SCR 348 : (AIR 1959 SC 1279 ) that it would not be fair to fix any age of superannuation. It was held in that case that it was unfair to fix the age of superannuation of previous employees by a subsequent standing order. The Labour Appellate Tribunal had held that it would be unreasonable and unfair to introduce a condition of retirement at the age of 55 in regard to the prior employees having regard to the fact that when they entered service there was no such limitation. This Court felt that it would not be justified in reversing this decision of the Labour Appellate Tribunal Dealing next with the question whether it followed that there should be no rule of superannuation in regard to these previous employees the Court said :"In our opinion it is necessary to fix the prior of superannuation even with regard to the prior employees, and we feel no difficulty in holding that it would not be unfair or unreasonable to direct that these employees should retire on attaining the age of 60. An option to continue in service even thereafter which the respondent climbed is wholly unreasonable and is entirely in consistent with the notion of fixing the age of superannuation itself. Once the age of superannuation is fixed it may be open to the employer for special reasons to continue in its employment a workman who has passed the age; but it is inconceivable that when the age of superannuation is fixed it should be in the option of the employee to continue in service thereafter. We would accordingly hold that in the circumstances of this case the rule of retirement for the previous employees in the concern should be 60 instead of 55 and that the rule of 55 should apply to all employees who enter to service of the appellant after the relevant standing orders came into force."26. Assuming therefore that for the majority of the employees there is no existing retirement age it would on the authority of the above case, be open to the Tribunal to fix the age of superannuation even with respect to them. As however the Tribunals decision that this age should be 55 is vitiated by the incorrect assumption that there is an existing retirement age of 55 it has been necessary for us to consider the question for ourselves. It appears that before the Tribunal the Unions representative himself desired that the retirement age should be fixed at 58 years which may be extended upto 60 years in fit cases. Before us the Counsel for the Company did not seriously contest that in consideration of the present day circumstances in the country it would be fair to fix the retirement age at 58. Accordingly, we set aside the Tribunals award on this question of retirement age and fix the age at 58 years, subject to the proviso that it will be open to the Company to continue in its employment a workman who has passed that age. This rule should apply to all the employees of the Company.27. There remains for consideration the question of retrospective operation of the award. Under S. 17A of the Industrial Disputes Act, 1947 an award shall come into operation with effect from such date as may be specified therein but where no date is so specific it shall come into operation on the date when the award becomes enforceable. Even without a specific reference being made on this question it is open to an industrial tribunal to fix in its discretion a date from which it shall come into operation. The reference, in the present case, included as a matter in dispute the question of retrospective effect in these words :"Whether all the above demands should be made applicable retrospectively with effect from April, 1, 1956 and what directions are necessary in this respect."28. The Tribunal rejected the workmens claim for giving effect to its award from April 1956. Wherever however the Tribunal has given relief the Tribunal has directed that the award should come into effect from the date of reference, i.e. the 23rd January, 1958. On behalf of the Company Mr. Pathak contends that there is no reason why the award should be given effect to from any date prior to the date of its pronouncement. We are not impressed by this argument. No general formula can be laid down as to the date from which a Tribunal should make its award effective. That question has to be decided by the Tribunal on a consideration of circumstances of each case. There have been cases where this Court has made an award effective from the date when the demand was first made. There are other cases where the orders of the Tribunal directing the award to be made effective from the date of the award has not been interfered with. It is true that in some cases this Court has modified the Tribunals award in such case. But it does not appear however that any general principles have been laid down. Indeed, it is difficult and not even desirable that this Court should try to lay down general principles on such matters that require careful consideration of the peculiar circumstances of each case for the exercise of discretion. It is sufficient to say that we find no reason to interfere with the Tribunals direction in this case that the reliefs given by it would become effective from the date of the reference.
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and allowance and that such leave shall not be accumulated. We are also of opinion that it will not be right to have two separate leave rules for the two classes of workmen one to whom the Delhi Shops and Establishments Act 1954 applies and the other to whom it does not apply. For that is likely to be a source of much discord and heart burning. Therefore, in respect also of those workmen to whom the Delhi Shops and Establishments Act, 1954 does not apply, we think that the same period of 12 days in a year with full pay and allowances should be fixed for sickness or casual leave, and there should be no accumulation of such leave; and we direct accordingly.22. We cannot find any justification for the direction of the Tribunal that the practice of insistence on previous application for the purpose of casual leave should be relaxed in cases where it cannot possibly be so done in emergent and unforeseen circumstances and that upto 3 days no medical certificate should be asked for. The leave rules of the Company as they now stand provide that ordinarily previous permission of the head of the department and the establishment Manager shall be obtained before casual leave is taken but that when this is not possible due to sudden illness, the head of the Department or the Manager as soon as may be practiable should be informed in writing of the absence from work and of the probable duration of such absence. In our opinion, this provision is reasonable and is calculated to meet the needs of workmen for taking leave without previous permission, in case of emergency. In these circumstances the further directions as regards this that have been given by the Tribunal appear to us to be unnecessary and are hereby sethave already expressed our agreement with the Tribunals conclusion that the Companys financial resources are strong and stable and that not only has the Company been prospering in recent years but that its future prospects are also bright. Therefore, we do not think that the scheme of gratuity as framed by the Tribunal is unduly favourable to the workmen or that it places any undue strain on the Companys financial resources.24. One provision in the gratuity scheme which ought to be mentioned is that under it an employee who is dismissed for misconduct shall not be entitled to any gratuity. It has been pointed out by this Court in more than one case that having regard to the nature of gratuity it will not be proper to deprive an employee of the gratuity earned by him because of his dismissal for misconduct and the proper provision to make in this connection is that where an employee is dismissed for misconduct which has resulted in financial loss to the employer the amount lost should be deducted from the amount of gratuity due. As however in the present case, the workmen have not appealed against the award as regards the gratuity scheme framed by the Tribunal, it will not be proper for us to make the modification as indicated above.25. Coming now tothe question ofretirement age on which the workmen have appealed, we find there is some controversy as regards the existingis not clear, therefore, how onthe question ofretirement age the Tribunal proceeded on the basis that the "existing retirement" age is 55. Proceeding on this basis the Tribunal directed "that the existing retirement age at 55 years should continue but the workers may be allowed to remain in employment and work upto 60 years if found fit. The question of the further extension should rest with the discretion of the Management.Assuming therefore that for the majority of the employees there is no existing retirement age it would on the authority of the above case, be open to the Tribunal to fix the age of superannuation even with respect to them. As however the Tribunals decision that this age should be 55 is vitiated by the incorrect assumption that there is an existing retirement age of 55 it has been necessary for us to consider the question for ourselves. It appears that before the Tribunal the Unions representative himself desired that the retirement age should be fixed at 58 years which may be extended upto 60 years in fit cases. Before us the Counsel for the Company did not seriously contest that in consideration of the present day circumstances in the country it would be fair to fix the retirement age at 58. Accordingly, we set aside the Tribunals award on thisquestion of retirementage and fix the age at 58 years, subject to the proviso that it will be open to the Company to continue in its employment a workman who has passed that age. This rule should apply to all the employees of thee not impressed by thisargument. No general formula can be laid down as to the date from which a Tribunal should make its award effective. That question has to be decided by the Tribunal on a consideration of circumstances of each case. There have been cases where this Court has made an award effective from the date when the demand was first made. There are other cases where the orders of the Tribunal directing the award to be made effective from the date of the award has not been interfered with. It is true that in some cases this Court has modified the Tribunals award in such case. But it does not appear however that any general principles have been laid down. Indeed, it is difficult and not even desirable that this Court should try to lay down general principles on such matters that require careful consideration of the peculiar circumstances of each case for the exercise of discretion. It is sufficient to say that we find no reason to interfere with the Tribunals direction in this case that the reliefs given by it would become effective from the date of the reference.
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Paramount Digital Color Lab and Ors Vs. Agfa India Pvt. Ltd. and Ors | handle the machine, is a question of fact and necessity? Ultimately, if it is purely for a "commercial purpose" and not for "self-employment", the complainant may not get the benefit of the Explanation to Section 2(1)(d) of the Act. The buyers of the goods or commodities for "self-consumption" in economic activities in which they are engaged would be "consumers" as defined in the Act. Furthermore, there is nothing on record to show that the Appellants wanted to use the machine in question for purposes other than "self-employment". Therefore, the point to be considered is whether the Appellants have purchased the machine in question for "commercial purpose" or exclusively for the purposes of earning their livelihood by means of "self-employment". There cannot be any dispute that the initial burden is on the Appellants to prove that they fall within the definition of "consumer". It is pertinent to mention that Respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the Appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion. 14. The word "purchaser" means and includes members of his family also. The machine in question was purchased by two partners; both were unemployed graduates. They started a firm namely M/s. Paramount Digital Color Lab at Varanasi, U.P. afresh. The Appellants have specified that they are unemployed graduates; they planned to start a business of photography for self-employment and for their livelihood, for which they contacted Respondent Nos. 2 & 4, which means that they had not planned to start their business of photography till they planned to purchase the machine in question. Having felt the need of the machine in question, they contacted Respondent No. 1 and enquired about the salient features and performance of the "Agfa Minilab D-Lab. 1 All rounder" machine. Being impressed by the advice and suggestion made by Respondent Nos. 2 & 4, Appellants borrowed a loan from the Union Bank of India on 12.07.2004 and placed an order for the purchase of the said machine and paid by draft an amount of Rs. 62,00,000/- towards the cost of the machine along with freight and collateral charges. It is the case of the Appellants that they purchased the machine with the fond hope and belief that it would give good results and that they would earn a handsome amount by which their basic needs of livelihood would be fulfilled and that the family of the Appellants will survive smoothly. They might have started the business with the help of one operator and helper. Of course, in Paragraph 14 of the complaint, the Appellants have used the words "Operators and Helpers". This portion of the complaint has been highlighted by the National Commission to conclude that the Appellants were using the machine with the help of third parties for commercial purposes inasmuch as they themselves were not using the machine personally. Such averment by the Appellants in the complaint appears to be an exaggerated version with a view to get more compensation. One such stray sentence will not tilt the balance against the Appellants. The material needs to be seen in its entirety and not in isolation. Since there is nothing on record to show that they wanted the machine to be installed for a commercial purpose and not exclusively for the purposes of earning their livelihood by means of self-employment, the National Commission was not justified in concluding that the Appellants have utilised the services of an operator or a helper to run a commercial venture. One machine does not need many operators or helpers to complete the work entrusted. Since the Appellants were two partners, they must have been doing the work on their own, of course, may be with the aid of a helper or an operator. The machine would not have been used in a large-scale profit-making activity but, on the contrary, the Appellants purchased the machine for their own utility, personal handling and for their small venture which they had embarked upon to make a livelihood. The same is distinct from large-scale manufacturing or processing activity carried on for huge profits. There is no close nexus between the transaction of purchase of the machine and the alleged large-scale activity carried on for earning profit. Since the Appellants had got no employment and they were unemployed graduates, that too without finances, it is but natural for them to raise a loan to start the business of photography on a small scale for earning their livelihood. 15. The material discloses that Respondent No. 1 company was dissolved in the year 2005. Prior to this dissolution, Respondent No. 2 was the Managing Director of Respondent No. 1 and Respondent No. 4 was the General Manager of Respondent No. 1. The Respondent Nos. 2 and 4 collectively talked with the Appellants and finalised the agreement along with the assurance that the machine is up to the marked standard and that repairs, if any, would be rectified free of cost, apart from other things assured. Respondent No. 3 is the subsequent company which has taken over from Respondent No. 1 in the year 2005. The said company also did not come to the aid of the Appellants either by replacing the machine or by rectifying the major defects, consequent upon which the Appellants have suffered huge losses. Anybody can visualise the loss sustained by the Appellants inasmuch as they had obtained a loan with the promise to pay interest to Respondent No. 5 bank for purchasing the machine. Therefore, Respondent Nos. 2, 3 and 4 are collectively liable to make good the loss of the Appellants. | 1[ds]9. Heard learned Counsel for the Appellants and perused the records. It is relevant to note that no relief has been claimed as against Respondent No. 5. Having gone through the judgment of the National Commission, it is clear that though a number of points arose for consideration, it did not choose to decide the same for remanding the matter, since it felt that the complaint itself was not maintainable and that the matter has been pending for long. The State Commission not only held that the complaint was maintainable, but also proceeded on merits and held in favour of the Appellants10. The National Commission on evaluation of the material on record and after hearing the parties concluded that the complainants are not "consumers" as envisaged Under Section 2(1)(d) of the Consumer Protection Act and hence the Act is not applicableIf both these provisions are read together, it leads to the conclusion that if a person purchased the goods for consideration not for any commercial purpose, but exclusively for the purposes of earning his livelihood by means of "self-employment", such purchaser will come within the definition of "consumer". If a person purchases the goods for a "commercial purpose" and not for the purposes of earning his livelihood by means of "self-employment", such purchaser will not come within the definition of "consumer". It is therefore clear, that despite "commercial activity", whether a person would fall within the definition of "consumer" or not would be a question of fact in every case. Such question of fact ought to be decided in the facts and circumstances of each caseIn the matter on hand, the quality of ultimate production by the user of the machine would depend upon the skill of the person who uses the machine. In case of exigencies, if a person trains another person to operate the machine so as to produce the final product based on skill and effort in the matter of photography and development, the same cannot take such person out of the definition of "consumer"13. Thus, in our considered opinion, each case ought to be judged based on the peculiar facts and circumstance of that caseUltimately, if it is purely for a "commercial purpose" and not for "self-employment", the complainant may not get the benefit of the Explanation to Section 2(1)(d) of the Act. The buyers of the goods or commodities for "self-consumption" in economic activities in which they are engaged would be "consumers" as defined in the Act. Furthermore, there is nothing on record to show that the Appellants wanted to use the machine in question for purposes other than "self-employment"There cannot be any dispute that the initial burden is on the Appellants to prove that they fall within the definition of "consumer". It is pertinent to mention that Respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the Appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion14. The word "purchaser" means and includes members of his family also. The machine in question was purchased by two partners; both were unemployed graduates. They started a firm namely M/s. Paramount Digital Color Lab at Varanasi, U.P. afresh. The Appellants have specified that they are unemployed graduates; they planned to start a business of photography for self-employment and for their livelihood, for which they contacted Respondent Nos. 2 & 4, which means that they had not planned to start their business of photography till they planned to purchase the machine in question. Having felt the need of the machine in question, they contacted Respondent No. 1 and enquired about the salient features and performance of the "Agfa Minilab D-Lab. 1 All rounder" machine. Being impressed by the advice and suggestion made by Respondent Nos. 2 & 4, Appellants borrowed a loan from the Union Bank of India on 12.07.2004 and placed an order for the purchase of the said machine and paid by draft an amount of Rs. 62,00,000/- towards the cost of the machine along with freight and collateral charges. It is the case of the Appellants that they purchased the machine with the fond hope and belief that it would give good results and that they would earn a handsome amount by which their basic needs of livelihood would be fulfilled and that the family of the Appellants will survive smoothly. They might have started the business with the help of one operator and helper. Of course, in Paragraph 14 of the complaint, the Appellants have used the words "Operators and Helpers". This portion of the complaint has been highlighted by the National Commission to conclude that the Appellants were using the machine with the help of third parties for commercial purposes inasmuch as they themselves were not using the machine personally. Such averment by the Appellants in the complaint appears to be an exaggerated version with a view to get more compensation. One such stray sentence will not tilt the balance against the Appellants. The material needs to be seen in its entirety and not in isolation. Since there is nothing on record to show that they wanted the machine to be installed for a commercial purpose and not exclusively for the purposes of earning their livelihood by means of self-employment, the National Commission was not justified in concluding that the Appellants have utilised the services of an operator or a helper to run a commercial venture. One machine does not need many operators or helpers to complete the work entrusted. Since the Appellants were two partners, they must have been doing the work on their own, of course, may be with the aid of a helper or an operator. The machine would not have been used in a large-scale profit-making activity but, on the contrary, the Appellants purchased the machine for their own utility, personal handling and for their small venture which they had embarked upon to make a livelihood. The same is distinct from large-scale manufacturing or processing activity carried on for huge profits. There is no close nexus between the transaction of purchase of the machine and the alleged large-scale activity carried on for earning profit. Since the Appellants had got no employment and they were unemployed graduates, that too without finances, it is but natural for them to raise a loan to start the business of photography on a small scale for earning their livelihood15. The material discloses that Respondent No. 1 company was dissolved in the year 2005. Prior to this dissolution, Respondent No. 2 was the Managing Director of Respondent No. 1 and Respondent No. 4 was the General Manager of Respondent No. 1. The Respondent Nos. 2 and 4 collectively talked with the Appellants and finalised the agreement along with the assurance that the machine is up to the marked standard and that repairs, if any, would be rectified free of cost, apart from other things assured. Respondent No. 3 is the subsequent company which has taken over from Respondent No. 1 in the year 2005. The said company also did not come to the aid of the Appellants either by replacing the machine or by rectifying the major defects, consequent upon which the Appellants have suffered huge losses. Anybody can visualise the loss sustained by the Appellants inasmuch as they had obtained a loan with the promise to pay interest to Respondent No. 5 bank for purchasing the machine. Therefore, Respondent Nos. 2, 3 and 4 are collectively liable to make good the loss of the Appellants. | 1 | 3,447 | 1,483 | ### 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:
handle the machine, is a question of fact and necessity? Ultimately, if it is purely for a "commercial purpose" and not for "self-employment", the complainant may not get the benefit of the Explanation to Section 2(1)(d) of the Act. The buyers of the goods or commodities for "self-consumption" in economic activities in which they are engaged would be "consumers" as defined in the Act. Furthermore, there is nothing on record to show that the Appellants wanted to use the machine in question for purposes other than "self-employment". Therefore, the point to be considered is whether the Appellants have purchased the machine in question for "commercial purpose" or exclusively for the purposes of earning their livelihood by means of "self-employment". There cannot be any dispute that the initial burden is on the Appellants to prove that they fall within the definition of "consumer". It is pertinent to mention that Respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the Appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion. 14. The word "purchaser" means and includes members of his family also. The machine in question was purchased by two partners; both were unemployed graduates. They started a firm namely M/s. Paramount Digital Color Lab at Varanasi, U.P. afresh. The Appellants have specified that they are unemployed graduates; they planned to start a business of photography for self-employment and for their livelihood, for which they contacted Respondent Nos. 2 & 4, which means that they had not planned to start their business of photography till they planned to purchase the machine in question. Having felt the need of the machine in question, they contacted Respondent No. 1 and enquired about the salient features and performance of the "Agfa Minilab D-Lab. 1 All rounder" machine. Being impressed by the advice and suggestion made by Respondent Nos. 2 & 4, Appellants borrowed a loan from the Union Bank of India on 12.07.2004 and placed an order for the purchase of the said machine and paid by draft an amount of Rs. 62,00,000/- towards the cost of the machine along with freight and collateral charges. It is the case of the Appellants that they purchased the machine with the fond hope and belief that it would give good results and that they would earn a handsome amount by which their basic needs of livelihood would be fulfilled and that the family of the Appellants will survive smoothly. They might have started the business with the help of one operator and helper. Of course, in Paragraph 14 of the complaint, the Appellants have used the words "Operators and Helpers". This portion of the complaint has been highlighted by the National Commission to conclude that the Appellants were using the machine with the help of third parties for commercial purposes inasmuch as they themselves were not using the machine personally. Such averment by the Appellants in the complaint appears to be an exaggerated version with a view to get more compensation. One such stray sentence will not tilt the balance against the Appellants. The material needs to be seen in its entirety and not in isolation. Since there is nothing on record to show that they wanted the machine to be installed for a commercial purpose and not exclusively for the purposes of earning their livelihood by means of self-employment, the National Commission was not justified in concluding that the Appellants have utilised the services of an operator or a helper to run a commercial venture. One machine does not need many operators or helpers to complete the work entrusted. Since the Appellants were two partners, they must have been doing the work on their own, of course, may be with the aid of a helper or an operator. The machine would not have been used in a large-scale profit-making activity but, on the contrary, the Appellants purchased the machine for their own utility, personal handling and for their small venture which they had embarked upon to make a livelihood. The same is distinct from large-scale manufacturing or processing activity carried on for huge profits. There is no close nexus between the transaction of purchase of the machine and the alleged large-scale activity carried on for earning profit. Since the Appellants had got no employment and they were unemployed graduates, that too without finances, it is but natural for them to raise a loan to start the business of photography on a small scale for earning their livelihood. 15. The material discloses that Respondent No. 1 company was dissolved in the year 2005. Prior to this dissolution, Respondent No. 2 was the Managing Director of Respondent No. 1 and Respondent No. 4 was the General Manager of Respondent No. 1. The Respondent Nos. 2 and 4 collectively talked with the Appellants and finalised the agreement along with the assurance that the machine is up to the marked standard and that repairs, if any, would be rectified free of cost, apart from other things assured. Respondent No. 3 is the subsequent company which has taken over from Respondent No. 1 in the year 2005. The said company also did not come to the aid of the Appellants either by replacing the machine or by rectifying the major defects, consequent upon which the Appellants have suffered huge losses. Anybody can visualise the loss sustained by the Appellants inasmuch as they had obtained a loan with the promise to pay interest to Respondent No. 5 bank for purchasing the machine. Therefore, Respondent Nos. 2, 3 and 4 are collectively liable to make good the loss of the Appellants.
### Response:
1
### Explanation:
product based on skill and effort in the matter of photography and development, the same cannot take such person out of the definition of "consumer"13. Thus, in our considered opinion, each case ought to be judged based on the peculiar facts and circumstance of that caseUltimately, if it is purely for a "commercial purpose" and not for "self-employment", the complainant may not get the benefit of the Explanation to Section 2(1)(d) of the Act. The buyers of the goods or commodities for "self-consumption" in economic activities in which they are engaged would be "consumers" as defined in the Act. Furthermore, there is nothing on record to show that the Appellants wanted to use the machine in question for purposes other than "self-employment"There cannot be any dispute that the initial burden is on the Appellants to prove that they fall within the definition of "consumer". It is pertinent to mention that Respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the Appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion14. The word "purchaser" means and includes members of his family also. The machine in question was purchased by two partners; both were unemployed graduates. They started a firm namely M/s. Paramount Digital Color Lab at Varanasi, U.P. afresh. The Appellants have specified that they are unemployed graduates; they planned to start a business of photography for self-employment and for their livelihood, for which they contacted Respondent Nos. 2 & 4, which means that they had not planned to start their business of photography till they planned to purchase the machine in question. Having felt the need of the machine in question, they contacted Respondent No. 1 and enquired about the salient features and performance of the "Agfa Minilab D-Lab. 1 All rounder" machine. Being impressed by the advice and suggestion made by Respondent Nos. 2 & 4, Appellants borrowed a loan from the Union Bank of India on 12.07.2004 and placed an order for the purchase of the said machine and paid by draft an amount of Rs. 62,00,000/- towards the cost of the machine along with freight and collateral charges. It is the case of the Appellants that they purchased the machine with the fond hope and belief that it would give good results and that they would earn a handsome amount by which their basic needs of livelihood would be fulfilled and that the family of the Appellants will survive smoothly. They might have started the business with the help of one operator and helper. Of course, in Paragraph 14 of the complaint, the Appellants have used the words "Operators and Helpers". This portion of the complaint has been highlighted by the National Commission to conclude that the Appellants were using the machine with the help of third parties for commercial purposes inasmuch as they themselves were not using the machine personally. Such averment by the Appellants in the complaint appears to be an exaggerated version with a view to get more compensation. One such stray sentence will not tilt the balance against the Appellants. The material needs to be seen in its entirety and not in isolation. Since there is nothing on record to show that they wanted the machine to be installed for a commercial purpose and not exclusively for the purposes of earning their livelihood by means of self-employment, the National Commission was not justified in concluding that the Appellants have utilised the services of an operator or a helper to run a commercial venture. One machine does not need many operators or helpers to complete the work entrusted. Since the Appellants were two partners, they must have been doing the work on their own, of course, may be with the aid of a helper or an operator. The machine would not have been used in a large-scale profit-making activity but, on the contrary, the Appellants purchased the machine for their own utility, personal handling and for their small venture which they had embarked upon to make a livelihood. The same is distinct from large-scale manufacturing or processing activity carried on for huge profits. There is no close nexus between the transaction of purchase of the machine and the alleged large-scale activity carried on for earning profit. Since the Appellants had got no employment and they were unemployed graduates, that too without finances, it is but natural for them to raise a loan to start the business of photography on a small scale for earning their livelihood15. The material discloses that Respondent No. 1 company was dissolved in the year 2005. Prior to this dissolution, Respondent No. 2 was the Managing Director of Respondent No. 1 and Respondent No. 4 was the General Manager of Respondent No. 1. The Respondent Nos. 2 and 4 collectively talked with the Appellants and finalised the agreement along with the assurance that the machine is up to the marked standard and that repairs, if any, would be rectified free of cost, apart from other things assured. Respondent No. 3 is the subsequent company which has taken over from Respondent No. 1 in the year 2005. The said company also did not come to the aid of the Appellants either by replacing the machine or by rectifying the major defects, consequent upon which the Appellants have suffered huge losses. Anybody can visualise the loss sustained by the Appellants inasmuch as they had obtained a loan with the promise to pay interest to Respondent No. 5 bank for purchasing the machine. Therefore, Respondent Nos. 2, 3 and 4 are collectively liable to make good the loss of the Appellants.
|
Balkrishna Somnath Vs. Sada Devram Koli and Another | stand on her or his own disabled legs and so the Proviso to s. 32F (1) (a) was brought in by amendment to give them protection for the period of the disability and a little longer. But every ruse to save the lands is used by landlords and so, once it was in the air that minors and widows may be exempted, a spate of partitions perhaps ensued. Joint living is the dear, traditional Hindu way of life but jettisoning jointness to salvage , land is dearer still. Blood is thicker than water, it has been said; but in this mundane world, property is thicker than blood: So partition deeds, conveniently confined to land, became a popular art of extrication. And the Legislature, anxious to inhibit such abuse, while willing to exempt genuine, total separations, conditioned the Proviso under consideration by insisting that the separation should be from the whole joint family assets and not a tell-tale transaction where agricultural lands alone are divided and secondly, even where there is a total partition, only a fair proportion of the lands is allotted to the disabled person.In this light, we may read the Proviso. To steer clear of possible confusion we may agree that partial partition may be legally permissible and the Hindu law does not require investigation into the motives or motivelessness behind the partition. We also accept that division in status is good enough to end commensality or jointness under the p ersonal law. But we are now in the jurisdiction of land reform legislation and the Legislature, with a view to fulfil its objectives, may prescribe special requirements. The Court has to give effect to them, in the spirit of agrarian reform and not read down the wide words on judicial suppositions. 8. Here the Proviso can rescue the widow or the minor only if the prerequisites are fairly and fully fulfilled. Section 32 states that the tenants shall be deemed to have purchased the tenanted land on the Tillers Day. The Tribunal suo motu takes action to determine the purchase price. But all this is kept in abeyance if the landlord belongs to the disabled category and qualifies under s. 32F (1). The crucial issue is whether the Proviso applies even if the separation of the widow or minor is restricted to agricultural lands. Shri Wad and, Shri Tarkunde vehemently urge that it is none of the concern of the agrarian law what happens to the other assets of the joint family, so long as the lands are divided in fair proportion. Shri Datar presses what the High Court has laconically reasoned, viz., that it is possible to defeat the scheme by division of the lands alone. Fox one thing, in most such partial partitions, inspired by the desire to avoid the land reforms in the offing, the Legislature can, as a policy decision, insist on a whole partition, to reduce the evasion. Moreover, there will be a sudden fancy for allotting all the good lands to the share of widows and minors, depriving the tenants of their legitimate expectations. And, if lands and other assets are to be divided, then less lands will go to the disabled persons or even none. For instance the house may be allotted to the widow and the lands taken over by adult males. The ornaments may all go to the woman, the agriculture to the men. We need not speculate, but may content ourselves with stating that the Legislature has, for some reasons, decided to lay down conditions and the words of the text must be assigned full effect.The Proviso clearly states that the disabled persons share in the joint family must have been separated by metes and bounds. Separation from the joint family means separation from all the joint family assets. Otherwise the sharer remains partly joint and, to that extent, is not separated from the joint family. Notional division or division in status also may not be enough because the Act insists on separation by metes and bounds. Ordinarily metes and bounds are appropriate to real property, meaning, as the phrase does, the boundary lines of land, with their terminal points and angles. In the context, the thrust of the expression is that the division must be more than notional but actual, concrete, clearly demarcated. The ineptness and involved structure and some ambiguity notwithstanding, the sense of the sentence is clear. The share of a person in the joint family, plainly understood, means his share in all the joint family properties and not merely in the real estate part. What is more, the section uses the expressions the share of such person in the joint family, the share of such person in the land, the share of that person in the entire joint family property. Thus it is reasonable to hold that when the expression used is the share of such person in the point family., it is not confined to the share in the land only. It really means his share in the entire joint family property. Moreover, the statutory exercise expected of the Mamlatdar by the Proviso involves an enquiry into the share of the disabled person in the land, and its value, the share of that person in the entire joint family property, the proportion that the allotment of the land bears to his share in the entire joint family property with a view to see that there is no unfair manouvre to defeat the scheme of the Act. The necessary postulate is that there is a division in the entire joint family property. Therefore, the imperative condition for the operation of the Proviso is that there should be a total separation and so far as a disabled member is concerned it must cover all the joint family properties. 9. We are therefore in agreement with the interpretation adopted by the High Court. In the cases under appeal there is no division of all the joint family properties. Only the landed properties have been separated. | 0[ds]The broad idea is to vest full ownership in the tenantry. A compassionate exception is made in favour of handicapped landlords who cannot prove their need to recover their land on approved grounds. These disabled categories include infants and widows. But if the lands belong to joint families of which they are members, the raison detre for such protection does not exist because the manager of this joint family takes care of its collective interests. Where, however, there has bee n a partition of the joint family, then the widow or minor has to stand on her or his own disabled legs and so the Proviso to s. 32F (1) (a) was brought in by amendment to give them protection for the period of the disability and a little longer. But every ruse to save the lands is used by landlords and so, once it was in the air that minors and widows may be exempted, a spate of partitions perhaps ensued. Joint living is the dear, traditional Hindu way of life but jettisoning jointness to salvage , land is dearer still. Blood is thicker than water, it has been said; but in this mundane world, property is thicker than blood: So partition deeds, conveniently confined to land, became a popular art of extrication. And the Legislature, anxious to inhibit such abuse, while willing to exempt genuine, total separations, conditioned the Proviso under consideration by insisting that the separation should be from the whole joint family assets and not a tell-tale transaction where agricultural lands alone are divided and secondly, even where there is a total partition, only a fair proportion of the lands is allotted to the disabled person.In this light, we may read the Proviso. To steer clear of possible confusion we may agree that partial partition may be legally permissible and the Hindu law does not require investigation into the motives or motivelessness behind the partition. We also accept that division in status is good enough to end commensality or jointness under the p ersonal law. But we are now in the jurisdiction of land reform legislation and the Legislature, with a view to fulfil its objectives, may prescribe special requirements. The Court has to give effect to them, in the spirit of agrarian reform and not read down the wide words on judicial suppositionsHere the Proviso can rescue the widow or the minor only if the prerequisites are fairly and fully fulfilled. Section 32 states that the tenants shall be deemed to have purchased the tenanted land on the Tillers Day. The Tribunal suo motu takes action to determine the purchase price. But all this is kept in abeyance if the landlord belongs to the disabled category and qualifies under s. 32F (1). The crucial issue is whether the Proviso applies even if the separation of the widow or minor is restricted to agricultural lands. Shri Wad and, Shri Tarkunde vehemently urge that it is none of the concern of the agrarian law what happens to the other assets of the joint family, so long as the lands are divided in fair proportion. Shri Datar presses what the High Court has laconically reasoned, viz., that it is possible to defeat the scheme by division of the lands alone. Fox one thing, in most such partial partitions, inspired by the desire to avoid the land reforms in the offing, the Legislature can, as a policy decision, insist on a whole partition, to reduce the evasion. Moreover, there will be a sudden fancy for allotting all the good lands to the share of widows and minors, depriving the tenants of their legitimate expectations. And, if lands and other assets are to be divided, then less lands will go to the disabled persons or even none. For instance the house may be allotted to the widow and the lands taken over by adult males. The ornaments may all go to the woman, the agriculture to the men. We need not speculate, but may content ourselves with stating that the Legislature has, for some reasons, decided to lay down conditions and the words of the text must be assigned full effect.The Proviso clearly states that the disabled persons share in the joint family must have been separated by metes and bounds. Separation from the joint family means separation from all the joint family assets. Otherwise the sharer remains partly joint and, to that extent, is not separated from the joint family. Notional division or division in status also may not be enough because the Act insists on separation by metes and bounds. Ordinarily metes and bounds are appropriate to real property,, as the phrase does, the boundary lines of land, with their terminal points and angles. In the context, the thrust of the expression is that the division must be more than notional but actual, concrete, clearly demarcated. The ineptness and involved structure and some ambiguity notwithstanding, the sense of the sentence is clear. The share of a person in the joint family, plainly understood, means his share in all the joint family properties and not merely in the real estate part. What is more, the section uses the expressions the share of such person in the joint family, the share of such person in the land, the share of that person in the entire joint family property. Thus it is reasonable to hold that when the expression used is the share of such person in the point family., it is not confined to the share in the land only. It really means his share in the entire joint family property. Moreover, the statutory exercise expected of the Mamlatdar by the Proviso involves an enquiry into the share of the disabled person in the land, and its value, the share of that person in the entire joint family property, the proportion that the allotment of the land bears to his share in the entire joint family property with a view to see that there is no unfair manouvre to defeat the scheme of the Act. The necessary postulate is that there is a division in the entire joint family property. Therefore, the imperative condition for the operation of the Proviso is that there should be a total separation and so far as a disabled member is concerned it must cover all the joint familye are therefore in agreement with the interpretation adopted by the High Court. In the cases under appeal there is no division of all the joint family properties. Only the landed properties have been separated. | 0 | 2,699 | 1,201 | ### 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:
stand on her or his own disabled legs and so the Proviso to s. 32F (1) (a) was brought in by amendment to give them protection for the period of the disability and a little longer. But every ruse to save the lands is used by landlords and so, once it was in the air that minors and widows may be exempted, a spate of partitions perhaps ensued. Joint living is the dear, traditional Hindu way of life but jettisoning jointness to salvage , land is dearer still. Blood is thicker than water, it has been said; but in this mundane world, property is thicker than blood: So partition deeds, conveniently confined to land, became a popular art of extrication. And the Legislature, anxious to inhibit such abuse, while willing to exempt genuine, total separations, conditioned the Proviso under consideration by insisting that the separation should be from the whole joint family assets and not a tell-tale transaction where agricultural lands alone are divided and secondly, even where there is a total partition, only a fair proportion of the lands is allotted to the disabled person.In this light, we may read the Proviso. To steer clear of possible confusion we may agree that partial partition may be legally permissible and the Hindu law does not require investigation into the motives or motivelessness behind the partition. We also accept that division in status is good enough to end commensality or jointness under the p ersonal law. But we are now in the jurisdiction of land reform legislation and the Legislature, with a view to fulfil its objectives, may prescribe special requirements. The Court has to give effect to them, in the spirit of agrarian reform and not read down the wide words on judicial suppositions. 8. Here the Proviso can rescue the widow or the minor only if the prerequisites are fairly and fully fulfilled. Section 32 states that the tenants shall be deemed to have purchased the tenanted land on the Tillers Day. The Tribunal suo motu takes action to determine the purchase price. But all this is kept in abeyance if the landlord belongs to the disabled category and qualifies under s. 32F (1). The crucial issue is whether the Proviso applies even if the separation of the widow or minor is restricted to agricultural lands. Shri Wad and, Shri Tarkunde vehemently urge that it is none of the concern of the agrarian law what happens to the other assets of the joint family, so long as the lands are divided in fair proportion. Shri Datar presses what the High Court has laconically reasoned, viz., that it is possible to defeat the scheme by division of the lands alone. Fox one thing, in most such partial partitions, inspired by the desire to avoid the land reforms in the offing, the Legislature can, as a policy decision, insist on a whole partition, to reduce the evasion. Moreover, there will be a sudden fancy for allotting all the good lands to the share of widows and minors, depriving the tenants of their legitimate expectations. And, if lands and other assets are to be divided, then less lands will go to the disabled persons or even none. For instance the house may be allotted to the widow and the lands taken over by adult males. The ornaments may all go to the woman, the agriculture to the men. We need not speculate, but may content ourselves with stating that the Legislature has, for some reasons, decided to lay down conditions and the words of the text must be assigned full effect.The Proviso clearly states that the disabled persons share in the joint family must have been separated by metes and bounds. Separation from the joint family means separation from all the joint family assets. Otherwise the sharer remains partly joint and, to that extent, is not separated from the joint family. Notional division or division in status also may not be enough because the Act insists on separation by metes and bounds. Ordinarily metes and bounds are appropriate to real property, meaning, as the phrase does, the boundary lines of land, with their terminal points and angles. In the context, the thrust of the expression is that the division must be more than notional but actual, concrete, clearly demarcated. The ineptness and involved structure and some ambiguity notwithstanding, the sense of the sentence is clear. The share of a person in the joint family, plainly understood, means his share in all the joint family properties and not merely in the real estate part. What is more, the section uses the expressions the share of such person in the joint family, the share of such person in the land, the share of that person in the entire joint family property. Thus it is reasonable to hold that when the expression used is the share of such person in the point family., it is not confined to the share in the land only. It really means his share in the entire joint family property. Moreover, the statutory exercise expected of the Mamlatdar by the Proviso involves an enquiry into the share of the disabled person in the land, and its value, the share of that person in the entire joint family property, the proportion that the allotment of the land bears to his share in the entire joint family property with a view to see that there is no unfair manouvre to defeat the scheme of the Act. The necessary postulate is that there is a division in the entire joint family property. Therefore, the imperative condition for the operation of the Proviso is that there should be a total separation and so far as a disabled member is concerned it must cover all the joint family properties. 9. We are therefore in agreement with the interpretation adopted by the High Court. In the cases under appeal there is no division of all the joint family properties. Only the landed properties have been separated.
### Response:
0
### Explanation:
the widow or minor has to stand on her or his own disabled legs and so the Proviso to s. 32F (1) (a) was brought in by amendment to give them protection for the period of the disability and a little longer. But every ruse to save the lands is used by landlords and so, once it was in the air that minors and widows may be exempted, a spate of partitions perhaps ensued. Joint living is the dear, traditional Hindu way of life but jettisoning jointness to salvage , land is dearer still. Blood is thicker than water, it has been said; but in this mundane world, property is thicker than blood: So partition deeds, conveniently confined to land, became a popular art of extrication. And the Legislature, anxious to inhibit such abuse, while willing to exempt genuine, total separations, conditioned the Proviso under consideration by insisting that the separation should be from the whole joint family assets and not a tell-tale transaction where agricultural lands alone are divided and secondly, even where there is a total partition, only a fair proportion of the lands is allotted to the disabled person.In this light, we may read the Proviso. To steer clear of possible confusion we may agree that partial partition may be legally permissible and the Hindu law does not require investigation into the motives or motivelessness behind the partition. We also accept that division in status is good enough to end commensality or jointness under the p ersonal law. But we are now in the jurisdiction of land reform legislation and the Legislature, with a view to fulfil its objectives, may prescribe special requirements. The Court has to give effect to them, in the spirit of agrarian reform and not read down the wide words on judicial suppositionsHere the Proviso can rescue the widow or the minor only if the prerequisites are fairly and fully fulfilled. Section 32 states that the tenants shall be deemed to have purchased the tenanted land on the Tillers Day. The Tribunal suo motu takes action to determine the purchase price. But all this is kept in abeyance if the landlord belongs to the disabled category and qualifies under s. 32F (1). The crucial issue is whether the Proviso applies even if the separation of the widow or minor is restricted to agricultural lands. Shri Wad and, Shri Tarkunde vehemently urge that it is none of the concern of the agrarian law what happens to the other assets of the joint family, so long as the lands are divided in fair proportion. Shri Datar presses what the High Court has laconically reasoned, viz., that it is possible to defeat the scheme by division of the lands alone. Fox one thing, in most such partial partitions, inspired by the desire to avoid the land reforms in the offing, the Legislature can, as a policy decision, insist on a whole partition, to reduce the evasion. Moreover, there will be a sudden fancy for allotting all the good lands to the share of widows and minors, depriving the tenants of their legitimate expectations. And, if lands and other assets are to be divided, then less lands will go to the disabled persons or even none. For instance the house may be allotted to the widow and the lands taken over by adult males. The ornaments may all go to the woman, the agriculture to the men. We need not speculate, but may content ourselves with stating that the Legislature has, for some reasons, decided to lay down conditions and the words of the text must be assigned full effect.The Proviso clearly states that the disabled persons share in the joint family must have been separated by metes and bounds. Separation from the joint family means separation from all the joint family assets. Otherwise the sharer remains partly joint and, to that extent, is not separated from the joint family. Notional division or division in status also may not be enough because the Act insists on separation by metes and bounds. Ordinarily metes and bounds are appropriate to real property,, as the phrase does, the boundary lines of land, with their terminal points and angles. In the context, the thrust of the expression is that the division must be more than notional but actual, concrete, clearly demarcated. The ineptness and involved structure and some ambiguity notwithstanding, the sense of the sentence is clear. The share of a person in the joint family, plainly understood, means his share in all the joint family properties and not merely in the real estate part. What is more, the section uses the expressions the share of such person in the joint family, the share of such person in the land, the share of that person in the entire joint family property. Thus it is reasonable to hold that when the expression used is the share of such person in the point family., it is not confined to the share in the land only. It really means his share in the entire joint family property. Moreover, the statutory exercise expected of the Mamlatdar by the Proviso involves an enquiry into the share of the disabled person in the land, and its value, the share of that person in the entire joint family property, the proportion that the allotment of the land bears to his share in the entire joint family property with a view to see that there is no unfair manouvre to defeat the scheme of the Act. The necessary postulate is that there is a division in the entire joint family property. Therefore, the imperative condition for the operation of the Proviso is that there should be a total separation and so far as a disabled member is concerned it must cover all the joint familye are therefore in agreement with the interpretation adopted by the High Court. In the cases under appeal there is no division of all the joint family properties. Only the landed properties have been separated.
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S. Mohan Lal Vs. R. Kondiah | requires it for his own occupation. Section 10(3)(a)(iii) provides for the eviction of a tenant from a non-residential building where "the landlord is not occupying a non-residential building in a city town or village concerned which is his own or to the possession of which he is entitled whether under the Act or otherwise-(a) for the purpose of a business which he is carrying on on the date of the application, or (b) for the purpos e of a business which in the opinion of the Controller, the landlord bona-fide proposes to commence". Section 12 and 13 contain special provisions relating to recovery of buildings by landlord for the purpose of effecting repairs , alterations or additions or for reconstruction. The scheme of the Act is to prevent unreasonable eviction of tenants by landlords and to provide for eviction on specified grounds. The Act is of general application and its protection not confined to any classes of tenants nor is the right to evict under the Act limited to any class of landlords. There is no reason why a landlord who is a member of the legal or medical professions and who requires the premises for carrying on the practice of his profession should be wholly debarred from obtaining possession of the premises. It is impossible to discover any reason for so making a discrimination against the liberal professions. But, that would be the r esult if the expression business is given a narrow meaning which the appellant wants us to give to that expression. It would indeed be anamolous to hold that all the provisions of the Act including Section 4 which provides for the determination of fair rent and Section 10(1) which bars the eviction of tenants apply to nonresidential buildings owned by an Advocate but not Section 10 (3) (a) (iii) only. In our view the expression business occurring in Section 10(3)(a)(iii) is used in a wide sense so as to include the practice of the profession of an Advocate.The Kerala High Court in M.P. Sethurama Menon v. Meenakshi Amma &Ors., (supra) construed the expression trade or business as connoting commercial a ctivity and as not including the practice of the legal profession. The learned Judges referred to Article 19(1)(g) of the Constitution, Section 49 of the Advocates Act, 1961, the Madras Shops and Establishments Act, 1947 and drew a distinction between the words business and profession. As mentioned by us earlier, we do not think that it is right to ascribe to the word business occurring in the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the same meaning that the word may have when it occurs in other statutory provisions. The word must be interpreted in the context of the statute in which it occurs and not in the context of other statutes or in a manner alien to the context of the statute concerned. In Bangalore Water-Supply &Sewerage Board etc. v. R. Rajappa Ors., (supra) Chandrachud, J. (as he then was) observed".. I find myself unable to accept the broad formulation that a Solicitors establishment cannot be an industry. A Solicitor, undoubtedly, does not carry on trade or business when he acts for his client or advises him or pleads for him, if and when pleading is permissible to him. He pursues a profession which is variously and justifiably described a s learned, liberal or noble." 3. The observations of the Learned Judge were made in the context of the question whether a Solicitors establishment would fall within the definition of industry under the Industrial Disputes Act. It would be most unwise to apply this A observation to determine whether the practice of the liberal professions is within the meaning of the expression business in Rent Control legislation.In Stuchbery &Ors. v. General Accident Fire and Life Assurance Corporat ion Ltd., (supra) it was observed that the carrying on of a Solicitors business was the carrying on of a profession and was not the carrying on of a trade or business within the meaning of that phrase in the Landlord and Tenant Act, 1927. The observation was made in the context of that Act which made a distinction between trade or business and profession. In fact sub-section 3(a) of Section 17 of the Act expressly said:"for the purposes of this Section premises shall not be deem ed to be premises used for carrying on there at a trade or business by reason of their being used for the purpose of carrying on there at any profession". 4. The question in that case was about the right to compensation for the goodwill attached t o the premises where the "business" or "profession" was being carried on. We do not think 1 that the case is of any help to the appellant. 5. We may refer here to the decision of Danckwerts, J., in Re Williams Will Trusts, Chartered Bank of India, Australia and China and Another v. Williams and Others.([1953] All E.R. 536.) where the question was whether the bequest to a son for the purpose of starting him in business was affective to start the son in medical practice. The learned Judge held that it did, observing that the word business was capable of including the practice of a profession and that it plainly included the profession of a Doctor. 6. We may refer to just one more case i.e. Taramal v. Laxman Sewak Surey Ors([1971] M.P.L.J. 888.) where this very question whether the practice of law was a business within the meaning of the Madhya Pradesh Accommodation Control Act came for consideration before A. P. Sen, J. The learned Judge held that in the context of the Madhya Pradesh Act, the word business had to be given a wide meaning so as to include any profession.We, therefore, agree with the High Court that the practice of law is business within the meaning of that expression in Section 10(3) (a) (iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. | 0[ds]It is not a sound principle of construction to interpret expressions used in one Act with reference to their use in another Act; more so, if the two Acts in which the same word is used are not cognate Acts. Neither the meaning, nor the definition of the term in one statute affords a guide to the construction of the same term in another statute and the sense in which the term has been understood in the several statutes does not necessarily throw any light on the manner in which the term should be understood generally. On the other hand it is a sound, and, indeed, a well known principle of construction that meaning of words and expressions used in an Act must take their colour from the content in which they appearthe Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act,, is an Act to consolidate, and amend the law relating to the regulation of leasing of buildings, the control of rent thereof an(l the prevention of unreasonable eviction of tenants therefrom in the State of Andhra Pradesh. It applies to the cities of Hyderabad and Secunderabad and to all municipalities in the State of Andhra Pradesh. The provisions of the Act, however, do not apply to buildings owned by the Government and to buildings constructed on or after 26th August, 1957. Building is broadly defined as meaning any house or hut or a part of a house or hut, let or to be let separately for residential or nonresidential purposes. Landlord is defined as the owner of a building, including a person who is receiving or is entitled to receive the rent of a building, on his own account or on behalf of another person etc. Tenant is defined as a person by whom or on whose account rent is payable for a building. Section 4 provides for the determination of a fair rent of a building on the application of the tenant or landlord. Section 10(1) provide s that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of Sections 10, 12 and 13. Section 10(2) mentions several grounds on which a landlord may seek to evict a tenant. Th e grounds are default of payment of rent, sub-letting of premises, used for a purpose other than that for which it was leased, commission of acts of waste, conduct amounting to nuisance to the occupiers of the other portions in the same building, securing of alternative accommodation by the tenant and denial of the title of the landlord. The grounds mentioned in Section 10(2) apply both to residential and non-residential buildings. Section 10(3) (a) (i) provides for the eviction of a tenant where the landlord of a residential building requires it for his own occupation. Section 10(3)(a)(iii) provides for the eviction of a tenant from a non-residential building where "the landlord is not occupying a non-residential building in a city town or village concerned which is his own or to the possession of which he is entitled whether under the Act or otherwise-(a) for the purpose of a business which he is carrying on on the date of the application, or (b) for the purpos e of a business which in the opinion of the Controller, the landlord bona-fide proposes to commence". Section 12 and 13 contain special provisions relating to recovery of buildings by landlord for the purpose of effecting repairs , alterations or additions or for reconstruction. The scheme of the Act is to prevent unreasonable eviction of tenants by landlords and to provide for eviction on specified grounds. The Act is of general application and its protection not confined to any classes of tenants nor is the right to evict under the Act limited to any class of landlords. There is no reason why a landlord who is a member of the legal or medical professions and who requires the premises for carrying on the practice of his profession should be wholly debarred from obtaining possession of the premises. It is impossible to discover any reason for so making a discrimination against the liberal professions. But, that would be the r esult if the expression business is given a narrow meaning which the appellant wants us to give to that expression. It would indeed be anamolous to hold that all the provisions of the Act including Section 4 which provides for the determination of fair rent and Section 10(1) which bars the eviction of tenants apply to nonresidential buildings owned by an Advocate but not Section 10 (3) (a) (iii) only. In our view the expression business occurring in Section 10(3)(a)(iii) is used in a wide sense so as to include the practice of the profession of an Advocate.We, therefore, agree with the High Court that the practice of law is business within the meaning of that expression in Section 10(3) (a) (iii) ofthe Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, | 0 | 2,534 | 949 | ### Instruction:
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requires it for his own occupation. Section 10(3)(a)(iii) provides for the eviction of a tenant from a non-residential building where "the landlord is not occupying a non-residential building in a city town or village concerned which is his own or to the possession of which he is entitled whether under the Act or otherwise-(a) for the purpose of a business which he is carrying on on the date of the application, or (b) for the purpos e of a business which in the opinion of the Controller, the landlord bona-fide proposes to commence". Section 12 and 13 contain special provisions relating to recovery of buildings by landlord for the purpose of effecting repairs , alterations or additions or for reconstruction. The scheme of the Act is to prevent unreasonable eviction of tenants by landlords and to provide for eviction on specified grounds. The Act is of general application and its protection not confined to any classes of tenants nor is the right to evict under the Act limited to any class of landlords. There is no reason why a landlord who is a member of the legal or medical professions and who requires the premises for carrying on the practice of his profession should be wholly debarred from obtaining possession of the premises. It is impossible to discover any reason for so making a discrimination against the liberal professions. But, that would be the r esult if the expression business is given a narrow meaning which the appellant wants us to give to that expression. It would indeed be anamolous to hold that all the provisions of the Act including Section 4 which provides for the determination of fair rent and Section 10(1) which bars the eviction of tenants apply to nonresidential buildings owned by an Advocate but not Section 10 (3) (a) (iii) only. In our view the expression business occurring in Section 10(3)(a)(iii) is used in a wide sense so as to include the practice of the profession of an Advocate.The Kerala High Court in M.P. Sethurama Menon v. Meenakshi Amma &Ors., (supra) construed the expression trade or business as connoting commercial a ctivity and as not including the practice of the legal profession. The learned Judges referred to Article 19(1)(g) of the Constitution, Section 49 of the Advocates Act, 1961, the Madras Shops and Establishments Act, 1947 and drew a distinction between the words business and profession. As mentioned by us earlier, we do not think that it is right to ascribe to the word business occurring in the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the same meaning that the word may have when it occurs in other statutory provisions. The word must be interpreted in the context of the statute in which it occurs and not in the context of other statutes or in a manner alien to the context of the statute concerned. In Bangalore Water-Supply &Sewerage Board etc. v. R. Rajappa Ors., (supra) Chandrachud, J. (as he then was) observed".. I find myself unable to accept the broad formulation that a Solicitors establishment cannot be an industry. A Solicitor, undoubtedly, does not carry on trade or business when he acts for his client or advises him or pleads for him, if and when pleading is permissible to him. He pursues a profession which is variously and justifiably described a s learned, liberal or noble." 3. The observations of the Learned Judge were made in the context of the question whether a Solicitors establishment would fall within the definition of industry under the Industrial Disputes Act. It would be most unwise to apply this A observation to determine whether the practice of the liberal professions is within the meaning of the expression business in Rent Control legislation.In Stuchbery &Ors. v. General Accident Fire and Life Assurance Corporat ion Ltd., (supra) it was observed that the carrying on of a Solicitors business was the carrying on of a profession and was not the carrying on of a trade or business within the meaning of that phrase in the Landlord and Tenant Act, 1927. The observation was made in the context of that Act which made a distinction between trade or business and profession. In fact sub-section 3(a) of Section 17 of the Act expressly said:"for the purposes of this Section premises shall not be deem ed to be premises used for carrying on there at a trade or business by reason of their being used for the purpose of carrying on there at any profession". 4. The question in that case was about the right to compensation for the goodwill attached t o the premises where the "business" or "profession" was being carried on. We do not think 1 that the case is of any help to the appellant. 5. We may refer here to the decision of Danckwerts, J., in Re Williams Will Trusts, Chartered Bank of India, Australia and China and Another v. Williams and Others.([1953] All E.R. 536.) where the question was whether the bequest to a son for the purpose of starting him in business was affective to start the son in medical practice. The learned Judge held that it did, observing that the word business was capable of including the practice of a profession and that it plainly included the profession of a Doctor. 6. We may refer to just one more case i.e. Taramal v. Laxman Sewak Surey Ors([1971] M.P.L.J. 888.) where this very question whether the practice of law was a business within the meaning of the Madhya Pradesh Accommodation Control Act came for consideration before A. P. Sen, J. The learned Judge held that in the context of the Madhya Pradesh Act, the word business had to be given a wide meaning so as to include any profession.We, therefore, agree with the High Court that the practice of law is business within the meaning of that expression in Section 10(3) (a) (iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.
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0
### Explanation:
It is not a sound principle of construction to interpret expressions used in one Act with reference to their use in another Act; more so, if the two Acts in which the same word is used are not cognate Acts. Neither the meaning, nor the definition of the term in one statute affords a guide to the construction of the same term in another statute and the sense in which the term has been understood in the several statutes does not necessarily throw any light on the manner in which the term should be understood generally. On the other hand it is a sound, and, indeed, a well known principle of construction that meaning of words and expressions used in an Act must take their colour from the content in which they appearthe Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act,, is an Act to consolidate, and amend the law relating to the regulation of leasing of buildings, the control of rent thereof an(l the prevention of unreasonable eviction of tenants therefrom in the State of Andhra Pradesh. It applies to the cities of Hyderabad and Secunderabad and to all municipalities in the State of Andhra Pradesh. The provisions of the Act, however, do not apply to buildings owned by the Government and to buildings constructed on or after 26th August, 1957. Building is broadly defined as meaning any house or hut or a part of a house or hut, let or to be let separately for residential or nonresidential purposes. Landlord is defined as the owner of a building, including a person who is receiving or is entitled to receive the rent of a building, on his own account or on behalf of another person etc. Tenant is defined as a person by whom or on whose account rent is payable for a building. Section 4 provides for the determination of a fair rent of a building on the application of the tenant or landlord. Section 10(1) provide s that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of Sections 10, 12 and 13. Section 10(2) mentions several grounds on which a landlord may seek to evict a tenant. Th e grounds are default of payment of rent, sub-letting of premises, used for a purpose other than that for which it was leased, commission of acts of waste, conduct amounting to nuisance to the occupiers of the other portions in the same building, securing of alternative accommodation by the tenant and denial of the title of the landlord. The grounds mentioned in Section 10(2) apply both to residential and non-residential buildings. Section 10(3) (a) (i) provides for the eviction of a tenant where the landlord of a residential building requires it for his own occupation. Section 10(3)(a)(iii) provides for the eviction of a tenant from a non-residential building where "the landlord is not occupying a non-residential building in a city town or village concerned which is his own or to the possession of which he is entitled whether under the Act or otherwise-(a) for the purpose of a business which he is carrying on on the date of the application, or (b) for the purpos e of a business which in the opinion of the Controller, the landlord bona-fide proposes to commence". Section 12 and 13 contain special provisions relating to recovery of buildings by landlord for the purpose of effecting repairs , alterations or additions or for reconstruction. The scheme of the Act is to prevent unreasonable eviction of tenants by landlords and to provide for eviction on specified grounds. The Act is of general application and its protection not confined to any classes of tenants nor is the right to evict under the Act limited to any class of landlords. There is no reason why a landlord who is a member of the legal or medical professions and who requires the premises for carrying on the practice of his profession should be wholly debarred from obtaining possession of the premises. It is impossible to discover any reason for so making a discrimination against the liberal professions. But, that would be the r esult if the expression business is given a narrow meaning which the appellant wants us to give to that expression. It would indeed be anamolous to hold that all the provisions of the Act including Section 4 which provides for the determination of fair rent and Section 10(1) which bars the eviction of tenants apply to nonresidential buildings owned by an Advocate but not Section 10 (3) (a) (iii) only. In our view the expression business occurring in Section 10(3)(a)(iii) is used in a wide sense so as to include the practice of the profession of an Advocate.We, therefore, agree with the High Court that the practice of law is business within the meaning of that expression in Section 10(3) (a) (iii) ofthe Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act,
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Shobha Nelson Vs. The State Of Madhya Pradesh | the Appellants took prior permission before leaving for Zanzibar on deputation. In case the Appellants had gone abroad without seeking permission from the Government of Madhya Pradesh, the period spent by them in Zanzibar will be treated as `period of absence and a departmental inquiry would be initiated against them for going to a foreign country without taking permission from the competent authority.5. The Director of Health Services, Madhya Pradesh conducted an inquiry and held that the Appellants did not seek permission before going on deputation to a foreign country. The Appellants filed Writ Petitions 15094 of 2003 and 15095 of 2003 seeking a direction to the Respondent to permit them to join w.e.f. 13.08.1991 with all consequential benefits. They also filed Writ Petition 16754 of 2003 in which they sought for a relief of quashing the proceeding ordered on 03.01.1996. By a judgment dated 15.12.2004, the High Court directed the Respondent to accept the joining of the Appellants w.e.f. 13.08.1991. There was a further direction that the Appellants would be considered for promotion to higher post if they were entitled. The finding in the inquiry conducted by the Director of Medical Health that the Appellants did not obtain permission before leaving for deputation to Zanzibar was upheld. The Respondent challenged the judgment by filing Writ Appeals. A Division Bench of the High Court held that the direction given by the learned Judge to permit the Appellants to join w.e.f. 13.08.1991 was erroneous. The Division Bench further held the Respondent responsible for not issuing posting orders even after the order dated 03.01.1996 was passed. It was also directed that the Appellants shall be deemed to be in service from 03.01.1996. The Appellants were found entitled for only 20 per cent of the salary w.e.f. 03.01.1996 till their dates of superannuation. The Appellants as well as the Respondent state have filed Civil Appeals assailing the judgments of the Division Bench of the High Court.6. The undisputed facts of this case are that the Appellants were working as Doctors in the service of the Government of Madhya Pradesh. They went and worked in Zanzibar from 1975 to 1991. There is a finding recorded in the inquiry conducted by the Director of Medical Health that they left for Zanzibar without seeking permission. The said finding was confirmed by the Single Judge of the High Court which was not challenged by the Appellants. The Division Bench affirmed the said finding. It is clear that the Appellants submitted their joining report in 1991. The interim orders passed by the Administrative Tribunal on 13.03.1991 and 28.10.1991 whereby the Respondent were directed to issue posting orders to the Appellants were not implemented. The Appellants had to resort to filing a contempt petition. Ultimately an order was passed by the Respondent directing the Appellants to join duty w.e.f. 03.08.1996.7. The fact remains that actual posting orders were not issued to the Appellants. We agree with the Division Bench that the Respondent should be held responsible for not issuing actual posting orders to the Appellants. We see no reason as to why the Appellants would not have joined if they were given posting orders.8. The order dated 03.08.1996 by which the Appellants were directed to join was made subject to certain conditions. A fact finding inquiry was directed to be conducted to find out whether the Appellants had obtained permission before going abroad on deputation. If the Appellants were found guilty of not taking permission, the period spent by them in Zanzibar would be treated as `period of absence. A departmental inquiry was also contemplated in case the Appellants were found to have left India without taking permission from the competent authority. Though the Director of Health Service by an order dated 22.11.2000 found that the Appellants had not taken the requisite permission from the competent authority before going abroad, no steps were taken by the Respondent to treat the period spent by them in Zanzibar as `unauthorised absence. The Respondent also did not proceed to initiate a departmental inquiry against the Appellants for the alleged delinquency.9. Dr. Shobha Nelson attained the age of superannuation on 18.05.2002 and is aged 74 years now. Dr. S.K. Nelson would have retired from service on attaining the age of superannuation on 27.11.2000. Dr. S.K. Nelson died on 17.11.2014 and the application filed for substitution to bring his LRs on record was allowed by us on 07.04.2017.10. We are afraid that we cannot approve the findings of the Division Bench of the High Court that the Appellants are entitled to be deemed in service only from 03.01.1996. There is no interruption of their status as civil servants. Their services were not terminated at any time. We approve the view of the learned Single Judge that the Appellants should be given the benefit of joining back w.e.f. 13.08.1991. As stated supra, the Respondent has to be held responsible for not giving the posting orders to the Appellants in spite of interim orders passed by the Tribunal. It appears that the order dated 03.01.1996 was passed only because of the contempt petition filed by the Appellants in the Tribunal. The Division Bench did not assign any reason as to why the direction given by the learned Single Judge that the Appellants were entitled for the relief from 13.08.1991 had to be interfered with.11. Having decided that the Appellants are entitled to the service from 13.08.1991, the point that is to be determined is whether they should be treated to be in service even during period of their absence between 1975 to1991. In view of the finding that they did not take permission before going to Zanzibar in 1975, the normal course would have been to permit the Respondent to proceed with the departmental inquiry as contemplated in the order dated 03.01.1996. But taking note of the fact of retirement of both the Appellants and death of Dr. S.K. Nelson we do not see any useful purpose being served by directing any inquiry at this stage. | 1[ds]It is clear that the Appellants submitted their joining report in 1991. The interim orders passed by the Administrative Tribunal on 13.03.1991 and 28.10.1991 whereby the Respondent were directed to issue posting orders to the Appellants were not implemented. The Appellants had to resort to filing a contempt petition. Ultimately an order was passed by the Respondent directing the Appellants to join duty w.e.f. 03.08.1996.7. The fact remains that actual posting orders were not issued to the Appellants. We agree with the Division Bench that the Respondent should be held responsible for not issuing actual posting orders to the Appellants. We see no reason as to why the Appellants would not have joined if they were given posting orders.We are afraid that we cannot approve the findings of the Division Bench of the High Court that the Appellants are entitled to be deemed in service only from 03.01.1996. There is no interruption of their status as civil servants. Their services were not terminated at any time. We approve the view of the learned Single Judge that the Appellants should be given the benefit of joining back w.e.f. 13.08.1991. As stated supra, the Respondent has to be held responsible for not giving the posting orders to the Appellants in spite of interim orders passed by the Tribunal. It appears that the order dated 03.01.1996 was passed only because of the contempt petition filed by the Appellants in the Tribunal. The Division Bench did not assign any reason as to why the direction given by the learned Single Judge that the Appellants were entitled for the relief from 13.08.1991 had to be interfered with.11. Having decided that the Appellants are entitled to the service from 13.08.1991, the point that is to be determined is whetherthey should be treated to be in service even during period of their absence between 1975 to1991.In view of the finding that they did not take permission before going to Zanzibar in 1975, the normal course would have been to permit the Respondent to proceed with the departmental inquiry as contemplated in the order dated 03.01.1996. But taking note of the fact of retirement of both the Appellants and death of Dr. S.K. Nelson we do not see any useful purpose being served by directing any inquiry at this stage. | 1 | 1,642 | 408 | ### Instruction:
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the Appellants took prior permission before leaving for Zanzibar on deputation. In case the Appellants had gone abroad without seeking permission from the Government of Madhya Pradesh, the period spent by them in Zanzibar will be treated as `period of absence and a departmental inquiry would be initiated against them for going to a foreign country without taking permission from the competent authority.5. The Director of Health Services, Madhya Pradesh conducted an inquiry and held that the Appellants did not seek permission before going on deputation to a foreign country. The Appellants filed Writ Petitions 15094 of 2003 and 15095 of 2003 seeking a direction to the Respondent to permit them to join w.e.f. 13.08.1991 with all consequential benefits. They also filed Writ Petition 16754 of 2003 in which they sought for a relief of quashing the proceeding ordered on 03.01.1996. By a judgment dated 15.12.2004, the High Court directed the Respondent to accept the joining of the Appellants w.e.f. 13.08.1991. There was a further direction that the Appellants would be considered for promotion to higher post if they were entitled. The finding in the inquiry conducted by the Director of Medical Health that the Appellants did not obtain permission before leaving for deputation to Zanzibar was upheld. The Respondent challenged the judgment by filing Writ Appeals. A Division Bench of the High Court held that the direction given by the learned Judge to permit the Appellants to join w.e.f. 13.08.1991 was erroneous. The Division Bench further held the Respondent responsible for not issuing posting orders even after the order dated 03.01.1996 was passed. It was also directed that the Appellants shall be deemed to be in service from 03.01.1996. The Appellants were found entitled for only 20 per cent of the salary w.e.f. 03.01.1996 till their dates of superannuation. The Appellants as well as the Respondent state have filed Civil Appeals assailing the judgments of the Division Bench of the High Court.6. The undisputed facts of this case are that the Appellants were working as Doctors in the service of the Government of Madhya Pradesh. They went and worked in Zanzibar from 1975 to 1991. There is a finding recorded in the inquiry conducted by the Director of Medical Health that they left for Zanzibar without seeking permission. The said finding was confirmed by the Single Judge of the High Court which was not challenged by the Appellants. The Division Bench affirmed the said finding. It is clear that the Appellants submitted their joining report in 1991. The interim orders passed by the Administrative Tribunal on 13.03.1991 and 28.10.1991 whereby the Respondent were directed to issue posting orders to the Appellants were not implemented. The Appellants had to resort to filing a contempt petition. Ultimately an order was passed by the Respondent directing the Appellants to join duty w.e.f. 03.08.1996.7. The fact remains that actual posting orders were not issued to the Appellants. We agree with the Division Bench that the Respondent should be held responsible for not issuing actual posting orders to the Appellants. We see no reason as to why the Appellants would not have joined if they were given posting orders.8. The order dated 03.08.1996 by which the Appellants were directed to join was made subject to certain conditions. A fact finding inquiry was directed to be conducted to find out whether the Appellants had obtained permission before going abroad on deputation. If the Appellants were found guilty of not taking permission, the period spent by them in Zanzibar would be treated as `period of absence. A departmental inquiry was also contemplated in case the Appellants were found to have left India without taking permission from the competent authority. Though the Director of Health Service by an order dated 22.11.2000 found that the Appellants had not taken the requisite permission from the competent authority before going abroad, no steps were taken by the Respondent to treat the period spent by them in Zanzibar as `unauthorised absence. The Respondent also did not proceed to initiate a departmental inquiry against the Appellants for the alleged delinquency.9. Dr. Shobha Nelson attained the age of superannuation on 18.05.2002 and is aged 74 years now. Dr. S.K. Nelson would have retired from service on attaining the age of superannuation on 27.11.2000. Dr. S.K. Nelson died on 17.11.2014 and the application filed for substitution to bring his LRs on record was allowed by us on 07.04.2017.10. We are afraid that we cannot approve the findings of the Division Bench of the High Court that the Appellants are entitled to be deemed in service only from 03.01.1996. There is no interruption of their status as civil servants. Their services were not terminated at any time. We approve the view of the learned Single Judge that the Appellants should be given the benefit of joining back w.e.f. 13.08.1991. As stated supra, the Respondent has to be held responsible for not giving the posting orders to the Appellants in spite of interim orders passed by the Tribunal. It appears that the order dated 03.01.1996 was passed only because of the contempt petition filed by the Appellants in the Tribunal. The Division Bench did not assign any reason as to why the direction given by the learned Single Judge that the Appellants were entitled for the relief from 13.08.1991 had to be interfered with.11. Having decided that the Appellants are entitled to the service from 13.08.1991, the point that is to be determined is whether they should be treated to be in service even during period of their absence between 1975 to1991. In view of the finding that they did not take permission before going to Zanzibar in 1975, the normal course would have been to permit the Respondent to proceed with the departmental inquiry as contemplated in the order dated 03.01.1996. But taking note of the fact of retirement of both the Appellants and death of Dr. S.K. Nelson we do not see any useful purpose being served by directing any inquiry at this stage.
### Response:
1
### Explanation:
It is clear that the Appellants submitted their joining report in 1991. The interim orders passed by the Administrative Tribunal on 13.03.1991 and 28.10.1991 whereby the Respondent were directed to issue posting orders to the Appellants were not implemented. The Appellants had to resort to filing a contempt petition. Ultimately an order was passed by the Respondent directing the Appellants to join duty w.e.f. 03.08.1996.7. The fact remains that actual posting orders were not issued to the Appellants. We agree with the Division Bench that the Respondent should be held responsible for not issuing actual posting orders to the Appellants. We see no reason as to why the Appellants would not have joined if they were given posting orders.We are afraid that we cannot approve the findings of the Division Bench of the High Court that the Appellants are entitled to be deemed in service only from 03.01.1996. There is no interruption of their status as civil servants. Their services were not terminated at any time. We approve the view of the learned Single Judge that the Appellants should be given the benefit of joining back w.e.f. 13.08.1991. As stated supra, the Respondent has to be held responsible for not giving the posting orders to the Appellants in spite of interim orders passed by the Tribunal. It appears that the order dated 03.01.1996 was passed only because of the contempt petition filed by the Appellants in the Tribunal. The Division Bench did not assign any reason as to why the direction given by the learned Single Judge that the Appellants were entitled for the relief from 13.08.1991 had to be interfered with.11. Having decided that the Appellants are entitled to the service from 13.08.1991, the point that is to be determined is whetherthey should be treated to be in service even during period of their absence between 1975 to1991.In view of the finding that they did not take permission before going to Zanzibar in 1975, the normal course would have been to permit the Respondent to proceed with the departmental inquiry as contemplated in the order dated 03.01.1996. But taking note of the fact of retirement of both the Appellants and death of Dr. S.K. Nelson we do not see any useful purpose being served by directing any inquiry at this stage.
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Abdul Ghani Vs. State Of Jammu & Kashmir | be delivered to the detenu in addition to those grounds being communicated to him by being read out and translated. In the present case, under the proviso to Section 8, no grounds of detention have been served and there is no question of the petitioner knowing the grounds in detail in order to make a representation against them. He was only to be informed that it was not in the public interest to disclose the grounds. For such information, there was no need that the copy of that order must be served on him. 5. The third point urged raises a question of fact According to the petitioner, he was never given this information and his signatures were taken on a blank sheet of paper. This argument is based on assertion of wrong facts. We have seen the original order issued under the proviso to Section 8. At the time when the information in pursuance of it was given to the petitioner, an endorsement was made on the back in Urdu reciting the fact that the petitioner had been informed as directed and it was under this endorsement that the signature of the petitioner was taken. The petitioners signature is also in Urdu and the handwriting shows that he can read and write Urdu very well. Since he signed under the endorsement, it is clear that he must have known what he was signing and his assertion in the present case that his signatures were taken on a blank paper is totally false. 6. The fourth point urged was that the District Magistrate, when making the order for detention, did not apply his mind, because his order does not mention the existence of any materials which could have impelled him to make the order of detention of the petitioner. In the order made under Section 3 of the Act, the existence of material does not require to be mentioned. The order recites that the District Magistrate is satisfied that it is necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the security of the State. That this satisfaction was based on materials is further clarified by the order of the Government confirming the dentition which mentions that the District Magistrate had, with his report, sent to the Government the grounds on which the order had been made as well as other particulars having bearing on the matter. It is, therefore, not a case where the District Magistrate can be held to have passed an order without any material at all. 7. The fifth point urged is that, in the order of detention, the District Magistrate has, when giving the reason for making the order, stated that he is satisfied that it is necessary to do so with a view to preventing the petitioner from acting in "a" manner prejudicial to the security of the State, while Section 3 of the Act mentions that such an order can be made, if the Government or the District Magistrate is satisfied with respect to any person that it is necessary to make the order with a view to preventing him from acting in "any" manner prejudicial to the security of the State. According to learned counsel, the District Magistrate, by using the word "a before the word "manner" instead of the word "any" as used in the statute, made an order which is outside the scope of the statute. The argument is clearly misconceived. The expression "acting in any manner" used in the Act clearly covers a case where the satisfaction of the District Magistrate is that the person, in respect of whom the order is going to be made, is to be prevented from "acting in a manner" prejudicial to the security of the State. The point raised has merely to be stated to be rejected. 8. The sixth point argued was that, in the order containing the direction that the petitioner be informed that it is not in public interest to communicate the grounds of detention to him, the District Magistrate has referred to the petitioner as one who "has been" detained, which shows that on 9th May. 1970, when this order was made, the petitioner was already under detention, so that the plea of the petitioner that he was actually taken in custody earlier than 22nd May, 1970, is correct. Since there was no authority for earlier detention, his detention must be held to be illegal. It is true that the language used in the order under the proviso to Section 8 is incorrect. It is clear that both the order of detention under Section 3 and this direction under the proviso to Section 8 were passed by the District Magistrate on the same day one after the other. The proviso to Section 8 permits the District Magistrate to make the direction at the same time when the order of detention is made under Section 3, and this is what the District Magistrate actually did. He appears to have used the expression "has been" by mistake. It has been established by affidavits filed on behalf of the Government that, in pursuance of the order of detention dated 9th May, 1970, the petitioner was actually detained on 22nd May, 1970 and not before the order containing the direction under the proviso to Section 8 was issued. The use of this incorrect expression does not imply that the detention was illegal. 9. The seventh and the last point urged was that, under the proviso to Section 8 of the Act, non-communication of the grounds of detention is permissible it communication of grounds is against public interest, while, in the direction made by the District Magistrate, he has stated that it is against the interests of the security of the State. This is mere quibbling. Any action in the interest of the security of the State is clearly in public interest, so that the direction was fully covered by the proviso to Section 8. | 0[ds]3. This submission made by learned counsel, on the face of it, has no substance at all. The introduction of the provision contained in Article 35 (c), when applying the Constitution to the State of Jammu and Kashmir, did not in any way affect the right of a citizen of Jammu and Kashmir to move the Supreme Court of India for an appropriate writ under Article 32. The effect of that amendment only was that, when approaching the Supreme Court, the detain could not challenge the validity of the Act on the ground that any provision of it contravened the provision of Article 22. This modification in the Constitution had, therefore, no bearing at all on Article 32 (4). Further, under Article 370, the President is given the full discretion to apply the Constitution with such exceptions and modifications as he may, by order, specify. It was at the initial stage, when applying the Constitution to the State of Jammu and Kashmir, that this modification was made in Article 35. This was, therefore, not a case where any provision of the Constitution as already applied to Jammu and Kashmir was being modified in which case only a question could arise whether that modification was permissible. The modification at the initial stage of applying the Constitution itself cannot be challenged on the ground that it abridges any of the fundamental rights. At the time of applying the Constitutions, no such fundamental rights existed in the State of Jammu and Kashmir. They came into existence only by virtue of the Order of the President applying the Constitution and at that stage they came into force in the modified form in which they were applied. This point raised by learned counsel, therefore, has no force at allThat case, however, has no application at all, because, in that case, the question that arose was whether it was necessary that a copy of the grounds of detention, which were quite lengthy, should be delivered to the detenu in addition to those grounds being communicated to him by being read out and translated. In the present case, under the proviso to Section 8, no grounds of detention have been served and there is no question of the petitioner knowing the grounds in detail in order to make a representation against them. He was only to be informed that it was not in the public interest to disclose the grounds. For such information, there was no need that the copy of that order must be served on himWe have seen the original order issued under the proviso to Section 8. At the time when the information in pursuance of it was given to the petitioner, an endorsement was made on the back in Urdu reciting the fact that the petitioner had been informed as directed and it was under this endorsement that the signature of the petitioner was taken. The petitioners signature is also in Urdu and the handwriting shows that he can read and write Urdu very well. Since he signed under the endorsement, it is clear that he must have known what he was signing and his assertion in the present case that his signatures were taken on a blank paper is totally falseThat this satisfaction was based on materials is further clarified by the order of the Government confirming the dentition which mentions that the District Magistrate had, with his report, sent to the Government the grounds on which the order had been made as well as other particulars having bearing on the matter. It is, therefore, not a case where the District Magistrate can be held to have passed an order without any material at allThe argument is clearly misconceived. The expression "acting in any manner" used in the Act clearly covers a case where the satisfaction of the District Magistrate is that the person, in respect of whom the order is going to be made, is to be prevented from "acting in a manner" prejudicial to the security of the State. The point raised has merely to be stated to be rejectedSince there was no authority for earlier detention, his detention must be held to be illegal. It is true that the language used in the order under the proviso to Section 8 is incorrect. It is clear that both the order of detention under Section 3 and this direction under the proviso to Section 8 were passed by the District Magistrate on the same day one after the other. The proviso to Section 8 permits the District Magistrate to make the direction at the same time when the order of detention is made under Section 3, and this is what the District Magistrate actually did. He appears to have used the expression "has been" by mistake. It has been established by affidavits filed on behalf of the Government that, in pursuance of the order of detention dated 9th May, 1970, the petitioner was actually detained on 22nd May, 1970 and not before the order containing the direction under the proviso to Section 8 was issued. The use of this incorrect expression does not imply that the detention was illegalThis is mere quibbling. Any action in the interest of the security of the State is clearly in public interest, so that the direction was fully covered by the proviso to Section 8. | 0 | 2,639 | 977 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
be delivered to the detenu in addition to those grounds being communicated to him by being read out and translated. In the present case, under the proviso to Section 8, no grounds of detention have been served and there is no question of the petitioner knowing the grounds in detail in order to make a representation against them. He was only to be informed that it was not in the public interest to disclose the grounds. For such information, there was no need that the copy of that order must be served on him. 5. The third point urged raises a question of fact According to the petitioner, he was never given this information and his signatures were taken on a blank sheet of paper. This argument is based on assertion of wrong facts. We have seen the original order issued under the proviso to Section 8. At the time when the information in pursuance of it was given to the petitioner, an endorsement was made on the back in Urdu reciting the fact that the petitioner had been informed as directed and it was under this endorsement that the signature of the petitioner was taken. The petitioners signature is also in Urdu and the handwriting shows that he can read and write Urdu very well. Since he signed under the endorsement, it is clear that he must have known what he was signing and his assertion in the present case that his signatures were taken on a blank paper is totally false. 6. The fourth point urged was that the District Magistrate, when making the order for detention, did not apply his mind, because his order does not mention the existence of any materials which could have impelled him to make the order of detention of the petitioner. In the order made under Section 3 of the Act, the existence of material does not require to be mentioned. The order recites that the District Magistrate is satisfied that it is necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the security of the State. That this satisfaction was based on materials is further clarified by the order of the Government confirming the dentition which mentions that the District Magistrate had, with his report, sent to the Government the grounds on which the order had been made as well as other particulars having bearing on the matter. It is, therefore, not a case where the District Magistrate can be held to have passed an order without any material at all. 7. The fifth point urged is that, in the order of detention, the District Magistrate has, when giving the reason for making the order, stated that he is satisfied that it is necessary to do so with a view to preventing the petitioner from acting in "a" manner prejudicial to the security of the State, while Section 3 of the Act mentions that such an order can be made, if the Government or the District Magistrate is satisfied with respect to any person that it is necessary to make the order with a view to preventing him from acting in "any" manner prejudicial to the security of the State. According to learned counsel, the District Magistrate, by using the word "a before the word "manner" instead of the word "any" as used in the statute, made an order which is outside the scope of the statute. The argument is clearly misconceived. The expression "acting in any manner" used in the Act clearly covers a case where the satisfaction of the District Magistrate is that the person, in respect of whom the order is going to be made, is to be prevented from "acting in a manner" prejudicial to the security of the State. The point raised has merely to be stated to be rejected. 8. The sixth point argued was that, in the order containing the direction that the petitioner be informed that it is not in public interest to communicate the grounds of detention to him, the District Magistrate has referred to the petitioner as one who "has been" detained, which shows that on 9th May. 1970, when this order was made, the petitioner was already under detention, so that the plea of the petitioner that he was actually taken in custody earlier than 22nd May, 1970, is correct. Since there was no authority for earlier detention, his detention must be held to be illegal. It is true that the language used in the order under the proviso to Section 8 is incorrect. It is clear that both the order of detention under Section 3 and this direction under the proviso to Section 8 were passed by the District Magistrate on the same day one after the other. The proviso to Section 8 permits the District Magistrate to make the direction at the same time when the order of detention is made under Section 3, and this is what the District Magistrate actually did. He appears to have used the expression "has been" by mistake. It has been established by affidavits filed on behalf of the Government that, in pursuance of the order of detention dated 9th May, 1970, the petitioner was actually detained on 22nd May, 1970 and not before the order containing the direction under the proviso to Section 8 was issued. The use of this incorrect expression does not imply that the detention was illegal. 9. The seventh and the last point urged was that, under the proviso to Section 8 of the Act, non-communication of the grounds of detention is permissible it communication of grounds is against public interest, while, in the direction made by the District Magistrate, he has stated that it is against the interests of the security of the State. This is mere quibbling. Any action in the interest of the security of the State is clearly in public interest, so that the direction was fully covered by the proviso to Section 8.
### Response:
0
### Explanation:
3. This submission made by learned counsel, on the face of it, has no substance at all. The introduction of the provision contained in Article 35 (c), when applying the Constitution to the State of Jammu and Kashmir, did not in any way affect the right of a citizen of Jammu and Kashmir to move the Supreme Court of India for an appropriate writ under Article 32. The effect of that amendment only was that, when approaching the Supreme Court, the detain could not challenge the validity of the Act on the ground that any provision of it contravened the provision of Article 22. This modification in the Constitution had, therefore, no bearing at all on Article 32 (4). Further, under Article 370, the President is given the full discretion to apply the Constitution with such exceptions and modifications as he may, by order, specify. It was at the initial stage, when applying the Constitution to the State of Jammu and Kashmir, that this modification was made in Article 35. This was, therefore, not a case where any provision of the Constitution as already applied to Jammu and Kashmir was being modified in which case only a question could arise whether that modification was permissible. The modification at the initial stage of applying the Constitution itself cannot be challenged on the ground that it abridges any of the fundamental rights. At the time of applying the Constitutions, no such fundamental rights existed in the State of Jammu and Kashmir. They came into existence only by virtue of the Order of the President applying the Constitution and at that stage they came into force in the modified form in which they were applied. This point raised by learned counsel, therefore, has no force at allThat case, however, has no application at all, because, in that case, the question that arose was whether it was necessary that a copy of the grounds of detention, which were quite lengthy, should be delivered to the detenu in addition to those grounds being communicated to him by being read out and translated. In the present case, under the proviso to Section 8, no grounds of detention have been served and there is no question of the petitioner knowing the grounds in detail in order to make a representation against them. He was only to be informed that it was not in the public interest to disclose the grounds. For such information, there was no need that the copy of that order must be served on himWe have seen the original order issued under the proviso to Section 8. At the time when the information in pursuance of it was given to the petitioner, an endorsement was made on the back in Urdu reciting the fact that the petitioner had been informed as directed and it was under this endorsement that the signature of the petitioner was taken. The petitioners signature is also in Urdu and the handwriting shows that he can read and write Urdu very well. Since he signed under the endorsement, it is clear that he must have known what he was signing and his assertion in the present case that his signatures were taken on a blank paper is totally falseThat this satisfaction was based on materials is further clarified by the order of the Government confirming the dentition which mentions that the District Magistrate had, with his report, sent to the Government the grounds on which the order had been made as well as other particulars having bearing on the matter. It is, therefore, not a case where the District Magistrate can be held to have passed an order without any material at allThe argument is clearly misconceived. The expression "acting in any manner" used in the Act clearly covers a case where the satisfaction of the District Magistrate is that the person, in respect of whom the order is going to be made, is to be prevented from "acting in a manner" prejudicial to the security of the State. The point raised has merely to be stated to be rejectedSince there was no authority for earlier detention, his detention must be held to be illegal. It is true that the language used in the order under the proviso to Section 8 is incorrect. It is clear that both the order of detention under Section 3 and this direction under the proviso to Section 8 were passed by the District Magistrate on the same day one after the other. The proviso to Section 8 permits the District Magistrate to make the direction at the same time when the order of detention is made under Section 3, and this is what the District Magistrate actually did. He appears to have used the expression "has been" by mistake. It has been established by affidavits filed on behalf of the Government that, in pursuance of the order of detention dated 9th May, 1970, the petitioner was actually detained on 22nd May, 1970 and not before the order containing the direction under the proviso to Section 8 was issued. The use of this incorrect expression does not imply that the detention was illegalThis is mere quibbling. Any action in the interest of the security of the State is clearly in public interest, so that the direction was fully covered by the proviso to Section 8.
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Carona Sahu Company Limited Vs. Abdul Karim Munafkhan and Another | wages. The determination of the back wages is only on the basis of what the workman would have drawn during the period commencing from the date of dismissal and till the date of reinstatement and the quantum of back wages includes all the permissible increases during that interregnum. The expression "full wages last drawn" in our judgment means the full wages which the workman was entitled to draw in pursuance of the award and the implementation of which is suspended during the pendency of the proceedings. The submission of Shri Bhatkal, that the expression "last drawn" suggests that the workman is entitled only to that amount which was received by him at the time of dismissal, cannot be accepted. Though the word "drawn" connotes past tense, it is obvious that the proper construction of the section is that the workman is entitled to the full wages which the workman would have been entitled to draw but for the pendency of the proceedings in Court.The proviso to section 17-B sets out that in case the workman had been employed and had been receiving adequate remuneration during the pendency of the proceedings, then the Court can order that no wages will be payable or only part of the wages will be payable. The use of the expression "adequate remuneration" in the proviso while the use of the expression "full wages last drawn" in the principal body of the section indicates that the legislature contemplated payment of full wages as if employed in cases where the workman had not been employed in any establishment. It cannot even be suggested that the amount of Rs. 1,024.23 was the full wages when the workman, in case of reinstatement is entitled to draw a sum of Rs. 2,588.15. In these circumstances, in our judgment, the learned Single Judge was perfectly justified in directing the appellant Company to pay a sum of Rs. 2,588.15 to the respondent No. 1 during the pendency of the proceedings.5.Shri Bhatkal referred to decision of Delhi High Court reported in (1992) 1 L.L.J. 710, (M/s. Fouress Engineering (I) Pvt. Ltd. v. Delhi Administration and others), and to the decision of Karnataka High Court reported in (1993) II L. L. J. 198 (M/s Visveswaraya Iron and Steel Co. Ltd. v. M. Chandrappa and another). Shir Bhatkal very fairly submitted that the issue did not directly come up for consideration in these two cases, but the learned counsel relied upon some of the observations made in the decisions in support of the submission. The Division Bench of Delhi High Court which was hearing an appeal against order passed by learned Single Judge quoted the observations made by the learned Single Judge in paragraph 8 of the judgment . The observations are to the following effect :-"....What section 17B postulates is `full wages last drawn by the workman. Last drawn wages would be those which were drawn during the period of service, and the order which needs to be passed in such matters, would take into account the full wages last drawn. `Back wages is just a convenient expression. Statutory provision requires full wages last drawn by the workman to be paid to him. Full wages means full wages during the course of employment, and not what was paid upon termination of the employment."The Division Bench then confirmed the order passed by the learned Single Judge. We cannot appreciate the observations of the learned Single Judge approved by the Division Bench to the effect that the last drawn wages would be those which were drawn during the period of service. The subsequent observation that the full wages means `full wages during the course of employment and not what was paid upon termination of the employment seems to be conflicting. In the case before the Division Bench of Karnataka High Court, the award directing reinstatement of the workman was challenged before the learned Single Judge and the operation of the award was stayed on condition that the workman is reinstated and paid current wages. In view of the limited suspension of the award, the question as to the applicability of section 17-B of the Act did not arise for consideration. The Divisional Bench did make certain observation in paragraphs 12 and 13 of the judgment. The Division Bench observed in paragraph 12 that the contention, that the full wages last drawn should be interpreted so as to include not only the yearly increment and the DA but also the revision of pay, if any, effected during the pendency of the proceeding before the Labour Court and the amount payable per month should be determined accordingly, cannot be contracted. The Division Bench subsequently held that the content of the words "full wages last drawn" would take into their fold the wages drawn on the date of termination of the services plus the yearly increment and the DA to be worked out till the date of the award and that sum has to be paid to the workman during the pendency of the proceedings before the High Court. In our judgment, subsequent observations are not accurate. It is possible that the Division Bench had in contemplation that though the wages payable to the workman were those payable on the date of the award, still while determining those wages, the component of revision of wages cannot be taken into consideration. In our judgment, it is not possible even to deny the component of revision of wages while determining the quantum of wages payable on the date of the award to the workman. Every component of wages payable on the date of the award must be taken into consideration while determining what are the wages payable to the workman on the date of the award. In our judgment, this interpretation of the expression "wages last drawn" sub-serves the object and intention of the Parliament in enacting section 17-B of the Act. The decision of the learned Single Judge therefore does not suffer from any infirmity and the appeal must fail. | 0[ds]The plain reading of the section makes it clear that the right to secure full wages is conferred upon the workman in cases were (a) award directs reinstatement of any workman; (b) employer prefers proceedings against such award in High Court or the Supreme Court and (c) the workman had not been employed in any establishment during the pendency of the proceedings in High Court or the Supreme Court. It is not in dispute in the present case that the award directs reinstatement of respondent No. 1 and the appellant Company had preferred petition in this Court to challenge the legality of the award and the respondent No. 1 had not been employed in any establishment during the pendency of the writ petition. Shri Bhatkal therefore, very rightly did not dispute that the workman is entitled to the benefit under sectionof the Act.The only dispute is in respect of quantum of wages payable to the workman during the pendency of the proceedings and to determine that question, it is necessary to ascertain the exact import of the expression "full wages last drawn". As mentioned hereinabove, the wages drawn by the workman on the date of dismissal were Rs. 1,024.23. It is not in dispute that in case the workman had continued in service till the date of the award, then the workman would have been entitled to draw the wages at the rate of Rs. 2,558.15is not possible to accede to the submission. The Parliament had introduced sectionof the Act with the object that the workman is not deprived of wages which he is entitled to draw in case the award directing reinstatement is implemented. The workman is deprived of the wages payable in pursuance of the award only because of pendency of the proceedings. The award directing reinstatement and continuity of service makes it clear that the dismissal of the employee was illegal and in the eyes of law the workman continued in service and consequently the workman was entitled also to payment of back wages. The determination of the back wages is only on the basis of what the workman would have drawn during the period commencing from the date of dismissal and till the date of reinstatement and the quantum of back wages includes all the permissible increases during that interregnum. The expression "full wages last drawn" in our judgment means the full wages which the workman was entitled to draw in pursuance of the award and the implementation of which is suspended during the pendency of the proceedings. The submission of Shri Bhatkal, that the expression "last drawn" suggests that the workman is entitled only to that amount which was received by him at the time of dismissal, cannot be accepted. Though the word "drawn" connotes past tense, it is obvious that the proper construction of the section is that the workman is entitled to the full wages which the workman would have been entitled to draw but for the pendency of the proceedings in Court.The proviso to sectionsets out that in case the workman had been employed and had been receiving adequate remuneration during the pendency of the proceedings, then the Court can order that no wages will be payable or only part of the wages will be payable. The use of the expression "adequate remuneration" in the proviso while the use of the expression "full wages last drawn" in the principal body of the section indicates that the legislature contemplated payment of full wages as if employed in cases where the workman had not been employed in any establishment. It cannot even be suggested that the amount of Rs. 1,024.23 was the full wages when the workman, in case of reinstatement is entitled to draw a sum of Rs. 2,588.15. In these circumstances, in our judgment, the learned Single Judge was perfectly justified in directing the appellant Company to pay a sum of Rs. 2,588.15 to the respondent No. 1 during the pendency of thecannot appreciate the observations of the learned Single Judge approved by the Division Bench to the effect that the last drawn wages would be those which were drawn during the period of service. The subsequent observation that the full wages means `full wages during the course of employment and not what was paid upon termination of the employment seems to be conflicting. In the case before the Division Bench of Karnataka High Court, the award directing reinstatement of the workman was challenged before the learned Single Judge and the operation of the award was stayed on condition that the workman is reinstated and paid current wages. In view of the limited suspension of the award, the question as to the applicability of sectionof the Act did not arise for consideration. The Divisional Bench did make certain observation in paragraphs 12 and 13 of the judgment. The Division Bench observed in paragraph 12 that the contention, that the full wages last drawn should be interpreted so as to include not only the yearly increment and the DA but also the revision of pay, if any, effected during the pendency of the proceeding before the Labour Court and the amount payable per month should be determined accordingly, cannot be contracted. The Division Bench subsequently held that the content of the words "full wages last drawn" would take into their fold the wages drawn on the date of termination of the services plus the yearly increment and the DA to be worked out till the date of the award and that sum has to be paid to the workman during the pendency of the proceedings before the High Court. In our judgment, subsequent observations are not accurate. It is possible that the Division Bench had in contemplation that though the wages payable to the workman were those payable on the date of the award, still while determining those wages, the component of revision of wages cannot be taken into consideration. In our judgment, it is not possible even to deny the component of revision of wages while determining the quantum of wages payable on the date of the award to the workman. Every component of wages payable on the date of the award must be taken into consideration while determining what are the wages payable to the workman on the date of the award. In our judgment, this interpretation of the expression "wages last drawn"the object and intention of the Parliament in enacting sectionof the Act.The decision of the learned Single Judge therefore does not suffer from any infirmity and the appeal must fail. | 0 | 2,613 | 1,180 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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wages. The determination of the back wages is only on the basis of what the workman would have drawn during the period commencing from the date of dismissal and till the date of reinstatement and the quantum of back wages includes all the permissible increases during that interregnum. The expression "full wages last drawn" in our judgment means the full wages which the workman was entitled to draw in pursuance of the award and the implementation of which is suspended during the pendency of the proceedings. The submission of Shri Bhatkal, that the expression "last drawn" suggests that the workman is entitled only to that amount which was received by him at the time of dismissal, cannot be accepted. Though the word "drawn" connotes past tense, it is obvious that the proper construction of the section is that the workman is entitled to the full wages which the workman would have been entitled to draw but for the pendency of the proceedings in Court.The proviso to section 17-B sets out that in case the workman had been employed and had been receiving adequate remuneration during the pendency of the proceedings, then the Court can order that no wages will be payable or only part of the wages will be payable. The use of the expression "adequate remuneration" in the proviso while the use of the expression "full wages last drawn" in the principal body of the section indicates that the legislature contemplated payment of full wages as if employed in cases where the workman had not been employed in any establishment. It cannot even be suggested that the amount of Rs. 1,024.23 was the full wages when the workman, in case of reinstatement is entitled to draw a sum of Rs. 2,588.15. In these circumstances, in our judgment, the learned Single Judge was perfectly justified in directing the appellant Company to pay a sum of Rs. 2,588.15 to the respondent No. 1 during the pendency of the proceedings.5.Shri Bhatkal referred to decision of Delhi High Court reported in (1992) 1 L.L.J. 710, (M/s. Fouress Engineering (I) Pvt. Ltd. v. Delhi Administration and others), and to the decision of Karnataka High Court reported in (1993) II L. L. J. 198 (M/s Visveswaraya Iron and Steel Co. Ltd. v. M. Chandrappa and another). Shir Bhatkal very fairly submitted that the issue did not directly come up for consideration in these two cases, but the learned counsel relied upon some of the observations made in the decisions in support of the submission. The Division Bench of Delhi High Court which was hearing an appeal against order passed by learned Single Judge quoted the observations made by the learned Single Judge in paragraph 8 of the judgment . The observations are to the following effect :-"....What section 17B postulates is `full wages last drawn by the workman. Last drawn wages would be those which were drawn during the period of service, and the order which needs to be passed in such matters, would take into account the full wages last drawn. `Back wages is just a convenient expression. Statutory provision requires full wages last drawn by the workman to be paid to him. Full wages means full wages during the course of employment, and not what was paid upon termination of the employment."The Division Bench then confirmed the order passed by the learned Single Judge. We cannot appreciate the observations of the learned Single Judge approved by the Division Bench to the effect that the last drawn wages would be those which were drawn during the period of service. The subsequent observation that the full wages means `full wages during the course of employment and not what was paid upon termination of the employment seems to be conflicting. In the case before the Division Bench of Karnataka High Court, the award directing reinstatement of the workman was challenged before the learned Single Judge and the operation of the award was stayed on condition that the workman is reinstated and paid current wages. In view of the limited suspension of the award, the question as to the applicability of section 17-B of the Act did not arise for consideration. The Divisional Bench did make certain observation in paragraphs 12 and 13 of the judgment. The Division Bench observed in paragraph 12 that the contention, that the full wages last drawn should be interpreted so as to include not only the yearly increment and the DA but also the revision of pay, if any, effected during the pendency of the proceeding before the Labour Court and the amount payable per month should be determined accordingly, cannot be contracted. The Division Bench subsequently held that the content of the words "full wages last drawn" would take into their fold the wages drawn on the date of termination of the services plus the yearly increment and the DA to be worked out till the date of the award and that sum has to be paid to the workman during the pendency of the proceedings before the High Court. In our judgment, subsequent observations are not accurate. It is possible that the Division Bench had in contemplation that though the wages payable to the workman were those payable on the date of the award, still while determining those wages, the component of revision of wages cannot be taken into consideration. In our judgment, it is not possible even to deny the component of revision of wages while determining the quantum of wages payable on the date of the award to the workman. Every component of wages payable on the date of the award must be taken into consideration while determining what are the wages payable to the workman on the date of the award. In our judgment, this interpretation of the expression "wages last drawn" sub-serves the object and intention of the Parliament in enacting section 17-B of the Act. The decision of the learned Single Judge therefore does not suffer from any infirmity and the appeal must fail.
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had preferred petition in this Court to challenge the legality of the award and the respondent No. 1 had not been employed in any establishment during the pendency of the writ petition. Shri Bhatkal therefore, very rightly did not dispute that the workman is entitled to the benefit under sectionof the Act.The only dispute is in respect of quantum of wages payable to the workman during the pendency of the proceedings and to determine that question, it is necessary to ascertain the exact import of the expression "full wages last drawn". As mentioned hereinabove, the wages drawn by the workman on the date of dismissal were Rs. 1,024.23. It is not in dispute that in case the workman had continued in service till the date of the award, then the workman would have been entitled to draw the wages at the rate of Rs. 2,558.15is not possible to accede to the submission. The Parliament had introduced sectionof the Act with the object that the workman is not deprived of wages which he is entitled to draw in case the award directing reinstatement is implemented. The workman is deprived of the wages payable in pursuance of the award only because of pendency of the proceedings. The award directing reinstatement and continuity of service makes it clear that the dismissal of the employee was illegal and in the eyes of law the workman continued in service and consequently the workman was entitled also to payment of back wages. The determination of the back wages is only on the basis of what the workman would have drawn during the period commencing from the date of dismissal and till the date of reinstatement and the quantum of back wages includes all the permissible increases during that interregnum. The expression "full wages last drawn" in our judgment means the full wages which the workman was entitled to draw in pursuance of the award and the implementation of which is suspended during the pendency of the proceedings. The submission of Shri Bhatkal, that the expression "last drawn" suggests that the workman is entitled only to that amount which was received by him at the time of dismissal, cannot be accepted. Though the word "drawn" connotes past tense, it is obvious that the proper construction of the section is that the workman is entitled to the full wages which the workman would have been entitled to draw but for the pendency of the proceedings in Court.The proviso to sectionsets out that in case the workman had been employed and had been receiving adequate remuneration during the pendency of the proceedings, then the Court can order that no wages will be payable or only part of the wages will be payable. The use of the expression "adequate remuneration" in the proviso while the use of the expression "full wages last drawn" in the principal body of the section indicates that the legislature contemplated payment of full wages as if employed in cases where the workman had not been employed in any establishment. It cannot even be suggested that the amount of Rs. 1,024.23 was the full wages when the workman, in case of reinstatement is entitled to draw a sum of Rs. 2,588.15. In these circumstances, in our judgment, the learned Single Judge was perfectly justified in directing the appellant Company to pay a sum of Rs. 2,588.15 to the respondent No. 1 during the pendency of thecannot appreciate the observations of the learned Single Judge approved by the Division Bench to the effect that the last drawn wages would be those which were drawn during the period of service. The subsequent observation that the full wages means `full wages during the course of employment and not what was paid upon termination of the employment seems to be conflicting. In the case before the Division Bench of Karnataka High Court, the award directing reinstatement of the workman was challenged before the learned Single Judge and the operation of the award was stayed on condition that the workman is reinstated and paid current wages. In view of the limited suspension of the award, the question as to the applicability of sectionof the Act did not arise for consideration. The Divisional Bench did make certain observation in paragraphs 12 and 13 of the judgment. The Division Bench observed in paragraph 12 that the contention, that the full wages last drawn should be interpreted so as to include not only the yearly increment and the DA but also the revision of pay, if any, effected during the pendency of the proceeding before the Labour Court and the amount payable per month should be determined accordingly, cannot be contracted. The Division Bench subsequently held that the content of the words "full wages last drawn" would take into their fold the wages drawn on the date of termination of the services plus the yearly increment and the DA to be worked out till the date of the award and that sum has to be paid to the workman during the pendency of the proceedings before the High Court. In our judgment, subsequent observations are not accurate. It is possible that the Division Bench had in contemplation that though the wages payable to the workman were those payable on the date of the award, still while determining those wages, the component of revision of wages cannot be taken into consideration. In our judgment, it is not possible even to deny the component of revision of wages while determining the quantum of wages payable on the date of the award to the workman. Every component of wages payable on the date of the award must be taken into consideration while determining what are the wages payable to the workman on the date of the award. In our judgment, this interpretation of the expression "wages last drawn"the object and intention of the Parliament in enacting sectionof the Act.The decision of the learned Single Judge therefore does not suffer from any infirmity and the appeal must fail.
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Charu Chandra Kundu Vs. Gurupada Ghosh | protection and privilege under S. 54 of the Income-tax Act.3. It was the case of the appellant that in certain proceedings relating to assessment of income-tax of the appellant for the year 1949-50, the respondent had on February 22, 1950, made a statement before the Income-tax Officer, and to support his defence in the suit he desired that the statement be produced before the Court. The trial Court upheld the objection raised by the Commissioner of Income-tax that in view of S. 54, he could not be required to produce the statement he was summoned to produce, and the High Court of Judicature at Calcutta in exercise of its jurisdiction under S. 115 of the Code of Civil Procedure confirmed that view.4. Section 54 of the Income-tax Act by the first sub-section declares all particulars contained in any statement made, return furnished or accounts or documents produced under the provisions of the Income-tax Act or in any evidence given, or affidavit or deposition made, in the course of any proceedings of any assessment proceedings under Chap. VIII, or in any record of any assessment proceeding or any proceeding relating to the recovery of a demand prepared for the purposes of the Act, shall be treated as confidential. The sub-section then proceeds to state that notwithstanding anything contained in the Indian Evidence Act, 1872, no court shall save as provided in the Act, be entitled to require any public servant to produce before it any such return, accounts, documents or record or any part of any such record or to give evidence before it in respect thereof. By sub-s. (2), a public servant disclosing any particular contained in any such document, return, accounts, documents, evidence, affidavit, deposition or record, is liable to be punished with imprisonment which may expend to six months and also with fine. These provisions however do not apply to certain documents specified in cls. (a) to (p) of sub-s. (3).5. It is manifest that disclosure of information given to public servants in the course of income-tax proceedings has by a comprehensive provision been prohibited. The Income-tax authorities are directed by the provision to treat the information disclosed, evidence given, and documents produced as confidential : the Courts are prohibited from requiring any public servant to produce the documents or the records and even to give evidence in respect thereof, and the public servants disclosing the particulars of the evidence, documents or record are penalised. The statement alleged to be made by the respondent in the assessment proceedings is not of the nature described in sub-s. (3) of S. 54, and is therefore not exempt from the operation of sub-ss. (1) and (2). There being an express interdict against the Court requiring production of the document, the Subordinate Judge was right in declining to accede to the request of the appellant.6. Mr. Chatterjee appearing on behalf of the appellant contends that S. 54 is enacted only for the protection of the assessee, and if the assessee waives the privilege enacted for his protection, the prohibition contained therein will be inoperative. But there is no such exception, express or implied, in the language used by the legislature. The prohibition imposed against the Court by S. 54 is absolute : its operation is not obliterated by any waiver by the assessee in whose assessment the evidence is tendered, document produced or record prepared.7. Mr. Chatterjee relied upon Buchibai v. Nagpur University, (1947) 15 ITR 150 : (AIR 1946 Nag 377) in support of his contention that an assessee is entitled to waive the privilege which confers protection upon him by S. 54. In that case, however, the only question which fell to be determined was whether certified copies of statements recorded or orders passed by the Income-tax authorities were admissible in evidence under S. 65 of the Evidence Act to prove the contents of those documents. The Court in that case observed :"The direction that such document (documents described in S. 54) shall be treated as confidential is a direction to officials of the Income-tax Department, and in our opinion it is open to an assessee to waive that right and to give evidence, if he desires, or particulars contained in such a record, as was held in Rama Rao v. Venkataramayya, 1940-8 ITR 450 :(AIR 1940 Mad 768) (FB). There is nothing in S. 54 which prohibits the giving of such evidence; the section merely directs officials of the Income-tax Department to treat such documents as confidential and prohibits the Court from requiring public servants to produce such documents or to give evidence about such documents."8. But the question whether a certified copy of the statement made by the respondent before the Income-tax Officer is admissible does not fall to be determined in this appeal. The Subordinate Judge expressly recorded in the proceeding dated November 18, 1955 that he did "not mean to say that certified copy of the document will not be admissible in evidence at the time of the trial of the suit if the said certified copy is otherwise found to be admissible in evidence." Buchibais case, (1947) 15 ITR 150 : (AIR 1946 Nag 377) is a decision about the admissibility of a certified copy of the statement made by one Laxminarayan to the Assistant Commissioner of Income-tax: it did not decide that the Court could require production by summons of the original statements from the records of the Assistant Commissioner.9. A similar view as to admissibility of certified copies of statements made before the Income-tax authorities was also expressed in 1940-8 ITR 450 : (AIR 1940 Mad 768) (FB), Suraj Narain v. Jhabhu Lal, (1945) 13 ITR 13 : (AIR 1944 All 114 ) and Banarsi Devi v. Janki Devi, AIR 1959 Pat 172 . We may observe that we are not called upon to express any opinion on the correctness or otherwise of these decisions. Suffice it to say that they have no application to the question to be determined in this appeal. | 0[ds]5. It is manifest that disclosure of information given to public servants in the course of income-tax proceedings has by a comprehensive provision been prohibited. The Income-tax authorities are directed by the provision to treat the information disclosed, evidence given, and documents produced as confidential : the Courts are prohibited from requiring any public servant to produce the documents or the records and even to give evidence in respect thereof, and the public servants disclosing the particulars of the evidence, documents or record are penalised. The statement alleged to be made by the respondent in the assessment proceedings is not of the nature described in sub-s. (3) of S. 54, and is therefore not exempt from the operation of sub-ss. (1) and (2). There being an express interdict against the Court requiring production of the document, the Subordinate Judge was right in declining to accede to the request of thethere is no such exception, express or implied, in the language used by the legislature. The prohibition imposed against the Court by S. 54 is absolute : its operation is not obliterated by any waiver by the assessee in whose assessment the evidence is tendered, document produced or record prepared.But the question whether a certified copy of the statement made by the respondent before the Income-tax Officer is admissible does not fall to be determined in this appeal. The Subordinate Judge expressly recorded in the proceeding dated November 18, 1955 that he did "not mean to say that certified copy of the document will not be admissible in evidence at the time of the trial of the suit if the said certified copy is otherwise found to be admissible in evidence." Buchibais case, (1947) 15 ITR 150 : (AIR 1946 Nag 377) is a decision about the admissibility of a certified copy of the statement made by one Laxminarayan to the Assistant Commissioner of Income-tax: it did not decide that the Court could require production by summons of the original statements from the records of the Assistantmay observe that we are not called upon to express any opinion on the correctness or otherwise of these decisions. Suffice it to say that they have no application to the question to be determined in this appeal. | 0 | 1,667 | 411 | ### 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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protection and privilege under S. 54 of the Income-tax Act.3. It was the case of the appellant that in certain proceedings relating to assessment of income-tax of the appellant for the year 1949-50, the respondent had on February 22, 1950, made a statement before the Income-tax Officer, and to support his defence in the suit he desired that the statement be produced before the Court. The trial Court upheld the objection raised by the Commissioner of Income-tax that in view of S. 54, he could not be required to produce the statement he was summoned to produce, and the High Court of Judicature at Calcutta in exercise of its jurisdiction under S. 115 of the Code of Civil Procedure confirmed that view.4. Section 54 of the Income-tax Act by the first sub-section declares all particulars contained in any statement made, return furnished or accounts or documents produced under the provisions of the Income-tax Act or in any evidence given, or affidavit or deposition made, in the course of any proceedings of any assessment proceedings under Chap. VIII, or in any record of any assessment proceeding or any proceeding relating to the recovery of a demand prepared for the purposes of the Act, shall be treated as confidential. The sub-section then proceeds to state that notwithstanding anything contained in the Indian Evidence Act, 1872, no court shall save as provided in the Act, be entitled to require any public servant to produce before it any such return, accounts, documents or record or any part of any such record or to give evidence before it in respect thereof. By sub-s. (2), a public servant disclosing any particular contained in any such document, return, accounts, documents, evidence, affidavit, deposition or record, is liable to be punished with imprisonment which may expend to six months and also with fine. These provisions however do not apply to certain documents specified in cls. (a) to (p) of sub-s. (3).5. It is manifest that disclosure of information given to public servants in the course of income-tax proceedings has by a comprehensive provision been prohibited. The Income-tax authorities are directed by the provision to treat the information disclosed, evidence given, and documents produced as confidential : the Courts are prohibited from requiring any public servant to produce the documents or the records and even to give evidence in respect thereof, and the public servants disclosing the particulars of the evidence, documents or record are penalised. The statement alleged to be made by the respondent in the assessment proceedings is not of the nature described in sub-s. (3) of S. 54, and is therefore not exempt from the operation of sub-ss. (1) and (2). There being an express interdict against the Court requiring production of the document, the Subordinate Judge was right in declining to accede to the request of the appellant.6. Mr. Chatterjee appearing on behalf of the appellant contends that S. 54 is enacted only for the protection of the assessee, and if the assessee waives the privilege enacted for his protection, the prohibition contained therein will be inoperative. But there is no such exception, express or implied, in the language used by the legislature. The prohibition imposed against the Court by S. 54 is absolute : its operation is not obliterated by any waiver by the assessee in whose assessment the evidence is tendered, document produced or record prepared.7. Mr. Chatterjee relied upon Buchibai v. Nagpur University, (1947) 15 ITR 150 : (AIR 1946 Nag 377) in support of his contention that an assessee is entitled to waive the privilege which confers protection upon him by S. 54. In that case, however, the only question which fell to be determined was whether certified copies of statements recorded or orders passed by the Income-tax authorities were admissible in evidence under S. 65 of the Evidence Act to prove the contents of those documents. The Court in that case observed :"The direction that such document (documents described in S. 54) shall be treated as confidential is a direction to officials of the Income-tax Department, and in our opinion it is open to an assessee to waive that right and to give evidence, if he desires, or particulars contained in such a record, as was held in Rama Rao v. Venkataramayya, 1940-8 ITR 450 :(AIR 1940 Mad 768) (FB). There is nothing in S. 54 which prohibits the giving of such evidence; the section merely directs officials of the Income-tax Department to treat such documents as confidential and prohibits the Court from requiring public servants to produce such documents or to give evidence about such documents."8. But the question whether a certified copy of the statement made by the respondent before the Income-tax Officer is admissible does not fall to be determined in this appeal. The Subordinate Judge expressly recorded in the proceeding dated November 18, 1955 that he did "not mean to say that certified copy of the document will not be admissible in evidence at the time of the trial of the suit if the said certified copy is otherwise found to be admissible in evidence." Buchibais case, (1947) 15 ITR 150 : (AIR 1946 Nag 377) is a decision about the admissibility of a certified copy of the statement made by one Laxminarayan to the Assistant Commissioner of Income-tax: it did not decide that the Court could require production by summons of the original statements from the records of the Assistant Commissioner.9. A similar view as to admissibility of certified copies of statements made before the Income-tax authorities was also expressed in 1940-8 ITR 450 : (AIR 1940 Mad 768) (FB), Suraj Narain v. Jhabhu Lal, (1945) 13 ITR 13 : (AIR 1944 All 114 ) and Banarsi Devi v. Janki Devi, AIR 1959 Pat 172 . We may observe that we are not called upon to express any opinion on the correctness or otherwise of these decisions. Suffice it to say that they have no application to the question to be determined in this appeal.
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5. It is manifest that disclosure of information given to public servants in the course of income-tax proceedings has by a comprehensive provision been prohibited. The Income-tax authorities are directed by the provision to treat the information disclosed, evidence given, and documents produced as confidential : the Courts are prohibited from requiring any public servant to produce the documents or the records and even to give evidence in respect thereof, and the public servants disclosing the particulars of the evidence, documents or record are penalised. The statement alleged to be made by the respondent in the assessment proceedings is not of the nature described in sub-s. (3) of S. 54, and is therefore not exempt from the operation of sub-ss. (1) and (2). There being an express interdict against the Court requiring production of the document, the Subordinate Judge was right in declining to accede to the request of thethere is no such exception, express or implied, in the language used by the legislature. The prohibition imposed against the Court by S. 54 is absolute : its operation is not obliterated by any waiver by the assessee in whose assessment the evidence is tendered, document produced or record prepared.But the question whether a certified copy of the statement made by the respondent before the Income-tax Officer is admissible does not fall to be determined in this appeal. The Subordinate Judge expressly recorded in the proceeding dated November 18, 1955 that he did "not mean to say that certified copy of the document will not be admissible in evidence at the time of the trial of the suit if the said certified copy is otherwise found to be admissible in evidence." Buchibais case, (1947) 15 ITR 150 : (AIR 1946 Nag 377) is a decision about the admissibility of a certified copy of the statement made by one Laxminarayan to the Assistant Commissioner of Income-tax: it did not decide that the Court could require production by summons of the original statements from the records of the Assistantmay observe that we are not called upon to express any opinion on the correctness or otherwise of these decisions. Suffice it to say that they have no application to the question to be determined in this appeal.
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Ashiwin S. Mehta Vs. Union Of India | shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. In short, this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.” (emphasis supplied by us) 27. It is thus, trite that requirement of giving reasonable opportunity of being heard before an order is made by an administrative, quasi judicial or judicial authority, particularly when such an order entails adverse civil consequences, which would include infraction of property, personal rights and material deprivation for the party affected, cannot be sacrificed at the alter of administrative exigency or celerity. Undoubtedly, there can be exceptions to the said doctrine and as aforesaid the extent and its application cannot be put in a strait-jacket formula. The question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred; the purpose for which the power is conferred and the final effect of the exercise of that power on the rights of the person affected. 28. In the backdrop of the aforenoted legal principles and the requirement of sub-section 4 of Section 9A of the Special Court Act, we are of the opinion that in the present case the Special Court failed to comply with the principles of natural justice. As noted above, the Special Court rejected the prayer of the appellants to grant them 48 hours time to secure a better offer. In fact, by his letter dated 29th April, 2003 addressed by the Custodian to the notified parties, including the appellants, the right of the appellants to bring better offer was foreclosed by the Custodian, which evidently was without the permission of the Special Court. Furthermore, the Special Court also ignored its past precedents whereby it had granted time to the parties to get better offers for sale of shares of M/s Ranbaxy Laboratories Ltd. There is also force in the plea of learned counsel appearing for the appellants that the reason assigned by the Special Court in its order dated 30th April, 2003, for declining further time to the appellants, that deferment of decision on the sale of shares would have resulted in the share market falling down is unsound and unfounded. As stated above, the share market was already aware of the sale of a big chunk of shares of Apollo in view of the advertisement published by the Custodian and therefore, there was hardly any possibility of further volatility in the price of said shares. We are thus, convinced that the appellants have been denied a proper opportunity to bring a better offer for sale of shares, resulting in the realisation of lesser amount by way of sale of the subject shares, to the detriment of the appellants and other notified parties. Therefore, the decision of the Special Court deserves to be set aside on that short ground. 29. We shall now advert to the plea strenuously canvassed on behalf of the respondents that the Special Court having exercised the discretion vested in it under the Special Court Act, keeping in view all the parameters relevant for disposal of the shares, this Court may not interfere with the impugned order. There is no quarrel with the general proposition that an Appellate Court will not ordinarily substitute its discretion in the place of the discretion exercised by the Trial Court unless it is shown to have been exercised under a mistake of law or fact or in disregard of a settled principle or by taking into consideration irrelevant material. A `discretion, when applied to a court of justice means discretion guided by law. It must not be arbitrary, vague and fanciful but legal and regular. (See : R. Vs. Wilkes ((1770) 4 Burr 2527)). 30. We have therefore, no hesitation in agreeing with Mr. Vellapally to the extent that same principle would govern an appeal preferred under Section 10 of the Special Court Act. However, since we have come to the conclusion that the Special Court has exercised its discretion in complete disregard to its own scheme and `terms and conditions approved by it for sale of shares and above all that the impugned order was passed in violation of the principles of natural justice, we think that the facts in hand call for our interference, to correct the wrong committed by the Special Court. 31. For the view we have taken above, we deem it unnecessary to deal with the other contentions urged on behalf of the parties on the merits of the impugned order. 32. This brings us to the question of relief. In view of our finding that the decision of the Special Court is vitiated on the afore-stated grounds, it must follow as a necessary consequence that in the normal course, the impugned order must be struck down in its entirety. However, bearing in mind the fact that the sale of 54,88,850 shares was approved and all procedural modalities are stated to have been carried out in the year 2003, we are inclined to agree with Mr. Vellapally and Dr. Singhvi that at this stage, when 36.90 lakh shares of Apollo are claimed to have been extinguished, the relief sought for by the appellants to rescind the entire sale of 54,88,850 shares will be impracticable and fraught with grave difficulties. In our opinion, therefore, the relief in this appeal should be confined to 4.95% of the shares, subject matter of interim order, dated 29th May, 2003, extracted above.33. In the result, | 1[ds]In view of our finding that the decision of the Special Court is vitiated on the afore-stated grounds, it must follow as a necessary consequence that in the normal course, the impugned order must be struck down in its entirety. However, bearing in mind the fact that the sale of 54,88,850 shares was approved and all procedural modalities are stated to have been carried out in the year 2003, we are inclined to agree with Mr. Vellapally and Dr. Singhvi that at this stage, when 36.90 lakh shares of Apollo are claimed to have been extinguished, the relief sought for by the appellants to rescind the entire sale of 54,88,850 shares will be impracticable and fraught with grave difficulties. In our opinion, therefore, the relief in this appeal should be confined to 4.95% of the shares, subject matter of interim order, dated 29th May,view of our finding that the decision of the Special Court is vitiated on the afore-stated grounds, it must follow as a necessary consequence that in the normal course, the impugned order must be struck down in its entirety. However, bearing in mind the fact that the sale of 54,88,850 shares was approved and all procedural modalities are stated to have been carried out in the year 2003, we are inclined to agree with Mr. Vellapally and Dr. Singhvi that at this stage, when 36.90 lakh shares of Apollo are claimed to have been extinguished, the relief sought for by the appellants to rescind the entire sale of 54,88,850 shares will be impracticable and fraught with grave difficulties. In our opinion, therefore, the relief in this appeal should be confined to 4.95% of the shares, subject matter of interim order, dated 29th May,2003, extracted above.33. In the result, we allow the appeal partly; set aside the impugned order to the extent indicated above and remit the case to the Special Court for taking necessary steps to recover the said 4.95% shares from Apollo or its management, as the case may be, and put them to fresh sale strictly in terms of the aforenoted norms as approved by this Court vide order dated 23rd August, 2001. The shareholders who will be affected by this order shall be entitled to the sale consideration paid by them to the Custodian alongwith simple interest @6% p.a. from the date of payment by them upto the date of actual reimbursement by the Custodian in terms of this order. | 1 | 8,046 | 451 | ### 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:
shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. In short, this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.” (emphasis supplied by us) 27. It is thus, trite that requirement of giving reasonable opportunity of being heard before an order is made by an administrative, quasi judicial or judicial authority, particularly when such an order entails adverse civil consequences, which would include infraction of property, personal rights and material deprivation for the party affected, cannot be sacrificed at the alter of administrative exigency or celerity. Undoubtedly, there can be exceptions to the said doctrine and as aforesaid the extent and its application cannot be put in a strait-jacket formula. The question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred; the purpose for which the power is conferred and the final effect of the exercise of that power on the rights of the person affected. 28. In the backdrop of the aforenoted legal principles and the requirement of sub-section 4 of Section 9A of the Special Court Act, we are of the opinion that in the present case the Special Court failed to comply with the principles of natural justice. As noted above, the Special Court rejected the prayer of the appellants to grant them 48 hours time to secure a better offer. In fact, by his letter dated 29th April, 2003 addressed by the Custodian to the notified parties, including the appellants, the right of the appellants to bring better offer was foreclosed by the Custodian, which evidently was without the permission of the Special Court. Furthermore, the Special Court also ignored its past precedents whereby it had granted time to the parties to get better offers for sale of shares of M/s Ranbaxy Laboratories Ltd. There is also force in the plea of learned counsel appearing for the appellants that the reason assigned by the Special Court in its order dated 30th April, 2003, for declining further time to the appellants, that deferment of decision on the sale of shares would have resulted in the share market falling down is unsound and unfounded. As stated above, the share market was already aware of the sale of a big chunk of shares of Apollo in view of the advertisement published by the Custodian and therefore, there was hardly any possibility of further volatility in the price of said shares. We are thus, convinced that the appellants have been denied a proper opportunity to bring a better offer for sale of shares, resulting in the realisation of lesser amount by way of sale of the subject shares, to the detriment of the appellants and other notified parties. Therefore, the decision of the Special Court deserves to be set aside on that short ground. 29. We shall now advert to the plea strenuously canvassed on behalf of the respondents that the Special Court having exercised the discretion vested in it under the Special Court Act, keeping in view all the parameters relevant for disposal of the shares, this Court may not interfere with the impugned order. There is no quarrel with the general proposition that an Appellate Court will not ordinarily substitute its discretion in the place of the discretion exercised by the Trial Court unless it is shown to have been exercised under a mistake of law or fact or in disregard of a settled principle or by taking into consideration irrelevant material. A `discretion, when applied to a court of justice means discretion guided by law. It must not be arbitrary, vague and fanciful but legal and regular. (See : R. Vs. Wilkes ((1770) 4 Burr 2527)). 30. We have therefore, no hesitation in agreeing with Mr. Vellapally to the extent that same principle would govern an appeal preferred under Section 10 of the Special Court Act. However, since we have come to the conclusion that the Special Court has exercised its discretion in complete disregard to its own scheme and `terms and conditions approved by it for sale of shares and above all that the impugned order was passed in violation of the principles of natural justice, we think that the facts in hand call for our interference, to correct the wrong committed by the Special Court. 31. For the view we have taken above, we deem it unnecessary to deal with the other contentions urged on behalf of the parties on the merits of the impugned order. 32. This brings us to the question of relief. In view of our finding that the decision of the Special Court is vitiated on the afore-stated grounds, it must follow as a necessary consequence that in the normal course, the impugned order must be struck down in its entirety. However, bearing in mind the fact that the sale of 54,88,850 shares was approved and all procedural modalities are stated to have been carried out in the year 2003, we are inclined to agree with Mr. Vellapally and Dr. Singhvi that at this stage, when 36.90 lakh shares of Apollo are claimed to have been extinguished, the relief sought for by the appellants to rescind the entire sale of 54,88,850 shares will be impracticable and fraught with grave difficulties. In our opinion, therefore, the relief in this appeal should be confined to 4.95% of the shares, subject matter of interim order, dated 29th May, 2003, extracted above.33. In the result,
### Response:
1
### Explanation:
In view of our finding that the decision of the Special Court is vitiated on the afore-stated grounds, it must follow as a necessary consequence that in the normal course, the impugned order must be struck down in its entirety. However, bearing in mind the fact that the sale of 54,88,850 shares was approved and all procedural modalities are stated to have been carried out in the year 2003, we are inclined to agree with Mr. Vellapally and Dr. Singhvi that at this stage, when 36.90 lakh shares of Apollo are claimed to have been extinguished, the relief sought for by the appellants to rescind the entire sale of 54,88,850 shares will be impracticable and fraught with grave difficulties. In our opinion, therefore, the relief in this appeal should be confined to 4.95% of the shares, subject matter of interim order, dated 29th May,view of our finding that the decision of the Special Court is vitiated on the afore-stated grounds, it must follow as a necessary consequence that in the normal course, the impugned order must be struck down in its entirety. However, bearing in mind the fact that the sale of 54,88,850 shares was approved and all procedural modalities are stated to have been carried out in the year 2003, we are inclined to agree with Mr. Vellapally and Dr. Singhvi that at this stage, when 36.90 lakh shares of Apollo are claimed to have been extinguished, the relief sought for by the appellants to rescind the entire sale of 54,88,850 shares will be impracticable and fraught with grave difficulties. In our opinion, therefore, the relief in this appeal should be confined to 4.95% of the shares, subject matter of interim order, dated 29th May,2003, extracted above.33. In the result, we allow the appeal partly; set aside the impugned order to the extent indicated above and remit the case to the Special Court for taking necessary steps to recover the said 4.95% shares from Apollo or its management, as the case may be, and put them to fresh sale strictly in terms of the aforenoted norms as approved by this Court vide order dated 23rd August, 2001. The shareholders who will be affected by this order shall be entitled to the sale consideration paid by them to the Custodian alongwith simple interest @6% p.a. from the date of payment by them upto the date of actual reimbursement by the Custodian in terms of this order.
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Union of India Vs. Prateek Shukla | Under the NDPS Act, the burden of proof lies on the accused and not the prosecution and the High Court has wrongly reversed the burden of proof; and (vi) Absolutely no valid reasons have been indicated in the judgment of the Single Judge for the grant of bail. 8. Pursuant to the notice that was issued by this Court on 16 December 2020, the respondent has been served. On 15 February 2021, the hearing of the proceedings was posted on 8 March 2021 on the request of the learned counsel appearing on behalf of the respondent, who had recently entered appearance, for filing a counter affidavit. A counter affidavit has been filed. 9. Learned counsel appearing on behalf of the respondent has adverted to the counter affidavit, which has been filed on behalf of the respondent. The contention of the respondent, as set out before this Court, by Mr Vishal Arun, learned counsel, is that: (i) The respondent had resigned as a Director of the Company on 4 May 2018 having joined the Company earlier in the month of January 2018; (ii) The quarterly returns in respect of acetic anhydride for the period January 2018 to March 2018 had been submitted to the concerned office of the NCB; (iii) After his resignation on 4 May 2018, the respondent has had no relationship with the Company and may not be held responsible for the non-filing of the quarterly returns; (iv) The documents which have been filed before the trial Court would indicate that the alleged purchase orders for the controlled substance as well as the delivery at the premises of the Company took place after the resignation of the respondent; (v) After the respondent had resigned from the position of a Director in the Company, intimation was furnished to the NCB on 22 May 2018; and (vi) The purchase orders are from the month of June 2018, by which date the respondent had no connection with the Company. 10. While evaluating the merits of the rival submissions in the context of the correctness of the order passed by the High Court granting bail, it would be necessary, at the outset, to note the reasons which weighed with the High Court in doing so. The High Court having recorded the submissions of the respondent and of the learned counsel for the NCB has indicated the following reasons for grant of bail: Having considered the submissions and having perused the material on record, without commenting on the merits of the matter, prima facie, it appears that the applicant may not be guilty of any offence and considering his clean past and being an educated person as submitted that, he has a degree in Bachelor of Technology (B.Tech.) may not commit any offence in future, I am of the view that the applicant has made out a case for bail. 11. Ex facie, there has been no application of mind by the High Court to the rival submissions and, particularly, to the seriousness of the allegations involving an offence punishable under the provisions of the NDPS Act. Merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind by the Single Judge of the High Court to the basic question as to whether bail should be granted. The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. There has been a serious infraction by the High Court of its duty to apply the law. The order granting bail is innocent of an awareness of the legal principles involved in determining whether bail should be granted to a person accused of an offence under the NDPS Act. The contention of the respondent that he had resigned from the Company, Altruist Chemicals Private Limited, must be assessed with reference to the allegations in the criminal complaint which has been filed in the Court of the District and Sessions Judge. Gautam Budh Nagar (Annexure P-6). The relevant part of the complaint reads as follows: 18. That during investigation of the case, letter dated 27.11.2018 was sent to the Registrar of Companies for providing details of the Directors etc of the company in question i.e. U/s Altruist Chemicals Pvt Ltd and vide its report dated 03.12.2018 Registrar of Companies provided the said information and from the perusal of said information/documents, it reveals that accused Prateek Shukla and Bismillah Khan are the Directors. Accused Himanshu Rana was also Director but he has resigned from the directorship. From the perusal of the documents, it also reveals that they had registered the company, i.e., Altruist Chemical Pvt. Ltd. At 001, Block Ab-Sector-45, Noida, which is a residential area and accused persons also obtained Unique Registration No. from the NCB on the above said premises. 12. We may also note at this stage the contention of the respondent in the application for bail which was filed before the High Court (Annexure P-8) that he had transferred 99% of his shareholding in the Company to Bismilla Khan Ahmadzai. Bismilla Khan Ahmadzai, as the prosecution alleges at this stage, is an Afghan national. The application for bail which had been filed before the High Court as well as the counter affidavit which has been filed in the present proceedings suppress more than what they disclose. Be that as it may, we are of the view that the High Court was clearly not justified in granting bail and the reasons provided by the High Court, as we have already indicated above, do not reflect application of mind to the seriousness of the offence which is involved. Indicating that the respondent as an educated person with a Bachelor of Technology may not commit any offence is an extraneous circumstance which ought not to have weighed with the High Court in the grant of bail for an offence under the NDPS Act. | 1[ds]10. While evaluating the merits of the rival submissions in the context of the correctness of the order passed by the High Court granting bail, it would be necessary, at the outset, to note the reasons which weighed with the High Court in doing so. The High Court having recorded the submissions of the respondent and of the learned counsel for the NCB has indicated the following reasons for grant of bail:Having considered the submissions and having perused the material on record, without commenting on the merits of the matter, prima facie, it appears that the applicant may not be guilty of any offence and considering his clean past and being an educated person as submitted that, he has a degree in Bachelor of Technology (B.Tech.) may not commit any offence in future, I am of the view that the applicant has made out a case for bail.11. Ex facie, there has been no application of mind by the High Court to the rival submissions and, particularly, to the seriousness of the allegations involving an offence punishable under the provisions of the NDPS Act. Merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind by the Single Judge of the High Court to the basic question as to whether bail should be granted. The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. There has been a serious infraction by the High Court of its duty to apply the law. The order granting bail is innocent of an awareness of the legal principles involved in determining whether bail should be granted to a person accused of an offence under the NDPS Act. The contention of the respondent that he had resigned from the Company, Altruist Chemicals Private Limited, must be assessed with reference to the allegations in the criminal complaint which has been filed in the Court of the District and Sessions Judge. Gautam Budh Nagar (Annexure P-6). The relevant part of the complaint reads as follows:18. That during investigation of the case, letter dated 27.11.2018 was sent to the Registrar of Companies for providing details of the Directors etc of the company in question i.e. U/s Altruist Chemicals Pvt Ltd and vide its report dated 03.12.2018 Registrar of Companies provided the said information and from the perusal of said information/documents, it reveals that accused Prateek Shukla and Bismillah Khan are the Directors. Accused Himanshu Rana was also Director but he has resigned from the directorship. From the perusal of the documents, it also reveals that they had registered the company, i.e., Altruist Chemical Pvt. Ltd. At 001, Block Ab-Sector-45, Noida, which is a residential area and accused persons also obtained Unique Registration No. from the NCB on the above said premises.12. We may also note at this stage the contention of the respondent in the application for bail which was filed before the High Court (Annexure P-8) that he had transferred 99% of his shareholding in the Company to Bismilla Khan Ahmadzai. Bismilla Khan Ahmadzai, as the prosecution alleges at this stage, is an Afghan national. The application for bail which had been filed before the High Court as well as the counter affidavit which has been filed in the present proceedings suppress more than what they disclose. Be that as it may, we are of the view that the High Court was clearly not justified in granting bail and the reasons provided by the High Court, as we have already indicated above, do not reflect application of mind to the seriousness of the offence which is involved. Indicating that the respondent as an educated person with a Bachelor of Technology may not commit any offence is an extraneous circumstance which ought not to have weighed with the High Court in the grant of bail for an offence under the NDPS Act. | 1 | 2,119 | 733 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
Under the NDPS Act, the burden of proof lies on the accused and not the prosecution and the High Court has wrongly reversed the burden of proof; and (vi) Absolutely no valid reasons have been indicated in the judgment of the Single Judge for the grant of bail. 8. Pursuant to the notice that was issued by this Court on 16 December 2020, the respondent has been served. On 15 February 2021, the hearing of the proceedings was posted on 8 March 2021 on the request of the learned counsel appearing on behalf of the respondent, who had recently entered appearance, for filing a counter affidavit. A counter affidavit has been filed. 9. Learned counsel appearing on behalf of the respondent has adverted to the counter affidavit, which has been filed on behalf of the respondent. The contention of the respondent, as set out before this Court, by Mr Vishal Arun, learned counsel, is that: (i) The respondent had resigned as a Director of the Company on 4 May 2018 having joined the Company earlier in the month of January 2018; (ii) The quarterly returns in respect of acetic anhydride for the period January 2018 to March 2018 had been submitted to the concerned office of the NCB; (iii) After his resignation on 4 May 2018, the respondent has had no relationship with the Company and may not be held responsible for the non-filing of the quarterly returns; (iv) The documents which have been filed before the trial Court would indicate that the alleged purchase orders for the controlled substance as well as the delivery at the premises of the Company took place after the resignation of the respondent; (v) After the respondent had resigned from the position of a Director in the Company, intimation was furnished to the NCB on 22 May 2018; and (vi) The purchase orders are from the month of June 2018, by which date the respondent had no connection with the Company. 10. While evaluating the merits of the rival submissions in the context of the correctness of the order passed by the High Court granting bail, it would be necessary, at the outset, to note the reasons which weighed with the High Court in doing so. The High Court having recorded the submissions of the respondent and of the learned counsel for the NCB has indicated the following reasons for grant of bail: Having considered the submissions and having perused the material on record, without commenting on the merits of the matter, prima facie, it appears that the applicant may not be guilty of any offence and considering his clean past and being an educated person as submitted that, he has a degree in Bachelor of Technology (B.Tech.) may not commit any offence in future, I am of the view that the applicant has made out a case for bail. 11. Ex facie, there has been no application of mind by the High Court to the rival submissions and, particularly, to the seriousness of the allegations involving an offence punishable under the provisions of the NDPS Act. Merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind by the Single Judge of the High Court to the basic question as to whether bail should be granted. The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. There has been a serious infraction by the High Court of its duty to apply the law. The order granting bail is innocent of an awareness of the legal principles involved in determining whether bail should be granted to a person accused of an offence under the NDPS Act. The contention of the respondent that he had resigned from the Company, Altruist Chemicals Private Limited, must be assessed with reference to the allegations in the criminal complaint which has been filed in the Court of the District and Sessions Judge. Gautam Budh Nagar (Annexure P-6). The relevant part of the complaint reads as follows: 18. That during investigation of the case, letter dated 27.11.2018 was sent to the Registrar of Companies for providing details of the Directors etc of the company in question i.e. U/s Altruist Chemicals Pvt Ltd and vide its report dated 03.12.2018 Registrar of Companies provided the said information and from the perusal of said information/documents, it reveals that accused Prateek Shukla and Bismillah Khan are the Directors. Accused Himanshu Rana was also Director but he has resigned from the directorship. From the perusal of the documents, it also reveals that they had registered the company, i.e., Altruist Chemical Pvt. Ltd. At 001, Block Ab-Sector-45, Noida, which is a residential area and accused persons also obtained Unique Registration No. from the NCB on the above said premises. 12. We may also note at this stage the contention of the respondent in the application for bail which was filed before the High Court (Annexure P-8) that he had transferred 99% of his shareholding in the Company to Bismilla Khan Ahmadzai. Bismilla Khan Ahmadzai, as the prosecution alleges at this stage, is an Afghan national. The application for bail which had been filed before the High Court as well as the counter affidavit which has been filed in the present proceedings suppress more than what they disclose. Be that as it may, we are of the view that the High Court was clearly not justified in granting bail and the reasons provided by the High Court, as we have already indicated above, do not reflect application of mind to the seriousness of the offence which is involved. Indicating that the respondent as an educated person with a Bachelor of Technology may not commit any offence is an extraneous circumstance which ought not to have weighed with the High Court in the grant of bail for an offence under the NDPS Act.
### Response:
1
### Explanation:
10. While evaluating the merits of the rival submissions in the context of the correctness of the order passed by the High Court granting bail, it would be necessary, at the outset, to note the reasons which weighed with the High Court in doing so. The High Court having recorded the submissions of the respondent and of the learned counsel for the NCB has indicated the following reasons for grant of bail:Having considered the submissions and having perused the material on record, without commenting on the merits of the matter, prima facie, it appears that the applicant may not be guilty of any offence and considering his clean past and being an educated person as submitted that, he has a degree in Bachelor of Technology (B.Tech.) may not commit any offence in future, I am of the view that the applicant has made out a case for bail.11. Ex facie, there has been no application of mind by the High Court to the rival submissions and, particularly, to the seriousness of the allegations involving an offence punishable under the provisions of the NDPS Act. Merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind by the Single Judge of the High Court to the basic question as to whether bail should be granted. The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. There has been a serious infraction by the High Court of its duty to apply the law. The order granting bail is innocent of an awareness of the legal principles involved in determining whether bail should be granted to a person accused of an offence under the NDPS Act. The contention of the respondent that he had resigned from the Company, Altruist Chemicals Private Limited, must be assessed with reference to the allegations in the criminal complaint which has been filed in the Court of the District and Sessions Judge. Gautam Budh Nagar (Annexure P-6). The relevant part of the complaint reads as follows:18. That during investigation of the case, letter dated 27.11.2018 was sent to the Registrar of Companies for providing details of the Directors etc of the company in question i.e. U/s Altruist Chemicals Pvt Ltd and vide its report dated 03.12.2018 Registrar of Companies provided the said information and from the perusal of said information/documents, it reveals that accused Prateek Shukla and Bismillah Khan are the Directors. Accused Himanshu Rana was also Director but he has resigned from the directorship. From the perusal of the documents, it also reveals that they had registered the company, i.e., Altruist Chemical Pvt. Ltd. At 001, Block Ab-Sector-45, Noida, which is a residential area and accused persons also obtained Unique Registration No. from the NCB on the above said premises.12. We may also note at this stage the contention of the respondent in the application for bail which was filed before the High Court (Annexure P-8) that he had transferred 99% of his shareholding in the Company to Bismilla Khan Ahmadzai. Bismilla Khan Ahmadzai, as the prosecution alleges at this stage, is an Afghan national. The application for bail which had been filed before the High Court as well as the counter affidavit which has been filed in the present proceedings suppress more than what they disclose. Be that as it may, we are of the view that the High Court was clearly not justified in granting bail and the reasons provided by the High Court, as we have already indicated above, do not reflect application of mind to the seriousness of the offence which is involved. Indicating that the respondent as an educated person with a Bachelor of Technology may not commit any offence is an extraneous circumstance which ought not to have weighed with the High Court in the grant of bail for an offence under the NDPS Act.
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Steelworth Ltd Vs. State of Assam | registered dealer intended for use in production of goods for sale became liable to sales tax. 2. The appellant Company is a limited company carrying on in the State of Assam its business of manufacturing, selling and supplying iron and steel materials. It held a Registration Certificate under the Assam Sales Tax Act, as it was before the amendment of 1960. Under that Act all its purchases for use in manufacture or production of goods taxable under the Act were exempt from sales tax but after the amendment of the Act there was a deletion in the Registration Certificate of certain goods, e.g., cast iron, iron plates, steel bars and galvanised wire which were used by the petitioner in the manufacture of its finished products which were also taxable in the State. Consequently it has become liable to pay tax on those goods purchased for use in the manufacture of goods and the cost of production has thereby gone up. 3. Three points were raised by the petitioner:- (1) that the amendment introduced by Act XIII of 1960 is violative of Art. 14 because it discriminates between manufacturers who supply goods according to orders received and others who manufacture goods on their own account and sell them; (2) that the restriction imposed by the Amending Act is excessive and violative of Art. 19 (1)(f); and (3) that the refusal to amend the Registration Certificate by not reinstating the articles mentioned above affects the rights of the petitioner Company under Art. 19(1) (f).For the purpose of deciding these questions it is necessary to refer to the scheme of the Assam Sales Tax Act, 1947 (Act XVII of 1947). By s. 2(2)(a)(b) of that Act Contract is defined as: "2. In this Act, unless there is anything repugnant in the subject or context, - (2) "contract" means any agreement for carrying out for cash or deferred payment or other valuable consideration, - (a) the preparation, contruction, fittingout, improvement or repair of any moveable property or of any building, road, bridge or other immoveable property, or (b) the installation or repair of any machinery affixed to a building or other immoveable property." Section 9 of that Act provides for compulsory registration. Section 12 provides that a dealer registered under s. 9 shall be granted a certificate of registration which shall specify the class or classes of goods in which the said dealer carries on business and such other particulars as may be prescribed. Section 15(1)(b)(i)(b) and (c) deals with exemptions. It reads:- "15 The net turnover shall be determined by deducting from dealers gross turnover during any given period- (1) his turnover during that period on. (a) ... ... ... ... ... ... .... ..... (b) sale to a registered dealer of- (i) goods specified in the purchasing dealers certificate of registration as being intended by him for- (a) ... ... ... ... ... ... .......... (b) use in manufacture or production of any goods, the sale of which is taxable under this Act, (c) use in the execution of any contract." Sub-clause (b) has now been omitted by the amending Act above referred to as a result of which from the gross turnover of a dealer goods specified in the certificate of registration as being intended by him for use in manufacture or production of any goods for sale has now been omitted.The argument raised was that by the omission of sub-cl. (b) discrimination was intended as between materials which were to be used for manufacture of goods and to be sold on their own account by the petitioner Company and materials which were purchased for use in the execution of any contract, It was also contended that the object of the amendment of the Sales Tax Act was to prevent evasion of Sales Tax by manufacturing goods and sending them out of the State and therefore that object could have been achieved by taxing only those material which were so intended. The amending Act is really a part of the General Sales Tax Act of the State of Assam the object of which is to raise revenue in the State. It is for the Legislature to decide as to what articles it should tax and what articles it should not tax and if it decided to tax certain articles in order to effectuate its policy it is difficult to see how that would introduce discrimination. But it was argued that discrimination is introduced by differentiating between materials bought for articles to be supplied against a contract and articles produced and sold by the petitioner and that this was not a reasonable classification nor was there any intelligible differentia in this classification. In our opinion this argument is without force. The Legislature, having chosen the articles on which it thinks necessary to impose a tax, has decided to impose the tax and it is difficult to see how it can be said that the goods supplied against a contract and goods manufactured and sold by the petitioner are similarly situated. Besides the provision against discrimination is not on articles but on persons. 4. It has not been shown how the imposition of this tax is an unreasonable restriction on the rights of the petitioner to carry on trade, but it was submitted that by this means the petitioner will not be able to compete with the manufacturers outside the State of Assam. Assuming that this is so, it is clear that goods which are purchased are put to different uses and if the legislature thinks that certain classes of goods should pay the tax and not others that is a question of policy into which the courts cannot enter. We can only say that in such circumstances, per se there is no discrimination. There is no force in the second contention either. In view of our decision on these two points the third point, that is, the refusal of the Sales Tax Officer to amend the registration certificate will have no force. | 0[ds]In our opinion this argument is without force. The Legislature, having chosen the articles on which it thinks necessary to impose a tax, has decided to impose the tax and it is difficult to see how it can be said that the goods supplied against a contract and goods manufactured and sold by the petitioner are similarly situated. Besides the provision against discrimination is not on articles but on personsIt has not been shown how the imposition of this tax is an unreasonable restriction on the rights of the petitioner to carry on trade, but it was submitted that by this means the petitioner will not be able to compete with the manufacturers outside the State of Assam. Assuming that this is so, it is clear that goods which are purchased are put to different uses and if the legislature thinks that certain classes of goods should pay the tax and not others that is a question of policy into which the courts cannot enter. We can only say that in such circumstances, per se there is no discrimination. There is no force in the second contention either. In view of our decision on these two points the third point, that is, the refusal of the Sales Tax Officer to amend the registration certificate will have no force. | 0 | 1,233 | 237 | ### 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:
registered dealer intended for use in production of goods for sale became liable to sales tax. 2. The appellant Company is a limited company carrying on in the State of Assam its business of manufacturing, selling and supplying iron and steel materials. It held a Registration Certificate under the Assam Sales Tax Act, as it was before the amendment of 1960. Under that Act all its purchases for use in manufacture or production of goods taxable under the Act were exempt from sales tax but after the amendment of the Act there was a deletion in the Registration Certificate of certain goods, e.g., cast iron, iron plates, steel bars and galvanised wire which were used by the petitioner in the manufacture of its finished products which were also taxable in the State. Consequently it has become liable to pay tax on those goods purchased for use in the manufacture of goods and the cost of production has thereby gone up. 3. Three points were raised by the petitioner:- (1) that the amendment introduced by Act XIII of 1960 is violative of Art. 14 because it discriminates between manufacturers who supply goods according to orders received and others who manufacture goods on their own account and sell them; (2) that the restriction imposed by the Amending Act is excessive and violative of Art. 19 (1)(f); and (3) that the refusal to amend the Registration Certificate by not reinstating the articles mentioned above affects the rights of the petitioner Company under Art. 19(1) (f).For the purpose of deciding these questions it is necessary to refer to the scheme of the Assam Sales Tax Act, 1947 (Act XVII of 1947). By s. 2(2)(a)(b) of that Act Contract is defined as: "2. In this Act, unless there is anything repugnant in the subject or context, - (2) "contract" means any agreement for carrying out for cash or deferred payment or other valuable consideration, - (a) the preparation, contruction, fittingout, improvement or repair of any moveable property or of any building, road, bridge or other immoveable property, or (b) the installation or repair of any machinery affixed to a building or other immoveable property." Section 9 of that Act provides for compulsory registration. Section 12 provides that a dealer registered under s. 9 shall be granted a certificate of registration which shall specify the class or classes of goods in which the said dealer carries on business and such other particulars as may be prescribed. Section 15(1)(b)(i)(b) and (c) deals with exemptions. It reads:- "15 The net turnover shall be determined by deducting from dealers gross turnover during any given period- (1) his turnover during that period on. (a) ... ... ... ... ... ... .... ..... (b) sale to a registered dealer of- (i) goods specified in the purchasing dealers certificate of registration as being intended by him for- (a) ... ... ... ... ... ... .......... (b) use in manufacture or production of any goods, the sale of which is taxable under this Act, (c) use in the execution of any contract." Sub-clause (b) has now been omitted by the amending Act above referred to as a result of which from the gross turnover of a dealer goods specified in the certificate of registration as being intended by him for use in manufacture or production of any goods for sale has now been omitted.The argument raised was that by the omission of sub-cl. (b) discrimination was intended as between materials which were to be used for manufacture of goods and to be sold on their own account by the petitioner Company and materials which were purchased for use in the execution of any contract, It was also contended that the object of the amendment of the Sales Tax Act was to prevent evasion of Sales Tax by manufacturing goods and sending them out of the State and therefore that object could have been achieved by taxing only those material which were so intended. The amending Act is really a part of the General Sales Tax Act of the State of Assam the object of which is to raise revenue in the State. It is for the Legislature to decide as to what articles it should tax and what articles it should not tax and if it decided to tax certain articles in order to effectuate its policy it is difficult to see how that would introduce discrimination. But it was argued that discrimination is introduced by differentiating between materials bought for articles to be supplied against a contract and articles produced and sold by the petitioner and that this was not a reasonable classification nor was there any intelligible differentia in this classification. In our opinion this argument is without force. The Legislature, having chosen the articles on which it thinks necessary to impose a tax, has decided to impose the tax and it is difficult to see how it can be said that the goods supplied against a contract and goods manufactured and sold by the petitioner are similarly situated. Besides the provision against discrimination is not on articles but on persons. 4. It has not been shown how the imposition of this tax is an unreasonable restriction on the rights of the petitioner to carry on trade, but it was submitted that by this means the petitioner will not be able to compete with the manufacturers outside the State of Assam. Assuming that this is so, it is clear that goods which are purchased are put to different uses and if the legislature thinks that certain classes of goods should pay the tax and not others that is a question of policy into which the courts cannot enter. We can only say that in such circumstances, per se there is no discrimination. There is no force in the second contention either. In view of our decision on these two points the third point, that is, the refusal of the Sales Tax Officer to amend the registration certificate will have no force.
### Response:
0
### Explanation:
In our opinion this argument is without force. The Legislature, having chosen the articles on which it thinks necessary to impose a tax, has decided to impose the tax and it is difficult to see how it can be said that the goods supplied against a contract and goods manufactured and sold by the petitioner are similarly situated. Besides the provision against discrimination is not on articles but on personsIt has not been shown how the imposition of this tax is an unreasonable restriction on the rights of the petitioner to carry on trade, but it was submitted that by this means the petitioner will not be able to compete with the manufacturers outside the State of Assam. Assuming that this is so, it is clear that goods which are purchased are put to different uses and if the legislature thinks that certain classes of goods should pay the tax and not others that is a question of policy into which the courts cannot enter. We can only say that in such circumstances, per se there is no discrimination. There is no force in the second contention either. In view of our decision on these two points the third point, that is, the refusal of the Sales Tax Officer to amend the registration certificate will have no force.
|
B. Shah Vs. Presiding Officer, Labour Court, Coimbatore & Ors | arrive at the average daily wage. After thus finding out the average daily wage, the liability of the employer in respect of the maternity benefit has to be calculated in terms of S.5 of the Act for both pre-natal and post-natal period indicated above.13. The real though difficult question that calls for determination by us is as to what is the connotation of the term "week" occurring in the sub-ss.(1) and (3) of S.5 of the Act and whether the computation of the maternity benefit prescribed by the Act for the aforesaid two periods has to be made taking a "week" as signifying a cycle of seven days including a Sunday or a cycle of seven days minus a Sunday which is said to be a wageless day. As the Act does not contain any definition of the word "week" it has to be understood in its ordinary dictionary sense.14. In the Shorter Oxford English Dictionary (Third Edition), the word "week" has been described as meaning the cycle of seven days, recognized in the calendar of the Jews and thence adopted in the calendars of Christian, Mohammedan and various other peoples. A space of seven days, irrespective of the time from which it is reckoned. Seven days as a term for periodical payments (of wages, rent, or the like) or as a unit of reckoning for time of work or service".15. In Websters New World Dictionary (1962 Edition) the meaning of the word "week" is given as a "period of seven days, especially one beginning with Sunday and ending with Saturday; the hours or days of work in a seven-day period."16. In Strouds Judicial Dictionary (Third Edition) it is stated that (1) though a week usually means any consecutive seven days, it will sometimes be interpreted to mean the ordinary notion of a week reckoning from Sunday to Sunday and (2) probably, a week usually means seven clear days.17. A "week" according to Halsburys Laws of England (Third Edition) Volume 37 at p. 84 is strictly the time between midnight on Saturday and the same hour on the next succeeding Saturday, but the term is also applied to any period of seven successive days.18. Bearing in mind the above mentioned dictionary or popular meaning of the term "week", we think that in the context of sub-ss.(1) and (3) of S.5 of the Act, the term week has to be taken to signify a cycle of seven days including Sundays. The language in which the aforesaid sub-sections are couched also shows that the Legislature intended that computation of maternity benefit is to be made for the entire period of the woman workers actual absence, i.e., for all the days including Sundays which may be wageless holidays falling within that period and not only for intermittent periods of six days thereby excluding Sundays falling within that period for if it were not so the Legislature instead of using the words "for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day" would have used the words "for the working days falling within that period of her actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day but excluding the wageless days." Again the word "period" occurring in S.5(1) of the Act is a strong word. It seems to emphasize, in our judgment, the continuous running of time and recurrence of the cycle of seven days. It has also to be borne in mind in this connection that in interpreting provisions of beneficial pieces of legislation like the one in hand which is intended to achieve the object of doing social justice to women workers employed in the plantations and which squarely falls within the purview of Art. 42 of the Constitution, the beneficent rule of construction which would enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output has to be adopted by the Court.19. The interpretation placed by us on the phraseology of sub-ss.(1) and (3) of S.5 of the Act appears to us to be in conformity not only with the legislative intendment but also with paragraphs 1 and 2 of Art. 4 of Convention No. 103 concerning Maternity Protection Convention (Revised), 1952 adopted by the General Conference of the International Labour Organisation which are extracted below for facility of reference :"Article 4 :(1) While absent from work on maternity leave in accordance with the provisions of Art. 3, the woman shall be entitled to receive cash and medical benefits.(2) The rates of cash benefits shall be fixed by national laws or regulations so as to ensure to benefit sufficient for the full and healthy maintenance of herself and her child in accordance with a suitable standard of living."20. Thus we are of opinion that computation of maternity benefit has to be made for all the days including Sundays and rest days which maybe wageless holidays comprised in the actual period of absence of the woman intending upto six weeks preceding and excluding the day of delivery as also for all the days falling within the six weeks immediately following the day of delivery thereby ensuring that the woman worker gets for the said period not only the amount equalling 100 per cent of the wages which she was previously earning in terms of S.3(n) of the Act but also the benefit of the wages for all the Sundays and rest days falling within the aforesaid two periods which would ultimately be conducive to the interest of both the woman worker and her employer.21. In view of what we have stated above, we cannot uphold the view of the law expressed by the Full Bench of Kerala High Court in Malayalam Plantations Ltd., Cochin v. Inspector of Plantations, Mundakayam and others (supra). | 0[ds]12. The provisions of S.5 of the Act quoted above make it clear that a woman worker who expects a child is entitled to maternity benefits for a maximum period of twelve weeks which is split up into two periods, viz., pre-natal and post-natal. The first one, i.e., pre-natal or ante-natal period is limited to the period of womans actual absence extending upto six weeks immediately preceding and including the day on which her delivery occurs and the second one which is post-natal compulsory period consists of six weeks immediately following the day of delivery. The benefit has to be calculated for the aforesaid two periods on the basis of the average daily wage. According to the explanation appended to S.5(1) of the Act, the average daily wage has to be computed taking into consideration the average of the womans wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, or one rupee a day, whichever is higher. For fixing the average daily wage, it has, therefore, first to be ascertained whether the wages which were paid or were payable to the woman was for "time work" or for "piece work". It has next to be ascertained as to what were the cash wages paid or payable to her in terms of the definition contained in S.3(n) of the Act for the days on which she worked during the period of three calendar months immediately preceding the date of delivery, reckoned according to the British calendar month. The total wages thus worked out are to be divided by the number of days in the aforesaid three calendar months in order to arrive at the average daily wage. After thus finding out the average daily wage, the liability of the employer in respect of the maternity benefit has to be calculated in terms of S.5 of the Act for both pre-natal and post-natal period indicated above.Bearing in mind the above mentioned dictionary or popular meaning of the term "week", we think that in the context of sub-ss.(1) and (3) of S.5 of the Act, the term week has to be taken to signify a cycle of seven days including Sundays. The language in which the aforesaid sub-sections are couched also shows that the Legislature intended that computation of maternity benefit is to be made for the entire period of the woman workers actual absence, i.e., for all the days including Sundays which may be wageless holidays falling within that period and not only for intermittent periods of six days thereby excluding Sundays falling within that period for if it were not so the Legislature instead of using the words "for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day" would have used the words "for the working days falling within that period of her actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day but excluding the wageless days." Again the word "period" occurring in S.5(1) of the Act is a strong word. It seems to emphasize, in our judgment, the continuous running of time and recurrence of the cycle of seven days. It has also to be borne in mind in this connection that in interpreting provisions of beneficial pieces of legislation like the one in hand which is intended to achieve the object of doing social justice to women workers employed in the plantations and which squarely falls within the purview of Art. 42 of the Constitution, the beneficent rule of construction which would enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output has to be adopted by the Court.Thus we are of opinion that computation of maternity benefit has to be made for all the days including Sundays and rest days which maybe wageless holidays comprised in the actual period of absence of the woman intending upto six weeks preceding and excluding the day of delivery as also for all the days falling within the six weeks immediately following the day of delivery thereby ensuring that the woman worker gets for the said period not only the amount equalling 100 per cent of the wages which she was previously earning in terms of S.3(n) of the Act but also the benefit of the wages for all the Sundays and rest days falling within the aforesaid two periods which would ultimately be conducive to the interest of both the woman worker and her employer.21. In view of what we have stated above, we cannot uphold the view of the law expressed by the Full Bench of Kerala High Court in Malayalam Plantations Ltd., Cochin v. Inspector of Plantations, Mundakayam and others (supra). | 0 | 4,130 | 911 | ### Instruction:
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arrive at the average daily wage. After thus finding out the average daily wage, the liability of the employer in respect of the maternity benefit has to be calculated in terms of S.5 of the Act for both pre-natal and post-natal period indicated above.13. The real though difficult question that calls for determination by us is as to what is the connotation of the term "week" occurring in the sub-ss.(1) and (3) of S.5 of the Act and whether the computation of the maternity benefit prescribed by the Act for the aforesaid two periods has to be made taking a "week" as signifying a cycle of seven days including a Sunday or a cycle of seven days minus a Sunday which is said to be a wageless day. As the Act does not contain any definition of the word "week" it has to be understood in its ordinary dictionary sense.14. In the Shorter Oxford English Dictionary (Third Edition), the word "week" has been described as meaning the cycle of seven days, recognized in the calendar of the Jews and thence adopted in the calendars of Christian, Mohammedan and various other peoples. A space of seven days, irrespective of the time from which it is reckoned. Seven days as a term for periodical payments (of wages, rent, or the like) or as a unit of reckoning for time of work or service".15. In Websters New World Dictionary (1962 Edition) the meaning of the word "week" is given as a "period of seven days, especially one beginning with Sunday and ending with Saturday; the hours or days of work in a seven-day period."16. In Strouds Judicial Dictionary (Third Edition) it is stated that (1) though a week usually means any consecutive seven days, it will sometimes be interpreted to mean the ordinary notion of a week reckoning from Sunday to Sunday and (2) probably, a week usually means seven clear days.17. A "week" according to Halsburys Laws of England (Third Edition) Volume 37 at p. 84 is strictly the time between midnight on Saturday and the same hour on the next succeeding Saturday, but the term is also applied to any period of seven successive days.18. Bearing in mind the above mentioned dictionary or popular meaning of the term "week", we think that in the context of sub-ss.(1) and (3) of S.5 of the Act, the term week has to be taken to signify a cycle of seven days including Sundays. The language in which the aforesaid sub-sections are couched also shows that the Legislature intended that computation of maternity benefit is to be made for the entire period of the woman workers actual absence, i.e., for all the days including Sundays which may be wageless holidays falling within that period and not only for intermittent periods of six days thereby excluding Sundays falling within that period for if it were not so the Legislature instead of using the words "for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day" would have used the words "for the working days falling within that period of her actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day but excluding the wageless days." Again the word "period" occurring in S.5(1) of the Act is a strong word. It seems to emphasize, in our judgment, the continuous running of time and recurrence of the cycle of seven days. It has also to be borne in mind in this connection that in interpreting provisions of beneficial pieces of legislation like the one in hand which is intended to achieve the object of doing social justice to women workers employed in the plantations and which squarely falls within the purview of Art. 42 of the Constitution, the beneficent rule of construction which would enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output has to be adopted by the Court.19. The interpretation placed by us on the phraseology of sub-ss.(1) and (3) of S.5 of the Act appears to us to be in conformity not only with the legislative intendment but also with paragraphs 1 and 2 of Art. 4 of Convention No. 103 concerning Maternity Protection Convention (Revised), 1952 adopted by the General Conference of the International Labour Organisation which are extracted below for facility of reference :"Article 4 :(1) While absent from work on maternity leave in accordance with the provisions of Art. 3, the woman shall be entitled to receive cash and medical benefits.(2) The rates of cash benefits shall be fixed by national laws or regulations so as to ensure to benefit sufficient for the full and healthy maintenance of herself and her child in accordance with a suitable standard of living."20. Thus we are of opinion that computation of maternity benefit has to be made for all the days including Sundays and rest days which maybe wageless holidays comprised in the actual period of absence of the woman intending upto six weeks preceding and excluding the day of delivery as also for all the days falling within the six weeks immediately following the day of delivery thereby ensuring that the woman worker gets for the said period not only the amount equalling 100 per cent of the wages which she was previously earning in terms of S.3(n) of the Act but also the benefit of the wages for all the Sundays and rest days falling within the aforesaid two periods which would ultimately be conducive to the interest of both the woman worker and her employer.21. In view of what we have stated above, we cannot uphold the view of the law expressed by the Full Bench of Kerala High Court in Malayalam Plantations Ltd., Cochin v. Inspector of Plantations, Mundakayam and others (supra).
### Response:
0
### Explanation:
12. The provisions of S.5 of the Act quoted above make it clear that a woman worker who expects a child is entitled to maternity benefits for a maximum period of twelve weeks which is split up into two periods, viz., pre-natal and post-natal. The first one, i.e., pre-natal or ante-natal period is limited to the period of womans actual absence extending upto six weeks immediately preceding and including the day on which her delivery occurs and the second one which is post-natal compulsory period consists of six weeks immediately following the day of delivery. The benefit has to be calculated for the aforesaid two periods on the basis of the average daily wage. According to the explanation appended to S.5(1) of the Act, the average daily wage has to be computed taking into consideration the average of the womans wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, or one rupee a day, whichever is higher. For fixing the average daily wage, it has, therefore, first to be ascertained whether the wages which were paid or were payable to the woman was for "time work" or for "piece work". It has next to be ascertained as to what were the cash wages paid or payable to her in terms of the definition contained in S.3(n) of the Act for the days on which she worked during the period of three calendar months immediately preceding the date of delivery, reckoned according to the British calendar month. The total wages thus worked out are to be divided by the number of days in the aforesaid three calendar months in order to arrive at the average daily wage. After thus finding out the average daily wage, the liability of the employer in respect of the maternity benefit has to be calculated in terms of S.5 of the Act for both pre-natal and post-natal period indicated above.Bearing in mind the above mentioned dictionary or popular meaning of the term "week", we think that in the context of sub-ss.(1) and (3) of S.5 of the Act, the term week has to be taken to signify a cycle of seven days including Sundays. The language in which the aforesaid sub-sections are couched also shows that the Legislature intended that computation of maternity benefit is to be made for the entire period of the woman workers actual absence, i.e., for all the days including Sundays which may be wageless holidays falling within that period and not only for intermittent periods of six days thereby excluding Sundays falling within that period for if it were not so the Legislature instead of using the words "for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day" would have used the words "for the working days falling within that period of her actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day but excluding the wageless days." Again the word "period" occurring in S.5(1) of the Act is a strong word. It seems to emphasize, in our judgment, the continuous running of time and recurrence of the cycle of seven days. It has also to be borne in mind in this connection that in interpreting provisions of beneficial pieces of legislation like the one in hand which is intended to achieve the object of doing social justice to women workers employed in the plantations and which squarely falls within the purview of Art. 42 of the Constitution, the beneficent rule of construction which would enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output has to be adopted by the Court.Thus we are of opinion that computation of maternity benefit has to be made for all the days including Sundays and rest days which maybe wageless holidays comprised in the actual period of absence of the woman intending upto six weeks preceding and excluding the day of delivery as also for all the days falling within the six weeks immediately following the day of delivery thereby ensuring that the woman worker gets for the said period not only the amount equalling 100 per cent of the wages which she was previously earning in terms of S.3(n) of the Act but also the benefit of the wages for all the Sundays and rest days falling within the aforesaid two periods which would ultimately be conducive to the interest of both the woman worker and her employer.21. In view of what we have stated above, we cannot uphold the view of the law expressed by the Full Bench of Kerala High Court in Malayalam Plantations Ltd., Cochin v. Inspector of Plantations, Mundakayam and others (supra).
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UNION OF INDIA & ORS Vs. R. THIYAGARAJAN | borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. In the case at hand all the three conditions were fulfilled…. In Prasar Bharti v. Amarjeet Singh (2007) 9 SCC 539 this Court held thus: 13. There exists a distinction between transfer and deputation. Deputation connotes service outside the cadre or outside the parent department in which an employee is serving. Transfer, however, is limited to equivalent post in the same cadre and in the same department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications. xxx xxx xxx 17. It has not been disputed that the functions of the Central Government have been taken over by the Corporation in terms of Section 12 of the Act, when the Corporation has started functioning on and from the appointed day. It requires manpower for managing its affairs. It has been doing so with the existing staff. They are being paid their salaries or other remunerations by the Corporation. They are subjected to effective control by its officers. The respondents, for all intent and purposes, are therefore, under the control of the Corporation. xxx xxx xxx 20. The concept of control implies that the controlling officer must be in a position to dominate the affairs of its subordinate. It unless otherwise defined would be synonymous with superintendence, management or authority to direct, restrict or regulate. It is exercised by a superior authority in exercise of its supervisory power. It may amount to an effective control, which may either be de facto or remote…. 15. A reading of the aforesaid judgment makes it clear that deputation envisages the assignment of an employee of one department/cadre/organisation to another department/cadre/organisation in the public interest. It is also clear that normally deputation also involves the consent of the employee. In Prasar Bharti case (supra) this Court also held that on transfer of the services in the case of deputation, the control with regard to the employee would also determine whether such employee was on deputation or not. 16. As far as the present case is concerned, as we have noticed above, till 11.09.2009 the respondent continued to be under the control of his parent organisation i.e. CISF and was also getting his pay and allowances from the said authority. Therefore, though he as a member of his Battalion may have been serving the NDRF, it cannot be said that he was on deputation to the NDRF. His organisation had agreed to deploy some of its Battalions with the NDRF. However, the administrative and disciplinary control over such employees remained with the CISF. The emoluments were also paid by the CISF and, therefore, it cannot be said that the NDRF was the employer or master of the respondent. In such circumstances, up to 10.09.2009 the respondent could not be said to be on deputation even though as per the Rules he may have been described as a deputanionist. This term has been very loosely used but for payment of deputation allowance it must be shown that the services of the employee had been transferred to another department/cadre/organisation and the control over the employee now vests with the transferee department/cadre/organisation. However, on 11.09.2009, the date when the Ministry of Home Affairs conferred the command and control of the Battalions drawn from the various Central Para Military Forces with the Director General, NDRF and from which date these personnel drew their pay from the NDRF they would be deemed to be on deputation with the NDRF. 17. Ms. Madhavi Divan has also urged that the High Court without any jurisdiction or prayer before it wrongly directed that such relief be given to all employees and that too from 2006. We are in agreement with the submission. Before the learned Single Judge, it was only the respondent herein who was the petitioner and his prayer was only for his representation being considered. Despite that, the learned Single Judge went beyond the relief claimed and granted him benefit of certain allowances. An appeal was filed only by the Union of India. No other person was there before the Division Bench. In such a case, we do not understand how the Union of India could have been put in a worse position than it would have been if it had not filed an appeal. 18. We also are of the view that the High Court exceeded its jurisdiction in matters like this. The High Court exercise its jurisdiction only over State(s) of which it is the High Court. It has no jurisdiction for the rest of the country. Matters like the present may be pending in various parts of the country. In the present case, matter had been decided by the Delhi High Court but some other High Court may or may not have taken different view. The High Court of Madras could not have passed such order. It has virtually usurped the jurisdiction of other High Courts in the country. It is true that sometimes this Court has ordered that all similarly situated employees may be granted similar relief but the High Court does not have the benefit of exercising the power under Article 142 of the Constitution. In any event, this Court exercises jurisdiction over the entire country whereas the jurisdiction of the High Court is limited to the territorial jurisdiction of the State(s) of which it is the High Court. The High Court may be justified in passing such an order when it only affects the employees of the State falling within its jurisdiction but, in our opinion, it could not have passed such an order in the case of employees where pan India repercussions would be involved. | 1[ds]15. A reading of the aforesaid judgment makes it clear that deputation envisages the assignment of an employee of one department/cadre/organisation to another department/cadre/organisation in the public interest. It is also clear that normally deputation also involves the consent of the employee. In Prasar Bharti case (supra) this Court also held that on transfer of the services in the case of deputation, the control with regard to the employee would also determine whether such employee was on deputation or not16. As far as the present case is concerned, as we have noticed above, till 11.09.2009 the respondent continued to be under the control of his parent organisation i.e. CISF and was also getting his pay and allowances from the said authority. Therefore, though he as a member of his Battalion may have been serving the NDRF, it cannot be said that he was on deputation to the NDRF. His organisation had agreed to deploy some of its Battalions with the NDRF. However, the administrative and disciplinary control over such employees remained with the CISF. The emoluments were also paid by the CISF and, therefore, it cannot be said that the NDRF was the employer or master of the respondent. In such circumstances, up to 10.09.2009 the respondent could not be said to be on deputation even though as per the Rules he may have been described as a deputanionist. This term has been very loosely used but for payment of deputation allowance it must be shown that the services of the employee had been transferred to another department/cadre/organisation and the control over the employee now vests with the transferee department/cadre/organisation. However, on 11.09.2009, the date when the Ministry of Home Affairs conferred the command and control of the Battalions drawn from the various Central Para Military Forces with the Director General, NDRF and from which date these personnel drew their pay from the NDRF they would be deemed to be on deputation with the NDRFWe are in agreement with the submission. Before the learned Single Judge, it was only the respondent herein who was the petitioner and his prayer was only for his representation being considered. Despite that, the learned Single Judge went beyond the relief claimed and granted him benefit of certain allowances. An appeal was filed only by the Union of India. No other person was there before the Division Bench. In such a case, we do not understand how the Union of India could have been put in a worse position than it would have been if it had not filed an appeal18. We also are of the view that the High Court exceeded its jurisdiction in matters like this. The High Court exercise its jurisdiction only over State(s) of which it is the High Court. It has no jurisdiction for the rest of the country. Matters like the present may be pending in various parts of the country. In the present case, matter had been decided by the Delhi High Court but some other High Court may or may not have taken different view. The High Court of Madras could not have passed such order. It has virtually usurped the jurisdiction of other High Courts in the country. It is true that sometimes this Court has ordered that all similarly situated employees may be granted similar relief but the High Court does not have the benefit of exercising the power under Article 142 of the Constitution. In any event, this Court exercises jurisdiction over the entire country whereas the jurisdiction of the High Court is limited to the territorial jurisdiction of the State(s) of which it is the High Court. The High Court may be justified in passing such an order when it only affects the employees of the State falling within its jurisdiction but, in our opinion, it could not have passed such an order in the case of employees where pan India repercussions would be involved. | 1 | 2,884 | 713 | ### Instruction:
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borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. In the case at hand all the three conditions were fulfilled…. In Prasar Bharti v. Amarjeet Singh (2007) 9 SCC 539 this Court held thus: 13. There exists a distinction between transfer and deputation. Deputation connotes service outside the cadre or outside the parent department in which an employee is serving. Transfer, however, is limited to equivalent post in the same cadre and in the same department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications. xxx xxx xxx 17. It has not been disputed that the functions of the Central Government have been taken over by the Corporation in terms of Section 12 of the Act, when the Corporation has started functioning on and from the appointed day. It requires manpower for managing its affairs. It has been doing so with the existing staff. They are being paid their salaries or other remunerations by the Corporation. They are subjected to effective control by its officers. The respondents, for all intent and purposes, are therefore, under the control of the Corporation. xxx xxx xxx 20. The concept of control implies that the controlling officer must be in a position to dominate the affairs of its subordinate. It unless otherwise defined would be synonymous with superintendence, management or authority to direct, restrict or regulate. It is exercised by a superior authority in exercise of its supervisory power. It may amount to an effective control, which may either be de facto or remote…. 15. A reading of the aforesaid judgment makes it clear that deputation envisages the assignment of an employee of one department/cadre/organisation to another department/cadre/organisation in the public interest. It is also clear that normally deputation also involves the consent of the employee. In Prasar Bharti case (supra) this Court also held that on transfer of the services in the case of deputation, the control with regard to the employee would also determine whether such employee was on deputation or not. 16. As far as the present case is concerned, as we have noticed above, till 11.09.2009 the respondent continued to be under the control of his parent organisation i.e. CISF and was also getting his pay and allowances from the said authority. Therefore, though he as a member of his Battalion may have been serving the NDRF, it cannot be said that he was on deputation to the NDRF. His organisation had agreed to deploy some of its Battalions with the NDRF. However, the administrative and disciplinary control over such employees remained with the CISF. The emoluments were also paid by the CISF and, therefore, it cannot be said that the NDRF was the employer or master of the respondent. In such circumstances, up to 10.09.2009 the respondent could not be said to be on deputation even though as per the Rules he may have been described as a deputanionist. This term has been very loosely used but for payment of deputation allowance it must be shown that the services of the employee had been transferred to another department/cadre/organisation and the control over the employee now vests with the transferee department/cadre/organisation. However, on 11.09.2009, the date when the Ministry of Home Affairs conferred the command and control of the Battalions drawn from the various Central Para Military Forces with the Director General, NDRF and from which date these personnel drew their pay from the NDRF they would be deemed to be on deputation with the NDRF. 17. Ms. Madhavi Divan has also urged that the High Court without any jurisdiction or prayer before it wrongly directed that such relief be given to all employees and that too from 2006. We are in agreement with the submission. Before the learned Single Judge, it was only the respondent herein who was the petitioner and his prayer was only for his representation being considered. Despite that, the learned Single Judge went beyond the relief claimed and granted him benefit of certain allowances. An appeal was filed only by the Union of India. No other person was there before the Division Bench. In such a case, we do not understand how the Union of India could have been put in a worse position than it would have been if it had not filed an appeal. 18. We also are of the view that the High Court exceeded its jurisdiction in matters like this. The High Court exercise its jurisdiction only over State(s) of which it is the High Court. It has no jurisdiction for the rest of the country. Matters like the present may be pending in various parts of the country. In the present case, matter had been decided by the Delhi High Court but some other High Court may or may not have taken different view. The High Court of Madras could not have passed such order. It has virtually usurped the jurisdiction of other High Courts in the country. It is true that sometimes this Court has ordered that all similarly situated employees may be granted similar relief but the High Court does not have the benefit of exercising the power under Article 142 of the Constitution. In any event, this Court exercises jurisdiction over the entire country whereas the jurisdiction of the High Court is limited to the territorial jurisdiction of the State(s) of which it is the High Court. The High Court may be justified in passing such an order when it only affects the employees of the State falling within its jurisdiction but, in our opinion, it could not have passed such an order in the case of employees where pan India repercussions would be involved.
### Response:
1
### Explanation:
15. A reading of the aforesaid judgment makes it clear that deputation envisages the assignment of an employee of one department/cadre/organisation to another department/cadre/organisation in the public interest. It is also clear that normally deputation also involves the consent of the employee. In Prasar Bharti case (supra) this Court also held that on transfer of the services in the case of deputation, the control with regard to the employee would also determine whether such employee was on deputation or not16. As far as the present case is concerned, as we have noticed above, till 11.09.2009 the respondent continued to be under the control of his parent organisation i.e. CISF and was also getting his pay and allowances from the said authority. Therefore, though he as a member of his Battalion may have been serving the NDRF, it cannot be said that he was on deputation to the NDRF. His organisation had agreed to deploy some of its Battalions with the NDRF. However, the administrative and disciplinary control over such employees remained with the CISF. The emoluments were also paid by the CISF and, therefore, it cannot be said that the NDRF was the employer or master of the respondent. In such circumstances, up to 10.09.2009 the respondent could not be said to be on deputation even though as per the Rules he may have been described as a deputanionist. This term has been very loosely used but for payment of deputation allowance it must be shown that the services of the employee had been transferred to another department/cadre/organisation and the control over the employee now vests with the transferee department/cadre/organisation. However, on 11.09.2009, the date when the Ministry of Home Affairs conferred the command and control of the Battalions drawn from the various Central Para Military Forces with the Director General, NDRF and from which date these personnel drew their pay from the NDRF they would be deemed to be on deputation with the NDRFWe are in agreement with the submission. Before the learned Single Judge, it was only the respondent herein who was the petitioner and his prayer was only for his representation being considered. Despite that, the learned Single Judge went beyond the relief claimed and granted him benefit of certain allowances. An appeal was filed only by the Union of India. No other person was there before the Division Bench. In such a case, we do not understand how the Union of India could have been put in a worse position than it would have been if it had not filed an appeal18. We also are of the view that the High Court exceeded its jurisdiction in matters like this. The High Court exercise its jurisdiction only over State(s) of which it is the High Court. It has no jurisdiction for the rest of the country. Matters like the present may be pending in various parts of the country. In the present case, matter had been decided by the Delhi High Court but some other High Court may or may not have taken different view. The High Court of Madras could not have passed such order. It has virtually usurped the jurisdiction of other High Courts in the country. It is true that sometimes this Court has ordered that all similarly situated employees may be granted similar relief but the High Court does not have the benefit of exercising the power under Article 142 of the Constitution. In any event, this Court exercises jurisdiction over the entire country whereas the jurisdiction of the High Court is limited to the territorial jurisdiction of the State(s) of which it is the High Court. The High Court may be justified in passing such an order when it only affects the employees of the State falling within its jurisdiction but, in our opinion, it could not have passed such an order in the case of employees where pan India repercussions would be involved.
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RAJA SINGH Vs. STATE OF UP | order was passed repatriating them to their Parent department. Of course, in the meanwhile, writ petitions came to be filed by the appellants. However, there was no communication from the Department of Minority Welfare and Waqf to the other departments proposing for repatriation of the appellants to their Parent department.13. In Managing Director, UP Rajkiya Nirman Nigam v. P.K. Bhatnagar and others (2007) 14 SCC 498, it was held that the mere fact the employee has spent several years in service in the Department where he has been sent on deputation, will not alter the position from that of a deputationist to a regular employee. Of course, it is well-settled that the employee who has been sent on deputation, has no right to claim absorption. But in the case in hand, as we have discussed earlier, appointment was not on deputation; but by transfer of service much prior to coming into force of the Service Rules 2001.14. UP Minority Welfare Department Gazetted Officers Service Rules 2001 came into force w.e.f 02.07.2001. Rule 3(h) of the said Rules defines ‘Member of the Service’ as under:- 3(h) ‘Member of the service’ means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the service.Rule 3(k) defines ‘Substantive appointment’ as under:- 3(k) ‘Substantive appointment’ means an appointment not being an ad hoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules and, if there were no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government.Be it noted that at the time of appointment of the appellants, there were no Service Rules. The appellants having been appointed prior to coming into force of UP Minority Welfare Department Gazetted Officers Rules 2001, their appointment cannot be said to be on deputation. Though it is stated that their appointment was only temporary, there is nothing on record to show that the posts were only temporary posts for a fixed time. In the absence of any material to show that the appellants were appointed only against temporary posts created only for a period of two years, it cannot be held that they were appointed only against temporary posts for a period of only two years.15. Rule 5 of the UP Minority Welfare Department Gazetted Officers Service Rules 2001 contemplated that 75% post of District Minority Welfare Officer will be filled up through Public Service Commission by direct recruitment and 25% by promotion through Public Service Commission from amongst substantively appointed Chief Waqf Inspectors and Senior Waqf Inspectors who have completed ten years’ service as Chief Waqf Inspector or Senior Waqf Inspector or both. Though UP Minority Welfare Department Gazetted Officers Service Rules 2001 is silent about the appointment of the appellants prior to coming into force of 2001 Rules, the appellants having been appointed on the post of District Minority Welfare Officer prior to coming into force of Service Rules 2001, cannot be deprived of their rights of absorption in the Minority Welfare Department.16. In the impugned order, the High Court relied upon WA No. 44112 of 2001 which is a subject matter of challenge in SLP(C) No.8885/2014 which in turn relied upon CMWP No. 44100 of 2013 titled Chandrabhan Srivastava and Another vs. State of U.P. and Others. In WP No. 44100 of 2013, the petitioners thereon were selected and joined in the cadre of District Minority Welfare Officer on 27.09.2009, long after the service Rules 2001 came into force. In that context, the High Court held that the persons who were appointed to the Minority Welfare Department, are governed by the Uttar Pradesh Minority Welfare Department Gazetted Officers Service Rules 2001. The petitioners thereon having been appointed by the Office Memorandum dated 27.07.2009, cannot claim to be a ‘Member of the Service’ as they do not fulfill the requirement under Rule 3(h) of the Rules. The said case in WP No. 44100 of 2013 is clearly distinguishable on facts. In the present case, the appellants having been appointed in 1997 much prior coming into force of UP Minority Welfare Department Gazetted Officers Service Rules 2001 clearly covered under Rule 3(h) of the Rules and stand on different footing. The High Court, in our view, was not right in placing reliance on Saeed Ahmad Khand and Chandrabhan Srivastava to dismiss the writ petition filed by the appellants.17. It is stated that Raja Singh and Hem Raj Singh retired on 30.06.2018. Claiming their ACP (Assured Career Progression) and other benefits, WP No.23563(S/B) of 2018 was filed by Raja Singh which was disposed of by the High Court vide order dated 31.08.2018 directing the Parent department namely Department of Training and Employment to process the pension papers relating to payment of post-retirement dues. It is stated that pursuant to the said direction of the High Court, Director of Training and Employment vide its order dated 30.10.2018 sanctioned payment of all retiral benefits and other dues payable to appellant Raja Singh. It is stated that the Parent department of Raja Singh has paid all the retiral dues and pension is being paid at the admissible rate in the Department of Training and Employment. Since appellant Raja Singh and three other appellants namely Hem Raj Singh, Dharam Deo Tripathi and Makrand Prasad are held to be the employees of Department of Minority Welfare and Waqf in the cadre of District Minority Welfare Officer, they are entitled to the retiral benefits and pension as admissible to the District Minority Welfare Officer. Department of Minority Welfare and Waqf shall process the pension papers and pay all the retiral benefits after adjusting retiral benefits paid to the appellants Raja Singh and Hem Raj Singh by their respective departments. The pension shall be paid to the appellants as admissible to the District Minority Welfare Officer after adjusting the pension paid to appellants Raja Singh and Hem Raj Singh. | 1[ds]Even though the said letter states that the appellants were appointed by deputation/service transfer, considering the surrounding circumstances that the appellants have undergone the selection process by appearing for interview before the Committee and that they were selected for appointment shows that it was ‘selection andin the Department of Minority Welfare and notAs pointed out earlier, even though, the appellants were appointed for the period of two years, after two years, no order was passed repatriating them to their Parent department. Of course, in the meanwhile, writ petitions came to be filed by the appellants. However, there was no communication from the Department of Minority Welfare and Waqf to the other departments proposing for repatriation of the appellants to their Parentit noted that at the time of appointment of the appellants, there were no Service Rules. The appellants having been appointed prior to coming into force of UP Minority Welfare Department Gazetted Officers Rules 2001, their appointment cannot be said to be on deputation. Though it is stated that their appointment was only temporary, there is nothing on record to show that the posts were only temporary posts for a fixed time. In the absence of any material to show that the appellants were appointed only against temporary posts created only for a period of two years, it cannot be held that they were appointed only against temporary posts for a period of only two years.In Managing Director, UP Rajkiya Nirman Nigam v. P.K. Bhatnagar and others (2007) 14 SCC 498, it was held that the mere fact the employee has spent several years in service in the Department where he has been sent on deputation, will not alter the position from that of a deputationist to a regular employee. Of course, it is well-settled that the employee who has been sent on deputation, has no right to claim absorption. But in the case in hand, as we have discussed earlier, appointment was not on deputation; but by transfer of service much prior to coming into force of the Service Rules 2001.Rule 5 of the UP Minority Welfare Department Gazetted Officers Service Rules 2001 contemplated that 75% post of District Minority Welfare Officer will be filled up through Public Service Commission by direct recruitment and 25% by promotion through Public Service Commission from amongst substantively appointed Chief Waqf Inspectors and Senior Waqf Inspectors who have completed tenservice as Chief Waqf Inspector or Senior Waqf Inspector or both. Though UP Minority Welfare Department Gazetted Officers Service Rules 2001 is silent about the appointment of the appellants prior to coming into force of 2001 Rules, the appellants having been appointed on the post of District Minority Welfare Officer prior to coming into force of Service Rules 2001, cannot be deprived of their rights of absorption in the Minority Welfare Department.16. In the impugned order, the High Court relied upon WA No. 44112 of 2001 which is a subject matter of challenge in SLP(C) No.8885/2014 which in turn relied upon CMWP No. 44100 of 2013 titled Chandrabhan Srivastava and Another vs. State of U.P. and Others. In WP No. 44100 of 2013, the petitioners thereon were selected and joined in the cadre of District Minority Welfare Officer on 27.09.2009, long after the service Rules 2001 came into force. In that context, the High Court held that the persons who were appointed to the Minority Welfare Department, are governed by the Uttar Pradesh Minority Welfare Department Gazetted Officers Service Rules 2001. The petitioners thereon having been appointed by the Office Memorandum dated 27.07.2009, cannot claim to be a ‘Member of theas they do not fulfill the requirement under Rule 3(h) of the Rules. The said case in WP No. 44100 of 2013 is clearly distinguishable on facts. In the present case, the appellants having been appointed in 1997 much prior coming into force of UP Minority Welfare Department Gazetted Officers Service Rules 2001 clearly covered under Rule 3(h) of the Rules and stand on different footing. The High Court, in our view, was not right in placing reliance on Saeed Ahmad Khand and Chandrabhan Srivastava to dismiss the writ petition filed by the appellants.17. It is stated that Raja Singh and Hem Raj Singh retired on 30.06.2018. Claiming their ACP (Assured Career Progression) and other benefits, WP No.23563(S/B) of 2018 was filed by Raja Singh which was disposed of by the High Court vide order dated 31.08.2018 directing the Parent department namely Department of Training and Employment to process the pension papers relating to payment of post-retirement dues. It is stated that pursuant to the said direction of the High Court, Director of Training and Employment vide its order dated 30.10.2018 sanctioned payment of all retiral benefits and other dues payable to appellant Raja Singh. It is stated that the Parent department of Raja Singh has paid all the retiral dues and pension is being paid at the admissible rate in the Department of Training and Employment. Since appellant Raja Singh and three other appellants namely Hem Raj Singh, Dharam Deo Tripathi and Makrand Prasad are held to be the employees of Department of Minority Welfare and Waqf in the cadre of District Minority Welfare Officer, they are entitled to the retiral benefits and pension as admissible to the District Minority Welfare Officer. Department of Minority Welfare and Waqf shall process the pension papers and pay all the retiral benefits after adjusting retiral benefits paid to the appellants Raja Singh and Hem Raj Singh by their respective departments. The pension shall be paid to the appellants as admissible to the District Minority Welfare Officer after adjusting the pension paid to appellants Raja Singh and Hem Raj Singh. | 1 | 2,597 | 1,035 | ### 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:
order was passed repatriating them to their Parent department. Of course, in the meanwhile, writ petitions came to be filed by the appellants. However, there was no communication from the Department of Minority Welfare and Waqf to the other departments proposing for repatriation of the appellants to their Parent department.13. In Managing Director, UP Rajkiya Nirman Nigam v. P.K. Bhatnagar and others (2007) 14 SCC 498, it was held that the mere fact the employee has spent several years in service in the Department where he has been sent on deputation, will not alter the position from that of a deputationist to a regular employee. Of course, it is well-settled that the employee who has been sent on deputation, has no right to claim absorption. But in the case in hand, as we have discussed earlier, appointment was not on deputation; but by transfer of service much prior to coming into force of the Service Rules 2001.14. UP Minority Welfare Department Gazetted Officers Service Rules 2001 came into force w.e.f 02.07.2001. Rule 3(h) of the said Rules defines ‘Member of the Service’ as under:- 3(h) ‘Member of the service’ means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the service.Rule 3(k) defines ‘Substantive appointment’ as under:- 3(k) ‘Substantive appointment’ means an appointment not being an ad hoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules and, if there were no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government.Be it noted that at the time of appointment of the appellants, there were no Service Rules. The appellants having been appointed prior to coming into force of UP Minority Welfare Department Gazetted Officers Rules 2001, their appointment cannot be said to be on deputation. Though it is stated that their appointment was only temporary, there is nothing on record to show that the posts were only temporary posts for a fixed time. In the absence of any material to show that the appellants were appointed only against temporary posts created only for a period of two years, it cannot be held that they were appointed only against temporary posts for a period of only two years.15. Rule 5 of the UP Minority Welfare Department Gazetted Officers Service Rules 2001 contemplated that 75% post of District Minority Welfare Officer will be filled up through Public Service Commission by direct recruitment and 25% by promotion through Public Service Commission from amongst substantively appointed Chief Waqf Inspectors and Senior Waqf Inspectors who have completed ten years’ service as Chief Waqf Inspector or Senior Waqf Inspector or both. Though UP Minority Welfare Department Gazetted Officers Service Rules 2001 is silent about the appointment of the appellants prior to coming into force of 2001 Rules, the appellants having been appointed on the post of District Minority Welfare Officer prior to coming into force of Service Rules 2001, cannot be deprived of their rights of absorption in the Minority Welfare Department.16. In the impugned order, the High Court relied upon WA No. 44112 of 2001 which is a subject matter of challenge in SLP(C) No.8885/2014 which in turn relied upon CMWP No. 44100 of 2013 titled Chandrabhan Srivastava and Another vs. State of U.P. and Others. In WP No. 44100 of 2013, the petitioners thereon were selected and joined in the cadre of District Minority Welfare Officer on 27.09.2009, long after the service Rules 2001 came into force. In that context, the High Court held that the persons who were appointed to the Minority Welfare Department, are governed by the Uttar Pradesh Minority Welfare Department Gazetted Officers Service Rules 2001. The petitioners thereon having been appointed by the Office Memorandum dated 27.07.2009, cannot claim to be a ‘Member of the Service’ as they do not fulfill the requirement under Rule 3(h) of the Rules. The said case in WP No. 44100 of 2013 is clearly distinguishable on facts. In the present case, the appellants having been appointed in 1997 much prior coming into force of UP Minority Welfare Department Gazetted Officers Service Rules 2001 clearly covered under Rule 3(h) of the Rules and stand on different footing. The High Court, in our view, was not right in placing reliance on Saeed Ahmad Khand and Chandrabhan Srivastava to dismiss the writ petition filed by the appellants.17. It is stated that Raja Singh and Hem Raj Singh retired on 30.06.2018. Claiming their ACP (Assured Career Progression) and other benefits, WP No.23563(S/B) of 2018 was filed by Raja Singh which was disposed of by the High Court vide order dated 31.08.2018 directing the Parent department namely Department of Training and Employment to process the pension papers relating to payment of post-retirement dues. It is stated that pursuant to the said direction of the High Court, Director of Training and Employment vide its order dated 30.10.2018 sanctioned payment of all retiral benefits and other dues payable to appellant Raja Singh. It is stated that the Parent department of Raja Singh has paid all the retiral dues and pension is being paid at the admissible rate in the Department of Training and Employment. Since appellant Raja Singh and three other appellants namely Hem Raj Singh, Dharam Deo Tripathi and Makrand Prasad are held to be the employees of Department of Minority Welfare and Waqf in the cadre of District Minority Welfare Officer, they are entitled to the retiral benefits and pension as admissible to the District Minority Welfare Officer. Department of Minority Welfare and Waqf shall process the pension papers and pay all the retiral benefits after adjusting retiral benefits paid to the appellants Raja Singh and Hem Raj Singh by their respective departments. The pension shall be paid to the appellants as admissible to the District Minority Welfare Officer after adjusting the pension paid to appellants Raja Singh and Hem Raj Singh.
### Response:
1
### Explanation:
Even though the said letter states that the appellants were appointed by deputation/service transfer, considering the surrounding circumstances that the appellants have undergone the selection process by appearing for interview before the Committee and that they were selected for appointment shows that it was ‘selection andin the Department of Minority Welfare and notAs pointed out earlier, even though, the appellants were appointed for the period of two years, after two years, no order was passed repatriating them to their Parent department. Of course, in the meanwhile, writ petitions came to be filed by the appellants. However, there was no communication from the Department of Minority Welfare and Waqf to the other departments proposing for repatriation of the appellants to their Parentit noted that at the time of appointment of the appellants, there were no Service Rules. The appellants having been appointed prior to coming into force of UP Minority Welfare Department Gazetted Officers Rules 2001, their appointment cannot be said to be on deputation. Though it is stated that their appointment was only temporary, there is nothing on record to show that the posts were only temporary posts for a fixed time. In the absence of any material to show that the appellants were appointed only against temporary posts created only for a period of two years, it cannot be held that they were appointed only against temporary posts for a period of only two years.In Managing Director, UP Rajkiya Nirman Nigam v. P.K. Bhatnagar and others (2007) 14 SCC 498, it was held that the mere fact the employee has spent several years in service in the Department where he has been sent on deputation, will not alter the position from that of a deputationist to a regular employee. Of course, it is well-settled that the employee who has been sent on deputation, has no right to claim absorption. But in the case in hand, as we have discussed earlier, appointment was not on deputation; but by transfer of service much prior to coming into force of the Service Rules 2001.Rule 5 of the UP Minority Welfare Department Gazetted Officers Service Rules 2001 contemplated that 75% post of District Minority Welfare Officer will be filled up through Public Service Commission by direct recruitment and 25% by promotion through Public Service Commission from amongst substantively appointed Chief Waqf Inspectors and Senior Waqf Inspectors who have completed tenservice as Chief Waqf Inspector or Senior Waqf Inspector or both. Though UP Minority Welfare Department Gazetted Officers Service Rules 2001 is silent about the appointment of the appellants prior to coming into force of 2001 Rules, the appellants having been appointed on the post of District Minority Welfare Officer prior to coming into force of Service Rules 2001, cannot be deprived of their rights of absorption in the Minority Welfare Department.16. In the impugned order, the High Court relied upon WA No. 44112 of 2001 which is a subject matter of challenge in SLP(C) No.8885/2014 which in turn relied upon CMWP No. 44100 of 2013 titled Chandrabhan Srivastava and Another vs. State of U.P. and Others. In WP No. 44100 of 2013, the petitioners thereon were selected and joined in the cadre of District Minority Welfare Officer on 27.09.2009, long after the service Rules 2001 came into force. In that context, the High Court held that the persons who were appointed to the Minority Welfare Department, are governed by the Uttar Pradesh Minority Welfare Department Gazetted Officers Service Rules 2001. The petitioners thereon having been appointed by the Office Memorandum dated 27.07.2009, cannot claim to be a ‘Member of theas they do not fulfill the requirement under Rule 3(h) of the Rules. The said case in WP No. 44100 of 2013 is clearly distinguishable on facts. In the present case, the appellants having been appointed in 1997 much prior coming into force of UP Minority Welfare Department Gazetted Officers Service Rules 2001 clearly covered under Rule 3(h) of the Rules and stand on different footing. The High Court, in our view, was not right in placing reliance on Saeed Ahmad Khand and Chandrabhan Srivastava to dismiss the writ petition filed by the appellants.17. It is stated that Raja Singh and Hem Raj Singh retired on 30.06.2018. Claiming their ACP (Assured Career Progression) and other benefits, WP No.23563(S/B) of 2018 was filed by Raja Singh which was disposed of by the High Court vide order dated 31.08.2018 directing the Parent department namely Department of Training and Employment to process the pension papers relating to payment of post-retirement dues. It is stated that pursuant to the said direction of the High Court, Director of Training and Employment vide its order dated 30.10.2018 sanctioned payment of all retiral benefits and other dues payable to appellant Raja Singh. It is stated that the Parent department of Raja Singh has paid all the retiral dues and pension is being paid at the admissible rate in the Department of Training and Employment. Since appellant Raja Singh and three other appellants namely Hem Raj Singh, Dharam Deo Tripathi and Makrand Prasad are held to be the employees of Department of Minority Welfare and Waqf in the cadre of District Minority Welfare Officer, they are entitled to the retiral benefits and pension as admissible to the District Minority Welfare Officer. Department of Minority Welfare and Waqf shall process the pension papers and pay all the retiral benefits after adjusting retiral benefits paid to the appellants Raja Singh and Hem Raj Singh by their respective departments. The pension shall be paid to the appellants as admissible to the District Minority Welfare Officer after adjusting the pension paid to appellants Raja Singh and Hem Raj Singh.
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Col. H.H. Sir Harinder Singh Vs. Commissioner of Income Tax, Punjab and Haryana, Jammu and Kashmir and Himachal Pradesh | that on a true construction of cl. (b) of S. 16 (3) of the Act ,as no benefit has accrued to the minor daughter in the year of account, the sum of Rs. 410/- could not be included in the total income of the assessee. This Court agreed with the view of the High Court. 24. It is clear from the above two decisions that when a trust is created, though the income is in the hands of the trustees, the underlying principle of cl. (b) of S. 16 (3) is that so much of the income as represents the shares of the wife or the minor child, as the case may be, is to be included in computing the total income of the husband or the father. This is consistent with the scheme of S. 16 and in particular, sub-section (3) thereof, which is intended to foil an individuals attempt to avoid or reduce the extent of tax, by transferring his assets to his wife or minor child. From the above discussion it follows, that the second contention of Mr. Puri cannot also be accepted. 25. Now coming to the second question, referred to the High Court, which relates to the reduction claimed by the assessee of the annual letting value of Faridkot House in Diplomatic Enclave, New Delhi, we have already pointed out that the said claim has been rejected by the Revenue, as well as by the High Court. It is admitted by the Revenue as well as the assessee, that the claim of the appellant in this regard in respect of the residential house in Lytton Road, New Delhi, has been allowed by the Revenue. The question regarding the house in Diplomatic Enclave arises only for the assessment year 1960-41. The Income-tax Officer has not given any reason for rejecting the claim of the assessee. The Appellate Assistant Commissioner has held that as the appellant has been granted the usual allowance in respect of Faridkot House in Lytton Road, he is not entitled to any further allowance in respect of another house. In fact the officer has said that both the houses have to be treated as one unit for purposes of computing the annual letting value. But there is one finding, in the order of the Appellate Assistant commissioner, which is to be noted, namely, that the houses in Lytton Road and Diplomatic Enclave are used and occupied by the assessee for residential purposes. The Income-tax Appellate Tribunal has not differed from the finding of the Appellate Assistant Commissioner that both the houses are used and occupied for residential purposes by the assessee. But the Appellate Tribunal has also taken the view that the assessee is entitled to the necessary allowance only in respect of one residential house, under the first proviso to S. 9 (2) and that the second proviso thereto does not help the assessee. According to the Appellate Tribunal, the second proviso to S. 9 (2) of the Act will take in cases where the property, in the occupation of an assessee for purposes of residence, consists of more than one residential houses but so situated as to form one property. The Appellate Tribunal has given an illustration of a palace or a bungalow with various out-houses. In such a case, according to the Appellate Tribunal, all the buildings situated in one compound are to be treated collectively as one property, for the purpose of the first proviso. In this view, the Appellate Tribunal also rejected the claim of the assessee in respect of the house in Diplomatic Enclave. 26. The High Court has very summarily rejected the claim of the appellant in this regard. After referring to the contention of the assessee that the second proviso to S. 9 (2) clearly indicates that the first proviso contemplates an assessee having more than one residential house it has held that the said contention cannot be accepted. 27. Mr. K. C. Puri, learned counsel for the appellant has urged that the finding of the Appellate Assistant Commissioner that the two houses in Lytton Road and Diplomatic Enclave are used for residential purposes by the assessee, has not been departed from by either the Appellate Tribunal or the High Court. On this basis, Mr. Puri urged that a reading of the first and second provisos to section 9 (2) of the Act clearly shows that the allowance, to an assessee, is not confined only to one residential house, as held by the Revenue and the High Court. A reading of the second proviso to sub-section (2) clearly, in our opinion, indicates that the first proviso will take in more than one residential house, if the assessee is able to establish that all the houses are occupied by him for purposes of his own residence. So far as this is concerned, we have already pointed out that the finding is in favour of the assessee. 28. Mr. B. Sen, learned counsel for the Revenue, found considerable difficulty in supporting the order of the High Court, answering question No. 2 in the negative and against the appellant. But he attempted to argue that the question, whether the assessee is actually occupying the house in Diplomatic Enclave also for purposes of his own residence, has not been investigated. We are not inclined to accept this contention of Mr. Sen. We have already referred to the finding of the Appellate Assistant Commissioner to the effect that both the houses - one in Lytton Road and the other in Diplomatic Enclave - are used and occupied by the appellant for purposes of his own residence. This finding has not been disturbed either by the Appellate Tribunal or by the High Court. If so, on a proper construction of the first proviso to sub-section (2) read with its second proviso clearly supports the contention of Mr. Puri that the view of the Revenue and the High Court that the assessee can claim allowance only for one residential house, is erroneous. | 1[ds]17. Taking the first contention of Mr. Puri, according to him the corpus of the property covered by the trust (in this case the Government Securities) should have been transferred for the benefit of the wife or the minor child. The minor daughter, in this case, was not entitled to the corpus of the trust property, namely, the securities. We understood Mr. Puri to urge that S. 16 (3) (b) of the Act will apply only to those cases where ultimately the corpus of the trust property is also transferred to the wife or the minor child, as the case may be. We have no hesitation in rejecting this contention of Mr. Puri. The provisions of S. 16 (3) (b) are very clear and the only requirement, so far as this aspect is concerned, is that the assets must be transferred to any person or association of persons and that transfer of assets must be for the benefit of the wife or the minor child or both. In this connection it is pertinent to note the wordings of S. 16 (3) (a) (iii) and Section 16 (3) (a) (iv). The former provision clearly refers to assets transferred directly or indirectly to the wife by the husband and the latter provision refers to assets transferred directly or indirectly to the minor child not being a married daughter, but in cl. (b) of S. 16 (3) the transfer of assets is not to the wife or the minor child or both but to any person or association of persons. Therefore, it is clear that when the legislature intended to provide for a direct transfer of assets either to the wife or to the minor child, it has used the expressions as are found in S. 16 (3) (a) (iii) and S. 16 (3) (a) (iv). The different phraseology used in cl. (b) of S. 16 (3) makes it clear that the transfer of assets need not be to the wife or the minor child. Nor does the said clause require that the corpus of the property, so transferred to any person or association of persons, should ultimately vest in the wife or the minor child. Mr. Puri quite frankly admitted that there is no decision to support his contention. On the other hand, we find that there is a decision of the Bombay High Court in Commissioner of Income-tax, Bombay v. Mahomed Yusuf Ismail, 1944-12 ITR 8 = (AIR Bom 160) which is against the contention advanced by Mr. Puri. In that decision one of the questions that arose for consideration was whether the income received by the wife of the assessee under a deed of wakf can be included in the assessment of the husband under S. 16 (3) (b). The assessee therein had executed a deed of wakf. Under the terms of the said deed, the assessees wife was to get 21% of the income accruing from the property which was the subject of the wakf deed. It was contended that as no part of the assets or the corpus had been transferred to the wife, the income received by the latter cannot be included in the taxable income of her husband, the assessee. A Division Bench of the Bombay High Court rejected this contention and held that as assets had been transferred, under the wakf deed, to the trustees and as the transfer was beneficial to the wife and that as she had got 21 % of the income from the properties, Section 16 (3) (b) of the Act was properly applied by the Revenue. We are in agreement with this decision of the Bombay High Court and as such the first contention of Mr. Puri will have to be rejected18. Coming to the second contention, according to Mr. Puri under S. 16 (3) (b) of the Act, only so much of the income of the person or association of persons to whom the property has been transferred for the benefit of the wife or the minor child and not the income received by the minor that can be included in the taxable income of the assessee According to the counsel, what has been done by the Revenue is to include in the assessment of the appellant, the income received by the minor daughter in the relevant accounting years. That procedure is opposed to S. 16 (3) (b) of the Act. Here again, the contention of the learned counsel cannot be accepted. If this contention is accepted, the position will be that the Revenue might have included the whole of the income arising from the assets transferred to the Grindlays Bank and not merely that portion of the income which has been received by the minor daughter. Such a construction is totally opposed to the clear provisions of the scheme of Section 16 (3) and in particular the clear wording of cl. (b) of S. 16 (3) of the Act19. From a plain reading of S. 16 (3) (b) it is clear that what is to be included, in computing the total income of the assessee, is that part of the income of the trust which is received for the benefit in this case of the minor daughter. It is the share income which has accrued to or has been received by the minor daughter under the trust deed, in the relevant accounting year, that has to be included in the total income of her father, the assessee. The expression "so much of the income" occurring in this clause also makes it clear that the said provision relates to the share income of the minor daughter, in this case, and not that of the Grindlays Bank, the trustee20. Section 16, sub-section (3) of the Act provides specifically for assets transferred to the wife or the minor child. The income from assets transferred to the wife is still to be included in the total income of the husband, if the assets have been transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration (vide sub-section (3) (a) (iii)). Again so much of the income of any person or association of persons, as arises from assets transferred otherwise than for adequate consideration, to the person or association, by the husband, for the benefit of his wife has to be included in the husbands taxable income. (vide sub-section (3) (b)). The same sub-section (3) of S. 16 of the Act provides for the income, from the assets transferred by a father to his minor child, to be included in the total income of the father, if the assets have been transferred, directly or indirectly to the minor child, not being a married daughter, otherwise than for adequate consideration (vide sub-section (3) (a) (iv)). Again, so much of the income of any person or association of persons, as arises from assets transferred, otherwise than for adequate consideration, to the person or association by the father, for the benefit of his minor child has to be included in the fathers taxable income. (vide sub-section (3) (b)). The above is the scheme of S. 16 (3) of the Act. It must also be noted that under S. 16 (3) (a) sub-clauses (iii) and (iv) and also clause (b) of sub-section (3) the transfer contemplated thereunder should have been "otherwise than for adequate consideration". The words "adequate consideration" denote consideration other than mere love and affection. There is no controversy, in the case before us, that the transfer, by the of trust, is one "otherwise than for adequate consideration". It is true that when assets are transferred to the trustees, as in the case before us, there was income in the hands of the trustees and the latter were liable to pay tax thereon. That, however, is not the question before us. The question before us is whether the income, representing the share of the minor daughter, which has accrued in the hands of the trustee, or was received by the said minor could be included in the total income of the appellant under cl. (b) of sub-s. (3) of S. 1621. For a proper appreciation of cl. (b) of S. 16 (3), in our opinion, that clause must be read in the context of the scheme of S. 16; and the two clauses (a) and (b) of sub-section (3) of S. 16, must be read together. So read, the reasonable interpretation to be placed on cl. (b) appears to be that the scheme of the section requires that an assessee can only be taxed, on the income, from a trust fund created for the benefit of his wife or minor child or both, provided that in the year of account, the wife or the minor child, or both, have derived some benefit under the trust deed. That is, the wife or the minor child, either has received the income or the income has accrued to them or they have a beneficial interest, in the income in the relevant year of account. From this it follows, that if no income accrues or benefit is derived and there is no income at all, so far as the minor child, in the case before us, is concerned, then it is not consistent with the scheme of section 16, that the income or the benefit which is non-existent, so far as the minor child is concerned, is to be included in the income of his or her father. In the case before us, there is no controversy that the minor daughter has received the income in all the relevant accounting years24. It is clear from the above two decisions that when a trust is created, though the income is in the hands of the trustees, the underlying principle of cl. (b) of S. 16 (3) is that so much of the income as represents the shares of the wife or the minor child, as the case may be, is to be included in computing the total income of the husband or the father. This is consistent with the scheme of S. 16 and in particular, sub-section (3) thereof, which is intended to foil an individuals attempt to avoid or reduce the extent of tax, by transferring his assets to his wife or minor child. From the above discussion it follows, that the second contention of Mr. Puri cannot also be acceptedIt is admitted by the Revenue as well as the assessee, that the claim of the appellant in this regard in respect of the residential house in Lytton Road, New Delhi, has been allowed by the Revenue. The question regarding the house in Diplomatic Enclave arises only for the assessment year 1960-41. The Income-tax Officer has not given any reason for rejecting the claim of the assessee. The Appellate Assistant Commissioner has held that as the appellant has been granted the usual allowance in respect of Faridkot House in Lytton Road, he is not entitled to any further allowance in respect of another house. In fact the officer has said that both the houses have to be treated as one unit for purposes of computing the annual letting value. But there is one finding, in the order of the Appellate Assistant commissioner, which is to be noted, namely, that the houses in Lytton Road and Diplomatic Enclave are used and occupied by the assessee for residential purposes. The Income-tax Appellate Tribunal has not differed from the finding of the Appellate Assistant Commissioner that both the houses are used and occupied for residential purposes by the assessee. But the Appellate Tribunal has also taken the view that the assessee is entitled to the necessary allowance only in respect of one residential house, under the first proviso to S. 9 (2) and that the second proviso thereto does not help the assessee. According to the Appellate Tribunal, the second proviso to S. 9 (2) of the Act will take in cases where the property, in the occupation of an assessee for purposes of residence, consists of more than one residential houses but so situated as to form one property. The Appellate Tribunal has given an illustration of a palace or a bungalow with various out-houses. In such a case, according to the Appellate Tribunal, all the buildings situated in one compound are to be treated collectively as one property, for the purpose of the first proviso. In this view, the Appellate Tribunal also rejected the claim of the assessee in respect of the house in Diplomatic Enclave26. The High Court has very summarily rejected the claim of the appellant in this regard. After referring to the contention of the assessee that the second proviso to S. 9 (2) clearly indicates that the first proviso contemplates an assessee having more than one residential house it has held that the said contention cannot be acceptedA reading of the second proviso to sub-section (2) clearly, in our opinion, indicates that the first proviso will take in more than one residential house, if the assessee is able to establish that all the houses are occupied by him for purposes of his own residence. So far as this is concerned, we have already pointed out that the finding is in favour of the assesseeWe have already referred to the finding of the Appellate Assistant Commissioner to the effect that both the houses - one in Lytton Road and the other in Diplomatic Enclave - are used and occupied by the appellant for purposes of his own residence. This finding has not been disturbed either by the Appellate Tribunal or by the High Court. If so, on a proper construction of the first proviso to sub-section (2) read with its second proviso clearly supports the contention of Mr. Puri that the view of the Revenue and the High Court that the assessee can claim allowance only for one residential house, is erroneous. | 1 | 6,976 | 2,664 | ### Instruction:
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that on a true construction of cl. (b) of S. 16 (3) of the Act ,as no benefit has accrued to the minor daughter in the year of account, the sum of Rs. 410/- could not be included in the total income of the assessee. This Court agreed with the view of the High Court. 24. It is clear from the above two decisions that when a trust is created, though the income is in the hands of the trustees, the underlying principle of cl. (b) of S. 16 (3) is that so much of the income as represents the shares of the wife or the minor child, as the case may be, is to be included in computing the total income of the husband or the father. This is consistent with the scheme of S. 16 and in particular, sub-section (3) thereof, which is intended to foil an individuals attempt to avoid or reduce the extent of tax, by transferring his assets to his wife or minor child. From the above discussion it follows, that the second contention of Mr. Puri cannot also be accepted. 25. Now coming to the second question, referred to the High Court, which relates to the reduction claimed by the assessee of the annual letting value of Faridkot House in Diplomatic Enclave, New Delhi, we have already pointed out that the said claim has been rejected by the Revenue, as well as by the High Court. It is admitted by the Revenue as well as the assessee, that the claim of the appellant in this regard in respect of the residential house in Lytton Road, New Delhi, has been allowed by the Revenue. The question regarding the house in Diplomatic Enclave arises only for the assessment year 1960-41. The Income-tax Officer has not given any reason for rejecting the claim of the assessee. The Appellate Assistant Commissioner has held that as the appellant has been granted the usual allowance in respect of Faridkot House in Lytton Road, he is not entitled to any further allowance in respect of another house. In fact the officer has said that both the houses have to be treated as one unit for purposes of computing the annual letting value. But there is one finding, in the order of the Appellate Assistant commissioner, which is to be noted, namely, that the houses in Lytton Road and Diplomatic Enclave are used and occupied by the assessee for residential purposes. The Income-tax Appellate Tribunal has not differed from the finding of the Appellate Assistant Commissioner that both the houses are used and occupied for residential purposes by the assessee. But the Appellate Tribunal has also taken the view that the assessee is entitled to the necessary allowance only in respect of one residential house, under the first proviso to S. 9 (2) and that the second proviso thereto does not help the assessee. According to the Appellate Tribunal, the second proviso to S. 9 (2) of the Act will take in cases where the property, in the occupation of an assessee for purposes of residence, consists of more than one residential houses but so situated as to form one property. The Appellate Tribunal has given an illustration of a palace or a bungalow with various out-houses. In such a case, according to the Appellate Tribunal, all the buildings situated in one compound are to be treated collectively as one property, for the purpose of the first proviso. In this view, the Appellate Tribunal also rejected the claim of the assessee in respect of the house in Diplomatic Enclave. 26. The High Court has very summarily rejected the claim of the appellant in this regard. After referring to the contention of the assessee that the second proviso to S. 9 (2) clearly indicates that the first proviso contemplates an assessee having more than one residential house it has held that the said contention cannot be accepted. 27. Mr. K. C. Puri, learned counsel for the appellant has urged that the finding of the Appellate Assistant Commissioner that the two houses in Lytton Road and Diplomatic Enclave are used for residential purposes by the assessee, has not been departed from by either the Appellate Tribunal or the High Court. On this basis, Mr. Puri urged that a reading of the first and second provisos to section 9 (2) of the Act clearly shows that the allowance, to an assessee, is not confined only to one residential house, as held by the Revenue and the High Court. A reading of the second proviso to sub-section (2) clearly, in our opinion, indicates that the first proviso will take in more than one residential house, if the assessee is able to establish that all the houses are occupied by him for purposes of his own residence. So far as this is concerned, we have already pointed out that the finding is in favour of the assessee. 28. Mr. B. Sen, learned counsel for the Revenue, found considerable difficulty in supporting the order of the High Court, answering question No. 2 in the negative and against the appellant. But he attempted to argue that the question, whether the assessee is actually occupying the house in Diplomatic Enclave also for purposes of his own residence, has not been investigated. We are not inclined to accept this contention of Mr. Sen. We have already referred to the finding of the Appellate Assistant Commissioner to the effect that both the houses - one in Lytton Road and the other in Diplomatic Enclave - are used and occupied by the appellant for purposes of his own residence. This finding has not been disturbed either by the Appellate Tribunal or by the High Court. If so, on a proper construction of the first proviso to sub-section (2) read with its second proviso clearly supports the contention of Mr. Puri that the view of the Revenue and the High Court that the assessee can claim allowance only for one residential house, is erroneous.
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the share of the minor daughter, which has accrued in the hands of the trustee, or was received by the said minor could be included in the total income of the appellant under cl. (b) of sub-s. (3) of S. 1621. For a proper appreciation of cl. (b) of S. 16 (3), in our opinion, that clause must be read in the context of the scheme of S. 16; and the two clauses (a) and (b) of sub-section (3) of S. 16, must be read together. So read, the reasonable interpretation to be placed on cl. (b) appears to be that the scheme of the section requires that an assessee can only be taxed, on the income, from a trust fund created for the benefit of his wife or minor child or both, provided that in the year of account, the wife or the minor child, or both, have derived some benefit under the trust deed. That is, the wife or the minor child, either has received the income or the income has accrued to them or they have a beneficial interest, in the income in the relevant year of account. From this it follows, that if no income accrues or benefit is derived and there is no income at all, so far as the minor child, in the case before us, is concerned, then it is not consistent with the scheme of section 16, that the income or the benefit which is non-existent, so far as the minor child is concerned, is to be included in the income of his or her father. In the case before us, there is no controversy that the minor daughter has received the income in all the relevant accounting years24. It is clear from the above two decisions that when a trust is created, though the income is in the hands of the trustees, the underlying principle of cl. (b) of S. 16 (3) is that so much of the income as represents the shares of the wife or the minor child, as the case may be, is to be included in computing the total income of the husband or the father. This is consistent with the scheme of S. 16 and in particular, sub-section (3) thereof, which is intended to foil an individuals attempt to avoid or reduce the extent of tax, by transferring his assets to his wife or minor child. From the above discussion it follows, that the second contention of Mr. Puri cannot also be acceptedIt is admitted by the Revenue as well as the assessee, that the claim of the appellant in this regard in respect of the residential house in Lytton Road, New Delhi, has been allowed by the Revenue. The question regarding the house in Diplomatic Enclave arises only for the assessment year 1960-41. The Income-tax Officer has not given any reason for rejecting the claim of the assessee. The Appellate Assistant Commissioner has held that as the appellant has been granted the usual allowance in respect of Faridkot House in Lytton Road, he is not entitled to any further allowance in respect of another house. In fact the officer has said that both the houses have to be treated as one unit for purposes of computing the annual letting value. But there is one finding, in the order of the Appellate Assistant commissioner, which is to be noted, namely, that the houses in Lytton Road and Diplomatic Enclave are used and occupied by the assessee for residential purposes. The Income-tax Appellate Tribunal has not differed from the finding of the Appellate Assistant Commissioner that both the houses are used and occupied for residential purposes by the assessee. But the Appellate Tribunal has also taken the view that the assessee is entitled to the necessary allowance only in respect of one residential house, under the first proviso to S. 9 (2) and that the second proviso thereto does not help the assessee. According to the Appellate Tribunal, the second proviso to S. 9 (2) of the Act will take in cases where the property, in the occupation of an assessee for purposes of residence, consists of more than one residential houses but so situated as to form one property. The Appellate Tribunal has given an illustration of a palace or a bungalow with various out-houses. In such a case, according to the Appellate Tribunal, all the buildings situated in one compound are to be treated collectively as one property, for the purpose of the first proviso. In this view, the Appellate Tribunal also rejected the claim of the assessee in respect of the house in Diplomatic Enclave26. The High Court has very summarily rejected the claim of the appellant in this regard. After referring to the contention of the assessee that the second proviso to S. 9 (2) clearly indicates that the first proviso contemplates an assessee having more than one residential house it has held that the said contention cannot be acceptedA reading of the second proviso to sub-section (2) clearly, in our opinion, indicates that the first proviso will take in more than one residential house, if the assessee is able to establish that all the houses are occupied by him for purposes of his own residence. So far as this is concerned, we have already pointed out that the finding is in favour of the assesseeWe have already referred to the finding of the Appellate Assistant Commissioner to the effect that both the houses - one in Lytton Road and the other in Diplomatic Enclave - are used and occupied by the appellant for purposes of his own residence. This finding has not been disturbed either by the Appellate Tribunal or by the High Court. If so, on a proper construction of the first proviso to sub-section (2) read with its second proviso clearly supports the contention of Mr. Puri that the view of the Revenue and the High Court that the assessee can claim allowance only for one residential house, is erroneous.
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RAJBIR SURAJBHAN SINGH Vs. THE CHAIRMAN, INSTITUTE OF BANKING PERSONNEL SELECTION, MUMBAI | V. S. S. J. M.S.T. and Ors. v. V.R. Rudani and Ors. (supra) held The term ‘authority? used in Article 226 of the Constitution of India, must receive a liberal meaning unlike the term ?other authorities? in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue Writs for enforcement of fundamental rights as well as non-fundamental rights. The words ?any person or authority? used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or the authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied.? 10. This Court in the said judgment also referred to what Professor S.A. de Smith stated in ‘Judicial Review of Administrative Action?, which is as follows: ?T o be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.? 11. In Regina v. Panel on Take-Overs and Mergers, Ex parte Datafin PLC and Another [1987] 1 Q.B. 815 (C.A.) , Lloyd L. J. speaking for the Court of Appeal held that if the duty is a public duty, then the body in question is subject to public law. The distinction must lie in the nature of the duty imposed, whether expressly or by implication. He referred to an earlier judgment in Reg. v. Criminal Injuries Compensation Board, Ex. Parte Lain [1967] 2 Q.B. 864, D.C. where Diplock L.J. held that in addition to looking at the source of power for the purpose of deciding the question pertaining to public law, nature of power is an important facet to decide whether a dispute pertains to public law or private law. 12. There is no manner of doubt that a Writ Petition under Article 226 is maintainable even against a private body provided it discharges public functions. While deciding the question as to whether ICRISAT is amenable to the writ jurisdiction under Article 226, this Court held that it is not easy to define what a public function or public duty is. It can reasonably be said that such functions as are similar to or closely related to those performable by the State in its sovereign capacity, are public functions. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture, purely on a voluntary basis which according to this Court, is not a public duty G. Bassi Reddy v. International Corps Research Institute (2003) 4 SCC 225 . A private company carrying on banking business as a scheduled commercial bank cannot be termed as an institution or a company carrying on any statutory or public duty Federal Bank v. Sagar Thomas (2003) 10 SCC 733. 13. In K.K. Saksena (supra), this Court observed that the Respondent therein would not be amenable to Writ jurisdiction under Article 226 of the Constitution of India, as the activities were voluntarily undertaken by the Respondents and there was no obligation to discharge certain activities which were statutory or of public character. Reference was made to the Federal Bank case wherein it was held that the Writ Petition was not maintainable under Article 226 of the Constitution of India in spite of the regulatory regime of the Banking Regulation Act and the other statutes being in operation. The relevant questions, according to this Court in K. K. Saksena (supra), to be answered for the purpose of deciding whether a Writ Petition is maintainable under Article 226 are: a)Whether a private body which is a non- governmental organization partakes the nature of public duty or State action? b)Whether there is any public element in the discharge of its functions? c) Whether there is any positive obligation of a public nature in the discharge of its functions? d)Whether the activities undertaken by the body are voluntary, which many a non-governmental organization perform? 14. The Respondent-Institute has been set up for the purpose of conducting recruitment for appointment to various posts in Public Sector Banks and other financial institutions. Applying the tests mentioned above, we are of the opinion that the High Court is right in holding that the Writ Petition is not maintainable against the Respondent. Conducting recruitment tests for appointment in banking and other financial institutions, is not a public duty. The Respondent is not a creature of a statute and there are no statutory duties or obligations imposed on the Respondent. 15. This Court in Federal Bank case held that a Writ Petition under Article 226 of the Constitution is not maintainable against a scheduled bank on the ground that the business of banking does not fall within the expression ?public duty?. As the activity of the Respondent of conducting the selection process for appointment to the banks is voluntary in nature, it cannot be said that there is any public function discharged by the Respondent. There is no positive obligation, either statutory or otherwise on the Respondent to conduct the recruitment tests. For the reasons above, we are of the considered opinion that the Respondent is not amenable to the Writ Jurisdiction under Article 32 or Article 226 of the Constitution of India. 16. We are informed by the learned Senior Counsel for the Respondent that there were four recruitments that were conducted after the year 2013 but that the Appellant did not participate in any of these recruitments. As he did not participate in any of said subsequent recruitments, the Appellant is not entitled to any relief. | 0[ds]It is true that the Governor of the Reserve Bank of India and the Chairmen of certain Public Sector Banks along with the Joint Secretary, Banking Division, Ministry of Finance are members of the governing body of the Respondent-Institute. There is no dispute that the Respondent is not constituted under a statute. It is also not disputed that the Respondent does not receive any funds from the Government. The Respondent is not controlled by the Government. The letter dated 20.09.2010 produced by the Appellant along with the rejoinder affidavit does not show deep and pervasive control by the Government of India. The question of whether the Council of Scientific and Industrial Research fell under ‘other authorities? within the meaning of Article 12 was referred to a 7 Judge Bench of this Court. [See: Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Others. (supra)]. Resolving the dispute, the 7 Judge Bench in Pradeep Kumar Biswas (supra) held that the question as to whether a corporation/society would fall within the meaning of Article 12 should be decided after examining whether the body is financially, functionally and administratively dominated by or under the control of the Government. This Court observed that such control should be particular to the body in question and must be pervasive. A control which is merely regulatory under the statute or otherwise would not make the body ‘State? under Article 12. As there is no control by the Government over the Respondent in the manner mentioned above, we have no doubt in our mind that the Respondent cannot be said to be falling within the expression ‘State? under Article 12 of the Constitution of India.The Respondent-Institute has been set up for the purpose of conducting recruitment for appointment to various posts in Public Sector Banks and other financial institutions. Applying the tests mentioned above, we are of the opinion that the High Court is right in holding that the Writ Petition is not maintainable against the Respondent. Conducting recruitment tests for appointment in banking and other financial institutions, is not a public duty. The Respondent is not a creature of a statute and there are no statutory duties or obligations imposed on the Respondent.This Court in Federal Bank case held that a Writ Petition under Article 226 of the Constitution is not maintainable against a scheduled bank on the ground that the business of banking does not fall within the expression ?public duty?. As the activity of the Respondent of conducting the selection process for appointment to the banks is voluntary in nature, it cannot be said that there is any public function discharged by the Respondent. There is no positive obligation, either statutory or otherwise on the Respondent to conduct the recruitment tests. For the reasons above, we are of the considered opinion that the Respondent is not amenable to the Writ Jurisdiction under Article 32 or Article 226 of the Constitution of India.e are informed by the learned Senior Counsel for the Respondent that there were four recruitments that were conducted after the year 2013 but that the Appellant did not participate in any of these recruitments.As he did not participate in any of said subsequent recruitments, the Appellant is not entitled to any relief. | 0 | 3,164 | 590 | ### 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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V. S. S. J. M.S.T. and Ors. v. V.R. Rudani and Ors. (supra) held The term ‘authority? used in Article 226 of the Constitution of India, must receive a liberal meaning unlike the term ?other authorities? in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue Writs for enforcement of fundamental rights as well as non-fundamental rights. The words ?any person or authority? used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or the authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied.? 10. This Court in the said judgment also referred to what Professor S.A. de Smith stated in ‘Judicial Review of Administrative Action?, which is as follows: ?T o be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.? 11. In Regina v. Panel on Take-Overs and Mergers, Ex parte Datafin PLC and Another [1987] 1 Q.B. 815 (C.A.) , Lloyd L. J. speaking for the Court of Appeal held that if the duty is a public duty, then the body in question is subject to public law. The distinction must lie in the nature of the duty imposed, whether expressly or by implication. He referred to an earlier judgment in Reg. v. Criminal Injuries Compensation Board, Ex. Parte Lain [1967] 2 Q.B. 864, D.C. where Diplock L.J. held that in addition to looking at the source of power for the purpose of deciding the question pertaining to public law, nature of power is an important facet to decide whether a dispute pertains to public law or private law. 12. There is no manner of doubt that a Writ Petition under Article 226 is maintainable even against a private body provided it discharges public functions. While deciding the question as to whether ICRISAT is amenable to the writ jurisdiction under Article 226, this Court held that it is not easy to define what a public function or public duty is. It can reasonably be said that such functions as are similar to or closely related to those performable by the State in its sovereign capacity, are public functions. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture, purely on a voluntary basis which according to this Court, is not a public duty G. Bassi Reddy v. International Corps Research Institute (2003) 4 SCC 225 . A private company carrying on banking business as a scheduled commercial bank cannot be termed as an institution or a company carrying on any statutory or public duty Federal Bank v. Sagar Thomas (2003) 10 SCC 733. 13. In K.K. Saksena (supra), this Court observed that the Respondent therein would not be amenable to Writ jurisdiction under Article 226 of the Constitution of India, as the activities were voluntarily undertaken by the Respondents and there was no obligation to discharge certain activities which were statutory or of public character. Reference was made to the Federal Bank case wherein it was held that the Writ Petition was not maintainable under Article 226 of the Constitution of India in spite of the regulatory regime of the Banking Regulation Act and the other statutes being in operation. The relevant questions, according to this Court in K. K. Saksena (supra), to be answered for the purpose of deciding whether a Writ Petition is maintainable under Article 226 are: a)Whether a private body which is a non- governmental organization partakes the nature of public duty or State action? b)Whether there is any public element in the discharge of its functions? c) Whether there is any positive obligation of a public nature in the discharge of its functions? d)Whether the activities undertaken by the body are voluntary, which many a non-governmental organization perform? 14. The Respondent-Institute has been set up for the purpose of conducting recruitment for appointment to various posts in Public Sector Banks and other financial institutions. Applying the tests mentioned above, we are of the opinion that the High Court is right in holding that the Writ Petition is not maintainable against the Respondent. Conducting recruitment tests for appointment in banking and other financial institutions, is not a public duty. The Respondent is not a creature of a statute and there are no statutory duties or obligations imposed on the Respondent. 15. This Court in Federal Bank case held that a Writ Petition under Article 226 of the Constitution is not maintainable against a scheduled bank on the ground that the business of banking does not fall within the expression ?public duty?. As the activity of the Respondent of conducting the selection process for appointment to the banks is voluntary in nature, it cannot be said that there is any public function discharged by the Respondent. There is no positive obligation, either statutory or otherwise on the Respondent to conduct the recruitment tests. For the reasons above, we are of the considered opinion that the Respondent is not amenable to the Writ Jurisdiction under Article 32 or Article 226 of the Constitution of India. 16. We are informed by the learned Senior Counsel for the Respondent that there were four recruitments that were conducted after the year 2013 but that the Appellant did not participate in any of these recruitments. As he did not participate in any of said subsequent recruitments, the Appellant is not entitled to any relief.
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### Explanation:
It is true that the Governor of the Reserve Bank of India and the Chairmen of certain Public Sector Banks along with the Joint Secretary, Banking Division, Ministry of Finance are members of the governing body of the Respondent-Institute. There is no dispute that the Respondent is not constituted under a statute. It is also not disputed that the Respondent does not receive any funds from the Government. The Respondent is not controlled by the Government. The letter dated 20.09.2010 produced by the Appellant along with the rejoinder affidavit does not show deep and pervasive control by the Government of India. The question of whether the Council of Scientific and Industrial Research fell under ‘other authorities? within the meaning of Article 12 was referred to a 7 Judge Bench of this Court. [See: Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Others. (supra)]. Resolving the dispute, the 7 Judge Bench in Pradeep Kumar Biswas (supra) held that the question as to whether a corporation/society would fall within the meaning of Article 12 should be decided after examining whether the body is financially, functionally and administratively dominated by or under the control of the Government. This Court observed that such control should be particular to the body in question and must be pervasive. A control which is merely regulatory under the statute or otherwise would not make the body ‘State? under Article 12. As there is no control by the Government over the Respondent in the manner mentioned above, we have no doubt in our mind that the Respondent cannot be said to be falling within the expression ‘State? under Article 12 of the Constitution of India.The Respondent-Institute has been set up for the purpose of conducting recruitment for appointment to various posts in Public Sector Banks and other financial institutions. Applying the tests mentioned above, we are of the opinion that the High Court is right in holding that the Writ Petition is not maintainable against the Respondent. Conducting recruitment tests for appointment in banking and other financial institutions, is not a public duty. The Respondent is not a creature of a statute and there are no statutory duties or obligations imposed on the Respondent.This Court in Federal Bank case held that a Writ Petition under Article 226 of the Constitution is not maintainable against a scheduled bank on the ground that the business of banking does not fall within the expression ?public duty?. As the activity of the Respondent of conducting the selection process for appointment to the banks is voluntary in nature, it cannot be said that there is any public function discharged by the Respondent. There is no positive obligation, either statutory or otherwise on the Respondent to conduct the recruitment tests. For the reasons above, we are of the considered opinion that the Respondent is not amenable to the Writ Jurisdiction under Article 32 or Article 226 of the Constitution of India.e are informed by the learned Senior Counsel for the Respondent that there were four recruitments that were conducted after the year 2013 but that the Appellant did not participate in any of these recruitments.As he did not participate in any of said subsequent recruitments, the Appellant is not entitled to any relief.
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PAWAN KUMAR ARYA AND OTHERS Vs. RAVI KUMAR ARYA AND OTHERS | entered into between the parties. Therefore, as such, considering the fact that the parties entered into the consent terms/settlement for a complete parting of ways between the parties and so aimed at bringing about an eventual complete quietus to the disputes between the parties and even parties entered into the consent terms/settlement to resolve and settle the disputes in relation to the subject matter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial Premises and the disputes in relation to the larger Arya Group of Companies and its constituents, which were beyond the dispute in the civil suit, the entire consent terms/consent decree is required to be acted upon and/or implemented by both the parties. There cannot be any execution of partial consent terms/consent decree. If the submission on behalf of the plaintiffs is accepted and the 8 flats as per list at Annexure A are transferred absolutely and without any condition in favour of PA Group without there being any further supplemental consent terms/family arrangement, in that case, the entire object and purpose of entering into the consent terms/settlement to resolve all the disputes between the parties will be frustrated. Both the parties to the consent terms/consent decree are required to fully comply with the terms of settlement/the consent terms and the consent decree. One party cannot be permitted to say that that portion of the settlement which is in their favour be executed and/or complied with and not the other terms of the settlement/consent terms/consent decree. Under the circumstances, as such, both, the learned Single Judge as well as the Division Bench are justified in holding that the execution of the further supplemental consent terms/family arrangement is must and there cannot be any partial execution of the consent terms/consent decree. 7. Even in the case of Hari Shankar Singhania (supra), the decision which has been relied upon by the learned senior counsel appearing on behalf of the appellants, this Court has observed that a family settlement is treated differently from any other formal commercial settlement as such settlement in the eye of the law ensures peace and goodwill among the family members. It is further observed that technicalities should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. It is further observed that it is the duty of the court that such an arrangement and the terms thereof should be given effect to in letter and spirit. 7.1 In the case of Manish Mohan Sharma (supra), this Court has observed and held that effort of the executing court must be to see that the parties are given the fruits of the decree. It is further observed that mandate is reinforced when it is a consent decree and doubly reinforced when the consent decree is a family settlement. 8. Now so far as the relied placed upon the decision of this Court in the case of Saradamani Kandappan (supra), relied upon by the learned Senior Advocate appearing on behalf of the appellants – plaintiffs, more particularly reliance placed upon paragraph 54 of the said judgment in support of his submission that in the consent terms/consent decree, it is expressly stated or provided the order of performance, namely, that the further supplementary settlement is to be executed and only after such execution the 8 flats as per list at Annexure A to the consent terms shall be allotted in favour of PA Group is concerned, on considering conjoint reading of the terms of the settlement, the said decision shall not be applicable to the facts of the case on hand. 8.1 Even on conjoint reading of all the terms of the settlement, more particularly the clauses referred to hereinabove, it can be said that there is an implied term that both the parties have intended that on one hand as agreed between the parties further supplemental consent terms/family arrangement is to be entered into and on the other hand there shall be transfer/allotment of 8 flats as per list at Annexure A in favour of PA Group. Any other interpretation would lead to unworking of the consent terms/consent decree. As observed hereinabove, if the consent decree is partially executed and the other parts of the consent terms are not implemented and/or acted upon, the object and purpose to resolve all the disputes amicably between the parties and to put an end to all the disputes between the parties will be frustrated. 9. However, at the same time, one cannot lose sight of the fact that the 8 flats as per list at Annexure A are allotted in favour of PA Group and rest of the 7 flats as per list at Annexure B are allotted in favour of RA Group. At present, the RA Group is in possession of all the 15 flats. The RA Group is also the beneficiary of Rs.45 crores. Therefore, to strike the balance between the parties, the RA Group can be directed to counter-sign Annexure E letter issued by Omkar Builders with respect to 8 flats as per list at Annexure A which are allotted in favour of PA Group. However, with a caveat that till the further supplemental consent terms/family arrangement as agreed between the parties under the consent terms/consent decree is not executed, PA Group may not be permitted to sell, transfer and/or deal with the said flats till the consent terms/consent decree is fully acted upon and implemented between the parties. At the same time, both the parties are required to be directed to fully implement the consent terms/consent decree and to enter into further supplemental consent terms/family arrangement, the modalities of which are mentioned in the consent terms itself, at the earliest and within a reasonable time. Until then, both the parties to abide as per the Restraint order as per clause 22 of the consent terms, except the 7 flats as per list at Annexure B, which are allotted in favour of RA Group. | 1[ds]From the aforesaid terms of settlement, it can be seen that it was an overall settlement of all the disputes between the parties in relation to the subject matter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial Premises and the disputes in relation to the larger Arya Group of Companies and its constituents. As observed hereinabove and so stated in clause 2 of the terms of settlement, the consent terms is an identified and mutually agreed framework for a complete parting of ways between the Parties and is aimed at bringing about an eventual complete quietus to the Disputes Considering the aforesaid terms of the settlement which subsequently became part of the consent decree, further entering into the family arrangement/supplemental consent terms was required to be entered into between the parties and the modalities to be worked out with respect to the valuation, bidding etc. are also mentioned in the consent terms. At the same time, under the consent terms/consent decree and as agreed between the parties, 8 flats as mentioned in the list at Annexure A to the consent terms are agreed to be allotted under the re-developed building to the PA Group and the flats mentioned in the list at Annexure B to the consent terms are agreed to be allotted to RA Group. For the 8 flats allotted to PA Group, Omkar Builders – original defendant no.10 was required to issue a separate letter in relation to the PA Groups entitlement to the PA Kash Foods Property in Omkar 1973 project as per draft at Annexure E to the consent terms. Allotment of the 8 flats as per list at Annexure A to the consent terms in favour of PA Group is not disputed and cannot be disputed. Even in paragraph 3 of the consent decree, the submissions of the learned counsel appearing on behalf of the respective parties have been recorded and as per the submissions made by the learned counsel appearing on behalf of both the parties – PA Group & RA Group, the division in Annexure A and Annexure B is final, viz-a-viz defendant no.10 – Omkar BuildersIt appears that as such original defendant no.10 – Omkar Builders had already issued the letter in the proforma as per Annexure E to the consent terms in favour of PA Group with respect to 8 flats allotted to PA Group. Therefore, it appears that so far as original defendant no. 10 is concerned, original defendant no.10 has already complied with its obligation under the consent decree. However, RA Group is not counter-signing the said Annexure E and therefore there is not complete transfer of 8 flats in favour of PA Group which as such are allotted to them. Therefore, making a grievance by not counter-signing the letter of allotment as per Annexure E, the original defendant nos. 1 to 6 – RA Group have refused to abide by the consent terms/consent decree. It is the case on behalf of original defendant nos. 1 to 6 – RA Group that unless and until there is a total compliance of the consent terms/consent decree including entering into or execution of the supplemental consent terms/family arrangement as agreed between the parties as per the consent terms/consent decree the defendant nos. 1 to 6 – RA Group are justified in not counter-signing the letter of allotment as per Annexure E. On the other hand, it is the case on behalf of the appellants – plaintiffs that further execution of supplemental consent terms/family arrangement has nothing to do with the allotment of 8 flats in favour of PA Group6. Having heard the learned Senior Advocates for the respective parties and considering the relevant terms of the settlement, reproduced hereinabove, we are of the opinion that further execution of supplemental consent terms/family arrangement is required to be executed between the parties. For whatever reasons, the further supplemental consent terms have not been entered into between the parties. Therefore, as such, considering the fact that the parties entered into the consent terms/settlement for a complete parting of ways between the parties and so aimed at bringing about an eventual complete quietus to the disputes between the parties and even parties entered into the consent terms/settlement to resolve and settle the disputes in relation to the subject matter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial Premises and the disputes in relation to the larger Arya Group of Companies and its constituents, which were beyond the dispute in the civil suit, the entire consent terms/consent decree is required to be acted upon and/or implemented by both the parties. There cannot be any execution of partial consent terms/consent decree. If the submission on behalf of the plaintiffs is accepted and the 8 flats as per list at Annexure A are transferred absolutely and without any condition in favour of PA Group without there being any further supplemental consent terms/family arrangement, in that case, the entire object and purpose of entering into the consent terms/settlement to resolve all the disputes between the parties will be frustrated. Both the parties to the consent terms/consent decree are required to fully comply with the terms of settlement/the consent terms and the consent decree. One party cannot be permitted to say that that portion of the settlement which is in their favour be executed and/or complied with and not the other terms of the settlement/consent terms/consent decree. Under the circumstances, as such, both, the learned Single Judge as well as the Division Bench are justified in holding that the execution of the further supplemental consent terms/family arrangement is must and there cannot be any partial execution of the consent terms/consent decree8.1 Even on conjoint reading of all the terms of the settlement, more particularly the clauses referred to hereinabove, it can be said that there is an implied term that both the parties have intended that on one hand as agreed between the parties further supplemental consent terms/family arrangement is to be entered into and on the other hand there shall be transfer/allotment of 8 flats as per list at Annexure A in favour of PA Group. Any other interpretation would lead to unworking of the consent terms/consent decree. As observed hereinabove, if the consent decree is partially executed and the other parts of the consent terms are not implemented and/or acted upon, the object and purpose to resolve all the disputes amicably between the parties and to put an end to all the disputes between the parties will be frustrated9. However, at the same time, one cannot lose sight of the fact that the 8 flats as per list at Annexure A are allotted in favour of PA Group and rest of the 7 flats as per list at Annexure B are allotted in favour of RA Group. At present, the RA Group is in possession of all the 15 flats. The RA Group is also the beneficiary of Rs.45 crores. Therefore, to strike the balance between the parties, the RA Group can be directed to counter-sign Annexure E letter issued by Omkar Builders with respect to 8 flats as per list at Annexure A which are allotted in favour of PA Group. However, with a caveat that till the further supplemental consent terms/family arrangement as agreed between the parties under the consent terms/consent decree is not executed, PA Group may not be permitted to sell, transfer and/or deal with the said flats till the consent terms/consent decree is fully acted upon and implemented between the parties. At the same time, both the parties are required to be directed to fully implement the consent terms/consent decree and to enter into further supplemental consent terms/family arrangement, the modalities of which are mentioned in the consent terms itself, at the earliest and within a reasonable time. Until then, both the parties to abide as per the Restraint order as per clause 22 of the consent terms, except the 7 flats as per list at Annexure B, which are allotted in favour of RA Group. | 1 | 7,657 | 1,426 | ### 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:
entered into between the parties. Therefore, as such, considering the fact that the parties entered into the consent terms/settlement for a complete parting of ways between the parties and so aimed at bringing about an eventual complete quietus to the disputes between the parties and even parties entered into the consent terms/settlement to resolve and settle the disputes in relation to the subject matter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial Premises and the disputes in relation to the larger Arya Group of Companies and its constituents, which were beyond the dispute in the civil suit, the entire consent terms/consent decree is required to be acted upon and/or implemented by both the parties. There cannot be any execution of partial consent terms/consent decree. If the submission on behalf of the plaintiffs is accepted and the 8 flats as per list at Annexure A are transferred absolutely and without any condition in favour of PA Group without there being any further supplemental consent terms/family arrangement, in that case, the entire object and purpose of entering into the consent terms/settlement to resolve all the disputes between the parties will be frustrated. Both the parties to the consent terms/consent decree are required to fully comply with the terms of settlement/the consent terms and the consent decree. One party cannot be permitted to say that that portion of the settlement which is in their favour be executed and/or complied with and not the other terms of the settlement/consent terms/consent decree. Under the circumstances, as such, both, the learned Single Judge as well as the Division Bench are justified in holding that the execution of the further supplemental consent terms/family arrangement is must and there cannot be any partial execution of the consent terms/consent decree. 7. Even in the case of Hari Shankar Singhania (supra), the decision which has been relied upon by the learned senior counsel appearing on behalf of the appellants, this Court has observed that a family settlement is treated differently from any other formal commercial settlement as such settlement in the eye of the law ensures peace and goodwill among the family members. It is further observed that technicalities should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. It is further observed that it is the duty of the court that such an arrangement and the terms thereof should be given effect to in letter and spirit. 7.1 In the case of Manish Mohan Sharma (supra), this Court has observed and held that effort of the executing court must be to see that the parties are given the fruits of the decree. It is further observed that mandate is reinforced when it is a consent decree and doubly reinforced when the consent decree is a family settlement. 8. Now so far as the relied placed upon the decision of this Court in the case of Saradamani Kandappan (supra), relied upon by the learned Senior Advocate appearing on behalf of the appellants – plaintiffs, more particularly reliance placed upon paragraph 54 of the said judgment in support of his submission that in the consent terms/consent decree, it is expressly stated or provided the order of performance, namely, that the further supplementary settlement is to be executed and only after such execution the 8 flats as per list at Annexure A to the consent terms shall be allotted in favour of PA Group is concerned, on considering conjoint reading of the terms of the settlement, the said decision shall not be applicable to the facts of the case on hand. 8.1 Even on conjoint reading of all the terms of the settlement, more particularly the clauses referred to hereinabove, it can be said that there is an implied term that both the parties have intended that on one hand as agreed between the parties further supplemental consent terms/family arrangement is to be entered into and on the other hand there shall be transfer/allotment of 8 flats as per list at Annexure A in favour of PA Group. Any other interpretation would lead to unworking of the consent terms/consent decree. As observed hereinabove, if the consent decree is partially executed and the other parts of the consent terms are not implemented and/or acted upon, the object and purpose to resolve all the disputes amicably between the parties and to put an end to all the disputes between the parties will be frustrated. 9. However, at the same time, one cannot lose sight of the fact that the 8 flats as per list at Annexure A are allotted in favour of PA Group and rest of the 7 flats as per list at Annexure B are allotted in favour of RA Group. At present, the RA Group is in possession of all the 15 flats. The RA Group is also the beneficiary of Rs.45 crores. Therefore, to strike the balance between the parties, the RA Group can be directed to counter-sign Annexure E letter issued by Omkar Builders with respect to 8 flats as per list at Annexure A which are allotted in favour of PA Group. However, with a caveat that till the further supplemental consent terms/family arrangement as agreed between the parties under the consent terms/consent decree is not executed, PA Group may not be permitted to sell, transfer and/or deal with the said flats till the consent terms/consent decree is fully acted upon and implemented between the parties. At the same time, both the parties are required to be directed to fully implement the consent terms/consent decree and to enter into further supplemental consent terms/family arrangement, the modalities of which are mentioned in the consent terms itself, at the earliest and within a reasonable time. Until then, both the parties to abide as per the Restraint order as per clause 22 of the consent terms, except the 7 flats as per list at Annexure B, which are allotted in favour of RA Group.
### Response:
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### Explanation:
PA Group & RA Group, the division in Annexure A and Annexure B is final, viz-a-viz defendant no.10 – Omkar BuildersIt appears that as such original defendant no.10 – Omkar Builders had already issued the letter in the proforma as per Annexure E to the consent terms in favour of PA Group with respect to 8 flats allotted to PA Group. Therefore, it appears that so far as original defendant no. 10 is concerned, original defendant no.10 has already complied with its obligation under the consent decree. However, RA Group is not counter-signing the said Annexure E and therefore there is not complete transfer of 8 flats in favour of PA Group which as such are allotted to them. Therefore, making a grievance by not counter-signing the letter of allotment as per Annexure E, the original defendant nos. 1 to 6 – RA Group have refused to abide by the consent terms/consent decree. It is the case on behalf of original defendant nos. 1 to 6 – RA Group that unless and until there is a total compliance of the consent terms/consent decree including entering into or execution of the supplemental consent terms/family arrangement as agreed between the parties as per the consent terms/consent decree the defendant nos. 1 to 6 – RA Group are justified in not counter-signing the letter of allotment as per Annexure E. On the other hand, it is the case on behalf of the appellants – plaintiffs that further execution of supplemental consent terms/family arrangement has nothing to do with the allotment of 8 flats in favour of PA Group6. Having heard the learned Senior Advocates for the respective parties and considering the relevant terms of the settlement, reproduced hereinabove, we are of the opinion that further execution of supplemental consent terms/family arrangement is required to be executed between the parties. For whatever reasons, the further supplemental consent terms have not been entered into between the parties. Therefore, as such, considering the fact that the parties entered into the consent terms/settlement for a complete parting of ways between the parties and so aimed at bringing about an eventual complete quietus to the disputes between the parties and even parties entered into the consent terms/settlement to resolve and settle the disputes in relation to the subject matter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial Premises and the disputes in relation to the larger Arya Group of Companies and its constituents, which were beyond the dispute in the civil suit, the entire consent terms/consent decree is required to be acted upon and/or implemented by both the parties. There cannot be any execution of partial consent terms/consent decree. If the submission on behalf of the plaintiffs is accepted and the 8 flats as per list at Annexure A are transferred absolutely and without any condition in favour of PA Group without there being any further supplemental consent terms/family arrangement, in that case, the entire object and purpose of entering into the consent terms/settlement to resolve all the disputes between the parties will be frustrated. Both the parties to the consent terms/consent decree are required to fully comply with the terms of settlement/the consent terms and the consent decree. One party cannot be permitted to say that that portion of the settlement which is in their favour be executed and/or complied with and not the other terms of the settlement/consent terms/consent decree. Under the circumstances, as such, both, the learned Single Judge as well as the Division Bench are justified in holding that the execution of the further supplemental consent terms/family arrangement is must and there cannot be any partial execution of the consent terms/consent decree8.1 Even on conjoint reading of all the terms of the settlement, more particularly the clauses referred to hereinabove, it can be said that there is an implied term that both the parties have intended that on one hand as agreed between the parties further supplemental consent terms/family arrangement is to be entered into and on the other hand there shall be transfer/allotment of 8 flats as per list at Annexure A in favour of PA Group. Any other interpretation would lead to unworking of the consent terms/consent decree. As observed hereinabove, if the consent decree is partially executed and the other parts of the consent terms are not implemented and/or acted upon, the object and purpose to resolve all the disputes amicably between the parties and to put an end to all the disputes between the parties will be frustrated9. However, at the same time, one cannot lose sight of the fact that the 8 flats as per list at Annexure A are allotted in favour of PA Group and rest of the 7 flats as per list at Annexure B are allotted in favour of RA Group. At present, the RA Group is in possession of all the 15 flats. The RA Group is also the beneficiary of Rs.45 crores. Therefore, to strike the balance between the parties, the RA Group can be directed to counter-sign Annexure E letter issued by Omkar Builders with respect to 8 flats as per list at Annexure A which are allotted in favour of PA Group. However, with a caveat that till the further supplemental consent terms/family arrangement as agreed between the parties under the consent terms/consent decree is not executed, PA Group may not be permitted to sell, transfer and/or deal with the said flats till the consent terms/consent decree is fully acted upon and implemented between the parties. At the same time, both the parties are required to be directed to fully implement the consent terms/consent decree and to enter into further supplemental consent terms/family arrangement, the modalities of which are mentioned in the consent terms itself, at the earliest and within a reasonable time. Until then, both the parties to abide as per the Restraint order as per clause 22 of the consent terms, except the 7 flats as per list at Annexure B, which are allotted in favour of RA Group.
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M/S Sumitomo Heavy Industries Ltd Vs. Oil & Natural Gas Company | the arbitrator is based on a possible view of the matter, the court is not expected to interfere with the award. The High Court has erred in so interfering. 36. Can the findings and the award in the present case be described as perverse? This Court has already laid down as to which finding would be called perverse. It is a finding which is not only against the weight of evidence but altogether against the evidence. This Court has held in Triveni Rubber & Plastics v. CCE AIR 1994 SC 1341 that a perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arulvelu and Anr. v. State Represented by the Public Prosecutor and Anr. (2009) 10 SCC 206. In the present case, the findings and award of the umpire are rendered after considering the material on record and giving due weightage to all the terms of the contract. Calling the same to be perverse is highly unfair to the umpire. The umpire has considered the fact situation and placed a construction on the clauses of the agreement which according to him was the correct one. One may at the highest say that one would have preferred another construction of Clause 17.3 but that cannot make the award in any way perverse. Nor can one substitute ones own view in such a situation, in place of the one taken by the umpire, which would amount to sitting in appeal. As held by this Court in Kwality Manufacturing Corporation v. Central Warehousing Corporation reported in (2009) 5 SCC 142 the court while considering challenge to arbitral award does not sit in appeal over the findings and decision of the arbitrator, which is what the High Court has practically done in this matter. The umpire is legitimately entitled to take the view which he holds to be the correct one after considering the material before him and after interpreting the provisions of the agreement. If he does so, the decision of the umpire has to be accepted as final and binding. 37. It is an obligation of the parties to a contract that they must perform their respective promises, and if a party does not so perform, the arbitrator or the umpire has to give the necessary direction if sought. In that process, they have to give a meaningful interpretation to all the relevant clauses of the contract to make them effective and not redundant. The intention of the parties in providing a clause like Clause 17.3 could not be ignored. It had to be given a due weightage. This is what the umpire has done and has given the direction to the respondent to compensate the appellant for the amount of the necessary and reasonable extra cost caused by change in law. We have no hesitation in holding that the award of the umpire is a well reasoned award and one within his jurisdiction, and which gives a meaningful interpretation to all the clauses of the contract including Clause 17.3. In the circumstances in our view the High Court has clearly erred in interfering with the award rendered by the umpire. 38. There is one more submission which has to be referred to. It was canvassed on behalf of the appellant in the High Court and before us also that the award rendered by the umpire was one on a question of law and on that ground also the Court was not expected to interfere with the award. Mr. Dave took us through the notice of intention to appoint the arbitrator, the request for arbitration, the summary of issues submitted by the appellant and the draft issues submitted by the respondent. He then contended that appellants claim essentially depended on the interpretation of the clauses of contract which plea was specifically raised through these draft issues and this stood on the same footing, as a reference of an issue of law for arbitration. Amongst others, the judgment in Kapoor Nilokheri Co-op Diary Farm Society Ltd. v. Union of India and Ors. in (1973) 1 SCC 708 was relied upon in support of this proposition. As against that, Mr. Tankha submitted that in paragraph 23 of Tarapore & Co. v. Cochin Shipyard Ltd. AIR 1984 SC 1072 the judgment in Kapoor Nilokheri has been read as one in the facts of that case. He further relied upon the judgment in Rajasthan State Mines & Minerals Ltd. v. Eastern Engineering Enterprises and Anr. JT 1999 (7) SC 379 to submit that the award of the arbitrator on a question of law is immune from a challenge in a Court only when it is rendered on a specific question of law referred to him and that the same was not the situation in the present matter. The Division Bench has accepted this submission of the respondent and held that in the present case there was no specific question of law referred to the arbitrators or the umpire. It held that what was referred for arbitration was the determination of the claim of the appellant against the respondent, and that an incidental question involving interpretation cannot be said to be a specific question of law. 39. However, we are not required to go into that issue since we are otherwise holding that the award was not only a plausible one but a well-reasoned award. In the circumstance the interference by the High Court was not called for. In that view of the matter we allow this appeal and set aside the judgment of the learned single Judge, as well as that of the Division Bench. The award made by the Umpire is upheld and there shall be a decree in terms of the award. | 0[ds]34. In the present matter the Division Bench has observed, that the umpire exceeded his jurisdiction in awarding Appellants claim under17.3 of the agreement and that he has failed to apply his mind to the pleadings, documents and the evidence as well as particular clause of the contract to declare that the award was perverse. In fact as seen above, the umpire has entertained appellants claim only after giving a meaningful interpretation to17.3 after considering all the material on record as well as the context. Respondent had contended in their arbitration petition before the High Court that it was not permissible to refer to thenegotiations and the documents arising therein. What the umpire has however done is to look into the context with a view to understand the text. As we have noted above the umpire has looked into the evidence before him including that of the respondents officer as to how MII had participated in the bid clarification meetings. He considered the submission of the appellant as to how thewas also tax protected, which was their main plea. It is true that if there is an error apparent on the face of the award or where the umpire had exceeded his jurisdiction or travelled beyond the reference, the court can interfere. However in view of what is noted above it is not possible to say that the award suffers from any of the above defects so as to call for. The view canvassed on behalf of the respondent was that17.3 ought to be read narrowly like an indemnity clause or given a literal interpretation as in the case of an insurance policy. The umpire on the other hand has observed that this clause is couched in wide terms and it was commercially understandable and sensible, since it was designed to cover a wide and potentially unforeseeable spectrum viz. the likely impact of a possible change in Indian law in future. In the circumstances the approach adopted by the umpire being a plausible interpretation, is not open to interfere. The Division bench was clearly in error when it observed that the view of the umpire on17.3 is by no stretch of imagination a plausible or a possible view. Perhaps, it can be said to be a situation where two views are possible, out of which the umpire has legitimately taken one. As recently reiterated by this Court in Steel Authority of India LimitedGupta Brothers Steel Tubes Limited reported in (2009) 10 SCC 63 if the conclusion of the arbitrator is based on a possible view of the matter, the court is not expected to interfere with the award. The High Court has erred in so interfering.In the present case, the findings and award of the umpire are rendered after considering the material on record and giving due weightage to all the terms of the contract. Calling the same to be perverse is highly unfair to the umpire.The umpire has considered the fact situation and placed a construction on the clauses of the agreement which according to him was the correct one. One may at the highest say that one would have preferred another construction of17.3 but that cannot make the award in any way perverse. Nor can one substitute ones own view in such a situation, in place of the one taken by the umpire, which would amount to sitting in appeal. As held by this Court in Kwality Manufacturing CorporationCentral Warehousing Corporation reported in (2009) 5 SCCthe court while considering challenge to arbitral award does not sit in appeal over the findings and decision of the arbitrator, which is what the High Court has practically done in this matter. The umpire is legitimately entitled to take the view which he holds to be the correct one after considering the material before him and after interpreting the provisions of the agreement. If he does so, the decision of the umpire has to be accepted as final and binding.However, we are not required to go into that issue since we are otherwise holding that the award was not only a plausible one but aaward. In the circumstance the interference by the High Court was not called for. In that view of the matter we allow this appeal and set aside the judgment of the learned single Judge, as well as that of the Division Bench. The award made by the Umpire is upheld and there shall be a decree in terms of the award. | 0 | 7,724 | 795 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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the arbitrator is based on a possible view of the matter, the court is not expected to interfere with the award. The High Court has erred in so interfering. 36. Can the findings and the award in the present case be described as perverse? This Court has already laid down as to which finding would be called perverse. It is a finding which is not only against the weight of evidence but altogether against the evidence. This Court has held in Triveni Rubber & Plastics v. CCE AIR 1994 SC 1341 that a perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arulvelu and Anr. v. State Represented by the Public Prosecutor and Anr. (2009) 10 SCC 206. In the present case, the findings and award of the umpire are rendered after considering the material on record and giving due weightage to all the terms of the contract. Calling the same to be perverse is highly unfair to the umpire. The umpire has considered the fact situation and placed a construction on the clauses of the agreement which according to him was the correct one. One may at the highest say that one would have preferred another construction of Clause 17.3 but that cannot make the award in any way perverse. Nor can one substitute ones own view in such a situation, in place of the one taken by the umpire, which would amount to sitting in appeal. As held by this Court in Kwality Manufacturing Corporation v. Central Warehousing Corporation reported in (2009) 5 SCC 142 the court while considering challenge to arbitral award does not sit in appeal over the findings and decision of the arbitrator, which is what the High Court has practically done in this matter. The umpire is legitimately entitled to take the view which he holds to be the correct one after considering the material before him and after interpreting the provisions of the agreement. If he does so, the decision of the umpire has to be accepted as final and binding. 37. It is an obligation of the parties to a contract that they must perform their respective promises, and if a party does not so perform, the arbitrator or the umpire has to give the necessary direction if sought. In that process, they have to give a meaningful interpretation to all the relevant clauses of the contract to make them effective and not redundant. The intention of the parties in providing a clause like Clause 17.3 could not be ignored. It had to be given a due weightage. This is what the umpire has done and has given the direction to the respondent to compensate the appellant for the amount of the necessary and reasonable extra cost caused by change in law. We have no hesitation in holding that the award of the umpire is a well reasoned award and one within his jurisdiction, and which gives a meaningful interpretation to all the clauses of the contract including Clause 17.3. In the circumstances in our view the High Court has clearly erred in interfering with the award rendered by the umpire. 38. There is one more submission which has to be referred to. It was canvassed on behalf of the appellant in the High Court and before us also that the award rendered by the umpire was one on a question of law and on that ground also the Court was not expected to interfere with the award. Mr. Dave took us through the notice of intention to appoint the arbitrator, the request for arbitration, the summary of issues submitted by the appellant and the draft issues submitted by the respondent. He then contended that appellants claim essentially depended on the interpretation of the clauses of contract which plea was specifically raised through these draft issues and this stood on the same footing, as a reference of an issue of law for arbitration. Amongst others, the judgment in Kapoor Nilokheri Co-op Diary Farm Society Ltd. v. Union of India and Ors. in (1973) 1 SCC 708 was relied upon in support of this proposition. As against that, Mr. Tankha submitted that in paragraph 23 of Tarapore & Co. v. Cochin Shipyard Ltd. AIR 1984 SC 1072 the judgment in Kapoor Nilokheri has been read as one in the facts of that case. He further relied upon the judgment in Rajasthan State Mines & Minerals Ltd. v. Eastern Engineering Enterprises and Anr. JT 1999 (7) SC 379 to submit that the award of the arbitrator on a question of law is immune from a challenge in a Court only when it is rendered on a specific question of law referred to him and that the same was not the situation in the present matter. The Division Bench has accepted this submission of the respondent and held that in the present case there was no specific question of law referred to the arbitrators or the umpire. It held that what was referred for arbitration was the determination of the claim of the appellant against the respondent, and that an incidental question involving interpretation cannot be said to be a specific question of law. 39. However, we are not required to go into that issue since we are otherwise holding that the award was not only a plausible one but a well-reasoned award. In the circumstance the interference by the High Court was not called for. In that view of the matter we allow this appeal and set aside the judgment of the learned single Judge, as well as that of the Division Bench. The award made by the Umpire is upheld and there shall be a decree in terms of the award.
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### Explanation:
34. In the present matter the Division Bench has observed, that the umpire exceeded his jurisdiction in awarding Appellants claim under17.3 of the agreement and that he has failed to apply his mind to the pleadings, documents and the evidence as well as particular clause of the contract to declare that the award was perverse. In fact as seen above, the umpire has entertained appellants claim only after giving a meaningful interpretation to17.3 after considering all the material on record as well as the context. Respondent had contended in their arbitration petition before the High Court that it was not permissible to refer to thenegotiations and the documents arising therein. What the umpire has however done is to look into the context with a view to understand the text. As we have noted above the umpire has looked into the evidence before him including that of the respondents officer as to how MII had participated in the bid clarification meetings. He considered the submission of the appellant as to how thewas also tax protected, which was their main plea. It is true that if there is an error apparent on the face of the award or where the umpire had exceeded his jurisdiction or travelled beyond the reference, the court can interfere. However in view of what is noted above it is not possible to say that the award suffers from any of the above defects so as to call for. The view canvassed on behalf of the respondent was that17.3 ought to be read narrowly like an indemnity clause or given a literal interpretation as in the case of an insurance policy. The umpire on the other hand has observed that this clause is couched in wide terms and it was commercially understandable and sensible, since it was designed to cover a wide and potentially unforeseeable spectrum viz. the likely impact of a possible change in Indian law in future. In the circumstances the approach adopted by the umpire being a plausible interpretation, is not open to interfere. The Division bench was clearly in error when it observed that the view of the umpire on17.3 is by no stretch of imagination a plausible or a possible view. Perhaps, it can be said to be a situation where two views are possible, out of which the umpire has legitimately taken one. As recently reiterated by this Court in Steel Authority of India LimitedGupta Brothers Steel Tubes Limited reported in (2009) 10 SCC 63 if the conclusion of the arbitrator is based on a possible view of the matter, the court is not expected to interfere with the award. The High Court has erred in so interfering.In the present case, the findings and award of the umpire are rendered after considering the material on record and giving due weightage to all the terms of the contract. Calling the same to be perverse is highly unfair to the umpire.The umpire has considered the fact situation and placed a construction on the clauses of the agreement which according to him was the correct one. One may at the highest say that one would have preferred another construction of17.3 but that cannot make the award in any way perverse. Nor can one substitute ones own view in such a situation, in place of the one taken by the umpire, which would amount to sitting in appeal. As held by this Court in Kwality Manufacturing CorporationCentral Warehousing Corporation reported in (2009) 5 SCCthe court while considering challenge to arbitral award does not sit in appeal over the findings and decision of the arbitrator, which is what the High Court has practically done in this matter. The umpire is legitimately entitled to take the view which he holds to be the correct one after considering the material before him and after interpreting the provisions of the agreement. If he does so, the decision of the umpire has to be accepted as final and binding.However, we are not required to go into that issue since we are otherwise holding that the award was not only a plausible one but aaward. In the circumstance the interference by the High Court was not called for. In that view of the matter we allow this appeal and set aside the judgment of the learned single Judge, as well as that of the Division Bench. The award made by the Umpire is upheld and there shall be a decree in terms of the award.
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Municipal Commr.P.C.M.Corpn,Pune Vs. M/S.Century Enka Ltd.,Pune | area for the first time on or after the date on which the Council levies the tax under these rules or at any time within a period of five years immediately proceeding such levy." * The respondents (though two in number, we would refer to the facts of M/s Century Enka Ltd.) claim exemption under the aforesaid resolution, which having been denied, the Bombay High Court was approached, by filing writ petitions seeking direction on the Municipal Council to grant exemption, as visualised by the resolution in question. The High Court granted the prayer. Hence these appeals. 2. The only ground on which exemption was sought to be denied to the respondents in the proceeding before the High Court was that the importation of plant and machinery for setting up of the units being by existing undertakings, the same was not meant for "new industrial undertaking". This stand was taken because of Clarification (i) appended to the resolution, according to which, an industry would not be a "new industry" which is formed by splitting up or reconstruction of a business already in existence. A perusal of the impugned judgment of the High Court makes this stand on behalf of the appellants abundantly clear, inasmuch as, the counsel appearing for the appellants in the High Court, Shri C.J. Sawant, had clearly stated that apart from the aforesaid ground, "other contingencies set out in the Explanation (sic Clarification) are not applicable in case of unit No. 2 (meaning the second unit set up by the respondent-company in whose name new industrial licence had been obtained and plant and machinery had been imported) and in case it is found that unit No. 2 is not formed by reconstruction of business already in existence, then the petitioner company would be entitled to exemption in respect of payment of octroi duty". 3. We have highlighted the aforesaid aspect because the learned counsel for the appellant sought to contend before us that cl. (iii) of the Clarification is also not satisfied, because of which exemption cannot be claimed. We did not permit this point to be raised for the first time before us-the same being not a pure question of law but one basically founded on fact of manufacturing for the first time. 4. We would, therefore, confine our consideration to the question as to whether respondents were entitled to exemption or not because of what has been stated in cl. (i) of the Clarification. In so far as this aspect is concerned, it is brought to our notice by learned counsel for the respondents that as to when an industrial undertaking can be said to have been formed by reconstruction (or) splitting up, has been a subject-matter of consideration by this Court itself in a number of decisions. The first in point of time is by a three Judge Bench in Textile Machinery Corpn. Ltd. vs. CIT 1977 CTR(SC) 151 : 1977 (107) ITR 195 (SC) : 1977 (2) SCR 762 : TC 25R.490. There, the Court was seized with the question whether exemption from income-tax granted by s. 15C of the Indian IT Act, 1922, was available to the appellant. The section as it stood at the material time, granted exemption, inter alia, to any industrial undertaking which "is not formed by the splitting up, or the reconstruction of, business already in existence...." It would thus be seen that the language of Clarification (i) of Resolution No. 63 is in pari materia with the language of s. 15(C) which had come up for interpretation in the aforesaid case. The Bench opined that once the new industrial undertaking is separate and independent production unit in the sense that the commodities produced or the results achieved are commercially tangible products and the undertaking carried on separately without complete absorption and losing its identity in the old business, it is not to be treated as being formed by reconstruction of the old business.5. This being the legal position, it cannot be held that the unit No. 2 (supra) set up for manufacturing of polyester filament yarn has to be regarded as result of reconstruction of the business already in existence, merely because the same had come into existence for effecting "substantial expansion" of the business in existence. That the unit had come into existence because of the result of substantial expansion is brought home to us by referring, inter alia, to a communication of the Government of India in the Ministry of Industry bearing No. CIL 326 (76) dt. 28th Aug., 1976, which is addressed to the respondent-company and deals with the subject of application for the grant of an industrial licence for the manufacture of the commodity in question. In this connection it is also urged by referring to another communication of the Ministry dt. 29th Nov., 1975 that the company proposed to manufacture 360 tonnes of polyester filament yarn per annum, by slicing its overall capacity of 720 tonnes sanctioned for manufacture of nylon filament yarn.6. So, we are satisfied that unit No. 2 had been set up to effect substantial expansion of the existing business. That, however, is not decisive in view of the aforesaid decision, which was followed in CIT vs. Indian Aluminium Co. Ltd. 1977 (108) ITR 367 (SC) : TC 25R.547 and CIT vs. Orient Paper Mills Ltd. 1989 (176) ITR 110 (SC) : TC 25R.540. We have said so, because according to these decisions, if the new undertaking be separate and independent production units were to come in existence in the sense of producing a distinct commercial product and the undertaking could be carried on separately, the same would not be treated as being formed by reconstruction of the old business. From the material on record, we are satisfied that unit No. 2 did meet these requirements, and so, exemption could not have been denied, by taking a view that unit No. 2 was not a new industry, because of what has been stated in cl. (i) of the Clarification. | 0[ds]5. This being the legal position, it cannot be held that the unit No. 2 (supra) set up for manufacturing of polyester filament yarn has to be regarded as result of reconstruction of the business already in existence, merely because the same had come into existence for effecting "substantial expansion" of the business in existence. That the unit had come into existence because of the result of substantial expansion is brought home to us by referring, inter alia, to a communication of the Government of India in the Ministry of Industry bearing No. CIL 326 (76) dt. 28th Aug., 1976, which is addressed to the respondent-company and deals with the subject of application for the grant of an industrial licence for the manufacture of the commodity in question. In this connection it is also urged by referring to another communication of the Ministry dt. 29th Nov., 1975 that the company proposed to manufacture 360 tonnes of polyester filament yarn per annum, by slicing its overall capacity of 720 tonnes sanctioned for manufacture of nylon filament yarn.6. So, we are satisfied that unit No. 2 had been set up to effect substantial expansion of the existing business. That, however, is not decisive in view of the aforesaid decision, which was followed in CIT vs. Indian Aluminium Co. Ltd. 1977 (108) ITR 367 (SC) : TC 25R.547 and CIT vs. Orient Paper Mills Ltd. 1989 (176) ITR 110 (SC) : TC 25R.540. We have said so, because according to these decisions, if the new undertaking be separate and independent production units were to come in existence in the sense of producing a distinct commercial product and the undertaking could be carried on separately, the same would not be treated as being formed by reconstruction of the old business. From the material on record, we are satisfied that unit No. 2 did meet these requirements, and so, exemption could not have been denied, by taking a view that unit No. 2 was not a new industry, because of what has been stated in cl. (i) of the Clarification. | 0 | 1,323 | 402 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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area for the first time on or after the date on which the Council levies the tax under these rules or at any time within a period of five years immediately proceeding such levy." * The respondents (though two in number, we would refer to the facts of M/s Century Enka Ltd.) claim exemption under the aforesaid resolution, which having been denied, the Bombay High Court was approached, by filing writ petitions seeking direction on the Municipal Council to grant exemption, as visualised by the resolution in question. The High Court granted the prayer. Hence these appeals. 2. The only ground on which exemption was sought to be denied to the respondents in the proceeding before the High Court was that the importation of plant and machinery for setting up of the units being by existing undertakings, the same was not meant for "new industrial undertaking". This stand was taken because of Clarification (i) appended to the resolution, according to which, an industry would not be a "new industry" which is formed by splitting up or reconstruction of a business already in existence. A perusal of the impugned judgment of the High Court makes this stand on behalf of the appellants abundantly clear, inasmuch as, the counsel appearing for the appellants in the High Court, Shri C.J. Sawant, had clearly stated that apart from the aforesaid ground, "other contingencies set out in the Explanation (sic Clarification) are not applicable in case of unit No. 2 (meaning the second unit set up by the respondent-company in whose name new industrial licence had been obtained and plant and machinery had been imported) and in case it is found that unit No. 2 is not formed by reconstruction of business already in existence, then the petitioner company would be entitled to exemption in respect of payment of octroi duty". 3. We have highlighted the aforesaid aspect because the learned counsel for the appellant sought to contend before us that cl. (iii) of the Clarification is also not satisfied, because of which exemption cannot be claimed. We did not permit this point to be raised for the first time before us-the same being not a pure question of law but one basically founded on fact of manufacturing for the first time. 4. We would, therefore, confine our consideration to the question as to whether respondents were entitled to exemption or not because of what has been stated in cl. (i) of the Clarification. In so far as this aspect is concerned, it is brought to our notice by learned counsel for the respondents that as to when an industrial undertaking can be said to have been formed by reconstruction (or) splitting up, has been a subject-matter of consideration by this Court itself in a number of decisions. The first in point of time is by a three Judge Bench in Textile Machinery Corpn. Ltd. vs. CIT 1977 CTR(SC) 151 : 1977 (107) ITR 195 (SC) : 1977 (2) SCR 762 : TC 25R.490. There, the Court was seized with the question whether exemption from income-tax granted by s. 15C of the Indian IT Act, 1922, was available to the appellant. The section as it stood at the material time, granted exemption, inter alia, to any industrial undertaking which "is not formed by the splitting up, or the reconstruction of, business already in existence...." It would thus be seen that the language of Clarification (i) of Resolution No. 63 is in pari materia with the language of s. 15(C) which had come up for interpretation in the aforesaid case. The Bench opined that once the new industrial undertaking is separate and independent production unit in the sense that the commodities produced or the results achieved are commercially tangible products and the undertaking carried on separately without complete absorption and losing its identity in the old business, it is not to be treated as being formed by reconstruction of the old business.5. This being the legal position, it cannot be held that the unit No. 2 (supra) set up for manufacturing of polyester filament yarn has to be regarded as result of reconstruction of the business already in existence, merely because the same had come into existence for effecting "substantial expansion" of the business in existence. That the unit had come into existence because of the result of substantial expansion is brought home to us by referring, inter alia, to a communication of the Government of India in the Ministry of Industry bearing No. CIL 326 (76) dt. 28th Aug., 1976, which is addressed to the respondent-company and deals with the subject of application for the grant of an industrial licence for the manufacture of the commodity in question. In this connection it is also urged by referring to another communication of the Ministry dt. 29th Nov., 1975 that the company proposed to manufacture 360 tonnes of polyester filament yarn per annum, by slicing its overall capacity of 720 tonnes sanctioned for manufacture of nylon filament yarn.6. So, we are satisfied that unit No. 2 had been set up to effect substantial expansion of the existing business. That, however, is not decisive in view of the aforesaid decision, which was followed in CIT vs. Indian Aluminium Co. Ltd. 1977 (108) ITR 367 (SC) : TC 25R.547 and CIT vs. Orient Paper Mills Ltd. 1989 (176) ITR 110 (SC) : TC 25R.540. We have said so, because according to these decisions, if the new undertaking be separate and independent production units were to come in existence in the sense of producing a distinct commercial product and the undertaking could be carried on separately, the same would not be treated as being formed by reconstruction of the old business. From the material on record, we are satisfied that unit No. 2 did meet these requirements, and so, exemption could not have been denied, by taking a view that unit No. 2 was not a new industry, because of what has been stated in cl. (i) of the Clarification.
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### Explanation:
5. This being the legal position, it cannot be held that the unit No. 2 (supra) set up for manufacturing of polyester filament yarn has to be regarded as result of reconstruction of the business already in existence, merely because the same had come into existence for effecting "substantial expansion" of the business in existence. That the unit had come into existence because of the result of substantial expansion is brought home to us by referring, inter alia, to a communication of the Government of India in the Ministry of Industry bearing No. CIL 326 (76) dt. 28th Aug., 1976, which is addressed to the respondent-company and deals with the subject of application for the grant of an industrial licence for the manufacture of the commodity in question. In this connection it is also urged by referring to another communication of the Ministry dt. 29th Nov., 1975 that the company proposed to manufacture 360 tonnes of polyester filament yarn per annum, by slicing its overall capacity of 720 tonnes sanctioned for manufacture of nylon filament yarn.6. So, we are satisfied that unit No. 2 had been set up to effect substantial expansion of the existing business. That, however, is not decisive in view of the aforesaid decision, which was followed in CIT vs. Indian Aluminium Co. Ltd. 1977 (108) ITR 367 (SC) : TC 25R.547 and CIT vs. Orient Paper Mills Ltd. 1989 (176) ITR 110 (SC) : TC 25R.540. We have said so, because according to these decisions, if the new undertaking be separate and independent production units were to come in existence in the sense of producing a distinct commercial product and the undertaking could be carried on separately, the same would not be treated as being formed by reconstruction of the old business. From the material on record, we are satisfied that unit No. 2 did meet these requirements, and so, exemption could not have been denied, by taking a view that unit No. 2 was not a new industry, because of what has been stated in cl. (i) of the Clarification.
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RAJENDRA LALITKUMAR AGRAWAL Vs. RATNA ASHOK MURANJAN | Abhay Manohar Sapre, J. 1. Leave granted. 2. This appeal is directed against the final judgment and order dated 06.08.2018 of the High Court of Judicature at Bombay in Second Appeal No. 44 of 2017 whereby the High Court dismissed the second appeal filed by the appellant herein. 3. In order to appreciate the short controversy involved in this appeal, few relevant facts need mention hereinbelow. 4. The appellant is the plaintiff whereas the respondents are the defendants in the civil suit out of which this appeal arises. 5. The appellant filed a civil suit against the respondents for specific performance of the contract in relation to the suit property. The said suit was based on an agreement dated 08.08.1984. The respondents filed their written statement and denied the appellants claim. The Trial Court by judgment/decree dated 05.07.2004 decreed the appellant?s suit and passed a decree for specific performance of the contract against the respondents. 6. The respondents felt aggrieved and filed first appeal before the District Judge, Pune. By judgment/decree dated 10.11.2016, the first Appellate Court allowed the respondents? (defendants?) appeal and dismissed the suit. The appellant (plaintiff) felt aggrieved and filed second appeal before the High Court. 7. By impugned order, the High Court dismissed the second appeal holding that the appeal does not involve any substantial question of law as is required to be made out under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the Code?) which has given rise to filing of the present appeal by way of special leave by the plaintiff in this Court. 8. The short question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing the plaintiffs second appeal on the ground that it does not involve any substantial question(s) of law within the meaning of Section 100 of the Code. 9. Heard learned counsel for the parties. 10. Having heard the 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 remand the case to the High Court for deciding the second appeal on merits in accordance with law after framing appropriate substantial question(s) of law arising in the case. 11. Having perused the record and the judgments of the Trial Court, first Appellate Court and the impugned order, we are of the considered view that the High Court was not right in holding that the appeal does not involve any substantial question of law within the meaning of Section 100 of the Code. In our view, the appeal did involve the substantial question of law and the same, therefore, should have been framed at the time of admission of the second appeal as provided under Section 100 (4) of the Code for its final hearing. Indeed Section 100 (5) of the Code provides that the appeal shall be heard only on the substantial question of law framed by the High Court under Section 100 (4) of the Code. 12. It cannot be disputed that the interpretation of any terms and conditions of a document (such as the agreement dated 08.08.1984 in this case) constitutes a substantial question of law within the meaning of Section 100 of the Code. It is more so when both the parties admit the document. 13. As mentioned above, since the interpretation of documents constitutes the substantial question of law, the High Court should have first framed appropriate substantial question(s) arising in the case especially on the questions in relation to the true intent, rights and obligations arising from Clauses 3, 5 and 15 of the agreement dated 08.08.1984 in the context of pleadings and the reversing findings of the two Courts below and then should have called upon the respondents to reply to the questions framed keeping in view its jurisdiction under Section 100(5) of the Code and its proviso. 14. In addition, the High Court also could have framed questions on the issues, which are material for grant or refusal of specific performance keeping in view the requirements of Section 16 of the Specific Relief Act, pleadings of the parties, and the reversing findings of the two Courts below on such issues with a view to find out as to which finding is more preferable. 15. From the reading the impugned order, we find that, on one hand, the High Court went on interpreting the terms of the document after hearing the argument of both sides (see appearance of both parties through lawyers) and on the other hand, in conclusion, held that it does not involve any substantial question of law. It virtually, therefore, decided the second appeal bipartite like the first appeal without keeping in view the scope of its jurisdiction conferred by Section 100 (4) and (5) of the Code. In our view, the approach of the High Court while deciding the second appeal was not in conformity with the requirements of Section 100 of the Code. 16. Learned counsel for the respondents(defendants), however, vehemently argued that the findings of the High Court, which are of affirmance, do not call for any interference which rightly resulted in dismissal of the suit on material issues but, in our view, it is now for the High Court to examine the issue afresh on merits after framing the substantial question(s) of law. We, therefore, express no opinion on the merits of the issues urged. | 1[ds]11. Having perused the record and the judgments of the Trial Court, first Appellate Court and the impugned order, we are of the considered view that the High Court was not right in holding that the appeal does not involve any substantial question of law within the meaning of Section 100 of the Code. In our view, the appeal did involve the substantial question of law and the same, therefore, should have been framed at the time of admission of the second appeal as provided under Section 100 (4) of the Code for its final hearing. Indeed Section 100 (5) of the Code provides that the appeal shall be heard only on the substantial question of law framed by the High Court under Section 100 (4) of the Code.It cannot be disputed that the interpretation of any terms and conditions of a document (such as the agreement dated 08.08.1984 in this case) constitutes a substantial question of law within the meaning of Section 100 of the Code. It is more so when both the parties admit the document.As mentioned above, since the interpretation of documents constitutes the substantial question of law, the High Court should have first framed appropriate substantial question(s) arising in the case especially on the questions in relation to the true intent, rights and obligations arising from Clauses 3, 5 and 15 of the agreement dated 08.08.1984 in the context of pleadings and the reversing findings of the two Courts below and then should have called upon the respondents to reply to the questions framed keeping in view its jurisdiction under Section 100(5) of the Code and its proviso.In addition, the High Court also could have framed questions on the issues, which are material for grant or refusal of specific performance keeping in view the requirements of Section 16 of the Specific Relief Act, pleadings of the parties, and the reversing findings of the two Courts below on such issues with a view to find out as to which finding is more preferable.From the reading the impugned order, we find that, on one hand, the High Court went on interpreting the terms of the document after hearing the argument of both sides (see appearance of both parties through lawyers) and on the other hand, in conclusion, held that it does not involve any substantial question of law. It virtually, therefore, decided the second appeal bipartite like the first appeal without keeping in view the scope of its jurisdiction conferred by Section 100 (4) and (5) of the Code. In our view, the approach of the High Court while deciding the second appeal was not in conformity with the requirements of Section 100 of the Code.Learned counsel for the respondents(defendants), however, vehemently argued that the findings of the High Court, which are of affirmance, do not call for any interference which rightly resulted in dismissal of the suit on material issues but, in our view, it is now for the High Court to examine the issue afresh on merits after framing the substantial question(s) of law. We, therefore, express no opinion on the merits of the issues urged. | 1 | 1,038 | 588 | ### 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:
Abhay Manohar Sapre, J. 1. Leave granted. 2. This appeal is directed against the final judgment and order dated 06.08.2018 of the High Court of Judicature at Bombay in Second Appeal No. 44 of 2017 whereby the High Court dismissed the second appeal filed by the appellant herein. 3. In order to appreciate the short controversy involved in this appeal, few relevant facts need mention hereinbelow. 4. The appellant is the plaintiff whereas the respondents are the defendants in the civil suit out of which this appeal arises. 5. The appellant filed a civil suit against the respondents for specific performance of the contract in relation to the suit property. The said suit was based on an agreement dated 08.08.1984. The respondents filed their written statement and denied the appellants claim. The Trial Court by judgment/decree dated 05.07.2004 decreed the appellant?s suit and passed a decree for specific performance of the contract against the respondents. 6. The respondents felt aggrieved and filed first appeal before the District Judge, Pune. By judgment/decree dated 10.11.2016, the first Appellate Court allowed the respondents? (defendants?) appeal and dismissed the suit. The appellant (plaintiff) felt aggrieved and filed second appeal before the High Court. 7. By impugned order, the High Court dismissed the second appeal holding that the appeal does not involve any substantial question of law as is required to be made out under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the Code?) which has given rise to filing of the present appeal by way of special leave by the plaintiff in this Court. 8. The short question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing the plaintiffs second appeal on the ground that it does not involve any substantial question(s) of law within the meaning of Section 100 of the Code. 9. Heard learned counsel for the parties. 10. Having heard the 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 remand the case to the High Court for deciding the second appeal on merits in accordance with law after framing appropriate substantial question(s) of law arising in the case. 11. Having perused the record and the judgments of the Trial Court, first Appellate Court and the impugned order, we are of the considered view that the High Court was not right in holding that the appeal does not involve any substantial question of law within the meaning of Section 100 of the Code. In our view, the appeal did involve the substantial question of law and the same, therefore, should have been framed at the time of admission of the second appeal as provided under Section 100 (4) of the Code for its final hearing. Indeed Section 100 (5) of the Code provides that the appeal shall be heard only on the substantial question of law framed by the High Court under Section 100 (4) of the Code. 12. It cannot be disputed that the interpretation of any terms and conditions of a document (such as the agreement dated 08.08.1984 in this case) constitutes a substantial question of law within the meaning of Section 100 of the Code. It is more so when both the parties admit the document. 13. As mentioned above, since the interpretation of documents constitutes the substantial question of law, the High Court should have first framed appropriate substantial question(s) arising in the case especially on the questions in relation to the true intent, rights and obligations arising from Clauses 3, 5 and 15 of the agreement dated 08.08.1984 in the context of pleadings and the reversing findings of the two Courts below and then should have called upon the respondents to reply to the questions framed keeping in view its jurisdiction under Section 100(5) of the Code and its proviso. 14. In addition, the High Court also could have framed questions on the issues, which are material for grant or refusal of specific performance keeping in view the requirements of Section 16 of the Specific Relief Act, pleadings of the parties, and the reversing findings of the two Courts below on such issues with a view to find out as to which finding is more preferable. 15. From the reading the impugned order, we find that, on one hand, the High Court went on interpreting the terms of the document after hearing the argument of both sides (see appearance of both parties through lawyers) and on the other hand, in conclusion, held that it does not involve any substantial question of law. It virtually, therefore, decided the second appeal bipartite like the first appeal without keeping in view the scope of its jurisdiction conferred by Section 100 (4) and (5) of the Code. In our view, the approach of the High Court while deciding the second appeal was not in conformity with the requirements of Section 100 of the Code. 16. Learned counsel for the respondents(defendants), however, vehemently argued that the findings of the High Court, which are of affirmance, do not call for any interference which rightly resulted in dismissal of the suit on material issues but, in our view, it is now for the High Court to examine the issue afresh on merits after framing the substantial question(s) of law. We, therefore, express no opinion on the merits of the issues urged.
### Response:
1
### Explanation:
11. Having perused the record and the judgments of the Trial Court, first Appellate Court and the impugned order, we are of the considered view that the High Court was not right in holding that the appeal does not involve any substantial question of law within the meaning of Section 100 of the Code. In our view, the appeal did involve the substantial question of law and the same, therefore, should have been framed at the time of admission of the second appeal as provided under Section 100 (4) of the Code for its final hearing. Indeed Section 100 (5) of the Code provides that the appeal shall be heard only on the substantial question of law framed by the High Court under Section 100 (4) of the Code.It cannot be disputed that the interpretation of any terms and conditions of a document (such as the agreement dated 08.08.1984 in this case) constitutes a substantial question of law within the meaning of Section 100 of the Code. It is more so when both the parties admit the document.As mentioned above, since the interpretation of documents constitutes the substantial question of law, the High Court should have first framed appropriate substantial question(s) arising in the case especially on the questions in relation to the true intent, rights and obligations arising from Clauses 3, 5 and 15 of the agreement dated 08.08.1984 in the context of pleadings and the reversing findings of the two Courts below and then should have called upon the respondents to reply to the questions framed keeping in view its jurisdiction under Section 100(5) of the Code and its proviso.In addition, the High Court also could have framed questions on the issues, which are material for grant or refusal of specific performance keeping in view the requirements of Section 16 of the Specific Relief Act, pleadings of the parties, and the reversing findings of the two Courts below on such issues with a view to find out as to which finding is more preferable.From the reading the impugned order, we find that, on one hand, the High Court went on interpreting the terms of the document after hearing the argument of both sides (see appearance of both parties through lawyers) and on the other hand, in conclusion, held that it does not involve any substantial question of law. It virtually, therefore, decided the second appeal bipartite like the first appeal without keeping in view the scope of its jurisdiction conferred by Section 100 (4) and (5) of the Code. In our view, the approach of the High Court while deciding the second appeal was not in conformity with the requirements of Section 100 of the Code.Learned counsel for the respondents(defendants), however, vehemently argued that the findings of the High Court, which are of affirmance, do not call for any interference which rightly resulted in dismissal of the suit on material issues but, in our view, it is now for the High Court to examine the issue afresh on merits after framing the substantial question(s) of law. We, therefore, express no opinion on the merits of the issues urged.
|
S. Raghuraman Indian Inhabitant Vs. H.M.T. Limited | Officer recorded the finding that as the voucher of Rs. 795.50 does not bear signature of Shri R.Jayaraman acknowledging receipt of Rs. 795.50/- , the said amount of Rs. 795.50 was misappropriated by the petitioner.11. Likewise the petitioner paid Rs. 4000/- by cash to M/s.Jaihind Art Printers but prepared and accounted cash payment voucher for Rs. 4445/- . The Enquiry Officer took into consideration the letter of M/s.Jaihind Art Printers stating that they have received Rs. 4,000/- . On the cash payment voucher (Exhibit 5/6), signature of M/s.Jaihind Art Printers is not seen and the petitioner did not produce any documentary evidence to prove that he indeed paid Rs. 4445/to M/s.Jaihind Art Printers. In these circumstances, the Enquiry Officer came to the conclusion that the difference amount of Rs. 445/- was misappropriated.12. Furthermore, even as regards the cash payment vouchers for Rs. 1572/- and Rs. 1243/- in favour of M/s. Jaihind Art Printers, they denied the receipt of above payments. The documentary evidence in the form of cash payment voucher of Rs. 1572/- (Exhibit-6), Bill No. 2611 dated 15/10/1994 (Exhibit 7) and part of page 49 of Cash Book No.2 (Exhibit 8) wherein cash payment of Rs. 1243/- has been accounted is a part of record. The Enquiry Officer has recorded a finding that Exhibit 6 does not bear the signature of the receiving party and voucher was not traceable in the showroom and therefore, concluded that the amounts of Rs. 1,577/- and Rs. 1,743/- were misappropriated by the petitioner.13. Even in respect of an amount of Rs. 5,000/- which was said to have been paid to M/s. Cute Computer Forms Pvt. Ltd., the Company had sent a letter dated 10/05/1995 denying the receipt of the payment. The petitioner, however, produced stamped receipt dated 19/10/1994 on the partys letterhead confirming receipt of the payment. The Enquiry Officer found that the said receipt was not produced during the investigation and therefore it is apparent that payment has been made subsequently and predated receipt obtained from the party. Insofar as this charge is concerned, the Enquiry Officer did not find the charge as proved.14. Even insofar as the charge that an amount of Rs. 19676/- towards service week expenses, the Enquiry Officer concluded that the same was processed without any supporting bills and vouchers. The said amount as per the findings of the Enquiry Officer towards service expenses were paid without proper bills and vouchers. The petitioner agreed that the payments have been made without proper documents and vouchers.15. In respect of the charge that the petitioner has temporarily misappropriated an amount of Rs. 2700/- which was paid to him Shri M.A. Pershad DVM for adjusting T.A. advance drawn by him, the petitioner agreed that amount was received by him sometime in the last week of January 1995 and he did not issue receipt on the same day. Instead amount was kept separately in the drawer of his table. The Enquiry Officer took into consideration the request for demand draft of Rs. 2700/- through State Bank of India dated 15/04/1995 to prove that amount was accounted for only on that day. In this view of the matter, the Enquiry Officer held that the charge of temporarily misappropriation of Rs. 2700/- is proved.16. As regards payment of amount of Rs. 25,000/- to M/s. A to Z Furnishers without prior approval or sanction, the petitioner stated that the same was paid on oral instructions of the then DGM (W) and therefore, he did not have proper approval or sanction.17. The petitioner has taken a stand that his wife has been suffering from Cancer for about a year at the relevant time and therefore he was under great mental tension. He had to undertake the entire account work after V.R.S. of the Deputy Manager Accounts and therefore, did not have any immediate superior in Accounts Department who could guide and correct him.18. The law is well settled that this Court cannot interfere under Article 226 of the Constitution of India with the findings of the Enquiry Officer unless they are perverse nor can the evidence be appreciated as if this Court is an Appellate forum. We are not inclined to accept the contention of the learned Counsel for the petitioner that any prejudice is caused to him by non supply of the documents. We find that during the course of the enquiry, the petitioner has admitted to some of the charges and in fact accepted that he has not followed the proper procedure while making payments or processing T.E. claims. Based on the material on record, the Enquiry Officer has come to the conclusion that the charges levelled against the petitioner are proved except charges No. 5 & 6. We do not find any infirmity with the findings recorded by the Enquiry Officer. In our opinion, the findings of the Enquiry Officer satisfies the test of preponderance of probabilities expected in disciplinary proceedings.19. The petitioner is an Accountant and therefore, working as an Assistant Superintendent with effect from 01/04/1989 and assigned duties in Sales and Accounts and was promoted as Junior Officer (Accounts) with effect from 01/07/1993. In this light of the matter, we do not feel that the punishment imposed on the petitioner is shockingly disproportionate to the misconduct proved. We are therefore not inclined to interfere with the impugned orders.20. Learned Counsel for the respondents has however indicated that if an application is made by the petitioner claiming his terminal benefits i.e. provident fund, gratuity, Earned Leave encashment, 1992 pay revision arrears, the same would be cleared notwithstanding the order of dismissal. The petitioner is at a liberty to make an application to the respondents for terminal benefits as mentioned above within a period of 4 weeks from today and if such application is made, terminal dues be paid by the respondents to the petitioner within a period of 6 weeks from the date of receipt of application after adjusting the amount of Rs. 20,055/- which is to be recovered from the petitioner. | 0[ds]9. Having considered the submissions made by the learned Counsel, we are of the view that the impugned orders passed by the respondents call for no interference. We have gone through the proceedings of the enquiry and the enquiry report. Insofar as the first charge is concerned, the same relates to issuance of bearer cheques of Rs. 6,000/and Rs. 10,000/in favour of Shri Hariram which the petitioner encashed the same on his behalf but did not hand over cash to Shri Hariram. The Enquiry Officer has taken into consideration the letter dated 15/05/1995 (Exhibit 1) written by Shri Hariram denying receipt of the payment. The Enquiry Officer took into consideration that payment voucher does not bear signature of Shri Hariram acknowledging receipt of payment. In these circumstances the Enquiry Officer was of the view that the petitioners contention that he handed over the money in good faith cannot be accepted. The Enquiry Officer thus held the first charge as proved.10. The Enquiry Officer also came to conclusion that the taxi vouchers for Rs. 350/and Rs. 300/submitted by Shri R.Jayaraman along with his T.A. Bill (Exhibit 3) were detached by the petitioner and thereafter he clubbed 3 more vouchers of Rs. 125/, Rs. 5.50/and Rs. 15/totaling Rs. 795.50/which was misappropriated. The cash payment voucher for Rs. 795.50 was made in the name of R.Jayaraman. The petitioner agreed that taxi vouchers of Rs. 350/and Rs. 300/were detached by him and through oversight 3 more vouchers were clubbed. The Enquiry Officer recorded the finding that as the voucher of Rs. 795.50 does not bear signature of Shri R.Jayaraman acknowledging receipt of Rs. 795.50/, the said amount of Rs. 795.50 was misappropriated by the petitioner.11. Likewise the petitioner paid Rs. 4000/by cash to M/s.Jaihind Art Printers but prepared and accounted cash payment voucher for Rs.. The Enquiry Officer took into consideration the letter of M/s.Jaihind Art Printers stating that they have received Rs.. On the cash payment voucher (Exhibit 5/6), signature of M/s.Jaihind Art Printers is not seen and the petitioner did not produce any documentary evidence to prove that he indeed paid Rs. 4445/to M/s.Jaihind Art Printers. In these circumstances, the Enquiry Officer came to the conclusion that the difference amount of Rs. 445/was misappropriated.12. Furthermore, even as regards the cash payment vouchers for Rs. 1572/and Rs. 1243/in favour of M/s. Jaihind Art Printers, they denied the receipt of above payments. The documentary evidence in the form of cash payment voucher of Rs. 1572/Bill No. 2611 dated 15/10/1994 (Exhibit 7) and part of page 49 of Cash Book No.2 (Exhibit 8) wherein cash payment of Rs. 1243/has been accounted is a part of record. The Enquiry Officer has recorded a finding that Exhibit 6 does not bear the signature of the receiving party and voucher was not traceable in the showroom and therefore, concluded that the amounts of Rs. 1,577/and Rs. 1,743/were misappropriated by the petitioner.13. Even in respect of an amount of Rs. 5,000/which was said to have been paid to M/s. Cute Computer Forms Pvt. Ltd., the Company had sent a letter dated 10/05/1995 denying the receipt of the payment. The petitioner, however, produced stamped receipt dated 19/10/1994 on the partys letterhead confirming receipt of the payment. The Enquiry Officer found that the said receipt was not produced during the investigation and therefore it is apparent that payment has been made subsequently and predated receipt obtained from the party. Insofar as this charge is concerned, the Enquiry Officer did not find the charge as proved.14. Even insofar as the charge that an amount of Rs. 19676/towards service week expenses, the Enquiry Officer concluded that the same was processed without any supporting bills and vouchers. The said amount as per the findings of the Enquiry Officer towards service expenses were paid without proper bills and vouchers. The petitioner agreed that the payments have been made without proper documents and vouchers.15. In respect of the charge that the petitioner has temporarily misappropriated an amount of Rs. 2700/which was paid to him Shri M.A. Pershad DVM for adjusting T.A. advance drawn by him, the petitioner agreed that amount was received by him sometime in the last week of January 1995 and he did not issue receipt on the same day. Instead amount was kept separately in the drawer of his table. The Enquiry Officer took into consideration the request for demand draft of Rs. 2700/through State Bank of India dated 15/04/1995 to prove that amount was accounted for only on that day. In this view of the matter, the Enquiry Officer held that the charge of temporarily misappropriation of Rs. 2700/is proved.16. As regards payment of amount of Rs. 25,000/to M/s. A to Z Furnishers without prior approval or sanction, the petitioner stated that the same was paid on oral instructions of the then DGM (W) and therefore, he did not have proper approval or sanction.17. The petitioner has taken a stand that his wife has been suffering from Cancer for about a year at the relevant time and therefore he was under great mental tension. He had to undertake the entire account work after V.R.S. of the Deputy Manager Accounts and therefore, did not have any immediate superior in Accounts Department who could guide and correct him.18. The law is well settled that this Court cannot interfere under Article 226 of the Constitution of India with the findings of the Enquiry Officer unless they are perverse nor can the evidence be appreciated as if this Court is an Appellate forum. We are not inclined to accept the contention of the learned Counsel for the petitioner that any prejudice is caused to him by non supply of the documents. We find that during the course of the enquiry, the petitioner has admitted to some of the charges and in fact accepted that he has not followed the proper procedure while making payments or processing T.E. claims. Based on the material on record, the Enquiry Officer has come to the conclusion that the charges levelled against the petitioner are proved except charges No. 56. We do not find any infirmity with the findings recorded by the Enquiry Officer. In our opinion, the findings of the Enquiry Officer satisfies the test of preponderance of probabilities expected in disciplinary proceedings.19. The petitioner is an Accountant and therefore, working as an Assistant Superintendent with effect from 01/04/1989 and assigned duties in Sales and Accounts and was promoted as Junior Officer (Accounts) with effect from 01/07/1993. In this light of the matter, we do not feel that the punishment imposed on the petitioner is shockingly disproportionate to the misconduct proved. We are therefore not inclined to interfere with the impugned orders.20. Learned Counsel for the respondents has however indicated that if an application is made by the petitioner claiming his terminal benefits i.e. provident fund, gratuity, Earned Leave encashment, 1992 pay revision arrears, the same would be cleared notwithstanding the order of dismissal. The petitioner is at a liberty to make an application to the respondents for terminal benefits as mentioned above within a period of 4 weeks from today and if such application is made, terminal dues be paid by the respondents to the petitioner within a period of 6 weeks from the date of receipt of application after adjusting the amount of Rs. 20,055/which is to be recovered from the petitioner. | 0 | 2,977 | 1,359 | ### 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:
Officer recorded the finding that as the voucher of Rs. 795.50 does not bear signature of Shri R.Jayaraman acknowledging receipt of Rs. 795.50/- , the said amount of Rs. 795.50 was misappropriated by the petitioner.11. Likewise the petitioner paid Rs. 4000/- by cash to M/s.Jaihind Art Printers but prepared and accounted cash payment voucher for Rs. 4445/- . The Enquiry Officer took into consideration the letter of M/s.Jaihind Art Printers stating that they have received Rs. 4,000/- . On the cash payment voucher (Exhibit 5/6), signature of M/s.Jaihind Art Printers is not seen and the petitioner did not produce any documentary evidence to prove that he indeed paid Rs. 4445/to M/s.Jaihind Art Printers. In these circumstances, the Enquiry Officer came to the conclusion that the difference amount of Rs. 445/- was misappropriated.12. Furthermore, even as regards the cash payment vouchers for Rs. 1572/- and Rs. 1243/- in favour of M/s. Jaihind Art Printers, they denied the receipt of above payments. The documentary evidence in the form of cash payment voucher of Rs. 1572/- (Exhibit-6), Bill No. 2611 dated 15/10/1994 (Exhibit 7) and part of page 49 of Cash Book No.2 (Exhibit 8) wherein cash payment of Rs. 1243/- has been accounted is a part of record. The Enquiry Officer has recorded a finding that Exhibit 6 does not bear the signature of the receiving party and voucher was not traceable in the showroom and therefore, concluded that the amounts of Rs. 1,577/- and Rs. 1,743/- were misappropriated by the petitioner.13. Even in respect of an amount of Rs. 5,000/- which was said to have been paid to M/s. Cute Computer Forms Pvt. Ltd., the Company had sent a letter dated 10/05/1995 denying the receipt of the payment. The petitioner, however, produced stamped receipt dated 19/10/1994 on the partys letterhead confirming receipt of the payment. The Enquiry Officer found that the said receipt was not produced during the investigation and therefore it is apparent that payment has been made subsequently and predated receipt obtained from the party. Insofar as this charge is concerned, the Enquiry Officer did not find the charge as proved.14. Even insofar as the charge that an amount of Rs. 19676/- towards service week expenses, the Enquiry Officer concluded that the same was processed without any supporting bills and vouchers. The said amount as per the findings of the Enquiry Officer towards service expenses were paid without proper bills and vouchers. The petitioner agreed that the payments have been made without proper documents and vouchers.15. In respect of the charge that the petitioner has temporarily misappropriated an amount of Rs. 2700/- which was paid to him Shri M.A. Pershad DVM for adjusting T.A. advance drawn by him, the petitioner agreed that amount was received by him sometime in the last week of January 1995 and he did not issue receipt on the same day. Instead amount was kept separately in the drawer of his table. The Enquiry Officer took into consideration the request for demand draft of Rs. 2700/- through State Bank of India dated 15/04/1995 to prove that amount was accounted for only on that day. In this view of the matter, the Enquiry Officer held that the charge of temporarily misappropriation of Rs. 2700/- is proved.16. As regards payment of amount of Rs. 25,000/- to M/s. A to Z Furnishers without prior approval or sanction, the petitioner stated that the same was paid on oral instructions of the then DGM (W) and therefore, he did not have proper approval or sanction.17. The petitioner has taken a stand that his wife has been suffering from Cancer for about a year at the relevant time and therefore he was under great mental tension. He had to undertake the entire account work after V.R.S. of the Deputy Manager Accounts and therefore, did not have any immediate superior in Accounts Department who could guide and correct him.18. The law is well settled that this Court cannot interfere under Article 226 of the Constitution of India with the findings of the Enquiry Officer unless they are perverse nor can the evidence be appreciated as if this Court is an Appellate forum. We are not inclined to accept the contention of the learned Counsel for the petitioner that any prejudice is caused to him by non supply of the documents. We find that during the course of the enquiry, the petitioner has admitted to some of the charges and in fact accepted that he has not followed the proper procedure while making payments or processing T.E. claims. Based on the material on record, the Enquiry Officer has come to the conclusion that the charges levelled against the petitioner are proved except charges No. 5 & 6. We do not find any infirmity with the findings recorded by the Enquiry Officer. In our opinion, the findings of the Enquiry Officer satisfies the test of preponderance of probabilities expected in disciplinary proceedings.19. The petitioner is an Accountant and therefore, working as an Assistant Superintendent with effect from 01/04/1989 and assigned duties in Sales and Accounts and was promoted as Junior Officer (Accounts) with effect from 01/07/1993. In this light of the matter, we do not feel that the punishment imposed on the petitioner is shockingly disproportionate to the misconduct proved. We are therefore not inclined to interfere with the impugned orders.20. Learned Counsel for the respondents has however indicated that if an application is made by the petitioner claiming his terminal benefits i.e. provident fund, gratuity, Earned Leave encashment, 1992 pay revision arrears, the same would be cleared notwithstanding the order of dismissal. The petitioner is at a liberty to make an application to the respondents for terminal benefits as mentioned above within a period of 4 weeks from today and if such application is made, terminal dues be paid by the respondents to the petitioner within a period of 6 weeks from the date of receipt of application after adjusting the amount of Rs. 20,055/- which is to be recovered from the petitioner.
### Response:
0
### Explanation:
petitioner agreed that taxi vouchers of Rs. 350/and Rs. 300/were detached by him and through oversight 3 more vouchers were clubbed. The Enquiry Officer recorded the finding that as the voucher of Rs. 795.50 does not bear signature of Shri R.Jayaraman acknowledging receipt of Rs. 795.50/, the said amount of Rs. 795.50 was misappropriated by the petitioner.11. Likewise the petitioner paid Rs. 4000/by cash to M/s.Jaihind Art Printers but prepared and accounted cash payment voucher for Rs.. The Enquiry Officer took into consideration the letter of M/s.Jaihind Art Printers stating that they have received Rs.. On the cash payment voucher (Exhibit 5/6), signature of M/s.Jaihind Art Printers is not seen and the petitioner did not produce any documentary evidence to prove that he indeed paid Rs. 4445/to M/s.Jaihind Art Printers. In these circumstances, the Enquiry Officer came to the conclusion that the difference amount of Rs. 445/was misappropriated.12. Furthermore, even as regards the cash payment vouchers for Rs. 1572/and Rs. 1243/in favour of M/s. Jaihind Art Printers, they denied the receipt of above payments. The documentary evidence in the form of cash payment voucher of Rs. 1572/Bill No. 2611 dated 15/10/1994 (Exhibit 7) and part of page 49 of Cash Book No.2 (Exhibit 8) wherein cash payment of Rs. 1243/has been accounted is a part of record. The Enquiry Officer has recorded a finding that Exhibit 6 does not bear the signature of the receiving party and voucher was not traceable in the showroom and therefore, concluded that the amounts of Rs. 1,577/and Rs. 1,743/were misappropriated by the petitioner.13. Even in respect of an amount of Rs. 5,000/which was said to have been paid to M/s. Cute Computer Forms Pvt. Ltd., the Company had sent a letter dated 10/05/1995 denying the receipt of the payment. The petitioner, however, produced stamped receipt dated 19/10/1994 on the partys letterhead confirming receipt of the payment. The Enquiry Officer found that the said receipt was not produced during the investigation and therefore it is apparent that payment has been made subsequently and predated receipt obtained from the party. Insofar as this charge is concerned, the Enquiry Officer did not find the charge as proved.14. Even insofar as the charge that an amount of Rs. 19676/towards service week expenses, the Enquiry Officer concluded that the same was processed without any supporting bills and vouchers. The said amount as per the findings of the Enquiry Officer towards service expenses were paid without proper bills and vouchers. The petitioner agreed that the payments have been made without proper documents and vouchers.15. In respect of the charge that the petitioner has temporarily misappropriated an amount of Rs. 2700/which was paid to him Shri M.A. Pershad DVM for adjusting T.A. advance drawn by him, the petitioner agreed that amount was received by him sometime in the last week of January 1995 and he did not issue receipt on the same day. Instead amount was kept separately in the drawer of his table. The Enquiry Officer took into consideration the request for demand draft of Rs. 2700/through State Bank of India dated 15/04/1995 to prove that amount was accounted for only on that day. In this view of the matter, the Enquiry Officer held that the charge of temporarily misappropriation of Rs. 2700/is proved.16. As regards payment of amount of Rs. 25,000/to M/s. A to Z Furnishers without prior approval or sanction, the petitioner stated that the same was paid on oral instructions of the then DGM (W) and therefore, he did not have proper approval or sanction.17. The petitioner has taken a stand that his wife has been suffering from Cancer for about a year at the relevant time and therefore he was under great mental tension. He had to undertake the entire account work after V.R.S. of the Deputy Manager Accounts and therefore, did not have any immediate superior in Accounts Department who could guide and correct him.18. The law is well settled that this Court cannot interfere under Article 226 of the Constitution of India with the findings of the Enquiry Officer unless they are perverse nor can the evidence be appreciated as if this Court is an Appellate forum. We are not inclined to accept the contention of the learned Counsel for the petitioner that any prejudice is caused to him by non supply of the documents. We find that during the course of the enquiry, the petitioner has admitted to some of the charges and in fact accepted that he has not followed the proper procedure while making payments or processing T.E. claims. Based on the material on record, the Enquiry Officer has come to the conclusion that the charges levelled against the petitioner are proved except charges No. 56. We do not find any infirmity with the findings recorded by the Enquiry Officer. In our opinion, the findings of the Enquiry Officer satisfies the test of preponderance of probabilities expected in disciplinary proceedings.19. The petitioner is an Accountant and therefore, working as an Assistant Superintendent with effect from 01/04/1989 and assigned duties in Sales and Accounts and was promoted as Junior Officer (Accounts) with effect from 01/07/1993. In this light of the matter, we do not feel that the punishment imposed on the petitioner is shockingly disproportionate to the misconduct proved. We are therefore not inclined to interfere with the impugned orders.20. Learned Counsel for the respondents has however indicated that if an application is made by the petitioner claiming his terminal benefits i.e. provident fund, gratuity, Earned Leave encashment, 1992 pay revision arrears, the same would be cleared notwithstanding the order of dismissal. The petitioner is at a liberty to make an application to the respondents for terminal benefits as mentioned above within a period of 4 weeks from today and if such application is made, terminal dues be paid by the respondents to the petitioner within a period of 6 weeks from the date of receipt of application after adjusting the amount of Rs. 20,055/which is to be recovered from the petitioner.
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Faridabad Complex Administration Vs. M/S. Iron Master India (P) Ltd | 1993-94 from the respondent on their properties. The appellant also sought a declaration that a demand notice dated 20.11.1993 raised by the appellant calling upon the respondent to pay Rs. 48,599.40 towards the House Tax on their properties is illegal.5. The appellant filed written statement and defended the aforementioned demands on various grounds. The appellant also raised an objection about the maintainability of the Suit.6. The Trial Court framed issues. Parties adduced evidence. Vide judgment and decree dated 20.09.2002 in Case No. 1483 of 1995, the Trial Court dismissed the Suit. Felt aggrieved, the respondent filed appeal being Civil Appeal No. 166 of 2002 before the Additional District Judge, Faridabad. By order dated 22.10.2003, the Additional District Judge allowed the appeal, set aside the judgment and decree of the Trial Court and decreed the respondents suit against the appellant.7. Felt aggrieved, the appellant(defendant) filed second appeal before the High Court wherein the appellant had proposed several substantial questions of law arising in the case. The High Court, however, dismissed the second appeal in limine by impugned judgment/order holding that the second appeal does not involve any substantial question of law. It is against this judgment, the appellant(defendant) has filed this appeal by way of special leave petition before this Court. 8. It is unfortunate that no one appeared for the appellant to argue the appeal before this Court when the case was called on for hearing twice. We, however, refrained ourselves from dismissing the appeal in default and instead perused the record with the assistance of Mr. A.K. Singla, learned senior counsel for the respondent with a view to decide the appeal on merits.9. Having heard learned senior counsel for the respondent and on perusal of the record of the case, we are inclined to allow the appeal and remand the case to the High Court for deciding the second appeal afresh on merits in accordance with law. 10. The question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing the second appeal of the appellant(defendant) in limine holding that it does not involve any substantial question of law? 11. The learned Single Judge while dismissing the appeal passed the following order: "This Regular Second Appeal has been filed by the defendant against the judgment and decree dated 22.10.2003, passed by the Additional District Judge, whereby the appeal filed by the plaintiff was accepted, the judgment and decree passed by the trial Court were set aside and the suit of the plaintiff was decreed.While decreeing the suit of the plaintiff, it was found by the learned Additional District Judge that before fixing the annual value and imposing the house tax, the defendant had failed to decide the objections filed by the plaintiff against the proposed amendment of the assessment list. It was found that in fact the case of the defendant was that no objections were filed. However, when a copy of the objections and the notice for personal hearing were shown to DW1 (produced by the defendant), he had to admit that those documents were issued by the defendant. It was found that from those documents, it was clear that the plaintiff had filed objections against the proposed amendment of the assessment list and there is nothing on the record to show that the objections were decided before the annual value was fixed and the house tax was imposed. This finding of the learned Additional District Judge, in my opinion, is a finding of fact based on the evidence led by the parties, especially when there is nothing on the record to show that there is any misreading of evidence or that any material evidence had been ignored by the learned Additional District Judge while giving this finding. Once it is found that the defendant had failed to follow the procedure laid down under the Act while imposing the house tax, in my opinion, the civil Court certainly had the jurisdiction to entertain the present suit and the finding of the learned Additional District Judge in this regard also has to be affirmed.In this view of the matter, in my opinion, there is no scope for interference in the present appeal, especially when no question of law much less substantial question of law arises for determination in this appeal.Hence, the present appeal is dismissed." 12. As observed supra, we do not agree with the reasoning and the conclusion arrived at by the High Court in the impugned order. In our considered view, the appeal did involve the substantial question of law and, therefore, the High Court should have admitted the appeal by first framing proper substantial questions of law arising in the case, issued notice to the respondent for its final hearing as provided under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") and disposed it of on merits.13. As a matter of fact, having regard to the nature of controversy involved in the suit and the issues arising in the case, the questions raised in the second appeal did constitute substantial questions of law within the meaning of Section 100 of the Code.14. Indeed, in our considered view, the questions, viz., whether the suit seeking a declaration that the demand of House Tax raised under the Act is maintainable, whether such suit is barred and, if so, by virtue of which provision of the Act, whether plaintiff has any alternative statutory remedy available under the Act for adjudication of his grievance and, if so, which is that remedy, and lastly, whether the plaintiff has properly valued the suit and, if so, whether they have paid the proper Court fees on the reliefs claimed in the suit were legal questions arising in the appeal and involved jurisdictional issues requiring adjudication on merits in accordance with law. The High Court unfortunately did not examine any of these issues much less in its proper perspective in the light of relevant provisions of the Act governing the controversy. | 0[ds]8. It is unfortunate that no one appeared for the appellant to argue the appeal before this Court when the case was called on for hearing twice. We, however, refrained ourselves from dismissing the appeal in default and instead perused the record with the assistance of Mr. A.K. Singla, learned senior counsel for the respondent with a view to decide the appeal on merits.9. Having heard learned senior counsel for the respondent and on perusal of the record of the case, we are inclined to allow the appeal and remand the case to the High Court for deciding the second appeal afresh on merits in accordance with law.As observed supra, we do not agree with the reasoning and the conclusion arrived at by the High Court in the impugned order. In our considered view, the appeal did involve the substantial question of law and, therefore, the High Court should have admitted the appeal by first framing proper substantial questions of law arising in the case, issued notice to the respondent for its final hearing as provided under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") and disposed it of on merits.13. As a matter of fact, having regard to the nature of controversy involved in the suit and the issues arising in the case, the questions raised in the second appeal did constitute substantial questions of law within the meaning of Section 100 of the Code.14. Indeed, in our considered view, the questions, viz., whether the suit seeking a declaration that the demand of House Tax raised under the Act is maintainable, whether such suit is barred and, if so, by virtue of which provision of the Act, whether plaintiff has any alternative statutory remedy available under the Act for adjudication of his grievance and, if so, which is that remedy, and lastly, whether the plaintiff has properly valued the suit and, if so, whether they have paid the proper Court fees on the reliefs claimed in the suit were legal questions arising in the appeal and involved jurisdictional issues requiring adjudication on merits in accordance with law. The High Court unfortunately did not examine any of these issues much less in its proper perspective in the light of relevant provisions of the Act governing the controversy.Before parting, we consider it proper to mention here that we have not expressed any opinion on merits of the controversy and confined our inquiry only to examine whetherthe second appeal involved any substantial question of law within the meaning of Section 100 of theSince none appeared for the appellant(defendant) in this Court, the High Court would issue notice to the appellant before it is finally heard. | 0 | 1,340 | 498 | ### Instruction:
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1993-94 from the respondent on their properties. The appellant also sought a declaration that a demand notice dated 20.11.1993 raised by the appellant calling upon the respondent to pay Rs. 48,599.40 towards the House Tax on their properties is illegal.5. The appellant filed written statement and defended the aforementioned demands on various grounds. The appellant also raised an objection about the maintainability of the Suit.6. The Trial Court framed issues. Parties adduced evidence. Vide judgment and decree dated 20.09.2002 in Case No. 1483 of 1995, the Trial Court dismissed the Suit. Felt aggrieved, the respondent filed appeal being Civil Appeal No. 166 of 2002 before the Additional District Judge, Faridabad. By order dated 22.10.2003, the Additional District Judge allowed the appeal, set aside the judgment and decree of the Trial Court and decreed the respondents suit against the appellant.7. Felt aggrieved, the appellant(defendant) filed second appeal before the High Court wherein the appellant had proposed several substantial questions of law arising in the case. The High Court, however, dismissed the second appeal in limine by impugned judgment/order holding that the second appeal does not involve any substantial question of law. It is against this judgment, the appellant(defendant) has filed this appeal by way of special leave petition before this Court. 8. It is unfortunate that no one appeared for the appellant to argue the appeal before this Court when the case was called on for hearing twice. We, however, refrained ourselves from dismissing the appeal in default and instead perused the record with the assistance of Mr. A.K. Singla, learned senior counsel for the respondent with a view to decide the appeal on merits.9. Having heard learned senior counsel for the respondent and on perusal of the record of the case, we are inclined to allow the appeal and remand the case to the High Court for deciding the second appeal afresh on merits in accordance with law. 10. The question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing the second appeal of the appellant(defendant) in limine holding that it does not involve any substantial question of law? 11. The learned Single Judge while dismissing the appeal passed the following order: "This Regular Second Appeal has been filed by the defendant against the judgment and decree dated 22.10.2003, passed by the Additional District Judge, whereby the appeal filed by the plaintiff was accepted, the judgment and decree passed by the trial Court were set aside and the suit of the plaintiff was decreed.While decreeing the suit of the plaintiff, it was found by the learned Additional District Judge that before fixing the annual value and imposing the house tax, the defendant had failed to decide the objections filed by the plaintiff against the proposed amendment of the assessment list. It was found that in fact the case of the defendant was that no objections were filed. However, when a copy of the objections and the notice for personal hearing were shown to DW1 (produced by the defendant), he had to admit that those documents were issued by the defendant. It was found that from those documents, it was clear that the plaintiff had filed objections against the proposed amendment of the assessment list and there is nothing on the record to show that the objections were decided before the annual value was fixed and the house tax was imposed. This finding of the learned Additional District Judge, in my opinion, is a finding of fact based on the evidence led by the parties, especially when there is nothing on the record to show that there is any misreading of evidence or that any material evidence had been ignored by the learned Additional District Judge while giving this finding. Once it is found that the defendant had failed to follow the procedure laid down under the Act while imposing the house tax, in my opinion, the civil Court certainly had the jurisdiction to entertain the present suit and the finding of the learned Additional District Judge in this regard also has to be affirmed.In this view of the matter, in my opinion, there is no scope for interference in the present appeal, especially when no question of law much less substantial question of law arises for determination in this appeal.Hence, the present appeal is dismissed." 12. As observed supra, we do not agree with the reasoning and the conclusion arrived at by the High Court in the impugned order. In our considered view, the appeal did involve the substantial question of law and, therefore, the High Court should have admitted the appeal by first framing proper substantial questions of law arising in the case, issued notice to the respondent for its final hearing as provided under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") and disposed it of on merits.13. As a matter of fact, having regard to the nature of controversy involved in the suit and the issues arising in the case, the questions raised in the second appeal did constitute substantial questions of law within the meaning of Section 100 of the Code.14. Indeed, in our considered view, the questions, viz., whether the suit seeking a declaration that the demand of House Tax raised under the Act is maintainable, whether such suit is barred and, if so, by virtue of which provision of the Act, whether plaintiff has any alternative statutory remedy available under the Act for adjudication of his grievance and, if so, which is that remedy, and lastly, whether the plaintiff has properly valued the suit and, if so, whether they have paid the proper Court fees on the reliefs claimed in the suit were legal questions arising in the appeal and involved jurisdictional issues requiring adjudication on merits in accordance with law. The High Court unfortunately did not examine any of these issues much less in its proper perspective in the light of relevant provisions of the Act governing the controversy.
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8. It is unfortunate that no one appeared for the appellant to argue the appeal before this Court when the case was called on for hearing twice. We, however, refrained ourselves from dismissing the appeal in default and instead perused the record with the assistance of Mr. A.K. Singla, learned senior counsel for the respondent with a view to decide the appeal on merits.9. Having heard learned senior counsel for the respondent and on perusal of the record of the case, we are inclined to allow the appeal and remand the case to the High Court for deciding the second appeal afresh on merits in accordance with law.As observed supra, we do not agree with the reasoning and the conclusion arrived at by the High Court in the impugned order. In our considered view, the appeal did involve the substantial question of law and, therefore, the High Court should have admitted the appeal by first framing proper substantial questions of law arising in the case, issued notice to the respondent for its final hearing as provided under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") and disposed it of on merits.13. As a matter of fact, having regard to the nature of controversy involved in the suit and the issues arising in the case, the questions raised in the second appeal did constitute substantial questions of law within the meaning of Section 100 of the Code.14. Indeed, in our considered view, the questions, viz., whether the suit seeking a declaration that the demand of House Tax raised under the Act is maintainable, whether such suit is barred and, if so, by virtue of which provision of the Act, whether plaintiff has any alternative statutory remedy available under the Act for adjudication of his grievance and, if so, which is that remedy, and lastly, whether the plaintiff has properly valued the suit and, if so, whether they have paid the proper Court fees on the reliefs claimed in the suit were legal questions arising in the appeal and involved jurisdictional issues requiring adjudication on merits in accordance with law. The High Court unfortunately did not examine any of these issues much less in its proper perspective in the light of relevant provisions of the Act governing the controversy.Before parting, we consider it proper to mention here that we have not expressed any opinion on merits of the controversy and confined our inquiry only to examine whetherthe second appeal involved any substantial question of law within the meaning of Section 100 of theSince none appeared for the appellant(defendant) in this Court, the High Court would issue notice to the appellant before it is finally heard.
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State Of Punjab Vs. Dharam Singh | forbidding its extension beyond a certain maximum period.5. The same view was taken in Narain Singh Ahluwalia v. State of Punjab, Civil Appeal No. 492 of 1963, D/- 29-1-1964 (SC). It was suggested before US that the service rules in that ease provided for a maximum period of probation of two years beyond which the probationary period could not be extended. The judgment in that case does not refer to such a rule, nor does it appear from the judgment that before the appellant was reverted to his substantive post, the maximum period of probation in the post to which he had been promoted had expired. A reference to the paper book in that case shows that in November, 1957 the appellant was promoted as a superintendent and on June 26, 1959 before the expiry of the maximum period of probation he was reverted to his substantive post. He thus continued to hold the post of superintendent as a probationer when the order of reversion was passed.6. In the present case, Rule 6 (3) forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication.7. The employees referred to in R. 6 (1) held their posts in the first instance on probation for one year commencing from October 1,1957. On completion of the one year period of probation of the employee, four courses of action were open to the appointing authority under Section 6 (3). The authority could either (a) extend the period of probation provided the total period of probation including extensions would not exceed three years, or (b) revert the employee to his former post if he was promoted from some lower post, or (c) dispense with his services if his work or conduct during the period of probation was unsatisfactory, or (d) confine him in his appointment. It could pass one of these orders in respect of the respondents on completion of their one year period of probation. But the authority allowed them to continue in their posts thereafter without passing any order in writing under Rule 6 (3). In the absence of any formal order, the question is whether by necessary implication from the proved facts of these cases, the authority should be presumed to have passed some order under Rule 6 (3) in respect of the respondents, and if so, what order should be presumed to have been passed.8. The respondents were not promoted from lower posts and there was no question of their reversion to such posts at any time under Rule 6 (3).9. The initial period of probation of the respondents ended on October 1, 1958. By allowing the respondents to continue in their posts thereafter without any express order of confirmation, the competent authority must be taken to have extended the period of probation up to October 1, 1960 by implication. But under the proviso to R. 6 (3), the probationary period could not extend beyond October 1, 1960. In view of the proviso to R. 6 (3), it is not possible to presume that the competent authority extended the probationary period after October 1, 1960, or that thereafter the respondents continued to hold their posts as probationers.10. Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed them to draw annual increments of salary including the increment which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfil any other condition before confirmation.There was no compelling reason for dispensing with their services and re-employing them as temporary employees on October 1, 1960 and the High Court rightly refused to draw the inference that they were so discharged from services and re-employed. In these circumstances, the High Court rightly held that the respondents must be deemed to have been confirmed in their posts. Though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders of confirmation by so allowing them to continue in their posts after October 1, 1960. After such confirmation, the authority had no power to dispense with their services under Rule 6 (3) on the ground that their work or conduct during the period of probation was unsatisfactory. It follows that on the dates of the impugned orders, the respondents had the right to hold their posts. The impugned orders deprived them of this right and amounted to removal from service by way of punishment. The removal from service could not the made without following the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and without conforming to the constitutional requirements of Article 311 of the Constitution. As the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 was not followed and as the constitutional protection of Article 311 was violated, the impugned orders were rightly set aside by the High Court.11. | 0[ds]In the present case, Rule 6 (3) forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication.The employees referred to in R. 6 (1) held their posts in the first instance on probation for one year commencing from October 1,1957. On completion of the one year period of probation of the employee, four courses of action were open to the appointing authority under Section 6 (3). The authority could either (a) extend the period of probation provided the total period of probation including extensions would not exceed three years, or (b) revert the employee to his former post if he was promoted from some lower post, or (c) dispense with his services if his work or conduct during the period of probation was unsatisfactory, or (d) confine him in his appointment. It could pass one of these orders in respect of the respondents on completion of their one year period of probation. But the authority allowed them to continue in their posts thereafter without passing any order in writing under Rule 6 (3). In the absence of any formal order, the question is whether by necessary implication from the proved facts of these cases, the authority should be presumed to have passed some order under Rule 6 (3) in respect of the respondents, and if so, what order should be presumed to have been passed.The respondents were not promoted from lower posts and there was no question of their reversion to such posts at any time under Rule 6 (3).The initial period of probation of the respondents ended on October 1, 1958. By allowing the respondents to continue in their posts thereafter without any express order of confirmation, the competent authority must be taken to have extended the period of probation up to October 1, 1960 by implication. But under the proviso to R. 6 (3), the probationary period could not extend beyond October 1, 1960. In view of the proviso to R. 6 (3), it is not possible to presume that the competent authority extended the probationary period after October 1, 1960, or that thereafter the respondents continued to hold their posts as probationers.Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed them to draw annual increments of salary including the increment which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfil any other condition before confirmation.There was no compelling reason for dispensing with their services and re-employing them as temporary employees on October 1, 1960 and the High Court rightly refused to draw the inference that they were so discharged from services and re-employed. In these circumstances, the High Court rightly held that the respondents must be deemed to have been confirmed in their posts. Though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders of confirmation by so allowing them to continue in their posts after October 1, 1960. After such confirmation, the authority had no power to dispense with their services under Rule 6 (3) on the ground that their work or conduct during the period of probation was unsatisfactory. It follows that on the dates of the impugned orders, the respondents had the right to hold their posts. The impugned orders deprived them of this right and amounted to removal from service by way of punishment. The removal from service could not the made without following the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and without conforming to the constitutional requirements of Article 311 of the Constitution. As the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 was not followed and as the constitutional protection of Article 311 was violated, the impugned orders were rightly set aside by the High Court. | 0 | 2,588 | 923 | ### Instruction:
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forbidding its extension beyond a certain maximum period.5. The same view was taken in Narain Singh Ahluwalia v. State of Punjab, Civil Appeal No. 492 of 1963, D/- 29-1-1964 (SC). It was suggested before US that the service rules in that ease provided for a maximum period of probation of two years beyond which the probationary period could not be extended. The judgment in that case does not refer to such a rule, nor does it appear from the judgment that before the appellant was reverted to his substantive post, the maximum period of probation in the post to which he had been promoted had expired. A reference to the paper book in that case shows that in November, 1957 the appellant was promoted as a superintendent and on June 26, 1959 before the expiry of the maximum period of probation he was reverted to his substantive post. He thus continued to hold the post of superintendent as a probationer when the order of reversion was passed.6. In the present case, Rule 6 (3) forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication.7. The employees referred to in R. 6 (1) held their posts in the first instance on probation for one year commencing from October 1,1957. On completion of the one year period of probation of the employee, four courses of action were open to the appointing authority under Section 6 (3). The authority could either (a) extend the period of probation provided the total period of probation including extensions would not exceed three years, or (b) revert the employee to his former post if he was promoted from some lower post, or (c) dispense with his services if his work or conduct during the period of probation was unsatisfactory, or (d) confine him in his appointment. It could pass one of these orders in respect of the respondents on completion of their one year period of probation. But the authority allowed them to continue in their posts thereafter without passing any order in writing under Rule 6 (3). In the absence of any formal order, the question is whether by necessary implication from the proved facts of these cases, the authority should be presumed to have passed some order under Rule 6 (3) in respect of the respondents, and if so, what order should be presumed to have been passed.8. The respondents were not promoted from lower posts and there was no question of their reversion to such posts at any time under Rule 6 (3).9. The initial period of probation of the respondents ended on October 1, 1958. By allowing the respondents to continue in their posts thereafter without any express order of confirmation, the competent authority must be taken to have extended the period of probation up to October 1, 1960 by implication. But under the proviso to R. 6 (3), the probationary period could not extend beyond October 1, 1960. In view of the proviso to R. 6 (3), it is not possible to presume that the competent authority extended the probationary period after October 1, 1960, or that thereafter the respondents continued to hold their posts as probationers.10. Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed them to draw annual increments of salary including the increment which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfil any other condition before confirmation.There was no compelling reason for dispensing with their services and re-employing them as temporary employees on October 1, 1960 and the High Court rightly refused to draw the inference that they were so discharged from services and re-employed. In these circumstances, the High Court rightly held that the respondents must be deemed to have been confirmed in their posts. Though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders of confirmation by so allowing them to continue in their posts after October 1, 1960. After such confirmation, the authority had no power to dispense with their services under Rule 6 (3) on the ground that their work or conduct during the period of probation was unsatisfactory. It follows that on the dates of the impugned orders, the respondents had the right to hold their posts. The impugned orders deprived them of this right and amounted to removal from service by way of punishment. The removal from service could not the made without following the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and without conforming to the constitutional requirements of Article 311 of the Constitution. As the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 was not followed and as the constitutional protection of Article 311 was violated, the impugned orders were rightly set aside by the High Court.11.
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0
### Explanation:
In the present case, Rule 6 (3) forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication.The employees referred to in R. 6 (1) held their posts in the first instance on probation for one year commencing from October 1,1957. On completion of the one year period of probation of the employee, four courses of action were open to the appointing authority under Section 6 (3). The authority could either (a) extend the period of probation provided the total period of probation including extensions would not exceed three years, or (b) revert the employee to his former post if he was promoted from some lower post, or (c) dispense with his services if his work or conduct during the period of probation was unsatisfactory, or (d) confine him in his appointment. It could pass one of these orders in respect of the respondents on completion of their one year period of probation. But the authority allowed them to continue in their posts thereafter without passing any order in writing under Rule 6 (3). In the absence of any formal order, the question is whether by necessary implication from the proved facts of these cases, the authority should be presumed to have passed some order under Rule 6 (3) in respect of the respondents, and if so, what order should be presumed to have been passed.The respondents were not promoted from lower posts and there was no question of their reversion to such posts at any time under Rule 6 (3).The initial period of probation of the respondents ended on October 1, 1958. By allowing the respondents to continue in their posts thereafter without any express order of confirmation, the competent authority must be taken to have extended the period of probation up to October 1, 1960 by implication. But under the proviso to R. 6 (3), the probationary period could not extend beyond October 1, 1960. In view of the proviso to R. 6 (3), it is not possible to presume that the competent authority extended the probationary period after October 1, 1960, or that thereafter the respondents continued to hold their posts as probationers.Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed them to draw annual increments of salary including the increment which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfil any other condition before confirmation.There was no compelling reason for dispensing with their services and re-employing them as temporary employees on October 1, 1960 and the High Court rightly refused to draw the inference that they were so discharged from services and re-employed. In these circumstances, the High Court rightly held that the respondents must be deemed to have been confirmed in their posts. Though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders of confirmation by so allowing them to continue in their posts after October 1, 1960. After such confirmation, the authority had no power to dispense with their services under Rule 6 (3) on the ground that their work or conduct during the period of probation was unsatisfactory. It follows that on the dates of the impugned orders, the respondents had the right to hold their posts. The impugned orders deprived them of this right and amounted to removal from service by way of punishment. The removal from service could not the made without following the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and without conforming to the constitutional requirements of Article 311 of the Constitution. As the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 was not followed and as the constitutional protection of Article 311 was violated, the impugned orders were rightly set aside by the High Court.
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State Of Madras Vs. M/S.K.C.P. Ltd | of a manufacturing process leading to the production of such saleable commodity."The facts in the decision of the Court under discussion were different and distinguishable from the present case. The tanning bark was actually consumed in the process of manufacturing another commodity and it was either used as an ingredient or for adding the process of manufacture which cannot be said about the arc furnaces which were indisputably bought for being installed in the foundry as a part of the manufacturing plant. The words "in aid of a manufacturing process" have to be read in the context in which they appear in passage extracted above and cannot be taken to mean that even a part of manufacturing plant will become a saleable commodity if it is found to be unusable or no longer required. Such a view is untenable and cannot be regarded as sustainable in the light of the decision of this Court. In State of Gujarat v. Raipur Manufacturing Co. Ltd., 1967-19 STC 1 = (AIR 1967 SC 1066 ), the tribunal had held that where a cotton textile mill had managed to collect unserviceable articles in the course of manufacture of cloth which were sold, sales of these articles must be regarded as part of the business of the textile mill if the transactions of sale were large and frequent. After referring to the definition and the expression "dealer" in Section 2 (6) of the Bombay Sales Tax Act 1953 and the other relevant provisions of that Act as also the law laid down in 1964-15 STC 644 = (AIR 1965 SC 531 ) it was observed that by the use of the expression "profit motive" it was not intended that profit must, in fact, be earned nor did the expression cover a mere desire to make some monetary gain out of the transaction or even a series of transactions. It predicates a motive which pervades the whole series of transactions effected by the person in the course of his activity. Where a person came to own, in the course of his business of manufacturing or selling a commodity, some other commodity which is not a by-product or a subsidiary product of that business and he sold that commodity, cogent evidence that he had the intention to carry on the business of selling that commodity would be required.It was further observed that where a person in the course of carrying on the business was required to dispose of what might be called his fixed assets or his discarded goods acquired in the course of business, an inference that he desired to carry on the business of selling his fixed assets or discarded goods would not ordinarily arise.In the State of Gujarat v. Vivekananda Mills, 1967-19 STC 103 (SC) the assessee was carrying on the business of manufacturing cotton fabrics. It had agreed to purchase under users import licence 300 bales of Californian cotton in January 1953. Believing that the shipment would arrive after six months the assessee made arrangement to purchase 300 bales of similar cotton to meet its immediate requirements. The consignment of Californian cotton arrived unexpectedly in April 1953. A large sum of money belonging to the assessee was blocked up and with the sanction of the authorities the assessee sold 411 bales of this cotton to other mills. It was held that in selling the cotton with a view to avoid locking up of funds, it could not be inferred that the assessee had sold the goods with the intention to carry on the business of selling cotton and the sales were not liable to tax. It was clear from the supplemental statement of the case which had been submitted that though the assessee had been selling cotton from the year 1946 onwards except for three intervening years the sales were in respect of goods purchased for the business of manufacturing cotton cloth and the sales had been effected either because the cotton was surplus or the assessee had to accommodate its sister concern or with the view that the finances were not blocked up by detaining cotton which the assessee did not need for its business.4. The facts and circumstances which have been established in the present case are stronger than those in the previous decisions of this Court. The furnaces were admittedly imported for the purpose of being installed as a part of the plant in the foundry of the assessee. There is no material whatsoever to show that there was any intention at the time when the furnaces were purchased of selling them at a profit. According to Mr. Sen himself the assessee decide to sell the furnaces because it was discovered that they were too big to be installed in the manufacturing plant. The case of the assessee throughout was and no evidence or material to the contrary existed that the furnaces had been shown in the books of the assessee under the classification "workshop equipment."The same entries in the balance sheet. Although the assessee was dealing in the sale of heavy machinery and machinery parts it was nowhere proved that furnaces were ever manufactured or sold by it or were part of its business or ingrained therein. The arc furnaces were either fixed assets or discarded goods which had been found to be unserviceable or unsuitable. The assessee could therefore hardly be said to be a dealer within the definition given in S. 2 (b) of the Central Act which is:"dealer means any person who carries on the business of selling goods, and includes a Government which carries on such business".This definition has to be read in the light of the principles which have been laid down by this court in the cases referred to above.5. It must therefore be held that the High Court rightly came to the conclusion that the sale proceeds of the furnaces could not be included in the turnover the assessee for the purpose of determining the liability of the assessee to sales tax. | 0[ds]The facts in the decision of the Court under discussion were different and distinguishable from the present case. The tanning bark was actually consumed in the process of manufacturing another commodity and it was either used as an ingredient or for adding the process of manufacture which cannot be said about the arc furnaces which were indisputably bought for being installed in the foundry as a part of the manufacturing plant. The words "in aid of a manufacturing process" have to be read in the context in which they appear in passage extracted above and cannot be taken to mean that even a part of manufacturing plant will become a saleable commodity if it is found to be unusable or no longer required. Such a view is untenable and cannot be regarded as sustainable in the light of the decision of thiswas further observed that where a person in the course of carrying on the business was required to dispose of what might be called his fixed assets or his discarded goods acquired in the course of business, an inference that he desired to carry on the business of selling his fixed assets or discarded goods would not ordinarily arise.The facts and circumstances which have been established in the present case are stronger than those in the previous decisions of this Court. The furnaces were admittedly imported for the purpose of being installed as a part of the plant in the foundry of the assessee. There is no material whatsoever to show that there was any intention at the time when the furnaces were purchased of selling them at a profit. According to Mr. Sen himself the assessee decide to sell the furnaces because it was discovered that they were too big to be installed in the manufacturing plant. The case of the assessee throughout was and no evidence or material to the contrary existed that the furnaces had been shown in the books of the assessee under the classification "workshop equipment."The same entries in the balance sheet. Although the assessee was dealing in the sale of heavy machinery and machinery parts it was nowhere proved that furnaces were ever manufactured or sold by it or were part of its business or ingrained therein. The arc furnaces were either fixed assets or discarded goods which had been found to be unserviceable or unsuitable.It must therefore be held that the High Court rightly came to the conclusion that the sale proceeds of the furnaces could not be included in the turnover the assessee for the purpose of determining the liability of the assessee to sales tax. | 0 | 2,627 | 459 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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of a manufacturing process leading to the production of such saleable commodity."The facts in the decision of the Court under discussion were different and distinguishable from the present case. The tanning bark was actually consumed in the process of manufacturing another commodity and it was either used as an ingredient or for adding the process of manufacture which cannot be said about the arc furnaces which were indisputably bought for being installed in the foundry as a part of the manufacturing plant. The words "in aid of a manufacturing process" have to be read in the context in which they appear in passage extracted above and cannot be taken to mean that even a part of manufacturing plant will become a saleable commodity if it is found to be unusable or no longer required. Such a view is untenable and cannot be regarded as sustainable in the light of the decision of this Court. In State of Gujarat v. Raipur Manufacturing Co. Ltd., 1967-19 STC 1 = (AIR 1967 SC 1066 ), the tribunal had held that where a cotton textile mill had managed to collect unserviceable articles in the course of manufacture of cloth which were sold, sales of these articles must be regarded as part of the business of the textile mill if the transactions of sale were large and frequent. After referring to the definition and the expression "dealer" in Section 2 (6) of the Bombay Sales Tax Act 1953 and the other relevant provisions of that Act as also the law laid down in 1964-15 STC 644 = (AIR 1965 SC 531 ) it was observed that by the use of the expression "profit motive" it was not intended that profit must, in fact, be earned nor did the expression cover a mere desire to make some monetary gain out of the transaction or even a series of transactions. It predicates a motive which pervades the whole series of transactions effected by the person in the course of his activity. Where a person came to own, in the course of his business of manufacturing or selling a commodity, some other commodity which is not a by-product or a subsidiary product of that business and he sold that commodity, cogent evidence that he had the intention to carry on the business of selling that commodity would be required.It was further observed that where a person in the course of carrying on the business was required to dispose of what might be called his fixed assets or his discarded goods acquired in the course of business, an inference that he desired to carry on the business of selling his fixed assets or discarded goods would not ordinarily arise.In the State of Gujarat v. Vivekananda Mills, 1967-19 STC 103 (SC) the assessee was carrying on the business of manufacturing cotton fabrics. It had agreed to purchase under users import licence 300 bales of Californian cotton in January 1953. Believing that the shipment would arrive after six months the assessee made arrangement to purchase 300 bales of similar cotton to meet its immediate requirements. The consignment of Californian cotton arrived unexpectedly in April 1953. A large sum of money belonging to the assessee was blocked up and with the sanction of the authorities the assessee sold 411 bales of this cotton to other mills. It was held that in selling the cotton with a view to avoid locking up of funds, it could not be inferred that the assessee had sold the goods with the intention to carry on the business of selling cotton and the sales were not liable to tax. It was clear from the supplemental statement of the case which had been submitted that though the assessee had been selling cotton from the year 1946 onwards except for three intervening years the sales were in respect of goods purchased for the business of manufacturing cotton cloth and the sales had been effected either because the cotton was surplus or the assessee had to accommodate its sister concern or with the view that the finances were not blocked up by detaining cotton which the assessee did not need for its business.4. The facts and circumstances which have been established in the present case are stronger than those in the previous decisions of this Court. The furnaces were admittedly imported for the purpose of being installed as a part of the plant in the foundry of the assessee. There is no material whatsoever to show that there was any intention at the time when the furnaces were purchased of selling them at a profit. According to Mr. Sen himself the assessee decide to sell the furnaces because it was discovered that they were too big to be installed in the manufacturing plant. The case of the assessee throughout was and no evidence or material to the contrary existed that the furnaces had been shown in the books of the assessee under the classification "workshop equipment."The same entries in the balance sheet. Although the assessee was dealing in the sale of heavy machinery and machinery parts it was nowhere proved that furnaces were ever manufactured or sold by it or were part of its business or ingrained therein. The arc furnaces were either fixed assets or discarded goods which had been found to be unserviceable or unsuitable. The assessee could therefore hardly be said to be a dealer within the definition given in S. 2 (b) of the Central Act which is:"dealer means any person who carries on the business of selling goods, and includes a Government which carries on such business".This definition has to be read in the light of the principles which have been laid down by this court in the cases referred to above.5. It must therefore be held that the High Court rightly came to the conclusion that the sale proceeds of the furnaces could not be included in the turnover the assessee for the purpose of determining the liability of the assessee to sales tax.
### Response:
0
### Explanation:
The facts in the decision of the Court under discussion were different and distinguishable from the present case. The tanning bark was actually consumed in the process of manufacturing another commodity and it was either used as an ingredient or for adding the process of manufacture which cannot be said about the arc furnaces which were indisputably bought for being installed in the foundry as a part of the manufacturing plant. The words "in aid of a manufacturing process" have to be read in the context in which they appear in passage extracted above and cannot be taken to mean that even a part of manufacturing plant will become a saleable commodity if it is found to be unusable or no longer required. Such a view is untenable and cannot be regarded as sustainable in the light of the decision of thiswas further observed that where a person in the course of carrying on the business was required to dispose of what might be called his fixed assets or his discarded goods acquired in the course of business, an inference that he desired to carry on the business of selling his fixed assets or discarded goods would not ordinarily arise.The facts and circumstances which have been established in the present case are stronger than those in the previous decisions of this Court. The furnaces were admittedly imported for the purpose of being installed as a part of the plant in the foundry of the assessee. There is no material whatsoever to show that there was any intention at the time when the furnaces were purchased of selling them at a profit. According to Mr. Sen himself the assessee decide to sell the furnaces because it was discovered that they were too big to be installed in the manufacturing plant. The case of the assessee throughout was and no evidence or material to the contrary existed that the furnaces had been shown in the books of the assessee under the classification "workshop equipment."The same entries in the balance sheet. Although the assessee was dealing in the sale of heavy machinery and machinery parts it was nowhere proved that furnaces were ever manufactured or sold by it or were part of its business or ingrained therein. The arc furnaces were either fixed assets or discarded goods which had been found to be unserviceable or unsuitable.It must therefore be held that the High Court rightly came to the conclusion that the sale proceeds of the furnaces could not be included in the turnover the assessee for the purpose of determining the liability of the assessee to sales tax.
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Khub Chand & Others Vs. State of Rajasthan & Others | the intention of the officer to enter his land before he does so and that of the other is to enable him to know the particulars of the land which is sought to be acquired. In the Land Acquisition Act, 1894 (Central Act 1 of 1894) there is no section corresponding to S. 5 (2) of the Act. Indeed sub-s. (2) of S. 5 of the Act was omitted by Act 15 of 1960 and S. 5A was suitably amended to bring the said provision in conformity with those of Central Act 1 of 1894. Whatever may be said on the question of construction after the said amendment-on which we do not express any opinion-before the amendment,. Ss. 4 and 5(2) were intended to serve different purposes.7. Indeed, the wording of S. 4 (2) of the Act leads to the same conclusion. It says, "thereupon it shall be lawful for any officer generally or specially authorised by the Government in this behalf, and for his servants and workmen to enter upon and survey and take levels of any land in such locality..................." The expressions thereupon and "shall be lawful" indicate that unless such a public notice is given, the officer or his servants cannot enter the land. It is a necessary condition for the exercise of the power of entry. The non-compliance with the said condition makes the entry of the officer or his servants unlawful. On the express terms of sub-s. (2), the officer Or his servants can enter the land to be acquired only if that condition is complied with. If it is not complied with, he or his servants cannot exercise the power of entry under S. 4 (2), with the result that if the expression "shall" is construed as "may", the object of the sub-section itself will be defeated. The statutory intention is, therefore, clear namely, that the giving of public notice is mandatory. If so, the notification issued under, S. 4 without complying with the said mandatory direction would be void and the land acquisition proceedings taken pursuant thereto would be equally void.8. Reliance is placed by the learned Advocate -General on the decision of this Court in Babu Barkya Thakur v. State of Bombay, 1961-l SCR 128 at p. 140: (AIR 1960 SC 1203 at p. 1208). There, the notification under S. 4 did not say specifically that the land sought to be acquired was needed for a public purpose, but it gave the necessary details in regard to the purpose for which the land was sought to be acquired. it was argued that the non-mention of the expression "public purpose invalidated the notification Dealing with the argument, this Court observed :"What was a mere proposal under S. 4 becomes the subject matter of a definite proceeding for acquisition under the Act. Hence, it is not correct to say that any defect in the notification under S 4 is fatal to the validity of the proceedings, particularly when the acquisition is for a company and the purpose has to be investigated under S. 5A or S. 40 neessarily after the notification under S. 4 of the Act."In that case a formal defect was sought to be relied upon to invalidate the notice and this Court did not accept the contention. But it cannot be an authority, for the position that, if a public notice of the notification was not given as prescribed by S. 4 it can be ignored. That would be re-writing the section.9. The decision of this Court in Smt. Somawanti v. State of Punjab, 1963-2 SCR 774 at pp. 822-23: (AIR 1963 SC 151 at p. 171), is also beside the point. The argument advanced therein was that the notification under S.6 should succeed the notification under S. 4 and that it could not be legally published in the same issue of the Gazette. Dealing with that argument, this Court observed :"In the case before us the preliminary declaration under S. 4 (1) was made on August 18, 1961 and a declaration as to the satisfaction of the Government on August 19, 1961, though both of them were published in the Gazette of August 25, 1961. The preliminary declaration as well as subsequent declaration are both required by law to be published in the official gazette. But the law does not make the prior publication of notification under sub-s. (1) of S. 4 a condition precedent to the publication of a notification under sub-s. (1) S. 6." On the said ground the contention was rejected. This decision also has no bearing on the point raised before us. Indeed, the following observation made by this Court in the course of the judgment, to some extent, goes against the contention of the respondent:"A notification under sub-s. (1) of S. 4 is a condition precedent to the making of notification under sub-s. (1) of S. 6."In the present case, the High Court, as we have expressed earlier, rightly held that the provisions for public notice was mandatory, but disallowed the objection on the ground that it was rather belated. We find it difficult to appreciate the said reasoning. This is not a case where a party, who submitted himself to the jurisdiction of a tribunal, raised the plea of want of jurisdiction when the decision went against him; but this is a case where the appellants questioned the jurisdiction of the tribunal from the outset and refused to take part in the proceedings. Though the notifications under S. 4 was published in the Rajasthan Gazette on February 14, 1957, Award No. 1 was made on December 11, 1959 and Award No. 2 on June 27, 1960. The appellants say that they came to know that the awards were made only on September 15, 1960, and they filed the petition in October 26, 1960. It cannot, therefore, be said that there was such an inordinate delay as to preclude the appellants from invoking the jurisdiction of the High Court under Art, 226 of the Constitution. | 1[ds]6. This argument was not accepted by the High Court, and, in our view rightly. The provisions of a statute conferring power on the Government to compulsorily acquire lands shall be strictly construed. Section 4 in clear terms says that the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The provision is mandatory in terms. Doubtless, under certain circumstances, the expression shall is construed as "may". The term "shall" in its ordinary significance is mandatory and the Court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature, to be collected from ether parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations. The object underlying the said direction in S. 4 is obvious. Under sub-s. (2) of S. 4 of the Act, after Such a notice was given, the officer authorised by the Government in that behalf could enter the land and interfere with the possession of the owner in the manner prescribed thereunder. The Legislature thought that it was absolutely necessary that before such officer can enter the land of another, the owner thereof should have a clear notice of the intended entry. The fact that the owner may have notice of the particulars of the intended acquisition under S. .5 (2) does not serve the purpose of S. 4, for such a notice shall be given after the appropriate officer or officers enter the land and submit the particulars mentioned in S. 4. The objects of the two sections are different: the object of one section is to give intimation to the person whose land is sought to be acquired, of the intention of the officer to enter his land before he does so and that of the other is to enable him to know the particulars of the land which is sought to be acquired. In the Land Acquisition Act, 1894 (Central Act 1 of 1894) there is no section corresponding to S. 5 (2) of the Act. Indeed sub-s. (2) of S. 5 of the Act was omitted by Act 15 of 1960 and S. 5A was suitably amended to bring the said provision in conformity with those of Central Act 1 of 1894. Whatever may be said on the question of construction after the said amendment-on which we do not express any opinion-before the amendment,. Ss. 4 and 5(2) were intended to serve different purposes.7. Indeed, the wording of S. 4 (2) of the Act leads to the same conclusion. It says, "thereupon it shall be lawful for any officer generally or specially authorised by the Government in this behalf, and for his servants and workmen to enter upon and survey and take levels of any land in such locality..................." The expressions thereupon and "shall be lawful" indicate that unless such a public notice is given, the officer or his servants cannot enter the land. It is a necessary condition for the exercise of the power of entry. The non-compliance with the said condition makes the entry of the officer or his servants unlawful. On the express terms of sub-s. (2), the officer Or his servants can enter the land to be acquired only if that condition is complied with. If it is not complied with, he or his servants cannot exercise the power of entry under S. 4 (2), with the result that if the expression "shall" is construed as "may", the object of the sub-section itself will be defeated. The statutory intention is, therefore, clear namely, that the giving of public notice is mandatory. If so, the notification issued under, S. 4 without complying with the said mandatory direction would be void and the land acquisition proceedings taken pursuant thereto would be equallythe present case, the High Court, as we have expressed earlier, rightly held that the provisions for public notice was mandatory, but disallowed the objection on the ground that it was rather belated. We find it difficult to appreciate the said reasoning. This is not a case where a party, who submitted himself to the jurisdiction of a tribunal, raised the plea of want of jurisdiction when the decision went against him; but this is a case where the appellants questioned the jurisdiction of the tribunal from the outset and refused to take part in the proceedings. Though the notifications under S. 4 was published in the Rajasthan Gazette on February 14, 1957, Award No. 1 was made on December 11, 1959 and Award No. 2 on June 27, 1960. The appellants say that they came to know that the awards were made only on September 15, 1960, and they filed the petition in October 26, 1960. It cannot, therefore, be said that there was such an inordinate delay as to preclude the appellants from invoking the jurisdiction of the High Court under Art, 226 of thethat case a formal defect was sought to be relied upon to invalidate the notice and this Court did not accept the contention. But it cannot be an authority, for the position that, if a public notice of the notification was not given as prescribed by S. 4 it can be ignored. That would be | 1 | 3,277 | 1,043 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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the intention of the officer to enter his land before he does so and that of the other is to enable him to know the particulars of the land which is sought to be acquired. In the Land Acquisition Act, 1894 (Central Act 1 of 1894) there is no section corresponding to S. 5 (2) of the Act. Indeed sub-s. (2) of S. 5 of the Act was omitted by Act 15 of 1960 and S. 5A was suitably amended to bring the said provision in conformity with those of Central Act 1 of 1894. Whatever may be said on the question of construction after the said amendment-on which we do not express any opinion-before the amendment,. Ss. 4 and 5(2) were intended to serve different purposes.7. Indeed, the wording of S. 4 (2) of the Act leads to the same conclusion. It says, "thereupon it shall be lawful for any officer generally or specially authorised by the Government in this behalf, and for his servants and workmen to enter upon and survey and take levels of any land in such locality..................." The expressions thereupon and "shall be lawful" indicate that unless such a public notice is given, the officer or his servants cannot enter the land. It is a necessary condition for the exercise of the power of entry. The non-compliance with the said condition makes the entry of the officer or his servants unlawful. On the express terms of sub-s. (2), the officer Or his servants can enter the land to be acquired only if that condition is complied with. If it is not complied with, he or his servants cannot exercise the power of entry under S. 4 (2), with the result that if the expression "shall" is construed as "may", the object of the sub-section itself will be defeated. The statutory intention is, therefore, clear namely, that the giving of public notice is mandatory. If so, the notification issued under, S. 4 without complying with the said mandatory direction would be void and the land acquisition proceedings taken pursuant thereto would be equally void.8. Reliance is placed by the learned Advocate -General on the decision of this Court in Babu Barkya Thakur v. State of Bombay, 1961-l SCR 128 at p. 140: (AIR 1960 SC 1203 at p. 1208). There, the notification under S. 4 did not say specifically that the land sought to be acquired was needed for a public purpose, but it gave the necessary details in regard to the purpose for which the land was sought to be acquired. it was argued that the non-mention of the expression "public purpose invalidated the notification Dealing with the argument, this Court observed :"What was a mere proposal under S. 4 becomes the subject matter of a definite proceeding for acquisition under the Act. Hence, it is not correct to say that any defect in the notification under S 4 is fatal to the validity of the proceedings, particularly when the acquisition is for a company and the purpose has to be investigated under S. 5A or S. 40 neessarily after the notification under S. 4 of the Act."In that case a formal defect was sought to be relied upon to invalidate the notice and this Court did not accept the contention. But it cannot be an authority, for the position that, if a public notice of the notification was not given as prescribed by S. 4 it can be ignored. That would be re-writing the section.9. The decision of this Court in Smt. Somawanti v. State of Punjab, 1963-2 SCR 774 at pp. 822-23: (AIR 1963 SC 151 at p. 171), is also beside the point. The argument advanced therein was that the notification under S.6 should succeed the notification under S. 4 and that it could not be legally published in the same issue of the Gazette. Dealing with that argument, this Court observed :"In the case before us the preliminary declaration under S. 4 (1) was made on August 18, 1961 and a declaration as to the satisfaction of the Government on August 19, 1961, though both of them were published in the Gazette of August 25, 1961. The preliminary declaration as well as subsequent declaration are both required by law to be published in the official gazette. But the law does not make the prior publication of notification under sub-s. (1) of S. 4 a condition precedent to the publication of a notification under sub-s. (1) S. 6." On the said ground the contention was rejected. This decision also has no bearing on the point raised before us. Indeed, the following observation made by this Court in the course of the judgment, to some extent, goes against the contention of the respondent:"A notification under sub-s. (1) of S. 4 is a condition precedent to the making of notification under sub-s. (1) of S. 6."In the present case, the High Court, as we have expressed earlier, rightly held that the provisions for public notice was mandatory, but disallowed the objection on the ground that it was rather belated. We find it difficult to appreciate the said reasoning. This is not a case where a party, who submitted himself to the jurisdiction of a tribunal, raised the plea of want of jurisdiction when the decision went against him; but this is a case where the appellants questioned the jurisdiction of the tribunal from the outset and refused to take part in the proceedings. Though the notifications under S. 4 was published in the Rajasthan Gazette on February 14, 1957, Award No. 1 was made on December 11, 1959 and Award No. 2 on June 27, 1960. The appellants say that they came to know that the awards were made only on September 15, 1960, and they filed the petition in October 26, 1960. It cannot, therefore, be said that there was such an inordinate delay as to preclude the appellants from invoking the jurisdiction of the High Court under Art, 226 of the Constitution.
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6. This argument was not accepted by the High Court, and, in our view rightly. The provisions of a statute conferring power on the Government to compulsorily acquire lands shall be strictly construed. Section 4 in clear terms says that the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The provision is mandatory in terms. Doubtless, under certain circumstances, the expression shall is construed as "may". The term "shall" in its ordinary significance is mandatory and the Court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature, to be collected from ether parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations. The object underlying the said direction in S. 4 is obvious. Under sub-s. (2) of S. 4 of the Act, after Such a notice was given, the officer authorised by the Government in that behalf could enter the land and interfere with the possession of the owner in the manner prescribed thereunder. The Legislature thought that it was absolutely necessary that before such officer can enter the land of another, the owner thereof should have a clear notice of the intended entry. The fact that the owner may have notice of the particulars of the intended acquisition under S. .5 (2) does not serve the purpose of S. 4, for such a notice shall be given after the appropriate officer or officers enter the land and submit the particulars mentioned in S. 4. The objects of the two sections are different: the object of one section is to give intimation to the person whose land is sought to be acquired, of the intention of the officer to enter his land before he does so and that of the other is to enable him to know the particulars of the land which is sought to be acquired. In the Land Acquisition Act, 1894 (Central Act 1 of 1894) there is no section corresponding to S. 5 (2) of the Act. Indeed sub-s. (2) of S. 5 of the Act was omitted by Act 15 of 1960 and S. 5A was suitably amended to bring the said provision in conformity with those of Central Act 1 of 1894. Whatever may be said on the question of construction after the said amendment-on which we do not express any opinion-before the amendment,. Ss. 4 and 5(2) were intended to serve different purposes.7. Indeed, the wording of S. 4 (2) of the Act leads to the same conclusion. It says, "thereupon it shall be lawful for any officer generally or specially authorised by the Government in this behalf, and for his servants and workmen to enter upon and survey and take levels of any land in such locality..................." The expressions thereupon and "shall be lawful" indicate that unless such a public notice is given, the officer or his servants cannot enter the land. It is a necessary condition for the exercise of the power of entry. The non-compliance with the said condition makes the entry of the officer or his servants unlawful. On the express terms of sub-s. (2), the officer Or his servants can enter the land to be acquired only if that condition is complied with. If it is not complied with, he or his servants cannot exercise the power of entry under S. 4 (2), with the result that if the expression "shall" is construed as "may", the object of the sub-section itself will be defeated. The statutory intention is, therefore, clear namely, that the giving of public notice is mandatory. If so, the notification issued under, S. 4 without complying with the said mandatory direction would be void and the land acquisition proceedings taken pursuant thereto would be equallythe present case, the High Court, as we have expressed earlier, rightly held that the provisions for public notice was mandatory, but disallowed the objection on the ground that it was rather belated. We find it difficult to appreciate the said reasoning. This is not a case where a party, who submitted himself to the jurisdiction of a tribunal, raised the plea of want of jurisdiction when the decision went against him; but this is a case where the appellants questioned the jurisdiction of the tribunal from the outset and refused to take part in the proceedings. Though the notifications under S. 4 was published in the Rajasthan Gazette on February 14, 1957, Award No. 1 was made on December 11, 1959 and Award No. 2 on June 27, 1960. The appellants say that they came to know that the awards were made only on September 15, 1960, and they filed the petition in October 26, 1960. It cannot, therefore, be said that there was such an inordinate delay as to preclude the appellants from invoking the jurisdiction of the High Court under Art, 226 of thethat case a formal defect was sought to be relied upon to invalidate the notice and this Court did not accept the contention. But it cannot be an authority, for the position that, if a public notice of the notification was not given as prescribed by S. 4 it can be ignored. That would be
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R.C. Chandel Vs. High Court Of M.P. | review petition filed by him before the Chief Justice after his representations for expunction of adverse remarks for the period ending on 31.03.1993 and 31.03.1994 had been thrice earlier rejected. The appellant approached Shri R. K. Malaviya, Member of Parliament and Chairman, House Committee (Rajya Sabha) for his grievance concerning rejection of his representations for expunction of remarks for 1993 and 1994. Though the appellant has denied that he ever approached Shri R.K. Malaviya but to falsify his claim, the learned senior counsel for the respondent no. 1 placed before us xerox copy of the letter dated 14.02.1996 written by Shri R.K. Malaviya to Shri H.R. Bhardwaj, Minister of State for Law, Justice and Company Affairs, Government of India, New Delhi and the copy of the letter dated 08.03.1996 sent by the Ministry of Law, Justice and Company Affairs (Department of Justice), Government of India addressed to the Chief Secretary to the Government of Madhya Pradesh, Bhopal and the Registrar, High Court. The letter dated 14.02.1996 addressed by Shri R.K. Malaviya to Shri H.R. Bhardwaj, the then Minister of State for Law, Justice and Company Affairs reads as follows : “R.K. MalaviyaOff. : 66, PARLIAMENTMEMBER OFHOUSE NEW DELHI –PARLIAMENT110001.CHAIRMANTEL.: 3017048, 3034699HOUSE�COMMITTEERES.: 30, CANNING(RAJYA SABHA)LANE KASTURBA�GANDHI MARG�NEW DELHI -110001�TEL. : 3782895�RES. : 19, TILAK�NAGAR, MAIN ROAD�INDORE (M.P.)�TEL. : 492412, 492588,�495054�14 February 1996Dear Shri Bhardwaj JiEnclosed is a representation of Shri R.C. Chandel, District & Sessions Judge, Rewa [MP], which is self-explanatory.I shall be grateful if you kindly get it examined and do the needful.Yours sincerely,[R.K. MALVIYA]Shri H.R. Bhardwaj,Minister of State for Law, Justice &Company Affairs, Government of India,NEW DELHI.” 39. The forwarding letter sent by the Government of India, Ministry of Law, Justice and Company Affairs (Department of Justice) dated 8.3.1996 reads as follows : “No. L-19015/3/96-JusGovernment of IndiaMinistry of Law, Justice and C.A.(Department of Justice)Jaisalmer House, Mansingh RoadNew Delhi, the 8/3/96.1) The Chief Secretary to the Government of Madhya Pradesh, BHOPAL.�2) The Registrar, Madhya Pradesh High Court, JABALPUR.�Subject : Reference from Sh. R.K. Malaviya, Member of Parliament and Chairman, House Committee, Rajya Sabha on representation of Sh. R.C. Chandel District and Sessions Judge, Rewa (M.P.)Sir,I am directed to forward herewith a copy of letter dated 14.2.1996 alongwith its enclosure, received from Shri R.K. Malaviya, Member of Parliament and Chairman House Committee, Rajya Saba on the above subject for taking such action as may be considered appropriate.Yours faithfully,(P.N. SINGH)Under Secretary to the Government of India” 40. The conduct of the appellant in involving an M.P. and the Ministry of Law, Justice and Company Affairs, in a matter of the High Court concerning an administrative review petition filed by him for expunging adverse remarks in ACRs of 1993 and 1994 is most reprehensible and highly unbecoming of a judicial officer. His conduct has tarnished the image of the judiciary and he disentitled himself from continuation in judicial service on that count alone. A Judge is expected not to be influenced by any external pressure and he is also supposed not to exert any influence on others in any administrative or judicial matter. Secondly and still worst, the appellant had an audacity to set up a plea in the rejoinder that he never made any representation to Shri R.K. Malaviya, M.P. for any purpose whatsoever. But for the appellant’s approaching Shri R.K. Malaviya and his request for help, Shri R.K. Malaviya would have never written the letter quoted above to the then Minister of State for Law, Justice and Company Affairs. On this ground also his writ petition was liable to be dismissed.41. The learned Single Judge examined the administrative decision of the Full Court to recommend to the Government to compulsory retire the appellant as if he was sitting as an appellate authority to consider the correctness of such recommendation by going into sufficiency and adequacy of the materials which led the Full Court in reaching its satisfaction. The whole approach of the Single Judge in consideration of the matter was flawed and not legally proper. The learned Single Judge proceeded to examine the materials by observing, “The entire record pertaining to complaints against the petitioner has also been produced before me during the course of argument by learned senior counsel for respondent no. 1. Thus, I am dealing each and every complaint one by one”. We are afraid, the learned Single Judge did not keep the scope of judicial review in view while examining the validity of the order of compulsory retirement. The Division Bench of the High Court in the intra-court appeal was, thus, fully justified in setting aside the impugned order. 42. Learned senior counsel for the appellant placed heavy reliance on a decision of this Court in Nand Kumar Verma1. Having carefully considered Nand Kumar Verma1, we find that the decision of this Court in Nand Kumar Verma1 has no application on the facts of the present case. This is clear from para 36 (Pg. 591) of the Report which reads as follows: “36. The material on which the decision of the compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was no justification to retire the appellant compulsorily from service.” Nand Kumar Verma1 , thus, turned on its own facts. 43. In view of the above, we are satisfied that the recommendation made by the High Court to the Government for compulsory retirement of the appellant and the order of compulsory retirement issued by the Government do not suffer from any legal flaw. The order of compulsory retirement is neither arbitrary nor irrational justifying any interference in judicial review. | 0[ds]40. The conduct of the appellant in involving an M.P. and the Ministry of Law, Justice and Company Affairs, in a matter of the High Court concerning an administrative review petition filed by him for expunging adverse remarks in ACRs of 1993 and 1994 is most reprehensible and highly unbecoming of a judicial officer. His conduct has tarnished the image of the judiciary and he disentitled himself from continuation in judicial service on that count alone. A Judge is expected not to be influenced by any external pressure and he is also supposed not to exert any influence on others in any administrative or judicial matter. Secondly and still worst, the appellant had an audacity to set up a plea in the rejoinder that he never made any representation to Shri R.K. Malaviya, M.P. for any purpose whatsoever. But for theapproaching Shri R.K. Malaviya and his request for help, Shri R.K. Malaviya would have never written the letter quoted above to the then Minister of State for Law, Justice and Company Affairs. On this ground also his writ petition was liable to be dismissed.41. The learned Single Judge examined the administrative decision of the Full Court to recommend to the Government to compulsory retire the appellant as if he was sitting as an appellate authority to consider the correctness of such recommendation by going into sufficiency and adequacy of the materials which led the Full Court in reaching its satisfaction. The whole approach of the Single Judge in consideration of the matter was flawed and not legally proper. The learned Single Judge proceeded to examine the materials by observing,entire record pertaining to complaints against the petitioner has also been produced before me during the course of argument by learned senior counsel for respondent no. 1. Thus, I am dealing each and every complaint one byWe are afraid, the learned Single Judge did not keep the scope of judicial review in view while examining the validity of the order of compulsory retirement. The Division Bench of the High Court in the intra-court appeal was, thus, fully justified in setting aside the impugned order.In view of the above, we are satisfied that the recommendation made by the High Court to the Government for compulsory retirement of the appellant and the order of compulsory retirement issued by the Government do not suffer from any legal flaw. The order of compulsory retirement is neither arbitrary nor irrational justifying any interference in judicial review. | 0 | 6,375 | 442 | ### 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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review petition filed by him before the Chief Justice after his representations for expunction of adverse remarks for the period ending on 31.03.1993 and 31.03.1994 had been thrice earlier rejected. The appellant approached Shri R. K. Malaviya, Member of Parliament and Chairman, House Committee (Rajya Sabha) for his grievance concerning rejection of his representations for expunction of remarks for 1993 and 1994. Though the appellant has denied that he ever approached Shri R.K. Malaviya but to falsify his claim, the learned senior counsel for the respondent no. 1 placed before us xerox copy of the letter dated 14.02.1996 written by Shri R.K. Malaviya to Shri H.R. Bhardwaj, Minister of State for Law, Justice and Company Affairs, Government of India, New Delhi and the copy of the letter dated 08.03.1996 sent by the Ministry of Law, Justice and Company Affairs (Department of Justice), Government of India addressed to the Chief Secretary to the Government of Madhya Pradesh, Bhopal and the Registrar, High Court. The letter dated 14.02.1996 addressed by Shri R.K. Malaviya to Shri H.R. Bhardwaj, the then Minister of State for Law, Justice and Company Affairs reads as follows : “R.K. MalaviyaOff. : 66, PARLIAMENTMEMBER OFHOUSE NEW DELHI –PARLIAMENT110001.CHAIRMANTEL.: 3017048, 3034699HOUSE�COMMITTEERES.: 30, CANNING(RAJYA SABHA)LANE KASTURBA�GANDHI MARG�NEW DELHI -110001�TEL. : 3782895�RES. : 19, TILAK�NAGAR, MAIN ROAD�INDORE (M.P.)�TEL. : 492412, 492588,�495054�14 February 1996Dear Shri Bhardwaj JiEnclosed is a representation of Shri R.C. Chandel, District & Sessions Judge, Rewa [MP], which is self-explanatory.I shall be grateful if you kindly get it examined and do the needful.Yours sincerely,[R.K. MALVIYA]Shri H.R. Bhardwaj,Minister of State for Law, Justice &Company Affairs, Government of India,NEW DELHI.” 39. The forwarding letter sent by the Government of India, Ministry of Law, Justice and Company Affairs (Department of Justice) dated 8.3.1996 reads as follows : “No. L-19015/3/96-JusGovernment of IndiaMinistry of Law, Justice and C.A.(Department of Justice)Jaisalmer House, Mansingh RoadNew Delhi, the 8/3/96.1) The Chief Secretary to the Government of Madhya Pradesh, BHOPAL.�2) The Registrar, Madhya Pradesh High Court, JABALPUR.�Subject : Reference from Sh. R.K. Malaviya, Member of Parliament and Chairman, House Committee, Rajya Sabha on representation of Sh. R.C. Chandel District and Sessions Judge, Rewa (M.P.)Sir,I am directed to forward herewith a copy of letter dated 14.2.1996 alongwith its enclosure, received from Shri R.K. Malaviya, Member of Parliament and Chairman House Committee, Rajya Saba on the above subject for taking such action as may be considered appropriate.Yours faithfully,(P.N. SINGH)Under Secretary to the Government of India” 40. The conduct of the appellant in involving an M.P. and the Ministry of Law, Justice and Company Affairs, in a matter of the High Court concerning an administrative review petition filed by him for expunging adverse remarks in ACRs of 1993 and 1994 is most reprehensible and highly unbecoming of a judicial officer. His conduct has tarnished the image of the judiciary and he disentitled himself from continuation in judicial service on that count alone. A Judge is expected not to be influenced by any external pressure and he is also supposed not to exert any influence on others in any administrative or judicial matter. Secondly and still worst, the appellant had an audacity to set up a plea in the rejoinder that he never made any representation to Shri R.K. Malaviya, M.P. for any purpose whatsoever. But for the appellant’s approaching Shri R.K. Malaviya and his request for help, Shri R.K. Malaviya would have never written the letter quoted above to the then Minister of State for Law, Justice and Company Affairs. On this ground also his writ petition was liable to be dismissed.41. The learned Single Judge examined the administrative decision of the Full Court to recommend to the Government to compulsory retire the appellant as if he was sitting as an appellate authority to consider the correctness of such recommendation by going into sufficiency and adequacy of the materials which led the Full Court in reaching its satisfaction. The whole approach of the Single Judge in consideration of the matter was flawed and not legally proper. The learned Single Judge proceeded to examine the materials by observing, “The entire record pertaining to complaints against the petitioner has also been produced before me during the course of argument by learned senior counsel for respondent no. 1. Thus, I am dealing each and every complaint one by one”. We are afraid, the learned Single Judge did not keep the scope of judicial review in view while examining the validity of the order of compulsory retirement. The Division Bench of the High Court in the intra-court appeal was, thus, fully justified in setting aside the impugned order. 42. Learned senior counsel for the appellant placed heavy reliance on a decision of this Court in Nand Kumar Verma1. Having carefully considered Nand Kumar Verma1, we find that the decision of this Court in Nand Kumar Verma1 has no application on the facts of the present case. This is clear from para 36 (Pg. 591) of the Report which reads as follows: “36. The material on which the decision of the compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was no justification to retire the appellant compulsorily from service.” Nand Kumar Verma1 , thus, turned on its own facts. 43. In view of the above, we are satisfied that the recommendation made by the High Court to the Government for compulsory retirement of the appellant and the order of compulsory retirement issued by the Government do not suffer from any legal flaw. The order of compulsory retirement is neither arbitrary nor irrational justifying any interference in judicial review.
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40. The conduct of the appellant in involving an M.P. and the Ministry of Law, Justice and Company Affairs, in a matter of the High Court concerning an administrative review petition filed by him for expunging adverse remarks in ACRs of 1993 and 1994 is most reprehensible and highly unbecoming of a judicial officer. His conduct has tarnished the image of the judiciary and he disentitled himself from continuation in judicial service on that count alone. A Judge is expected not to be influenced by any external pressure and he is also supposed not to exert any influence on others in any administrative or judicial matter. Secondly and still worst, the appellant had an audacity to set up a plea in the rejoinder that he never made any representation to Shri R.K. Malaviya, M.P. for any purpose whatsoever. But for theapproaching Shri R.K. Malaviya and his request for help, Shri R.K. Malaviya would have never written the letter quoted above to the then Minister of State for Law, Justice and Company Affairs. On this ground also his writ petition was liable to be dismissed.41. The learned Single Judge examined the administrative decision of the Full Court to recommend to the Government to compulsory retire the appellant as if he was sitting as an appellate authority to consider the correctness of such recommendation by going into sufficiency and adequacy of the materials which led the Full Court in reaching its satisfaction. The whole approach of the Single Judge in consideration of the matter was flawed and not legally proper. The learned Single Judge proceeded to examine the materials by observing,entire record pertaining to complaints against the petitioner has also been produced before me during the course of argument by learned senior counsel for respondent no. 1. Thus, I am dealing each and every complaint one byWe are afraid, the learned Single Judge did not keep the scope of judicial review in view while examining the validity of the order of compulsory retirement. The Division Bench of the High Court in the intra-court appeal was, thus, fully justified in setting aside the impugned order.In view of the above, we are satisfied that the recommendation made by the High Court to the Government for compulsory retirement of the appellant and the order of compulsory retirement issued by the Government do not suffer from any legal flaw. The order of compulsory retirement is neither arbitrary nor irrational justifying any interference in judicial review.
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Subsets and Splits